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IN THE HIGH COURT OF ALLAHABAD
Munishwar Nath Bhandari, Rohit Ranjan Agarwal, JJ.
M/S Proview Realtech Pvt. Ltd. - Petitioner
Versus
State Of U.P. And 5 Others - Respondent
WRIT - C No. – 27147, 27104, 27175 of 2020
Decided On : 12-01-2021
Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016 – Rules 23 and 24 – Real Estate (Regulation and Development) Act, 2016 – Sections 21, 81, 40, 43 –U.P. Real Estate Regulatory Authority (General) Regulation, 2019 – Regulation 24(a) – Recovery Certificate– To issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the recovery certificate and citation – To Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order passed by respondent no.2 – To issue a writ, order or direction in the nature of Certiorari calling the record and quashing the minutes/resolutions alleged to have been passed by the respondent no.2 – To Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the minutes/resolution alleged to have been passed by respondent no.2 – To Issue an appropriate writ, order or direction for striking down Regulation 24(a) of the U.P. Real Estate Regulatory Authority (General) Regulation, 2019 – Petitioner has challenged the order passed by Real Estate Regulatory Authority though an appeal against the said order lies under Section 43(5) of Real Estate (Regulation and Development) Act, 2016./
Finding of the court: Consumer had deposited a sum of Rs.25 lacs and odd, in instalments but despite an agreement for giving possession of the flat in the year 2017, it was not handed over to the consumer. – Direction for return of the amount with interest has been given in those circumstances. – If a consumer is to seek execution of the part of the order through the civil court then the very purpose of the enactment of Act of 2016 to provide speedy dispute redressal mechanism would frustrate. – If the argument of the petitioner is accepted then for recovery of a sum of Rs.25 lacs and odd, the non petitioner consumer is to be send to civil court while recovery of amount of interest of Rs.15 lacs can be made as arrears of land revenue, as admitted by the counsel for the petitioner himself. – If recovery of amount is to be sought by dividing it in two parts and by different method, it would be against the object of the Act of 2016. The object of speedy redressal would frustrate if recovery of the amount is also sought through the civil court. – Court thus hold that the purpose and object of Section 40(1) is to allow recovery of the amount as arrears of land revenue so as to expeditiously give the relief to the consumer having suffered in the hands of the Promoter. – Section 40(1) has to be given interpretation by reading down the provision to make it purposeful and akin to the object of the Act of 2016. – Section 40(2) is for any other direction either to act in a particular manner or to restrain a party to do certain act and execution of it can be made by the Adjudicating Authority and in case of failure, by the civil court. Section 40(2) covers basically the case of an order of injunction or mandatory injunction. – Court is unable to accept any of the arguments raised by the counsel for the petitioner.
Result: – Writ Petitions Dismissed
JUDGMENT
1. Heard learned counsel for the petitioner, Sri Anit Tiwari, Senior Advocate assisted by Sri Wasim Masood, learned counsel for the respondent No.2 and learned Standing Counsel for respondent Nos.1, 3 and 4.
2. Since the question of law involved in all the three writ petitions is similar, and as agreed by the counsel for the parties, they are heard together and decided by this common judgment.
3. The writ petition No.27147 of 2020, which is taken to be leading case, has been filed with the following prayers:
(ii) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the impugned order dated 20.03.2020 passed by respondent no.2 (Annexure-2 to the present writ petition).
(iii) issue a writ, order or direction in the nature of Certiorari calling the record and quashing the minutes/resolutions dated 14.08.2018 alleged to have been passed by the respondent no.2 (Annexure No.3 to the writ petition).
(iv) Issue a writ, order or direction in the nature of Certiorari calling for the records and quashing the minutes/resolution dated 05.12.2018 alleged to have been passed by respondent no.2 (Annexure -4 to the writ petition).
(v) Issue an appropriate writ, order or direction for striking down Regulation 24(a) of the U.P. Real Estate Regulatory Authority (General) Regulation, 2019.”
4. The petitioner has challenged the order passed by Real Estate Regulatory Authority (in short “RERA”) dated 20.03.2020 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”).
5. It is a case where a complaint was filed by the non-petitioner alleging that despite payment towards unit No.08 in the scheme introduced by the petitioner, the possession of a unit has not been given. The unit (flat) was booked on 28.01.2012 and was to be delivered in the year 2017. The prayer was made for refund of the amount of Rs.25,36,985/-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 29.02.2017. 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 20.0.2020 for refund of the principal amount alongwith interest. In pursuance thereof, order dated 27.10.2020 was issued for its execution. The amount of Rs.25,36,985/-was shown towards the principal amount while component of interest was Rs.15,68.814/-. The petitioner has filed this writ petition to challenge not only the order dated 20.03.2020 passed by RERA but the order dated 27.10.2020 on the execution application.
6. 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 20.03.2020 is without jurisdiction.
7. 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
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