Point of Law: Section 38(1) of the Act, 2016 confers power upon the 'Authority' to impose penalty or interest in regard to contravention of obligations cast upon the promoters, the allottees and the real estate agents under the Act, Rules and Regulations. Power to award compensation or interest has been conferred under Section 71(1)/(3) of the Act, 2016 upon an Adjudicating Officer for adjudging compensation under Section 12, 14, 18 and Section 19 of the Act, 2016. Thus, the power to adjudge compensation has been conferred upon the Adjudicating Officer and not upon the Authority. Therefore, the impugned order passed by the Adjudicating Officer adjudging compensation is well within the four corners of the Section 71 of the Act, 2016.

JUDGMENT :

1. Heard Sri Siddhartha Singhal, holding brief of Sri Swapnil Rastogi, learned counsel for the petitioner, Sri Vinay Kumar Pathak, learned counsel for Respondent No.1, Girish Vishvakarma, learned standing counsel for Respondent No.2 and Sri Jagdish Prasad holding brief of Sri Wasim Masood, learned counsel for Respondent Nos. 3 and 4.

2. This writ petition has been filed praying for the following reliefs:

“(a) Issue a writ, order or direction in the nature of certiorari calling for the record and quashing the impugned order dated 30.09.2019 passed by Adjudicating Officer, Regional Office, Uttar Pradesh, Real Estate Regulatory Authority, Gautambudh Nagar in Complaint Case No.ADJ/120185832 (Sarika Tulsian and another vs. Vibhor Vaibhav Infrahome Pvt. Ltd.) (Annexure No. 1);

(b) Issue a writ, order or direction in the nature of certiorari calling for the records and quashing the impugned recovery certificate dated 25.06.2020 issued by Adjudicating Officer, Regional Office, Uttar Pradesh, Real Estate Regulatory, Gautambudh Nagar (Annexure No. 2);

(c) Issue an appropriate writ, order or direction declaring the proviso to Section 43(5) of Real Estate (Regulation & Development) Act, 2016 as arbitrary, ultra vires to the constitution being in conflict and contradictory to the spirit of the Real Estate (Regulation & Development) Act, 2016.”

3. Learned counsel for the petitioner has stated that the petitioner is not pressing the relief no.'c'.

Facts

4. Briefly stated facts of the present case are that the petitioner is the promoter within the meaning of Section 2(zk) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the “Act, 2016”). The petitioner entered into builder-buyer agreement dated 10.07.2011 with the respondent nos. 5 and 6. Undisputedly as per agreement the petitioner was under a contractual obligation to handover the flat to the respondent nos.5 and 6 within 30 months from the date of agreement. A grace period of 180 days was also provided in the agreement. Thus as per agreement the petitioner was liable to handover the flat complete in all respect to the respondent nos.5 and 6 within 30 + 6 = 36 months i.e. three years. Thus, the last date for giving possession of the flat by the petitioner to the respondent nos.5 and 6 was 09.07.2014. However, the petitioner could not complete and handover the flat to the respondent nos.5 and 6 within the agreed time and thus violated provisions of Section 18 of the Act, 2016. The actual possession of the flat was received by the respondent nos. 5 and 6 on 26.12.2017. Since the petitioner violated the provisions of Section 18 of the Act, 2016, therefore, the respondent nos.5 and 6 filed an application on 18.01.2018 before the authority as defined in Section 2(i) of the Act, 2016 claiming compensation and interest. Since the respondent nos.5 and 6 have claimed compensation also, therefore, the authority passed an order dated 22.05.2019 holding that the Adjudicating Officer may be approached in this regard. Thus, the matter came before the Adjudicating Officer under Section 71 of the Act, 2016. The Adjudicating Officer passed the impugned order dated 30.09.2019 awarding compensation and interest. Aggrieved by the aforesaid impugned order, the petitioner has filed present writ petition under Section 226 of the Constitution of India.

Submissions

5. Learned counsel for the petitioner submits as under:

(i) Adjudicating Officer under Section 71 of the Act, 2016 has no power to award interest and compensation, in the event possession of the flat has been taken by the allottee from the promoter.

(ii) Thus, since the impugned order is without jurisdiction and, therefore, neither appeal shall lie under Section 43 (5) of the Act, 2016 nor the appeal is an appropriate remedy.

6. No other point has been argued by the learned counsel for the petitioner before us.

7. In support of his submission learned counsel for the petitioner has relied upon the judgment of this Cour