# M/S Elegant Infracon Pvt. Ltd., Varanasi v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Writ-C No. 58 of 2021
- **Bench:** Munishwar Nath Bhandari, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-elegant-infracon-pvt-ltd-varanasi-v-state-of-u-p-ors-46927
- **Pages:** 6

## Headnote

A. Civil Law - Real Estate Regulation -
Real
Estate
(Regulation
and
Development) Act, 2016 - Section 30,
40(1), 43(5) - Real Estate (Regulation
and
Development)
(Agreement
for
Sale/Lease) Rules, 2018 - U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 - Rule 24(a).

Real
Estate
(Regulation
and
Development) Act, 2016 - Section 21,
29, 30 - Jurisdiction - Petitioner did not
raise objection before the single Member
about his competence to adjudicate the
complaint. In absence of objection, the
Authority proceeded with the matter. If the
objection would have been taken and was
sustainable, the complaint could have been
decided by the Authority consisting of three
Members. The petitioner has challenged the
order in reference to the composition only
when he lost in the complaint. (Para 10)

It is not that whatever composition given u/s
21 of the Act alone can decide the complaint
rather reference of S. 29 has been given to
indicate that complaint can be heard even in
absence of the Chairperson and, in any case,
due to the vacancy or any defect in the
constitution of Authority, the proceeding
would not be invalidated. (Para 13)

It is otherwise a fact that the petitioner kept
silence on the hearing of the complaint by
one Member and thereby he cannot now be
allowed and to seek invalidation of the
proceeding going contrary to S. 30 of the Act
of 2016 and his conduct. The first argument
cannot be addressed simply by referring to S.
21 of the Act of 2016 but has to refer to other
provisions, more specifically, S. 30 of the Act
of 2016, which was inserted by the legislature
to save the proceeding if the vacancy exist in
the Authority or other reason. It is otherwise
a fact that an order was issued to delegate
the power to a Member for hearing of the
complaint, which was considered by this Court
in earlier judgment. Thus the first ground
raised by the petitioner cannot be accepted.
The resolution of the Authority has also been
challenged but in the light of S. 30 of the Act
of 2016, we find no ground to set aside the
resolution as otherwise S. 81 saves it. (Para
12, 14)

B. Challenge to Rule 24 (a) of U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 is kept open. It has not
been debated for the reason that an
order of the nature provided under
Regulation 24 (a) has not been passed in
the case in hand. Thus, there is no occasion
for the petitioner to challenge the vires of the
said Regulation in these proceedings. (Para
16)

Writ petition dismissed.(E-3)

Precedent followed:

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
already noticed, there is no quarrel with the
settled law as noted in the preceding
paragraphs of this judgment.

17. In the opinion of the court the
compromise was validly entered into between
the landlord and the sole tenant, who enjoyed
the fruits or the benefits of the same. The
issue of decree to be a nullity is being raised
by the legal heirs by simply seeking relief,
bye-passing the benefits enjoyed by their
predecessor, the original tenant and therefore
by them also through him. The terms of the
compromise
further
indicate
that
the
compromise was, in fact, executed at the cost
of the landlord carving out a new shop out of
a larger shop and handing over the same to
the original tenant and by incurring loss
towards rent as well as, the rent of the tenant
was continued to be Rs. 18/- per month
during lifetime of the original tenant Raj
Bahadur Jain.

18. In such view of the matter, I do not
find any good ground to interfere in the
orders impugned herein in exercise of powers
under Article 226 of the Constition of India.

19. Present petition is devoid of merits
and is accordingly dismissed.

20. However, having considered the
facts and circumstances of the case, subject to
filing of an undertaking by the petitionertenant before the Court below, it is provided
that:

(1) The tenant-petitioner shall handover
the peaceful possession of the premises in
question to the landlord-opposite party on or
before 31.8.2021;

(2) The tenant-petitioner shall file the
undertaking before the Court below to the
said effect within two weeks from the date of
passing of this order;

(3) The tenant-petitioner shall pay
damages @ Rs. 2,000/- per month by 07th
day of every succeeding month and
continue to deposit the same in the Court
below till 31.8.2021 or till the date he
vacates the premises, whichever is earlier
and the landlord is at liberty to withdraw
the said amount;

(4) In the undertaking the tenantpetitioner shall also state that he will not
create any interest in favour of the third
party in the premises in dispute;

(5) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question
till the aforesaid period;

(6) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by
this
Court
shall
stand
vacated
automatically.

(7) In case the premises is not vacated
as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

21. There shall be no order as to costs.
----------
(2021)03ILR A594
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-C No. 58 of 2021

M/S Elegant Infracon Pvt. Ltd., Varanasi
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
3 All. M/S Elegant Infracon Pvt. Ltd., Varanasi Vs. State of U.P. & Ors.
595
Sri Saumitra Dwivedi, Sri Sarvesh Tiwari

Counsel for the Respondents:
C.S.C., Sri Wasim Masood

A. Civil Law - Real Estate Regulation -
Real
Estate
(Regulation
and
Development) Act, 2016 - Section 30,
40(1), 43(5) - Real Estate (Regulation
and
Development)
(Agreement
for
Sale/Lease) Rules, 2018 - U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 - Rule 24(a).

Real
Estate
(Regulation
and
Development) Act, 2016 - Section 21,
29, 30 - Jurisdiction - Petitioner did not
raise objection before the single Member
about his competence to adjudicate the
complaint. In absence of objection, the
Authority proceeded with the matter. If the
objection would have been taken and was
sustainable, the complaint could have been
decided by the Authority consisting of three
Members. The petitioner has challenged the
order in reference to the composition only
when he lost in the complaint. (Para 10)

It is not that whatever composition given u/s
21 of the Act alone can decide the complaint
rather reference of S. 29 has been given to
indicate that complaint can be heard even in
absence of the Chairperson and, in any case,
due to the vacancy or any defect in the
constitution of Authority, the proceeding
would not be invalidated. (Para 13)

It is otherwise a fact that the petitioner kept
silence on the hearing of the complaint by
one Member and thereby he cannot now be
allowed and to seek invalidation of the
proceeding going contrary to S. 30 of the Act
of 2016 and his conduct. The first argument
cannot be addressed simply by referring to S.
21 of the Act of 2016 but has to refer to other
provisions, more specifically, S. 30 of the Act
of 2016, which was inserted by the legislature
to save the proceeding if the vacancy exist in
the Authority or other reason. It is otherwise
a fact that an order was issued to delegate
the power to a Member for hearing of the
complaint, which was considered by this Court
in earlier judgment. Thus the first ground
raised by the petitioner cannot be accepted.
The resolution of the Authority has also been
challenged but in the light of S. 30 of the Act
of 2016, we find no ground to set aside the
resolution as otherwise S. 81 saves it. (Para
12, 14)

B. Challenge to Rule 24 (a) of U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 is kept open. It has not
been debated for the reason that an
order of the nature provided under
Regulation 24 (a) has not been passed in
the case in hand. Thus, there is no occasion
for the petitioner to challenge the vires of the
said Regulation in these proceedings. (Para
16)

Writ petition dismissed.(E-3)

Precedent followed:

1. M/s K.D.P. Build Well Pvt. Ltd. Vs St. of U.P.
& 4 ors., Writ-C No. 2248 of 2020, judgment
dated 04.02.2020 (Para 8)

2. Rudra Buildwell Constructions Pvt. Ltd. Vs
Poonam Sood & anr., Writ-C No. 3289 of 2020,
judgment dated 06.02.2020 (Para 8)

Precedent distinguished:

1. Janta Land Promoters Pvt. Ltd. Vs U.O.I. &
ors., Civil Writ Petition No. 8548 of 2020 (Para
9, 13)

Present petition challenges order dated
31.10.2019,
passed
by
Real
Estate
Regulatory Authority.

(Delivered by Hon'ble Munishwar Nath
Bhandari, J. & Hon'ble Rohit Ranjan
Agarwal, J.)

1. Heard Sri Sarvesh Tiwari, learned
counsel for the petitioner and Sri Washim
Masood,
learned
counsel
for
the
respondent.

2. The writ petition has been filed
with the following prayers:
596 INDIAN LAW REPORTS ALLAHABAD SERIES

"(i) Issue a writ, order or direction in
the nature of Certiorari quashing the order
dated 30.10.2019 passed by respondent
No.4 (contained as Annexure No.1)

(ii) Issue a writ, order or direction in
the nature of Certiorari quashing the
resolution
dated
14.08.2018
and
05.12.2018 passed by respondent No.4
(contained as Annexure-4).

(iii) Issue an appropriate writ, order
or direction for striking down Regulation
24(a) of the U.P. Real Estate Regulatory
Authority (General) Regulation, 2019.

(iv) Issue any other suitable writ order
or direction which this Hon'ble Court
deems fit and proper under the facts and
circumstances of the case.

(v) Award cost of the writ petition to
the petitioner throughout"

3. The petitioner has challenged the
order passed by Real Estate Regulatory
Authority
(in
short
"RERA")
dated
31.10.2019
(wrongly
mentioned
as
30.10.2019 in the prayer clause (i)) though
an appeal against the said order lies under
Section 43(5) of Real Estate (Regulation
and Development) Act, 2016 (in short "Act
of 2016").

4. It is a case where a complaint was
filed by the non-petitioner alleging that
despite payment towards unit No. A-2101 in
the scheme introduced by the petitioner, the
possession of a unit has not been given. The
unit (flat) was booked on 13.10.2016 and was
to be delivered in the year 2018. The prayer
was made for refund of the amount of Rs.
22,70,384/- with interest. The Authority
found that as per the agreement entered
between the parties, possession of the flat in
question should have been delivered by
27.08.2018. The petitioner-Company failed
to show delivery of possession of the flat in
question. Thus, taking into consideration the
default of the Promoter (petitioner herein)
and referring to the judgment of Apex Court,
an order was passed by RERA on 31.10.2019
for refund of the principal amount alongwith
interest. The petitioner has filed this writ
petition to challenge not only the order dated
31.10.2019 passed by RERA but also the
resolutions dated 14.08.2018 and 05.12.2018.
The petitioner has not challenged the
recovery citation dated 31.08.2020.

5. Learned counsel for the petitioner
submits that an appeal against the order
passed by RERA is maintainable but this case
has exceptional circumstances thus even a
writ petition would be maintainable. One
member of RERA has passed the order going
against the Act of 2016. Section 21 provides
for formation of Authority consist of
Chairperson alongwith two whole time
Members. The impugned order is by one
Member alone going against the mandate of
Section 21 of the Act of 2016. In view of the
above, there is no need to prefer an appeal as
the order dated 31.10.2019 is without
jurisdiction.

6. It is also stated that the order to
award interest by the Authority is again going
contrary to the provisions. Rules for award of
interest was introduced in the year 2018. The
amount deposited with the Promotor has been
ordered to be returned with interest. The
interest has been allowed even for the period
prior to introduction of U.P. Real Estate
(Regulation and Development) (Agreement
for Sale/Lease) Rules, 2018 (in short "Rules
of 2018"). It is even ignoring the rate of
interest agreed by the parties. Challenge to
the order has been made on that ground also.

7. We are first taking challenge to the
order dated 31.10.2019, passed by the
Authority to find out as to whether one
member was competent to pass the order.
3 All. M/S Elegant Infracon Pvt. Ltd., Varanasi Vs. State of U.P. & Ors.
597

8. The issue has been raised in
reference to Section 21 but it is not open
for debate having been decided by this
Court in Writ -C No.2248 of 2020 (M/s
K.D.P. Build Well Pvt. Ltd. vs. State of
U.P. and 4 Others) vide judgment dated
04.02.2020 and in Writ- C No.3289 of
2020 (Rudra Buildwell Constructions Pvt.
Ltd. vs. Poonam Sood and Another) vide
judgment dated 06.02.2020 holding order
by one member to be legal. The issue
regarding composition of RERA was
considered in reference to Sections 21 and
81 of the Act of 2016. Section 81 provides
for delegation of power/function and taking
the aforesaid provision into consideration,
the argument was not accepted.

9. At this stage, learned counsel for
the petitioner has made a reference to the
judgment of Punjab and Haryana High
Court on the same issue in Civil Writ
Petition No.8548 of 2020 (Janta Land
Promoters Private Limited vs. Union of
India and others) vide judgment dated
16.10.2020. It is stated that judgment of
this Court has been referred by Punjab and
Haryana High Court and has taken a
different view.

10. What we find is binding effect of
the judgment rendered by this Court than to
follow the judgment of other High Court.
Accordingly, we are unable to accept the first
argument in reference to Section 21 of the
Act of 2016. It is more so when the petitioner
did not raise objection before the single
Member about his competence to adjudicate
the complaint. In absence of objection, the
Authority proceeded with the matter. If the
objection would have been taken and was
sustainable, the complaint could have been
decided by the Authority consisting of three
Members. The petitioner has challenged the
order in reference to the composition only
when he lost in the complaint.

11. It is further necessary to refer
Sections 21, 29 and 30 of the Act of 2016 to
discuss the issue independent to the earlier
judgments. The provisions aforesaid are
quoted hereunder :

"21. Composition of Authority.- The
Authority shall consist of a Chairperson and
not less than two whole time Members to be
appointed by the appropriate Government."

29. Meeting of Authority.- (1) The
Authority shall meet at such places and times,
and shall follow such rules of procedure in
regard to the transaction of business at its
meetings,
(including
quorum
at
such
meetings), as may be specified by the
regulations made by the Authority.

(2) If the Chairperson for any reason, is
unable to attend a meeting of the Authority,
any other Member chosen by the Members
present amongst themselves at the meeting,
shall preside at the meeting.

(3) All questions which come up before
any meeting of the Authority shall be decided
by a majority of votes by the Members
present and voting, and in the event of an
equality of votes, the Chairperson or in his
absence, the person presiding shall have a
second or casting vote.

(4) The questions which come up before
the Authority shall be dealt with as
expeditiously as possible and the Authority
shall dispose of the same within a period of
sixty days from the date of receipt of the
application.

Provided
that
where
any
such
application could not be disposed of within
the said period of sixty days, the Authority
shall record its reasons in writing for not
disposing of the application within that
period.
598 INDIAN LAW REPORTS ALLAHABAD SERIES

30. Vacancies, etc., not to invalidate
proceeding of Authority.- No act or
proceeding of the Authority shall be invalid
merely by reason of--

(a) any vacancy in, or any defect in the
constitution of, the Authority; or

(b) any defect in the appointment of a
person acting as a Member of the
Authority; or

(c) any irregularity in the procedure of
the Authority not affecting the merits of the
case."

12. Section 21 of Act of 2016 speaks
about composition of the Authority, which
shall consist of a Chairperson and not less
than two whole time Members to be
appointed by the appropriate Government.
Section 29, however, talks about the meeting
of Authority and perusal of sub-section (2)
thereof shows that in absence of Chairperson
for any reason, the other Member chosen by
the Members present amongst themselves at
the meeting, shall preside thereby. Subsection (2) to Section 29 permits adjudication
of complaint even in absence of Chairperson
so appointed by the appropriate Government.
Thus, it is not necessary that the adjudication
of the complaint has to be made by the
composition of Authority, as given under
Section 21 of the Act of 2016 though as per
Section 29 also, it should be by two Members
in absence of the Chairperson.

13. Section 30 of Act of 2016 is,
however, relevant and address the issue
raised in this petition. The vacancies, etc. not
to invalidate proceeding of the Authority. It
shows that in case of vacancy, or any defect
in the constitution of the Authority or any
defect in the appointment of a person acting
as a Member of the Authority, the proceeding
of the Authority would not be invalidated.
Section 30 of the Act of 2016 give complete
answer to the objection raised by the
petitioner regarding composition of the
Authority. It is not that whatever composition
given under Section 21 of the Act alone can
decide the complaint rather reference of
Section 29 has been given to indicate that
complaint can be heard even in absence of
the Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority, the proceeding would not be
invalidated. This aspect was not brought to
the notice of Punjab and Haryana High Court
in the case of Janta Land Promoters
Private Limited (supra).

14. It is otherwise a fact that the
petitioner kept silence on the hearing of
the complaint by one Member and thereby
he cannot now be allowed and to seek
invalidation of the proceeding going
contrary to Section 30 of the Act of 2016
and his conduct. The first argument cannot
be addressed simply by referring to
Section 21 of the Act of 2016 but has to be
reference
of
other
provisions,
more
specifically, Section 30 of the Act of 2016,
which was inserted by the legislature to
save the proceeding if the vacancy exist in
the Authority or other reason. It is
otherwise a fact that an order was issued
to delegate the power to a Member for
hearing of the complaint, which was
considered by this Court in earlier
judgment. The challenge to the resolution
would not otherwise sustain in the light of
Section 30 and 81 of the Act of 2016. The
resolution to authorize one member is
even saved by Section 30 of the Act of
2016.

15. Accordingly, we are unable to
accept the argument raised by the counsel
for the petitioner. It would otherwise
frustrate the very object of the Act of 2016
and would give rise to the anarchy,
existing earlier, in the hands of Promoters.
3 All. M/S Elegant Infracon Pvt. Ltd., Varanasi Vs. State of U.P. & Ors.
599

16. So far as challenge to Rule 24 (a)
of U.P. Real Estate Regulatory Authority
(General) Regulation, 2019 is concerned,
the issue is kept open. It has not been
debated for the reason that an order of the
nature provided under Regulation 24 (a)
has not been passed in the case in hand.
Thus, there is no occasion for the petitioner
to challenge the vires of the said Regulation
in these proceedings However, as and when
the Authority invokes Regulation 24 (a) of
Regulation, 2019, the liberty is given to
challenge the validity. Thus, issue is kept
open for the aforesaid.

17. Thus, for all the reasons, we are
unable to accept any of the arguments
raised by the counsel for the petitioner. The
writ petition is accordingly dismissed,
however, with the liberty to avail the
remedy of appeal if other than the issue
decided by us remains, which may include
the issue towards interest.
----------
(2021)03ILR A599
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-C No. 60 of 2021

M/S Elegant Infracon Pvt. Ltd., Varanasi
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Saumitra Dwivedi, Sri Sarvesh Tiwari

Counsel for the Respondents:
C.S.C., Sri Wasim Masood

A. Civil Law - Real Estate Regulation -
Real Estate (Regulation and Development)
Act, 2016 - Section 30, 40(1), 43(5); Real
Estate
(Regulation
and
Development)
(Agreement for Sale/Lease) Rules, 2018;
U.P. Real Estate Regulatory Authority
(General) Regulation, 2019: Rule 24(a).

Real Estate (Regulation and Development)
Act,
2016
-
Section
21, 29,
30
-
Jurisdiction - Petitioner did not raise objection
before the single Member about his competence
to adjudicate the complaint. In absence of
objection, the Authority proceeded with the
matter. If the objection would have been taken
and was sustainable, the complaint could have
been decided by the Authority consisting of
three Members. The petitioner has challenged
the order in reference to the composition only
when he lost in the complaint. (Para 10)

It is not that whatever composition given u/s 21
of the Act alone can decide the complaint rather
reference of S. 29 has been given to indicate
that complaint can be heard even in absence of
the Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority,
the
proceeding
would
not
be
invalidated. (Para 13)

It is otherwise a fact that the petitioner kept
silence on the hearing of the complaint by one
Member and thereby he cannot now be allowed
and to seek invalidation of the proceeding going
contrary to S. 30 of the Act of 2016 and his
conduct.
The
first
argument
cannot
be
addressed simply by referring to S. 21 of the Act
of 2016 but has to refer to other provisions,
more specifically, S. 30 of the Act of 2016,
which was inserted by the legislature to save
the proceeding if the vacancy exist in the
Authority or other reason. It is otherwise a fact
that an order was issued to delegate the power
to a Member for hearing of the complaint, which
was considered by this Court in earlier
judgment. Thus the first ground raised by the
petitioner cannot be accepted. The resolution of
the Authority has also been challenged but in
the light of S. 30 of the Act of 2016, we find no
ground to set aside the resolution as otherwise
S. 81 saves it. (Para 12, 14)