# M/S M.R.J.V. Constructions Co.,Delhi v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Writ C No. 26538 of 2020
- **Bench:** Munishwar Nath Bhandari, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-m-r-j-v-constructions-co-delhi-v-state-of-u-p-ors-46741
- **Pages:** 7

## Headnote

A. Constitution of India, 1950 - Article
226
-
Real
Estate(Regulation
and
Development)Act,2016-Section
40recovery of sum of Rs. 24 lacs and oddconsumer
deposited
the
sum
for
possession of flat-despite agreement flat
was not handed over to the consumerobject of the speedy dispute redressal
mechanism
would
frustrate
if
the
consumer seek execution of the order
through civil court-while it shall be
recoverable as prescribed u/s 40(1) of
the Act, in such a manner as may be an
arrears of land revenue, so as to
expeditiously give relief to the consumer
having
suffered
in
the
hands
of
Promoter-writ
petition
is
not
maintainable as the consumer can avail
the remedy of appeal.(Para 1 to 25)

The writ petition is dismissed. ( E-5)

List of Cases cited:-

## Text

2 All. M/S M.R.J.V. Constructions Co.,Delhi Vs. State of U.P. & Ors.
327
petitioner himself is to be blamed for
creating trouble for himself. Therefore,
conclusion drawn by the respondent no.3
(Controller of Examinations) for not
allowing admission to the applicant in the
Ph. D course in the two subjects is justified.

14. Consequently, the instant petition
is dismissed.
----------
(2021)02ILR A327
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. 26538 of 2020

M/S M.R.J.V. Constructions Co.,Delhi
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Singhal, Sri Ankita Singhal

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

A. Constitution of India, 1950 - Article
226
-
Real
Estate(Regulation
and
Development)Act,2016-Section
40recovery of sum of Rs. 24 lacs and oddconsumer
deposited
the
sum
for
possession of flat-despite agreement flat
was not handed over to the consumerobject of the speedy dispute redressal
mechanism
would
frustrate
if
the
consumer seek execution of the order
through civil court-while it shall be
recoverable as prescribed u/s 40(1) of
the Act, in such a manner as may be an
arrears of land revenue, so as to
expeditiously give relief to the consumer
having
suffered
in
the
hands
of
Promoter-writ
petition
is
not
maintainable as the consumer can avail
the remedy of appeal.(Para 1 to 25)

The writ petition is dismissed. ( E-5)

List of Cases cited:-

1. M/s K.D.P. Build Well Pvt. Ltd. Vs St. of
U.P. & 4 ors.(Writ C No. 2248 of 2020)

2. Ms. Proview Realtech Pvt. Ltd. Vs St. of
U.P. & 5 ors. (Writ C No . 27147 of 2020)

3. Rudra Buildwell Construction Pvt. Ltd. Vs
Poonam Sood & anr.( Writ-C No . 3289 of
2020)

4. Janta Land Promoters Pvt. Ltd. Vs U.O.I
.& ors. (CWP No. 8548 of 2020)

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

1. None appears for the petitioner
though the case was called twice. Sri
Wasim Masood has put in appearance on
behalf of respondents.

2. The writ petition could have been
dismissed for non-prosecution. However,
taking into consideration that issue raised
in this petition has already been settled
by this Court in the case of Writ C No.
27147 of 2020 (Ms. Proview Realtech
Pvt. Ltd. Vs. State of U.P. and 5 others)
and
two
other
connected
petitions
decided on 12.01.2021, this petition is
also governed by the judgment aforesaid.

3. The writ petition has been filed
with the following prayers:

"(i) Issue a writ, order or
direction in the nature of Certiorari calling
for the records and quashing the recovery
328 INDIAN LAW REPORTS ALLAHABAD SERIES
citation dated 13.03.2020 insofar as the
same relates to principal amount (Annexure
No.1 to the present writ petition).

(ii) Issue a writ, order or
direction in the nature of Certiorari calling
for the records and quashing the impugned
order
dated
20.08.2019
passed
by
respondent no.2 (Annexure-2 to the present
writ petition).

(iii) issue a writ, order or
direction in the nature of Certiorari calling
the
record
and
quashing
the
minutes/resolutions
dated
14.08.2018
alleged to have been passed by the
respondent no.2 (Annexure No.3 to the writ
petition).

(iv) Issue a writ, order or
direction in the nature of Certiorari calling
for
the
records
and
quashing
the
minutes/resolution
dated
05.12.2018
alleged to have been passed by respondent
no.2 (Annexure -4 to the writ petition).

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

4. The petitioner has challenged the
order passed by Real Estate Regulatory
Authority
(in
short
"RERA")
dated
20.08.2019 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").

5. It is a case where a complaint was
filed by the non-petitioner alleging that
despite payment towards unit No. A-2/307
in the scheme introduced by the petitioner,
the possession of a unit has not been given.
The unit (flat) was booked on 18.12.2013
and was to be delivered in the year 2019.
The prayer was made for refund of the
amount of Rs.24,13,713/- 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 2019. 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 20.08.2019 for refund
of the principal amount alongwith interest.
In
pursuance
thereof,
order
dated
20.08.2019 was issued for its execution.
The amount of Rs.25,36,985/- was shown
towards
the
principal
amount
while
component of interest was Rs.12,85,070/-.
The petitioner has filed this writ petition to
challenge
not only
the
order dated
20.08.2019 passed by RERA but the
recovery citation dated 13.03.2020 on the
execution application.

6. 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 20.08.2019 is
without jurisdiction.

7. 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
2 All. M/S M.R.J.V. Constructions Co.,Delhi Vs. State of U.P. & Ors.
329
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.

8. We are first taking challenge to the
order dated 20.08.2019, passed by the
Authority to find out as to whether one
member was competent to pass the order.

9. 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.

10. 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.

11. 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.

12. 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
330 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

13. 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.

14. 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).

15. 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
2 All. M/S M.R.J.V. Constructions Co.,Delhi Vs. State of U.P. & Ors.
331
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 Section 30 of the Act of 2016,
we find no ground to set aside the
resolution as otherwise Section 81 saves it.

16. So far the second issue regarding
rate of interest is concerned, it is nothing
but a challenge on the merit of the order.
We hold writ petition for it to be not
maintainable as petitioner has remedy of
appeal.
Thus,
we
are
not
causing
interference in the order on merit but
allowing the petitioner to take remedy of
appeal, if so desires. It is after taking note
of the fact that the order of RERA is not
otherwise onerous so as to maintain a writ
petition.

17. The other challenge in the writ
petition is to execution of the order made in
reference to Section 40(1) of the Act of
2016. The recovery of the amount is to be
made as arrears of land revenue. It is stated
that recovery of interest, penalty or
compensation alone can be made as arrears
of land revenue. In the instance case,
RERA has issued citation for return of the
amount so deposited with the Promoter
with interest. The refund of the principal
amount cannot be through the process of
execution given under Section 40(1) of the
Act of 2016 but can be as per Section 40(2)
of the Act of 2016.

18. To deal with the argument
aforesaid, we are quoting Section 40 of the
Act of 2016, hereunder :

"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."

19. Before addressing the issue
further it would be necessary to go through
the object of the enactment i.e. as to why
the Parliament brought the Act of 2016.
The object of Act of 2016 is to protect the
interest of consumer in real estate sector
apart from others. The Bill was introduced
with the following object :

"An Act to establish the Real
Estate Regulatory Authority for regulation
and promotion of the real estate sector and
to ensure sale of plot, apartment or
building, as the case may be, or sale of real
estate
project,
in
an
efficient
and
transparent manner and to protect the
interest of consumers in the real estate
sector and to establish an adjudicating
mechanism for speedy dispute redressal
and also to establish the Appellate Tribunal
to hear appeals from the decisions,
332 INDIAN LAW REPORTS ALLAHABAD SERIES
directions or orders of the Real Estate
Regulatory Authority and the adjudicating
officer and for matters connected therewith
or incidental thereto."

20. A perusal of the object reveals that
the Act of 2016 has been enacted to save
interest of consumers apart from others and
thereby to regulate real estate in a proper
manner. It is even to give speedy dispute
redressal mechanism. Section 40(1) of Act of
2016 no doubt provides for mechanism for
recovery of interest, penalty or compensation.
It cannot however be ignored that recovery of
the amount is provided under Section 40(1)
alone. Section 40(2) is for execution of any
other order or direction to any person to do
any act, or refrain from doing any act, which
is not empowered to do under the Act of 2016
and in case of failure to comply, execution
can be enforced in the manner prescribed.
Sub-section (2) of Section 40 was to enforce
any direction of the nature of restrain or
injunction which cannot be enforced as an
arrears of land revenue. After coming into the
force of the rules framed by the State of Uttar
Pradesh, the matter of execution can be taken
by the Adjudicating Authority. Sub-Section
(2) of Section 40 is not meant for recovery of
the amount but for any other direction either
to act in a particular manner or to refrain a
party in doing any act. Such order can be
enforced firstly by the Adjudicating Authority
and in case of failure, through the civil court.
Rules 23 and 24 of Uttar Pradesh Real Estate
(Regulation and Development) Rules, 2016
(in short "Rules of 2016") were brought for
that purpose and provides the machanism for
execution of the order.

21. In the light of the aforesaid, we are
required to give proper interpretation to
Section 40 so that the object sought to be
achieved by enactment of Act of 2016 is
carried out.

22. In the instant case, the consumer
had deposited a sum of Rs.24 lacs and odd, in
instalments but despite an agreement for
giving possession of the flat in the year 2019,
it was not handed over to the consumer. The
direction for return of the amount with
interest
has
been
given
in
those
circumstances. If a consumer is to seek
execution of the part of the order through the
civil court then the very purpose of the
enactment of Act of 2016 to provide speedy
dispute redressal mechanism would frustrate.
If the argument of the petitioner is accepted
then for recovery of a sum of Rs. 24 lacs and
odd, the non-petitioner consumer is to be
send to civil court while recovery of amount
of interest of Rs.12 lacs and odd can be made
as arrears of land revenue, as admitted by the
counsel for the petitioner himself. If recovery
of amount is to be sought by dividing it in
two parts and by different method, it would
be against the object of the Act of 2016. The
object of speedy redressal would frustrate if
recovery of the amount is also sought through
the civil court. We thus hold that the purpose
and object of Section 40(1) is to allow
recovery of the amount as arrears of land
revenue so as to expeditiously give the relief
to the consumer having suffered in the hands
of the Promoter. Section 40(1) has to be given
interpretation by reading down the provision
to make it purposeful and akin to the object
of the Act of 2016. Section 40(2) is for any
other direction either to act in a particular
manner or to restrain a party to do certain act
and execution of it can be made by the
Adjudicating Authority and in case of failure,
by the civil court. Section 40(2) covers
basically the case of an order of injunction or
mandatory injunction.

23. Accordingly, we are unable to
accept even the last argument raised by the
counsel for the petitioner. It would
otherwise frustrate the very object of the
2 All. Angad Singh & Ors. Vs. D.D.C. Lakhimpur Kheri & Ors.
333
Act of 2016 and would give rise to the
anarchy, existing earlier, in the hands of
Promoters.

24. 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.

25. 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)02ILR A333
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.02.2021

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Consolidation No. 3736 of 2021

Angad Singh & Ors. ...Petitioners
Versus
D.D.C. Lakhimpur Kheri & Ors.
 ...Respondents

Counsel for the Petitioners:
Anoop Srivastava

Counsel for the Respondents:
C.S.C., Pankaj Gupta

A. Civil Law - Consolidation of Holding Act,
1953 - S. 48 - Civil Procedure Code -
Sections
139
to
141
-
Consolidation
proceeding - Applicability of CPC - Nature
of Consolidation authority - Whether it is a
Court - Held, Consolidation Authorities
cannot be said to be Courts although they
may possess some of the 'trappings of a
Court' while hearing and deciding matters
related to title on land - Even if the
consolidation authorities exercised some
judicial functions also, they could not be
said to possess all the attributes of a Court
and could not therefore be considered to be
Courts - Code of Civil Procedure was also
inapplicable to the Consolidation Authorities
in deciding objections, appeals and revisions
- Ram Bharose Lal's case, Sita's case and
Bijai Narain Singh's case followed. (Para 22)
B. Civil Law - Consolidation of Holding Act,
1953 - Section 48 - Fraudulent entry -
Interest of Gao Sabha - No objection of the
authority - Duty of Consolidation officers -
Held, it is the duty of all Consolidation
Courts to look after the interest of the Gaon
Sabha and theSt. or local authority under
Section 11 (c) of the Act, even though no
objection has been filed by such authorities
-
If
the
D.D.C.
on
examination
of
documentary evidence had found that the
entry was a fraudulent entry made to the
detriment of the Gaon Sabha, he was duty
bound to direct for its deletion under the
provisions of the Act. (Para 24)
C. Practice and Procedure - Ubi Jus Ibi
Remedium - Rights of the parties - Remedy
- Role of the Court - Court must always aim
to preserve and protect the rights of the
parties and extend help to enforce them
rather than denying the relief, and thereby
render the rights themselves otiose, 'Ubi Jus
Ibi Remedium', where there is a right there
is a remedy being the basic principles of
jurisprudence. (Para 19)
Writ Petition dismissed. (E-1)
Cases referred :-