The promoter cannot shirk from the responsibilities/liabilities under the RERA Act and the contractual terms do not have an overriding effect ........... Neutral Citation No. - 2023:AHC-LKO:76514
Page 1 of 94
A.F.R.
Neutral Citation No. - 2023:AHC-LKO:76514
RESERVED
Court No. - 30
(1) Case :- RERA APPEAL No. - 67 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lucknow Thru.
Its Executive Engineer Construction Division
Respondent :- Dhruv Kumar Chaturvedi
Counsel for Appellant :- Umesh Chandra Pandey
Connected With
(2) Case :- RERA APPEAL No. - 68 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Thru. Housing
Commissioner, Lucknow
Respondent :- Arun Kumar Dwivedi
Counsel for Appellant :- Shikhar Srivastava
With
(3) Case :- RERA APPEAL No. - 69 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad Lko. Thru. Its
Add. Housing Commissioner/Secy. Niraj Shukla
Respondent :- Pramod Kumar
Counsel for Appellant :- Umesh Chandra Pandey
With
(4) Case :- RERA APPEAL No. - 70 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Add.
Housing Commissioner/Secy. Niraj Shukla
Respondent :- Mahendra Yadav
Counsel for Appellant :- Umesh Chandra Pandey
With
(5) Case :- RERA APPEAL No. - 71 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Add. Housing Commissioner/Secy. Niraj Shukla
Respondent :- Smt. Pooja Maurya
Counsel for Appellant :- Umesh Chandra Pandey
Counsel for Respondent :- Jay Krishna Shukla
With
(6) Case :- RERA APPEAL No. - 72 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Add. Housing Commissioner/Secy. Niraj Shukla
RERA Appeal No. 67 of 2023 and connected appeals
Page 2 of 94
Respondent :- Dinesh Kumar Singh
Counsel for Appellant :- Umesh Chandra Pandey
With
(7) Case :- RERA APPEAL No. - 73 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Add. Housing Commissioner/Secy. Niraj Shukla
Respondent :- Ku. Anju Prajapati
Counsel for Appellant :- Umesh Chandra Pandey
With
(8) Case :- RERA APPEAL No. - 74 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Ashish Kumar Verma
Counsel for Appellant :- Umesh Chandra Pandey
Counsel for Respondent :- Jay Krishna Shukla
With
(9) Case :- RERA APPEAL No. - 75 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Navin Prakash Singh
Counsel for Appellant :- Umesh Chandra Pandey
With
(10) Case :- RERA APPEAL No. - 76 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Mahesh Tiwari
Counsel for Appellant :- Umesh Chandra Pandey
Counsel for Respondent :- Jay Krishna Shukla
With
(11) Case :- RERA APPEAL No. - 77 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Anant Kumar
Counsel for Appellant :- Umesh Chandra Pandey
Counsel for Respondent :- Jay Krishna Shukla
With
(12) Case :- RERA APPEAL No. - 78 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
RERA Appeal No. 67 of 2023 and connected appeals
Page 3 of 94
Addl. Housing Commissioner/Secretary
Respondent :- Vivek Srivastava
Counsel for Appellant :- Umesh Chandra Pandey
With
(13) Case :- RERA APPEAL No. - 79 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Ajitabh Singh
Counsel for Appellant :- Umesh Chandra Pandey
With
(14) Case :- RERA APPEAL No. - 80 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Smt. Sunita Singh
Counsel for Appellant :- Umesh Chandra Pandey
With
(15) Case :- RERA APPEAL No. - 81 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
Respondent :- Presiding Officer Real Estate Appellate
Tribunal, Lko. And 2 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(16) Case :- RERA APPEAL No. - 82 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secy. Niraj Shukla
Respondent :- Vinay Kumar Patel
Counsel for Appellant :- Umesh Chandra Pandey
With
(17) Case :- RERA APPEAL No. - 83 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad, Lko. Thru. Addl.
Housing Commissioner/Secy.
Respondent :- Amit Kumar Pandey
Counsel for Appellant :- Umesh Chandra Pandey
With
(18) Case :- RERA APPEAL No. - 84 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad,Lko. Thru. Its
Addl. Housing Commissioner/Secretary
RERA Appeal No. 67 of 2023 and connected appeals
Page 4 of 94
Respondent :- Abhishek Kr. Gupta
Counsel for Appellant :- Umesh Chandra Pandey
With
(19) Case :- RERA APPEAL No. - 85 of 2023
Appellant :- U.P. Avas Evam Vikas Parishad Lko. Thru. Addl.
Housing Commissioner/Secy.
Respondent :- Hanumant Prasad
Counsel for Appellant :- Umesh Chandra Pandey
With
(20) Case :- RERA APPEAL No. - 86 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Thru. Housing
Commissioner Lko.
Respondent :- Satya Narayan Agnihotri
Counsel for Appellant :- Shikhar Srivastava
Counsel for Respondent :- Lalta Prasad Misra,Dwijendra
Mishra
With
(21) Case :- RERA APPEAL No. - 87 of 2023
Appellant :- U.P. Avas Evam Parishad,Lko. Thru. Addl.
Housing Commissioner/ Secy.
Respondent :- Manoj Kumar Chaturvedi
Counsel for Appellant :- Umesh Chandra Pandey
With
(22) Case :- RERA APPEAL No. - 88 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorized Singnatory Pankaj Verma
Respondent :- Presding Officer Real Estate Appellate Tribunal,
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(23) Case :- RERA APPEAL No. - 89 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad,Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate.
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
Counsel for Respondent :- Pradeep Kumar Singh
With
RERA Appeal No. 67 of 2023 and connected appeals
Page 5 of 94
(24) Case :- RERA APPEAL No. - 90 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(25) Case :- RERA APPEAL No. - 91 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Auth.
Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(26) Case :- RERA APPEAL No. - 92 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Addl.
Housing Commissioner Dr. Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 3 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(27) Case :- RERA APPEAL No. - 93 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko.Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(28) Case :- RERA APPEAL No. - 94 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Dr.
Neeraj Shukla Addl. Housing Commissioner
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(29) Case :- RERA APPEAL No. - 95 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Dr.
Neeraj Shukla, Addl. Housing Commissioner
Respondent :- Presiding Officer Real Estate Appellate
RERA Appeal No. 67 of 2023 and connected appeals
Page 6 of 94
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(30) Case :- RERA APPEAL No. - 96 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authority, Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(31) Case :- RERA APPEAL No. - 97 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Offcer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(32) Case :- RERA APPEAL No. - 98 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad, Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. Thru. Secy. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(33) Case :- RERA APPEAL No. - 99 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh
With
(34) Case :- RERA APPEAL No. - 100 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad, Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
RERA Appeal No. 67 of 2023 and connected appeals
Page 7 of 94
(35) Case :- RERA APPEAL No. - 101 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(36) Case :- RERA APPEAL No. - 102 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad, Lko. Thru. Its
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Utkarsh Kumar,Anurag Singh
With
(37) Case :- RERA APPEAL No. - 103 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad, Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(38) Case :- RERA APPEAL No. - 104 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Authorize Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate
Tribunal, Lko. And 2 Others
Counsel for Appellant :- Utkarsh Kumar,Anurag Singh
With
(39) Case :- RERA APPEAL No. - 105 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru.
Housing Commissioner Dr. Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
Counsel for Respondent :- Santosh Kumar Bhatt
With
(40) Case :- RERA APPEAL No. - 106 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad, Lko. Thru. Addl.
Housing Commissioner Dr. Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate
RERA Appeal No. 67 of 2023 and connected appeals
Page 8 of 94
Tribunal, Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(41) Case :- RERA APPEAL No. - 107 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Addl.
Housing Commissioner Dr.Neerj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunla
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(42) Case :- RERA APPEAL No. - 108 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Addl.
Housing Commissioner Dr. Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Anurag Singh,Utkarsh Kumar
With
(43) Case :- RERA APPEAL No. - 109 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Addl.
Housing Commissioner Dr. Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And Others
Counsel for Appellant :- Utkarsh Kumar,Anurag Singh
With
(44) Case :- RERA APPEAL No. - 110 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Its
Authorized Signatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh
With
(45) Case :- RERA APPEAL No. - 111 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Its
Authorized Singnatory Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh
With
RERA Appeal No. 67 of 2023 and connected appeals
Page 9 of 94
(46) Case :- RERA APPEAL No. - 112 of 2023
Appellant :- U.P Awas Evam Vikas Paris. Lko. Thru. Its Auth.
Singna. Pankaj Verma
Respondent :- Presiding Offic. Real Estate Appel. Trib. Lko.
And 2 Other
Counsel for Appellant :- Anurag Singh
With
(47) Case :- RERA APPEAL No. - 113 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Dr.
Neeraj Shukla
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh
With
(48) Case :- RERA APPEAL No. - 114 of 2023
Appellant :- U.P Awas Evam Vikas Parishad Lko. Thru. Its
Author. Signa. Pankaj Verma
Respondent :- Presid. Offfi. Real Estate Appell. Tribu. Lko.
And 2 Other
Counsel for Appellant :- Anurag Singh
With
(49) Case :- RERA APPEAL No. - 115 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Autho.
Sign. Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate Tribunal
Lko. And 2 Others
Counsel for Appellant :- Anurag Singh
With
(50) Case :- RERA APPEAL No. - 116 of 2023
Appellant :- U.P Awas Evam Vikas Parishad Lko. Thru. Its
Author. Signa. Pankaj Verma
Respondent :- Presid. Offic. Real Eatate Appell. Trib. Lko.
And 2 Other
Counsel for Appellant :- Anurag Singh
With
(51) Case :- RERA APPEAL No. - 117 of 2023
Appellant :- U.P. Awas Evam Vikas Parishad Lko. Thru. Autho.
Sign. Pankaj Verma
Respondent :- Presiding Officer Real Estate Appellate
RERA Appeal No. 67 of 2023 and connected appeals
Page 10 of 94
Tribunallko. And 2 Others
Counsel for Appellant :- Anurag Singh
Hon’ble Om Prakash Shukla, J.
(1) At the outset, this Court deem it apt to divide the judgment into
sections to facilitate analysis, which are as follows :-
INDEX PAGE NO
A. Introduction 11
B. Decision in RERA Appeal Nos. 67, 69, 70,
71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 82,
83, 84, 85, 87 of 2023
12
C. Decision in RERA Appeal No. 68 of 2023 54
D Decision in RERA Appeal No. 81 of 2023 56
E. Decision in RERA Appeal No. 86 of 2023 58
F. Decision in RERA Appeal Nos. 88, 89, 90,
91, 93, 96, 97, 98, 99, 100, 101, 102, 103,
104 of 2023
61
G. Decision in RERA Appeal No. 92 of 2023 66
H. Decision in RERA Appeal No. 94 of 2023 69
I. Decision in RERA Appeal No. 95 of 2023 73
J. Decision in RERA Appeal No. 105 of 2023 76
K. Decision in RERA Appeal No. 106 of 2023 79
RERA Appeal No. 67 of 2023 and connected appeals
Page 11 of 94
L. Decision in RERA Appeal No. 107 of 2023 81
M. Decision in RERA Appeal Nos. 108, 109 of
2023
85
N. Decision in RERA Appeal Nos. 110, 111,
112, 113, 114, 115, 116, 117 of 2023
89
A. Introduction
(2) Heard Shri Anurag Singh, Shri Umesh Chandra Pandey and
Shri Shikhar Srivastava, learned Counsel representing the
appellant and Shri Pradeep Kumar Singh and Shri Santosh
Kumar Bhatt, learned Counsel representing the respondent.
(3) The above-captioned appeals have been filed by the appellant-
“U.P Avas Evam Vikas Parishad” under Section 58 of the Real
Estate (Regulation and Development) Act, 2016 (hereinafter
referred to as “RERA Act, 2016”), wherein by virtue of the
impugned order, the learned U.P. Real Estate Appellate
Tribunal, Lucknow (hereinafter referred to as the ‘Tribunal’)
has dismissed appeals filed by the appellant and it has been
directed that the amount deposited in terms of Section 43 (5) of
the RERA Act, 2016 by the appellant to be transferred to the
concerned account of the Regulatory Authority for disposal as
per the provisions of the Act.
RERA Appeal No. 67 of 2023 and connected appeals
Page 12 of 94
(4) Due to reasons recorded by this Court in its earlier order dated
28.1.2023, the delay in filing of these appeals has already been
condoned and as such these bunch of appeals were heard
together for their disposal on merits.
B. RERA Appeal Nos. 67, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79,
80, 82, 83, 84, 85, 87 of 2023
(5) These appeals arise out of the common judgment/order dated
25.11.2022 passed by the learned Appellate Tribunal.
(6) Since common question of law has been raised by the appellant
in all these appeals, it would be in the interest of justice that all
these appeals are consolidated and taken together for hearing
and disposal. However, before this Court deals with the
question of law raised in these appeals, the brief facts
culminating into these appeals be narrated to appreciate the law
in its proper perspective. In this regard, the facts of the lead
matter being RERA Appeal No. 67 of 2023 (complainantDhruv Kr. Chaturvedi) is taken into consideration.
Factual Matrix
(7) It has been submitted that the appellant is a public institution
constituted under the provisions of U.P Avas Evam Vikas
Adhiniyam, 1973 (hereinafter referred to as ‘Adhiniyam,
1973’) and is an instrumentality of State which works on ‘no
profit and no loss’ basis. The appellant had been constituted for
the welfare of the public and is engaged in providing planned
RERA Appeal No. 67 of 2023 and connected appeals
Page 13 of 94
development of the city and answering to the residential needs
of the public at large in a regularised manner.
(8) It is claimed that the appellant has acquired the land for
development of housing projects under the provisions of U.P
Awas Evam Vikas Adhiniyam and the provisions of Land
Acquisition Act, 1894 as provided under law. It is the case of
the appellant that a Scheme was launched in Vrindavan Yojna
and after delivery of possession made by the Land Acquisition
in the year 2011 and during the project was to be in progress, a
new Act, namely, “The Right of Fair Compensation &
Rehabilitation Act, 2013” came into force, which caused
various hindrances in meaningful acquisition of the land and as
such some delay has occurred in the said project, which was
beyond the control of the appellant.
(9) It appears that registration for allotments of flats were opened
by the appellant for Vrindavan Yojna, Nilgiri Enclave under
self-finance scheme for a housing colony of 640 flats in March,
2013 and, as such, on an application by the respondent
(complainant before the authority), the appellant allotted a Flat
to the respondent on 31.08.2013 for an estimated sale
consideration of Rs. 20,88,000/-. As per the respondent, the
said amount of sale consideration was payable in installments
and the possession was to be given by the appellant within 24
months. However, the appellant failed to offer for possession to
RERA Appeal No. 67 of 2023 and connected appeals
Page 14 of 94
the respondent within the said stipulated time period, which
resulted in increase in the Flat price and additional burden of
GST was made applicable to him. It was the case of the
respondent before the Authority that although he had regularly
paid all the installments, however. as per the registration
booklet, no windows in the Flat, no car parking, no sewage and
no other facilities were made available to him and most
importantly the possession was delayed.
(10) Admittedly, the sale deed for the said Flat was executed on
08.12.2017 and possession was given on 27.01.2018 and the
complaint was filed almost after one year of taking possession
by the respondent on various grounds including delay of
delivering possession of the flats, no windows in flats, parking
issue etc.
(11) On the other hand, the appellant took a ground before the
authority that the price of the flat was not fixed and was merely
tentative and similarly 24 months of possession was a tentative
date. According to them, construction was delayed because of
pendency of litigation in the High Court being Writ Petition No.
110 of 11 and 3869 of 11. Further delay was because of dharna
pradarshan of farmer’s union, for which a report/complaint was
also filed by the appellant. According to the appellant, the
registration booklet also mentions that in case the
respondent/allottee pays the last installment and still is not
RERA Appeal No. 67 of 2023 and connected appeals
Page 15 of 94
given the possession of the flat, he was well within his right to
demand for refund of money, which in this case has not been
done by the respondent/allottee, meaning thereby that they have
volunteered to waive off their right to award of any
compensation. The appellant also stated before the authority
that the claim for compensation for delay under Section 12, 14,
18 and 19 of the Adhiniyam, 1973 was not maintainable.
According to them, window has been provided and car parking
has also been given.
(12) An objection was raised by the appellant before the Authority
as to the maintainability of the complaint, wherein the
Authority transferred the said compliant to the Adjudicating
Officer under Section 71 of the Act, 1973 for determination of
compensation for delay and other issues etc.
(13) The Adjudicating Authority, after discussing the contention of
both the parties in great detail, returned a finding dated
11.02.2021 that there had been a delay in giving the possession
of flat by the appellant. Thus, the authority, while accepting the
complaint of the respondent, directed the appellant to pay
interest as compensation on the amount of Flat i.e Rs.
20,88,000/- for the period of delay between 31.08.2015 to
18.08.2017 at the rate of MCLR+1% per annum within 45 days
of the passing of orders. Further direction was that in case the
said amount of compensation in the form of Interest is not paid
RERA Appeal No. 67 of 2023 and connected appeals
Page 16 of 94
within the said 45 days, the respondent would be entitled for
interest at the same rate till the receipt of actual amount from
appellant.
(14) The appellant being aggrieved by the aforesaid order of the
Adjudicating Authority filed an appeal under Section 44 of the
RERA Act, 2016 before the Appellate Tribunal.
(15) The said appeal was taken for hearing along with 22 other
appeals, lead matter being Appeal No. 245 of 2020 (U.P Avas
Evam Vikas Parishad V/s Sangeeta Singh), wherein the
Appellate Tribunal painstakingly prepared a tabular chart of the
pending 23 appeals, giving brief description of the flat allotted,
date of allotment, total price paid, date of impugned order, date
of filing of appeal and the relief sought in each appeal.
(16) The Appellate Tribunal having recorded the facts of each appeal
in a tabular form, went on to narrate the brief facts of the lead
appeal and the grounds preferred by the appellant along with
the relief sought. Further, the objection against the appeal by
the respondent was also noted by the Appellate Tribunal along
with the relevant judgments. Apparently, the Appellate Tribunal
after discussing the various issues raised by the appellant as
well as the respondent, rejected the appeal vide the common
impugned order dated 25.11.2022 along with almost 22 other
appeals on the same issue. It is this order which is subject
matter of challenge in these appeals.
RERA Appeal No. 67 of 2023 and connected appeals
Page 17 of 94
Contention of the parties
(17) The learned Counsel for the appellant has strenuously argued
that the impugned order has been passed without considering
the fact that any claim under the RERA Act can be raised or
compensation can be granted only on the basis of contract
existing between the parties. According to him, after execution
of the sale deed, the prior contract of year 2013 having been
extinguished, the complaint itself was not maintainable and as
such he has argued that the impugned order has been passed
without any jurisdiction. The learned Counsel as an extension
of his argument has cited judgments of the National Consumer
Disputes Redressal Commission (NCDRC) to suggest that the
complaint before the RERA was not maintainable of the
respondent/allottee, in case he had taken possession with an
open eye and without raising any objection. Further, grounds
were agitated relating to non-applicability of Section 18 of the
RERA Act, 2016 relating to grant of interest or compensation as
there existed no privity of contract between the parties. Further
thrust of the argument of the learned Counsel for the appellant
were on the issue that when the allotment was made at a
tentative rate subject to calculation of final cost, there could not
had been any question about revised higher rates.
(18) Thus, the learned Counsel has attacked the impugned order
from all four corners and has also buttressed to frame almost six
RERA Appeal No. 67 of 2023 and connected appeals
Page 18 of 94
substantial question of law, as could also be found in the memo
of appeals.
(19) Per contra, the learned Counsel for the respondent/allotee has
supported the impugned judgment. According to him, there is
no substantial question of law involved in the present appeal
and as such he has prayed for dismissal of the present appeal.
Discussion & Findings
(20) Before this Court embarks on to the onerous path of deciding
the present bunch of appeals, it would be apt to consider the
scope and purport of the provision of law under which these
appeals have been sought to be preferred by the appellant.
Admittedly, these appeals have been filed under section 58 of
the RERA Act, 2016, which inter-alia states :-
"58. Appeal to High Court-(1) Any
person aggrieved by any decision or order of
the Appellate Tribunal, may, file an appeal
to the High Court, within a period of sixty
days from the date of communication of the
decision or order of the Appellate Tribunal,
to him, on any one or more of the grounds
specified in Section 100 of the Code of Civil
Procedure, 1908:
Provided that the High Court may entertain
the appeal after the expiry of the said period
of sixty days, if it is satisfied that the
appellant was prevented by sufficient cause
from preferring the appeal in time.
Explanation-The expression "High Court"
means the High Court of a State or Union
territory where the real estate project is
situated.
RERA Appeal No. 67 of 2023 and connected appeals
Page 19 of 94
(2) No appeal shall lie against any
decision or order made by the Appellate
Tribunal with the consent of the parties."
(21) A plain reading of the aforesaid provision although sufficiently
provides for an appeal against the decision or order of the
Appellate Tribunal on any one and more grounds specified in
Section 100 of the Code of Civil Procedure, however, the word
“Second Appeal” is missing from the aforesaid Section 58 of
the Act. In any case, the very mention of the availability of
grounds as specified in Section 100 of CPC makes the said
provision of the CPC relevant for consideration of any appeal
under Section 58 of the RERA Act, especially when technically
it is an appeal against an Appellate Tribunal’s decision or order
and in that sense is virtually a second appeal. It would be
profitable at this stage to quote Section 100 C.P.C, which reads
as under:
"100.Second appeal-(1) Save as otherwise
expressly provided in the body of this Code
or by any other law for the time being in
force, an appeal shall lie to the High Court
from every decree passed in appeal by any
Court subordinate to the High Court, if the
High Court is satisfied that the case
involves a substantial question of law.
(2) An appeal may lie under this section
from an appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely
state the substantial question of law
involved in the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in
any case, it shall formulate that question.
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(5) The appeal shall be heard on the
question so formulated and the respondent
shall, at the hearing of the appeal, be
allowed to argue that the case does not
involve such question:
Provided that nothing in this sub-section
shall be deemed to take away or abridge
the power of the Court to hear, for reasons
to be recorded, the appeal on any other
substantial question of law, not formulated
by it, if it is satisfied that the case involves
such question.]”
(22) There is no gainsaying that a right to appeal is always conferred
by the statute and any party does not have an inherent right to
appeal. In the present case, it has been mentioned that an appeal
under Section 58 of the RERA Act can be preferred on one or
more grounds specified in Section 100 CPC. Apparently,
Section 100 CPC provides for an appeal to the High Court, if it
is satisfied that the case involves a substantial question of law.
Thus, it can be safely deduced that the existence of substantial
question of law is sine quo non for the exercise of jurisdiction
under Section 100 of the CPC as well as Section 58 of the
RERA Act.
(23) The principles for deciding when a question of law becomes a
substantial question of law, have been enunciated by a
Constitution Bench of the Apex Court in Sir Chunilal v. Mehta
& Sons Ltd. v. Century Spg. & Mfg. Co. Ltd : AIR 1962 SC
1314 wherein it was held :-
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“The proper test for determining whether a
question of law raised in the case is
substantial would, in our opinion, be
whether it is of general public importance
or whether it directly and substantially
affects the rights of the parties and if so
whether it is either an open question in the
sense that it is not finally settled by this
Court or by the Privy Council or by the
Federal Court or is not free from difficulty or
calls for discussion of alternative views. If
the question is settled by the highest court
or the general principles to be applied in
determining the question are well settled
and there is a mere question of applying
those principles or that the plea raised is
palpably absurd the question would not be
a substantial question of law.”
(24) Although, under Section 58 of the RERA Act, the jurisdiction
of this Court is confined to substantial question of law, which as
a corollary means that a finding of fact is not open to challenge
in this proceeding, even if the appreciation of evidence is
palpably erroneous and the finding of fact is incorrect as has
been held by the Apex Court in Ramchandra Vs.
Ramalingam: AIR 1963 SC 302, however the same is always
to the exceptions that (i) the conclusions drawn by the court
below do not have a basis in the evidence led or (ii) the
appreciation of evidence “suffers from material irregularity”.
(25) Recently, the Apex Court in the case of Nazir Mohamed V/s J.
Kamala and Ors. : (2020) 19 SCC 57 at paragraph 37
formulated the principles relating to Section 100 CPC as to how
and in what circumstances the substantial question of law can
be framed in the following words :-
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“37. The principles relating to Section 100
CPC relevant for this case may be
summarised thus:
An inference of fact from the recitals or
contents of a document is a question of
fact, but the legal effect of the terms of a
document is a question of law.
Construction of a document, involving the
application of any principle of law, is also a
question of law. Therefore, when there is
misconstruction of a document or wrong
application of a principle of law in
construing a document, it gives rise to a
question of law.
The High Court should be satisfied that the
case involves a substantial question of law,
and not a mere question of law. A question
of law having a material bearing on the
decision of the case (that is, a question,
answer to which affects the rights of parties
to the suit) will be a substantial question of
law, if it is not covered by any specific
provisions of law or settled legal principle
emerging from binding precedents, and,
involves a debatable legal issue.
A substantial question of law will also arise
in a contrary situation, where the legal
position is clear, either on account of
express provisions of law or binding
precedents, but the Court below has
decided the matter, either ignoring or acting
contrary to such legal principle. In the
second type of cases, the substantial
question of law arises not because the law
is still debatable, but because the decision
rendered on a material question, violates
the settled position of law.
The general rule is, that High Court will not
interfere with the concurrent findings of the
Courts below. But it is not an absolute rule.
Some of the well-recognised exceptions
are where (i) the courts below have ignored
material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences
from proved facts by applying the law
erroneously; or (iii) the courts have wrongly
cast the burden of proof. A decision based
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on no evidence, does not refer only to
cases where there is a total dearth of
evidence, but also refers to case, where
the evidence, taken as a whole, is not
reasonably capable of supporting the
finding.”
(26) Having traced the scope and power of interference by this Court
under Section 58 of the RERA Act, 2016 to an order passed by
the Appellate Tribunal, this Court finds it profitable to quote the
various question of law as mentioned by the appellant in the
memo of appeal, so as to examine its relevance keeping in view
the limited scope of provisions of Section 58 of the RERA Act,
2016. The question of law framed by the appellant are thus :-
“ (a) Whether the order and judgment
impugned suffers from illegality on account
of improper consideration of material and
law as well as exercising the jurisdiction not
vested in it?
(b) Whether the order of the tribunal
upholding the order of adjudicating officer
can be just, legal and proper ignoring that
the complaint itself was not maintainable as
was filed much before to the RERA Act
came into force and was not an ongoing
project in view to rule 2(h)?
(c) Whether the impugned judgment and
order about awarding the interest of
compensation for delayed period, ignoring
that it was not due to fault of the appellant
can be just and liable to be set aside in
view of principles of force majeure?
(d) Whether after dismissal of complaint
by authority vide order dated 19.10.2019
the compensation or interest can be
awarded in view to section 12, 14 & 18 of
the Act and the order be held to be just and
proper.
(e) Whether in deciding all 18 appeals by
common order without considering the fact
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of each cases or appreciating the points
involved and argument made, the finding
can be held to be a speaking order and not
in violation to principles of natural Justice?
(f) Whether the finding of the impugned
judgment and order specially awarding
interest on delayed possession is being
contrary to the law laid down by Apex Court
is totally illegal arbitrary and is otherwise
not valid in the eyes of law hence liable to
be set-aside.”
(27) The aforesaid issues framed by the appellant apparently seems
to have been already decided by the Appellate Tribunal,
wherein the issues framed by the Tribunal subsumes the
question of law framed by the appellant in the present petitions.
Apparently, the Appellate Tribunal applauding the main aim of
the RERA Act is to protect the home buyers and also to make
sure that the investments in the field of the real estate industry
get uplifted with time had proceeded to answer these questions,
keeping in view that the RERA Act was brought in the scenario
to see to the fact that the sale to a Home buyer whether it be an
apartment or a plot transparently takes place between the
promoter/developer and the allotee/Home buyers.
(28) Now the Court proceeds to see whether the six ''substantial
questions of law”, as have been framed by the appellants, are
invoked ''substantially' or not, so as to invoke the jurisdiction of
this Court. A three Bench Judge of the Apex Court some more
than a decade ago in Santosh Hazari Vs. Purushottam
Tiwari: (2001) 3 SCC 179, which was also reiterated and
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followed in Chandrabhan v. Saraswati : 2022 SCC Online SC
1273 and Government of Kerala Vs Joseph : 2023 SCC
Online SC 961 had held that to constitute a substantial question
of law, (i) the issue should not be previously settled by law of
land or a binding precedent, (ii) the said issue should have
material bearing on the decision of the case and (iii) the issue
raised should not be a fresh point raised for the first time before
the High Court, unless it goes to the root of the matter.
(29) Although, this Court exercising its Jurisdiction under Section
58 of the RERA Act is not enthroned as a Second Appellate
body, however, a fiction has been created by the Section itself,
which cast a duty and somewhat provide an embargo on the
appellant to file an appeal under the said section on any one or
more of the grounds specified in Section 100 of the Code of
Civil Procedure, 1908. Thus, a restriction has been cast upon
the appellant to prefer the appeal on a limited ground of
“substantial question of law” and in that sense this Court could
be held to have exercising its power of Second Appeal under
Section 58 of the RERA as envisioned under Section 100 of the
Civil Procedure Code. Pertinently, no such restriction is
attributable to this Court of considering the present appeal only
on the point of substantial question of law.
(30) From perusal of the bunch of appeals being decided by this
common order, it comes out that the respondents in each of the
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cases have booked a flat with the U.P. Awas Evam Vikas
Parishad and paid a booking amount in terms of scheme floated
by the Parishad. Apparently, the respondents were allotted a flat
in Neelgiri Enclave (Vrindavan Yojna) during the period 2013-
2014. The Parishad, thereafter, demanded certain amount
towards allotted flats. The respondent claims to have submitted
the aforesaid amount as and when the demands were raised by
the Parishad. It is admitted that the possession of the flat was
supposed to be given within 30 months from the date of
allotment as per Clause 9.1 of the brochure. However, it was
only in 2017, that the respondents were asked to deposit the
final amount, so that the sale deed can be registered of the Flats
and it was subsequently only that the possession of these Flats
were given to the respondents. It is after having received the
possession and after registration of the sale deed, the
respondents filed a Complaint Case before the U.P. Real Estate
Regulatory Authority (hereinafter referred to as ''Authority')
claiming refund of certain excess amount, refund of interest,
compensation for delayed possession and other ancillary noncompliance of the RERA provisions relating to construction and
parking. Apparently, the complaint was allowed by the
Authority, wherein the Parishad was directed to pay interest on
the total amount of sale consideration paid till the date of
possession of the apartment at the rate of MCLR + 1% as
compensation. Subsequently, the Parishad filed various appeals
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before the Appellate Tribunal, which came to be decided by the
impugned common order dated 25.11.2022, by virtue of which
the order of the Authority was upheld and hence the present
second appeals.
(31) This Court has gone through the appeals filed by the Parishad
with assistance of the learned Counsel appearing for the
appellant and the alleged substantial questions of law.
(32) Having traced the principles of law for consideration of the
present appeal under Section 58 of the RERA Act, it is apparent
that none of the ''substantial' questions of law” as have been
framed by the appellant fall within the ambit of being
''substantial” questions of law. The reason for the same is that
the ''substantial” questions of law as have been framed by the
appellant are specifically covered by the specific provisions of
law as per the interpretation given to them and do not involve
any debatable legal issue as has been also held in Nazir
Mohamed Vs J. Kamala and Ors.: (2020) 19 SCC 57 at
paragraph 32, which inter-alia observes :-
“32. To be “substantial”, a question of law
must be debatable, not previously settled
by the law of the land or any binding
precedent, and must have a material
bearing on the decision of the case and/or
the rights of the parties before it, if
answered either way.”
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(33) The learned Counsel for the appellant has during the course of
his argument emphatically stressed on a recent order of the
learned RERA Appellate Tribunal passed in Appeal No. 70 of
2023 (GNIDA Vs. Ranjan Mishra) and two other connected
matters to argue that the RERA Tribunal has itself vide the said
judgment dated 20.04.2023 has held that the Adjudicating
Officer does not have the jurisdiction to grant interest in the
form of compensation under section 18(1) of the RERA Act and
that according to the learned Counsel, the Appellate Tribunal
has itself recorded in the said order that the competence and
jurisdiction of the Adjudicating Officer was being examined by
the Appellate Tribunal for the first time in the said case. While
the order of an Appellate Tribunal is not binding on this Court,
which has been designated as a Court of Second Appeal under
the scheme of RERA Act and even the judicial proprietary does
not permit this Court to consider the said order for adjudication
of these appeals, however, as is being discussed hereinafter, the
issue raised and decided in both the cases are at stark
differences.
(34) This Court on the specific query having put to the learned
Counsel for the appellant as to whether any ground had been
taken by him before the RERA Appellate Tribunal or before this
Hon’ble Court relating to the competence or jurisdiction of the
Adjudicating Authority for grant of interest as compensation
under Section 18(1) of the RERA Act, learned Counsel has
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neither admitted nor denied the said query and has instead
relied on the following judgments to buttress his submission
that a pure question of law, not dependent upon any question of
facts can be allowed to be raised for the first time even before
the Appellate Court.
(I) Chittoori Subbanna Vs Kudappa
Subbanna, AIR 1965 SC 1325,
(II) State of Punjab Vs Dr. R.N.
Bhatnagar & Ors. (1999) 2 SCC 330,
(III) T.C. Appanda Mudaliar Vs State of
Madras, (1976) 4 SCC 821,
(IV) Dr. Jagmittar Sain Bhagat Vs Dir. of
Health Services, (2013) 10 SCC 136,
(V) Saroj Rani Vs Sudarshan Kr.
Chadha (1984) 4 SCC 90,
(VI) State of Uttar Pradesh & others Vs
Dr. Anupam Gupta & Ors. (1993)
Suppl(1) SCC 594,
(VII) Lakshmi Shankar Mehrotra
& Ors. Vs S.M. Sengupta & Ors, (1995)
Suppl(4) SCC 40.
(35) There could not be any doubt about the aforesaid legal
precedent, however, as held in various judgment that a decision
is an authority for the questions of law determined by it and
while applying the ratio, the Court may not pick out a word or a
sentence from the judgment divorced from the context in which
the said question arose for consideration. Thus Court finds that
there is no quarrel about the proposition of law argued by the
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learned Counsel for the appellant, however, the fact of the
matter remains that jurisdiction is an issue, which ought to have
been decided at a preliminary stage itself.
(36) At this juncture, it would be apt to quote the question of
determination formulated by the learned RERA Appellate
Tribunal, which inter-alia enumerates as follows:
“ I. Whether the complaint filed before
the Adjudicating officer is maintainable as
cause of action arose in year, 2013 before
RERA Act, 2016 came into force as
pleaded by appellant- UP Avas evam Vikas
Parishad, Lucknow in its Appeal ? .
II. Whether the project in question of the
appellant- UP Avas evam Vikas Parishad,
Lucknow is delayed ?
III. Whether the judgment and order
dated 13.03.2020 passed by the
Adjudicating Officer awarding the interest in
terms of compensation to the respondent/
complainant for delayed period from
30.07.2016 to 24.09.2019 is liable to be set
aside for the reasons mentioned in
appeal?”
(37) Thus, apparently the issue of competence and jurisdiction was
neither raised by the appellant before the Appellate Tribunal,
nor the same has been raised in the present memo of appeals
filed in this Court.
(38) Moreover, there is another aspect of the matter. This Court de
hors the aforesaid belated challenge to the Jurisdiction by the
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appellant would had entertained the said challenge even at this
stage, however, a plain reading of the facts of the present case
leads one to the conclusion that both the matters are
distinguishable on facts.
(39) Apparently, it is available from the impugned order of the
Adjudicating Officer that the allottee had filed a complaint
seeking compensation for various reasons, including (i) relating
to delay in possession, (ii) there being no windows in the flat
and (iii) non-providing of parking area etc., wherein the RERA
Authority vide an order dated 19.10.2019 marked the said case
for adjudication to the said Adjudicating Officer because
Section 18 of the Act related to grant of interest as well as
compensation. The learned Adjudicating Officer after hearing
the parties and recording the findings came to a conclusion that
there had been a delay in providing possession to the allottee
during the period from 31.08.2015 to 18.08.2017 and as such
for that period granted compensation to be calculated as an
interest at the rate of SBI Home loan rate MCLR+ 1%
calculated annually. The Adjudicating Officer held that interest
amount would be the compensation granted.
(40) Thus, this Court finds that the Adjudicating Officer has awarded
compensation in the form of interest, which in this case is “SBI
Home loan rate MCLR+ 1% calculated annually”. This Court
needs not burden this judgement any further in explaining the
meaning of compensation, which may be both monetary as well
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as non-monetary, direct or indirect etc. In the present case,
apparently, it seems that the appellant is so engrossed with the
word “Interest” that it is not able to visualize interest and
compensation separately. Needless to say, interest is a sub-set
of compensation and not vice-versa. Further, a Division bench
of the Bombay High Court in the case of Neelkamal Realtors
Suburban Pvt. Ltd. And others Vs. Union of India : AIR
2018 (NOC) 398 (BOM.), while deciding the constitutionality
of various provisions of RERA, observed as follows :-
“Section 18(1)(b) lays down that if the
promoter fails to complete or is unable to
give possession of an apartment due to
discontinuance of his business as a
developer on account of suspension or
revocation of the registration under the Act
or for any other reason, he is 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 with interest at
such rate as may be prescribed in this
behalf including compensation. If the
allottee does not intend to withdraw from
the project he shall be paid by the promoter
interest for every month's delay till handing
over of the possession. The requirement to
pay interest is not a penalty as the payment
of interest is compensatory in nature in the
light of the delay suffered by the allottee
who has paid for his apartment but has not
received possession of it. The obligation
imposed on the promoter to pay interest till
such time as the apartment is handed over
to him is not unreasonable. The interest is
merely compensation for use of money.”
(41) In any case, the point being raised by the learned Counsel for
the appellant in challenging the jurisdiction of the Adjudicating
Authority vis-à-vis the RERA Authority for grant of interest for
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an allottee who wishes to remain invested with the project and
eventually takes the possession, is not under challenge, as
proviso to Section 18(1) clearly mandates 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. Therefore, by raising the point of jurisdiction, the
learned Counsel has waived to certain extent the grant of
interest, as the resurrected challenge is as to who can grant
interest, whether the Authority or the Adjudicating Officer. This
Court finds that the aforesaid challenge has been already
answered by the Apex Court at paragraph 86 of the judgment
reported as M/s Newtech Promoters and Developers Pvt.
Ltd. Vs. State of U.P (Civil Appeal No. 6745-6749 of 2021)
decided on 11.11.2021, which inter-alia states;
“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
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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, 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.”
(42) It is no gain saying that both RERA Authority and Adjudicating
Authority operates in different hemisphere, inasmuch as RERA
Authority is empowered to grant interest whereas Adjudicating
Authority is empowered to adjudge compensation and interest
and thus the jurisdiction of grant of Interest in the form of
compensation by the Adjudicating Authority for and in place of
the RERA Authority cannot be faulted with.
(43) Further, there is another aspect of the matter. An examination of
Section 71 of the Act reveals that an Adjudicating Officer is to
be appointed by the Regulatory Authority in consultation with
the Government. The Adjudicating Officer alone has the power
to deal with the application for adjudging compensation under
Section 71 read with Sections 12, 14, 18 and 19 of the Act as
could be well deduced on a simple reading of section 71(1) and
71(2) of the Act. However, Section 71(3) of the Act provides
that the Adjudicating Officer has powers to direct to pay such
compensation or interest, as the case may be, if he is satisfied
that the person has failed to comply with the provisions of any
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of the section as provided in subsection (1) i.e section 12, 14,
18 & 19 of the Act. as the case may, as much as subsection (3)
of section 18 of the Act, 2016 signifies that 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 allottee,
in the manner as provided under the Act, 2016. Moreover,
section 71 relating to factors to be taken into account by
adjudicating officer signifies various factors which are to be
taken into consideration by the Adjudicating Officer, while
adjudging the quantum of compensation or Interest as the case
may be under section 71 of the Act. Thus, the provisions of
RERA are wide enough to empower the adjudicating Officer to
adjudicate the quantum of compensation and grant the same in
the form of Interest as has been done in the present case.
(44) According to this Court, the challenge to the competence and
jurisdiction of the Adjudicating officer in the present set of facts
is wholly misplaced as the Adjudicating Officer has awarded
compensation in the form of interest and not interest simplicitor
as is being construed by the appellant, which according to him
is the prerogative of the RERA Authority. This Court also finds
that the Apex Court in the aforesaid M/s Newtech Promoters
and Developers Pvt. Ltd. (supra) has nowhere discussed the
form of compensation to be awarded to the allottee. Therefore,
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in the present case, in case the Adjudicating Officer has
awarded compensation in the form of Interest, nothing illegal or
infirmity could be found in the competence or Jurisdiction of
the Adjudicating Officer. The said finding also is being given
keeping in view the beneficial legislation for which RERA Act
was enacted by the legislation for safeguarding the interest of
Home Buyers by ensuring fair practice, providing timely
information and resolving disputes between an allottee and the
Developers.
(45) Having perused the records, this Court is of the view that no
substantial question of law arises in these petitions. In any case,
a perusal of the impugned judgment would reveal that the
Appellate Tribunal has not missed the woods of the tree and has
dealt all the issues which are being raised herein by the
Appellant in a very elaborate manner by following the
provisions of the Act 2016 and the various judgment of the
Apex Court in the said subject.
(46) Notwithstanding the above, as the memo of appeal has been
preferred and since the counsel for the appellant has strenuously
urged this Court to decide on the substantial question of law
framed by him in the appeal, this Court finds its bounden duty
to deal with these question (which has been termed by the
Appellant as substantial question of law) as has been
enumerated in the memo of appeal.
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(47) Having regard to the question No. 1 i.e. “ (a)Whether the order
and judgment impugned suffers from illegality on account of
improper consideration of material and law as well as
exercising the jurisdiction not vested in it?, learned counsel for
the appellant is unable to show from records as to how the
impugned judgment suffers from any illegality and as to which
specific material or law has been improperly considered by the
Appellate Tribunal. Learned Counsel has drawn attention of this
Court to the provisions of Section 44 of the RERA Act in
general which bestows the jurisdiction of appeal to the
Appellate Tribunal and specifically Section 44(6) of the Act,
which inter-alia gives sweeping power of jurisdiction vested in
it as it says as under:-
“(6) The Appellate Tribunal may, for the
purpose of examining the legality or
propriety or correctness of any order or
decision of the Authority or the adjudicating
officer, on its own motion or otherwise, call
for the records relevant to deposing of such
appeal and make such orders as it thinks
fit.”
(48) This Court finds that the Appellate Tribunal after narrating the
facts and grounds of the contesting parties, went on to
formulate the following points for determination:
“(I) whether the complaint filed before the
Adjudicating Officer is maintainable as
cause of action arose in year, 2013 before
RERA Act, 2016 came into force as
pleaded by appellant- U.P Avas evam Vikas
Parishad, Lukcknow in its Appeal?
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(II) Whether the project in question of the
Appellant- U.P Avas evam Vikas Parishad,
Lukcknow is delayed?
(III) Whether the judgment and order
dated 13.03.2020 passed by the
Adjudicating Officer awarding the interest in
terms of compensation to the respondent/
complainant for delayed period from
30.07.2016 to 24.09.2019 is liable to be set
aside for the reasons mentioned in
appeal?”
(49) As far as the first issue is concerned, the Appellate Tribunal
extensively recorded the facts and returned a finding that
although the scheme was floated by the appellant in 2013 and
the respondent booked a flat in the same year and the RERA
Act, 2016 came into force on 1st May, 2016, however the
project being an “Ongoing project” before 24.09.2019 i.e the
date when Antim Pradeshan Patra was issued by the Appellant
for delivery of possession by them to the Respondent, the
provisions of RERA were applicable to the project in view of
Rule 2(h) of the U.P Real Estate ( Regulation & Development)
Rules, 2016.
(50) This Court finds that the Appellate Tribunal has returned the
aforesaid finding, after examining the expression and meaning
of “ongoing project” as is to be found in Rule 2(h) of U.P Real
Estate ( Regulation & Development) Rules, 2016, Completion
certificate as is defined in section 2(q) of the RERA Act, 2016,
section 4(5) of the U.P Apartment (promotion of construction,
Ownership and Maintenance) Act, 2010 relating to the
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requirement of “Completion Certificate” and “Occupancy
certificate” as defined in section 2(zf) of the RERA Act, 2016.
(51) Further, as far as the second issue relating to the delay in the
project, the Appellate Tribunal examined the provisions of
clause 2.1 of the Registration Booklet relating to the date of
possession proposed by the Appellant and the actual date of
possession and after referring to the judgment of the Hon’ble
Supreme Court in M/s Fortune(now known as HICON
Infrastructure) and Anr. V/s Trevor D’lima & Ors. : (2018)
5 SCC 442, wherein it was held that a person cannot be made to
wait indefinitely, concluded that the project of the Appellant
was delayed.
(52) The Appellate Tribunal, while deciding the third point for
determination, cited the provisions of Clauses 2.1 and 9.1 of the
Registration Booklet along with Clauses 4.5 and 4.6 of the
Registration Booklet. Apparently, the Appellate Tribunal after
examining the various judgment including Lucknow
Development Authority Vs M.K. Gupta, 1994 (91) SCC 243,
Ghaziabad Development Authority V/s Balbir Singh, 2004
(5) SCC 65, Haryana Development Authority V/s Darsh
Kumar, 2005 (9) SCC 449 and also Ghaziabad Development
Authority V/s Union of India, 2000 (6) SCC 113 along with
Bangalore Development Authority V/s Syndicate Bank
reported in II (2007) CPJ 17 (SC) arrived at a conclusion that
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the tentative period or proposed period for construction of the
flat does not mean a “unreasonable period”. The Appellate
Tribunal also recording that the possession of the flat was not
given as per the proposed timeline of possession as mentioned
in the Registration Booklet and the possession came to be given
by the appellant much later. Thus, the Appellate Tribunal
upheld the finding of the Adjudicating Authority by holding that
the Authority had adopted a moderate view and has considered
the delay from the proposed expiry of the date of possession to
the date of issuance of Antim pradeshan patra by the Appellant
and not the execution of the sale deed, which ought to have
been the actual date of delivery of possession and as such held
the calculation for delay in possession by the Authority to be
not for an unreasonable period.
(53) As far as the other issues relating to failure of the appellant to
rectify the structural defects and common facilities, in violation
of Section 14 of the RERA Act, 2016 and the entitlement of
compensation by the respondent in addition to the delay in
possession as contended by the Respondent, the Appellant
argued that in case of delay in giving possession of the flat,
within prescribed period, the option was open to the
allottee/respondent to claim refund of the deposited amount at
the prescribed rate of interest and if despite the delay the
allottee preferred for possession of the flat rather than refund of
the deposited amount, the allottee’s right to claim
RERA Appeal No. 67 of 2023 and connected appeals
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interest/compensation did not existed, especially when after
execution of sale deed in favour of the allottee/respondent, the
question of any structural defect does not arise.
(54) This Court finds that the Appellate Tribunal has extensively
dealt with the aforesaid issue in the impugned order and while
referring to Chapter III of the RERA Act, 2016 comprising of
Sections 12 to 18 dealing with functions and duties of
promoters has recorded a finding that Section 71 of the Act
entails that in contravention of the provisions of section 12, 14,
18 and 19(4) by the promoter, the allottee is well within his
rights to get refund of his/her entire deposited amount along
interest “ as such rate as may be prescribed” and “compensation
in the manner provided under the Act”.
(55) The Appellate Tribunal also upheld the findings of the
Adjudicating Authority to the effect that if the amount of
interest was not paid within a period of 45 days, the respondent
was entitled to get interest at the same rate till the date of actual
payment, to be a means of check upon the appellant to honour
the time-line within which the awarded amount of interest had
been directed to be paid to the respondent/allottee. Even the last
submission of the appellant related to financial crisis and
running of the project on “no loss and no profit basis” to justify
that the interest was not payable for delayed period was rejected
on the ground that the same was immaterial and the award of
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interest in the case of delayed possession was as per the
provision of the RERA Act.
(56) Thus, a well-reasoned and detailed judgment was passed by the
Appellate Tribunal, wherein all the Appeals filed by the
Appellant was dismissed.
(57) The Appellate Tribunal examined the evidence on record at
length, and arrived at a reasoned conclusion, that there was a
delay in handing over of the possession of the project to the
respondent. This finding is based on cogent and binding
documents of Registration Document, occupation certificate,
including the registered sale deeds by which the respective
allottees have taken possession of the flats. There was no
erroneous inference from any proved fact.
(58) The learned Counsel was not able to produce any judgment to
espouse its cause of challenging the jurisdiction allegedly not
having been vested with the Appellate Tribunal.
(59) In view thereof, this Court is of the view that the order and
judgment impugned does not suffers from any illegality or
infirmity. There is no alleged improper consideration of
material and law nor the Tribunal has exercised its jurisdiction
not specifically vested by the provisions of RERA Act.
(60) As far as Question No.2 i.e. “(b) Whether the order of the
tribunal upholding the order of adjudicating officer can be just,
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legal and proper ignoring that the complaint itself was not
maintainable as was filed much before to the RERA Act came
into force and was not an ongoing project in view to rule 2(h)?
is concerned, this Court finds that admittedly, the completion
certificate has been issued to the Project after the
commencement of the RERA Act, 2016 and the sale deed and
possession has been granted in the year 2017-2018. Besides the
fact that the said issue has been extensively dealt with and
decided by the Appellate Tribunal as issue No.1, this court finds
that the said issue has already been settled by the Apex Court in
various judgments including in the case of M/s. Newtech
Promoters and Developers Pvt. Ltd. Vs. State of UP & Ors.
(supra). The Apex Court, while deciding the issue as to
whether the RERA Act has retroactive or retrospective effect,
held that the Act is not retrospective in nature because it affects
the existing rights of the persons mentioned in the Act like
promoters, allotees etc. and the intent of the legislature was to
bring all "ongoing projects"2 which commenced prior to the Act
and for which the completion certificate had not been issued,
under the ambit of the Act. The relevant observation could be
found at paragraph 34 to 40, which are being curled out for
ready reference :-
“34. The term “ongoing project” has not
been so defined under the Act while the
expression “real estate project” is defined
under Section 2 (zn) of the Act which reads
as under:
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“2(zn) “real estate project” means the
development of a building or a building
consisting of apartments, or converting an
existing building or a part thereof into
apartments, or the development of land
into plots or apartments, as the case may
be, for the purpose of selling all or some of
the said apartments or plots or building, as
the case may be, and includes the
common areas, the development works, all
improvements and structures thereon, and
all easement, rights and appurtenances
belonging thereto;”
35. The Act is intended to comply even to
the ongoing real estate project. The
expression “ongoing project” has been
defined under Rule 2(h) of the Uttar
Pradesh Real Estate (Regulation and
Development) Rules, 2016 which reads as
under:-
“2(h) “Ongoing project” means a
project where development is going
on and for which completion
certificate has not been issued but
excludes such projects which fulfil
any of the following criteria on the
date of notification of these rules:
(i) Where services have been
handed over to the Local Authority
for maintenance.
(ii) where common areas and
facilities have been handed over to
the Association for the Residents'
Welfare Association for maintenance.
(iii) where all development work have
been completed and sale/lease
deeds of sixty percent of the
apartment/houses/plots have been
executed.
(iv) where all development works
have been completed and
application has been filed with the
competent authority for issue of
completion certificate.”
36. The expression “completion
certification” has been defined under
Section 2(q) and “occupancy certificate”
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under Section 2(zf) of the Act which reads
as under :-
“2(q) “completion certificate” means
the completion certificate, or such
other certificate, by whatever name
called, issued by the competent
authority certifying that the real
estate project has been developed
according to the sanctioned plan,
layout plan and specifications, as
approved by the competent authority
under the local laws;
2(zf). “occupancy certificate”
means the occupancy certificate, or
such other certificate, by whatever
name called, issued by the
competent authority permitting
occupation of any building, as
provided under local laws, which has
provision for civic infrastructure such
as water, sanitation and electricity;”
37. Looking to the scheme of Act 2016
and Section 3 in particular of which a
detailed discussion has been made, all
“ongoing projects” that commence prior to
the Act and in respect to which completion
certificate has not been issued are covered
under the Act. It manifests that the
legislative intent is to make the Act
applicable not only to the projects which
were yet to commence after the Act
became operational but also to bring under
its fold the ongoing projects and to protect
from its inception the inter se rights of the
stake holders, including allottees/home
buyers, promoters and real estate agents
while imposing certain duties and
responsibilities on each of them and to
regulate, administer and supervise the
unregulated real estate sector within the
fold of the real estate authority.
38. The emphasis of Mr. Kapil Sibal,
learned senior counsel for the appellant is
that the agreement of sale was executed in
the year 201011, i.e. much before the
coming into force of the Act and the
present Act has retrospective application
and registration of ongoing project under
the Act would be in contravention to the
contractual rights established between the
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promoter and allottee under the agreement
for sale executed which is impermissible in
law and further submits that Sections 13,
18(1), 19(4) of the Act 2016 to the extent of
their retrospective application is in violation
of Articles 14, 19(1)(g) of the Constitution
of India.
39. Mr. Tushar Mehta, learned Solicitor
General, on the other hand, submits that a
bare perusal of the object and reasons
manifest that the Act does not take away
the substantive jurisdiction, rather it
protects the interest of homebuyers where
project/possession is delayed and further
submits that the scheme of the Act has
retroactive application, which is permissible
under the law. The provisions make it clear
that it operates in future, however, its
operation is based upon the character and
status which have been done earlier and
the presumption against retrospectively in
this case is ex-facie rebuttable. The literal
interpretation of the statute manifest that it
has not made any distinction between the
“existing” real estate projects and “new”
real estate projects as has been defined
under Section 2(zn) of the Act.
40. Learned counsel further submits that
the key word, i.e., “ongoing on the date of
the commencement of this Act” by
necessary implication, exfacie and without
any ambiguity, means and includes those
projects which were ongoing and in cases
where only issuance of completion
certificate remained pending, legislature
intended that even those projects have to
be registered under the Act. Therefore, the
ambit of Act is to bring all projects under its
fold, provided that completion certificate
has not been issued. The case of the
appellant is based on “occupancy
certificate” and not of “completion
certificate”. In this context, learned counsel
submits that the said proviso ought to be
read with Section 3(2)(b), which specifically
excludes projects where completion
certificate has been received prior to the
commencement of the Act. Thus, those
projects under Section 3(2) need not be
registered under the Act and, therefore, the
intent of the Act hinges on whether or not a
project has received a completion
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certificate on the date of commencement of
the Act.”
(61) Since the Authority and the Appellate Authority have returned a
finding of fact that the completion certificate was issued on
20.12.2018, i.e much later than the date of commencement of
the RERA Act, 2016 and there is no contrary argument by the
learned Counsel for the appellant, the Appellate Tribunal was
right in holding that the present project was an “ongoing
project” and the complaint filed by the respondent was
maintainable. Thus, no substantial question of law arises as
neither the issue raised is debatable nor the same has not been
decided by a binding principle of the Hon’ble Apex Court.
(62) As far as the Question No.3 raised by the appellant is
concerned, which inter-alia states that “(c) Whether the
impugned judgment and order about awarding the interest of
compensation for delayed period, ignoring that it was not due
to fault of the appellant can be just and liable to be set aside in
view of principles of force majeure?, this Court finds that the
aforesaid is essentially a question of fact and there are two
concurrent findings against the appellant. The Appellate
Authority have elaborately dealt with the said aspect and while
deciding issue No.2 has returned a finding that the project was
delayed. Further, this court finds that the factum of farmer
agitation to be construed as force majeure was also considered
RERA Appeal No. 67 of 2023 and connected appeals
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by the Appellate Tribunal in extenso and has also discussed the
principles of force majeure.
(63) The Tribunal also discussed the issue as to whether famers
agitation would be termed as “Force Majeure” or not and while
citing the explanation appended to section 6 of the RERA Act,
2016 and discussing the expression “ Act of God” or “Vis
Major” and the Judgment of Ramalinga Nadar V/s Narayan
Reddiar, AIR 1971 Kerala 197 which dealt with the term “VisMajor”, returned a finding that the case at hand and situation
narrated by the Appellant could not be covered under the
meaning of “Force majeure”
(64) This court also does not find any reason to interfere with the
findings arrived by the Appellate Tribunal, which are based on
precedent and sound legal principles. Thus, the present question
does not give rise to any debatable point nor the issue being
raised is in the nature of substantial question of law.
(65) Having regard to question No. 4 raised by the Appellant i.e. (d)
whether after dismissal of complaint by authority vide order
dated 19.10.2019 the compensation or interest can be awarded
in view to section 12, 14 & 18 of the Act and the order be held
to be just and proper, this court finds that the aforesaid issue is
a misconceived perception of the Appellant. Apparently, the
respondent had filed a cumulative complaint relating to delay in
possession, no window in flat and no parking having been
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provided to him and as such has sought for compensation. The
authority vide order dated 19.10.2019 has partially rejected the
contention of the respondent relating to car parking and window
not having been provided in the Flat taking cognizance of
section 12 and 14 of RERA Act, however the Authority finding
a delay in giving of possession to the respondent had referred
the complaint for award of compensation & disposal under
section 71 of the RERA Act to the Adjudicating Authority.
(66) The Appellate Tribunal has rightly observed that section 12 to
18 deals with “Functions and Duties of Promoter” and
invariably relates to duties which have been imposed upon the
promoter. Further, section 71 of the Act clearly says that in
contravention of the provisions of section 12, 14, 18 and 19(4)
by the promoter, the allottee is well within his right to get
refund of his/her entire deposited amount along with interest “at
such rate as may be prescribed” and “compensation in the
manner provided under the Act”. It goes without saying that
Section 18(1) of the Act provides as under :-
“18(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
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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.”
(67) Thus, the said Section consists of two parts. Here this Court is
concerned with the second part, which invariably gives an
indefeasible right to the allottee in the case he does not intent to
withdraw from the project. The second part in clear and loud
terms say that the allottee in such a situation would be entitled
for interest for every month of delay, till the handing over of the
possession, at such rate as may be prescribed. Further, this court
finds that in order to determine the point of compensation the
power has been bestowed upon the adjudicating officer in terms
of section 71 & 72 of the RERA Act read with rule 34(1) of the
U.P RERA Rules, 2016. Thus, this also being a loosely
connection of fact and law does not qualify to be termed as
substantial question of law and as such needs no further
interference from this court.
(68) As far as question No. 5 i.e. (e) Whether in deciding all 18
appeals by common order without considering the fact of each
cases or appreciating the points involved and argument made,
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the finding can be held to be a speaking order and not in
violation to principles of natural Justice?, is concerned, this
Court finds that the Appellate Tribunal has painstakingly
recorded the facts of each case in a tabular chart at paragraph
No1 and has briefly given details of all the cases in the said
chart. Further, this court finds that although the facts relating to
flat no, sale consideration, project, allotment letter, final letter,
date of sale deed or date of possession might have been
different, but it is not the case of the Appellant that the
completion certificate in any of the case was not 20.12.2018 or
for that matter prior to the coming of force of the RERA Act. It
is also not the case of the Appellant that the duration of
completion of project was not 24/30 months but something
more or that the possession was given by them during the said
duration as provided in the registration booklet or that the
possession was not delayed. Apparently, the appellant has taken
a common defence in all the complaints filed by the respondent
and as such this court does not find any error of the Appellate
Tribunal in deciding these cases vide the present common
impugned order. In any case, this also does not qualify to be a
substantial question of law as has been projected by the
Appellant.
(69) The last question No. 6 as framed by the appellant i.e. (f)
whether the finding of the impugned judgment and order
specially awarding interest on delayed possession is being
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contrary to the law laid down by Apex Court is totally illegal
arbitrary and is otherwise not valid in the eyes of law hence
liable to be set-aside.” is concerned, a perusal of the order
passed by the Authority as well as the Tribunal would
sufficiently indicate that they have proceeded to grant
compensation in terms of provisions contained in Section 71
read with Section 72 of the RERA Act 2016.
(70) The learned Appellate Tribunal has also recorded in the
impugned order that the Adjudicating Officer has passed the
impugned order by exercising his power under section 71 and
71 of the Act read along with Rule 34(1) of the Rules, 2016.
Thus, the Tribunal while referring to the case reported as M/s
Imperia Structures Ltd. V/s Anil Patni and Another, Civil
Appeal Nos. 3581-3590 of 2020 decided on 02.11.2020 relating
to the choice available to an allottee to seek for refund along
with interest in terms of section 18(1) in case he chooses to not
withdraw from the project and alternative remedy to seek
interest for every month of delay till handing over of the
possession in terms of proviso to section 18(1) of the RERA
Act, 2016, in case he chooses to not to withdraw from the
project. The judgment of LIC of India and Anr. V/s
Consumer Education & Research Centre & Ors. : (1995) 5
SCC 482 was cited to hold that the terms & conditions of the
agreement must be reasonable. Further, Judgment passed in
Pioneer urban land and Infrastructure Ltd. V/s Govindan
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Raghavan, II (2019) CPJ 34(SC) was cited to refer that the
Hon’ble Apex court did not accept the plea of the builder that it
should not be directed to pay interest at the rate of 10.7% as the
agreement provided for 6% interest. Moreover, the judgment of
Wg. Cdr. Arifur Rahman Khan & Others V/s DLF Southern
Homes Pvt. Ltd. (2020) SCC Online 667 was cited to hold that
given the one-sided nature of the Apartment Buyer’s
Agreement, the consumer for a had the Jurisdiction to award
just and reasonable compensation as an incident of the power to
direct removal of deficiency in service.
(71) The contention of the appellant before the Appellate Tribunal
that as per clause 4.5 and clause 4.6 of the registration booklet/
Brochure there is no mention of any specific date of possession
or that as to whether any interest being payable, in case the
project is delayed or what amount of interest would be payable
by the Appellant, was held to be an omission against the
provisions of section 4(2) (b) of the U.P Apartment Act, 2010.
The Tribunal also recorded the judgment of HUDA and
another V/s Shakuntala Devi, (2017) 2 SCC 301 to hold that
even in cases, where the delivery of possession had been
directed there would be compensation for harassment/loss in a
consumer protection case and thus concluded that sicne the
possession of the allotted flat was delayed, the respondent was
entitled for interest/compensation as per the legal norms. The
Tribunal cited the judgment of M/s Newtech Promoters and
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Developers Pvt. Ltd. V/s State of U.P (supra) to ratify the
proposition that contractual terms do not have overriding effect
over the provisions of the Act.
(72) This Court does not find any reasons as to how the awarding of
interest on delayed possession by the Appellate Tribunal is in
any manner contrary to law as laid down by Apex Court. The
Learned Counsel for the appellant could not place nor refer to
any judgment of the Apex court to show any contrary view as
has been deduced by the Appellate Tribunal in arriving at the
impugned conclusion. In any case, the findings returned by the
Appellate Tribunal is based on sound principles of law &
precedents and as such, this Court does not find any substantial
question of law involved for the present question framed by the
Appellant.
(73) As a sequel to above, this Court does not find any merit in
RERA Appeal Nos. 67, 69, 70, 72, 73, 74, 75, 76, 77, 78, 79,
80, 82, 83, 84, 85, 87 of 2023 and the same are hereby
dismissed.
C. RERA Appeal No. 68 of 2023 (U.P Ewas Evam Vikas
Parishad Vs. Arun Kumar Dwivedi)
(74) It is seen from the records that the aforesaid appeal has been
filed by the appellant- “U.P Avas Evam Vikas Parishad” under
Section 58 of the RERA Act, 2016, against an order dated
05.09.2022 passed by the UP Real Estate Appellate Tribunal at
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Page 55 of 94
Lucknow. Apparently, by virtue of the impugned order, the
learned Appellate Tribunal with the consent of the parties has
directed the Parishad to pay interest from (30.10.2015 to
11.02.2000) instead of interest for the period from (30.06.2015
to 11.02.2000) as directed by the Adjudicating Authority. The
Appellate Authority has also directed both the parties to move
release Application regarding withdrawal of amount deposited
under Section 43(5) of the Act.
(75) This appeal has been filed under Section 58 of the RERA, 2016,
which inter-alia states :-
"58. Appeal to High Court-(1) Any
person aggrieved by any decision or order
of the Appellate Tribunal, may, file an
appeal to the High Court, within a period of
sixty days from the date of communication
of the decision or order of the Appellate
Tribunal, to him, on any one or more of the
grounds specified in Section 100 of the
Code of Civil Procedure, 1908:
Provided that the High Court may entertain
the appeal after the expiry of the said
period of sixty days, if it is satisfied that the
appellant was prevented by sufficient
cause from preferring the appeal in time.
Explanation-The expression "High Court"
means the High Court of a State or Union
territory where the real estate project is
situated.
(2) No appeal shall lie against any
decision or order made by the Appellate
Tribunal with the consent of the parties."
RERA Appeal No. 67 of 2023 and connected appeals
Page 56 of 94
(76) The learned Counsel for the appellant was requested to refer
section 58(2) of the RERA Act, 2016, which bars any appeal
against any decision or order made by the Appellate Tribunal
with the consent of the parties. The learned Counsel was asked
to address his arguments on the said point.
(77) The learned Counsel for the appellant raised the point of
competence & Jurisdiction of the Adjudicating officer in
deciding the matter and further raised the competence of
Appellate Tribunal to decide the issue. However, no arguments
were addressed on the point of maintainability of the present
Appeal on the point of section 58(2) of the RERA Act. Also
there was no argument denying or disputing the consensual
order passed by the Appellate tribunal vide the impugned order
dated 05.09.2022.
(78) Accordingly, this Court is of the opinion that in view of the
findings returned in the aforesaid appeals lead being “RERA
Appeal No. 67 of 2023 (Complainant- Dhruv Kr. Chaturvedi),
no substantial question of law arises in RERA APPEAL No. 68
of 2023 and as such the same is dismissed.
D. RERA Appeal No. 81 of 2023 (U.P Avas Evam Vikas
Parishad Vs U.P Real Estate Appellate Tribunal and others).
(79) This appeal has been filed by the appellant against the
impugned order dated 13.08.2021 relating to relief of interest in
the form of compensation granted to the allottee- Somyata
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Zaidi. The complainant in that case, i.e Somyata Zaidi was
allotted flat in Vrindvan Yojna, Part-4, sector-17, Niligiri
Enclave, wherein the sale deed was executed on 12.10.2017 and
the possession was granted on 17.10.2017. It was the case of
the complainant/ allottee therein that the possession was
delayed and he was entitled for compensation. Accordingly,
compensation was awarded by the adjudicating officer vide
order dated 20.09.2019 in the form of Interest.
(80) On perusal of the impugned judgment dated 13.08.2021, this
court finds that the Appellate Tribunal has framed three
question for determination as has been done by the Appellate
Tribunal in similar other matters, which were decided by this
court in the lead matter “RERA Appeal No. 67 of 2023
(Complainant- Dhruv Kr. Chaturvedi).
(81) Thus, this Court does not find any new point agitated or any
new issue raised in the present Appeal by the learned counsel
for the appellant and as such RERA Appeal No. 81 of 2023 is
also decided in terms of the finding of the lead matter- “RERA
Appeal No. 67 of 2023 (Complainant- Dhruv Kr. Chaturvedi).
Accordingly, RERA Appeal No. 81 of 2023 (U.P Avas Evam
Vikas Parishad Vs U.P Real Estate Appellate Tribunal and
others) is dismissed.
RERA Appeal No. 67 of 2023 and connected appeals
Page 58 of 94
E. RERA Appeal No. 86 of 2023 (U.P Avas Evam Vikas
Parishad V/s Satya Narain Agnihotri)
(82) This appeal has been filed by the Appellant against the
impugned order dated 30.06.2022 relating to relief of interest in
the form of compensation granted to the allottee- Satya Narain
Agnihotri at the rate of MCLR + 1% per annum for the delay
period from 30.03.2016 to 13.10.2017. The complainant in that
case, i.e Satya Narain Agnihotri was initially allotted a 3BHK
flat in Bhagirathi Enclave on 13.09.2013. However, the
Appellant failed to deliver possession of the allotted flat within
the stipulated date i. 30.03.2016 as mentioned in the Brochure
and demand letter dated 30.09.2013. The complainant being in
acute need of the flat as early as possible as he was to
superannuate on 29.04.2018, approached the promotor for
delivering the possession of the allotted flat so that he may shift
prior to demitting his office. The officials of the Appellant in
the month of October 2017 informed the complainant that he
may get his flat changed from 3 BHK to 3 BHK + Servant and
then the Appellant would be in a position to deliver the flat at
the time. The complainant, having no option except to agree
with oral offer of the promoter gave consent for 3 BHK +
Servant flat for which an extra payment of Rs. 11,50,000/- was
further required. Thereafter the complainant was allotted flat
no. 2B/T-1/306 vide letter dated 13.10.2017 at an additional
amount of Rs. 11,86,127/- along with the miscellaneous
expenses of Rs. 1,53,885/- by the appellant. The complainant
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deposited the said amount under protest and got the sale deed
executed on 25.11.2017 in respect of Flat No. 2B/T-1/306.
There has been considerable delay of 20 months’ delivery of
possession of the flat as mentioned in the Brochure issued in the
year 2013. However, the Adjudicating officer awarded interest
for delay in delivery of possession for the period from
30.03.2016 to 13.10.2017 at the rate of MCLR +1% per annum.
Accordingly, compensation was awarded by the adjudicating
officer vide order dated 20.11.2020 in the form of Interest.
(83) This Court finds that both the complainant Satya Narain
Agnihotri and the appellant (Avas Evam Vikas Parishad) filed
cross-Appeals, which was eventually decided by the impugned
order. On perusal of the impugned judgment dated 30.06.2022,
this court finds that the Appellate Tribunal has framed almost
Nine question for determination. The Appellate Tribunal in
deciding these issues arrived at a decision that the Act of 2016
provided a mechanism for determination of interest and/or
compensation for the delay in handing over possession of the
unto to the allottee, if the allottee wishes to stay with the
project. The Tribunal also held that in view the Newtech
Promoter’s case, the promoter cannot shirk from the
responsibilities/ liabilities under the Act and the contractual
terms do not have an overriding effect to the retrospective
applicability of the authority under the provisions of the Act. In
the facts of the case, the Tribunal held that there was delay of
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more than 18 months in delivery of possession by the Appellant
to the complainant. The Tribunal also held that a home buyer
does not lose his/her right to claim compensation for the delay
in possession even after execution of the conveyance deed and
taking of possession of the unit/Apartment/Fat booked by him.
The Appellate Tribunal while deciding the 5th point of
determination concluded that the rate of interest i.e MCLR +
1% granted by the Adjudication officer, as compensation for
delayed possession, if fair, just and reasonable as it balances the
equities between the parties and the Adjudicating Officer’s
action is in accordance with the provisions of the Act. The
learned Appellate Tribunal also held that as per the provisions
of the U.P Apartments (Promotion of construction, ownership
and Maintenacne Act, 2010 read with the provisions of the Act,
2016 a promoter is required to offer legal and habitable
possession to the allottees only after obtaining C.C/O.C and ask
for clearing dues by raising the final demand. The Tribunal also
affirmatively held that the amenities, facilities and services
advertised by the appellant in its Brochure are required to be
fulfilled and provided to the allottees of the project. The
Appellate authority after examining the facts in great detail and
considering the various Judgement, held that there was no
illegality or perversity in the impugned order of the
Adjudicating officer of the regulatory authority in awarding
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interest as compensation to the allottee/complaint for delay in
possession of the flat by the appellant.
(84) This Court finds that the appellant has primarily challenged the
aforesaid impugned order of the Appellate Tribunal primarily
on the ground, which has been a subject matter of challenge in
similar other matters, which were decided by this court in the
lead matter- “RERA Appeal No. 67 of 2023 (ComplainantDhruv Kr. Chaturvedi).
(85) Thus, this court does not find any new point agitated or any
new issue raised in the present Appeal by the learned counsel
for the appellant and as such the present Appeal is also decided
in terms of the finding of the lead matter- “RERA Appeal No.
67 of 2023 (Complainant- Dhruv Kr. Chaturvedi).
(86) Accordingly, RERA Appeal No. 86 of 2023 (U.P Avas Evam
Vikas Parishad V/s Satya Narain Agnihotri) is dismissed.
F. RERA Appeals No. 88, 89, 90, 91, 93, 96, 97, 98, 99, 100, 101,
102, 103, 104 of 2023
(87) These appeals have been filed against the impugned common
order dated 21.01.2022 passed by the learned UP Real Estate
Appellate Tribunal at Lucknow.
(88) Since, common question of law has been raised by the
Appellant in all these appeals, which are all directed towards a
common order dated 21.01.2022, it would be in the interest of
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justice that all these appeals are consolidated and taken together
for hearing and disposal. However, before this court deals with
the question of law raised in these appeals, the brief facts
culminating into these appeals be narrated to appreciate the law
in its proper perspective. In this regard, the facts of the lead
mater being RERA Appeal No. 88 of 2023 (ComplainantKunwar Bahadur Singh) is taken into consideration.
(89) Succinctly, it is available from records that the complainant
(Kunwar Bahadur Singh) filed a complaint for compensation in
delay in offering possession, no window in the flat offered and
no parking allotted by the Appellant/ Promoter. The said
complaint was marked/referred to the Adjudicating Officer vide
order dated 25.11.2019 of the Authority. As per the complaint,
the complainant was allotted a flat in Vrindavan Yojna in
Nillgiri Enclave on 30.08.2013 for an amount of Rs.
20,88,000/-. The possession of the said flat was to be given in
24 months, however the same was not offered by the Promoter,
which resulted in increase in the price of the flat, levy of GST
etc. It was the case of the complainant that although he had
regularly paid the instalments, however the promoter failed to
provide window in the flat as well as the parking as promised in
Brochure. However, the appellant defended the said complaint
by stating that the price of the flat was never fixed, nor the date
of possession had been fixed and the same were only proposed.
They also took ground of certain litigation relating to
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acquisition of land pending before this court for the delay. They
also submitted that the complaint was not maintainable for
compensation under section 12, 14, 18 and 19 of the Act.
(90) This Court finds that the Adjudicating Officer after recording
the submission of the parties and dealing with the provisions of
the RERA Act gave a detailed Judgment vide order dated
13/08/2020, thereby returning a finding that the complainant
inspite of taking the possession of the flat is entitled for
compensation for delay in offering of possession and as such
the Adjudicating Officer awarded compensation in the form of
interest @ MCLR+ 1% on the total amount of consideration
for the period of delay between 30.08.2015 to 18.08.2017.
(91) This Court finds that the aforesaid order of the Adjudicating
officer was a subject matter of challenge by the Appellant
before the Appellate Tribunal in terms of section-44 of the
RERA Act. The said Appeal filed by the Appellant was decided
along with 25 other matters vide the impugned common order
dated 22.01.2022. On a perusal of the impugned judgment of
the Appellate Tribunal it is seen that the Tribunal has
painstakingly recorded details of facts of each Appeal in a
tabular chart and framed the following questions for
determination:
“ i. Whether the Adjudicating officer
ought to have examined the complaint of
the respondent only on the basis of agreed
terms and conditions mentioned in the
Registration Booklet, read with allotment
letter.
RERA Appeal No. 67 of 2023 and connected appeals
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ii. Whether there is any delay in handing
over of the possession to the allottee, and if
yes, on whose account?
iii. Whether an allottee is entitled for
claiming compensation/ interest for the
delayed possession of the flat and agreed
to pay the final cost of the flat?”
(92) This Court finds that the Appellate tribunal has exhaustively
dealt with each of the aforesaid issue and after recording
various precedents, arrived at a decision that as far as the first
issue is concerned, in terms of the Newtech Promoter’s case, the
promoter cannot shirk from the responsibilities/ liabilities under
the Act and the contractual terms do not have an overriding
effect to the retrospective applicability of the authority under
the provisions of the Act. On the facts, the Appellate Tribunal
returned a finding that the project was delayed by 2 years and 4
months in giving of the possession and that the Appellant/
Promoter was solely responsible for the said delay. Further, as
far as the third issue is concerned, the Tribunal after considering
various judgements including that of W. Cdr. Arifur Rahman
Khan and Aleya Sultan and others V/s DLF Southern Homes
Pvt. Ltd, held that a home buyer does not lose his/her right to
claim compensation for the delay in possession even after
execution of the conveyance deed and taking possession of the
unit/ Apartment/ flat booked by him. Thus, the Appellate
Tribunal did not find any illegality or infirmity in the impugned
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order of the Adjudicating Officer and as such dismissed all the
Appeals.
(93) This Court finds that the appellant has filed an Appeal against
the aforesaid impugned order dated 22.01.2022, which are
largely premised on the same grounds and question of law as
has been decided by this court in “RERA Appeal No. 67 of
2023 (Complainant- Dhruv Kr. Chaturvedi). The fulcrum of the
Appeal hinges on the determination of question as to whether
the adjudicating officer appointed under Section 72 of the
RERA Act can grant compensation in form of interest in case
where allottee does not exit the project under Section 18 of the
RERA Act.
(94) This Court finds that the aforesaid ground has been a subject
matter of challenge in similar other matters, which were
decided by this court in the lead matter- “RERA Appeal No.
67/2023 (Complainant- Dhruv Kr. Chaturvedi), wherein this
court held that compensation in the form of interest can be
awarded by the Adjudicating Officer and as such has rejected
the said contention and dismissed the appeal of the Parishad.
(95) Thus, this Court does not find any new issue being raised in the
present bunch of Appeals by the Ld. counsel for the Appellant,
which requires any separate considerations either on facts or on
law and as such the present bunch of appeals are also decided in
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terms of the finding of the lead matter- “RERA Appeal No. 67
of 2023 (Complainant- Dhruv Kr. Chaturvedi).
(96) Accordingly, RERA Appeal No. 88 of 2023, RERA Appeal No.
89 of 2023, RERA Appeal No. 90 of 2023, RERA Appeal No.
91 of 2023, RERA Appeal No. 93 of 2023, RERA Appeal No.
96 of 2023, RERA Appeal No. 97 of 2023, RERA Appeal No.
98 of 2023, RERA Appeal No. 99 of 2023, RERA Appeal No.
100 of 2023, RERA Appeal No. 101 of 2023, RERA Appeal
No. 102 of 2023, RERA Appeal No. 103 of 2023 and RERA
Appeal No. 104 of 2023 are also dismissed.
G. RERA Appeal No. 92 of 2023 (U.P Avas Evam Vikas
Parishad Vs U.P Real Estate Appellate Tribunal and
others).
(97) This appeal has been filed by the appellant against the
impugned order dated 07.07.2022 relating to relief of interest in
the form of compensation granted to the allottee- Abhai Verma
& Anju Verma. The complainant in that case, i.e Abhai Verma
& Anju Verma was allotted flat in Himalaya Enclave,
Vrindavan Yojna, Part-4, Sector-17, Nilgiri Enclave, wherein
the sale deed was executed on 12.10.2017 and the possession
was granted on 02.04.2019. It was the case of the complainant/
allottee therein that the possession was delayed and he was
entitled for compensation for delayed possession and other
issues. The regulatory authority vide an order dated 10.05.2019
after holding that the project was delayed and the delay period
was fixed as 25.08.2014 to 30.04.2018, marked the case to the
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Adjudicating Officer for determination of entitlement of
compensation. Accordingly, the Adjudicating Officer, vide
order dated 29.08.2019 allowed the complaint and directed the
promoter to pay interest as compensation at the rate of SBI
MCLR +1% per annum on the deposited amount for the
delayed period within 45 days of the order.
(98) The complainant filed an Appeal before the Appellate Tribunal
limited to the extent of granting of interest as provided under
section 2(za)(i) of the RERA Act. As per the said provisions, the
complainant claimed interest at the rate of 13.05% per annum
and sought parity with another case passed by the Tribunal in
Upasana Duggal Vs LDA.
(99) The Tribunal vide the impugned order dated 07.07.2022, which
has been interdicted in the present proceedings before this
court, has directed the Parishad/promoter for payment of
interest at the rate of SBI MCLR+1% per annum along with
other reliefs to the complainant. It is this directions, which the
Appellant is herein aggrieved with. On perusal of the impugned
judgment dated 07.07.2022, this court finds that interestingly,
there is no Appeal u/s 44 of the Act by the Appellant against the
order dated 29.08.2019 of the Adjudicating Officer. It is only
the order of the Appellate Tribunal, which has reduced the
interest rate and other reliefs that the Appellant are aggrieved
and as such has filed the present Appeal before this court. A
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glimpse of the impugned order of the Appellate Tribunal would
reveal that the Appellate Tribunal has recorded the Appeal,
reply and rejoinder field by the parties exhaustively in the said
impugned order and has framed the following three question for
determination:
“ (i) Whether appellants are entitled to get
interest @ 13.5% per annum for the
delayed period i.e from 24.08.2014 to the
actual date of realization ?
(ii) Whether respondent- U.P Avas Evam
Vikas Parishad is liable to pay Rs. 5 Lakhs
as compensation for mental harassment
and agony and Rs. 7,61,052/- for house
rent allowances to appellants.?
(iii) whether appellants are entitled to get
Rs. 50,000/- as cost of litigation.?”
(100) The Appellate Tribunal after formulating the aforesaid point of
determination, while deciding the 1st issue held that the delay
was to be fixed for a period from 25.08.2014 to 28.02.2019 and
not to be kept open. Further, as far as the rate of interest, the
Appellate Tribunal keeping in view Rule 9.2(ii) & 9.3(1) of the
“Uttar Pradesh Real Estate (Regulations and Development)
Rules, 2018, which came into effect from 17.10.2018 awarded
compensation in the form of interest at the rate of SBI
MCLR+1% to balance the equities and in line of the spirit of
the Act, which uses the phrase “interest at such rate as may be
prescribed” in section 12, 18 and 19(4) of the Act. The
Appellate Tribunal as far as the second issue formulated held
that the observation of the Adjudicating officer had legal
backing and did not interfere in the payment of compensation to
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the complainant. Similarly, as far as the third issue is
concerned, the Appellate Tribunal reduced the cost of litigation
from Rs. 50,000/- to Rs. 40,000/-.
(101) The Appellant have taken a plethora of grounds in the appeal
filed against the aforesaid impugned order of the Tribunal,
however a closer look would reveal that almost all the grounds
are related to facts and the hinge of the Appeal filed by the
Appellant lies on the issue, which were decided by this court in
the lead matter- “RERA Appeal No. 67 of 2023 (ComplainantDhruv Kr. Chaturvedi).
(102) Thus, this Court does not find any new point agitated or any
new issue raised in the present Appeal by the learned counsel
for the Appellant and as such the present Appeal is also decided
in terms of the finding of the lead matter- “RERA Appeal No.
67 of 2023 (Complainant- Dhruv Kr. Chaturvedi).
(103) Accordingly, RERA Appeal No. 92 of 2023 (U.P Avas Evam
Vikas Parishad V/s U.P Real Estate Appellate Tribunal and
others) is dismissed.
H. RERA Appeal No. 94 of 2023 (U.P Avas Evam Vikas
Parishad Vs Presiding Officer, U.P Real Estate Appellate
Tribunal and others).
(104) This appeal has been filed by the appellant against the
impugned order dated 08.09.2022 relating to relief of interest in
the form of compensation granted to the allottee- Shobit
Chaturvedi. The complainant in that case, i.e Shobit Chaturvedi
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was allotted flat in Neelgiri Enclave, a project of the appellant
located at Sector-17, Vrindavan Yojna, Lucknow. The
conveyance deed was executed on 08.03.2018 and the physical
possession was handed over to the complainant on 05.06.2018.
It was the case of the complainant/ allottee therein that the
possession was delayed and he was entitled for compensation
for delayed possession and other issues like not providing
window as per the registration booklet, car parking etc. were
also raised in the said complaint. The regulatory authority vide
an order dated 16.09.2020 marked the case to the Adjudicating
Officer for determination of entitlement of compensation.
Accordingly, the Adjudicating Officer, vide order dated
18.12.2020 allowed the complaint and directed the promoter to
pay interest as compensation at the rate of SBI MCLR +1% per
annum on the deposited amount for the delayed period of
30.08.2015 to 21.07.2017, within 45 days of the order.
(105) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in Appeal u/s 44 of the Act, before the
Appellate Tribunal.
(106) The Tribunal vide the impugned order dated 08.09.2022, has
dismissed the Appeal of the Parishad/ promoter and has upheld
the direction of the Adjudicating officer for payment of interest
at the rate of SBI MCLR+1% per annum along with other
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Page 71 of 94
reliefs to the complainant. It is this directions, which the
Appellant is herein aggrieved with. On perusal of the impugned
judgment dated 08.09.2022, this court finds that the Appellate
Tribunal has recorded in detail the various contention of the
parties and discussed the case laws cited by them exhaustively
in the said impugned order and has framed the following three
question for determination:
“ (i) Whether the Adjudicating Officer
ought to have examined the complaint of
the respondent only on the basis of the
agreed terms and conditions mentioned in
the Registration Booklet, read with
allotment letter.
(ii) Whether there is any delay in handing
over of the possession to the allottee, and if
yes, on whose account?
(iii) Whether an allottee is entitled for
claiming compensation/ interest for the
delayed possession, even if the allottee has
already taken possession of the flat and
sale deed has been executed after the
allottees agreed to pay the final cost of the
flat.?
(iv) Whether there is any illegality or
perversity in the impugned order dated
16.07.2021 of the Adjudicating officer in
granting interest as compensation to the
respondent for delay in providing
possession of the flat by the Appellant?”
(107) The Appellate Tribunal after formulating the aforesaid point of
determination, while deciding the 1st issue held that tin view of
the observation of the Apex Court in Newtech’s case regarding
the terms of the contract to the effect that promoter cannot shirk
from the responsibilities/ liabilities under the act and the
contractual terms do not have an overriding effect to the
RERA Appeal No. 67 of 2023 and connected appeals
Page 72 of 94
retrospective applicability of the authority under the provisions
of the Act. The Appellate Tribunal in answer to issue No.2
returned a finding of fact that the project was delayed by 1 year
and 11 months in offering of possession to the complainant and
that the Appellant was solely responsible for the same. As
regards the third issue, the Appellate Tribunal held that a home
buyer does not lose his/her right to claim compensation for the
delay in possession even after execution of the conveyance
deed and taking possession of the unit/ Apartment/ Flat booked
by him. The Appellate Tribunal after enumerating the various
provisions of RERA as well as the binding precedents
concluded that there was no illegality or perversity in the order
of the Adjudicating officer in awarding interest as compensation
to the complainant for delay in possession of the flat.
(108) The appellant have taken a plethora of grounds in the Appeal
filed against the aforesaid impugned order of the Tribunal,
however a closer look would reveal that almost all the grounds
are related to facts and the hinge of the Appeal is premised on
the issue, which were decided by this court in the lead matter-
“RERA Appeal No. 67/2023 (Complainant- Dhruv Kr.
Chaturvedi).
(109) Thus, this Court does not find any reasons to differ with the
findings, which stands already decided in the aforesaid matter.
Thus, the present Appeal, as such, is also decided in terms of
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the finding of the lead matter- “RERA Appeal No. 67 of 2023
(Complainant- Dhruv Kr. Chaturvedi).
(110) Accordingly, for all the reasons as mentioned herein above,
RERA Appeal No. 94 of 2023 is also dismissed.
I. RERA Appeal No. 95 of 2023 (U.P Avas Evam Vikas
Parishad V/s Presiding Officer, U.P Real Estate Appellate
Tribunal and others).
(111) This appeal has been filed by the appellant against the
impugned order dated 28.09.2022 relating to relief of interest in
the form of compensation granted to the allottee- Atul Kumar.
The complainant in that case, i.e Atul Kumar was allotted flat in
Neelgiri Enclave, a project of the Appellant located at Sector17, Vrindavan Yojna, Lucknow. The sale deed was executed on
08.03.2018 and the physical possession was handed over to the
complainant on 05.06.2018. It was the case of the complainant/
allottee therein that the possession was delayed and he was
entitled for compensation for delayed possession as well as for
other issues like not providing window as per the registration
booklet, car parking etc. The regulatory authority vide an order
dated 19.10.2019 marked the case to the Adjudicating Officer
for determination of entitlement of compensation. Accordingly,
the Adjudicating Officer, vide order dated 11.02.2021 allowed
the complaint and directed the promoter to pay interest as
compensation at the rate of SBI MCLR +1% per annum on the
deposited amount for the delayed period of 30.08.2015 to
01.11.2017, within 45 days of the order.
RERA Appeal No. 67 of 2023 and connected appeals
Page 74 of 94
(112) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in appeal under Section 44 of the Act,
before the Appellate Tribunal.
(113) The Tribunal vide the impugned order dated 08.09.2022, has
dismissed the appeal of the Parishad/promoter and has upheld
the direction of the Adjudicating officer for payment of interest
at the rate of SBI MCLR+1% per annum along with other
reliefs to the complainant. It is this directions, which the
Appellant is herein aggrieved with. On perusal of the impugned
judgment dated 08.09.2022, this court finds that the Appellate
Tribunal has recorded in detail the various contention of the
parties and discussed the case laws cited by them exhaustively
in the said impugned order and has framed the following four
question for determination:
“ (i) Whether the Adjudicating Officer
ought to have examined the complaint of
the respondent only on the basis of the
agreed terms and conditions mentioned in
the Registration Booklet, read with
allotment letter.
(ii) Whether there is any delay in
handing over of the possession to the
allottee, and if yes, on whose account?
(iii) Whether an allottee is entitled for
claiming compensation/ interest for the
delayed possession, even if the allottee
has already taken possession of the flat
and sale deed has been executed after the
allottees agreed to pay the final cost of the
flat.?
RERA Appeal No. 67 of 2023 and connected appeals
Page 75 of 94
(iv) Whether there is any illegality or
perversity in the impugned order dated
11.02.2021 of the Adjudicating officer in
granting interest as compensation to the
respondent for delay in providing
possession of the flat by the Appellant?”
(114) The Appellate Tribunal after formulating the aforesaid point of
determination, while deciding the 1st issue held that tin view of
the observation of the Apex Court in Newtech’s case regarding
the terms of the contract to the effect that promoter cannot shirk
from the responsibilities/ liabilities under the act and the
contractual terms do not have an overriding effect to the
retrospective applicability of the authority under the provisions
of the Act. The Appellate Tribunal in answer to issue No.2
returned a finding of fact that the project was delayed by 1 year
and 5 months in offering of possession to the complainant and
that the Appellant was solely responsible for the same. As
regards the third issue, the Appellate Tribunal held that a home
buyer does not lose his/her right to claim compensation for the
delay in possession even after execution of the conveyance
deed and taking possession of the unit/ Apartment/ Flat booked
by him. The Appellate Tribunal after enumerating the various
provisions of RERA as well as the binding precedents
concluded that there was no illegality or perversity in the order
of the Adjudicating officer in awarding interest as compensation
to the complainant for delay in possession of the flat.
RERA Appeal No. 67 of 2023 and connected appeals
Page 76 of 94
(115) The appellant have taken a plethora of grounds in the Appeal
filed against the aforesaid impugned order of the Tribunal,
however a closer look would reveal that almost all the grounds
are related to facts and the hinge of the Appeal is premised on
the issue, which were decided by this court in the lead matter-
“RERA Appeal No. 67 of 2023 (Complainant- Dhruv Kr.
Chaturvedi).
(116) Thus, this Court does not find any reasons to differ with the
findings, which stands already decided in the aforesaid matter.
Thus, the present Appeal, as such, is also decided in terms of
the finding of the lead matter- “RERA Appeal No. 67 of 2023
(Complainant- Dhruv Kr. Chaturvedi).
(117) Accordingly, for all the reasons as mentioned herein above,
RERA Appeal No. 95 of 2023 is also dismissed.
J. RERA Appeal No. 105 of 2023 (U.P Avas Evam Vikas
Parishad Vs. Presiding Officer, U.P Real Estate Appellate
Tribunal and others).
(118) This appeal has been filed by the appellant against the
impugned order dated 24.05.2022 relating to relief of interest in
the form of compensation granted to the allottee. The
allottee/complainant in that case, i.e Jitendera Kumar
Madheshiya was allotted flat in Himalaya Enclave, a project of
the Appellant. The sale deed was executed on 08.03.2018 and
the physical possession was handed over to the complainant on
05.06.2018. It was the case of the complainant/ allottee therein
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Page 77 of 94
that the possession was delayed and he was entitled for
compensation for delayed possession. The Adjudicating Officer,
vide order dated 04.08.2021 allowed the complaint and directed
the promoter to pay interest as compensation at the rate of SBI
MCLR +1% per annum on the deposited amount for the
delayed period of 31.12.2014 to 30.08.2018, within 45 days of
the order.
(119) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in Appeal u/s 44 of the Act, before the
Appellate Tribunal.
(120) However, at the time of hearing, the appellant at the outset
stated that though in the relief clause he had challenged the
entire impugned order dated 04.08.2021 of the Adjudicating
Officer, whereby the adjudicating authority directed the
opposite party/appellant to pay interest @ MCLR+ 1% as
compensation to the complainant/respondent for the delay
period from 31.12.2014 to 30.08.2018, but he confined his
prayer only to the correction of amount from Rs. 16,60,000/- to
Rs. 15,75,000/- and the date of starting interest from
31.12.2014 to 28.02.2015. The Tribunal vide the impugned
order dated 04.08.2021, has recorded the no objection of the
complainant/respondent and on the basis of the said statement
of the parties, the the Appeal of the Parishad/ promoter was
RERA Appeal No. 67 of 2023 and connected appeals
Page 78 of 94
disposed of by holding that the appellant/promoter shall be
liable to pay interest at the rate of SBI MCLR+1% per annum
as compensation on the amount of Rs. 15,75,000 ( deposited in
the year 2012) for delayed period from 01.03.2015 to
30.08.2018”.
(121) The present Appeal has been filed under section 58 of the
RERA, 2016. However, section 58(2) of the said Act, inter-alia
states:
“58 (2) No appeal shall lie against any
decision or order made by the Appellate
Tribunal with the consent of the parties."
(122) The learned Counsel for the appellant was requested to refer
section 58(2) of the RERA Act, 2016, which bars any appeal
against any decision or order made by the Appellate Tribunal
with the consent of the parties. The learned Counsel was asked
to address his arguments on the said point.
(123) The learned Counsel for the Appellant raised the point of
competence & Jurisdiction of the Adjudicating officer in
deciding the matter and further raised the competence of
Appellate Tribunal to decide the issue. However, no arguments
were addressed on the point of maintainability of the present
Appeal on the point of section 58(2) of the RERA Act. Also
there was no argument denying or disputing the consensual
order passed by the Appellate tribunal vide the impugned order
dated 24.05.2022. According, this court in view of the findings
RERA Appeal No. 67 of 2023 and connected appeals
Page 79 of 94
returned in the aforesaid Appeals lead being “RERA Appeal
No. 67 of 2023 (Complainant- Dhruv Kr. Chaturvedi) does not
find any substantial question of law raised in the present Appeal
and as such RERA Appeal No. 105 of 2023 (U.P Avas Evam
Vikas Parishad V/s Presiding Officer, U.P Real Estate Appellate
Tribunal and others is dismissed.
K. RERA Appeal No. 106 of 2023 (U.P Avas Evam Vikas
Parishad V/s Presiding Officer, U.P Real Estate Appellate
Tribunal and others).
(124) This appeal has been filed by the Appellant against the
impugned order dated 28.03.2022 relating to relief of interest in
the form of compensation granted to the allottee. The
allottee/complainant in that case, i.e Charan Singh was allotted
flat in Brahmaputra Enclave, a project of the Appellant. On the
date of filing of the complaint, neither the sale deed was
executed in his favour nor the physical possession was handed
over to the complainant and as such a cumulative complaint
was filed for execution of sale deed, giving of possession and
delay compensation against the Appellant. The Adjudicating
Officer, vide order dated 22/01/2020 allowed the complaint
with various reliefs including a direction to the promoter to (i)
give possession along with all facilities till 29.02.2020, (ii) pay
interest as compensation at the rate of SBI MCLR +1% per
annum on the deposited amount for the delayed period of
31.01.2018 till the date of possession.
RERA Appeal No. 67 of 2023 and connected appeals
Page 80 of 94
(125) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in Appeal u/s 44 of the Act, before the
Appellate Tribunal.
(126) During the course of hearing, the Appellate Tribunal recorded
that the completion certificate was obtained by the Appellant on
31.12.2018 and the possession was offered to the complainant
on 06.12.2018 and in fact the physical possession was granted
to the complainant/respondent on 24.02.2020. Although the
Appellant tried to urge a point that the delay in possession was
due to non-submission of certain papers by the
complainant/respondent, which was opposed by the respondent,
however, the Appellate Tribunal noting that there had been a
delay in giving of possession by the appellant, without
considering other point, upheld order dated 22/01/2020 of the
Adjudicating Officer, whereby the adjudicating authority
directed the opposite party/appellant to pay interest @ MCLR+
1% as compensation to the complainant/respondent for the
delay period from 01.01.2018 to 31.12.2018.
(127) The learned Counsel for the appellant interdicting the impugned
order of the Appellate Tribunal has raised the point of
competence & Jurisdiction of the Adjudicating officer in
deciding the matter and further raised the competence of
Appellate Tribunal to decide the issue. However, no arguments
RERA Appeal No. 67 of 2023 and connected appeals
Page 81 of 94
were addressed on the point of decision of the Appellate
Tribunal on merits. However, this court took that pain to go
through the memo of Appeal filed by the Appellant and as such
is of the considered view that the findings returned in the
aforesaid Appeals lead being “RERA Appeal No. 67 of 2023
(Complainant- Dhruv Kr. Chaturvedi) is squarely applicable to
the present case. Thus, this court does not find any substantial
question of law raised in the present Appeal and as such RERA
Appeal No. 106 of 2023 (U.P Avas Evam Vikas Parishad V/s
Presiding Officer, U.P Real Estate Appellate Tribunal and
others) is dismissed.
L. RERA Appeal No. 107 of 2023 (U.P Avas Evam Vikas
Parishad V/s Presiding Officer, U.P Real Estate Appellate
Tribunal and others).
(128) This appeal has been filed by the appellant against the
impugned order dated 23.06.2022 relating to relief of interest in
the form of compensation granted to the allottee- Vandana
Sharma. The complainant in that case, i.e Vandana Sharma was
allotted flat in Ganga, Yamuna & Hindon Enclave, a project of
the Appellant. On the date of filing of the complaint, neither the
sale deed was executed in his favour nor the physical
possession was handed over to the complainant and as such a
cumulative complaint was filed for execution of sale deed,
giving of possession and delay compensation against the
Appellant. The Adjudicating Officer, vide order dated
29/09/2020 allowed the complaint with various reliefs including
RERA Appeal No. 67 of 2023 and connected appeals
Page 82 of 94
a direction to the promoter to (i) give possession along with all
facilities till 31.10.2020 (ii) pay interest as compensation at the
rate of SBI MCLR +1% per annum on the deposited amount for
the delayed period of 17.04.2018 to 28.02.2019.
(129) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in Appeal under Section 44 of the Act,
before the Appellate Tribunal.
(130) The Tribunal vide the impugned order dated 30.06.2022, has
dismissed the Appeal of the Parishad/ promoter and has upheld
the direction of the Adjudicating officer for payment of interest
at the rate of SBI MCLR+1% per annum along with other
reliefs to the complainant. It is this directions, which the
Appellant is herein aggrieved with. On perusal of the impugned
judgment dated 30.06.2022, this court finds that the Appellate
Tribunal has recorded in detail the various contention of the
parties and discussed the case laws cited by them exhaustively
in the said impugned order and has framed the following five
question for determination:
“ (i) Whether under the scheme of the Act,
2016 and rules 2016 any mechanism has
been provided for determination of the
interest or the compensation for delay in
handing over possession of the
flat/apartment/ plot to the allottee and/or
refund with interest, if allottee does nto
want to continue/wish to withdraw from the
project?
RERA Appeal No. 67 of 2023 and connected appeals
Page 83 of 94
(ii) Whether the Regulatory Auhtority
ought to have examined the complaint of
the respondent only on the basis of agreed
terms and conditions mentioned in the
registration Booklet read with allotment
letter.
(iii) Whether the project of the
appellant/promoter is delayed?
(iv) Whether an allottee is entitled for
interest for the delay in completion of the
project under the scheme of Act, 2016 if
yes, what rate of interest is required to be
paid by the promoter to the allottee?
(v) Whether it is necessary and
mandatory for the promoter to have first
completion certificate (CC) and occupation
certificate (OC) under the provisions of the
Act 2016 and Rules of 2016 read with the
UP Apartment (promotion of construction,
ownership and maintenance) Act, 2010
before offering possession as well as
asking the allottee to settle the account and
satisfy the final demand?.”
(131) The learned Appellate Tribunal after formulating the aforesaid
point of determination, while deciding the 1st issue held that the
Act, 2016 provides a mechanism for determination of interest
andor compensation for the delay in handing over possession of
the unit to the allottee, if the allottee wishes to stay with the
project and/or refund with interest, if allotee wants to withdraw
from the project. As far as the aforesaid second issue is
concerned, the Appellate Tribunal in view of the observation of
the Apex Court in Newtech’s case regarding the terms of the
contract to the effect that promoter cannot shirk from the
responsibilities/ liabilities under the act and the contractual
terms do not have an overriding effect to the retrospective
applicability of the authority under the provisions of the Act
RERA Appeal No. 67 of 2023 and connected appeals
Page 84 of 94
and held that the regulatory authority is required to examine a
complaint as per the provisions of the Act, rules and regulations
and not merely on the basis of the terms and conditions of the
registration booklet or as provided in the demand letter only.
The Appellate Tribunal in answer to issue No.3 returned a
finding of fact that the project was delayed by 11 months in
offering of possession to the complainant and that the Appellant
was solely responsible for the same. As regards the fourth issue
relating to entitlement of interest on account of delay in
completion of the project, the Appellate Tribunal returned a
finding in affirmative. As far as the last issue is concerned, the
Tribunal held that a promoter is required to offer legal and
habitable possession to the allottees only after obtaining CC/OC
and ask for clearing dues by raising a final demand. The
Appellate Tribunal after enumerating the various provisions of
RERA as well as the binding precedents concluded that there
was no illegality or perversity in the order of the Adjudicating
officer in awarding interest as compensation to the complainant
for delay in possession of the flat.
(132) The appellant have taken a plethora of grounds in the Appeal
filed against the aforesaid impugned order of the Tribunal,
however a closer look would reveal that almost all the grounds
are related to facts and the hinge of the Appeal is premised on
the issue, which were decided by this court in the lead matterRERA Appeal No. 67 of 2023 and connected appeals
Page 85 of 94
“RERA Appeal No. 67 of 2023 (Complainant- Dhruv Kr.
Chaturvedi).
(133) Thus, this Court does not find any irresistible reasons to differ
with the findings, which stands already decided in the aforesaid
matter. Thus, the present Appeal, as such, is also decided in
terms of the finding of the lead matter- “RERA Appeal No. 67
of 2023 (Complainant- Dhruv Kr. Chaturvedi).
(134) Accordingly, for all the reasons as mentioned herein above, the
present Appeal being RERA Appeal No. 107 of 2023 (U.P Avas
Evam Vikas Parishad V/s U.P Real Estate Appellate Tribunal
and others) is also dismissed.
M. RERA Appeals No. 108, 109 of 2023
(135) These appeals have been filed by the appellant against the
impugned common order dated 30.12.2022 relating to relief of
interest in the form of compensation granted to the allottees,
Indranath Agnihotri & Rajesh Kumar Singh. Both the original
complaints had been filed by the aforesaid complainant for (i)
Giving of possession, (ii) interest for delayed compensation and
(iii) mental harassment etc. It was the case of the complainant/
allottee therein that the possession was delayed and he was
entitled for compensation for delayed possession as well as for
other issues like not providing of possession, mental harassment
etc. The Adjudicating Officer, vide order dated 26.11.2019
allowed the complaint and directed the promoter to pay interest
RERA Appeal No. 67 of 2023 and connected appeals
Page 86 of 94
as compensation at the rate of SBI MCLR +1% per annum on
the deposited amount for the delayed period of01.05.2018 to
19.08.2019, within 45 days of the order.
(136) The appellant was obviously not happy with the said order of
the Adjudicating officer and as such interdicted the said order of
the adjudicating officer in Appeal u/s 44 of the Act, before the
Appellate Tribunal.
(137) The Tribunal vide the impugned order dated 30.12.2022, has
dismissed the Appeal of the Parishad/ promoter and has upheld
the direction of the Adjudicating officer for payment of interest
at the rate of SBI MCLR+1% per annum along with other
reliefs to the complainant. It is this directions, which the
Appellant is herein aggrieved with. On perusal of the impugned
judgment dated 30.12.2022, this court finds that the Appellate
Tribunal has recorded in detail the various contention of the
parties and discussed the case laws cited by them exhaustively
in the said impugned order and has framed the following four
question for determination:
“ (i) Whether the Regulatory Authority has
jurisdiction to pass the impugned order
dated 26.11.2019 directing the appellantU.P Avas Evam Vikas Parishad, Lucknow
to handover possession of the flat to the
complainant within 45 days from the date of
order after taking the legal charges from
the complainant and the opposite party is
also directed to pay interest at the rate of
MCLR+1% per annum to the complainant
for the delayed period from 31.08.2018 till
date of offer of possession i.e 09.09.2019,
RERA Appeal No. 67 of 2023 and connected appeals
Page 87 of 94
… as the matter is covered under sections
12, 14, 18 and 19 of the Act.
(ii) Whether the project of the appellantUP Avas Evma Vikas parishad, Lucknow is
delayed as stated by respondent in reply to
the Appeal.
(iii) Whether respondent/complainant is
entitled to get interest for the delayed
period, if so on what rate?
(iv) Whether the impugned judgment and
order dated 26.11.2019 is liable to set
aside?.”
(138) The Appellate Tribunal after formulating the aforesaid point of
determination, while deciding the 1st issue held that when it
comes to a question of seeking the relief of adjudging
compensation and interest thereon under section 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, it may intend
to expand the ambit and scope of the powers and function of the
adjudicating officer under section 71 and that would be against
the mandate of the Act, 2016. The Appellate Tribunal in answer
to issue No.2 returned a finding of fact that the project was
delayed from 31.08.2015 to 09.09.2019. As regards the third
issue, the Appellate Tribunal held that in view of “Uttar Pradesh
Real Estate (Regulation and development) Rules, 2018, it
would be just to award rate of interest MCLR + 1% per annum
as directed by the Authority. As far as the last issue is
RERA Appeal No. 67 of 2023 and connected appeals
Page 88 of 94
concerned, the Appellate Tribunal decided to not interfere with
the Adjudicating officer order and as such confirmed the same.
The Appellate Tribunal after enumerating the various provisions
of RERA as well as the binding precedents concluded that there
was no illegality or perversity in the order of the Adjudicating
officer in awarding interest as compensation to the complainant
for delay in possession of the flat.
(139) The appellant have taken a plethora of grounds in the Appeal
filed against the aforesaid impugned order of the Tribunal,
however a closer look would reveal that almost all the grounds
are related to facts and the hinge of the Appeal is premised on
the issue, which were decided by this court in the lead matter-
“RERA Appeal No. 67/2023 (Complainant- Dhruv Kr.
Chaturvedi).
(140) Thus, this court does not find any reasons to differ with the
findings, which stands already decided in the aforesaid matter.
Thus, the present Appeal, as such, is also decided in terms of
the analogy & discussion in the lead matter- “RERA Appeal
No. 67 of 2023 (Complainant- Dhruv Kr. Chaturvedi).
(141) Accordingly, for all the reasons as mentioned herein above,
RERA Appeal Nos. 108 of 2023 and 109 of 2023 are also
dismissed.
RERA Appeal No. 67 of 2023 and connected appeals
Page 89 of 94
N. RERA Appeals No. 110, 111, 112, 113, 114, 115, 116, 117 of
2023
(142) These appeals have been filed against the impugned common
order dated 14.03.2022 passed by the learned UP Real Estate
Appellate Tribunal at Lucknow.
(143) Since, common question of law has been raised by the appellant
in all these appeals, which are all directed towards a common
order dated 14.03.2022, it would be in the interest of justice that
all these appeals are consolidated and taken together for hearing
and disposal. However, before this court deals with the question
of law raised in these Appeals, the brief facts culminating into
the present Appeal be narrated to appreciate the law in its
proper perspective. In this regard, the facts of the lead mater
being RERA Appeal No. 110 of 2023 (Complainant- Ms. Arifa
Khatoon) is taken into consideration.
(144) Succinctly, it is available from records that the complainant
(Ms. Arifa Khatoon) filed a complaint for compensation in
delay in offering possession, no window in the flat offered and
no parking allotted by the Appellant/ Promoter. The said
complaint was marked/referred to the Adjudicating Officer vide
order dated 25.11.2019 of the Authority. As per the complaint,
the complainant was allotted a flat in Vrindavan Yojna in
Nillgiri Enclave on 31.08.2013 for an amount of Rs.
20,88,000/-. The possession of the said flat was to be given in
RERA Appeal No. 67 of 2023 and connected appeals
Page 90 of 94
24 months, however the same was not offered by the Promoter,
which resulted in increase in the price of the flat, levy of GST
etc. It was the case of the complainant that although she had
regularly paid the instalments, however the promoter failed to
provide window in the flat as well as the parking as promised in
Brochure. However, the appellant defended the said complaint
by stating that the price of the flat was never fixed, nor the date
of possession had been fixed and the same were only proposed.
They also took ground of certain litigation relating to
acquisition of land pending before this court for the delay. They
also submitted that the complaint was not maintainable for
compensation under section 12, 14, 18 and 19 of the Act.
(145) This court finds that the Adjudicating Officer after recording
the submission of the parties and dealing with the provisions of
the RERA Act gave a detailed Judgment vide order dated
26/06/2020, thereby returning a finding that the complainant
inspite of taking the possession of the flat is entitled for
compensation for delay in offering of possession and as such
the Adjudicating Officer awarded compensation in the form of
interest @ MCLR+ 1% on the total amount of consideration
for the period of delay between 31.08.2015 to 25.07.2017.
(146) This Court finds that the aforesaid order of the Adjudicating
officer was a subject matter of challenge by the Appellant
before the Appellate Tribunal in terms of section-44 of the
RERA Act. The said Appeal filed by the Appellant was decided
RERA Appeal No. 67 of 2023 and connected appeals
Page 91 of 94
along with 9 other matters vide the impugned common order
dated 14.03.2022. On a perusal of the impugned judgment of
the Appellate Tribunal it is seen that the Tribunal has
painstakingly recorded details of facts of each Appeal in a
tabular chart and framed the following questions for
determination:
“ i. Whether the Adjudicating officer
ought to have examined the complaint of the
respondent only on the basis of agreed terms
and conditions mentioned in the Registration
Booklet, read with allotment letter.
ii.Whether there is any delay in handing over
of the possession to the allottee, and if yes,
on whose account?
iii. Whether an allottee is entitled for
claiming compensation/ interest for the
delayed possession of the flat and sale deed
has been executed after the allottees agreed
to pay the final cost of the flat?
iv. Whether the respondent is entitled for
interest and/or compensation on account of
delayed possession under the scheme of the
Act, 2016 and whether the rate of interest
granted by the Adjudicating officer is in
accordance with the provisions of the Act,
2016, Rules 2016?”
(147) This Court finds that the Appellate Tribunal has exhaustively
dealt with each of the aforesaid issue and after recording
various precedents, arrived at a decision that as far as the first
issue is concerned, in terms of the Newtech Promoter’s case, the
promoter cannot shirk from the responsibilities/ liabilities under
the Act and the contractual terms do not have an overriding
effect to the retrospective applicability of the authority under
the provisions of the Act. On the facts, the Appellate Tribunal
RERA Appeal No. 67 of 2023 and connected appeals
Page 92 of 94
returned a finding that the project was delayed by 2 years and 4
months in giving of the possession and that the Appellant/
Promoter was solely responsible for the said delay. Further, as
far as the third issue is concerned, the Tribunal after considering
various judgments including that of W. Cdr. Arifur Rahman
Khan and Aleya Sultan and others Vs. DLF Southern Homes
Pvt. Ltd, held that a home buyer does not lose his/her right to
claim compensation for the delay in possession even after
execution of the conveyance deed and taking possession of the
unit/ Apartment/ flat booked by him. The Appellate Tribunal
also returned a finding that the complainant was entitled for
interest on account of delayed possession and that the rate of
interest awarded i.e MCLR + 1% by the regulatory authority
was fair, just and reasonable. Thus, the Appellate Tribunal did
not find any illegality or infirmity in the impugned order of the
Adjudicating Officer and as such dismissed all the Appeals.
(148) This Court finds that the Appellant has filed an Appeal against
the aforesaid impugned order dated 14.03.2022, which are
largely premised on the same grounds and question of law as
has been decided by this court in “RERA Appeal (Defective)
No. 67 of 2023 (Complainant- Dhruv Kr. Chaturvedi). The
fulcrum of the Appeal hinges on the determination of question
as to whether the adjudicating officer appointed under the
RERA section 72 can grant compensation in form of interest in
RERA Appeal No. 67 of 2023 and connected appeals
Page 93 of 94
case where allottee does not exit the project under section 18 of
the RERA Act.
(149) This Court finds that the aforesaid ground has been a subject
matter of challenge in similar other matters, which were
decided by this court in the lead matter- “RERA Appeal No. 67
of 2023 (Complainant- Dhruv Kr. Chaturvedi), wherein this
court held that compensation in the form of interest can be
awarded by the Adjudicating Officer and as such has rejected
the said contention and dismissed the appeal of the Parishad.
(150) Thus, this Court does not find any new issue being raised in the
present bunch of appeals by the learned counsel for the
Appellant, which requires any separate considerations either on
facts or on law and as such the present bunch of Appeals are
also decided in terms of the finding of the lead matter- “RERA
Appeal (Defective) No. 67 of 2023 (Complainant- Dhruv Kr.
Chaturvedi).
(151) Accordingly, RERA Appeal No. 110 of 2023, RERA Appeal
No. 111 of 2023, RERA Appeal No. 112 of 2023, RERA Appeal
No. 113 of 2023, RERA Appeal No. 114 of 2023, RERA Appeal
No. 115 of 2023, RERA Appeal No. 116 of 2023 & RERA
Appeal No. 117 of 2023 are also dismissed.
(152) As a priori, all these appeals are dismissed and interim orders,
if any, stands vacated.
RERA Appeal No. 67 of 2023 and connected appeals
Page 94 of 94
(153) Office is directed to place a copy of this order in each of the
above-captioned appeals.
(154) There shall be no order as to cost.
(Om Prakash Shukla, J.)
Order Date : 18th November, 2023
Ajit/-
RERA Appeal No. 67 of 2023 and connected appeals
