# M/S Newtech Promoters and Developers Pvt. Ltd., Delhi v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 727
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Writ-C No. 26475 of 2020
- **Bench:** Munishwar Nath Bhandari, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-newtech-promoters-and-developers-pvt-ltd-delhi-v-state-of-u-p-ors-46958
- **Pages:** 8

## Headnote

C.S.C., Sri Wasim Masood

A.
Real
Estate
(Regulation
and
Development) Act (16 of 2016), S. 21, S.
29, S. 30, S. 81 - Recovery Certificate
challenged on ground that single member
of RERA alone could not pass order - as S.
21 provides for formation of Authority
consist of Chairperson alongwith two
whole time Members - Held - Even single
member competent to pass order - Subsection
(2)
to
Section
29
permits
adjudication of complaint even in absence
of Chairperson - S. 30 shows that in case
of
vacancy,
or
any
defect
in
the
constitution
of
the
Authority
the
proceeding of the Authority would not be
invalidated - S. 81 provides for delegation
of power/function, an order was issued to
delegate the power to a Member for
hearing of the complaint - More so
petitioner did not raise objection before
the single Member about his competence
to adjudicate the complaint - petitioner
challenged the order in reference to the
composition only when he lost in the
complaint (Para 8,10, 12, 13 )

B.
Real
Estate
(Regulation
and
Development) Act (16 of 2016), S. 40 (1),
S. 40 (2) - Recovery - If a promoter or an
allottee or a real estate agent, fails to pay
principal amount deposited with him,
interest
or
penalty
or
compensation
imposed on him, it shall be recoverable as
an arrears of land revenue u/s 40 (1) -
recovery of the amount is provided under
Section 40(1) alone - whereas S. 40(2) is
to enforce any direction of the nature of
restrain, injunction or to act in a particular
manner or to refrain a party in doing any
act, which cannot be enforced as an
arrears of land revenue & it is not meant
for recovery of the amount. Such order
can be enforced firstly by the Adjudicating
Authority and in case of failure, through
the civil court. (Para 19)
Complaint filed alleging that despite payment
possession of a unit not given - prayer was
made for refund of the amount with interest -
an order was passed by RERA for refund of the
principal amount of Rs 21,42,887/- alongwith
interest - RERA issued citation for return of the
principal amount of Rs 21,42,887/- deposited
with the Promoter alongwith interest Rs
14,77,569/ - recovery of the amount was to be
made as arrears of land revenue - Order
chall

## Text

3 All. M/S Newtech Promoters and Developers Pvt. Ltd., Delhi Vs. State of U.P. & Ors.
727
of 2016") were brought for that purpose
and provides the machanism for execution
of the order.

20. 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.

21. In the instant case, the consumer had
deposited a sum of Rs.28 lacs and odd, in
instalments but despite an agreement for giving
possession of the flat in the year 2018, 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.28 lacs and odd, the non-petitioner consumer is
to be send to civil court while recovery of amount
of interest of Rs.9 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.

22. 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 Act of 2016 and would give rise to
the anarchy, existing earlier, in the hands of
Promoters.

23. 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.

24. 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 A727
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. 26475 of 2020

M/S Newtech Promoters and Developers
Pvt. Ltd., Delhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
728 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Pratik Chandra, Sri Manish Singh, Sri Azhar
Ikram

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

A.
Real
Estate
(Regulation
and
Development) Act (16 of 2016), S. 21, S.
29, S. 30, S. 81 - Recovery Certificate
challenged on ground that single member
of RERA alone could not pass order - as S.
21 provides for formation of Authority
consist of Chairperson alongwith two
whole time Members - Held - Even single
member competent to pass order - Subsection
(2)
to
Section
29
permits
adjudication of complaint even in absence
of Chairperson - S. 30 shows that in case
of
vacancy,
or
any
defect
in
the
constitution
of
the
Authority
the
proceeding of the Authority would not be
invalidated - S. 81 provides for delegation
of power/function, an order was issued to
delegate the power to a Member for
hearing of the complaint - More so
petitioner did not raise objection before
the single Member about his competence
to adjudicate the complaint - petitioner
challenged the order in reference to the
composition only when he lost in the
complaint (Para 8,10, 12, 13 )

B.
Real
Estate
(Regulation
and
Development) Act (16 of 2016), S. 40 (1),
S. 40 (2) - Recovery - If a promoter or an
allottee or a real estate agent, fails to pay
principal amount deposited with him,
interest
or
penalty
or
compensation
imposed on him, it shall be recoverable as
an arrears of land revenue u/s 40 (1) -
recovery of the amount is provided under
Section 40(1) alone - whereas S. 40(2) is
to enforce any direction of the nature of
restrain, injunction or to act in a particular
manner or to refrain a party in doing any
act, which cannot be enforced as an
arrears of land revenue & it is not meant
for recovery of the amount. Such order
can be enforced firstly by the Adjudicating
Authority and in case of failure, through
the civil court. (Para 19)
Complaint filed alleging that despite payment
possession of a unit not given - prayer was
made for refund of the amount with interest -
an order was passed by RERA for refund of the
principal amount of Rs 21,42,887/- alongwith
interest - RERA issued citation for return of the
principal amount of Rs 21,42,887/- deposited
with the Promoter alongwith interest Rs
14,77,569/ - recovery of the amount was to be
made as arrears of land revenue - Order
challenged on the ground that refund of the
principal amount is not recoverable as an
arrears of land revenue u/s 40 (1) but can be
as per Section 40(2) of the Act of 2016 - Held -
If recovery of amount is sought by dividing it in
two parts and by different method i.e. for
recovery of principal amount consumer is to be
send to civil court while recovery of amount of
interest is made as arrears of land revenue then
it would be against the object of the Act of 2016
of speedy redressal (Para 21)

Dismissed

List of Cases cited:-

1. M/s K.D.P. Build Well Pvt. Ltd. Vs State of
U.P. & Ors Writ -C No.2248 of 2020 dt
04.02.2020

2. Rudra Buildwell Constructions Pvt. Ltd. Vs
Poonam Sood & Anr Writ- C No.3289 of 2020 dt
06.02.2020

3. Janta Land Promoters Private Limited Vs
U.O.I. CWP No.8548 of 2020 dt 16.10.2020
(P&H)

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

1. Heard Sri Manish Singh with Sri
Pratik Chandra and Sri Azhar Ikram,
learned counsel for the petitioner. Sri
Wasim Masood has put in appearance on
behalf of respondents.

2. The writ petition has been filed
with the following prayers:
3 All. M/S Newtech Promoters and Developers Pvt. Ltd., Delhi Vs. State of U.P. & Ors.
729

"(i) Issue an appropriate writ, order
or direction declaring the section 24(a) of
the U.P. Real Estate Regulatory Authority
(General) Regulation, 2019 as ultra vires
and contrary to the section 21 and 85 of the
RERA Act.

(ii) Issue a writ, order or direction in
the nature of Certiorari quashing order
dated
27.2.2019
passed
Regulatory
Authority / Bench No. I, U.P. RERA
Regional Office, Gautam Budh Nagar, in
Complaint No. 7201814183 (Chandeshwar
Pandey Vs. M/s Newtech Promoters and
Developers Pvt. Ltd.).

(iii) Issue a writ, order or direction in
the
nature
certiorari
quashing
the
impugned
Recovery
Certificate
dated
8.9.2020 issued by opposite party no. 4.

(iv) Issue a writ, order or direction in
the nature of mandamus not to give effect
the impugned recovery certificate dated
8.9.2020 issued by opposite party no. 4.

(v) Issue a writ, order or direction in
the nature of mandamus directing the state
respondents
not
to
initiate
coercive
measures
pursuant
to
the
impugned
recovery certificate issued by opposite
party no. 4."

3. The petitioner has challenged the
order passed by Real Estate Regulatory
Authority
(in
short
"RERA")
dated
27.2.2019 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").

4. It is a case where a complaint was
filed by the non-petitioner alleging that
despite payment towards unit No. D-502 in
the scheme introduced by the petitioner, the
possession of a unit has not been given.
The unit (flat) was booked on 6.10.2012
and was to be delivered in the year 2015.
The prayer was made for refund of the
amount of Rs.29,11,265/- 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 2015. 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 27.2.2019 for refund
of the principal amount alongwith interest.
In pursuance thereof, order dated 27.2.2019
was issued for its execution. The amount of
Rs.29,11,265/- was shown towards the
principal amount while component of
interest
was
Rs.19,36,558.07/-.
The
petitioner has filed this writ petition to
challenge
not only
the
order dated
27.2.2019 passed by RERA but the
recovery certificate dated 8.9.2020 on the
execution application.

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 27.2.2019 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
730 INDIAN LAW REPORTS ALLAHABAD SERIES
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 27.2.2019, 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
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
3 All. M/S Newtech Promoters and Developers Pvt. Ltd., Delhi Vs. State of U.P. & Ors.
731
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
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
732 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

15. 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.

16. 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.

17. 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."

18. 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, directions or
3 All. M/S Newtech Promoters and Developers Pvt. Ltd., Delhi Vs. State of U.P. & Ors.
733
orders of the Real Estate Regulatory
Authority and the adjudicating officer and
for
matters
connected
therewith
or
incidental thereto."

19. 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.

20. 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.

21. In the instant case, the consumer
had deposited a sum of Rs.29 lacs and odd,
in instalments but despite an agreement for
giving possession of the flat in the year
2015, 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.
29 lacs
and odd,
the non-petitioner
consumer is to be send to civil court while
recovery of amount of interest of Rs.19 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.
734 INDIAN LAW REPORTS ALLAHABAD SERIES

22. 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
Act of 2016 and would give rise to the
anarchy, existing earlier, in the hands of
Promoters.

23. 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.

24. 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.
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(2021)03ILR A734
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.10.2018

BEFORE

THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE HARSH KUMAR, J.

Writ-C No. 54830 of 2011

State of U.P. ...Petitioner
Versus
Amin Uddin & Ors. ...Respondents
Counsel for the Petitioner:
Sri Sanjay Goswami (A.C.S.C.)

Counsel for the Respondents:
Sri Ashfaq Ahmad Ansari, Sri Madhusudan
Dikshit

A. Civil Law - Urban Land (Ceiling &
Regulation) Act, 1976 - Sections 10(5),
10(6) - If possession had not been taken
either from the original tenure holder or
the answering respondents in accordance
with the provisions of the 1976 Act,
namely
after
complying
with
the
provisions of Section 10(5) & 10(6) of the
1976 Act, then the tenure holder and his
heirs the answering respondents are
entitled to the benefit of the Repeal Act of
1999 (Para 5)

The entire proceedings including the issuance of
notice under Section 10(5) of the Urban Land
(Ceiling & Regulation) Act, 1976 against the
tenure holder were coram non judice as no
proceedings
could
have
been
undertaken
against a dead person. (Para 8)

It has been found that the possession memo
which was prepared on 22/23.3.1998, nowhere
indicates as to how possession was taken and
what is the name of witness in whose presence
such possession was taken. There is no name
indicated in the writ petition filed by the State or
even in the rejoinder affidavit. The name of the
Lekhpal
in
whose
presence
the
alleged
possession is said to have been taken has not
been mentioned and the printed proforma of the
possession memo is blank to that effect. (Para
12)

B. Under the provisions of Section 10(5) of
the Urban Land (Ceiling & Regulation) Act,
1976 a period of 30 days is given to the
tenure
holder
to
handover
peaceful
possession, and then if the tenure holder
fails
to
deliver
possession
forcible
possession can be adhered to in terms of
Section 10(6) thereof. In the instant case
surprisingly enough even before the expiry of 30
days, the possession memo is said to have been
taken on 22/23.3.1998. This was clearly an
over-reach and a clear paper transaction which
establishes
that
the
petitioner-State
has