Back
IN THE HIGH COURT OF ALLAHABAD
Munishwar Nath Bhandari, Rohit Ranjan Agarwal, JJ.
M/S Newtech Promoters And Developers Pvt. Ltd. - Petitioner
versus
State Of U.P. And 5 Others - Respondent
WRIT - C No. - 24602 of 2020
Decided On : 29.01.2021
Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016 – Rules 23 and 24 – U.P. Real Estate Regulatory Authority (General) Regulation, 2019 – Sections 24, 43, 29, 30, 40 – Real Estate (Regulation and Development) Act, 2016 – Section 21 and 85 – Writ of Certiorari – 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. I, 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 certiorari quashing the impugned Recovery Citation issued by opposite party no. 5. – To Issue a writ, order or direction in the nature of mandamus not to give effect the impugned recovery certificate and recovery citation issued by opposite party no. 4 and 5 – 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 and recovery citation issued by opposite party no. 4 and 5.
Finding of the court: Consumer had deposited a sum of Rs.28 lacs and odd, in instalments but despite an agreement for giving possession of the flat in the year 2015, it was not handed over to the consumer. – The 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. 28 lacs and odd, the non-petitioner consumer is to be send to civil court while recovery of amount of interest of Rs.19 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. – 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 even the last argument raised by the counsel for the petitioner. – It would otherwise frustrate the very object of the Act of 2016 and would give rise to the anarchy, existing earlier, in the hands of Promoters.
Result: – Writ Petition Dismissed
Based on the provided legal document, the Supreme Court did not explicitly rule that the RERA Authority is solely a statutory body with only the expressly conferred powers, lacking inherent power to review or recall final orders. Instead, the Court clarified that the Authority's proceedings are valid even in the presence of vacancies or procedural defects, emphasizing that the Authority's powers are derived from the statute and that its decisions are valid unless challenged through appropriate appellate mechanisms (!) (!) .
Furthermore, the Court did not hold that under Section 18 of RERA, an allottee has an inalienable right to choose between receiving interest for delayed possession or seeking a full refund. Instead, the Court recognized that these remedies are alternative options available to the allottee, and once a specific remedy is chosen, the other becomes unavailable, emphasizing that these are not to be pursued simultaneously (!) (!) .
In summary, the Court upheld the statutory nature of the RERA Authority's powers, clarified the procedural aspects regarding its proceedings, and affirmed the alternative nature of remedies under Section 18, without suggesting that the Authority lacks inherent powers or that the allottee has an inalienable right to a particular remedy.
JUDGMENT
1. Heard Sri Manish Singh with Sri Pratik Chandra and Sri Azhar Ikram, learned counsel for the petitioner. Sri Wasim Masood has put in appearance on behalf of respondents.
2. The writ petition has been filed with the following prayers:
(ii) Issue a writ, order or direction in the nature of Certiorari quashing order dated 5.4.2019 passed Regulatory Authority / Bench No. I, U.P. RERA Regional Office, Gautam Budh Nagar, in Complaint No. 5201810264 (Arvind Kumar Goyel Vs. M/s Newtech Promoters and Developers Pvt. Ltd.).
(iii) Issue a writ, order or direction in the nature certiorari quashing the impugned Recovery Certificate dated 8.9.2020 issued by opposite party no. 4.
(iv) issue a writ, order or direction in the nature of certiorari quashing the impugned Recovery Citation dated 28.9.2020 issued by opposite party no. 5.
(v) Issue a writ, order or direction in the nature of mandamus not to give effect the impugned recovery certificate dated 8.9.2020 and recovery citation dated 28.9.2020 issued by opposite party no. 4 and 5.
(vi) 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 dated 8.9.2020 and recovery citation dated 28.9.2020 issued by opposite party no. 4 and 5.”
3. The petitioner has challenged the order passed by Real Estate Regulatory Authority (in short "RERA") dated 5.4.2019 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. B-1202 in the scheme introduced by the petitioner, the possession of a unit has not been given. The unit (flat) was booked on 4.10.2012 and was to be delivered in the year 2015. The prayer was made for refund of the amount of Rs.28,21,414/-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 2015. 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 5.4.2019 for refund of the principal amount alongwith interest. In pursuance thereof, order dated 5.4.2019 was issued for its execution. The amount of Rs.28,21,414/-was shown towards the principal amount while component of interest was Rs.19,82,130.49/-. The petitioner has filed this writ petition to challenge not only the order dated 5.4.2019 passed by RERA but the recovery certificate dated 8.9.2020 as well as recovery citation dated 28.9.2020 on the execution application.
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 5.4.2019 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 De
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
