The main legal point established in the judgment is the interpretation of the relevant provisions of the Act of 2016, specifically regarding the composition of the Authority, adjudication of complaints, and the validity of proceedings in case of vacancies or defects.

JUDGMENT :

1. Heard Sri Sarvesh Tiwari, learned counsel for the petitioner and Sri Washim Masood, learned counsel for the respondent.

2. The writ petition has been filed with the following prayers:

"(i) Issue a writ, order or direction in the nature of Certiorari quashing the order dated 30.10.2019 passed by respondent No.4 (contained as Annexure No.1)

(ii) Issue a writ, order or direction in the nature of Certiorari quashing the resolution dated 14.08.2018 and 05.12.2018 passed by respondent No.4 (contained as Annexure-4).

(iii) Issue an appropriate writ, order or direction for striking down Regulation 24(a) of the U.P. Real Estate Regulatory Authority (General) Regulation, 2019.

(iv) Issue any other suitable writ order or direction which this Hon'ble Court deems fit and proper under the facts and circumstances of the case.

(v) Award cost of the writ petition to the petitioner throughout"

3. The petitioner has challenged the order passed by Real Estate Regulatory Authority (in short "RERA") dated 31.10.2019 (wrongly mentioned as 30.10.2019 in the prayer clause (i)) though an appeal against the said order lies under Section 43(5) of Real Estate (Regulation and Development) Act, 2016 (in short "Act of 2016").

4. It is a case where a complaint was filed by the non-petitioner alleging that despite payment towards unit No. A-2101 in the scheme introduced by the petitioner, the possession of a unit has not been given. The unit (flat) was booked on 13.10.2016 and was to be delivered in the year 2018. The prayer was made for refund of the amount of Rs. 22,70,384/- with interest. The Authority found that as per the agreement entered between the parties, possession of the flat in question should have been delivered by 27.08.2018. The petitioner-Company failed to show delivery of possession of the flat in question. Thus, taking into consideration the default of the Promoter (petitioner herein) and referring to the judgment of Apex Court, an order was passed by RERA on 31.10.2019 for refund of the principal amount alongwith interest. The petitioner has filed this writ petition to challenge not only the order dated 31.10.2019 passed by RERA but also the resolutions dated 14.08.2018 and 05.12.2018. The petitioner has not challenged the recovery citation dated 31.08.2020.

5. Learned counsel for the petitioner submits that an appeal against the order passed by RERA is maintainable but this case has exceptional circumstances thus even a writ petition would be maintainable. One member of RERA has passed the order going against the Act of 2016. Section 21 provides for formation of Authority consist of Chairperson alongwith two whole time Members. The impugned order is by one Member alone going against the mandate of Section 21 of the Act of 2016. In view of the above, there is no need to prefer an appeal as the order dated 31.10.2019 is without jurisdiction.

6. It is also stated that the order to award interest by the Authority is again going contrary to the provisions. Rules for award of interest was introduced in the year 2018. The amount deposited with the Promotor has been ordered to be returned with interest. The interest has been allowed even for the period prior to introduction of U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018 (in short "Rules of 2018"). It is even ignoring the rate of interest agreed by the parties. Challenge to the order has been made on that ground also.

7. We are first taking challenge to the order dated 31.10.2019, passed by the Authority to find out as to whether one member was competent to pass the order.

8. The issue has been raised in reference to Section 21 but it is not open for debate having been decided by this Court in Writ -C No.2248 of 2020 (M/s K.D.P. Build Well Pvt. Ltd. vs. State of U.P. and 4 Others) vide judgment dated 04.02.2020 and in Writ- C No.3289 of 2020 (Rudra Buildwell Constructions Pvt. Ltd. vs. Poonam Sood and Another) vide judgment dated 06.02.2020 holding order by