Allahabad High Court
M/S K.D.P. Build Well Pvt Ltd vs State Of U.P. And 4 Others on 4 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 226
Bench: Abhinava Upadhya, Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 37 Case :- WRIT - C No. - 2248 of 2020 Petitioner :- M/S K.D.P. Build Well Pvt Ltd Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjeev Kumar Pandey Counsel for Respondent :- C.S.C.,Anil Tiwari Hon'ble Abhinava Upadhya,J.
Hon'ble Shamim Ahmed,J.
( Per: Hon'ble Shamim Ahmed, J.) Heard Shri Sanjeev Kumar Pandey, learned counsel for the petitioner, learned Standing Counsel for respondent nos.1, 3 and 4 and Shri Wasim Masood Khan holding brief of Shri Anil Tiwari, learned counsel appearing for the respondent No.2.
The present writ petition has been filed by the petitioner with the following prayer;
"(i) To issue a writ, order or direction in the nature of certiorari for quashing the order dated 13.06.2018 and 29.06.2018 passed by U.P. Real Estate Regulatory Authority, Lucknow and citation dated 22.08.2019 issued by Tehsildar, Dadri, District Gautam Budhh Nagar.
(ii) Issue any other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;
(iii) Award the cost of the writ 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 "MGI Maple" in Govindpuram, Gautam Budh Nagar. The company obtained 'No Objection Certificate' from the concerned authorities including the Development Autuority of Gautam Budh Nagar.
Learned counsel for the petitioner further submits that the respondent no.5 purchased a 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 sometime, the respondent no.5 filed a complaint before the Real Estate Regulatory Authority, Gautam Budh Nagar, which was registered as Complaint No.1120172878 by which respondent No.5 demanded his amount with 24% annual interest on the ground that project of the petitioner is now cancelled. The U.P. Real Estate Regulatory Authority, Gautam Budh Nagar has passed the impugned orders dated 13.06.2018 and modified order dated 29.06.2018, by which a direction was issued to the petitioner to repay all the amount deposited by the respondent no.5 with MCLR+1 percent interest from the date of deposit till the date of payment of the amount, copy of the order dated 13.06.2018 and 29.06.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar is filed as Annexure No.3 to the writ petition.
Learned counsel for the petitioner further submits that in the first prayer the date of impugned order is wrongly transcribed as 29.06.2012 in place of 29.06.2018. He prays and allowed to correct the date of impugned order dated 29.06.2018.
Learned counsel for the petitioner further argued that the orders dated 13.06.2018 and 29.6.2018 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 is passed by one member which is against the provision of Section 21 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the 'Act, 2016"), 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 13.06.2018 and 29.06.2018 were not passed as per Section 21 of the Act, 2016 and further he submits that the order is ex parte order.
Learned counsel for the petitioner further argued that the impugned order is arbitrary, illegal and not sustainable in the eyes of law and U.P. Real Estate Regulatory Authority, Gautam Budh Nagar has committed gross illegality while passing the impugned orders.
Learned counsel for the petitioner further argued that in pursuance of the order dated 13.06.2018 and 29.06.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar, a recovery certificate was issued for a tune of Rs.6,55,764.26 against the petitioner, which has been sent to the Collector, Gautam Budh Nagar for realization from the petitioner. Thereafter, Tehsildar, Dadri, Gautam Budh Nagar has issued citation dated 22.08.2019 for recovery of the above amount. The recovery certificate and citation issued are also illegal, arbitrary and not sustainable in the eyes of law.
Shri Wasim Masood Khan, learned counsel for the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar, Respondent No.2 countered all the arguments raised by the learned counsel for the petitioner and submitted that the orders passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar dated 13.06.2018 and 29.06.2018 are rightly passed by the single member and there is no illegality in passing the said orders and the orders are not without jurisdiction in view of the provisions contained under Section 81 of the Real Estate (Regulation and Development) Act, 2016, wherein it speaks about the 'delegation', which says 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."
Shri Wasim Masood Khan, learned counsel further submits that in view of Section 81 of the Act, 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 on the basis of the complaint in both the Benches sitting at Lucknow and Gautam Budh Nagar, therefore, the single member has full jurisdiction to decide the cases 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 valid reason in the eyes of law and the impugned order passed by the single member is valid and in accordance with law and the same could not be said to be passed without jurisdiction, no interference is required 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, the same is taken on record.
Learned counsel for the respondent No.2 further brought our attention towards Sections 18, 34, 38, 40 and 71 of the Real Estate (Regulation and Development) Act, 2016 and Clause 9.2(ii) of the form of agreement contained in the Annexure to the U.P. Real Estate Regulation (Agreemet for sale/lease) Rule, 2018 for adjudication of the present case.
Learned Standing Counsel who represent respondent Nos. 1, 3 and 4 also supports the case argued by Shri Wasim Masood Khan, learned counsel for the respondent No.2 and submitted that the impugned orders were rightly passed by single member and no interference is required by this Court.
We have heard learned counsel for the parties and perused the record, in our view before dealing the case on merit, it is necessary to code the provisions of Sections 18, 34, 38, 40, 71 and 81 of the Real Estate (Regulation and Development) Act, 2016, which help us for adjudicating the present case.
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."
From the arguments raised by the learned counsel for the petitioner and admission made in the paragraph No. 35 of the writ petition, it is not disputed that the respondent No.5 has booked his Flat on 28.12.2012 in the petitioner project, apart from petitioner 280 other persons also booked the Flats and it is also not disputed that from that date till filing of the present writ petition, the petitioner has not delivered the possession of the Flat to respondent No.5 and due to arbitrary and illegal action of the petitioner, respondent No.5 filed the complaint before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar as per the provision of the Act, 2016 regarding his grievances and after considering the grounds raised in the complaint, the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar passed the impugned orders dated 13.6.2018 and 29.6.2018 directing the petitioner to refund the entire amount deposited by the respondent no. 5 along with MCLR+1 per cent interest within 45 days. When the said amount was not paid by the petitioner to the respondent No.5, the recovery certificate was issued and thereafter a citation was issued for a sum of Rs.6,55,764.26 plus other charges.
We have no hesitation to say that the petitioner has received the cost of the Flat from the respondent No.5 but was adopting delaying tactics for not giving the possession of the Flat to the respondent No.5 and also keeping the money of respondent no.5 since 2012. The respondent No.5 was running from pillar to post for taking possession of the Flat, the action of the petitioner appears to be illegal, arbitrary and with a bad intention to grab the entire amount of the respondent No.5, for this action of the petitioner, this Court will not shut its eye. It is also not out of place to mention here that in the society were we are living having own shelter, the common people has to invest their entire saving with the hope to live remaining life in their own house with mental satisfaction, but the builders like petitioner is throwing the hope and feelings of purchaser, like a hot potato in the hand.
We are further not inclined to interfere in the impugned orders on the ground taken by the learned counsel for the petitioner that the order passed by a single member is without jurisdiction as contemplated under Section 21 of the Act and has not been passed in accordance with the provisions of Section 21 of the Act. The arguments of the learned counsel for the petitioner appears us to be misconceived. The proposition of Section 21 is not that the complaint could not be decided by a single member of the Authority, whereas it could be decided by a single member or by two members, whichever is better in the interest of justice as per availability of the members and we further observed that Section 81 of the Real Estate (Regulation and Development) Act, 2016 provides "delegation", which says 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 having regard to the provision of Section 81 of the Real Estate ( Regulation and Development) Act, 2016, the authority vide their 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 delegation of power of the 5th meeting dated 5.12.2018 of U.P. Real Estate Regulatory Authority is quoted as under:
"उ०प्र० भू- सम्पदा विनियाम प्राधिकरण की पंचम बैठक दिनांक 05.12.18 का कार्यवृत्त दिनांक 05.12.2018 को प्राधिकरण कि बैठक निम्नलिखित एजेण्डा बिन्दुओं पर विचार-विमर्श किया गयाः-
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 (विनियामक एवं विकास) नियमावल- 2016 के नियम- 2(1)(h) तथा नियम-15 में संशोधन का प्रस्ताव।
5.04 उ०प्र भू० सम्पदा (विनियामक एवं विकास) 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 (विनियमन एवं विकास) नियमावली- 2016 के नियम 2(1)(h) तथा नियम० 15 में संशोधन का प्रस्ताव।
निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया।
एजेण्डा बिन्दु-4 उ०प्र० भू- सम्पदा (विनियमन एवं विकास) नियमावली- 2016 के नियम-15 में संशोधन करने का प्रस्ताव।
निर्णय प्राधिकरण द्वारा प्रस्ताव अनुमोदित किया गया।
बैठक सधन्यावाद समाप्त हुई।
ह० अपठनीय (राजीव कुमार) 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।
ह० अपठनीय (अबरार अहमद) सचिव उ०प्र० भू- सम्पदा विनियामक प्राधिकरण।"
Therefore, in view of the provision contained under Section 81 of the Real Estate (Regulation and Development) Act, 2016 and as per decision taken by the U.P. Real Estate Regulatory Authority in Agenda No.1 of meeting dated 05.12.2018 the impugned orders dated 13.6.2018 and 29.06.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar has been rightly passed by the single member and the arguments raised by learned counsel for the petitioner that the impugned order was passed without jurisdiction has no force and is declined. In support of the his arguments, learned counsel for the petitioner referred the judgment passed by the Hon'ble Apex Court in the case of Standard Chartered Bank Vs. Dharminder Bhohi and others, reported in (2013) 15 SCC 341 and attention of the Court was brought on para no.38 of the aforesaid judgment, which is quoted as under:-
"38. Section 34 of RDB Act provides that the said Act would have overriding effect. We have referred to the aforesaid provisions to singularly highlight that the sacrosanct between the banks and the borrowers and any third party who has acquired any interest. They have been conferred jurisdiction by special legislations to exercise a particular power in a particular mannter as provided under the Act. They cannot assume the role of a court of different nature which really can grant " liberty to initiate any action against the bank". They are only required to decide the lis that comes within their own domain. If it does not fall within their sphere of jurisdiction they are required to say so. Taking note of a submission made at the behest of the auction-purchaser and then proceed to say that he is at liberty to file any action against the bank for any omission committed by it has no sanction of law. The said observation is wholly bereft of jurisdiction, and indubitably is totally unwarranted in the obtaining factual matrix. Therefore, we have no hesitation in deleting the observation, namely, "liberty is also given to the auction-purchaser to file action against the bank for any omission committed by it."
Learned counsel for the petitioner further referred the decision of Hon'ble Apex Court in the case of V.K. Ashokan vs. Assistant Excise Commissioner and others, (2009) 14 SCC 85 and drawn our attention on paragraph no. 42 of the judgment, which is quoted as under:-
"Functions of the Board and/or its power under the Act have not been specified under the Act. The Board, indisputably, derives its power to act in a supervisory capacity only in terms of the provisions of the Kerala Board of Revenue Act and not under the said Act. Board, thus, did not have any supervisory jurisdiction under the Act, apart from the functions of the Excise Commissioner as contained in the provisions of Section 4(b) of the Act. Even otherwise, the Board vis-a-vis the Excise Commissioner does not have any power to take cognizance of a matter suo motu. It is accepted at the Bar that only when the question as regards confirmation of the resale was placed before the Commissioner of Excise, he purported to have noticed that apart from violating the conditions of licence as also the Rules wherefor proceedings for cancellation of licence was initiated, appellants have also allegedly failed and/or neglected to pay their kist and as such they made themselves liable for action in terms of Section 6(28) of the Rules. It is neither denied nor disputed that apart from the lack of inherent jurisdiction to initiate such a suo motu proceeding, neither any notice was issued to the licensees nor any proceeding was initiated therefor. The principles of natural justice had, thus, not been complied with."
We have gone through the judgments cited by the learned counsel for the petitioner. With due regard to the aforesaid judgments, we say that they are not applicable in the facts and circumstances of the present case, we further say that the merits of the case would be sustained, even in absence of jurisdiction and learned counsel for petitioner fails to demonstrate that the impugned orders were passed in breach of the legal proposition of law and is without jurisdiction and is against the principles of natural justice.
Learned counsel for the respondent no.2 draw our attention of the Hon'ble Apex Court judgment passed in the case of Union of India and another Vs. Association of United Teelecom Service Providers of India and others, (2011) 10 SCC 543 and referred paragraph nos.63 and 67 of the aforesaid judgment, which are quoted as under:-
"63. Section 14 (a)(i) of the TRAI Act, as we have seen, provides that the Tribunal can adjudicate any dispute between the licensor and the licensee. One such dispute can be that the computation of Adjusted Gross Revenue made by the licensor and the demand raised on the basis of such computation is not in accordance with the license agreement. This dispute however can be raised by the licensee, after the license agreement has been entered into and the appropriate stage when the dispute can be raised is when a particular demand is raised on the licensee by the licensor. When such a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee.
67.We have delivered today the judgment in these cases and while answering the last substantial question of law, we have held that when a particular demand is raised on a licencee, the licensee can challenge the demand before the Tribunal and the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement."
We are in full agreement with the above judgment cited by learned counsel for the respondent no.2 against the petitioner that the order of Authority is not without jurisdiction.
We are also not inclined to accept the arguments of the learned counsel for the petitioner that the impugned orders were passed Ex- parte.
Considering the arguments raised by the learned counsel for the respondent no.2 that the complaint was filed by respondent no.5 before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar in the year 2012. Since then several notices were issued and adequate opportunity was afforded to the petitioner by the authorities concerned but th petitioner was avoiding the appearance and hearing of the case being no alternative the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar passed the impugned orders.
We are also not inclined to accept the arguments of the learned counsel for the petitioner that the interest charged by the U.P. Real Estate Regulatory Authority (i.e. MCLR + 1%) is to excessive, whereas it is the admitted case of the petitioner that the respondent No.5 has booked the Flat on 28.12.2012 and till the filing of the writ petition, the possession of the Flat was not given on the ground that the project of the petitioner was cancelled, from our opinion the interest charged by the U.P. Real Estate Regulatory Authority is accurate and not excessive, the same is fixed as per 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, which seems to be proper.
We Honour and accept the views taken by the Hon'ble Apex Court in the judgment of Central Banking India Vs. Ravindra, (2002) 1 SCC 367, and was pleased to observe in para 23, which is quoted as under :-
"In Syndicate Bank v. M/s. West Bengal Cements Limited and Ors., AIR (1989) Delhi 107, Y.K. Sabharwal, J. (as his Lordship then was) rejected the contention of learned counsel for the borrower that the interest can never become principal and the words 'principal sum' in Section 34, Code of Civil Procedure should be given the ordinary meaning as given in the dictionaries, and termed as misconceived the argument that the interest under section 34 could be awarded only on the original sum advanced as the argument ran counter to the normal banking practice, and which, if accepted, would act as a premium for those not paying the amount of interest when it is due at the cost of those making payment of interest when it is due. It was held that the bank was entitled to the sum claimed as due from and payable by the defendants as the principal sum with future interest on such amount from the date of suit to the date of realisation. Reliance was placed on Division Bench decision of Madras High Court in Sigappiachi v. M.A.P.A. Palaniappa Chettiar, AIR (1972) Madras 463, holding that the 'principal sum adjudged' (within the meaning of Section 34 of the Code of Civil Procedure) is the amount found due as on the date of the suit."
We further place reliance of judgment of the Hon'ble Apex Court in the case Thazhathe Purayil Sarabi and others Vs. Union of India and another, reported in (2009) 7 SCC 372, and the Hon'ble Apex Court was pleased to observe that the interest be paid from the date of application till the date of recovery, this view is taken in paragraph nos. 37 and 38, which are quoted as under :-
"37. Even if, the appellants may not be entitled to claim interest from the date of the accident, we are of the view that the claim to interest on the awarded sum has to be allowed from the date of the application till the date of recovery, since the appellant cannot be faulted for the delay of approximately 8 years in the making of the Award by the Railway Claims Tribunal. Had the Tribunal not delayed the matter for so long, the appellants would have been entitled to the beneficial interest of the amount awarded from a much earlier date and we see no reason why they should be deprived of such benefit.
38. As we have indicated earlier, payment of interest is basically compensation for being denied the use of the money during the period which the same could have been made available to the claimants. In our view, both the Tribunal, as also the High Court, were wrong in not granting any interest whatsoever to the appellants, except by way of a default clause, which is contrary to the established principles relating to payment of interest on money claims. "
We further place reliance of the judgment of the Hon'ble Apex Court in the case of Union of India through Director of Income Tax Vs. Tata Chemicals Limited, (2014) 6 SCC 335, and the Hon'ble Apex Court was pleased to observe in paragraph nos. 37 and 38 of the judgment, which are quoted as under:
"37. A "tax refund" is a refund of taxes when the tax liability is less than the tax paid. As per the old section an assessee was entitled for payment of interest on the amount of taxes refunded pursuant to an order passed under the Act, including the order passed in an appeal. In the present fact scenario, the deductor/assessee had paid taxes pursuant to a special order passed by the assessing officer/Income Tax Officer. In the appeal filed against the said order the assessee has succeeded and a direction is issued by the appellate authority to refund the tax paid. The amount paid by the resident/ deductor was retained by the Government till a direction was issued by the appellate authority to refund the same. When the said amount is refunded it should carry interest in the matter of course. As held by the Courts while awarding interest, it is a kind of compensation of use and retention of the money collected unauthorizedly by the Department. When the collection is illegal, there is corresponding obligation on the revenue to refund such amount with interest in as much as they have retained and enjoyed the money deposited. Even the Department has understood the object behind insertion of Section 244A, as that, an assessee is entitled to payment of interest for money remaining with the Government which would be refunded. There is no reason to restrict the same to an assessee only without extending the similar benefit to a resident/ deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non-resident/ foreign company.
38. Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance tax is a method now statutorily adopted by fiscal legislation to ensure that the aforesaid amount of tax which has been duly paid in prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing Statute. Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, therebeing no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course."
While concluding our opinion, we have no hesitation to observe that the undisputed fact is that the respondent no.5 has paid the entire amount towards the cost of Flat yet possession of the Flat was not given to the respondent no.5 since 2012 till filing of this writ petition. It is further not denied by the petitioner that the order of the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar was passed in the year 2018 and since then any amount in compliance of the order impugned was paid to the respondent no.5. This conduct of the petitioner shows that he is not liable to get any sympathy by this Court while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. It is further obseraved that the law of equity and principle of natural justice go in favour of respondent No.5.
In view of the discussion made above and considering the legal proposition as contemplated under sections 18, 21 and 81 of the Act, 2016 and in view of clause 9.2 (ii) of the form of agreement contained in Annexure to the U.P. Real Estate (Regulation and Development) (Agreement for Sale/Lease) Rules, 2018, we are of the view that the present writ petition is liable to be dismissed due to lack of merit.
The writ petition is, accordingly, dismissed.
No order as to cost.
Order Date :- 4.2.2020 SFH ( Shamim Ahmed, J.) (Abhinava Upadhya, J.)