# M/S Agc Realty Pvt. Ltd v. Smt. Raj Rani

- **Citation:** (2023) 9 ILRA 1151
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-30
- **Case number:** RERA Appeal Defective No. 42 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-agc-realty-pvt-ltd-v-smt-raj-rani-50743
- **Pages:** 15

## Headnote

1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law-The U.P. Real Estate Regulation
and Development Act, 2016 - The U.P.
Real Estate Regulation and Development
Rules, 2016-Rule 2(h) -The U.P. Urban
Planning Development Act, 1973-Section
15-A--- To claim that the project was not an
'ongoing project' the appellant is under
obligation to plead and prove in the light of Rule
2(h)--- As regards to Sub-Rule (i) and (ii) of
Rule 2(h) of the Rules of 2016, nothing has
been brought on record, wherefrom, it can be
deduced that the services of the project have
been handed over to local authority for
maintenance or that the common areas and
facilities of the same have been handed over to
RWA for maintenance including with regard to
Tower, in issue--- The case set up by the
appellant on the basis of deeming provision in
relation to 'completion certificate', indicated in
Section 15A of the Act of 1973 has no force---
The completion certificate regarding Tower-W,
undisputedly, was given by the Development
Authority
on
26.06.2018---
Appellant
not
entitled to the benefit of Sub-Rule (iii) and (iv)
of Rule 2(h) of the Rules of 2016. (Para 21,
22, 26 & 27)

Appeal dismissed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,933 of 50,907. This is a partial read: ask again with offset=39933 for what follows._

9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1151
the duty of the BPCL to prove by adducing
appropriate evidence that (i) the petroleum
product/consignment was properly loaded;
(ii) quantity was appropriate as indicated in
the receipt(s) and (iii) was got damaged on
account of some misconduct or negligence
on the part of the Railway or its servants.

38. To prove the fact that the
petroleum product at a siding of BPCL was
loaded properly and the same was as
indicated in the receipt(s), the consignor
namely BPCL was under obligation to
adduce the evidence of at least one
appropriate
person
(the
person
who
supervised the loading at a siding of BPCL
or the person who was authorized for
loading and was present at a siding of
BPCL) as also the relevant documentary
evidence viz. Register, book etc. prepared
with regard to loading by BPCL at its
siding.

39. In absence of appropriate
evidence, as indicated above, of consignor,
the 'Joint Dip Certificate' or Calibration
Certificate (on record of F.A.F.O. No.49 of
2018), to the view of this Court, was not
sufficient to allow the claim of the BPCL.
Thus, the BPCL, in all the case(s), failed to
establish its claim as also the negligence of
Railway Administration.

40. In the case(s), indicated above, it
is apparent from record(s) that the BPCL
failed to adduce the evidence, as required,
before the Tribunal.

41. It would be apt to refer here that
the affidavit of evidence in all the case,
except
in
one
case,
as
indicated
hereinabove, was filed by one Sri Baldev,
Senior Assistant Claims, Office of General
Manager, BPCL, Noida, U.P. and this
person has not stated in the affidavit(s) that
he was present at the time of loading,
obviously he can not. Moreover, in these
affidavit(s) it has not been specifically
stated
with
supporting
document(s)
prepared, as per norms, at the time of
loading at a siding of BPCL that (i)
petroleum product, in issue, was properly
loaded; (ii) the sealing, tightening of valves
etc. was done as per norms and further the
affidavit(s) are also silent on the aspects
indicated under Sub-section (f) and (g) of
Section 93. Thus, to the view of this Court,
the evidence adduced by the BPCL in all
the case(s) was not appropriate/sufficient so
as to allow the claim(s) of BPCL.

42. In view of the circumstances set
forth above there cannot be any other
conclusion but to dismiss these appeals.

43. In the result, these appeals are
dismissed but without any order as to
costs.

44. Let the lower court records be
returned
to
the
tribunal
concerned
forthwith.
----------
(2023) 9 ILRA 1151
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

RERA Appeal Defective No. 42 of 2023

M/S Agc Realty Pvt. Ltd. ...Appellant
Versus
Smt. Raj Rani ...Respondent

Counsel for the Appellant:
Aahuti Agarwal, Abhishek Khare

Counsel for the Respondent:
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law-The U.P. Real Estate Regulation
and Development Act, 2016 - The U.P.
Real Estate Regulation and Development
Rules, 2016-Rule 2(h) -The U.P. Urban
Planning Development Act, 1973-Section
15-A--- To claim that the project was not an
'ongoing project' the appellant is under
obligation to plead and prove in the light of Rule
2(h)--- As regards to Sub-Rule (i) and (ii) of
Rule 2(h) of the Rules of 2016, nothing has
been brought on record, wherefrom, it can be
deduced that the services of the project have
been handed over to local authority for
maintenance or that the common areas and
facilities of the same have been handed over to
RWA for maintenance including with regard to
Tower, in issue--- The case set up by the
appellant on the basis of deeming provision in
relation to 'completion certificate', indicated in
Section 15A of the Act of 1973 has no force---
The completion certificate regarding Tower-W,
undisputedly, was given by the Development
Authority
on
26.06.2018---
Appellant
not
entitled to the benefit of Sub-Rule (iii) and (iv)
of Rule 2(h) of the Rules of 2016. (Para 21,
22, 26 & 27)

Appeal dismissed. (E-15)

List of Cases cited:

1. Bharat Sanchar Nigam Ltd. & anr.Vs Nortail
India Pvt. Ltd.; (2021) 5 SCC 738

2. St. of Kerala Vs Zoom Developers Pvt. Ltd.;
(2009) 4 SCC 563

3. Tecpro Systems Ltd. Vs Telangana St. Power
Generation Power Ltd. ; 2019 SCC Online TS
1658.

4. ITD Cementation India Ltd. Vs SSJV-Joint
Venture & ors.; 2023 (2) SCC Online Delhi 1391

5. Chloro Controls India Pvt. Ltd. Vs Severn
Trent Water Purification Inc. & ors.; (2013) 1
SCC 641

6. Vidya Drolia & ors.Vs Durga Tradi Corp.; 2021
(2) SCC 1

(Delivered by Hon'ble Saurabh Lavania, J.)

C.M. Application No.IA-01-2023

Heard.

The present appeal has been filed by
the appellant along with an application for
condonation of delay as the registry has
indicated delay of 39 days in filing the
instant appeal.

The cause shown in the affidavit filed
in
support
of
the
application
for
condonation of delay to the view of this
Court
is
sufficient. Accordingly,
the
application is allowed.

Delay is condoned.

Order on Appeal

1. For the purpose of admission, Shri
Abhishek Khare, learned counsel for the
appellant assisted by Ms. Aahuti Agrawal
says that in the instant appeal assailing the
order dated 08.12.2022 passed by Uttar
Pradesh Real Estate Appellate Tribunal
Lucknow (in short "Lucknow") in appeal
No.308 of 2019 (Smt. Rajrani and another
vs. M/S Agc Realty Private Limited), the
main issue revolves around the expression
'ongoing project' which expression, infact,
has not been defined under the Act, namely,
Uttar Pradesh Real Estate (Regulation and
Development) Act, 2016 (in short "Act of
2016"), however, the same has been
indicated in the U.P. Real Estate Regulation
And Development Rules, 2016 (in short "
Rules of 2016"), particularly, Rule 2(h).

2. He submitted that this aspect of the
case is required to be dealt with as it strikes
the issue of jurisdiction of the Tribunal. If
this Court comes to the conclusion that the
project in issue of the present appellant was
9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1153
an 'ongoing project' as defined under Rule
2(h) of Rules, 2016, at the time of filing of
the complaint, then in that case, the claim
was rightly entertained else the Tribunal
was not having jurisdiction to decide the
claim of the private opposite parties and the
order would be set aside on the ground of
jurisdiction.

3. It would be apt to refer that the
present appeal has been preferred by the
appellant-M/S Agc Realty Private Limited
under Section 58 of the Act of 2016. It is
also settled principle of law that the appeal
under Section 58 is akin to the second
appeal as provided under Section 100 of
Code of Civil Procedure, meaning thereby,
if the appeal involves substantial question
of law, then can only be entertained
otherwise the appeal can be dismissed at
the admission stage.

4. On the expression of 'ongoing
project', the learned counsel for the
appellant stated that the project was
introduced / launched in the year 2009.
This project is known as " Homes 121.
NOIDA". As per the plan, Twenty Two
Towers were to be constructed. Admittedly,
when the Act and Rules of 2016, came into
force, only Twenty One Towers were
constructed rather completed in all aspects.
It is in view of the fact that 'occupation
certificate' of these Towers were provided
by the competent authority, namely, New
Okhla Industrial Development Authority,
Noida (in short "Development Authority")
on 25.02.2016.

5. He further stated that one tower i.e.
Tower-W, out of Twenty Two Towers,
theOrder
on
Appeal

'occupation
certificate' though applied prior to coming
into force of the Act and Rules of 2016,
was not issued by the Development
Authority. In this Tower-W, the flat of the
respondents is situated. Undisputeldy, the
Flat No.12023, 12th Floor, Tower W was
allotted to the respondent by the appellant.

6. He also stated that in Tower-W,
there are as many as ninety two flats. As
per the allotment letter dated 09.03.2012,
the appellant (Promoter/ Developer) was
under obligation to provide the possession
of the flat by July 2014. As the possession
was not given, the private opposite parties
approached the U.P. Real Estate Regulatory
Authority claiming refund of the amount
deposited with the appellant. The amount
claimed before the authority as per record
was Rs. 75,87,757/-. The claim of the
private opposite parties was opposed by the
appellant by filing the written statement. In
short, in the written statement regarding the
delay, it has been indicated that, in fact,
there was no delay in constructing the
Tower-W. The Tower-W was constructed
within time and the application was
preferred
for
providing
'occupation
certificate' regarding the Tower-W before
the Development Authority in the year
2015.

7. At this stage, on query being put,
neither
the
date
of
presenting
the
application nor the copy of the application
could be placed before this Court.

8. Learned counsel for the appellant
further stated that despite preferring the
application in the year 2015 seeking
'occupation certificate', the authority failed
to provide the 'occupation certificate', as
such, there is no fault on part of the
appellant. Moreover, Section 15-A of the
U.P. Urban Planning Development Act,
1973 (in short "Act of 1973"), which is
applicable in the instant case, provides
deeming
provision
in
relation
to
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
'completion certificate' and accordingly,
taking note of the fact that the application
seeking
'occupation
certificate'
was
preferred in the year 2015 and the Act of
2016 came into force on 01.05.2017, it can
be deemed that the 'occupation/completion
certificate' was issued by the authority
concerned.

9. At this stage, a query being put to
counsel for the appellant that as to whether
the document i.e. application seeking
'occupation certificate' was filed before the
Authorities under the Act of 2016 including
the Tribunal in support of pleadings related
to
preferring
an
application
seeking
'occupation/completion certificate' made in
the written statement, he fairly stated that
the application was not filed.

10. It would be apt to refer that it is
settled principle of law that pleadings could
be considered only when in support thereof
there is an evidence on record and vice
versa, meaning thereby, in absence of
evidence,
the
pleadings
cannot
be
considered and evidence in absence of
pleadings cannot be considered.

11. It would also to be noted at this
stage that copies of 'occupation/completion
certificate' on record dated 15.02.2016 and
26.06.2018 indicate that regarding TowerW, the inspection was carried out on
18.12.2017 and thereafter, 'occupation
certificate' in relation to Tower-W was
issued on 26.06.2018.

12. To support his case based upon
Rule 2(h) (ii) and (iii), counsel for the
appellant further stated that the project
admittedly contains Twenty Two Towers
and Twenty One Towers were completed
and 'occupation certificate' in relation to
these 21 Towers was issued by the
Development Authority on 15.02.2016 and
more than sixty percent apartments were
handed over to the allottees. Thus, as per
Rule 2(h), the project was not an 'ongoing
project'. Thus, the Authority or the Tribunal
under the Act of 2016 was not having
jurisdiction to entertain and decide the case
or appeal, as the case may be.

13. To substantiate the fact that prior
to the Act of 2016, which came into force
on 01.05.2017, more than 60% sale-deeds
were executed, learned counsel for the
appellant, based upon the supplementary
affidavit dated 05.04.2023, stated that a
perusal of Annexure SA-1, which is a copy
of chart pertaining to registration of saledeeds, would show that the sale-deeds of
approximately 73% of the flats of whole
project prior to commencement of the Act
of 2016 were executed.

14. However, a perusal of the chart
annexed with the supplementary affidavit
reflects that no flat of Tower-W, in which
flat in issue is situated and which form part
of Phase-IV, was sold prior to coming into
force of the Act of 2016.

15. During the course of the
arguments on being asked that 'occupation
certificate' or 'completion certificate' were
to be obtained phase-wise/Tower-wise as
per the brochure of the project or
agreement between the parties, in issue,
and that whether the same indicates
separate date of completion of Towers and
handing over the possession of the same,
learned counsel for the appellant failed to
reply the said queries based upon the
documents available on record.

16. Before considering the submission
of the counsel for the appellant, this Court
is of the view that the decision of the
9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1155
Tribunal on issue No.6 is relevant, as the
same relates to the issue involved in this
appeal and while deciding the same, the
Tribunal referred all the relevant provisions
of the Act of 2016 and Rules of 2016.
Accordingly,
the
same
is
extracted
hereinunder:-

15. Vide Issue No. (6) we are
required to examine as to Whether there is
any illegality or perversity in the impugned
order dated 02.08.2019?

15.1 As per the pleadings of the
respondent, the respondent launched a real
estate project in the name of 'Homes 121,
Noida' in several phases consisting of 22
towers. The Noida Authority issued OC/CC
on 15.12.2016 to the respondent for 21
towers containing 1640 dwelling units,
copy of the same has been placed on record
by the respondent along with its reply dated
02.11.2020 as R-3. The respondent in para
9 of the reply admitted that there remained
only one power, namely Tower-W which
contains only 92 dwelling units and
construction
whereof
had
also
been
completed in the year 2015. The issue of
occupation certificate was lying with the
Noida
Authority
and
the
competent
authority
of
Noida
issued
occupation/completion
certificate
on
22.06.2018
in
respect
of
Tower-W
(Annexure R-6).

15.2 The appellant has brought on
record a copy of the order dated 02.01.2019
of the Secretary, UP RERA, whereby the
respondent was informed that the project of
the respondent falls in the category of
'ongoing project' and by not registering the
same with UP RERA the respondent
violated the provisions of the Act 2016 and
directed for registration of the same as per
order of UP RERA dated 27.11.2018 along
with prescribed penalty, within 7 days,
failing which action will be initiated under
the provisions of Section 59 of the Act
2016.

15.3 The learned counsel for the
appellant further submitted that Regulatory
Authority, without examining the direction
of the Secretary, UP RERA issued by the
competent
authority
of
Noida
on
22.06.2018, held that the project in
question is not required to be registered,
while directing the pleadings and prayer of
the appellant. It was incumbent, against the
pleadings and prayer of the appellant. It
was incumbent upon the Regulatory
Authority to proceed against the respondent
for not registering the project with UP
RERA, taking into consideration the fact
that OC/CC of Tower-W has been issued by
the competent authority Noida much after
enforcement of the provisions of the Act
2016, wherein it was incumbent upon the
promoter of ongoing project to get the same
registered within three months.

15.4
It
would
be
apt
to
understand the import of certain sections,
definitions contained under the Act and the
Rules framed thereunder. Section 3 of the
Real Estate (Regulation and Development)
Act, 2016 which came into effect on 25th
March, 2016, is being reproduced below:-

Section 3 "Prior registration of
real estate project with Real Estate
Regulatory Authority"

(1) No promoter shall advertise,
market, book, sell or offer for sale, or invite
persons to purchase in any manner any
plot, apartment or building, as the case may
be, in any real estate project or part of it, in
any planning area, without registering the
real estate project with the Real Estate
Regulatory Authority established under this
Act:

Provided that projects that are
ongoing on the date of commencement of
this Act and for which the completion
certificate has not been issued, the
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
promoter shall make an application to the
Authority for registration of the said project
within a period of three months from the
date of commencement of this Act:

Provided further that if the
Authority thinks necessary, in the interest
of allottees, for projects which are
developed beyond the planning area but
with the requisite permission of the local
authority, it may, by order, direct the
promoter of such project to register with
the Authority, and the provisions of this Act
or
the
rules
and
regulations
made
thereunder, shall apply to such projects
from that stage of registration.

(2)
Notwithstanding
anything
contained in sub-section (1), no registration
of the real estate project shall be required-

(a) where the area of land
proposed to be developed does not exceed
five hundred square meters or the number
of apartments proposed to be developed
does not exceed eight inclusive of all
phases:

Provided that, if the appropriate
Government considers it necessary, it may,
reduce the threshold below five hundred
square meters or eight apartments, as the
case may be, inclusive of all phases, for
exemption from registration under this Act:

(b) where the promoter has
received completion certificate for a real
estate project prior to commencement of
this Act:

(c) for the purpose of renovation
or repair or re-development which does not
involve marketing, advertising selling or
new allotment of any apartment, plot or
building, as the case may be, under the real
estate project.

Explanation. -For the purpose of
this section, where the real estate project is
to be developed in phases, every such
phase shall be considered a standalone real
estate project, and the promoter shall obtain
registration under this Act for each phase
separately.

15.5 Thus under Chapter II of the
Act 2016, registration of real estate projects
become mandatory and to make the statute
applicable and to take its place under Subsection (1) of Section 3, it was made
statutory that without registering the real
estate project with a real estate regulatory
authority established under the Act, no
promoter shall advertise, market, book, sell
or offer for sale, or invite persons to
purchase in any manner a plot, apartment
or building, as the case may be in any real
estate project, but with the aid of provisions
to Section 3(1), it was mandated that such
of the projects which are ongoing on the
date of commencement of the Act and more
specifically the projects to which the
completion certificate has not been issued
such promoters shall be under obligation to
make an application to the authority for
registration of the said project within a
period of three months from the date of
commencement of the Act, except as the
projects covered by sub section-(2) of
Section 3 of the Act, as a consequence, all
such home buyers agreements which have
been executed by the parties inter se have
to abide the legislative mandate
in
completion of their ongoing projects.

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:-

"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
9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1157
areas,
the
development
works,
all
improvements and structures thereon, and
all easement, rights and appurtenances
belonging thereto"

As per the legislative mandate,
the Act is intended to apply even to the
ongoing real estate projects. The expression
"On Going Project" has been defined under
Rule 2(h) of the U.P. 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 fulfill 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."

The
expression
"Completion
Certificate" has been defined under Section
2(q) and "Occupancy Certificate" 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;"

15.6 Looking at the scheme of the
Rules, the Completion Certificate can only
be issued after all norms etc. have been
complied with and only thereafter a project
would escape from the mandate of
registration.

15.7 Further, as per the scheme of
Act 2016 and Section 3 in particular 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 stakeholders, 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.

15.8 The Apex Court recently in
M/s Newtech Promoters and Developers
Pvt. Ltd. Vs. State of U.P. & others (Civil
Appeal No.(s) 6745-6749 of 2021 arising
out of SLP (Civil) No.(s) 3711-3715 of
2021 had the occasion to consider as to
whether the Real Estate (Regulation and
Development) Act, 2016 is retrospective or
retroactive in its operation and what will be
its legal consequence, if tested on the ambit
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Constitution of India. The Apex
Court after extensive analysis of the aims
and objects, provisions of the Act observed
as under:-

"41. The clear and unambiguous
language of the statute is retroactive in
operation and by applying purposive
interpretation rule of statutory construction,
only one result is possible, i.e., the
legislature
consciously
enacted
a
retroactive statute to ensure sale of plot,
apartment or building. real estate project is
done in an efficient and transparent manner
so that the interest of consumers in the real
estate sector is protected by all means and
Sections 13, 18(1) and 19(4) are all
beneficial provisions for safeguarding the
pecuniary interest of the consumers/
allottees. In the given circumstances, if the
Act
is
held
prospective
then
the
adjudicatory mechanism under Section 31
would not be available to any of the allottee
for an ongoing project. Thus, it negates the
contention of the promoters regarding the
contractual terms having an overriding
effect over the retrospective applicability of
the Act, even on facts of this case.

42. What the provision further
emphasizes is that a promoter of a project
which is not complete/sans completion
certificate shall get the project registered
under the Act but while getting the project
registered, promoter under an obligation to
prescribe fresh timelines for getting the
remaining development work completed and
from the scheme of the Act, we do not find
that the first proviso to Section 3(1) in any
manner is either violative of Articles 14 and
19(1)(g) of the Constitution of India. The
Parliament is always competent to enact any
law affecting the antecedent events under its
fold within the parameters of law,"

The Apex Court further drawing a
distinction
between
retrospective
and
retroactive statutes observed as under-

48.
The
distinction
between
retrospective and retroactive has been
explained by this Court in Jay Mahakali
Rolling Mills Vs. Union of India and
Others, which reads as under:-

"8.
"Retrospective"
means
looking backward, contemplating what is
past. having reference to a statute or things
existing before the statute in question.
Retrospective law means a law which looks
backward or contemplates the past, one,
which is made to affect acts or facts
occurring, or rights occurring, before it
comes into force. Retroactive statute means
a statute, which creates a new obligation on
transactions or considerations or destroys
or impairs vested rights,"

49. Further, this Court in Shanti
Conductors Private Limited and Another
Vs. Assam State Electricity Board and
Others, held as under:-

"67. Retroactivity in the context
of the statute consists of application of new
rule of law to an act or transaction which
has been completed before the rule was
promulgated. 68. In the present case, the
liability of buyer to make payment and day
from which payment and interest become
payable under Sections 3 and 4 does not
relate to any event which took place prior
to the 1993 Act, it is not even necessary for
us to say that the 1993 Act is retroactive in
operation. The
1993 Act
is
clearly
prospective in operation and it is not
necessary to term it as retroactive in
operation. We, thus, do not subscribe to the
opinion
dated
31.8.2016
[Shanti
Conductors (P) Ltd. v. Assam SEB. (2016)
15 SCC 13] of one of the Hon'ble Judges
holding that the 1993 Act is retroactive."

50. In the recent judgment of this
Court rendered in the case of Vineeta
Sharma Vs. Rakesh Sharma and Others
wherein, this Court has interpreted the
scope of Section 6(1) of the Hindu
9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1159
Succession
Act,
1956,
the
law
of
retroactive statute held as under:-

"61.
The
prospective
statute
operates from the date of its enactment
conferring new rights. The retrospective
statute operates backwards and takes away
or impairs vested rights acquired under
existing laws. A retroactive statute is the
one that does not operate retrospectively. It
operates in futuro. However, its operation is
based upon the character or status that
arose earlier. Characteristic or event which
happened in the past or requisites which
had been drawn from antecedent events.
Under the amended Section 6, since the
right is given by birth, that is, an antecedent
event,
and
the
provisions
operate
concerning claiming rights or and from the
date of the Amendment Act,"

"51. Thus, it is clear that the
statute is not retrospective merely because
it affects existing rights or its retrospection
because a part of the requisites for its
action is drawn from a time antecedent to
its passing, at the same time, retroactive
statute means a statute which creates a new
obligation on transactions or considerations
already passed or destroys or impairs
vested rights.

52. The Parliament intended to
bring within the fold of the statute the
ongoing real estate projects in its wide
amplitude used the term "converting and
existing building or a part thereof into
apartments"
including
every kind
of
developmental activity either existing or
upcoming in future under Section 3(1) of
the Act, the intention of the legislature by
necessary implication and without any
ambiguity is to include those projects
which were ongoing and in cases where
completion certificate has not been issued
within fold of the Act

54. From the scheme of the Act
2016, its application is retroactive in
character and it can safely be observed that
the projects, already completed or to which
the completion certificate has been granted
are not under its fold and therefore, vested
or accrued rights, if any, in no manner are
affected. At the same time, it will apply
after getting the ongoing projects and
future projects registered under Section 3 to
prospectively follow the mandate of the Act
2016."

15.9 We have also examined the
provisions
of
the
U.P.
Apartment
(Promotion of Construction, Ownership
and Maintenance) Act, 2010, wherein in
Chapter II under the heading of DUTIES
AND LIABILITIES OF PROMOTERS
vide Section 4(5) it has been provided that
an apartment hay be transferred to any
person only after obtaining the completion
terificate from the prescribed sanctioning
authority concerned as per balding byelaws and under the heading of Explanation,
it has been further provided that for the
purposes of this sub-section "completion"
means
or
the
completion
of
the
construction works of a building as a whole
the completion of an independent block of
such building, as the case may be.

15.10
The
purpose
of
this
beneficial legislation', it says "is to
safeguard the pecuniary interest of the
consumers/allottees". It was observed that
the Act, obligates a promoter to get a
project registered, which is either not
complete or is sans completion certificate
on the date of commencement of the Act.

15.11
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.
1160 INDIAN LAW REPORTS ALLAHABAD SERIES
Therefore, the ambit of Act is to bring all
projects under its fold, provided that
completion certificate has not been issued.
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 certificate on the date of
commencement of the Act. The project is
ongoing or not it has to be distinguished on
the basis of ongoing project under Section
3(2)(h) of the Act 2016 which states that
where
the
promoter
has
received
completion certificate for a real estate
project prior to commencement of the Act
2016 notwithstanding anything contained
in sub-section (1), no registration of real
estate project is required and the project
shall not be 'ongoing project', but in other
cases with respect to the project existed at
the time of commencement of the Act, the
same need to the registered failing which
the Regulatory Authority is required to take
action under Section 59 of the Act 2016
and
ensure
that
ongoing
project
is
registered in order to make the provisions
of the Act and Rules 2016 applicable.

15.12 Section 31 of the Act deals
with filing of complaint and reads that
"Any
aggrieved
person
may
file
a
complaint with the Authority or the
adjudicating officer, as the case may be, for
any violation or contravention of the
provisions of the Act or the rules and
regulations made thereunder against any
promoter allottee or real estate agent, as the
case may be.

15.13 An aggrieved person has
not been defined in the Act, which means
that this term should be given a wider and
not a restrictive interpretation, in this
scenario, any person can come to agitate
his/her grievance before the Authority. If a
complaint is made under section 31 for
violation or contravention of the provisions
of the Act (as the language of the statute
suggests), it may also include a complaint
by the allottee against the promoter for not
registering the project, apart from other
complaints
of
non-delivery,
delayed
possession or any other conceivable, or
otherwise, an exploitative condition, where
a person's life's earnings are at stake in a
real estate project.

5.14 The authority would have to
admit a complaint even if it is to reach a
conclusion about the completion of a
project or to draw further conclusions about
the applicability of the Act. Merely because
a project hasn't been registered can never
be an acceptable reason to deprive the
allottee of his/her statutory right to file a
complaint.

15.15 In our view, the Authority
has to act as a watchdog and play an active
role in thwarting such malpractices which
may result in closing its doors to any
aggrieved person.

15.16
Further,
the Authority
cannot also turn a blind eye to its own
powers under Section 35, under which it
can act suo motu to call for information or
clarifications relating to the affairs of any
promoter, especially when an allottee
complaint of incomplete work as well as
infrastructural
development,
suggesting
that the project may still be an ongoing
project.

15.17 Sections 32, 34 and 35 of
the Act read together leave no doubt that
the Authority is a watchdog designed to
ensure transparency in the real estate sector,
to protect all players, be it the allottee, the
promoter Or be a real estate agent. The
underlying emphasis is to protect the
interest of an allottee, who is a dwarf
compared
to
the
might
of
the
promoters/developers.

15.18 No doubt the language of
the statute would state that registration
9 All. M/S Agc Realty Pvt. Ltd. Vs. Smt. Raj Rani
1161
would not be required on completion of a
project, but in the event of a complaint
regarding
deficiency
in
development
works, it is the duty of the Authority to
consider
the
matter,
watch
closely,
otherwise such pleas may be resorted to by
unscrupulous
developers/promoters
to
defeat the valuable rights of the allottees.

15.19 We are of the opinion that
the language of the statute also provides
that a developer shall be protected from the
registration and consequences of the Act,
only in case where the project was
completed with completion certificate. But,
to establish a fact that whether the project
is ongoing or completed just to free the
promoter from the consequences of the act
are matters of fact to be determined in the
course of proceedings initiated by an
aggrieved person. Non-applicability of the
Act cannot be a presumption to be derived
from a mere fact simplification of a project
not being registered.

15.20 Proceeding under section
59 of the Act is a course available to the
Authority except for determination of a
complaint. Once a complaint is filed on
issues pointing out the deficiencies and
defaults of a promoter, the Authority has to
decide on its own whether to take recourse
to the procedure prescribed under section
59 after filing a complaint.

15.21 As the provisions of the
Act 2016 were enforced with effect from 1"
May 2016 and, therefore, in absence of
completion certificate for Tower-W, which
contains the unit of the appellant, the
Tower-W will fall in the category of
ongoing
project
and,
therefore,
the
respondent is required to register the same
with UP RERA under the provisions of
Section 3 of the Act 2016.

15.22 In our considered view the
finding
of
the
Regulatory Authority
regarding no requirement of registration of
the project of the respondent is not only
perverse but also against the record. Apart
from this, a direction has been issued for
giving possession, which is contrary to the
pleadings of the complainant/appellant.

15.23 It was also incumbent upon
the Regulatory Authority to get the issue
examined regarding status of the project by
referring the matter to the administrative
side of the Regulatory Authority, in the
instant case the Secretary had already
issued direction to the respondent for
registration of the project being fallen in
the category of ongoing project but
surprisingly contrary to the said order
leamed Bench of Regulatory Authority
passed the impugned order.

15.24 On the basis of the
aforesaid analysis and after examining the
provisions of the Act 2016 and the Rules
2016, we hold that at the time of
enforcement of the provisions of the Act
2016 (i.e. 01.05.2016) the project of the
respondent fell in the category of ongoing
project and was required to be registered
with UP RERA. The directions for the
same had already been issued by the
Secretary of the UP. RERA. Thus, we find
the impugned order dated 02.08.2019 is not
only perverse but also illegal and against
the record. Issue no. (6) is answered
accordingly.

The Hon'ble Supreme Court vide
its judgments (i) Civil Appeal No. 3182 of
2019 Kolkata West Industrial City Pvt.
Ltd. Vs. Devashish Ryudra, (ii) Civil
Appeal No. 3207 & 3208 of 2019 Marvel
Omega Builders Pvt. Ltd. & others Vs. S.
Wiharis Gokhale & others, (iii)(2018)5
SCC 442
Fortune
Infrastructure
and
another Vs. Trevor D. Lima & others and
(iv)
(2007)6
SCC
711
Bangalore
Development Authority Vs. Syndicate
Bank was pleased to observe that it would
be unreasonable to require the allottee to
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
wait indefinitely for possession of the unit
and the allottee is entitled to seek refund of
the amount paid by him along with
compensation.

17. On the basis of the aforesaid
analysis we are of the considered view that
the judgment and order dated 02.08.2019
passed by the Regulatory Authority in
Complaint No. 11201824577 (Smt. Raj
Rani & Shri Virendra Kumar Vs. M/S AGC
Realty Pvt. Ltd.) is not sustainable in the
eyes of law. Accordingly, the same is
hereby set aside and we allow the appeal
with the following directions:--

(i) The respondent is directed to
refund the amount of Rs.75,87,7571- to the
complainant/appellants.

(ii) The respondent is further
directed
to
pay
interest
to
the
complainant/appellants on the amount of
Rs. 75,87,757/- from the date of deposit till
the refund of the amount at the rate of
MCLR+1% per annum."

17. Considered the submissions made by
the learned counsel for the appellant and
perused the record including the order, under
appeal, dated 08.12.2022 passed by the
Tribunal.

18. The question in the present case is as
to whether the project or Tower- W, in issue,
would be covered under the expression
'ongoing project', which has been defined
under Rule 2(h) of the Rules of 2016 or not.

19. In order to decide the issue aforesaid,
this Court is of the view that following facts
are required to be considered:-

(i) The appellant/promoter started
the project in the name and style "Homes121 NOIDA". As per plan, 22 Towers were
to be constructed.

(ii) As per admitted case, with
regard to 21 Towers except Tower, in issue,
i.e.
Tower-W
were
completed
and
'occupation/completion
certificate'
was
provided by the Development Authority on
15.02.2016.

(iii) As per agreement between
the parties, the possession of the flat, in
issue, i.e. Flat No. 1202 in Tower-W in
Phase-IV was to be handed over to the
Allottee(s) (respondents) in the month of
July, 2014.

(iv) The relevant clause of
agreement under the heading 'PERIOD OF
POSSESSION' says that "The Tower wise
possession of the flat shall be given to the
Allottee(s).