2021 Supreme(All) 181

IN THE HIGH COURT OF ALLAHABAD
Munishwar Nath Bhandari, Rohit Ranjan Agarwal, JJ.
M/S Geotech Promoters Pvt. Ltd. - Petitioner
Versus
State Of U.P. And 6 Others - Respondent
WRIT - C No. - 26439 of 2020
Decided On : 29-01-2021

Point of law: 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

Headnote:

Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016 – Rules 23 and 24 – Real Estate (Regulation and Development) Act, 2016 – Sections 43, 21, 85 – U.P. Real Estate Regulatory Authority (General) Regulation, 2019 – Section 24(a) – Writ of Certiorari – Order Of Injunction – Writ petition has been filed with the prayers to issue an appropriate writ, order or direction declaring the section 24(a) of the U.P. Real Estate Regulatory Authority (General) Regulation, 2019 as ultra vires and contrary to the section 21 and 85 of the RERA Act – To issue a writ, order or direction in the nature of Certiorari quashing order passed Regulatory Authority / Bench No. II, U.P. RERA Regional Office, Gautam Budh Nagar, in Complaint – To issue a writ, order or direction in the nature certiorari quashing the impugned Recovery Certificate issued by opposite party no. 4 – To issue a writ, order or direction in the nature of mandamus not to give effect the impugned recovery certificate issued by opposite party no. 4 – To issue a writ, order or direction in the nature of mandamus directing the state respondents not to initiate coercive measures pursuant to the impugned recovery certificate issued by opposite party no. 4. – 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 2018, 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.9 lacs and odd 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. – 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. – So far as challenge to Rule 24 (a) of U.P. Real Estate Regulatory Authority (General) Regulation, 2019 is concerned, the issue is kept open. – It has not been debated for the reason that an order of the nature provided under Regulation 24 (a) has not been passed in the case in hand. – Thus, there is no occasion for the petitioner to challenge the vires of the said Regulation in these proceedings However, as and when the Authority invokes Regulation 24 (a) of Regulation, 2019, the liberty is given to challenge the validity. – Thus, issue is kept open for the aforesaid. – Court is unable to accept any of the arguments raised by the counsel for the petitioner.

Result: – Writ Petition Dismissed