# M/s K.D.P. Build Well Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1758
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Writ C No. 2248 of 2020
- **Bench:** Abhinava Upadhya, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-k-d-p-build-well-pvt-ltd-v-state-of-u-p-ors-45566
- **Pages:** 13

## Headnote

C.S.C., Sri Anil Tiwari, Sri Wasim Masood
Khan

A. U.P. Real Extate ( Regulation and
Development)
(
Agreement
for
sale/Lease) Rules, 2018; Real estate
(Regulation and Development) Act, 2016Petitioner-a private limited company-didnot
delivered the possession of the flat to the
Respondent purchased by him-Real Estate
Regulatory Authority-diected the Petitioner-to
repay all the deposited amount plus 1%
interest from date of deposit-interest chargedaccurate-as per clause9.2(ii) of form of
agreement in Rules, 2018 -Petition dismissed.

Held,

It is further not denied by the petitioner that
the order of the U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar was passed in
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1759
the year 2018 and since then any amount in
compliance of the order impugned was paid to
the respondent no.5. This conduct of the
petitioner shows that he is not liable to get any
sympathy by this Court while exercising extra
ordinary jurisdiction under Article 226 of the
Constitution of India. It is further obseraved
that the law of equity and principle of natural
justice go in favour of respondent No.5. (para
29)

Cases cited:

## Text

_Characters 0–39,942 of 42,277. This is a partial read: ask again with offset=39942 for what follows._

1758 INDIAN LAW REPORTS ALLAHABAD SERIES
reason given in the impugned order that the
continuance of the petitioner in service
would have an adverse moral effect has
absolutely no rational connection with the
subject matter of inquiry. Whether the rifle
was lost in transit by the petitioner or not
could have been enquired into and it is not
the case of the respondent that there was any
threat to security or anything otherwise
which may obstruct the smooth holding of an
inquiry. The reason given in the impugned
order, therefore, proceeds on an assumption
which cannot be accepted as reasonable. It
cannot stand the scrutiny as indicated by the
Apex Court in the decision of Tulsi Ram
Patel (supra) and we are, therefore, unable
to approve the same.

23. From the perusal of judgments
referred in above, this fact is very much clear
that order of termination cannot be passed on
the basis of punishment or past service record
without providing opportunity of hearing and
further while passing any order under Rule
8(2)(b) of Rules, 1991 reasons have to be
recorded by authority in writing as to why
inquiry is not reasonably practicable.

24. In the present case, there is no
dispute that while passing the impugned order,
no reasons have been recorded and it is passed
only on the basis of previous service record,
which is contrary to the provisions of Rule
8(2)(b) of Rules, 1991 as well as Article
311(2)(b) of the Constitution of India. The
Court has repeatedly held that order cannot be
passed on the basis of previous service record
as well as without recording reasons. Not only
this Court had gone to the extent that in case
reasons are recorded that must be satisfactory
and mere formality of recording reasons
cannot be accepted.

25. Therefore, in light of factual and
legal discussions made hereinabove, impugned
order dated 31.8.2009 is bad in law and is
hereby set aside.

26. Accordingly, the writ petition is
allowed. No order as to costs.
----------
(2020)02ILR A1758

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE

THE HON'BLE ABHINAVA UPADHYA, J.
THE HON'BLE SHAMIM AHMED, J.

Writ C No. 2248 of 2020

M/s K.D.P. Build Well Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjeev Kumar Pandey, Sri Rohit
Nandan Pandey

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

A. U.P. Real Extate ( Regulation and
Development)
(
Agreement
for
sale/Lease) Rules, 2018; Real estate
(Regulation and Development) Act, 2016Petitioner-a private limited company-didnot
delivered the possession of the flat to the
Respondent purchased by him-Real Estate
Regulatory Authority-diected the Petitioner-to
repay all the deposited amount plus 1%
interest from date of deposit-interest chargedaccurate-as per clause9.2(ii) of form of
agreement in Rules, 2018 -Petition dismissed.

Held,

It is further not denied by the petitioner that
the order of the U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar was passed in
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1759
the year 2018 and since then any amount in
compliance of the order impugned was paid to
the respondent no.5. This conduct of the
petitioner shows that he is not liable to get any
sympathy by this Court while exercising extra
ordinary jurisdiction under Article 226 of the
Constitution of India. It is further obseraved
that the law of equity and principle of natural
justice go in favour of respondent No.5. (para
29)

Cases cited:

1.
V.K.
Ashokan
vs.
Assistant
Excise
Commissioner and others; (2009) 14 SCC 85

2. Union of India through Director of Income
Tax vs. Tata Chemicals Limited, (2014) 6 SCC
335

3. Union of India and another Vs. Association
of United Teelecom Service Providers of India
and others, (2011) 10 SCC 543

4. Central Banking India Vs. Ravindra, (2002) 1
SCC 367

5. Syndicate Bank v. M/s. West Bengal
Cements Limited and Ors, AIR (1989) Delhi 107

6. Thazhathe Purayil Sarabi and others Vs.
Union of India and another, reported in (2009)
7 SCC 372

7. Standard Chartered Bank vs. Dharminder
Bhohi & ors (2013) 15 SCC 241

(Delivered by Hon'ble Shamin Ahmad, J.)

1. Heard Shri Sanjeev Kumar
Pandey, learned counsel for the petitioner,
learned Standing Counsel for respondent
nos.1, 3 and 4 and Shri Wasim Masood
Khan holding brief of Shri Anil Tiwari,
learned
counsel
appearing
for
the
respondent No.2.

2. The present writ petition has been
filed by the petitioner with the following
prayer;

"(i) To issue a writ, order or
direction in the nature of certiorari for
quashing the order dated 13.06.2018 and
29.06.2018 passed by U.P. Real Estate
Regulatory
Authority,
Lucknow
and
citation dated 22.08.2019 issued by
Tehsildar, Dadri, District Gautam Budhh
Nagar.

(ii) Issue any other writ, order or
direction as this Hon'ble Court may deem
fit
and
proper
in
the
facts
and
circumstances of the case;

(iii) Award the cost of the writ
petition to the petitioner."

3. Learned counsel for the petitioner
submits that the petitioner is a private
limited company under the Companies
Act, 1956 and petitioner is dealing in RealEstate,
which
provides
facility
of
constructed Flats to public at large and has
been developing Group Housing Project
under the name and style of "MGI Maple"
in Govindpuram, Gautam Budh Nagar.
The company obtained 'No Objection
Certificate' from the concerned authorities
including the Development Autuority of
Gautam Budh Nagar.

4. Learned counsel for the petitioner
further submits that the respondent no.5
purchased a Flat in the petitioner's project
but due to unavoidable circumstances, the
petitioner could not deliver the possession
of the Flat. However, without waiting for
sometime, the respondent no.5 filed a
complaint
before
the
Real
Estate
Regulatory
Authority,
Gautam
Budh
Nagar, which was registered as Complaint
No.1120172878 by which respondent No.5
demanded his amount with 24% annual
interest on the ground that project of the
petitioner is now cancelled. The U.P. Real
Estate Regulatory Authority, Gautam
Budh Nagar has passed the impugned
1760 INDIAN LAW REPORTS ALLAHABAD SERIES
orders dated 13.06.2018 and modified
order dated 29.06.2018, by which a
direction was issued to the petitioner to
repay all the amount deposited by the
respondent no.5 with MCLR+1 percent
interest from the date of deposit till the
date of payment of the amount, copy of the
order dated 13.06.2018 and 29.06.2018
passed by the U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar is filed as
Annexure No.3 to the writ petition.

5. Learned counsel for the petitioner
further submits that in the first prayer the date
of impugned order is wrongly transcribed as
29.06.2012 in place of 29.06.2018. He prays
and allowed to correct the date of impugned
order dated 29.06.2018.

6. Learned counsel for the petitioner
further argued that the orders dated 13.06.2018
and 29.6.2018 passed by the U.P. Real Estate
Regulatory Authority, Gautam Budh Nagar is
without jurisdiction and the same is liable to be
quashed on the ground that the order was not
passed by the Competent Authority and the
same is passed by one member which is
against the provision of Section 21 of the Real
Estate (Regulation and Development) Act,
2016 (hereinafter referred to as the 'Act,
2016"), which provides the composition of
authority and as per section 21, the authority
shall consist of a Chairperson and not less than
two whole-time members to be appointed by
the appropriate Government and therefore, the
impugned order
dated 13.06.2018
and
29.06.2018 were not passed as per Section 21
of the Act, 2016 and further he submits that the
order is ex parte order.

7. Learned counsel for the petitioner
further argued that the impugned order is
arbitrary, illegal and not sustainable in the eyes
of law and U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar has committed
gross illegality while passing the impugned
orders.

8. Learned counsel for the petitioner
further argued that in pursuance of the
order dated 13.06.2018 and 29.06.2018
passed by the U.P. Real Estate Regulatory
Authority,
Gautam
Budh
Nagar,
a
recovery certificate was issued for a tune
of Rs.6,55,764.26 against the petitioner,
which has been sent to the Collector,
Gautam Budh Nagar for realization from
the petitioner. Thereafter, Tehsildar, Dadri,
Gautam Budh Nagar has issued citation
dated 22.08.2019 for recovery of the above
amount. The recovery certificate and
citation issued are also illegal, arbitrary
and not sustainable in the eyes of law.

9. Shri Wasim Masood Khan,
learned counsel for the U.P. Real Estate
Regulatory
Authority,
Gautam
Budh
Nagar, Respondent No.2 countered all the
arguments raised by the learned counsel
for the petitioner and submitted that the
orders passed by the U.P. Real Estate
Regulatory
Authority,
Gautam
Budh
Nagar dated 13.06.2018 and 29.06.2018
are rightly passed by the single member
and there is no illegality in passing the said
orders and the orders are not without
jurisdiction in view of the provisions
contained under Section 81 of the Real
Estate (Regulation and Development) Act,
2016, wherein it speaks about the
'delegation',
which
says
that
"The
Authority may, by general or special order
in writing, delegate to any member, officer
of the Authority or any other person
subject to such conditions, if any, as may
be specified in the order, such of its
powers and functions under this Act (
except the power to make regulations
under section 85), as it may deem
necessary."
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1761

10. Shri Wasim Masood Khan,
learned counsel further submits that in
view of Section 81 of the Act, the U.P.
Real Estate Regulatory Authority in its 5th
meeting dated 05.12.2019 delegated the
power as per Agenda No.1, to a single
member to hear the cases on the basis of
the complaint in both the Benches sitting
at Lucknow and Gautam Budh Nagar,
therefore, the single member has full
jurisdiction to decide the cases on the basis
of complaint filed before the U.P. Real
Estate Regulatory Authority and the
objection raised by the counsel for the
petitioner has no valid reason in the eyes
of law and the impugned order passed by
the single member is valid and in
accordance with law and the same could
not be said to be passed without
jurisdiction, no interference is required by
this Court under Article 226 of the
Constitution of India and the present writ
petition is liable to be dismissed. He has
placed the copy of the minutes of fifth
meeting dated 05.12.2018 of the U.P. Real
Estate Regulatory Authority before the
Court, the same is taken on record.

11. Learned counsel for the
respondent No.2 further brought our
attention towards Sections 18, 34, 38,
40
and
71
of
the
Real
Estate
(Regulation and Development) Act,
2016 and Clause 9.2(ii) of the form of
agreement contained in the Annexure to
the
U.P.
Real
Estate
Regulation
(Agreemet for sale/lease) Rule, 2018 for
adjudication of the present case.

12. Learned Standing Counsel who
represent respondent Nos. 1, 3 and 4
also supports the case argued by Shri
Wasim Masood Khan, learned counsel
for the respondent No.2 and submitted
that the impugned orders were rightly
passed by single member and no
interference is required by this Court.

13. We have heard learned counsel
for the parties and perused the record,
in our view before dealing the case on
merit, it is necessary to code the
provisions of Sections 18, 34, 38, 40, 71
and 81 of the Real Estate (Regulation
and Development) Act, 2016, which
help us for adjudicating the present
case.

Section 18. Return of amount
and compensation- "(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 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.
1762 INDIAN LAW REPORTS ALLAHABAD SERIES

(2)
The
promoter
shall
compensate the allottees in case of any
loss caused to him due to defective title of
the land, on which the project is being
developed or has been developed, in the
manner as provided under this Act, and
the claim for compensation under this
subsection
shall
not be
barred
by
limitation provided under any law for the
time being in force.

(3) 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
allottees, in the manner as provided under
this Act.

"Section
34.
Functions
of
Authority-The functions of the Authority
shall include-

(a) to register and regulate real
estate projects and real estate agents
registered under this Act;

(b) to publish and maintain a
website of records, for public viewing, of
all
real
estate
projects
for
which
registration has been given, with such
details as may be prescribed, including
information provided in the application for
which registration has been granted;

(c) to maintain a database, on its
website, for public viewing, and enter the
names and photographs of promoters as
defaulters including the project details,
registration for which has been revoked or
have been penalised under this Act, with
reasons therefor, for access to the general
public;

(d) to maintain a database, on its
website, for public viewing, and enter the
names and photographs of real estate
agents who have applied and registered
under this Act, with such details as may be
prescribed,
including
those
whose
registration has been rejected or revoked;

(e) to fix through regulations for
each areas under its jurisdiction the
standard fees tobe levied on the allottees
or the promoter or the real estate agent, as
the case may be;

(f) to ensure compliance of the
obligations cast upon the promoters, the
allottees and the real estate agents under
this Act and the rules and regulations
made thereunder;

(g) to ensure compliance of its
regulations or orders or directions made
in exercise of its powers under this Act;

(h)
to
perform
such
other
functions as may be entrusted to the
Authority by the appropriate Government
as may be necessary to carry out the
provisions of this Act."

"Section
38.
Power
of
Authority- (1) The Authority shall have
powers to impose penalty or interest, in
regard to any contravention of obligations
cast upon the promoters, the allottees and
the real estate agents, under this Act or the
rules
and
the
regulations
made
thereunder.

(2) The Authority shall be guided
by the principles of natural justice and,
subject to the other provisions of this Act
and the rules made thereunder, the
Authority shall have powers to regulate its
own procedure.

(3) Where an issue is raised
relating to agreement, action, omission,
practice or procedure that--

(a)
has
an
appreciable
prevention, restriction or distortion of
competition
in
connection
with
the
development of a real estate project; or

(b) has effect of market power of
monopoly situation being abused for
affecting interest of allottees adversely,
then the Authority, may suo motu, make
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1763
reference in respect of such issue to the
Competition Commission of India"

"Section
40.
Recovery
of
interest or penalty or compensation and
enforcement of order, etc.- (1) If a
promoter or an allottee or a real estate
agent, as the case may be, fails to pay any
interest or penalty or compensation
imposed on him, by the adjudicating
officer or the Regulatory Authority or the
Appellate Authority, as the case may be,
under this Act or the rules and regulations
made thereunder, it shall be recoverable
from such promoter or allottee or real
estate agent, in such manner as may be
prescribed as an arrears of land revenue.

(2) If any adjudicating officer or
the Regulatory Authority or the Appellate
Tribunal, as the case may be, issues any
order or directs any person to do any act,
or refrain from doing any act, which it is
empowered to do under this Act or the
rules or regulations made thereunder, then
in case of failure by any person to comply
with such order or direction, the same
shall be enforced, in such manner as may
be prescribed."

Section
71
"Power
to
adjudicate" -

(1) For the purpose of adjudging
compensation under sections 12, 14, 18
and section 19, the Authority shall appoint
in consultation with the appropriate
Government one or more judicial officer
as deemed necessary, who is or has been a
District Judge to be an adjudicating
officer for holding an inquiry in the
prescribed manner, after giving any
person
concerned
a
reasonable
opportunity of being heard:

Provided that any person whose
complaint in respect of matters covered
under sections 12, 14, 18 and section 19 is
pending before the Consumer Disputes
Redressal
Forum
or
the
Consumer
Disputes Redressal Commission or the
National
Consumer
Redressal
Commission, established under section 9
of the Consumer Protection Act, 1986, on
or before the commencement of this Act,
he may, with the permission of such Forum
or Commission, as the case may be,
withdraw the complaint pending before it
and file an application before the
adjudicating officer under this Act.

(2)
The
application
for
adjudging compensation under sub-section
(1), shall be dealt with by the adjudicating
officer as expeditiously as possible and
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
adjudicating officer shall record his
reasons in writing for not disposing of the
application within that period.

(3) While holding an inquiry the
adjudicating officer shall have power to
summon and enforce the attendance of any
person acquainted with the facts and
circumstances of the case to give evidence
or to produce any document which in the
opinion of the adjudicating officer, may be
useful for or relevant to the subject matter
of the inquiry and if, on such inquiry, he is
satisfied that the person has failed to
comply with the provisions of any of the
sections specified in sub-section (1), he
may direct to pay such compensation or
interest, as the case any be, as he thinks fit
in accordance with the provisions of any
of those sections."

"Section 81. Delegation.- The
Authority may, by general or special order
in writing, delegate to any member, officer
of the Authority or any other person
subject to such conditions, if any, as may
be specified in the order, such of its
1764 INDIAN LAW REPORTS ALLAHABAD SERIES
powers and functions under this Act (
except the power to make regulations
under section 85), as it may deem
necessary."

14. From the arguments raised by the
learned counsel for the petitioner and
admission made in the paragraph No. 35 of
the writ petition, it is not disputed that the
respondent No.5 has booked his Flat on
28.12.2012 in the petitioner project, apart
from petitioner 280 other persons also
booked the Flats and it is also not disputed
that from that date till filing of the present
writ petition, the petitioner has not
delivered the possession of the Flat to
respondent No.5 and due to arbitrary and
illegal action of the petitioner, respondent
No.5 filed the complaint before the U.P.
Real Estate Regulatory Authority, Gautam
Budh Nagar as per the provision of the
Act, 2016 regarding his grievances and
after considering the grounds raised in the
complaint, the U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar passed the
impugned orders dated 13.6.2018 and
29.6.2018 directing the petitioner to refund
the entire amount deposited by the
respondent no. 5 along with MCLR+1 per
cent interest within 45 days. When the said
amount was not paid by the petitioner to
the
respondent
No.5,
the
recovery
certificate was issued and thereafter a
citation was issued for a sum of
Rs.6,55,764.26 plus other charges.

15. We have no hesitation to say that
the petitioner has received the cost of the
Flat from the respondent No.5 but was
adopting delaying tactics for not giving the
possession of the Flat to the respondent
No.5 and also keeping the money of
respondent
no.5
since
2012.
The
respondent No.5 was running from pillar
to post for taking possession of the Flat,
the action of the petitioner appears to be
illegal, arbitrary and with a bad intention
to grab the entire amount of the respondent
No.5, for this action of the petitioner, this
Court will not shut its eye. It is also not
out of place to mention here that in the
society were we are living having own
shelter, the common people has to invest
their entire saving with the hope to live
remaining life in their own house with
mental satisfaction, but the builders like
petitioner is throwing the hope and
feelings of purchaser, like a hot potato in
the hand.

16. We are further not inclined to
interfere in the impugned orders on the
ground taken by the learned counsel for
the petitioner that the order passed by a
single member is without jurisdiction as
contemplated under Section 21 of the Act
and has not been passed in accordance
with the provisions of Section 21 of the
Act. The arguments of the learned counsel
for the petitioner appears us to be
misconceived. The proposition of Section
21 is not that the complaint could not be
decided by a single member of the
Authority, whereas it could be decided by
a single member or by two members,
whichever is better in the interest of justice
as per availability of the members and we
further observed that Section 81 of the
Real Estate (Regulation and Development)
Act, 2016 provides "delegation", which
says that "The Authority may, by general
or special order in writing, delegate to any
member, officer of the Authority or any
other person subject to such conditions, if
any, as may be specified in the order, such
of its powers and functions under this Act (
except the power to make regulations
under section 85), as it may deem
necessary" and having regard to the
provision of Section 81 of the Real Estate (
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1765
Regulation and Development) Act, 2016,
the authority vide their 5th meeting dated
5.12.2018 as per Agenda 1 delegated the
power to a single member to decide the
cases in both the Benches sitting at
Lucknow and Gautam Budh Nagar, the
delegation of power of the 5th meeting
dated 5.12.2018 of U.P. Real Estate
Regulatory Authority is quoted as under:

"उ०प्र०
भू-
सम्पिा
नवननयाम
प्रानिकरण
की
पोंचम
बैठक
निनाोंक
05.12.18 का कायषवृत्त

किनाोंक 05.12.2018 को प्राकधकरण कक
बैिक कनम्नकलन्धित एजेण्डा कबन्िुओों पर कवचारकवमिम ककया गयाः-
ि०सों० एजेण्डा
5.01
उ०प्र भू० सम्पिा नवननयामक प्रानिकरण की ि न ों
पीठ द्वारा माह निसम्बर,2018 िथा बाि में भी
आवश्यकिा अनुसार एकल पीठ के रूप में भी
कायष करिे हुए लखनऊ िथा गौिमबुद्धनगर में
एक ही निवस पर नशकायि ों की सुनवाई का
प्रस्ताव।
5.02
उ०प्र भू० सम्पिा कवकनयामक प्राकधकरण में िासन को
3 अकतररक्त उपयुक्त न्याकयक अकधकाररयोों के नाम
एड्ज्युकडकेकटोंग आकफससम के पैनल हेतु चयकनत करने
का प्रस्ताव।
5.03
उ०प्र
भू०
सम्पिा
(कवकनयामक
एवों
कवकास)
कनयमावल- 2016 के कनयम- 2(1)(h) तिा कनयम-15 में
सोंिोधन का प्रस्ताव।
5.04
उ०प्र
भू०
सम्पिा
(कवकनयामक
एवों
कवकास)
कनयमावल - 2016 के कनयम-15 में सोंिोधन करने का
प्रस्ताव।
5.05
अन्य कोई कबन्िु मा० अध्यक्ष क अनुमकत से।

एजेन्डा कबन्िुवार कनणमय कनम्नवत हैं:-

एजेन्डा नबन्िु-1

उ0प्र0
भू-सम्पिा
नवननयामक
प्रानिकरण की ि न ों पीठ द्वारा माह
निसम्बर, 2018 िथा बाि में भी आवश्यकिा
अनुसार एकल पीठ के रुप में भी कायष करिे
हुए लखनऊ िथा गौिमबुद्धनगर में एक ही
निवस पर नशकायि ों की सुनवाई के सम्बन्ध
में।

ननणषय

प्रानिकरण
द्वारा
प्रस्ताव
अनुम निि नकया गया।

एजेण्डा कबन्िु -2

उ०प्र०
भू-सम्पिा
कवकनयामक
प्राकधकरण में एड्जुकडकेकटोंग आकफससम के
पैनल में िासन को 3 अकतररक्त उपयुक्त
न्याकयक अकिकाररयोों के नाम भेजने हेतु चयन
का प्रस्ताव।"

कनणमय

प्राकधकरण
द्वारा
सम्यक
कवचारोपारान्त
कनम्नकलन्धित
3
अकतररक्त
न्यायकयक अकधकाररयोों को प्राकधकरण में
एडज्यूकडकेकटोंग आफ ससम के पैनल हेतु
चयकनत ककया गयाः-

1- श्र गोपाल कुलश्रेष्ठ

2- श्र सैय्यि सरवत महमूम

3- श्र मुकेि प्रकाि

एजेण्डा नबन्िु-3

उ०प्र० भू-सम्पिा (कवकनयमन एवों
कवकास) कनयमावल - 2016 के कनयम 2(1)(h)
तिा कनयम० 15 में सोंिोधन का प्रस्ताव।

कनणमय

प्राकधकरण द्वारा प्रस्ताव अनुमोकित ककया
गया।

एजेण्डा नबन्िु-4

उ०प्र० भू- सम्पिा (कवकनयमन एवों
कवकास) कनयमावल - 2016 के कनयम-15 में
सोंिोधन करने का प्रस्ताव।

ननणषय

प्राकधकरण द्वारा प्रस्ताव अनुमोकित
ककया गया।

बैिक सधन्यावाि समाि हुई।
ह० अपिन य
(राज व कुमार)
अध्यक्ष,
1766 INDIAN LAW REPORTS ALLAHABAD SERIES

उ०प्र०
भू-सम्पिा
कवकनयामक
प्राकधकरण।

उ०प्र० भू- सम्पिा नवननयामक
प्रानिकरण

पत्राोंकः
4702/यू०प ०
रेरा/बैिक-
कायमवृत्त/2018-19 किनाोंकः 05.12.2018

प्रकतकलकपः- कनम्नकलन्धित को सूचनािम एवों
आवश्यक कायमवाह हेतु।

1. मा० अध्यक्ष, उ०प्र० भू- सम्पिा
कवकनयामक प्राकधकरण।

2. मा० सिस्यगण, उ०प्र० भू- सम्पिा
कवकनयामक प्राकधकऱण।

3. प्रमुि सकचव, आवास एवों िहर
कनयोजन कवभाग, उ०प्र० िासन।

4. समस्त सम्बन्धित अकधकार , उ०प्र० भू-
सम्पिा कवकनयामक प्राकधकरण।

ह० अपिन य

(अबरार अहमि)

सकचव
उ०प्र० भू- सम्पिा कवकनयामक प्राकधकरण।"

17. Therefore, in view of the provision
contained under Section 81 of the Real Estate
(Regulation and Development) Act, 2016 and
as per decision taken by the U.P. Real Estate
Regulatory Authority in Agenda No.1 of
meeting dated 05.12.2018 the impugned orders
dated 13.6.2018 and 29.06.2018 passed by the
U.P. Real Estate Regulatory Authority,
Gautam Budh Nagar has been rightly passed
by the single member and the arguments raised
by learned counsel for the petitioner that the
impugned
order
was
passed
without
jurisdiction has no force and is declined. In
support of the his arguments, learned counsel
for the petitioner referred the judgment passed
by the Hon'ble Apex Court in the case of
Standard Chartered Bank Vs. Dharminder
Bhohi and others, reported in (2013) 15 SCC
341 and attention of the Court was brought on
para no.38 of the aforesaid judgment, which is
quoted as under:-

"38. Section 34 of RDB Act provides
that the said Act would have overriding effect.
We have referred to the aforesaid provisions to
singularly highlight that the sacrosanct
between the banks and the borrowers and any
third party who has acquired any interest.
They have been conferred jurisdiction by
special legislations to exercise a particular
power in a particular mannter as provided
under the Act. They cannot assume the role of
a court of different nature which really can
grant " liberty to initiate any action against the
bank". They are only required to decide the lis
that comes within their own domain. If it does
not fall within their sphere of jurisdiction they
are required to say so. Taking note of a
submission made at the behest of the auctionpurchaser and then proceed to say that he is at
liberty to file any action against the bank for
any omission committed by it has no sanction
of law. The said observation is wholly bereft of
jurisdiction,
and
indubitably
is
totally
unwarranted in the obtaining factual matrix.
Therefore, we have no hesitation in deleting
the observation, namely, "liberty is also given
to the auction-purchaser to file action against
the bank for any omission committed by it."

18. Learned counsel for the petitioner
further referred the decision of Hon'ble
Apex Court in the case of V.K. Ashokan
vs. Assistant Excise Commissioner and
others, (2009) 14 SCC 85 and drawn our
attention on paragraph no. 42 of the
judgment, which is quoted as under:-

"Functions of the Board and/or
its power under the Act have not been
specified under the Act. The Board,
indisputably, derives its power to act in a
supervisory capacity only in terms of the
provisions of the Kerala Board of Revenue
Act and not under the said Act. Board,
thus, did not have any supervisory
jurisdiction under the Act, apart from the
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1767
functions of the Excise Commissioner as
contained in the provisions of Section 4(b)
of the Act. Even otherwise, the Board visa-vis the Excise Commissioner does not
have any power to take cognizance of a
matter suo motu. It is accepted at the Bar
that only when the question as regards
confirmation of the resale was placed
before the Commissioner of Excise, he
purported to have noticed that apart from
violating the conditions of licence as also
the
Rules
wherefor
proceedings
for
cancellation of licence was initiated,
appellants have also allegedly failed
and/or neglected to pay their kist and as
such they made themselves liable for
action in terms of Section 6(28) of the
Rules. It is neither denied nor disputed
that apart from the lack of inherent
jurisdiction to initiate such a suo motu
proceeding, neither any notice was issued
to the licensees nor any proceeding was
initiated therefor. The principles of natural
justice had, thus, not been complied with."

19. We have gone through the
judgments cited by the learned counsel for
the petitioner. With due regard to the
aforesaid judgments, we say that they are
not
applicable
in
the
facts
and
circumstances of the present case, we
further say that the merits of the case
would be sustained, even in absence of
jurisdiction and learned counsel for
petitioner fails to demonstrate that the
impugned orders were passed in breach of
the legal proposition of law and is without
jurisdiction and is against the principles of
natural justice.

20.

Learned
counsel
for
the
respondent no.2 draw our attention of the
Hon'ble Apex Court judgment passed in
the case of Union of India and another
Vs. Association of United Teelecom
Service Providers of India and others,
(2011) 10 SCC 543 and referred paragraph
nos.63 and 67 of the aforesaid judgment,
which are quoted as under:-

"63. Section 14 (a)(i) of the TRAI
Act, as we have seen, provides that the
Tribunal can adjudicate any dispute
between the licensor and the licensee. One
such dispute can be that the computation
of Adjusted Gross Revenue made by the
licensor and the demand raised on the
basis of such computation is not in
accordance with the license agreement.
This dispute however can be raised by the
licensee, after the license agreement has
been entered into and the appropriate
stage when the dispute can be raised is
when a particular demand is raised on the
licensee by the licensor. When such a
dispute is raised against a particular
demand, the Tribunal will have to go into
the facts and materials on the basis of
which the demand is raised and decide
whether the demand is in accordance with
the license agreement and in particular the
definition of Adjusted Gross Revenue in
the license agreement and can also
interpret the terms and conditions of the
license agreement. We, however, find from
the order dated 07.07.2006 that instead of
challenging any demands made on them,
the licensees have questioned the validity
of the definition of Adjusted Gross
Revenue in the licenses given to them and
the Tribunal has finally decided in its
order dated 30.08.2007 as to what items of
revenue would be part of Adjusted Gross
Revenue and what items of revenue would
not be part of Adjusted Gross Revenue
without going into the facts and materials
relating to the demand on a particular
licensee.

67.We have delivered today the
judgment in these cases and while
1768 INDIAN LAW REPORTS ALLAHABAD SERIES
answering the last substantial question of
law, we have held that when a particular
demand is raised on a licencee, the
licensee can challenge the demand before
the Tribunal and the Tribunal will have to
go into the facts and materials on the basis
of which the demand is raised and decide
whether the demand is in accordance with
the license agreement and in particular the
definition of Adjusted Gross Revenue in
the license agreement and can also
interpret the terms and conditions of the
license agreement."

21. We are in full agreement with the
above judgment cited by learned counsel
for the respondent no.2 against the
petitioner that the order of Authority is not
without jurisdiction.

22. We are also not inclined to accept
the arguments of the learned counsel for
the petitioner that the impugned orders
were passed Ex- parte.

23. Considering the arguments raised
by the learned counsel for the respondent
no.2 that the complaint was filed by
respondent no.5 before the U.P. Real
Estate Regulatory Authority, Gautam
Budh Nagar in the year 2012. Since then
several notices were issued and adequate
opportunity was afforded to the petitioner
by the authorities concerned but th
petitioner was avoiding the appearance
and hearing of the case being no
alternative the U.P. Real Estate Regulatory
Authority, Gautam Budh Nagar passed the
impugned orders.

24. We are also not inclined to accept
the arguments of the learned counsel for
the petitioner that the interest charged by
the U.P. Real Estate Regulatory Authority
(i.e. MCLR + 1%) is to excessive, whereas
it is the admitted case of the petitioner that
the respondent No.5 has booked the Flat
on 28.12.2012 and till the filing of the writ
petition, the possession of the Flat was not
given on the ground that the project of the
petitioner was cancelled, from our opinion
the interest charged by the U.P. Real
Estate Regulatory Authority is accurate
and not excessive, the same is fixed as per
clause 9.2 (ii) of the Form of agreement
contained
in
the
U.P.
Real
Estate
(Regulation
and
Development)
(Agreement for Sale/Lease) Rules, 2018,
which seems to be proper.

25. We Honour and accept the views
taken by the Hon'ble Apex Court in the
judgment of Central Banking India Vs.
Ravindra, (2002) 1 SCC 367, and was
pleased to observe in para 23, which is
quoted as under :-

"In Syndicate Bank v. M/s. West
Bengal Cements Limited and Ors., AIR
(1989) Delhi 107, Y.K. Sabharwal, J. (as
his Lordship then was) rejected the
contention of learned counsel for the
borrower that the interest can never
become principal and the words 'principal
sum' in Section 34, Code of Civil
Procedure should be given the ordinary
meaning as given in the dictionaries, and
termed as misconceived the argument that
the interest under section 34 could be
awarded only on the original sum
advanced as the argument ran counter to
the normal banking practice, and which, if
accepted, would act as a premium for
those not paying the amount of interest
when it is due at the cost of those making
payment of interest when it is due. It was
held that the bank was entitled to the sum
claimed as due from and payable by the
defendants as the principal sum with
future interest on such amount from the
2 All. M/s K.D.P. Build Well Pvt. Ltd. Vs. State of U.P. & Ors.
1769
date of suit to the date of realisation.
Reliance was placed on Division Bench
decision of Madras High Court in
Sigappiachi
v.
M.A.P.A.
Palaniappa
Chettiar, AIR (1972) Madras 463, holding
that the 'principal sum adjudged' (within
the meaning of Section 34 of the Code of
Civil Procedure) is the amount found due
as on the date of the suit."

26. We further place reliance of
judgment of the Hon'ble Apex Court in the
case Thazhathe Purayil Sarabi and others
Vs. Union of India and another, reported
in (2009) 7 SCC 372, and the Hon'ble
Apex Court was pleased to observe that
the interest be paid from the date of
application till the date of recovery, this
view is taken in paragraph nos. 37 and 38,
which are quoted as under :-

"37. Even if, the appellants may
not be entitled to claim interest from the
date of the accident, we are of the view
that the claim to interest on the awarded
sum has to be allowed from the date of the
application till the date of recovery, since
the appellant cannot be faulted for the
delay of approximately 8 years in the
making of the Award by the Railway
Claims Tribunal. Had the Tribunal not
delayed the matter for so long, the
appellants would have been entitled to the
beneficial interest of the amount awarded
from a much earlier date and we see no
reason why they should be deprived of
such benefit.

38. As we have indicated earlier,
payment
of
interest
is
basically
compensation for being denied the use of
the money during the period which the
same could have been made available to
the claimants. In our view, both the
Tribunal, as also the High Court, were
wrong in not granting any interest
whatsoever to the appellants, except by
way of a default clause, which is contrary
to the established principles relating to
payment of interest on money claims. "

27. We further place reliance of the
judgment of the Hon'ble Apex Court in the
case of Union of India through Director
of Income Tax Vs. Tata Chemicals
Limited, (2014) 6 SCC 335, and the
Hon'ble Apex Court was pleased to
observe in paragraph nos. 37 and 38 of the
judgment, which are quoted as under:

"37. A "tax refund" is a refund of
taxes when the tax liability is less than the
tax paid. As per the old section an
assessee was entitled for payment of
interest on the amount of taxes refunded
pursuant to an order passed under the Act,
including the order passed in an appeal. In
the
present
fact
scenario,
the
deductor/assessee had paid taxes pursuant
to a special order passed by the assessing
officer/Income Tax Officer. In the appeal
filed against the said order the assessee
has succeeded and a direction is issued by
the appellate authority to refund the tax
paid. The amount paid by the resident/
deductor was retained by the Government
till a direction was issued by the appellate
authority to refund the same. When the
said amount is refunded it should carry
interest in the matter of course. As held by
the Courts while awarding interest, it is a
kind of compensation of use and retention
of the money collected unauthorizedly by
the Department. When the collection is
illegal, there is corresponding obligation
on the revenue to refund such amount with
interest in as much as they have retained
and enjoyed the money deposited. Even the
Department has understood the object
behind insertion of Section 244A, as that,
an assessee is entitled to payment of
1770 INDIAN LAW REPORTS ALLAHABAD SERIES
interest for money remaining with the
Government which would be refunded.
There is no reason to restrict the same to
an assessee only without extending the
similar benefit to a resident/ deductor who
has deducted tax at source and deposited
the same before remitting the amount
payable
to
a
non-resident/
foreign
company.

38. Providing for payment of
interest in case of refund of amounts paid
as tax or deemed tax or advance tax is a
method now statutorily adopted by fiscal
legislation to ensure that the aforesaid
amount of tax which has been duly paid in
prescribed time and provisions in that
behalf form part of the recovery machinery
provided in a taxing Statute.