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

- **Citation:** (2021) 3 ILRA 694
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-29
- **Case number:** Writ-C No. 26446 of 2020
- **Bench:** Munishwar Nath Bhandari, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-newtech-promoters-developers-pvt-ltd-delhi-v-state-of-u-p-ors-46952
- **Pages:** 8

## Headnote

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

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

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

It is otherwise a fact that the petitioner kept
silence on the hearing of the complaint by one
Member and thereby he cannot now be allowed
and to seek invalidation of the proceeding going
contrary to S. 30 of the Act of 2016 and his
conduct.
The
first
argument
cannot
be
addressed simply by referring to S. 21 of the Act
of 2016 but has to refer to other provisions,
more specifically, S. 30 of the Act of 2016,
which was inserted by the legislature to save
the proceeding if the vacancy exist in the
Authority or other reason. It is otherwise a fact
that an order was issued to delegate the power
3 All. M/S Newtech Promoters & Developers Pvt. Ltd. Delhi Vs. State of U.P. & Ors.
695
to a Member for hearing of the complaint, which
was considered by this Court in earlier
judgment. Thus the first ground raised by the
petitioner cannot be accepted. The resolution of
the Authority has also been challenged but in
the light of S. 30 of the Act of 2016, we find no
ground to set aside the resolution as otherwise
S. 81 saves it. (Para 12, 14)

B. Issue regarding the rate of interest has
not been dealt with being a challenge on
the merit of the case. (Para 15)

C. Interpretation of Section 40(2) - Subsection (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 restrain a party to do a certain act. Such
order can be enforced firstly by the Adjudicating
Authority and in case of failure, through the civil
court. S. 40 (2) covers basically the case of an
order of injunction or mandatory injunction.
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 mechanism for
execution of the order. (Para 19, 21)

D. The object of speedy redressal would
frustrate if recovery of the amount is also
sought through the civil court. It is stated
that
recovery
of
interest,
penalty
or
compensation alone can be made as arrears of
land revenue. The object of Act of 2016 is to
protect the interest of consumer in real estate
sector apart from others. 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. It has been that the purpose
and object of S. 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. S.
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. (Para 18,
21)

E. Challenge to Rule 24 (a) of U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 is kept open. It has not
been debated for the reason that an order
of the nature provided under Regulation
24 (

## Text

694 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.
----------
(2021)03ILR A694
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. 26446 of 2020

M/S Newtech Promoters & Developers
Pvt. Ltd. Delhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Manish Singh, Sri Pratik Chandra, Sri Azhar
Ikram

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

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

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

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

It is otherwise a fact that the petitioner kept
silence on the hearing of the complaint by one
Member and thereby he cannot now be allowed
and to seek invalidation of the proceeding going
contrary to S. 30 of the Act of 2016 and his
conduct.
The
first
argument
cannot
be
addressed simply by referring to S. 21 of the Act
of 2016 but has to refer to other provisions,
more specifically, S. 30 of the Act of 2016,
which was inserted by the legislature to save
the proceeding if the vacancy exist in the
Authority or other reason. It is otherwise a fact
that an order was issued to delegate the power
3 All. M/S Newtech Promoters & Developers Pvt. Ltd. Delhi Vs. State of U.P. & Ors.
695
to a Member for hearing of the complaint, which
was considered by this Court in earlier
judgment. Thus the first ground raised by the
petitioner cannot be accepted. The resolution of
the Authority has also been challenged but in
the light of S. 30 of the Act of 2016, we find no
ground to set aside the resolution as otherwise
S. 81 saves it. (Para 12, 14)

B. Issue regarding the rate of interest has
not been dealt with being a challenge on
the merit of the case. (Para 15)

C. Interpretation of Section 40(2) - Subsection (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 restrain a party to do a certain act. Such
order can be enforced firstly by the Adjudicating
Authority and in case of failure, through the civil
court. S. 40 (2) covers basically the case of an
order of injunction or mandatory injunction.
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 mechanism for
execution of the order. (Para 19, 21)

D. The object of speedy redressal would
frustrate if recovery of the amount is also
sought through the civil court. It is stated
that
recovery
of
interest,
penalty
or
compensation alone can be made as arrears of
land revenue. The object of Act of 2016 is to
protect the interest of consumer in real estate
sector apart from others. 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. It has been that the purpose
and object of S. 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. S.
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. (Para 18,
21)

E. Challenge to Rule 24 (a) of U.P. Real
Estate Regulatory Authority (General)
Regulation, 2019 is kept open. It has not
been debated for the reason that an order
of the nature provided under Regulation
24 (a) has not been passed in the case in
hand. Thus, there is no occasion for the
petitioner to challenge the vires of the said
Regulation in these proceedings. (Para 23)

Writ petition dismissed.(E-3)

Precedent followed:

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

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

Precedent distinguished:

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

Present petition challenges order dated
05.04.2019,
passed
by
Real
Estate
Regulatory Authority.

(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:

"(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
5.4.2019
passed
Regulatory
696 INDIAN LAW REPORTS ALLAHABAD SERIES
Authority / Bench No. I, U.P. RERA
Regional Office, Gautam Budh Nagar, in
Complaint No. 5201810245 (Joydeep Das
GuptaVs. 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
12.3.2020 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
12.3.2020 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 dated 27.2.2020 issued
by opposite party no. 4."

3. The petitioner has challenged the
order passed by Real Estate Regulatory
Authority (in short "RERA") dated
5.4.2019 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. B-1202
in
the
scheme
introduced
by
the
petitioner, the possession of a unit has not
been given. The unit (flat) was booked on
4.10.2012 and was to be delivered in the
year 2015. The prayer was made for
refund of the amount of Rs.39,32,217/-
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 5.4.2019 for refund of the
principal amount alongwith interest. In
pursuance thereof, order dated 5.4.2019
was issued for its execution. The amount
of Rs.39,32,217/- was shown towards the
principal amount while component of
interest
was
Rs.23,00,699.16/-.
The
petitioner has filed this writ petition to
challenge not only the order dated
5.4.2019 passed by RERA but the
recovery certificate dated 12.3.2020 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
5.4.2019
is
without
jurisdiction.

6. It is also stated that the order to
award interest by the Authority is again going
contrary to the provisions. Rules for award of
interest was introduced in the year 2018. The
amount deposited with the Promotor has been
ordered to be returned with interest. The
interest has been allowed even for the period
prior to introduction of U.P. Real Estate
(Regulation and Development) (Agreement
for Sale/Lease) Rules, 2018 (in short "Rules
of 2018"). It is even ignoring the rate of
interest agreed by the parties. Challenge to
the order has been made on that ground also.
3 All. M/S Newtech Promoters & Developers Pvt. Ltd. Delhi Vs. State of U.P. & Ors.
697

7. We are first taking challenge to the
order dated 5.4.2019, 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
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.
698 INDIAN LAW REPORTS ALLAHABAD SERIES

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
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,
3 All. M/S Newtech Promoters & Developers Pvt. Ltd. Delhi Vs. State of U.P. & Ors.
699
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
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
700 INDIAN LAW REPORTS ALLAHABAD SERIES
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.39 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. 39 lacs and odd,
the non-petitioner consumer is to be send to
civil court while recovery of amount of
interest of Rs.23 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
3 All. M/S Newtech Promoters and Developers Pvt. Ltd., Delhi Vs. State of U.P. & Ors.
701
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 A701
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. 26450 of 2020

M/s Newtech Promoters and Developers
Pvt. Ltd., Delhi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pratik Chandra
Counsel for the Respondents:
C.S.C., 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 7,9, 11, 12)

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 18)

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