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

- **Citation:** (2021) 3 ILRA 599
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Writ-C No. 60 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-46929
- **Pages:** 5

## 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)
600 INDIAN LAW REPORTS ALLAHABAD SERIES
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

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)
600 INDIAN LAW REPORTS ALLAHABAD SERIES
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:

"(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. F-1803
in the scheme introduced by the petitioner,
the possession of a unit has not been given.
The unit (flat) was booked on 06.05.2015
and was to be delivered in the year 2018.
The prayer was made for refund of the
amount of Rs. 34,23,025/- 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 06.04.2018. 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
3 All. M/S Elegant Infracon Pvt. Ltd., Varanasi Vs. State of U.P. & Ors.
601
dated 31.10.2019 passed by RERA but the
resolutions
dated
14.08.2018
and
05.12.2018.
The
petitioner
has
not
challenged the recovery citation dated
07.09.2020.

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.

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
602 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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 subsection (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. Sub-section (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
3 All. M/S Nishant Traders, Basti Vs. State of U.P. & Ors.
603
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.

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 A603
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE SANJAY YADAV, J.
THE HON'BLE JAYANT BENERJI, J.

Writ-C No. 595 of 2021

M/S Nishant Traders, Basti ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Devbrat Mukherjee

Counsel for the Respondents:
C.S.C.

A. Civil Law - Uttar Pradesh Minor
Minerals
(Concession)
Rules,
1963
-
Clause (a) of sub rule (2) of Rule 23, 9(2);
Mines
and
Minerals
(Regulation
and