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IN THE HIGH COURT OF ALLAHABAD
M.N. Bhandari, Rohit Ranjan Agarwal, JJ.
Newtech Promoters and Developers Pvt. Ltd. – Appellant
Versus
State of U.P. and Ors. – Respondents
Civil Misc. Writ Petition No. 24602 of 2020
Decided On : 29-01-2021
U.P. Real Estate Regulatory Authority (General) Regulation, 2019 - Section 24(a), 21 and 85 - Real Estate (Regulation and Development) Act, 2016 - Section 40, 43(5), 21, 29 and 30 - U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018 - Composition of Authority - Meeting of Authority - Vacancies, etc., not to invalidate proceeding of Authority - Recovery of interest or penalty or compensation and enforcement of order, etc – Held, consumer had deposited a sum of Rs. 28 lacs and odd, in installments 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 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 - Courts are unable to accept even 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 - 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 - Writ petition dismissed.
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 v. 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 Developmen
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