Madhya Pradesh High Court
Ag8 Ventures Ltd. vs Real Estate Appellate Bhopal on 29 March, 2022
Author: Sheel Nagu
Bench: Sheel Nagu, Maninder S Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE MANINDER S BHATTI
ON THE 29th OF MARCH, 2022
WP-05554-2022
Between:-
1. (((((AG8 VENTURES LTD. AAKRITI HOUSE AAKRITI
ECO CITY E-8 EXTENSION, BHOPAL (M.P.)
(AAKRITI ASTER PLATINUM) PROJECT THROUGH:
HEMANT KU. SONI, MANAGING DIRECTOR
(((((AG8 VENTURES LTD.
2. SHRI RAJEEV SONI, DIRECTOR AG8 VENTURES
LIMITED, AAKRITI HOUSE, AAKRITI ECO CITY, E-
8, EXTENSION BHOPAL (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI, AG8 VENTURES
LIMITED, AAKRITI HOUSE AAKRITI HOUSE ,
AAKRITI ECO CITY, E-8, EXTENSION BHOPAL
(MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. M.P. REAL ESTATE REGALARATORY AUTHORITY
BHOPAL THROUGH ITS SECRETARY
AMARKANTAK BHAWAN (FOURTH AND FIFTH
FLOOR), MAHARANA PRATAP NAGAR, ARERA
HILLS, PLOT NUMBER 5, ZONE-1 (PRESS
COMPLEX), BHOPAL-462011 (MADHYA PRADESH)
2. REAL ESTATE REGULARATORY AUTHORITY,
RERA BHAWAN, ARERA HILLS, BHOPAL (MADHYA
PRADESH) THROUGH: SECRETARY, RERA
BHAWAN, BHOPAL(MP)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5491 of 2022
Between:-
1. (((((AG8 VENTURES LTD. AAKRITI HOUSE AAKRITI
ECO CITY THROUGH HEMANT SONI S/O P.D SONI
EXTENSION AG 8 BHOPAL E-8 EXTENSION,
BHOPAL (M.P.) (AAKRITI GARDEN PHASE-IV)
Signature Not Verified
SAN
PROJECT (MADHYA PRADESH)
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
2. SHRI RAJEEV SONI, DIRECTOR, AG 8 VENTURES
Date: 2022.04.04 18:01:02 IST
LT D . AAKRITI HOUSE AAKRITI ECO CITY E-8
2
EXTENSION BHOPAL (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (((((AG8 VENTURES
LTD . AAKRITI HOUSE , AAKRITI ECO CITY, E-8,
EXTENSION BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR), MAHARANA
PRATAP NAGAR, PLOT NUMBER 5, ZONE-1 (PRESS
COMPLEX), BHOPAL (MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHROITY
THROUGH SECRETARY RERA BHAWAN BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5492 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH AAKRITI
HOUSE , AAKRITI ECO CITY, E-8, EXTENSION
BHOPAL (MADHYA PRADESH)
2. SHRI RAJEEV SONI DIRECTOR (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
SECRETARY AMARKANTAK BHAWAN (FOURTH
AND FIFTH FLOOR), MAHARANA PRATAP NAGAR,
PLOT NUMBER 5, ZONE-1 (PRESS COMPLEX),
BHOPAL (MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECRETARY, RERA BHAWAN BHOPAL
R/O RERA BHAWAN, BHOPAL (M.P.) (MADHYA
Signature Not Verified
SAN PRADESH)
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
Date: 2022.04.04 18:01:02 IST
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
3
MISHRA, ADVOCATE)
WRIT PETITION No. 5494 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH AAKRITI ECO
CITY E-8 EXTENSION, BHOPAL (AAKRITI ASTER
SERIES) PROJECT (MADHYA PRADESH)
2. SHRI RAJEEV SONI DIRECTOR (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))) THROUGH
SECRETARY AMARKANTAK BHAWAN (FOURTH
AND FIFTH FLOOR), MAHARANA PRATAP NAGAR,
PLOT NUMBER 5, ZONE-1 (PRESS COMPLEX),
BHOPAL (MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECRETARY R/O RERA BHAWAN,
ARERA HILLS, BHOPAL (M.P.) (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5495 of 2022
Between:-
1. ((AG8 VENTURES LTD. AAKRITI HOUSE AAKRITI
ECO CITY E-8 EXTENSION, BHOPAL (M.P.)
(AAKRITI KOLAR CITY) PROJECT (MADHYA
PRADESH)
2. SHRI RAJEEV SONI DIRECTOR, AG8 VENTURES
LIMITED AAKRITI HOUSE , AAKRITI ECO CITY, E-
8, EXTENSION BHOPAL (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI AG8 VENTURES
LIMITED AAKRITI HOUSE , AAKRITI ECO CITY, E-
8, EXTENSION BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
Signature Not Verified
SAN HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
Date: 2022.04.04 18:01:02 IST
4
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR), MAHARANA
PRATAP NAGAR, PLOT NUMBER 5, ZONE-1 ARERA
HILLS (PRESS COMPLEX), BHOPAL (MADHYA
PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECREATARY RERA BHAWAN RERA
BHAWAN, DISTRICT-BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5498 of 2022
Between:-
1. (AG8 VENTURES LTD. AAKRITI HOUSE AAKRITI
ECO CITY E-8 EXTENSION, BHOPAL (M.P.)
(AAKRITI ORCHID HEIGHTS) PROJECT (MADHYA
PRADESH)
2. SHRI RAJEEV SONI DIRECTOR (((((AG8 VENTURES
LTD . AAKRITI HOUSE , AAKRITI ECO CITY, E-8,
EXTENSION BHOPAL M.P. (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (((((AG8 VENTURES
LTD . AAKRITI HOUSE , AAKRITI ECO CITY, E-8,
EXTENSION BHOPAL M.P. (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR), MAHARANA
PRATAP NAGAR, PLOT NUMBER 5, ZONE-1 (PRESS
COMPLEX), BHOPAL (MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECRETARY RERA BHAWAN BHOPAL
M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5554 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH HEMANT SONI
Signature Not Verified
SAN S/O PD SONI AAKRITI ECO CITY, E-8 EXTENSION,
BHOPAL (AAKRITI GARDEN PHASE-IV PROJECT
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
(MADHYA PRADESH)
Date: 2022.04.04 18:01:02 IST
5
2. SHRI RAJEEV SONI DIRECTOR AG 8, VENTURES
LTD . AAKRITI HOUSE , AAKRITI ECO CITY, E-8,
EXTENSION BHOPAL (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI AG8 VENTURES
LIMITED AAKRITI HOUSE , AAKRITI ECO CITY, E-
8, EXTENSION BHOPAL (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR), ARERA
HILLS,MAHARANA PRATAP NAGAR, PLOT
NUMBER 5, ZONE-1 (PRESS COMPLEX), BHOPAL
(MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECRETARY R/O RERA BHAWAN,
BHOPAL (M.P.) (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5557 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH AAKRITI ECO
CITY, E-8 EXTENSION, BHOPAL (AAKRITI GARDEN
PLATINUM PROJECT (MADHYA PRADESH)
2. SHRI RAJEEV SONI DIRECTOR (AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
SECRETARY AMARKANTAK BHAWAN (FOURTH
AND FIFTH FLOOR), MAHARANA PRATAP NAGAR,
PLOT NUMBER 5, ZONE-1 (PRESS COMPLEX),
BHOPAL (MADHYA PRADESH)
Signature Not Verified
SAN 2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECRETARY RERA BHAWAN BHOPAL
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
R/O RERA BHAWAN, BHOPAL (M.P.)` (MADHYA
Date: 2022.04.04 18:01:02 IST
PRADESH)
6
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5559 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH HEMANT SONI
S/O P.D. SONI (AAKRITI ECO CITY EWS ) THROUGH
R/O E/8 EXTENSION AG8 BHOPAL (MP) (MADHYA
PRADESH)
2. SHRI RAJEEV SONI DIRECTOR (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI (((((AG8 VENTURES
LTD. R/O AAKRITI HOUSE, AAKRITI ECO CITY, E-8
EXTENSION, BHOPAL (M.P.) (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR ) MAHARANA
PRATAP NAGAR PLOT NUMBER 5 ZONE -1 (PRESS
COMPLEX) BHOPAL 462011 (MADHYA PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
THROUGH SECARETRY R/O RERA BHAWAN,
ARERA HILLS, BHOPAL (M.P.) (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
WRIT PETITION No. 5562 of 2022
Between:-
1. (((((AG8 VENTURES LTD. THROUGH HEMANT SONI
S/O P D SONI AAKRITI HOUSE AAKRITI ECO CITY
E-8 EXTENSION BHOPAL M.P. (MADHYA PRADESH)
2. SHRI RAJEEV SONI DIRECTOR AG8 VENTURES
LIMITED AAKRITI HOUSE , AAKRITI ECO CITY, E-
8, EXTENSION BHOPAL (MADHYA PRADESH)
3. SHRI HEMANT KUMAR SONI AG8 VENTURES
LIMITED R/O AAKRITI HOUSE, AAKRITI ECO CITY,
E-8 EXTENSION, BHOPAL (M.P.) (MADHYA
Signature Not Verified
PRADESH)
SAN
Digitally signed by YOGESH KUMAR
.....PETITIONERS
SHIRVASTAVA
Date: 2022.04.04 18:01:02 IST
(BY SHRI R.N. SINGH, SENIOR ADVOCATE WITH SHRI YOGESH
7
HEMANANI AND SHRI AKSHAT ARJARIYA, ADVOCATES)
AND
1. REAL ESTATE APPELLATE BHOPAL))))) THROUGH
ITS SECRETARY AMARKANTAK BHAWAN
(FOURTH AND FIFTH FLOOR),ARERA HILLS,
MAHARANA PRATAP NAGAR, PLOT NUMBER 5,
ZONE-1 (PRESS COMPLEX), BHOPAL (MADHYA
PRADESH)
2. REAL ESTATE REGULATORY AUTHORITY
T H R O U G H S E C R E T A R Y RERA BHAWAN,
DISTRICT-BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAY GUPTA, SENIOR ADVOCATE WITH SHRI RAJEEV
MISHRA, ADVOCATE)
These petitions coming on for orders this day, JUSTICE SHEEL NAGU
passed the following:
ORDER
This order shall govern disposal of WP. No.5479/2022, W.P. No.5491/2022, W.P. No.5492/2022, W.P. No.5494/2022 and W.P. No.5495/2022, W.P. No.5498/2022, W.P. No.5554/2022, W.P. No.5557/2022, W.P. No.5559/2022 and W.P. No.5562/2022 as it is jointly submitted by learned counsel for parties that all these petitions involve common question of law based on similar facts.
2. These petitions are preferred by a Company registered with Real Estate Regulatory Authority (for brevity 'RERA') and two of its Directors invoking writ jurisdiction of this Court under Article 226 of the Constitution. For convenience, facts are noted from WP No.5479/2022 wherein petitioners pray for followings reliefs:
"(i) To issue an appropriate Writ/Order/Direction setting aside the order dated 27/01/2022 passed by the Ld. Appellate Tribunal(Annexure P/5) and order dated 21/02/2022 passed by the Ld. Authority(Annexure P/8).
(ii) To issue an appropriate Writ/order/direction to the Ld. Authority not to initiate any inquiry or pass any decision on the basis of Section 4(2)(l)(D) of the Act and Rule 5 of M.P. RERA Rules, 2017.
(iii) To Direct the Ld. Authority not to pass orders on the Show Cause notices under Section 61 and 63 of the Act, 2016 until final decision of the current petition.
(iv) To Read down Rule 5 of MP RERA Rules, 2017.Signature Not Verified SAN
(v) To Remit the case to the Appellate Authority to pass a reasoned order after consideration of all the grounds.Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.04.04 18:01:02 IST
(vi) Any other and further orders as may be deemed necessary in the facts 8 and circumstances of the case."
3. The challenge herein is to order dated 27.01.2022 (Annexure P/5) passed by Real Estate Appellate Tribunal (for brevity 'Tribunal') and order dated 21.02.2022 (Annexure P/8) passed by RERA.
4. Learned counsel for rival parties Shri R.N. Singh, Senior Advocate with Shri Yogesh Hemnani and Shri Akshat Arjariya, Advocates for petitioners and Shri Ajay Gupta, Senior Advocate with Shri Rajeev Mishra, Advocate are heard on the question of admission and so also on final disposal.
5. Learned senior counsel Shri R.N. Singh submits that by invoking suo motu powers under Section 36 of Real Estate (Regulation and Development) Act, 2016 (for short '2016 Act') by an interim order dated 10.12.2021 (Annexure P/3) on mere suspicion without recording any satisfaction as regards contravention of the 2016 Act or Rules and Regulations framed thereunder that failure has occasioned on the part of petitioners to deposit 70% of amount realized from the Real Estate Project allottees in a scheduled bank in a separate account, to cover the cost of construction and the land cost with further failure of petitioner not to use this separate account for any purpose except defraying expenses for construction and land. The restraint order vide Annexure P/3 is thus submitted to have been passed without any application of mind and without following statutory provisions of Section 36 of the 2016 Act and thus the said order was non est in the eyes of law. It is further submitted by learned senior counsel that petitioners approached the Tribunal against the order dated 10.12.2021 by filing Appeal Case No.1/22, during pendency of which the Tribunal passed interim order dated 27.02.2022 (Annexure P/5) though upholding the interim order passed by RERA but issuing following directions:
"(i) Section 36 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to "the Act") empowered the Authority to issue Interim Orders. During the course of an inquiry, if the Authority is satisfied that any act in contravention of the Act or rules or regulation has been committed by the promoter or allottee or real estate agents, such interim order can be issued. Therefore, the impugned order is well within the powers of the authority.
However, in light of the facts that no show cause notice has been Signature Not Verified SAN issued so far and the Appellant is facing civil consequences due to the prohibitory orders issued by the authority, it appears appropriate to partitially allow the application by allowing the Apeellant to Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.04.04 18:01:02 IST withdraw necessary amount from the designated account to meet their urgent needs for establishment purposes like paying wages to 9 their workers etc. subject to approval of the Authority or its authorized member or officer.
The requirement for urgent funds will be furnished before the Authority who will allow withdrawal of such appropriate amount after considering the requirement submitted by the Appellant. The decision on such requirement of funds by the Learned Authority is to be taken within a week's time from the date of submission of such requirement.
Meanwhile, the authority will submit attested copy of the preliminary inquiry report of the Financial Advisor along with connected papers for perusal of this Tribunal. The Authority is free to furnish any other documents which will help this Tribunal to arrive at a proper decision in this case."
5.1 Learned senior counsel further submits by referring to interim order of the Tribunal (Annexure P/5) that the Tribunal appreciating genuine grievance of petitioner of requiring funds for being disbursed to cater to the need for payment of wages to workers, etc., passed the said interim order Annexure P/5 allowing petitioner to withdraw from the separate account. Learned senior counsel Shri Singh further submits that this order of the Tribunal was not only reasonable but also necessary to deal with the day-to-day activities of petitioner Company.
5.2 It is submitted that the said appeal continues to be pending adjudication till date before the Tribunal. Learned senior counsel submits that thereafter when petitioner moved application dated 02.02.2022 (Annexure P/6) in compliance of the interim order of the Tribunal dated 27.01.2022, the RERA by the impugned order dated 21.02.2022 (Annexure P/8) rejected the said application which according to learned counsel for the petitioner was beyond the jurisdiction of RERA for being of any authority to ignore compliance of the interim order dated 27.01.2022 of the Tribunal.
5.3 Learned senior counsel submits that RERA has applied misplaced principles of law which were not relevant to the issue involved.
6. After having heard learned counsel for rival parties, this Court is of the considered view that these petitions deserve to be dismissed at admission stage itself for the following reasons:
(i) 2016 Act was promulgated and brought into effect from different dates in the year 2016 to primarily protect the interest of consumers in the real Signature Not Verified SAN estate sector and to establish adjudicatory mechanism including Appellate Tirubnal Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.04.04 18:01:02 IST for speedy dispute redressal. Thus, the Act of 2016 is essentially aloottee centric.10
(ii) Section 4 deals with application for registration of real estate project.
Sub-section (2)(l)(D) of Section 4 of 2016 Act provides thus:
"4. Application for registration of real estate projects-
(1) xxx xxx xxx (2) The promoter shall enclose the following documents along with the application referred to in sub-section (1), namely:-
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) xxx xxx xxx
(e) xxx xxx xxx
(f) xxx xxx xxx
(g) xxx xxx xxx
(h) xxx xxx xxx
(i) xxx xxx xxx
(j) xxx xxx xxx
(k) xxx xxx xxx
(l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating-
(A) xxx xxx xxx
(B) xxx xxx xxx
(C) xxx xxx xxx
(D) that seventy percent of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank to cover the cost of construction and the land cost and shall be used only for that purpose:
Provided that the promoter shall withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project:
Provided further that the amounts from the separate account shall be withdrawn by the promoter after it is certified by an engineer, an architect and a chartered accountant in practice that the withdrawal is in proportion to the percentage of completion of the Signature Not Verified SAN project:Digitally signed by YOGESH KUMAR SHIRVASTAVA
Date: 2022.04.04 18:01:02 IST Provided also that the promoter shall get his accounts audited 11 within six months after the end of every financial year by a chartered accountant in practice, and shall produce a statement of accounts duly certified and signed by such chartered accountant and it shall be verified during the audit that the amounts collected for a particular project have been utilised [for that] project and the withdrawal has been in compliance with the proportion to the percentage of completion of the project."
A bare perusal of the aforesaid Section 4(2)(l)(D) of the 2016 Act reveals that for sustenance of a valid registration, the promoter is required to give a declaration supported by an affidavit inter alia stating that 70% of the amount realized by the promoter from the allottees from time to time shall be deposited in a "separate account' to be maintained in a scheduled bank with the object to cover the cost of construction and the land cost and shall not be used for any other purpose. Meaning thereby that 70% of the amount released and the allottees shall be deposited in a separate account in scheduled bank will not be used for any purpose by the promoter except to cover the cost of construction and land. This provision is further circumscribed by a proviso that withdrawal from the separate account for the aforesaid purpose will be permissible only when the same are in proportion to the percentage of completion of project, to be duly certified by an Engineer, an Architect and a Chartered Accountant.
(iii) Section 7 bestows power upon RERA to revoke the registration of the promoters in case of breach of any of the mandatory provisions of 2016 Act or Rules and Regulations framed thereunder.
(iv) The provision of Section 4(2)(l)(D) of the 2016 Act is mandatory in nature and any violation thereof can result into revocation of registration of promoter.
6.1 The RERA while passing the impugned order dated 21.02.2022 (Annexure P/8) relied upon the provision of Section 4(2)(1)(B) and found that out of the total receipts from the real estate allottees of Rs.283.99 lacs, the promoter petitioner has spent only Rs.67.72 lacs in the construction of the project and land, Signature Not Verified SAN while the remaining balance of Rs.216.27 lacs have been spent for purposes other Digitally signed by YOGESH KUMAR SHIRVASTAVA Date: 2022.04.04 18:01:02 IST than land and construction. The RERA also noticed that the amount deposited by 12 petitioner promoter in the separate account is much less than the minimum requirement of 70% as mandated by Section 4(2)(l)(D) of 2016 Act.
7. Learned senior counsel for petitioner does not dispute that the impugned order Annexure P/8 was passed by competent authority or it suffers from lack of any jurisdictional error but submits that by failing to comply with the Tribunal's interim order dated 27.01.2022 (Annexure P/5) the RERA has caused breach of hierarchical discipline.
8. After having heard learned counsel for rival parties, this Court in its limited writ jurisdiction under Article 226 of the Constitution does not see any lack of jurisdiction or rampant irregularities or impropriety in passing of the impugned order dated 21.02.2022 (Annexure P/8). In fact, it appears that the impugned order has been passed by keeping in view the goal behind the 2016 Act and with the ultimate object of protecting the interests of real estate allottees.
9. This Court in absence of any jurisdictional error or rampant irregularities declines interference and refrains from commenting further on merits lest the parties may be prejudiced before the RERA and the Tribunal.
10. However, remedy of appeal under Section 44 of the 2016 Act before the Tribunal against the order dated 21.02.2022 (Annexure P/8) is still open for the petitioner to be availed.
11. To ensure that petitioner's interest is not prejudiced before the Tribunal, this Court hasten to add that any finding recorded in this order are merely for the purpose of deciding the present case and shall not adversely affect the interest of any of the rival parties before the appellate forum where appeal is said to be pending. More so the appellate forum shall also not be prejudiced by any finding recorded in this order while deciding the pending appeal or the appeal if filed against Annexure P/8.
12. Since learned counsel for petitioner does not dispute that same question of law based on similar factual scenario are involved in all the connected matters i.e. WP. No.5479/2022, W.P. No.5491/2022, W.P. No.5492/2022, W.P. Signature Not Verified No.5494/2022 and W.P. No.5495/2022, W.P. No.5498/2022, W.P. No.5554/2022, SAN Digitally signed by YOGESH KUMAR W.P. No.5557/2022, W.P. No.5559/2022 and W.P. No.5562/2022, these writ SHIRVASTAVA Date: 2022.04.04 18:01:02 IST petitions also stand dismissed for the reasons aforesaid with the same liberty.
13 (SHEEL NAGU) (MANINDER S BHATTI)
JUDGE JUDGE
YS
Signature Not Verified
SAN
Digitally signed by YOGESH KUMAR
SHIRVASTAVA
Date: 2022.04.04 18:01:02 IST