# U.P. Avas Evam Vikas Parishad, Lucknow v. Dhruv Kumar Chaturvedi

- **Citation:** (2023) 11 ILRA 176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-18
- **Case number:** RERA Appeal No. 67 of 2023
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-avas-evam-vikas-parishad-lucknow-v-dhruv-kumar-chaturvedi-49419
- **Pages:** 40

## Headnote

Reasoned order-Appellate Tribunal examined
the evidence on record at length-and arrived at
a reasoned conclusion-there was a delay in
handing over of the possession of the project to
the respondent-this finding is based on cogent
and
binding
document-no
any
substantial
question of law involved-Appeals dismissed.
(E-9)

Cases cited:

## Text

_Characters 0–39,692 of 133,848. This is a partial read: ask again with offset=39692 for what follows._

176 INDIAN LAW REPORTS ALLAHABAD SERIES
that reason. In private litigation as well,
the litigant concerned would continue
to approach the higher Court, despite
the fact that he had lost in every court
hithertobefore. The effort is not to
discourage a litigant in whose perception
his cause is fair and legitimate. The effort is
only to introduce consequences if the
litigant's perception was incorrect and if his
cause is found to be not fair and legitimate,
he must pay for the same. In the present
setting of the adjudicatory process, a
litigant no matter how irresponsible he is
suffers no consequences. Every litigant,
therefore, likes to take a chance even when
counsel's advice is otherwise.

20. In the present case itself, the
petitioner without taking recourse to the
remedy under the Code, 2006 has
approached this Court for a direction to the
respondent-authorities to get the illegal
encroachments made by the respondent
nos.5 to 9 removed.

21. I find that the present writ petition
is misconceived and ill-advised. Instead of
moving an application under the Code,
2006, which was appropriate remedy, the
petitioner has filed the present writ petition,
which in my view is an abuse of process of
law. This Court is overburden with large
number of case and is precious judicial
time is wasted in such type of writ
petitions, which are filed in large numbers,
wherein the petitioners could have obtain
relief or redressed their grievances by
making an appropriate application under
the provisions of U.P. Revenue Code, 2006.
In this regard, I am supported by judgment
of this Court in Shravan Kumar Yadav Vs.
State of U.P. and 15 others reported in
2022 (147) RD 373 as well as judgment
and order dated 24.11.2022 passed in
Public Interest Litigation No.1892 of 2022
(Pankaj Devi Vs. State Of U.P. and others
)

22. For all the reasons mentioned
above, I find that this writ petition is an
abuse of process of law and meritless.
Accordingly, the writ petition is dismissed
with liberty to the petitioner to approach the
competent authority by filing an application
under Section 67 of the U.P. Revenue
Code, 2006. In case, such an application is
filed by the petitioner, the same shall be
decided in accordance with law after
providing opportunity of hearing to all the
concerned parties. It is clarified that this
Court has not adjudicated upon the merits
of the claim as raised by the petitioner in
the present Public Interest Litigation.
----------
(2023) 11 ILRA 176
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2023
BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

RERA Appeal No. 67 of 2023
Connected With
RERA Appeal No. 68 of 2023
and other connected cases

U.P. Avas Evam Vikas Parishad, Lucknow
 ...Appellant
Versus
Dhruv Kumar Chaturvedi ...Respondent

Counsel for the Appellant:
Umesh Chandra Pandey

Counsel
for
the
Respondent:
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
177
Reasoned order-Appellate Tribunal examined
the evidence on record at length-and arrived at
a reasoned conclusion-there was a delay in
handing over of the possession of the project to
the respondent-this finding is based on cogent
and
binding
document-no
any
substantial
question of law involved-Appeals dismissed.
(E-9)

Cases cited:

1. Ramchandra Vs Ramalingam: AIR 1963 SC
302

2. Nazir Mohamed Vs J. Kamala & ors.: (2020)
19 SCC 57

3. Santosh Hazari Vs Purushottam Tiwari:
(2001) 3 SCC 179

4. Chandrabhan v. Saraswati : 2022 SCC Online
SC 1273

5. Government of Kerala Vs Joseph : 2023 SCC
Online SC 961

6. Chittoori Subbanna Vs Kudappa Subbanna,
AIR 1965 SC 1325,

7. St. of Punjab Vs Dr. R.N. Bhatnagar &
ors.(1999) 2 SCC 330,

8. T.C. Appanda Mudaliar Vs St. of Madras,
(1976) 4 SCC 821

9. Dr. Jagmittar Sain Bhagat Vs Dir. Of Health
Services, (2013) 10 SCC 136,

10. Saroj Rani Vs Sudarshan Kr. Chadha (1984)
4 SCC 90,

11. St. of Uttar Pradesh & others Vs Dr. Anupam
Gupta & ors.(1993) Suppl(1) SCC 594

12. Lakshmi Shankar Mehrotra & ors.Vs S.M.
Sengupta & Ors, (1995) Suppl(4) SCC 40.

13. Neelkamal Realtors Suburban Pvt. Ltd. &
ors.Vs U.O.I. : AIR 2018 (NOC) 398 (BOM.)

14. M/s Newtech Promoters and Developers Pvt.
Ltd. Vs St. of U.P (Civil Appeal No. 6745-6749 of
2021) decided on 11.11.2021
15. Lucknow Development Authority Vs M.K.
Gupta, 1994 (91) SCC 243,

16. Ghaziabad Development Authority Vs Balbir
Singh, 2004 (5) SCC 65

17. Haryana Development Authority Vs Darsh
Kumar, 2005 (9) SCC 449

18. Ghaziabad Development Authority Vs U.O.I.,
2000 (6) SCC 113

19.
Bangalore
Development
Authority
Vs
Syndicate Bank II (2007) CPJ 17 (SC)

(Delivered by Hon'ble Om Prakash Shukla,
J.)

(1) At the outset, this Court deem it
apt to divide the judgment into sections to
facilitate analysis, which are as follows :-

INDEX
PAGE NO
A.
Introduction
11
B.
Decision in RERA Appeal Nos. 67,
69, 70, 71, 72, 73, 74, 75, 76, 77,
78, 79, 80, 82, 83, 84, 85, 87 of
2023
12a
C.
Decision in RERA Appeal No. 68
of 2023
54
D
Decision in RERA Appeal No. 81
of 2023

56
E.
Decision in RERA Appeal No. 86
of 2023
58
F.
Decision in RERA Appeal Nos. 88,
89, 90, 91, 93, 96, 97, 98, 99, 100,
101, 102, 103, 104 of 2023
61
G.
Decision in RERA Appeal No. 92
of 2023
66
H.
Decision in RERA Appeal No. 94
of 2023
69
I.
Decision in RERA Appeal No. 95
of 2023
73
J.
Decision in RERA Appeal No. 105
of 2023
76
K.
Decision in RERA Appeal No. 106
of 2023
79
178 INDIAN LAW REPORTS ALLAHABAD SERIES
L.
Decision in RERA Appeal No. 107
of 2023
81
M.
Decision in RERA Appeal Nos.
108, 109 of 2023
85
N.
Decision in RERA Appeal Nos.
110, 111, 112, 113, 114, 115, 116,
117 of 2023
89

A. Introduction

(2) Heard Shri Anurag Singh, Shri
Umesh Chandra Pandey and Shri Shikhar
Srivastava,
learned
Counsel
representing the appellant and Shri
Pradeep
Kumar
Singh
and
Shri
Santosh Kumar Bhatt, learned Counsel
representing the respondent.

(3) The above-captioned appeals
have been filed by the appellant- "U.P
Avas Evam Vikas Parishad" under
Section
58
of
the
Real
Estate
(Regulation and Development) Act,
2016
(hereinafter
referred
to
as
"RERA Act, 2016"), wherein by virtue of the
impugned order, the learned U.P. Real Estate
Appellate Tribunal, Lucknow (hereinafter
referred to as the 'Tribunal') has dismissed
appeals filed by the appellant and it has been
directed that the amount deposited in terms of
Section 43 (5) of the RERA Act, 2016 by the
appellant to be transferred to the concerned
account of the Regulatory Authority for
disposal as per the provisions of the Act.

(4) Due to reasons recorded by
this Court in its earlier order dated
28.1.2023, the delay in filing of these
appeals has already been condoned
and as such these bunch of appeals
were heard together for their disposal
on merits.

B. RERA Appeal Nos. 67, 69, 70, 72,
73, 74, 75, 76, 77, 78, 79, 80, 82, 83, 84,
85, 87 of 2023

(5) These appeals arise out of the
common judgment/order dated 25.11.2022
passed by the learned Appellate Tribunal.

(6) Since common question of law has
been raised by the appellant in all these
appeals, it would be in the interest of
justice
that
all
these
appeals
are
consolidated and taken together for hearing
and disposal. However, before this Court
deals with the question of law raised in
these appeals, the brief facts culminating
into these appeals be narrated to appreciate
the law in its proper perspective. In this
regard, the facts of the lead matter being
RERA
Appeal
No.
67
of
2023
(complainant- Dhruv Kr. Chaturvedi) is
taken into consideration.

Factual Matrix

(7) It has been submitted that the
appellant is a public institution constituted
under the provisions of U.P Avas Evam
Vikas
Adhiniyam,
1973
(hereinafter
referred to as 'Adhiniyam, 1973') and is
an instrumentality of State which works on
'no profit and no loss' basis. The appellant
had been constituted for the welfare of the
public and is engaged in providing planned
development of the city and answering to
the residential needs of the public at large
in a regularised manner.

(8) It is claimed that the appellant has
acquired the land for development of
housing projects under the provisions of
U.P Awas Evam Vikas Adhiniyam and the
provisions of Land Acquisition Act, 1894
as provided under law. It is the case of the
appellant that a Scheme was launched in
Vrindavan Yojna and after delivery of
possession made by the Land Acquisition
in the year 2011 and during the project was
to be in progress, a new Act, namely, "The
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
179
Right
of
Fair
Compensation
&
Rehabilitation Act, 2013" came into force,
which
caused
various
hindrances
in
meaningful acquisition of the land and as
such some delay has occurred in the said
project, which was beyond the control of
the appellant.

(9) It appears that registration for
allotments of flats were opened by the
appellant for Vrindavan Yojna, Nilgiri
Enclave under self-finance scheme for a
housing colony of 640 flats in March, 2013
and, as such, on an application by the
respondent
(complainant
before
the
authority), the appellant allotted a Flat to
the respondent on 31.08.2013 for an
estimated
sale
consideration
of
Rs.
20,88,000/-. As per the respondent, the said
amount of sale consideration was payable
in installments and the possession was to be
given by the appellant within 24 months.
However, the appellant failed to offer for
possession to the respondent within the said
stipulated time period, which resulted in
increase in the Flat price and additional
burden of GST was made applicable to
him. It was the case of the respondent
before the Authority that although he had
regularly paid all the installments, however.
as per the registration booklet, no windows
in the Flat, no car parking, no sewage and
no other facilities were made available to
him and most importantly the possession
was delayed.

(10) Admittedly, the sale deed for the
said Flat was executed on 08.12.2017 and
possession was given on 27.01.2018 and
the complaint was filed almost after one
year of taking possession by the respondent
on various grounds including delay of
delivering possession of the flats, no
windows in flats, parking issue etc.

(11) On the other hand, the appellant
took a ground before the authority that the
price of the flat was not fixed and was
merely tentative and similarly 24 months of
possession was a tentative date. According
to them, construction was delayed because
of pendency of litigation in the High Court
being Writ Petition No. 110 of 11 and 3869
of 11. Further delay was because of dharna
pradarshan of farmer's union, for which a
report/complaint was also filed by the
appellant. According to the appellant, the
registration booklet also mentions that in
case the respondent/allottee pays the last
installment and still is not given the
possession of the flat, he was well within
his right to demand for refund of money,
which in this case has not been done by the
respondent/allottee, meaning thereby that
they have volunteered to waive off their
right to award of any compensation. The
appellant also stated before the authority
that the claim for compensation for delay
under Section 12, 14, 18 and 19 of the
Adhiniyam, 1973 was not maintainable.
According to them, window has been
provided and car parking has also been
given.

(12) An objection was raised by the
appellant before the Authority as to the
maintainability of the complaint, wherein
the Authority transferred the said compliant
to the Adjudicating Officer under Section
71 of the Act, 1973 for determination of
compensation for delay and other issues
etc.

(13) The Adjudicating Authority, after
discussing the contention of both the
parties in great detail, returned a finding
dated 11.02.2021 that there had been a
delay in giving the possession of flat by the
appellant. Thus, the
authority,
while
accepting the complaint of the respondent,
180 INDIAN LAW REPORTS ALLAHABAD SERIES
directed the appellant to pay interest as
compensation on the amount of Flat i.e Rs.
20,88,000/- for the period of delay between
31.08.2015 to 18.08.2017 at the rate of
MCLR+1% per annum within 45 days of
the passing of orders. Further direction was
that
in
case
the
said
amount
of
compensation in the form of Interest is not
paid within the said 45 days, the respondent
would be entitled for interest at the same
rate till the receipt of actual amount from
appellant.

(14) The appellant being aggrieved by
the aforesaid order of the Adjudicating
Authority filed an appeal under Section 44
of the RERA Act, 2016 before the
Appellate Tribunal.

(15) The said appeal was taken for
hearing along with 22 other appeals, lead
matter being Appeal No. 245 of 2020 (U.P
Avas Evam Vikas Parishad V/s Sangeeta
Singh), wherein the Appellate Tribunal
painstakingly prepared a tabular chart of
the pending 23 appeals, giving brief
description of the flat allotted, date of
allotment,
total
price
paid,
date
of
impugned order, date of filing of appeal
and the relief sought in each appeal.

(16) The Appellate Tribunal having
recorded the facts of each appeal in a
tabular form, went on to narrate the brief
facts of the lead appeal and the grounds
preferred by the appellant along with the
relief sought. Further, the objection against
the appeal by the respondent was also noted
by the Appellate Tribunal along with the
relevant
judgments.
Apparently,
the
Appellate Tribunal after discussing the
various issues raised by the appellant as
well as the respondent, rejected the appeal
vide the common impugned order dated
25.11.2022 along with almost 22 other
appeals on the same issue. It is this order
which is subject matter of challenge in
these appeals.

Contention of the parties

(17) The learned Counsel for the
appellant has strenuously argued that the
impugned order has been passed without
considering the fact that any claim under
the
RERA
Act
can
be
raised
or
compensation can be granted only on the
basis of contract existing between the
parties. According to him, after execution
of the sale deed, the prior contract of year
2013
having
been
extinguished,
the
complaint itself was not maintainable and
as such he has argued that the impugned
order has been passed without any
jurisdiction. The learned Counsel as an
extension of his argument has cited
judgments of the National Consumer
Disputes Redressal Commission (NCDRC)
to suggest that the complaint before the
RERA was not maintainable of the
respondent/allottee, in case he had taken
possession with an open eye and without
raising any objection. Further, grounds
were agitated relating to non-applicability
of Section 18 of the RERA Act, 2016
relating to grant of interest or compensation
as there existed no privity of contract
between the parties. Further thrust of the
argument of the learned Counsel for the
appellant were on the issue that when the
allotment was made at a tentative rate
subject to calculation of final cost, there
could not had been any question about
revised higher rates.

(18) Thus, the learned Counsel has
attacked the impugned order from all four
corners and has also buttressed to frame
almost six substantial question of law, as
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
181
could also be found in the memo of
appeals.

(19) Per contra, the learned Counsel
for the respondent/allotee has supported the
impugned judgment. According to him,
there is no substantial question of law
involved in the present appeal and as such
he has prayed for dismissal of the present
appeal.

Discussion & Findings

(20) Before this Court embarks on to
the onerous path of deciding the present
bunch of appeals, it would be apt to
consider the scope and purport of the
provision of law under which these appeals
have been sought to be preferred by the
appellant. Admittedly, these appeals have
been filed under section 58 of the RERA
Act, 2016, which inter-alia states :-

"58. Appeal to High Court-(1)
Any person aggrieved by any decision or
order of the Appellate Tribunal, may, file an
appeal to the High Court, within a period of
sixty days from the date of communication
of the decision or order of the Appellate
Tribunal, to him, on any one or more of the
grounds specified in Section 100 of the
Code of Civil Procedure, 1908:

Provided that the High Court may
entertain the appeal after the expiry of the
said period of sixty days, if it is satisfied
that the appellant was prevented by
sufficient cause from preferring the appeal
in time.

Explanation-The
expression
"High Court" means the High Court of a
State or Union territory where the real
estate project is situated.

(2) No appeal shall lie against any
decision or order made by the Appellate
Tribunal with the consent of the parties."

(21) A plain reading of the aforesaid
provision although sufficiently provides for
an appeal against the decision or order of
the Appellate Tribunal on any one and more
grounds specified in Section 100 of the
Code of Civil Procedure, however, the
word "Second Appeal" is missing from the
aforesaid Section 58 of the Act. In any
case, the very mention of the availability of
grounds as specified in Section 100 of CPC
makes the said provision of the CPC
relevant for consideration of any appeal
under Section 58 of the RERA Act,
especially when technically it is an appeal
against an Appellate Tribunal's decision or
order and in that sense is virtually a second
appeal. It would be profitable at this stage
to quote Section 100 C.P.C, which reads as
under:

"100.Second appeal-(1) Save as
otherwise expressly provided in the body of
this Code or by any other law for the time
being in force, an appeal shall lie to the
High Court from every decree passed in
appeal by any Court subordinate to the
High Court, if the High Court is satisfied
that the case involves a substantial question
of law.

(2) An appeal may lie under this
section from an appellate decree passed ex
parte.

(3) In an appeal under this
section, the memorandum of appeal shall
precisely state the substantial question of
law involved in the appeal.

(4) Where the High Court is
satisfied that a substantial question of law
is involved in any case, it shall formulate
that question.

(5) The appeal shall be heard on
the question so formulated and the
respondent shall, at the hearing of the
appeal, be allowed to argue that the case
does not involve such question:
182 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided that nothing in this subsection shall be deemed to take away or
abridge the power of the Court to hear, for
reasons to be recorded, the appeal on any
other substantial question of law, not
formulated by it, if it is satisfied that the
case
involves
such
question.]"

(22) There is no gainsaying that a
right to appeal is always conferred by the
statute and any party does not have an
inherent right to appeal. In the present case,
it has been mentioned that an appeal under
Section 58 of the RERA Act can be
preferred on one or more grounds specified
in Section 100 CPC. Apparently, Section
100 CPC provides for an appeal to the High
Court, if it is satisfied that the case involves
a substantial question of law. Thus, it can
be safely deduced that the existence of
substantial question of law is sine quo non
for the exercise of jurisdiction under
Section 100 of the CPC as well as Section
58 of the RERA Act.

(23) The principles for deciding when
a question of law becomes a substantial
question of law, have been enunciated by a
Constitution Bench of the Apex Court in
Sir Chunilal v. Mehta & Sons Ltd. v.
Century Spg. & Mfg. Co. Ltd : AIR 1962
SC 1314 wherein it was held :-

"The proper test for determining
whether a question of law raised in the
case is substantial would, in our opinion,
be whether it is of general public
importance or whether it directly and
substantially affects the rights of the parties
and if so whether it is either an open
question in the sense that it is not finally
settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion of
alternative views. If the question is settled
by the highest court or the general
principles to be applied in determining the
question are well settled and there is a
mere question of applying those principles
or that the plea raised is palpably absurd
the question would not be a substantial
question of law."

(24) Although, under Section 58 of
the RERA Act, the jurisdiction of this Court
is confined to substantial question of law,
which as a corollary means that a finding of
fact is not open to challenge in this
proceeding, even if the appreciation of
evidence is palpably erroneous and the
finding of fact is incorrect as has been held
by the Apex Court in Ramchandra Vs.
Ramalingam: AIR 1963 SC 302, however
the same is always to the exceptions that (i)
the conclusions drawn by the court below
do not have a basis in the evidence led or
(ii) the appreciation of evidence "suffers
from material irregularity".

(25) Recently, the Apex Court in the
case of Nazir Mohamed V/s J. Kamala
and Ors. : (2020) 19 SCC 57 at paragraph
37 formulated the principles relating to
Section 100 CPC as to how and in what
circumstances the substantial question of
law can be framed in the following words :-

"37. The principles relating to
Section 100 CPC relevant for this case may
be summarised thus:

An inference of fact from the
recitals or contents of a document is a
question of fact, but the legal effect of the
terms of a document is a question of law.
Construction of a document, involving the
application of any principle of law, is also
a question of law. Therefore, when there is
misconstruction of a document or wrong
application of a principle of law in
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
183
construing a document, it gives rise to a
question of law.

The
High
Court should
be
satisfied that the case involves a substantial
question of law, and not a mere question of
law. A question of law having a material
bearing on the decision of the case (that is,
a question, answer to which affects the
rights of parties to the suit) will be a
substantial question of law, if it is not
covered by any specific provisions of law or
settled legal principle emerging from
binding
precedents,
and,
involves
a
debatable legal issue.

A substantial question of law will
also arise in a contrary situation, where the
legal position is clear, either on account of
express provisions of law or binding
precedents, but the Court below has
decided the matter, either ignoring or
acting contrary to such legal principle.
In the second type of cases, the
substantial question of law arises not
because the law is still debatable, but
because the decision rendered on a
material question, violates the settled
position of law.

The general rule is, that High
Court will not interfere with the
concurrent findings of the Courts below.
But it is not an absolute rule. Some of
the
well-recognised
exceptions
are
where (i) the courts below have ignored
material evidence or acted on no
evidence; (ii) the courts have drawn
wrong inferences from proved facts by
applying the law erroneously; or (iii)
the courts have wrongly cast the burden
of proof. A decision based on no evidence,
does not refer only to cases where there is a
total dearth of evidence, but also refers to
case, where the evidence, taken as a whole,
is not reasonably capable of supporting the
finding."

(26) Having traced the scope and
power of interference by this Court under
Section 58 of the RERA Act, 2016 to an
order passed by the Appellate Tribunal, this
Court finds it profitable to quote the
various question of law as mentioned by
the appellant in the memo of appeal, so as
to examine its relevance keeping in view
the limited scope of provisions of Section
58 of the RERA Act, 2016. The question of
law framed by the appellant are thus :-

" (a) Whether the order and
judgment impugned suffers from illegality
on account of improper consideration of
material and law as well as exercising the
jurisdiction not vested in it?

(b) Whether the order of the
tribunal upholding the order of adjudicating
officer can be just, legal and proper
ignoring that the complaint itself was not
maintainable as was filed much before to
the RERA Act came into force and was not
an ongoing project in view to rule 2(h)?

(c)
Whether
the
impugned
judgment and order about awarding the
interest of compensation for delayed
period, ignoring that it was not due to fault
of the appellant can be just and liable to be
set aside in view of principles of force
majeure?

(d) Whether after dismissal of
complaint by authority vide order dated
19.10.2019 the compensation or interest
can be awarded in view to section 12, 14 &
18 of the Act and the order be held to be
just and proper.

(e) Whether in deciding all 18
appeals
by
common
order
without
considering the fact of each cases or
appreciating the points involved and
argument made, the finding can be held to
be a speaking order and not in violation to
principles of natural Justice?
184 INDIAN LAW REPORTS ALLAHABAD SERIES

(f) Whether the finding of the
impugned judgment and order specially
awarding interest on delayed possession is
being contrary to the law laid down by
Apex Court is totally illegal arbitrary and is
otherwise not valid in the eyes of law hence
liable to be set-aside."

(27) The aforesaid issues framed by
the appellant apparently seems to have
been already decided by the Appellate
Tribunal, wherein the issues framed by the
Tribunal subsumes the question of law
framed by the appellant in the present
petitions.
Apparently,
the
Appellate
Tribunal applauding the main aim of the
RERA Act is to protect the home buyers
and also to make sure that the investments
in the field of the real estate industry get
uplifted with time had proceeded to answer
these questions, keeping in view that the
RERA Act was brought in the scenario to
see to the fact that the sale to a Home buyer
whether it be an apartment or a plot
transparently takes place between the
promoter/developer and the allotee/Home
buyers.

(28) Now the Court proceeds to see
whether the six ''substantial questions of
law", as have been framed by the
appellants, are invoked ''substantially' or
not, so as to invoke the jurisdiction of this
Court. A three Bench Judge of the Apex
Court some more than a decade ago in
Santosh Hazari Vs. Purushottam Tiwari:
(2001) 3 SCC 179, which was also
reiterated and followed in Chandrabhan v.
Saraswati : 2022 SCC Online SC 1273 and
Government of Kerala Vs Joseph : 2023
SCC Online SC 961 had held that to
constitute a substantial question of law, (i)
the issue should not be previously settled
by law of land or a binding precedent, (ii)
the said issue should have material bearing
on the decision of the case and (iii) the
issue raised should not be a fresh point
raised for the first time before the High
Court, unless it goes to the root of the
matter.

(29) Although, this Court exercising
its Jurisdiction under Section 58 of the
RERA Act is not enthroned as a Second
Appellate body, however, a fiction has been
created by the Section itself, which cast a
duty and somewhat provide an embargo on
the appellant to file an appeal under the
said section on any one or more of the
grounds specified in Section 100 of the
Code of Civil Procedure, 1908. Thus, a
restriction has been cast upon the appellant
to prefer the appeal on a limited ground of
"substantial question of law" and in that
sense this Court could be held to have
exercising its power of Second Appeal
under Section 58 of the RERA as
envisioned under Section 100 of the Civil
Procedure Code. Pertinently, no such
restriction is attributable to this Court of
considering the present appeal only on the
point of substantial question of law.

(30) From perusal of the bunch of
appeals being decided by this common
order, it comes out that the respondents in
each of the cases have booked a flat with
the U.P. Awas Evam Vikas Parishad and
paid a booking amount in terms of scheme
floated by the Parishad. Apparently, the
respondents were allotted a flat in Neelgiri
Enclave (Vrindavan Yojna) during the
period 2013-2014. The Parishad, thereafter,
demanded certain amount towards allotted
flats. The respondent claims to have
submitted the aforesaid amount as and
when the demands were raised by the
Parishad. It is admitted that the possession
of the flat was supposed to be given within
30 months from the date of allotment as per
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
185
Clause 9.1 of the brochure. However, it was
only in 2017, that the respondents were
asked to deposit the final amount, so that
the sale deed can be registered of the Flats
and it was subsequently only that the
possession of these Flats were given to the
respondents. It is after having received the
possession and after registration of the sale
deed, the respondents filed a Complaint
Case
before
the
U.P.
Real
Estate
Regulatory Authority (hereinafter referred
to as ''Authority') claiming refund of certain
excess
amount,
refund
of
interest,
compensation for delayed possession and
other ancillary non-compliance of the
RERA provisions relating to construction
and parking. Apparently, the complaint was
allowed by the Authority, wherein the
Parishad was directed to pay interest on the
total amount of sale consideration paid till
the date of possession of the apartment at
the rate of MCLR + 1% as compensation.
Subsequently, the Parishad filed various
appeals before the Appellate Tribunal,
which came to be decided by the impugned
common order dated 25.11.2022, by virtue
of which the order of the Authority was
upheld and hence the present second
appeals.

(31) This Court has gone through the
appeals
filed
by
the
Parishad
with
assistance of the learned Counsel appearing
for the appellant and the alleged substantial
questions of law.

(32) Having traced the principles of
law for consideration of the present appeal
under Section 58 of the RERA Act, it is
apparent that none of the ''substantial'
questions of law" as have been framed by
the appellant fall within the ambit of being
''substantial" questions of law. The reason
for the same is that the ''substantial"
questions of law as have been framed by
the appellant are specifically covered by
the specific provisions of law as per the
interpretation given to them and do not
involve any debatable legal issue as has
been also held in Nazir Mohamed Vs J.
Kamala and Ors.: (2020) 19 SCC 57 at
paragraph 32, which inter-alia observes :-

"32. To be "substantial", a
question of law must be debatable, not
previously settled by the law of the land or
any binding precedent, and must have a
material bearing on the decision of the case
and/or the rights of the parties before it, if
answered either way."

(33) The learned Counsel for the
appellant has during the course of his
argument emphatically stressed on a recent
order of the learned RERA Appellate
Tribunal passed in Appeal No. 70 of 2023
(GNIDA Vs. Ranjan Mishra) and two other
connected matters to argue that the RERA
Tribunal has itself vide the said judgment
dated 20.04.2023 has held that the
Adjudicating Officer does not have the
jurisdiction to grant interest in the form of
compensation under section 18(1) of the
RERA Act and that according to the learned
Counsel, the Appellate Tribunal has itself
recorded in the said order that the
competence
and
jurisdiction
of
the
Adjudicating Officer was being examined
by the Appellate Tribunal for the first time
in the said case. While the order of an
Appellate Tribunal is not binding on this
Court, which has been designated as a
Court of Second Appeal under the scheme
of RERA Act and even the judicial
proprietary does not permit this Court to
consider the said order for adjudication of
these appeals, however, as is being
discussed hereinafter, the issue raised and
decided in both the cases are at stark
differences.
186 INDIAN LAW REPORTS ALLAHABAD SERIES

(34) This Court on the specific query
having put to the learned Counsel for the
appellant as to whether any ground had
been taken by him before the RERA
Appellate Tribunal or before this Hon'ble
Court relating to the competence or
jurisdiction of the Adjudicating Authority
for grant of interest as compensation under
Section 18(1) of the RERA Act, learned
Counsel has neither admitted nor denied
the said query and has instead relied on the
following
judgments
to
buttress
his
submission that a pure question of law, not
dependent upon any question of facts can
be allowed to be raised for the first time
even before the Appellate Court.

(I)
Chittoori
Subbanna
Vs
Kudappa Subbanna, AIR 1965 SC 1325,

(II) State of Punjab Vs Dr. R.N.
Bhatnagar & Ors. (1999) 2 SCC 330,

(III) T.C. Appanda Mudaliar Vs
State of Madras, (1976) 4 SCC 821,

(IV) Dr. Jagmittar Sain Bhagat
Vs Dir. of Health Services, (2013) 10 SCC
136,

(V) Saroj Rani Vs Sudarshan
Kr. Chadha (1984) 4 SCC 90,

(VI) State of Uttar Pradesh &
others Vs Dr. Anupam Gupta & Ors.
(1993) Suppl(1) SCC 594,

(VII)
Lakshmi
Shankar
Mehrotra & Ors. Vs S.M. Sengupta &
Ors, (1995) Suppl(4) SCC 40.

(35) There could not be any doubt
about
the
aforesaid
legal
precedent,
however, as held in various judgment that a
decision is an authority for the questions of
law determined by it and while applying
the ratio, the Court may not pick out a word
or a sentence from the judgment divorced
from the context in which the said question
arose for consideration. Thus Court finds
that there is no quarrel about the
proposition of law argued by the learned
Counsel for the appellant, however, the fact
of the matter remains that jurisdiction is an
issue, which ought to have been decided at
a preliminary stage itself.

(36) At this juncture, it would be apt
to quote the question of determination
formulated by the learned RERA Appellate
Tribunal, which inter-alia enumerates as
follows:

" I. Whether the complaint filed
before
the
Adjudicating
officer
is
maintainable as cause of action arose in
year, 2013 before RERA Act, 2016 came
into force as pleaded by appellant- UP Avas
evam Vikas Parishad, Lucknow in its
Appeal ? .

II.
Whether
the
project
in
question of the appellant- UP Avas evam
Vikas Parishad, Lucknow is delayed ?

III. Whether the judgment and
order dated 13.03.2020 passed by the
Adjudicating Officer awarding the interest
in terms of compensation to the respondent/
complainant for delayed period from
30.07.2016 to 24.09.2019 is liable to be set
aside for the reasons mentioned in appeal?"

(37) Thus, apparently the issue of
competence and jurisdiction was neither
raised by the appellant before the Appellate
Tribunal, nor the same has been raised in
the present memo of appeals filed in this
Court.

(38) Moreover, there is another aspect
of the matter. This Court de hors the
aforesaid
belated
challenge
to
the
Jurisdiction by the appellant would had
entertained the said challenge even at this
stage, however, a plain reading of the facts
of the present case leads one to the
11 All. U.P. Avas Evam Vikas Parishad, Lucknow Vs. Dhruv Kumar Chaturvedi
187
conclusion that both the matters are
distinguishable on facts.

(39) Apparently, it is available from
the impugned order of the Adjudicating
Officer that the allottee had filed a
complaint
seeking
compensation
for
various reasons, including (i) relating to
delay in possession, (ii) there being no
windows in the flat and (iii) non-providing
of parking area etc., wherein the RERA
Authority vide an order dated 19.10.2019
marked the said case for adjudication to the
said Adjudicating Officer because Section
18 of the Act related to grant of interest as
well
as
compensation.
The
learned
Adjudicating Officer after hearing the
parties and recording the findings came to a
conclusion that there had been a delay in
providing possession to the allottee during
the period from 31.08.2015 to 18.08.2017
and as such for that period granted
compensation to be calculated as an interest
at the rate of SBI Home loan rate MCLR+
1% calculated annually. The Adjudicating
Officer held that interest amount would be
the compensation granted.

(40) Thus, this Court finds that the
Adjudicating
Officer
has
awarded
compensation in the form of interest, which
in this case is "SBI Home loan rate
MCLR+ 1% calculated annually". This
Court needs not burden this judgement any
further in explaining the meaning of
compensation,
which
may
be
both
monetary as well as non-monetary, direct or
indirect etc. In the present case, apparently,
it seems that the appellant is so engrossed
with the word "Interest" that it is not able
to visualize interest and compensation
separately. Needless to say, interest is a
sub-set of compensation and not vice-versa.
Further, a Division bench of the Bombay
High Court in the case of Neelkamal
Realtors Suburban Pvt. Ltd. And others
Vs. Union of India : AIR 2018 (NOC) 398
(BOM.),
while
deciding
the
constitutionality of various provisions of
RERA, observed as follows :-

"Section 18(1)(b) lays down that
if the promoter fails to complete or is
unable to give possession of an apartment
due to discontinuance of his business as a
developer on account of suspension or
revocation of the registration under the Act
or for any other reason, he is 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 with
interest at such rate as may be prescribed in
this behalf including compensation. If the
allottee does not intend to withdraw from
the project he shall be paid by the promoter
interest for every month's delay till handing
over of the possession. The requirement to
pay interest is not a penalty as the payment
of interest is compensatory in nature in the
light of the delay suffered by the allottee
who has paid for his apartment but has not
received possession of it. The obligation
imposed on the promoter to pay interest till
such time as the apartment is handed over
to him is not unreasonable. The interest is
merely compensation for use of money."

(41) In any case, the point being
raised by the learned Counsel for the
appellant in challenging the jurisdiction of
the Adjudicating Authority vis-à-vis the
RERA Authority for grant of interest for an
allottee who wishes to remain invested with
the project and eventually takes the
possession, is not under challenge, as
proviso to Section 18(1) clearly mandates
that where an allottee does not intend to
withdraw from the project, he shall be paid
188 INDIAN LAW REPORTS ALLAHABAD SERIES
by the promoter, interest for every month of
delay, till the handing over of the
possession, at such rate as may be
prescribed. Therefore, by raising the point
of jurisdiction, the learned Counsel has
waived to certain extent the grant of
interest, as the resurrected challenge is as to
who can grant interest, whether the
Authority or the Adjudicating Officer. This
Court finds that the aforesaid challenge has
been already answered by the Apex Court
at paragraph 86 of the judgment reported as
M/s Newtech Promoters and Developers
Pvt. Ltd. Vs. State of U.P (Civil Appeal
No. 6745-6749 of 2021) decided on
11.11.2021, which inter-alia states;

"86.