Allahabad High Court
Psa Impex Pvt. Ltd. vs S. Deivani And 22 Others on 6 February, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 Case :- WRIT - C No. - 3259 of 2020 Petitioner :- Psa Impex Pvt. Ltd. Respondent :- S. Deivani And 22 Others Counsel for Petitioner :- Anubhav Singh Counsel for Respondent :- Anil Tiwari Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
Heard learned counsel for the petitioner and Sri Wasim Masood Khan, holding brief of Sri Anil Tiwari, learned counsel for respondent no.23.
The present writ petition has been filed by the petitioner with the following prayers :-
"(i) To issue a writ, order or direction in the nature of certiorari calling for the records of the case and quashing the impugned notice dated 9.7.2019 passed by the respondent no.23.
(ii) To issue a writ, order or direction in the nature of Prohibition restraining the respondent no.23 from taking any coercive measures pursuant to the order dated 9.7.2019.
(iii) To issue any other order or direction which this Hon'ble Court may deem fit and proper in the interest of justice.
(iv) To award cost of the petition to the petitioner."
Learned counsel for the petitioner submits that the petitioner is a private limited company under the Companies Act, 1956 and petitioner is dealing in Real-Estate, which provides facility of constructed Flats to public at large and has been developing Group Housing Project under the name and style of "Sampada Livia" in Greater Noida.
Learned counsel for the petitioner further submits that the respondent nos.1 to 22 purchased Flat in the petitioner's project but due to unavoidable circumstances, the petitioner could not deliver the possession of the Flat. However, without waiting for a reasonable period, respondent nos.1 to 22 filed complaints before respondent no.23, copies whereof have been filed as Annexure-2 to the writ petition, by which respondent nos.1 to 22 demanded their amount deposited by them with the petitioner alongwith interest @MCLR+1% on the ground that project of the petitioner is now cancelled. Respondent no.23 has passed the impugned order dated 9.7.2019, copy whereof has been filed as Annexure-1 to the writ petition, by which a direction has been issued to the petitioner to repay all the amounts deposited by the respondent nos.1 to 22 with MCLR+1 percent interest from the date of deposit till the date of payment of the amount.
Learned counsel for the petitioner further argued that the order dated 9.7.2019 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar is without jurisdiction and the same is liable to be quashed on the ground that the order was not passed by the Competent Authority and the same has been passed by a single member which is against the provision of Section 21 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as "the Act"), which provides the composition of authority and as per section 21, the authority shall consist of a Chairperson and not less than two whole-time members to be appointed by the appropriate Government and therefore, the impugned order dated 9.7.2019 has not been passed as per Section 21 of the Act, 2016.
Learned counsel for the petitioner has lastly argued that since the rate of interest has not been provided anywhere in terms of Section 15 of the Act, 2016, respondent no.23 could not have awarded interest to the petitioner at the rate of interest MCLR+1 by relying upon Rule 9 of the U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018, since the aforesaid Rules were made in exercise of the powers conferred under Section 84(1) r/w 84(2)(h) and 13(2) of the Act of 2016, for the purpose of use of exemplar while making agreement for sale in future.
Sri Wasim Masood Khan, learned counsel for the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar, respondent no.23 countered all the arguments raised by the learned counsel for the petitioner and submitted that the impugned order has been rightly passed by the single member and the same does not suffer from any illegality or jurisdictional incompetence in view of the provisions contained under Section 81 of the Act, which provide that the Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under section 85), as it may deem necessary.
Sri Wasim Masood Khan, learned counsel further submits that in view of Section 81 of the Act, 2016, the U.P. Real Estate Regulatory Authority in its 5th meeting dated 05.12.2019 delegated the power as per Agenda No.1, to a single member to hear the cases registered on the basis of the complaint filed before both the Benches sitting at Lucknow and Gautam Budh Nagar, therefore, the single member had full jurisdiction to decide the case on the basis of complaint filed before the U.P. Real Estate Regulatory Authority and the objection raised by the counsel for the petitioner has no force in the eyes of law and the impugned order passed by the single member is valid and in accordance with law and the same cannot be said to be without jurisdiction, hence, no interference is warranted by this Court under Article 226 of the Constitution of India and the present writ petition is liable to be dismissed. He has placed the copy of the minutes of fifth meeting dated 05.12.2018 of the U.P. Real Estate Regulatory Authority before the Court, which has been taken on record.
We have heard learned counsel for the parties and perused the record.
In order to appreciate the submissions made by learned counsel for the parties, it would be useful to extract the provisions of Sections 18, 34, 38, 40, 71 and 81 of the Act as hereunder :-
Section 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 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.
"Section 34. Functions of Authority-The functions of the Authority shall include-
(a) to register and regulate real estate projects and real estate agents registered under this Act;
(b) to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted;
(c) to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalised under this Act, with reasons therefor, for access to the general public;
(d) to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked;
(e) to fix through regulations for each areas under its jurisdiction the standard fees tobe levied on the allottees or the promoter or the real estate agent, as the case may be;
(f) to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder;
(g) to ensure compliance of its regulations or orders or directions made in exercise of its powers under this Act;
(h) to perform such other functions as may be entrusted to the Authority by the appropriate Government as may be necessary to carry out the provisions of this Act."
"Section 38. Power of Authority- (1) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made thereunder.
(2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, the Authority shall have powers to regulate its own procedure.
(3) Where an issue is raised relating to agreement, action, omission, practice or procedure that--
(a) has an appreciable prevention, restriction or distortion of competition in connection with the development of a real estate project; or
(b) has effect of market power of monopoly situation being abused for affecting interest of allottees adversely, then the Authority, may suo motu, make reference in respect of such issue to the Competition Commission of India"
"Section 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."
Section 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, 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, 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."
"Section 81. Delegation.- The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act ( except the power to make regulations under section 85), as it may deem necessary."
It is not disputed amongst the parties that the respondent nos.1 to 22 has booked their flat in the petitioner's project and it is also not disputed that respondent nos.1 to 22 have not been delivered the possession of the flat which compelled respondent nos.1 to 22 to file complaint before respondent no.23.
From the facts of this case, it is crystal clear that the petitioner despite having received the entire cost of the flat from respondent nos.1 to 22 in the year, 2012, is adopting dilatory tactics and is not delivering the possession of the flat to respondent nos.1 to 22.
Coming to the first ground on which the learned counsel for the petitioner has challenged the impugned order, namely that the impugned order which has been passed by single member is without jurisdiction in view of the stipulation contained under Section 21 of the Act, that a complaint can be decided by two members, we find no force in the aforesaid submission. Section 81 of the Act, which provides that the Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under section 85), as it may deem necessary and in the exercise of its power under Section 81 of the Act, the authority in its 5th meeting dated 5.12.2018 as per Agenda 1 delegated the power to a single member to decide the cases in both the Benches sitting at Lucknow and Gautam Budh Nagar. The minutes of the meeting of the authority held on 5.12.2018 are being reproduced hereinbelow :-
** m0iz0 Hkw& lEink fofu;ke izkf/kdj.k dh iape cSBd fnukad 05-12-18 dk dk;Zo`Rr fnukad 05-12-2018 dks izkf/kdj.k dh cSBd fuEufyf[kr ,ts.Mk fcUnqvksa ij fopkj&foe'kZ fd;k x;k"%& क्र०सं० एजेण्डा 5.01 उ०प्र भू० सम्पदा विनियामक प्राधिकरण की दोनों पीठ द्वारा माह दिसम्बर]2018 तथा बाद में भी आवश्यकता अनुसार एकल पीठ के रूप में भी कार्य करते हुए लखनऊ तथा गौतमबुद्धनगर में एक ही दिवस पर शिकायतों की सुनवाई का प्रस्ताव।
5.02 उ०प्र भू० सम्पदा विनियामक प्राधिकरण में शासन को 3 अतिरिक्त उपयुक्त न्यायिक अधिकारियों के नाम एड्ज्युडिकेटिंग आफिसर्स के पैनल हेतु चयनित करने का प्रस्ताव।
5.03 उ०प्र भू० सम्पदा ¼fofu;ked एवं विकास½ नियमावल& 2016 के नियम& 2¼1½¼h½ तथा नियम-15 में संशोधन का प्रस्ताव।
5.04 उ०प्र भू० सम्पदा ¼fofu;ked एवं विकास½ नियमावली& 2016 के नियम&15 में संशोधन करने का प्रस्ताव।
5.05 अन्य कोई बिन्दु मा० अध्यक्ष की अनुमति से।
एजेन्डा बिन्दुवार निर्णय निम्नवत हैं%-
एजेन्डा बिन्दु&1 उ0प्र0 भू&सम्पदा विनियामक प्राधिकरण की दोनों पीठ द्वारा माह दिसम्बर, 2018 तथा बाद में भी आवश्यकता अनुसार एकल पीठ के रुप में भी कार्य करते हुए लखनऊ तथा गौतमबुद्धनगर में एक ही दिवस पर शिकायतों की सुनवाई के सम्बन्ध में।
निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया।
एजेण्डा बिन्दु &2 उ०प्र० भू&सम्पदा विनियामक प्राधिकरण में एड्जुडिकेटिंग आफिसर्स के पैनल में शासन को 3 अतिरिक्त उपयुक्त न्यायिक अदिकारियों के नाम भेजने हेतु चयन का प्रस्ताव।** निर्णय प्राधिकरण द्वारा सम्यक विचारोपारान्त निम्नलिखित 3 अतिरिक्त न्याययिक अधिकारियों को प्राधिकरण में एडज्यूडिकेटिंग आफीसर्स के पैनल हेतु चयनित किया गयाः& 1& श्री गोपाल कुलश्रेष्ठ 2& श्री सैय्यद सरवत महमूम 3& श्री मुकेश प्रकाश एजेण्डा बिन्दु&3 उ०प्र० भू&सम्पदा ¼विनियमन एवं विकास½ नियमावली& 2016 के नियम 2¼1½¼h½ तथा नियम० 15 में संशोधन का प्रस्ताव।
निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया।
एजेण्डा बिन्दु&4 उ०प्र० भू& सम्पदा ¼विनियमन एवं विकास½ नियमावली& 2016 के नियम&15 में संशोधन करने का प्रस्ताव।
निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया।
बैठक सधन्यावाद समाप्त हुई।
ह० अपठनीय (राजीव कुमार½ अध्यक्ष] उ०प्र० भू&सम्पदा विनियामक प्राधिकरण।
उ०प्र० भू& सम्पदा विनियामक प्राधिकरण पत्रांकः 4702@यू०पी० रेरा@बैठक& कार्यवृत्त@2018&19 दिनांकः 05-12-2018 प्रतिलिपिः& निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु।
1- मा० अध्यक्ष] उ०प्र० भू& सम्पदा विनियामक प्राधिकरण।
2- मा० सदस्यगण] उ०प्र० भू& सम्पदा विनियामक प्राधिकऱण।
3- प्रमुख सचिव] आवास एवं शहरी नियोजन विभाग] उ०प्र० शासन।
4- समस्त सम्बन्धित अधिकारी] उ०प्र० भू& सम्पदा विनियामक प्राधिकरण।
ह०अपठनीय ¼अबरार अहमद½ सचिव उ०प्र० भू& सम्पदा विनियामक प्राधिकरण।** Coming to the next ground of challenge to the impugned order by the petitioner's counsel that the interest awarded by respondent nos.1 to 22 (MCLR+1) is excessive, is also without any merit. It is an admitted fact to the petitioner that respondent nos.1 to 22 had booked the flat and till the filing of the writ petition, the possession of the flat has not been given to them. The interest had been awarded in terms of Clause 9.2(ii) of the form of agreement contained in the U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018. The respondent no.23 has given cogent reasons in the impugned order. Respondent no.23 has rightly placed reliance on Clause 9 sub-clause(ii) of the Rules, 2018 which provides that in the event of default on the part of the promoter, the allottee shall have the option of terminating the agreement in which case the promoter shall be liable to refund the entire money paid by the allottee under any head whatsoever, towards the purchase of the flat at the rate of MCLR (Marginal Cost of Lending Rate) on home loan of State Bank of India + 1% unless provided otherwise under the Rules within forty-five days of receiving the termination notice. Learned counsel for the petitioner has failed to bring to our notice any Rule in the Rules, 2016, providing otherwise.
We stand fortified in our view by the judgement delivered by another co-ordinate Bench of this Court in M/S K.D.P. Build Well Pvt. Ltd vs. State of U.P. And 4 others in Writ - C No.2248 of 2020 in which the scope of Section 81 of the Act of 2016, was dealt with in detail and the Division Bench held that an order passed by single member of the authority is not without jurisdiction. We do not find any reason to take a view to the contrary.
In view of the foregoing discussions, we don't find that the impugned order suffers from any illegality or legal infirmity requiring any interference.
The writ petition lacks merit and is accordingly dismissed.
Order Date :- 6.2.2020 Shalini