M/s International Land Developers Private limited vs Aditi Chauchan And Others

CWP Nos.7738, 7750 and 9942 of 2022 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

(1) CWP No.7738 of 2022 (O&M) Date of Decision:17.08.2022

M/s International Land Developers Private limited

.... Petitioner Versus

Aditi Chauhan and others .... Respondents

(2) CWP No.7750 of 2022 (O&M)

M/s International Land Developers Private Limited .... Petitioner Versus

Nitin Mathur and others .... Respondents

(3) CWP No. 9942 of 2022

Tirupati Buildplaza Private Limited ... Petitioner vs. Haryana Real Estate Regulatory Authority ... Respondents

***

CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH HON'BLE MR. JUSTICE LALIT BATRA ----

Argued by: Mr. Chetan Mittal, Senior Advocate with Mr. Akshat Mittal, Advocate, Mr. Sandeep Sharma, Advocate and Mr. Mayank Aggarwal, Advocate for the petitioner (CWP Nos. 7738 and 7750 of 2022).

Mr. Aashish Chopra, Senior Advocate, with Mr. Sugandha Kundu, Advocate, for the petitioner (in CWP No. 9942 of 2022).

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Mr. Neeraj Gupta, Advocate for respondent No.1 (in CWP no.7738 of 2022) and for respondents No.1 and 2 (in CWP no.7750 of 2022).

Mr. Ankur Mittal, Advocate with Ms. Kushaldeep Kaur, Advocate, Ms. Vasundhra Asija, Advocate and Mr. Anmol Dutt Sharma, Advocate for the respondent RERA.

**** Amol Rattan Singh, J.

Vide this judgment, we are disposing of three writ petitions, i.e.

CWP nos.7738, 7750 and 9942 of 2022.

The first two petitions are wholly on the same issue and in fact

challenging the same order, with the petitioner also being the same in both,

the only reason for filing two separate petitions being that the impugned

order disposes of complaints filed by different persons against the same

petitioner (company) and consequently the said company in its wisdom

chose to file two petitions qua the different complainants, even though the

impugned order is common.

The 3rd petition, i.e. CWP no.9942 of 2022, in one of its aspects,

i.e. waiver of the pre-deposit to be made in terms of Section 43 (5) of the

Haryana Real Estate (Regulation and Development) Act, 2016, is the same

as the first two petitions and as a matter of fact as would be seen from this

judgment, eventually the merits of the cases of any of the petitioners are not

being touched upon by this court in exercise of jurisdiction under Article

226 of the Constitution of India, there being an effective alternate remedy

under the provisions of the aforesaid Act by way of appeals before the

learned appellate tribunal constituted under Section 43 of the Act.

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In view of the fact that one of the key issues raised in the 3 rd

petition is with regard to the manner of execution of the orders impugned in

that petition, with reference to Section 40 of the aforesaid Act, they are both

being dealt with separately, in Parts I and II of this judgment respectively.

Part I

CWP No. 7738 and 7750 of 2022

2. Vide these petitions, the same petitioner (company) has

challenged the common order passed by the learned Adjudicating Officer,

Haryana Real Estate Regulatory Authority, dated 31.03.2021, by which,

essentially, the petitioner has been directed to refund a sum of

Rs.48,49,864/- to respondent no.1 in CWP no. 7738 of 2022 and a sum of

Rs.50,49,387/- to respondents no.1 and 2 in CWP no.7750 of 2022.

The aforesaid direction has been given while deciding separate

complaints filed by the said respondents in each petition, before the Haryana

Real Estate Regulatory Authority (hereinafter referred to as the Authority)

with the said order also having disposed of a 3rd complaint filed by one Nitin

Suri and Priyanka Suri, but with the petitioner company not having

challenged the same order order as regards Nitin Suri and Priyanka Suri, (or

at least no such challenge before this court having been brought to our

notice).

3. The facts, for convenience, are being taken from CWP no.7738

of 2022, with the prayer in each petition as also the legal issues in each,

being the same.

4. The admitted case even as per the petitioner in its petitions, is

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that it has been issued a licence by the respondent State of Haryana to

develop a residential housing project in Sector-33, Sohna, Gurugram; and

specifically that part of the project as affects the aforesaid respondents in

these petitions, has been given the nomenclature of Project ARETE.

Respondent no.1 in CWP no.7738 of 2022 was allotted Flat no.C-2002, 19th

Floor, in the said project, with the area of the flat measuring 118.45 sq.

mtrs. and with the total sale consideration settled between the petitioner and

the said respondents being Rs.71,16,975/-, out of which the said respondent

has already paid Rs.48,19,864/-.

A 'Builder Buyer Agreement' dated 20.06.2015 was also

executed between the parties and possession of the flat was to be delivered

to respondent no.1 by 20.12.2019.

5. It has also been stated in the petition that the said project is duly

registered with the Authority with such registration being valid till

02.07.2022.

However, with possession of the flat allotted to the said

respondent not having been delivered within time, she registered Complaint

no.1073/2020 on 26.02.2020 with the Adjudicating Officer (hereinafter

referred to as the AO) of the Authority, at Gurugram.

As per the petitioner, in her complaint the said respondent

sought that the petitioner herein be directed to cancel the allotment of the

flat/unit in question and to refund Rs.48,19,864/- to her and that she further

be paid a sum of Rs.74,00,000/- on account of the bank loan taken by her for

the said unit and that she also be paid Rs.2,00,000/- as compensation for

causing mental harassment to her, other than litigation expenses.

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The petitioner company herein filed its reply before the AO,

seeking rejection of the complaint but with the complaint allowed

(alongwith two other complaints referred to hereinabove), with a direction

issued to the petitioner company herein to pay Rs. 37,13,649/-, Rs.

48,49,864/- and Rs. 50,49,387/- respectively, to the complainant in each

complaint, alongwith interest @ 9.3% per annum, running from the date of

each payment received till the whole amount is paid, with Rs.10,000/- to be

also paid by way of litigation expenses and with the said direction to be

complied with within 90 days of the passing of the order (31.03.2021).

6. It has further been contended in the petition that as per the

scheme of the Real Estate (Regulation and Development) Act, 2016

(hereinafter to be referred to as the Act) jurisdiction as regards the power to

grant such refund vests solely with the Authority and not with the AO of the

Authority.

It has next been contended that the petitioner in fact offered the

property of the project itself for the satisfaction of the decretal amount,

which was not accepted by the AO; and even the post-dated cheques to

satisfy the decree, as had been placed on record before the officer, were

rejected.

It has been contended in support of the contention on lack of

jurisdiction with the AO, that in fact the Supreme Court in M/s Newtech

Promoters and Developers Pvt. Ltd. vs. State of UP and others (Civil

Appeal no(s).6745-6749 of 2021) has categorically held that jurisdiction

pertaining to refund is solely with the Authority and not the AO, and

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consequently the impugned order is wholly without jurisdiction.

7. Next, it is contended in the petition that though a recourse to an

appeal before the Appellate Tribunal constituted under the Act is otherwise

available to the petitioner, however, such appeal can only be filed upon

making a pre-deposit of the total amount to be paid to an allottee, including

interest and compensation, failing which the appeal would not be admitted

for hearing, in terms of sub-section (5) of Section 43 of the Act.

8. Thus, it is contended that, as the impugned order itself is

without jurisdiction, this petition has been filed seeking the setting aside

thereof and with a direction to be issued to the Appellate Tribunal to hear

the appeal of the petitioner against the said order, without insisting upon the

compensation awarded to be deposited as a pre-deposit, before such hearing

of the appeal.

[Learned counsel had submitted in fact that either the matter be

remitted to the Authority for consideration after setting aside the impugned

order, or the Appellate Tribunal be directed to hear the petitioners without

insisting on the pre-deposit].

9. The petitioner has also contended that it is not in a fit financial

condition to make the pre-deposit and in fact the Delhi High Court vide its

order dated 02.03.2022 passed in OMP no.47/2021 and 121/2020, has

restrained the company from transferring, selling, alienating or in any

manner encumbering its immovable assets, including in units that are

constructed or are under construction, in any of its projects.

10. It has next been contended by the petitioner that respondent

no.1 filed an execution application before the AO in which notice was

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issued to the petitioner, despite (as contended) the said officer knowing very

well that his order dated 31.03.2021 was without jurisdiction; and that vide

a subsequent order dated 29.03.2022, he directed (as the executing court),

arrest warrants to be issued against the Managing Director of the petitioner

company, with the Commissioner of Police, Gurugram, authorised to arrest

him.

It is also contended in the petition that though the said order

was not uploaded on the website of the Authority, however in the 'complaint

listing details' available on the website, it has been duly displayed that a

show cause notice was issued to the Managing Director as to why he be not

sent to civil imprisonment.

In fact, a perusal of the said order (reproduced in the petition)

shows that it has also been observed by the AO that the decree holder

(respondent no.1 herein) had stated that she was not ready to accept

post-dated cheques as the JD (petitioner herein) had no balance in its bank

accounts and as such the cheques would not be honoured.

The AO/executing court has further observed that though in the

judgment cited before him, it has been held that if the financial condition of

the judgment debtor was very poor, resort to civil imprisonment should not

be made, but however, nothing had been shown to him (AO) that such

financial condition was so bad; and in fact it was contended before him that

the company was still selling and developing many projects.

Hence, the arrest warrants were ordered to be issued.

11. The petitioner has next contended in the petition that it was

under a "bonafide impression" that such like matters were sub-judice before

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the Supreme Court with the question of law to be adjudicated upon, qua the

jurisdiction of the AO and the Authority, including waiver of the condition

of pre-deposit; and hence, "only after the appellant had sought legal

opinion", that they were apprised of the fact that an appeal or a writ petition

in any case would have to be preferred against the order.

12. Next, the petitioner contends that the Act was enacted with the

objective of strengthening consumer protection through standardization of

business practices and transactions in the real estate sector, while balancing

interests of consumers and promoters by imposing certain responsibilities on

both.

It has then contended that though certain parts of the Act came

into effect on 01.05.2016, however some other parts thereof came into effect

on 01.05.2017; and therefore after the amendment in the Act it got itself

registered with the Authority, and with such registration valid till

02.07.2022, it could complete the project by that date.

Hence, it is contended that in fact the complaint filed by

respondent no.1 was premature, despite which it was allowed by the AO.

13. When the petition initially came up for hearing before this court

on 18.04.2022, after noticing the contentions raised at that stage by learned

counsel for the petitioner, essentially on the issue of lack of jurisdiction with

the AO to pass an order of refund, notice of motion was issued at that stage

only to respondents no.3 and 4 in the petition, i.e. the Authority and the

Tribunal, with execution of the arrest warrant stayed at that stage (and with

that interim order still continuing to operate).

It is to be specifically observed here that though the Authority

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as also the Appellate Tribunal are quasi-judicial fora and normally notice

would not be issued qua an order passed by any such authority, however, the

Authority is being regularly represented before this court through counsel in

all such cases where it has been impleaded, (which is so in almost every

such case).

It is also to be observed that notice was not issued to the

complainant (respondent no.1) as this court was of the opinion at that stage

that it would not be right to burden a complainant who is already allegedly

suffering due to non-delivery of her residential unit after having paid a

substantial amount for the same.

Nevertheless, even with no notice issued to her, respondent

no.1 was duly represented by counsel appearing for her, with effect from the

next date of hearing itself, i.e. 28.04.2022, as was the respondent Authority.

Hence, issuance of formal notice to respondent no.1 obviously

stood waived by presence of her counsel.

As regards the State of Haryana, admittedly it is only a

proforma respondent because the only function qua the said respondent is

the issuance of a licence for developing the project to the petitioner. It is not

refuted even by counsel for the Authority that such licence was issued

(which is why obviously the project could have been registered with the

Authority).

14. Even so, no written statement was filed by either of the

respondents, with learned counsel for the Authority having submitted that

the issue was wholly a legal one, as regards the jurisdiction of the AO to

pass the impugned order, as also on the question of waiver of pre-deposit of

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the compensation amount with the Appellate Tribunal. Hence, counsel for

the respondents all addressed arguments, with written arguments also

eventually submitted to this court.

15. Coming then to the arguments raised by all counsel.

Mr. Chetan Mittal, learned senior counsel appearing for the

petitioner, essentially of course reiterated in his arguments what has already

been noticed above from the pleadings in the petition.

In support of such arguments, he first submitted that even as per

the judgment in M/s Newtech (supra), it has been specifically held by the

Supreme Court in paragraph 86 (Law Finder Edition), that the power to

order a refund of the payment made by a home/unit buyer is only with the

Regulatory Authority and not with the Adjudicating Officer (AO) and

hence, with the impugned order itself being wholly without jurisdiction,

passed by the AO, this court would not hesitate in setting it aside and

remitting the matter to the Authority, to be heard on its own merits, or in the

alternative, to allow waiver of the condition of a pre-deposit of the amount

directed to be paid, for the Appellate Tribunal to hear the appeal of the

petitioner on questions of law and on the factual merits thereof.

16. He next submitted that the petitioner having specifically

pleaded its financial inability to make the pre-deposit in paragraph 12 of the

petition, and with this court also having called for the bank accounts of the

petitioner and financial statements, it would exercise jurisdiction under

Article 226 of the Constitution of India to grant liberty to file an appeal

before the Tribunal without making the pre-deposit of the amount awarded

to the complainant by the AO.

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In that context, he relied upon the following three judgments:-

(i) Technimont Pvt. Ltd vs. State of Punjab and others 2019

SCC Online SC 1228;

(ii)Har Devi Asnani vs. State of Rajasthan and others (2011)

14 SCC 160 and

(iii)Experion Developers Pvt. Ltd. and others vs. State of

Haryana and others 2021 (1) RCR (C) 1.

17. Learned senior counsel for the petitioner next submitted that the

petitioner has also placed on record, as Annexure P-2, the order of the Delhi

High Court, dated 02.03.2022, whereby the petitioner has been restrained

from transferring/selling/encumbering any of its immovable assets in any of

its project.

He submitted that therefore, in the light of the petitioners'

financial inability to make the deposit of the decretal amount, it is a case

where such waiver is called for, with this court exercising jurisdiction under

Article 226.

18. In sum and substance the aforesaid were the arguments raised

on behalf of the petitioner, including of course what has been reproduced

from the petition hereinabove (and is not being repeated here as arguments

also raised by learned senior counsel).

19. In his arguments, Mr. Neeraj Gupta, learned counsel for the

first respondent herein (also appearing for respondents no.1 and 2 in CWP

no.7750 of 2022), submitted that in fact the petitioner herein had also filed

CWP no.10063 of 2020 before this court, seeking the relief of waiver of

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statutory fee as required under Section 43(5) of the Act, and the said petition

was taken up alongwith a large number of other petitions which were all

disposed of vide a judgment of a co-ordinate Bench, dated 16.10.2020, the

lead case therein being Experion Developers Pvt. Ltd. (supra).

Learned counsel for the respondent-complainant next submitted

that this court vide the said judgment, rejected the challenge to the

constitutional validity of Section 43( 5) of the Act and directed that all

petitioners in those petitions would make the pre-deposit as required with

the Tribunal, but were granted one months' time from the date of the

judgment, as a last opportunity to do so.

Hence, he contended that a second writ petition seeking the

same relief is not maintainable and is in fact an abuse of the process of law,

with the petitioner having also concealed the fact of the earlier petition

having been filed on the same issue.

He next submitted that SLP(C) no.4488-90 of 2021 as had been

filed against the aforesaid judgment of this court were heard by the

Supreme Court alongwith SLP(C) no.13005 of 2020 (Sana Realtors' case)

and vide its judgment dated 12.05.2022 the Apex Court while accepting the

statement of counsel appearing in those petitions, that all the cases were

covered by the judgment in Newtech (supra), had not granted any relief even

to the petitioner herein, with paragraph III of that order dated 12.05.2022

having duly referred to the case of the petitioner.

20. Learned counsel for the respondent-complainant next

contended that this court also, in CWP no.3670 of 2022 (Supertech Private

Limited vs. Union of India and others), specifically dealt with the issue of a

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challenge to the order of the AO as also orders passed by that Authority in

execution proceedings, and held that in view of the right of statutory appeal

provided under the Act, this court would not examine the validity and

legality of the order under challenge, on the merits thereof.

He further submitted that similar relief was also declined by this

court while deciding CWP no.3179 of 2021 and CWP no.13455 of 2021

with, in the latter petition, the issue of hardship in depositing the 'statutory

fee' also having been duly dealt with, holding that no waiver can be granted

except in the case of exceptional hardship/circumstances.

Mr. Neeraj Gupta next contended that a similar view was taken

by this court in CWP no.2055 of 2022 (Magic Eye Developers Pvt. Ltd. v.

Adjudicating Officer, Real Estate Regulatory Authority and others) and with

the SLP filed against that order of this court dated 29.03.2022, also having

been dismissed by the Supreme Court vide its order dated 06.05.2022 [SLP

(C) No. 8241 of 2022].

21. Learned counsel for the said respondent further submitted that

the petitioner had not even placed on record a copy of the 'Builder Buyer

Agreement', the complaint filed before the AO and any of the documents

submitted to that forum.

He next submitted that though delivery of the flat was promised

by 2017 to the allottees, even five years thereafter even 30% of the work is

not complete at the site; and therefore what the Supreme Court has held in

Newtech (supra) (reference paragraph 78 of that judgment), that the right of

a home buyer to a refund is an unqualified right, would hold the field, and

consequently the present petition deserves to be dismissed.

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22. Last, Mr. Gupta submitted that the provisions of the Act

provide that 70% of the amount collected by a developer from an allottee are

to be deposited in a separate account and used for development purpose and

thus, with the petitioner having misutlized the funds of the allottees by not

even constructing upto 30% of the project (flats) with such funds, it cannot

now take a plea of non-availability of funds as a ground to not deposit the

required fee in terms of Section 43(5) of the Act and to not in fact refund the

amount already taken by it from the allottee.

23. Mr. Ankur Mittal, learned counsel for the respondent-

Authority, first submitted that in fact there are really two issues to be gone

into in these petitions by this court:-

A. Whether "financial inability" of a promoter to deposit the amount under proviso to section 43(5) of Real Estate Regulation Authority Act 2016 can be considered as a case of "genuine hardship" for exercising discretion under Article 226 for waiving the mandatory statutory requirement, or not?

B. Whether a petition under Article 226 of the Constitution of India can be entertained against the order passed by the Real Estate Regulatory Authority, even when the Act itself provides an in-built mechanism, as any order passed by the Authority/ Adjudicating Officer is appealable before the tribunal; and further, an appeal to the High Court also lies thereafter under Section 58 of Act?

24. Learned counsel next submitted that the object and intent of the

Act is as a beneficial legislation to provide a speedy and foolproof

mechanism for redressing the grievances of those persons who have

purchased plots/flats/units developed by a builder/project developer; and

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that the preamble of the Act itself very clearly enunciates the objects

thereof.

25. He specifically pointed to the preamble which reads as

follows:-

"An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto."

Learned counsel for the respondent-Authority next submitted

that the Act came to be enacted at a time when plot/flat purchasers from

such builders were not being given delivery of their units and money

collected from them was being diverted towards other projects/other things

by developers, who were therefore actually reneging on their promises.

In that context he also referred to the objects and reasons of the

Act which read as follows:-

"STATEMENT OF OBJECTS AND REASONS The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and

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standardization and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums

2. In view of the above, it becomes necessary to have a Central legislation, namely the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority.

3. The proposed Bill will ensure greater accountability towards consumers and significantly reduce frauds and delays as also the current high transactions costs. It attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It seeks to establish symmetry of information between the promoter and purchaser, transparency of contractual conditions set minimum standards of accountability and a fast-track dispute resolution mechanism. The proposed Bill will induct

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professionalism and standardization in the sector, thus paving the way for accelerated growth and investments in the long run."

[What learned counsel specifically stressed upon from the

above has been therefore referred to in bold letters.]

26. Mr. Ankur Mittal therefore submitted that the objectives that

were intended to be achieved by the legislature, are:-

(i)Symmetry of information between promoters and purchasers;

(ii)Transparency and standardisation of contractual conditions;

(iii)Fast Track system of resolution by establishing Authority, Tribunal and appeal to High Court; and

(iv)Reducing the possibility of frauds and setting minimum standards of accountability.

27. On the issue of whether a petition under Article 226 of the

Constitution can be entertained against an order passed by the Authority,

learned counsel first submitted that when the Act itself provides an inbuilt

mechanism to redress the grievance of any person in respect of an order

passed by the Authority/AO, this court would not exercise such jurisdiction

without that remedy having been exhausted; and especially when a second

appeal against an order passed by the Tribunal lies to this court under the

provisions of Section 58 of the Act.

He therefore submitted that even if an order passed by the

Authority/AO is "wrong" or against the principles of natural justice, or even

without jurisdiction, the appropriate forum to appeal to against such order, is

the Appellate Tribunal and not the writ court.

28. In that context, he relied upon the following paragraphs of the

judgment in Newtech (supra) (RCR citation):-

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"119. That scheme of the Act, 2016 provides an in-built mechanism and any order passed on a complaint by the authority under Section 31 is appealable before the tribunal under Section 43(5) and further in appeal to the High Court under Section 58 of the Act on one or more ground specified under section 100 of the Code of Civil Procedure, 1908, if any manifest error is left by the authority either in computation or in the amount refundable to the allottee/home buyer, is open to be considered at the appellate stage on the complaint made by the person aggrieved."

He submitted that therefore these petitions do not deserve to be

entertained by this court on that short ground alone, and should

consequently be dismissed.

29. On the aspect of whether the financial inability of a promoter to

deposit the amount required to be deposited with the Tribunal in terms of

Section 43 (5) of the Act, can be considered to be a case of genuine hardship

for this court to exercise discretion under Article 226 to waive that

mandatory statutory requirement, learned counsel for the respondent

Authority also submitted that this court in the case of Experion Developers

(supra) has already rejected the challenge of the petitioner itself, alongwith

many such petitions filed, as regards the Constitutional validity of the said

provision; and further, with the Supreme Court also having upheld the

Constitutional validity thereof, both by dismissal of the challenge to the

aforesaid judgment, as also by upholding the vires thereof in M/s Newtech,

the prayer of the petitioner for waiver of the pre-deposit is wholly

unsustainable.

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Learned counsel in fact specifically referred to paragraphs 124

to 126 in M/s Newtech (RCR citation), with the arguments raised on behalf

of the developer/builder having been noticed therein as follows:-

"124. Learned counsel further submits that if the entire sum as has been computed either by the Authority or adjudicating officer, is to be deposited including 30 per cent of the penalty in the first place, the remedy of appeal provided by one hand is being taken away by the other since the promoter is financially under distress and incapable to deposit the full computed amount by the authority/adjudicating officer. The right of appreciation of his defence at appellate stage which is made available to him under the statute became nugatory because of the onerous mandatory requirement of pre-deposit in entertaining the appeal only on the promoter who intends to prefer under Section 43(5) of the Act which according to him is in the given facts and circumstances of this case is unconstitutional and violative of Article 14 of the Constitution of India."

(Emphasis applied here only)

Thereafter, while rejecting the aforesaid arguments, it was held

by the Supreme Court as follows:-

"125. The submission in the first blush appears to be attractive but is not sustainable in law for the reason that a perusal of scheme of the Act makes it clear that the limited rights and duties are provided on the shoulders of the allottees under Section 19 of the Act at a given time, several onerous duties and obligations have been imposed on the promoters i.e. registration, duties of promoters, obligations of promoters,

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adherence to sanctioned plans, insurance of real estate, payment of penalty, interest and compensation, etc. under Chapters III and VIII of the Act 2016. This classification between consumers and promoters is based upon the intelligible differentia between the rights, duties and obligations cast upon the allottees/home buyers and the promoters and is in furtherance of the object and purpose of the Act to protect the interest of the consumers vis-a-vis., the promoters in the real estate sector. The promoters and allottees are distinctly identifiable, separate class of persons having been differently and separately dealt with under the various provisions of the Act.

126. Therefore, the question of discrimination in the first place does not arise which has been alleged as they fall under distinct and different categories/classes.

127. It may further be noticed that under the present real estate sector which is now being regulated under the provisions of the Act 2016, the complaint for refund of the amount of payment which the allottee/consumer has deposited with the promoter and at a later stage, when the promoter is unable to hand over possession in breach of the conditions of the agreement between the parties, are being instituted at the instance of the consumer/allotee demanding for refund of the amount deposited by them and after the scrutiny of facts being made based on the contemporaneous documentary evidence on record made available by the respective parties, the legislature in its wisdom has intended to ensure that the money which has been computed by the authority at least must be safeguarded if the promoter intends to prefer an appeal before the tribunal and in case, the appeal fails at a later stage, it becomes

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difficult for the consumer/allottee to get the amount recovered which has been determined by the authority and to avoid the consumer/allottee to go from pillar to post for recovery of the amount that has been determined by the authority in fact, belongs to the allottee at a later stage could be saved from all the miseries which come forward against him.

128. At the same time, it will avoid unscrupulous and uncalled for litigation at the appellate stage and restrict the promoter if feels that there is some manifest material irregularity being committed or his defence has not been properly appreciated at the first stage, would prefer an appeal for reappraisal of the evidence on record provided substantive compliance of the condition of predeposit is made over, the rights of the parties inter se could easily be saved for adjudication at the appellate stage."

30. Learned counsel for the respondent Authority next referred, as

regards the basic principle on non-waiver of a statutory requirement for a

pre-deposit prior to hearing of an appeal of an appellant, to paragraph 136 of

the said judgment to submit that it was held by the Supreme Court as

follows, even after considering the judgment in the case of Technimont Pvt.

Ltd (supra) (as also other judgments on the subject):-

"136. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi- judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is

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open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfilment of pre-condition, if any, against the order passed by the Authority in question.

137. In our considered view, the obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the home buyers/allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of India."

31. Learned counsel submitted that even Technimonts' case does

not define "onerous" or "genuine hardship" to mean financial distress, and

rather, onerous has been interpreted in that judgment to mean that it would

only be onerous where determination of the amount of compensation

awarded is wholly arbitrary or is based on extraneous consideration.

He submitted that while holding so even in Technimonts' case,

reference was made to the case of Government of A.P. vs. P. Laxmi Devi

(2008) 4 SCC 720, with it held as follows (in Technimont):-

"....While dealing with the submission that in terms of said proviso, no relief could be granted even in cases where the requirement of pre-deposit may result in great prejudice, this Court went on to observe:-

"28. We may, however, consider a hypothetical case.

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Supposing the correct value of a property is 10 lakhs and that is the value stated in the sale deed, but the registering officer erroneously determines it to be, say, 2 crores. In that case while making a reference to the Collector under Section 47A, the registering officer will demand duty on 50% of 2 crores i.e. duty on 1 crore instead of demanding duty on 10 lakhs. A party may not be able to pay this exorbitant duty demanded under the proviso to Section 47A by the registering officer in such a case. What can be done in this situation?

29. In our opinion in this situation it is always open to a party to file a writ petition challenging the exorbitant demand made by the registering officer under the proviso to Section 47A alleging that the determination made is arbitrary and/or based on extraneous considerations, and in that case it is always open to the High Court, if it is satisfied that the allegation is correct, to set aside such exorbitant demand under the proviso to Section 47A of the Stamp Act by declaring the demand arbitrary. It is well settled that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi v. Union of India (1978) 1 SCC 248 = AIR 1978 SC 597. Hence, the party is not remediless in this situation."

32. Hence, Mr. Ankur Mittal submitted that financial distress or

financial hardship has not been considered to be a valid ground for waiver of

a condition of pre-deposit, and in any case it was necessary for the petitioner

to demonstrate that the amount awarded by the AO is arbitrary, exorbitant or

based on some extraneous consideration, which it has not even vaguely

attempted to do, because obviously the amount awarded is not in any

manner arbitrary or exorbitant etc.

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He submitted that thus even the incapability of a developer to

make the payment as awarded/directed by the AO/Authority is not a ground

to waive the condition of pre-deposit and consequently, that specific prayer

of the petitioner deserves to be dismissed and if therefore the petitioner is

aggrieved of the order of the AO in any manner, it is obviously within its

right to file an appeal before the Appellate Tribunal after duly making the

statutory pre-deposit required to be made in terms of Section 43 (5) of the

Act and a waiver, if granted, would actually negate the statute in its entirety.

33. In that every context, he next submitted that simply submitting

bank account details (upon directions of this court), would not imply that the

promoter is actually unable to pay the amount required to be paid, because it

cannot be forgotten that it has received hardened money from home-

buyers/allottees solely for the purpose of development of the project in

question; and if such money has been diverted for other uses, then even any

financial inability due to such diversion of funds etc. cannot be used as an

excuse to seek a waiver of the payment of pre-deposit, such pre-deposit

being for the welfare of the home-buyer/unit buyer, which needs to be fully

secured in terms of the compensation awarded, unless this court itself is of

the opinion that the compensation/refund directed to be paid is wholly

arbitrary, which in the present cases it obviously is not.

34. As regards the right of a person to claim a refund in such

circumstances, learned counsel for the respondent Authority relied upon a

judgment in Imperia Structures Ltd. vs. Anil Patni (2020) 10 SCC 783,

which judgment was also affirmed in M/s Newtech case (supra) (reference

paragraph 78 of Newtech, RCR citation).

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35. Next, Mr. Ankur Mittal submitted that even this court (this

very Bench), in the case of Magic Eye Developers Pvt. Ltd. v.

Adjudicating Officer, Real Estate Regulatory Authority and others

(CWP No. 2055 of 2022, decided on 29.03.2022), has held that the

requirement of a deposit as a pre-condition to hearing of an appeal cannot be

waived even if the order passed for directing payment of a refund is by an

Authority that has no jurisdiction; and in fact that judgment of this court

already stands affirmed by the Supreme Court in SLP (C) No. 8241 of 2022.

He submitted that even in the case of Experion Developers

Pvt. Ltd (supra), this court had held to the same effect.

He thus submitted that even on that ground the petitions deserve

to be dismissed.

36. Mr. Ankur Mittal also referred to the judgment/order of this

court in Sana Realtors Private Limited vs. Real Estate Regulatory

Authority and others (CWP No. 17657 of 2020, decided on 25.05.2022), to

submit that this Bench itself has also held in that judgment that even on the

grounds of violation of the principles of natural justice, the court would not

entertain a writ petition under Article 226, and that ground would need to be

considered by the Appellate Tribunal upon an appeal being filed subject to

the condition of a pre-deposit.

37. Last on that issue, learned counsel for the respondent-Authority

submitted that though there can be no fetters on the power under Article 226

of the Constitution, yet, in the face of a statutory provision [Section 43 (5) of

the Act], such power would not be exercised to negate the Act itself, even on

the ground of financial inability.

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In that context, he referred to another judgment of the Supreme

Court, in Kotak Mahindra Bank Pvt. Ltd. vs Ambuj a. Kasliwal 2021 (2)

Scale 593, wherein it was held as follows:-

"14. Therefore, in the facts and circumstances arising herein, when further amount is due and payable in discharge of the decree/recovery certificate issued by the DRT in favour of the appellant/Bank, the High Court does not have the power to waive the pre-deposit in its entirety, nor can it exercise discretion which is against the mandatory requirement of the statutory provision as contained in Section 21, which is extracted above. In all cases fifty per cent of the decretal amount i.e. the debt due is to be deposited before the DRAT as a mandatory requirement, but in appropriate cases for reasons to be recorded the deposit of at least twenty-five per cent of the debt due would be permissible, but not entire waiver. Therefore, any waiver of pre-deposit to the entire extent would be against the statutory provisions and, therefore, not sustainable in law. The order of the High Court is, therefore, liable to be set aside."

(Emphasis applied by learned counsel before this court).

38. In rebuttal to the arguments of both counsel for the respondents,

Mr. Chetan Mittal, learned senior counsel appearing for the petitioner,

submitted that as regards the contention of Mr. Neeraj Gupta, counsel for

the respondent-complainants in these petitions, that the petitioner having

earlier filed CWP No. 10063 of 2020 and with that petition having been

dismissed and the SLP filed against that also having been withdrawn, in fact

that would not bar the present petition because, firstly, that was a petition

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filed challenging a specific order in the case of another complainant and

consequently, simply because the issue of the condition of a pre-deposit was

raised in that petition, that would not bar the petitioner either Order 2 Rule 2

of the CPC or otherwise, from filing the present petition, which specifically

impugns a completely different order in the context of a complaint filed by

two completely different complainants, though they too were

allottees/buyers of flats in the same project as the complainant in CWP No.

10063 of 2020.

He further submitted that though the validity of Section 43 (5)

of the Act had been challenged in that petition, however, there was no prayer

made for waiver of the pre-deposit and in any case therefore, the contention

of learned counsel for the respondent-complainants in these petitions to that

effect is wholly without any basis.

39. Having heard learned counsel for the parties, before examining

the matter on merits, the contention raised by learned counsel for the

respondent-complainant as regards the non-maintainability of these petitions

on the ground that earlier the petitioner had filed CWP no. 10063 of 2020,

needs to be examined.

Having called for the case file of that petition, it is seen that the

said petition was filed by the petitioner (actually by the Chairman-cum-

Managing Director of the petitioner company though in his capacity as

such), impleading therein the Union of India, the State of Haryana, the Real

Estate Regulatory Authority, Gurugram, Mr. Vibhor Goyal and Mr.

Surender Kumar Goyal, as parties.

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The petitioner had sought quashing of an order dated

09.01.2019 passed by two members of the Authority (and not by AO), on a

complaint filed by the aforesaid two persons, i.e. Vibhor Goyal and

Surender Kumar Goyal, against the present petitioner (again through its

CMD).

In that case, the petitioner had also challenged the vires of the

notification issued by the Government of Haryana, on 12.09.2019, notifying

the Haryana Real Estate (Regulation and Development) Amendment Rules,

2019, with a further prayer also made for quashing of an Execution

Application pending before the Authority for execution of the order passed

in favour of the complainant in that case, i.e. Vibhor Goyal and Surender

Kumar Goyal.

40. Thus, though the petitioner had challenged the vires of the

notification amending certain parts of the aforesaid rules, learned senior

counsel appearing for the petitioner in the present case is correct in his

contention that at least as per the prayer in that petition, there was no prayer

made for a waiver of the condition of pre-deposit before an appeal could be

heard by the Appellate Tribunal.

In any case, the petitioner essentially challenged the order

passed in the case of two other complainants who were aggrieved of non-

delivery of possession of the flat that they had purchased from the

petitioner, in the same project as is in question in the present petition.

Hence, as regards that contention of learned counsel for the

respondent complainants, we find no substance in it.

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41. Coming then to the prayers made in these petitions themselves.

We would agree with learned counsel for the respondent

Authority that as regards entertaining this petition under Article 226 of the

Constitution, when there is an equally efficacious remedy of appeal before

the Appellate Tribunal in terms of Section 43(5) of the Act, and with there

being a provision for a further appeal to the High Court against any decision

or order of the Appellate Tribunal, in terms of Section 58 of the Act, this

court would not entertain a petition under Article 226 directly challenging

the order of the AO as has been impugned in the present petition.

However, obviously the contention of learned senior counsel

for the petitioner is that the said order is void ab initio, it being without

jurisdiction in as much as it has been held by the Supreme Court in M/s

Newtech (supra) that the AO would not have the power to direct a refund

and which jurisdiction would only lie with the Authority, yet, even that

ground obviously can be raised by the petitioner before the Appellate

Tribunal in any appeal that it choses to file, against the impugned order of

the A.O.

42. Though, of course, if this court sees a complete failure of

justice in any matter, naturally it would exercise jurisdiction under Article

226 to remedy such failure of justice at the earliest instance.

However, we would find no ground to do that in the present

case because though the order of refund may have been passed by the AO

beyond his jurisdiction in terms of the ratio of the judgment in M/s Newtech

(supra), yet, it is not at all denied that the respondents-complainants herein

have made large payments to the petitioner for allotment and purchase of

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flats in Project ARETE that was to be developed by the petitioner, but for

the reasons best known to it, has not been developed (despite it obviously

having taken very large sums of money from each buyer).

Hence, the argument of Mr. Ankur Mittal, learned counsel for

the respondent Authority, that the object of the Act is to ensure proper

regulation of the real estate sector specifically with regard to safeguarding

the interest of the average citizen when pitted against a huge company, we

would find that the remedy under Article 226 is not the remedy for the

petitioner at the first instance and it should have availed of its remedy of

appeal in terms of Section 43(5) of the Act, before the Appellate Tribunal,

after making the requisite (statutory) pre-deposit.

43. Before going on to the question of the obvious reason why the

petitioner has approached this court before going to the Tribunal (as it is

seeking waiver of the amount ordered by the AO), a reference to the relevant

part of Section 43(5) of the Act needs to be made and is reproduced

hereinbelow:-

"Section 43. Establishment of Real Estate Appellate Tribunal -

(1). XXX XXX XXX XXX XXX (2). XXX XXX XXX XXX XXX (3). XXX XXX XXX XXX XXX (4). XXX XXX XXX XXX XXX (5). Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:

Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast

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thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

Explanation.--For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force."

Further, a reference also needs to be made to what has been

held by the Supreme Court in the context of the power of the Authority and

the AO, which is summed up in paragraph 86 of Newtech.

The said conclusion has been drawn by the Supreme court in

reference to the Question No.2 framed by it. Paragraph 86 reads as

follows:-

"86. From the scheme of the Act of which a detailed reference has been made and taking note of power of adjudication delineated with the regulatory authority and adjudicating officer, what finally culls out is that although the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 clearly manifests that when it comes to refund of the amount, and interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint. At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act. If the adjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicating officer as prayed that,

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in our view, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016."

To further appreciate the above, the relevant Sections, i.e.

Sections 12, 14, 18, 19, 71 and 72 of the Act of 2016, as are referred to

above by the Apex Court, also need to be reproduced herein below:-

"12. Obligations of promoter regarding veracity of the advertisement or prospectus.--

Where any person makes an advance or a deposit on the basis of the information contained in the notice, advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be, and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be compensated by the promoter in the manner as provided under this Act:

Provided that if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot or building as the case may be, intends to withdraw from the proposed project, he shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under this Act.

14. Adherence to sanctioned plans and project specifications by the promoter.--

(1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.

(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or

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more of the said apartment, plot or building, as the case may be, the promoter shall not make--

(i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person:

Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee.

Explanation.--For the purpose of this clause, "minor additions or alterations" excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.

(ii) any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.

Explanation.--For the purpose of this clause, the [allottee], irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its

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associated entities or related enterprises, shall be considered as one allottee only.

(3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.

18. Return of amount and compensation.--

(1) If the promoter fails to complete or is unable to give

possession of an apartment, plot or building,--

(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or

(b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:

Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.

(2) The promoter shall compensate the allottees in

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case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force.

(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.

19. Rights and duties of allottees.--

(1) The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter.

(2) The allottee shall be entitled to know stage-wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale.

(3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under sub- clause (C) of clause (l) of sub-section (2) of section 4.

(4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of

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suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder.

(5) The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building as the case may be, by the promoter.

(6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges, if any.

(7) The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in payment towards any amount or charges to be paid under sub-section (6).

(8) The obligations of the allottee under sub-section (6) and the liability towards interest under sub-section (7) may be reduced when mutually agreed to between the promoter and such allottee.

(9) Every allottee of the apartment, plot or building as the case may be, shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same.

(10) Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be.

(11) Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building, as the case may be, as provided under sub-section (1) of section 17 of this Act.

71. Power to adjudicate.--(1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint, in consultation with the appropriate Government, one or more judicial officer as deemed necessary,

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who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard:

Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act.

(2) The application for adjudging compensation under sub-

section (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application:

Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period.

(3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks fit in accordance with the provisions of any of those sections.

72. Factors to be taken into account by the adjudicating officer.-- While adjudging the quantum of compensation or interest, as the case may be, under section 71, the adjudicating officer shall have due regard to the following factors, namely:--

(a) the amount of disproportionate gain or unfair advantage,

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wherever quantifiable, made as a result of the default;

(b) the amount of loss caused as a result of the default;

(c) the repetitive nature of the default;

(d) such other factors which the adjudicating officer considers necessary to the case in furtherance of justice."

44. Thus, what has been held by their Lordships is that though the

AO has the jurisdiction to adjudge compensation and interest thereupon to

be paid to a complainant in terms of Sections 71 and 72 of the Act, however,

as regards granting of a refund of the amount paid by a complainant and the

interest thereupon, or directing payment of interest for delayed delivery and

penalty and interest thereupon, it is the Authority which has the power to

examine and determine the same, as an outcome of the complaint.

It has been held to be so in the context of the scheme of the Act,

with sub-section (3) of Section 71 postulating that the AO, while holding an

inquiry, if he is satisfied that the provisions of sub section (1) of the said

Section have not been complied with, may direct payment of compensation

or interest as he deems fit in accordance with the said provisions.

45. Hence, in the present case, whether the AO has exceeded his

jurisdiction in terms of the aforesaid provisions, in terms of what has been

held by the Supreme Court thereupon, would also be a question that can be

determined by the Appellate Tribunal.

Therefore, we would find no reason whatsoever to entertain

these petitions under Article 226 of the Constitution without the petitioner

having availed of its remedy before the Tribunal, of course after making a

deposit of the amount it has been directed to pay the complainant by the AO.

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46. We then come to the real issue why the petitioner has filed

these petitions instead of approaching the Tribunal by way of an appeal

directly in terms of Section 43(5).

Obviously, the petitioner is trying to avoid making the payment

to the complainants in terms of the order which was passed more than one

year prior to the filing of these petitions (seen to be dated 07.04.2022),

which came up for hearing for the first time on 18.04.2022 before this court,

(with the impugned order having been passed on 31.03.2021).

47. It needs to be emphasised by this court that the scheme of the

Act is of course to regulate the entire real estate sector; but specifically to

also safeguard the home buyers/buyers of plots/flats/units, being

built/developed by large companies etc.

Hence, the bottomline is that the respondent complainants

herein having admittedly entered into a builder-buyer agreement with the

petitioner and having paid large sums of money (above Rs.45 lakhs in each

case), and they not having been delivered possession of their residential flats

by the petitioner, their interests need to be safeguarded in terms of the

scheme of the Act and as per the judgment in M/s Newtech (supra).

48. Further, to repeat, the petitioner only approached this court in

the month of April, 2022, to challenge the order passed by the A.O. on

March 31, 2021, and consequently, the obvious inference that would be

taken by this court, would be that it was simply trying to delay payment and

was not even willing to make the pre-deposit as required in terms of Section

43(5) of the Act, and therefore now, simply by approaching this court one

year later under Article 226, it cannot take advantage of its own fault, firstly

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of not delivering possession within time; and further, in not even

approaching the appropriate forum within the time stipulated in Section 44

(2) for doing so, (60 days), though with the Tribunal having jurisdiction to

entertain an appeal even after that period, if it is satisfied that there was

sufficient cause for the delay.

Hence, we would find absolutely no reason, to entertain these

petitions under Article 226, even against an order which is alleged to have

been passed without jurisdiction, with that issue to be gone into by the

Appellate Tribunal, if the appeal of the petitioner is entertained by that

forum at this stage.

49. Coming then to the contentions of learned counsel for the

petitioner that the petitioner does not have the financial capacity to make the

pre-deposit of approximately Rs.99 lakhs, i.e. the total amount as would be

involved in both these petitions (Rs.48,49,864/- and Rs.50,49,387/-

respectively).

In fact learned counsel for the respondents were absolutely

correct in pointing out to this court that the petitioner, other than making a

bare assertion in paragraph 12 of CWP no.7738 of 2022, that it is not in a

financial condition to make the pre-deposit, did not even bother to even

annex any document in support of that contention and consequently, as a

matter of fact we (this court) had obviously erred in even calling for the

bank account details and financial statements from the petitioner, in the

absence of any firm proof provided in the petition.

In retrospect, we need to observe that in any case the

petitioners' present financial condition would have no bearing whatsoever

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on its ability to make the pre-deposit in terms of the impugned order, within

the statutory period of 60 days that it had to file the appeal before the

Tribunal after 31.03.2021.

50. The contention of learned senior counsel for the petitioner that

the Delhi High Court vide its order dated 02.03.2022 (copy Annexure P-2

with the petition), had restrained the petitioner company and the entire

group of companies from transferring/selling/encumbering/alienating any

immovable estate, also has absolutely no bearing on the financial condition

of the petitioner for making the requisite pre-deposit for an appeal against

the impugned order dated 31.03.2021, because the order of the Delhi High

Court has been passed 1 year thereafter, on 02.03.2022.

Thus, if the petitioner had clear intentions, it would have filed

an appeal within the statutory period granted in the Act, and made the pre-

deposit before the Tribunal in respect of any grievance it had against the

impugned order.

51. It is also necessary to state here that this court (this very bench),

(as has also been argued by learned counsel for the respondents), had

already dismissed a petition filed by another builder/developer, i.e. Magic

Eye Developers (supra), wherein also the plea was that the order impugned

therein was passed by the AO without jurisdiction.

That order passed by this court was challenged by way of SLP

(C) No. 8241 of 2022, but without any success.

52. As regards the contention of learned senior counsel for the

petitioner that the Supreme Court, even in Technimont (supra) held, even

while referring to two earlier judgments in P. Laxmi Devi and Har Devi

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Asnani (both supra), that in a genuine case of hardship a High Court would

exercise jurisdiction under Article 226 to waive the condition of pre-deposit

before an appeal can be filed, we do not find any substance in that argument

either because firstly, the judgment of Technimont was duly considered by

the Supreme Court in Newtech, after which it was held in paragraphs 136

and 137 of Newtech that the obligation cast upon a promoter of making a

pre-deposit under Section 43(5) of the Act, is 'a class in itself' and that a

promoter in receipt of money being claimed by home buyers/allottees for a

refund, must comply with the statutory provision.

Further, as pointed out by Mr. Ankur Mittal, learned counsel

appearing for the Authority, even in Technimont, while referring to P.

Laxmi Devi, the Apex Court had held that only where the amount awarded

by the Authority concerned appears to be arbitrary to the High Court, it

would exercise jurisdiction under Article 226 to waive the pre-deposit

required to be made.

In the present case, we do not see (for the purpose of these

petitions), as to how the amounts ordered to be paid vide the impugned

order are arbitrary in any manner, when admittedly the amount paid to the

petitioner by the respondent-complainants in these petitions, is only

marginally below what has been ordered to be given to the complainants,

vide the impugned order.

53. Further, it is also to be observed that whereas in Technimont

case, the issue was with regard to a pre-deposit under the Punjab VAT Act,

2005; and in Laxmi Devi case the issue was with regard to payment in terms

of Section 47-A of the Indian Stamp Act, 1899, which were amounts to be

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paid to the State by the assessees persons challenging such orders, here we

are dealing with an Act that has been enacted to safeguard the interest of the

common citizen against large companies/developers etc.

Consequently, we in any case would find no parity in the two

situations.

As regards Har Devi Asnani case (supra) cited by learned

counsel for the petitioner, that again was a matter involving the Stamp Act,

with the Supreme Court having held that the High Court should have gone

into the question of whether or not the amount ordered to be paid under that

Act was actually reasonable or exorbitant.

As already said, in the present case we do not find (for the

purposes of these petitions) the amount to be exorbitant or arbitrary in any

manner though of course that would be a plea that would also be considered

by the Appellate Tribunal if the petitioner wishes to file such an appeal, and

it is entertained by the Tribunal (after making the pre-deposit necessary).

54. As regards the judgment of a co-ordinate bench of this court in

Ramprastha Promoters and Developers Pvt. Ltd., CWP no.6688 of 2021,

(which though not referred to earlier in this judgment, is seen to be provided

by learned counsel for the petitioner in the compendium of judgments

supplied to this court), that was a case dealing with the RERA Act itself

wherein it was observed that in an appropriate case of hardship, this court

would exercise jurisdiction under Article 226 to waive the pre-deposit

required in terms of the judgment in Technimont and other such cases; but

eventually even in Ramprastha itself, finding that it was not a case of

extreme hardship, the prayer of the petitioners therein was actually declined,

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though they were given additional time to make the requisite pre-deposits.

It needs to be observed here also, as we have already held

hereinabove, that even as regards hardship, it was held in Technimont case

itself that such hardship would only be with regard to an arbitrary sum

awarded by the Authority concerned; and further, with the Supreme Court

having held in the context of this very Act, in Newtech, that it is a

mandatory pre-deposit that must be made to safeguard the interest of the

home buyer/allottee, we find ourselves unable to accept the argument of

learned senior counsel for the petitioner, and hold that if the petitioner is to

file any appeal before the Appellate Tribunal, it must be on the condition of

a pre-deposit to be made in terms of the proviso to Section 43(5) of the Act,

and thereafter of course, the learned Tribunal would see vide the discretion

provided to it by the Act, as to whether that appeal should be entertained at

all at this stage or not.

55. Hence, to sum up, though we would not entirely disagree with

learned senior counsel for the petitioner that in absolutely appropriate

circumstances where this court finds a complete failure of justice, on

account of any conduct of the buyer/allottee etc., it may entertain a petition

under Article 226 of the Constitution to either hear the petitioner therein on

the merits of the order impugned, or may direct a waiver of the pre-deposit if

the amount to be paid is found to be highly arbitrary or unjust, yet, in the

present case we find no such circumstance as would justify entertainment of

these petitions for the detailed reasons given hereinabove, summed up

hereinbelow:-

i. Whether or not the impugned order is

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actually wholly without jurisdiction in terms of Sections 12, 14, 18, 19, 71 and 72 of the Act, and in terms of the ratio of the judgment of the Supreme Court in M/s Newtech (supra), is also an issue to be gone into by the Tribunal in terms of the statutory appeal provided for in the Act itself upon a pre- deposit being made for that purpose in terms of Section 43(5) thereof;

(ii) that the petitioner obviously deliberately did not even avail of that remedy for a period of more than one year after the impugned order was passed and therefore, it cannot be said to have approached this court in a bona fide manner to claim that it was financially unable to make the pre-deposit, even in the context of the order of the Delhi High Court (P-2), which was passed more than one year after the impugned order;

(iii) the amounts directed to be paid vide the impugned order are not found by this court (for the purposes of these petitions), to be arbitrary in any manner, though whether it was a completely correct calculation made or not by the AO, would be a question again to be determined by the Tribunal, if the appeal(s) of the petitioner is/are entertained by it after payment of the statutory deposit (s) required. Consequently, these petitions are dismissed.

Part II

CWP-9942 of 2022

56. The petitioner herein seeks the quashment of three orders

passed by the Haryana Real Estate Regulatory Authority, Gurugram, as also

one of the Adjudicating Officer of that Authority, with an alternate prayer

made, for a direction that the petitioner be allowed to appeal against the

order dated 10.07.2018 passed by the Authority, before the Appellate

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Tribunal, without making the requisite pre-deposit in terms of Section 43(5)

of the Haryana Real Estate (Regulation and Development) Act, 2016

(hereinafter to be referred to as the Act).

The following is a brief description of the impugned orders:-

i) Order dated 10.07.2018 : Order passed by the Authority holding that if the promoters failed to hand over possession (of the flat in question) before 19.12.2018, they shall be liable to pay the amount received by them for the apartment (by respondent no.3 alongwith interest), at the prescribed rate, within 45 days thereafter; but in case the apartment was handed over by that date then they would pay interest for every month of delay, at the prescribed rate of 10.15% till the date of such possession being handed over.

ii) Order dated 09.02.2021 : Order of the Authority, in execution (Annexure P-17) proceedings initiated by respondent no.3 herein (Plaza Fincap), essentially directing therein the attachment of the account of respondent no.4 herein, with a direction to the Bank Manager of the Union Bank of India to remit an amount of Rs.1,31,22,115/- in favour of the decree holder (respondent no.3) within 15 days, and upon failure of deposit of the amount, directing that the particulars of the assets of the judgment debtor be provided; and further, that if the said order is disobeyed, the person so disobeying it may be detained by civil imprisonment.

iii) Order dated 03.02.2022 : Order passed by the Authority holding (Annexure P-24) that since both the petitioner herein and respondent no.4 being the licensee and developer, and therefore both being promoters of the project, it was the joint liability of both to satisfy the decree, with the first JD (respondent no.4 herein) having developed the project solely on behalf of the 2nd JD (the petitioner herein). It was also noticed that

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Rs.43,30,000/- had already been paid and that a list of two properties of respondent no.4 herein had been provided, though the affidavit submitted on its behalf was not in compliance of the earlier orders as the list of assets had not been given and with even the list of bank accounts not submitted.

iv) Order dated 30.03.2022 : Order passed by the Adjudicating (Annexure P-25) Officer, noticing the prayer of the decree holder (respondent no.3 herein) for execution of the decree qua the petitioner herein also (JD no.2) and directing issuance of a show cause notice to the Directors of the petitioner company as to why they should not be committed to civil imprisonment for not complying with the order of the Authority.

57. The facts are that the petitioner company in this case is stated to

be the owner of land measuring 80 Kanals situated in Sector-79, village

Naurangpur, Tehsil and District Gurugram, and was granted a license

bearing no.37 of 2011 by the respondent State, for development and

construction of a group housing project, on 26.04.2011.

Thereafter, on 25.02.2012 the petitioner entered into an

understanding with respondent no.4 herein (M/s Supertech Ltd.), in respect

of which a Memorandum of Understanding was entered into on that date. A

collaboration agreement was also executed between the petitioner and

respondent no.4 on 27.03.2012, vide which the said respondent undertook to

develop the land at its own costs and expenses and agreed that the petitioner

would not be liable for development and construction of the project (as

contended before this court), with the copy of the agreement having been

annexed as Annexure P-2 with the petition.

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It is stated that it was agreed between the petitioner and

respondent no.4 that of the 'collections' received from buyers/lessees of any

built or unbuilt area or space of the said complex/project, on sale or transfer

of flats/apartments/units/space, all interests and late payment charges on

instalment towards the sale price would be shared in the ratio of 35% and

65% between the petitioner and respondent no.4, in lieu of their contribution

of land and other rights (by the petitioner), and expenses incurred by

respondent no.4 for approvals and sanctions of the project and for the

development and construction on the land.

58. The said respondent is also stated to have commenced

construction and started developing a project known as 'Araville'.

As per the petitioner, in July 2014 respondent no.4 approached

the petitioner company seeking additional funds for the project and

requested that the petitioner assist the said respondent company to raise

Rs.100 crores from M/s ITZA Holdings Pvt. Ltd.; but in February 2016

respondent no.4 informed the petitioner that the loan facility from ITZA

"had become unsustainable" and that another loan would be secured.

In February 2016 itself fresh loan agreements are stated to have

been executed between respondent no.4 and M/s Indiabulls Housing

Finance Ltd., with a loan of Rs.79 crores having been settled and of which

Rs.74.92 crores had been received by the said respondent (as per the

petitioner).

An agreement is also stated to have been reached between the

petitioner and respondent no.4 to the effect that out of the petitioners' 35%

share in the project, only 33.5% of the loan amount would be credited to the

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project escrow account, with an Escrow Agreement also executed between

the petitioner, respondent no.4, Axis Bank and Indiabulls, with 30% of the

project profits to be received by Indiabulls, 33.5% by the petitioner and the

remaining 66.5% by respondent no.4.

However, as per the petitioner, it has not received any share in

the total revenue of the project.

59. On 28.04.2018 a letter is stated to have been received by the

petitioner from respondent no.3, i.e. M/s Plaza Fincap Pvt. Ltd., informing

that the said company had filed a complaint before the Haryana Real Estate

Regulatory Authority at Gurugram (hereinafter referred to as the Authority),

further asking the petitioner to take necessary action as per the directions of

the Authority.

[In fact it was also stated by learned senior counsel appearing

for the petitioner before this court that vide the said complaint dated

05.12.2017 (bearing no.65/2018), respondent no.3 herein had sought for

withdrawal from the project and had sought payment of Rs. 85,81,953/-

alongwith interest @ 24% per annum.]

It is contended by the petitioner that in the reply filed by

respondent no.4 before the Authority, it had taken upon itself the onus and

obligation to deliver possession of the flat to respondent no.3 and to also

compensate for the delay in such delivery.

The petitioner also filed a short reply to the complaint, stating

therein that it was not a necessary party and should therefore be deleted as

such, as there was no privity of contract between the complainant and the

petitioner herein.

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60. A local commissioner is stated to have been appointed by the

Authority to verify the construction of two towers in the project, with the

local commissioner having submitted her/his report on 14.06.2018, stating

that the project in that regard was 70% was complete (as per the petitioners'

contentions before us).

Upon that, an order dated 19.06.2018 was passed by the

Authority, recording that respondent no.4 had stated that the unit would be

handed over to the complainant (respondent no.3 herein) within 6 months,

with it also held thereafter vide two orders dated 10.07.2018 (Annexure P-

8), that in case such possession was not handed over, the respondents before

the Authority (including the petitioner) would be liable to pay the entire

amount received by them from the complainant (respondent no.3), within 45

days of the expiry of the promised date for possession.

Though the complainant-respondent no.3 also filed an appeal

against that order, it was withdrawn three months later.

61. It is next contended by the petitioner that a registration

certificate was also issued by the Authority on 13.10.2018, qua Project

Araville, valid till 31.12.2019.

It is to be noticed here that in the said licence, Annexure P-10,

it has been shown that the promoters of the project are the petitioner and

respondent no.4, with the petitioner being the licencee and the said

respondent being the developer.

62. On 24.01.2019 respondent no.3 addressed a letter to the

petitioner and respondent no.4 that since possession had not been handed

over, respondent no.3 would be entitled to a complete refund along with

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interest thereupon.

In response to that letter, the petitioner addressed a letter to

respondent no.4 stating that as the onus to complete construction was on the

said respondent as per the terms and conditions of the collaboration

agreement, therefore respondent no.4 should comply with the order dated

10.07.2018 and immediately complete the project (as it was actually to be

completed by 19.12.2018 in terms of the said order).

63. On 08.04.2019 Execution Petition No.E/4/65/2018 of 2019 was

filed by respondent no.3, for execution of the order dated 10.07.2018,

seeking a refund of Rs.85,81,953/- along with interest upto the date of actual

payment, with such interest amounting to Rs.45,40,162/- (as sought).

The petitioner submitted its reply to the execution petition on

22.08.2019.

On 20.02.2020, a direction was issued by this court in a

different proceeding (not specified in the petition), the proceedings in the

execution petition were adjourned by the Authority; but thereafter on

09.02.2021, the Authority directed attachment of the moveable

property/vehicle of the "Judgment-Debtor", in terms of Order 21 Rule 43 of

the Code of Civil Procedure, other than putting the JD (shown in that order

to be respondent no.4 herein), to notice, that in case the earlier order passed

by the Authority directing payment of refund etc. was not complied with, the

person disobeying the order may be detained in civil imprisonment for three

months.

However, in view of an order stated to have been passed by the

Supreme Court in SLP no.1904 of 2021, the attachment order was recalled

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on 09.03.2021 till further orders.

64. On 27.06.2019, in the meanwhile, the petitioner herein also

filed a complaint before the Authority, stating therein that respondent no.4

had played a fraud on the petitioner as also on the Authority.

On 15.09.2021 the Authority passed an order (Annexure P-19),

wherein it is recorded that the Union Bank of India was directed to attach

the bank account "of the JD" to the extent of Rs.1,31,22,115/-, out of which

Rs.43,30,000/- had been received by the Authority on 10.03.2021.

65. On 02.11.2021 the Managing Director of the petitioner

company received a notice under Order 21 Rule 42 of the Code of Civil

Procedure, directing him to appear before the Authority and to deposit the

remaining decretal amount of Rs.1,09,76,515/-.

The petitioner filed objections to that notice, with the

Authority, vide its order dated 01.02.2022, having ordered that the list of

two properties provided by respondent no.4 be attached and put to auction

for recovery of the remaining decretal amount (other than that which stood

deposited), while taking notice of the contention of the petitioner (shown to

be JD no.2 in that order), to the effect that an application for exemption of

payment was sought on the ground that the petitioner herein was the land

owner, with there being no privity of contract between it and the decree

holder/complainant.

66. Thereafter, on 03.02.2022 the authority vide its order Annexure

P-24, held that other than the 1st JD (respondent no.4 herein) even "the

liability of JD no.2 can also not be denied as the license for developing

the said project and the occupation certificate have been received from

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the competent authority in the name of JD no.2 only. Moreover, all the

development as done by the JD no.1 is done solely on behalf of JD no.2.

Therefore, M/s Tirupati Buildplaza Private Limited cannot repudiate

from its legal obligation as mentioned in license and occupation

certificate since there is no document on record with regard to change

of developer." (Bold part so shown in the said order itself).

67. Thereafter the execution application before the Authority was

transferred vide an administrative order to its Adjudicating Officer on

16.03.2022, and on 30.03.2022 it was pointed out to the AO by the counsel

for respondent no.4 herein that the said respondent had been declared to be

insolvent and an Interim Resolution Professional (IRP) had been appointed.

Consequently, the Adjudicating Officer issued notice to the

Directors of the petitioner company to show cause as to why they should not

be committed to civil imprisonment, for not complying with the order of the

Authority.

Thus, it is actually the orders dated 03.02.2022 and 30.02.2022

that are 'hurting' the petitioner, due to which this petition has been filed,

though of course other orders passed by the Authority and by the AO have

also been challenged, as noticed in the initial part of this order hereinabove.

68. It needs mention in the context of this petition also, that though

no notice was issued, it was because of the fact that learned counsel for the

respondent authority, obviously on an advance copy of the petition received

by him, had appeared on the first day of hearing itself, i.e. 11.05.2022, and

thereafter arguments had been raised on both sides with in fact no notice at

all issued to respondents no.3 and 4, i.e. the complainant in whose favour

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the impugned orders have been passed, and respondent no.4 which,

alongwith the petitioner company, has been shown to be the promoter of the

project as per the registration certificate issued by the respondent Authority

on 13.10.2018 (Annexure P-10).

However, the issues raised being entirely legal, with this court

not having been inclined to agree with learned counsel for the petitioner, as

would be seen at the end of this judgment, issuance of notice to the said

respondents would have been superfluous, in the light of the view taken by

us.

69. Mr. Aashish Chopra, learned senior counsel appearing for the

petitioner, began by addressing arguments first on the issue of the petitioner

company not being liable in any manner to make any payment to respondent

no.3, i.e. the buyer/allottee of a flat measuring 1530 sq. feet in the project in

question, with the total sale consideration having been settled at

Rs.89,18,500/- between respondent no.3 and respondent no.4, and with the

petitioner not being a party to the 'flat buyers agreement' executed between

those two parties.

He submitted that thus, even the execution petition filed by

respondent no.3 is not maintainable against the petitioner at all, further in

view of the fact that the petitioner cannot be said to be covered by the

definition of a 'promoter' as given in the Act of 2016.

Further in that context, Mr. Chopra submitted that the petitioner

in fact neither had any sway or control in the construction of the project by

respondent no.4, with the entire management of the project also being in the

hands of the said respondent, who was solely responsible to complete it and

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deliver the units purchased to the allottees on time, in terms of the

agreement reached with each allottee thereof.

He submitted that the only agreement between the petitioner

and respondent no.4 being the collaboration agreement and a Memorandum

of Understanding between them, no third party had any right to initiate

proceedings even under the Act against the petitioner.

70. Next on that issue, learned senior counsel for the petitioner

submitted that burdening the petitioner with the obligations of respondent

no.4 would be in fact against the very foundation of the Indian Contract Act,

1872 (specifically Sections 40 and 43 thereof), and consequently the

impugned orders passed by the respondent Authority and its Adjudicating

Officer, cannot be enforced against the petitioner.

71. Mr. Chopras' next argument on that issue was that simply

because respondent no.4 has now been declared to be insolvent, with an IRP

appointed under Section 14 of the Insolvency and Bankruptcy Code, 2016,

that cannot be made a ground to fasten the petitioner with the burden of

making the refund to respondent no.3 along with interest thereupon in terms

of the impugned order.

The other aspect of that argument raised by learned senior

counsel, was that once respondent no.3 is already seeking its remedy before

the IRP, it should be barred from seeking any parallel remedy under any

other provision such as the Act of 2016.

72. Next, Mr. Chopra submitted, orally as also by way of his

written submissions, that the respondent Authority and the AO have sought

to exercise the powers of the civil court in execution proceedings when the

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Act does not bestow any such jurisdiction or power upon them.

He submitted that the recourse adopted by the Authority in

seeking to enforce its order dated 10.07.2018 as a decree and that too by

exercising the power of a civil court, is wholly without jurisdiction, illegal

and even perverse.

Learned senior counsel submitted that the legislative intent in

not providing such a recourse is obvious from a perusal of Section 57 of the

Act, wherein it is stipulated that the order passed by the Appellate Tribunal

constituted under Section 43 thereof, alone can be made executable as a

decree, with the Tribunal therefore vested with the powers of the civil court

vide that provision (Section 57).

He contended that as the respondent Authority is a creature of

the statute it therefore obviously derives its powers from the Act and with

the Act not vesting it with any power of a civil court, the impugned orders

are wholly without jurisdiction.

73. Next, on that issue, Mr. Chopra submitted that though Rule 27

of the Haryana Real Estate (Regulation and Development) Rules 2017

(hereinafter referred to be as the Rules) provides that every order passed by

the AO or the Authority or the Tribunal shall be enforced as it were a decree

or an order made by a civil court "in a suit pending therein", with the AO/

Authority/Appellate Tribunal also within its jurisdiction to forward the case

to the civil court for such execution (if the AO/ Authority/Appellate

Tribunal was unable to execute it itself), however, the rule itself goes

beyond the provisions of the Act and specifically sub-section (1) of Section

40 thereof.

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Learned senior counsel further submitted that when the

Authority itself could not exercise such a power, it could not have, vide an

administrative order, directed transfer of the execution application to the AO

for enforcement of the orders passed by it (Authority) against the petitioner

and respondent no.4 and in favour of the complainant-respondent no.3.

74. Mr. Chopra next submitted that sub-section (1) of Section 40 of

the Act provides for recovery of interest of penalty or compensation

imposed by the AO or the Authority, in such manner as may be prescribed,

as an arrear of land revenue.

He submitted that the Supreme Court in Newtech Promoters

and Developers Pvt. Ltd. vs. State of U.P. and others 2021 SCC Online

SCC 1044 has held that the scope of the said provision is to the effect that

the amount as has been determined to be refundable to the allottees/ home

buyers, by either the Authority or the AO in terms of their orders, is

recoverable under that provision itself, i.e. Section 40(1).

He next submitted that in fact sub-section (2) of Section 40 of

the Act provides for enforcement of any order by either forum in such

manner as may be prescribed; but Rule 27 of the Rules, wholly illegally and

erroneously, provides for enforcement of every order, whether under sub-

section (1) or sub-section (2) of Section 40 of the Act, in the same manner

as if it was a decree made by a civil court.

He submitted that the said rule itself is thus wholly 'erroneous',

and in fact illegal in the face of Section 40 of the Act because further, the

Act gives power to the AO or the Authority only to get the recovery made as

an arrear of land revenue.

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75. Last, Mr. Chopra submitted that as an alternative to this court

examining the legality of the impugned orders, if it is inclined to leave the

petitioner to its remedy of filing an appeal under Section 43 of the Act

before the Tribunal, then in view of what has been submitted on the merits

of both, the illegality of the orders in terms of Section 40, as also on the

ground that the liability qua respondent no.3 is not that of the petitioner but

of respondent no.4, pre-deposit of the amount ordered to be paid vide the

impugned order, may be waived, and the Appellate Tribunal may be directed

to hear the appeal and decided it on merits without insisting on such pre-

deposit in terms of the proviso to Section 43(5) of the Act.

With that, learned senior counsel for the petitioner closed his

arguments.

76. Per contra, Mr. Ankur Mittal, learned counsel appearing for the

respondent Authority, first again reiterated the objects and intent of the Act,

as also the 'statement of objects and reasons' thereof, as have been already

referred to in Part-I of this judgment hereinabove.

Thereafter he submitted that the two essential questions that

arise in this petition are as follows:-

"A. What is the extent and scope of Section 40 of RERa Act 2016 and whether the Authority/Adjudicating Officer can exercise power under Rule 27 of Haryana Rules, 2017 for execution of order as a civil court decree or not? B. Whether the power to execute the order can be delegated by the Authority to the Adjudicating Officer under Section 81 of RERA Act 2016 or not?"

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77. As regards the first question hereinabove, learned counsel for

the respondent Authority submitted that the contention on behalf of the

petitioner that an order of refund, return, penalty or compensation can only

be enforced in the manner provided under section 40(1) of the Act of 2016,

and other orders can only be enforced in terms of Section 40(2) of the Act,

is a wholly misconceived contention because every statute has to be

interpreted in a textual as also contextual perspective and therefore, though

a particular statute on its plain reading may be interpreted in two ways, in

terms of its text, however the scheme of the Act has to be kept foremost in

mind and therefore a contextual interpretation would need to be given,

looking at the intent in enacting the statute, which would be an actual

harmonious construction thereof.

He submitted that in that background if Section 40 is read, sub-

sections (1) and (2) are both mutually inclusive and do not operate by way

of exclusion of one against the other as is sought to be interpreted by the

petitioner.

He submitted that since sub-section (1) provides that interest,

penalty or compensation shall be recovered as arrears of land revenue in the

manner as may be prescribed, and thereafter sub-section (2) gives a 'wide

sweep' to say that any order or direction passed, directing any person to do

any act or refrain from so doing it, shall be enforced in the manner

prescribed, therefore Rule 27 was notified in the rules promulgated by the

State of Haryana under the provisions of Section 84 of the Act, with the said

rule stipulating that every order passed by either the AO, Authority or the

Appellate Tribunal, shall be enforced by either of these authorities in the

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same manner as it were a decree or an order made by a civil court in a suit

pending before it; and it would also be lawful for the AO/Authority/Tribunal

to get the order executed through the civil court if the

AO/Authority/Tribunal is unable to execute the order itself.

78. Mr. Ankur Mittal next submitted that in fact with both sub-

section (1) and (2) of Section 40 using the word "shall", it is not as if the

first sub-section would use the said word to be mandatory and the second

sub-section as only directory, because if that were so, then sub-section (1)

would be rendered otiose.

Similarly, Section 57 of the Act empowers the Appellate

Tribunal to execute every order made by it as a decree of a civil court and

therefore with even with the word "shall" also having been used in Section

57, as a mandatory word, it would be applicable in the case of Section 40 in

its entirety, also as mandatory.

79. Learned counsel for the respondent Authority then referred to a

judgment of the Bombay High Court in Marvel Sigma Homes Pvt. Ltd. v.

State of Maharashtra AIR 2022 (1) Bom.R 817, wherein it was held that a

perusal of both sub-sections of Section 40 would make it clear that the

intention of the legislature was to group all directions to pay monetary

reliefs granted against the promoter in one category, i.e. Section 40(1) of the

Act, and to treat them differently from all other orders, for the purpose of the

means of enforcement or recovery and there is no valid explanation or

justification for treating some forms of monetary reliefs granted to allottees

differently from others.

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Thereafter, after referring to the preamble of the Act and its

objective to provide a speedy and efficacious remedy to an allottee against

any breach of contract made by promoters and developers, it was further

held that the scope of Section 40(2) of the Act, on the other hand, pertains to

orders or directions against any person to do an act or refrain from doing an

act under the provisions of the RERA Act and therefore, when read in the

light of Section 40(1) and the other provisions of the Act, it is apparent that

Section 40(2) of the Act deals with orders or directions that are not in the

nature of monetary reliefs or for recovery of amounts that are specifically

provided for in Section 40(1) of the Act.

80. Mr. Mittal submitted that even so, what is eventually of

importance is that the provisions of both sub-sections has to be given

meaning by enforcement of the orders passed under either of them, by an

effective means, which has been provided for in Rule 27 of the Rules.

He therefore submitted that though thereafter in paragraph 14.4

a distinction has been made by the Bombay High Court between sub-

sections (1) and (2) when read with Section 57 of the Act, however he

submitted that the interpretation was erroneous if the scheme of the Act and

its purpose and objective is to be considered and given effect to.

81. Mr. Mittal next referred to Section 84 of the Act which confers

powers on the appropriate Government to make rules to give effect to

various provisions of the Act, with the said provision reading as follows:-

"84. Power of appropriate Government to make rules.-

xxxxx xxxxx xxxxx (2) In particular, and without prejudice to the generality of

the foregoing power, such rules may provide for all or any of

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the following matters, namely:-

xxxxx xxxxx xxxxx (r) the manner of recovery of interest, penalty and

compensation under sub-section(1) of Section 40;

(s) the manner of implementation of the order, direction or decision of the adjudicating officer, the Authority or the Appellate Tribunal under sub-section (2) of section 40;"

Learned counsel for the Authority therefore submitted that Rule

27 having been incorporated in the rules promulgated in terms of the

aforesaid provision, it cannot be said that the rule is contrary to the

provisions of the Act as has been contended by the learned senior counsel

for the petitioner.

Further in that context, learned counsel submitted that as

regards the provisions for execution of all orders passed by the Authorities

under the Act including the AO, by way of a civil court decree, even that is

within the four corners of law because all such proceedings are civil in

nature, with the Code of Civil Procedure being the general Code dealing

with such proceedings and consequently, enforcement of an order passed

under the Act as a decree of a civil court, is very much within the scheme of

the Act.

82. Next, learned counsel drew an analogy with regard to the mode

of execution of an order as a decree, from what has been held by the Gujarat

High Court in Heerabhai Nanubhai Desai v. State of Gujarat and others

AIR 1991 Gujarat 1, wherein while considering the challenge to a rule

providing the mode of execution, that court held that Rule 233 of the Rules

constituted under the Motor Vehicles Act, 1988, was very much intravires

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the Act and a Motor Vehicle Claims Tribunal actually being a Court for all

intents and purposes, it had complete right to exercise powers under Section

47 of that Act read with Order 21 of the CPC.

83. As regards the issue of the power to execute an order being

delegated by the Authority to the Adjudicating Officer under the provisions

of the Act, Mr. Ankur Mittal submitted that Section 81 provides that any

power of the Authority can be delegated to one of its members or officers

and consequently such delegation of power to execute an order, to the

Adjudicating Officer, is very much legal and valid in terms of the aforesaid

provision; and therefore the order dated 16.03.2022 issued by the Authority

is within the four corners of the provisions of Section 81.

In that context, learned counsel relied upon paragraphs 112,

114, 115 and 117 of the judgment in Newtech (supra) (RCR citation), which

read as follows:-

"112. Section 81 of the Act 2016 empowers the authority, by general or special order in writing, to delegate its powers to any member of the authority, subject to conditions as may be specified in the order, such of the powers and functions under the Act. What has been excluded is the power to make regulations under Section 85, rest of the powers exercised by the authority can always be 72 delegated to any of its members obviously for expeditious disposal of the applications/complaints including complaint filed under Section 31 of the Act and exercise of such power by a general and special order to its member is always permissible under the provisions of the Act.

114. What is being urged by the learned counsel for the appellants in interpreting the scope of Section 29 of the Act is limited only to policy matters and cannot be read in derogation to Section 81 of the Act and the interpretation as argued by learned counsel for the

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promoters if to be accepted, the very mandate of Section 81 itself will become otiose and nugatory.

115. It is a well-established principle of interpretation of law that the court should read the section in literal sense and cannot rewrite it to suit its convenience; nor does any canon of construction permit the court to read the section in such a manner as to render it to some extent otiose. Section 81 of the Act positively empowers the authority to delegate such of its powers and functions to any member by a general or a special order with an exception to make regulations under Section 85 of the Act. As a consequence, except the power to make regulations under Section 85 of the Act, other powers and functions of the authority, by a general or special order, if delegated to a single member of the authority is indeed within the fold of Section 81 of the Act.

116. The further submission made by learned counsel for the promoters that Section 81 of the Act empowers even delegation to any officer of the authority or any other person, it is true that the authority, by general or special order, can delegate any of its powers and functions to be exercised by any member or officer of the authority or any other person but we are not examining the delegation of power to any third party. To be more specific, this Court is examining the limited question as to whether the power under Section 81 of the Act can be delegated by the authority to any of its member to decide the complaint under Section 31 of the Act. What has been urged by learned counsel for the promoters is hypothetical which does not arise in the facts of the case. If the delegation is made at any point of time which is in contravention to the scheme of the Act or is not going to serve the purpose and object with which power to delegate has been mandated under Section 81 of the Act, it is always open for judicial review."

84. Learned counsel for the respondent Authority therefore

submitted that the Supreme Court has effectively held that except for the

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power of framing regulations, Section 81 of the Act empowers the Authority

to delegate any of its function including the power with respect to

complaints filed under Section 31 of the Act, to any officer working for the

Authority, which therefore includes the power to execute the orders issued

by the Authority.

85. As regards the alternative prayer of the petitioner on waiver of

making a pre-deposit of the amount directed to be paid by the Authority to

respondent no.3 herein (by the petitioner and respondent no.4), Mr. Mittal

reiterated what he had already argued in the context of CWP no.7738 of

2022, as has been reproduced and considered in Part-I of this judgment.

86. Having considered the arguments on both sides, first of all of

course it is to be noticed that despite the arguments raised by learned senior

counsel for the petitioner on Rule 27 of the Rules, there is actually no

challenge made in the petition to the vires of the rule.

Nevertheless, since a legal issue as regards the rule being ultra

vire the provisions of sub-section (1) of Section 40 of the Act has been

raised, we considered it appropriate to adjudicate upon that contention.

87. Rule 27 of the Rules of 2017 and Section 40 of the Act of 2016

are reproduced hereinbelow as is Section 57 of the Act:-

27. Enforcement of order, direction or decision of adjudicating officer, Authority or Appellate Tribunal --

(1) Every order passed by the adjudicating officer or the Authority or the Appellate Tribunal, as the case may be, under the Act or rules and the [regulation] made thereunder, shall be enforced by an [adjudicating officer or] the Authority or Appellate Tribunal in the same manner as if it were a decree or a order made by a civil court in a suit pending therein; and it shall be lawful for the

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adjudicating officer or the Authority or the Appellate Tribunal, as the case may be, in the event of its inability to execute the order, send such order to the civil court, to execute such order.

(2) The court may, for the purposes of compounding any offence punishable with imprisonment under the Act accept an amount as specified in the Table below:-

Offence Amount to be paid for compounding the offence Punishable with five to ten percent of the estimated cost imprisonment under sub of the real estate project. section (2) of section 59. Punishable with five to ten percent of the estimated cost imprisonment under of the real estate project. section 64. Punishable with five to ten percent of the estimated cost imprisonment under of the plot, apartment or building, as the section 66 case may be, of the real estate project, for which the sale or purchase has been facilitated. Punishable with five to ten percent of the estimated cost imprisonment under of the plot, apartment or building, as the section 68. case may be.

"40 Recovery of interest or penalty or compensation and enforcement of order, etc. (1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrears of land revenue.

(2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or refrain from doing any act, which it is empowered to do under this Act or the rules or regulations made thereunder, then in case of failure by any person to comply with such order or direction, the same shall be enforced, in such manner as may be prescribed."

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Obviously, the said provision is actually an execution/

enforcement provision as regards orders passed under the Act, with there

also being Section 57 as deals with orders specifically passed only by the

Appellate Tribunal. The said provision reads as follows:-

"57 Orders passed by Appellate Tribunal to be executable as a decree.

(1) Every order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court.

(2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court."

Thus, though Section 57 provides that any order passed by an

Appellate Tribunal would be executable as a decree of civil court, yet,

Section 40, in both of its sub-sections, also provides the method of

enforcement of orders passed by the appellate Authority in addition to the

Adjudicating Officer and the Authority itself.

In that context, it is to be noticed that "appellate Authority" is

not specifically defined in Section 2 of the Act though Appellate Tribunal

has been defined in clause (s) thereof, to mean the Real Estate Appellate

Tribunal established under Section 43.

Section 43 also does not use the phrase 'Appellate Authority'

anywhere and only refers to the establishment of an Appellate Tribunal, with

sub-section (5) thereof providing that any person aggrieved by any direction

or decision or order made by the Authority or by an Adjudicating Officer,

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may prefer an appeal before the Appellate Tribunal concerned, (as has

jurisdiction over the matter).

88. Learned senior counsel appearing for the petitioner had argued

that Sections 40 and 57 operate in different fields and of course to that

extent he would be right as regards that basic contention, but this court is to

obviously harmoniously construe the different provisions of the Act, where

there may be some conflict, keeping in view the aims and objectives of the

Act.

89. Coming then to the provisions contained within Section 40;

very obviously sub-section (1) thereof pertains only to enforcement of an

order directing payment of any interest or penalty or compensation, whether

such order is passed by the Adjudicating Officer, the Regulatory Authority

or the Appellate Tribunal; whereas sub-section (2) is a provision for

enforcement of any order or direction given by either the AO or the

Authority or the Appellate Tribunal.

Therefore, any person as violates any direction or order issued

even in respect of summoning such person etc., would be dealt with wholly

under the provision of sub-section (2), with however the provision of sub-

section (1) to apply to an order pertaining to payment of interest, penalty or

compensation as ordered by the AO/Authority/Appellate Tribunal.

Again very obviously, sub-section (1) postulates that if any

person fails to pay any interest or penalty or compensation imposed, it shall

be recoverable from such person (whether a promoter, an allottee or a Real

Estate agent) "in such manner as may be prescribed as an arrear of land

revenue".

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Thus, it would seem that any Rule prescribing the method of

enforcement of such an order, must necessarily provide such method for

recovery only as an arrear of land revenue qua any interest, penalty or

compensation; and in fact Section 84 of the Act, which confers the power on

the appropriate Government to make rules, postulates in Clause (r) of sub-

section (2) thereof, that such rule may provide for the manner of recovery of

interest, penalty and compensation under sub-section (1) of Section 40, with

Clause(s) of sub-section (2) of Section 84 providing the manner of

implementation of the order/direction or decision given by the

AO/Authority/Appellate Tribunal under sub-section (2) of Section 40.

90. The question before this court therefore is as to whether the

Government of the respondent State of Haryana has correctly or

erroneously clubbed the mechanism for enforcement of any order

passed by the AO/Authority/Appellate Authority/Tribunal, in respect of

both, sub-sections (1) and (2) of Section 40.

We were of the opinion that, as has been done by various States

including the State of Maharashtra [reference the judgment of the Bombay

High Court in Marvel Sigma Home (supra)], the Government of Haryana

should have provided for a separate mechanism qua enforcement of different

kinds of orders as per the two provisions of Section 40, i.e. sub-sections (1)

and (2); however, one aspect that needs to be considered by this court is

that the Supreme Court in Newtech (supra) has held (reference para 86 RCR

citation) that the Adjudicating Officer cannot order payment of refund and

interest thereupon, though he has the power to direct payment of

compensation and interest thereupon, as also a penalty.

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Hence, with sub-section (1) only speaking of payment of

interest, penalty or compensation, obviously it can be interpreted to mean

that even an order of refund may not be covered by sub-section (1) and

would in fact would come within the ambit of sub-section (2).

However, that may possibly stretch the interpretation of sub-

section (2) too far, and in our opinion we need not dwell upon it more than

necessary, in view of what has been provided in Section 84 (2)(r) as regards

the manner of recovery of interest, penalty and compensation in terms of

sub-section (1) of Section 40, with sub-section (2) of Section 40 dealt

separately by Section 84(2)(s), as already seen.

91. To repeat yet again, sub-section (1) of Section 40 stipulates that

the manner of recovery of payment of interest, penalty and compensation,

may be prescribed (by rules) for recovery as an arrear of land revenue and

does not postulate any other method of such recovery; however sub-rule (1)

of Rule 27 empowers the AO/Authority/Tribunal to enforce any order

passed by it under Section 40 (without specifying any particular sub-section

thereof), as if it were a decree or an order made by a civil court in a suit

pending before it.

92. Here we would like to observe that learned counsel for the

respondent Authority had submitted that Rule 27 is an effective and quick

mechanism for giving effect to the orders passed by the AO, the Authority

and the Tribunal, in the interest of any person in whose favour that order

was passed (whether a promoter or an allottee), whereas recovery as an

arrear of land revenue would be a cumbersome method of making such

recovery, thereby making it highly ineffective and in fact defeating the main

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objective of the Act, which is to safeguard the interest of the home

buyer/allottee.

Though we agree with learned counsel for the respondent

Authority in that regard, however to hold that sub-sections (1) and (2) of

Section 40 could have been clubbed together as regards the method of

recovery/enforcement of orders passed under the provisions of the Act by

various authorities including the Tribunal, would override the intent of the

legislature which had kept in mind that recovery as an arrear of land revenue

may be actually a very effective method of ensuring such recovery.

93. In that context, Section 67 of the Punjab Land Revenue Act,

1887 (even as applicable to the State of Haryana), reads as follows:-

"67. Process for recovery of arrears.- Subject to the other provisions of this Act, an arrears of land-revenue may be recovered by any one or more of the following processes, namely:-

(a) by service of writ of demand on the defaulter;

(b) by arrest and detention of his person; (c) by distress and sale of his movable property and uncut or ungathered crops; (d) by transfer of the holding in respect of which the arrears is due; (e) by attachment of the estate or holding in respect of which the arrears is due; (f) by annulment of the assessment of that estate or holding; (g) by sale of that estate or holding; (h) by proceedings against other immovable property of the defaulter."

94. In our opinion, looking at the fact that even the enabling

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provision by which Government can frame rules (Section 84), deals with

sub-sections (1) and (2) of Section 40 separately, therefore, so as to not

render the provisions of sub-section (1) of Section 40 of the Act otiose, as

regards the phrase "as an arrears of land revenue", we hold that Rule 27 of

the Rules should actually have provided a mechanism separately for giving

effect to the provisions of sub-sections (1) and (2) of Section 40, but we

would not hold Rule 27 to be ultra vires the provisions of the Act, firstly

because there is actually no challenge in the petition to the vires of the said

rule; and second, holding so would 'abrogate' the machinery provision for

enforcement of the provisions of Section 40.

We would like to observe here that the rule could easily have

stipulated that recovery to be made as arrears of land revenue in terms of

Section 40(1), would be as per the provisions of Section 67 of the Land

Revenue Act, and possibly with the Adjudicating Officer, Regulatory

Authority/ Appellate Authority given the power of the revenue officers

concerned for effecting such recovery; so as to ensure that a person who has

been awarded compensation/interest in terms of Section 40(1) of the Act,

does not have to run from pillar to post to actually get the order in her/his/its

favour enforced.

95. Consequently, in order to try and ensure that the execution

proceedings do not get delayed in the present case, we direct the

Authority/the Adjudicating Officer to immediately take appropriate

measures to get the recovery effected in such proceedings as arrears of land

revenue (subject of course to any interim order passed by the Tribunal in

any appeal that the petitioner may file after making the pre deposit

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necessary).

Upon such proceedings being initiated by the AO/Authority, the

revenue officers/any other officers/officials and specifically the Collector

concerned, as would be responsible for taking such proceedings to their

logical conclusion (for realisation of the sum due as per the execution

proceedings as arrears of land revenue), would conclude such proceedings

within a period of three months from the date that such proceedings are

received by the Collector/other revenue officers/officials.

It is made absolutely clear that if the said proceedings are not

completed by the Collector/revenue officers and other officers/officials as

have jurisdiction to do so, respondent no.3 herein would be within its right

to take recourse to its remedy for violation of this order.

96. As regards a permanent solution to ensure compliance of what

is stipulated in sub-section (1) of Section 40 of the Act, the respondent State

Government of Haryana is directed to consider within a period of 4 months

from today, an appropriate amendment in Rule 27 of the Rules, so as to

ensure that any amount that is recoverable in terms of the said provision

[Section 40(1)], is recovered within the shortest possible time; by way of

either posting permanently a revenue official to each Regulatory Authority

in Haryana as has been constituted under the provisions of the Act,

empowered with the jurisdiction as would be necessary to be conferred upon

him/her for recovery as arrears of land revenue, so that upon any execution

proceedings being filed for giving effect to any recovery in terms of Section

40(1), the matters need not be referred to regular revenue Authorities and

can be effectively dealt with immediately by the officer posted in the

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Authority itself for that purpose, (as has been conferred with such

jurisdiction to carry out the procedure of recovery by way of arrears of land

revenue).

Alternatively, the Government could also consider conferring

powers of recovery under the relevant provisions of the Land Revenue Act,

upon any officer already posted in the Regulatory Authority.

Of course, that entire matter is for the Government to consider

and act upon, within a period of four months from today, so as to try and

ensure that all aims and objectives of the Act are given an effective

meaning.

97. It needs to be emphasized here that we are in complete

agreement with learned counsel for the respondent Authority that referring

recovery proceedings to the revenue authorities, i.e. the Collector/other

revenue officers under the provisions of the Land Revenue Act, would

indeed result in an extremely lengthy and almost never ending process of a

recovery actually being effected, especially when the revenue authorities

are already over burdened with enforcement of the provisions relating to

recovery of various dues as arrears of land revenue, as have been provided

in different statutes including of course the Land Revenue Act itself.

98. Coming then to the merits of what is contained in the other

orders impugned in this petition.

99. Again it is to be noticed that though learned senior counsel for

the petitioner argued that the office order dated 16.03.2022 passed by the

Authority, thereby delegating its powers upon the Adjudicating Officer to

hear an execution application filed by respondent no.3 herein (complainant),

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is beyond the jurisdiction of the Authority and consequently the order

passed by the AO in such execution proceedings on 30.03.2022 is also

without jurisdiction; yet, we agree with learned counsel for the respondent

Authority that with Section 81 of the Act empowering the Authority to

delegate any of its powers and functions, other than the power to frame

regulations under Section 85, to any member or officer of the Authority (or

any other person), subject to any condition specified in the order, such

delegation vide the said order dated 16.03.2022 (Annexure P-26) cannot be

held to be beyond such power conferred upon the Authority.

It is to be observed that execution of orders is a function that

can be effectively carried out by the Adjudicating Officer, especially with

Section 71 of the Act stipulating that such officer would be a person who is

or has been a District Judge. Thus, very obviously such Adjudicating Officer

would be completely familiar with the manner of execution of a decree

issued or order passed in civil proceedings; and consequently would be the

appropriate person to execute his own orders as also those of the

Tribunal/Authority under the Act.

100. Coming then to the contention of learned senior counsel for the

petitioner that the petitioner is not an appropriate party impleaded by

respondent no.3 herein in its complaint before the Authority.

We would, even while observing that it is for the purpose of

only this petition, like to observe as already noticed in the earlier paragraphs

of Part-II of this judgment, that the petitioner is the holder of a licence

issued by the respondent State for the purpose of setting up a Group

Housing Colony on the land in question, with the petitioner admitting that it

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is the owner of the said land measuring 10 acres.

Further, the registration certificate issued by the respondent

Authority on 13.10.2018 (Annexure P-10), shows both, the petitioner and

respondent no.4, to be 'promoters' of the land in question; and with a

promoter defined in the Act as follows:-

"2. Definitions.

In this Act, unless the context otherwise requires,-

xxxxx xxxxx xxxxx (zk) "promoter" means,- (i) a person who constructs or causes to be constructed an

independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or

(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structures thereon; or

(iii) any development authority or any other public body in respect of allottees of-

(a) buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or

(b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or

(iv) an apex State level co-operative housing finance society and a primary co-operative housing society

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which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or

(v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or

(vi) such other person who constructs any building or apartment for sale to the general public.

Explanation.-For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made thereunder;"

Thus, sub-clause (i) of the aforesaid clause reads to state that a

promoter would also include a person who "causes to be constructed", with

sub-clause (ii) also further stating that such person may not be the person

who actually constructs a structure on the plot.

Yet, we would not finally adjudicate upon that question in

these proceedings and leave it to the Tribunal to consider that question, if it

is raised before it in any appeal filed by the petitioner, after duly making the

pre-deposit as is necessary for such appeal to be heard, in terms of the

proviso to sub-section (5) of Section 43 of the Act.

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101. Coming then to the argument of Mr. Chopra, learned senior

counsel for the petitioner, for a waiver of the pre-deposit as stipulated by

that provision.

For the same reasons as have already been given by us while

rejecting a similar plea made by the petitioners in the other two petitions as

have been decided vide Part-I of this judgment hereinabove, we do not

accept that contention, and for that purpose, the reasoning given in

paragraphs 47 to 54 in Part I of this judgment is reiterated here also; and the

prayer of the petitioner in this petition, for waiver of the pre-deposit amount,

is rejected.

102. Further, the Authority vide its order dated 10.07.2018

(Annexure P-8) having held that upon failure of possession of the flat/unit

being handed over before 19.12.2018, the respondents would be liable to

pay the amount received by them in respect of such apartment alongwith

interest at the prescribed rate; and if the apartment was handed over by the

due date, then they would pay interest for every month of the delay (again at

the prescribed rate till possession is actually handed over), we would not

find any arbitrariness in that order so as to waive payment of the pre-deposit

in terms of the proviso to Section 43(5) of the Act; but of course the

petitioner would be free to raise its plea in that regard also before the

Tribunal, if any such appeal is filed by it upon making the pre-deposit

required. Yet, it is made clear that no arbitrariness in the amount to be paid

is found by us at this stage, so as to exercise jurisdiction under Article 226

to direct a waiver of such pre-deposit.

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We may add here that in two petitions as were clubbed to be

heard with the present one [titled as "IREO Grace Realtech Pvt. Ltd. and

and others vs. Union of India" (CWP no.11836of 2022) and "IREO Grace

Realtech Pvt. Ltd. and and others vs. Union of India" (CWP no.11943 of

2022)], we have issued notice of motion on that ground alone, as it was

shown to us at that stage at least, by counsel for the petitioner therein, that

there was no inordinate delay in completion of the project in question in

those cases; and in fact it was the allottees who were trying to back out from

taking possession of the units allotted to them. Hence, even an interim order,

till the next date of hearing in those petitions, has been passed by us.

However, obviously replies still to have filed by the allottees

and others impleaded in those petitions; and thereafter the matters would be

considered by this court as to whether the pre-deposit can be waived in

those circumstances (if eventually found to be so), before an appeal can be

heard by the Tribunal.

103. In the present case, it is however, the admitted case of even the

respondent Authority that Rs.43,30,000/- has already been paid by

respondent no.4 to the decree holder; and therefore, presently for any appeal

to be heard, filed before the learned Tribunal, it would be the difference

between that amount and Rs.1,31,22,115/-, as would be required to be paid

by way of a pre-deposit by the petitioner, in terms of Section 43(5).

104. With thus only the aforesaid clarification made as regards the

amount to be deposited by the petitioner, prior to any appeal that it may file

before the Tribunal being heard, we find no reason to entertain this petition

also, which is consequently dismissed.

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A photocopy of this order be placed on the file of the other

connected cases.

(AMOL RATTAN SINGH) (LALIT BATRA) JUDGE JUDGE

August 17, 2022 dinesh Whether speaking/ reasoned : Yes Whether Reportable : Yes

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