# U.P. Awas Evam Vikas Parishad, Lucknow v. Nishta Bhatnagar

- **Citation:** (2022) 7 ILRA 54
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-05
- **Case number:** RERA Appeal No. 26 of 2022
- **Bench:** Abdul Moin
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-awas-evam-vikas-parishad-lucknow-v-nishta-bhatnagar-48795
- **Pages:** 8

## Headnote

and Development) Act, 2016 - Section 58possession of the flat was to be given
within 30 months from the date of
allotment-the possession has only been
given on 12.12.2017 after substantial
delay and after the sale deed executed on
18.08.2017-taking into consideration the
said default on the part of the appellant
and the categoric provision of Section
7 All. U.P. Awas Evam Vikas Parishad, Lucknow Vs. Nishta Bhatnagar
55
18(3) of the Act, 2016, the Authority has
awarded compensation in the shape of
interest- Mere fact that the respondent
accepted terms of conveyance deed and
took possession of the flat cannot deprive
the
respondent
from
claiming
compensation for the failure on the part of
the
promoter/appellant
herein
to
discharge the obligations-The authority as
well as the Tribunal have proceeded to
grant compensation in terms of provisions
contained in Section 71 r/w 72 of the Act
2016-The
Court
finds
no
substantial
question of law involved. (Para 1 to 29)

The appeal is dismissed.(E-6)

List of Cases cited:

## Text

54 INDIAN LAW REPORTS ALLAHABAD SERIES

19.4. Even in such a case when the
punishment is set aside as shockingly
disproportionate to the nature of charges
framed against the delinquent employee, the
appropriate course of action is to remit the
matter back to the disciplinary authority or
the appellate authority with direction to pass
appropriate order of penalty. The court by
itself cannot mandate as to what should be
the penalty in such a case.

19.5. The only exception to the
principle stated in para 19.4 above, would
be in those cases where the co-delinquent is
awarded
lesser
punishment
by
the
disciplinary authority even when the charges
of misconduct were identical or the codelinquent was foisted with more serious
charges. This would be on the doctrine of
equality when it is found that the employee
concerned and the co-delinquent are equally
placed. However, there has to be a complete
parity between the two, not only in respect of
nature of charge but subsequent conduct as
well after the service of charge-sheet in the
two cases. If the co-delinquent accepts the
charges, indicating remorse with unqualified
apology, lesser punishment to him would be
justifiable." (emphasis supplied)

25.

As
discussed
in
earlier
paragraphs, the petitioner was careless in
passing orders and failed to follow
requisite procedure to pass said orders.
However,
neither
the
Gaon
Sabha
concerned, who has apparently suffered
pecuniary loss nor the State Government
had challenged the said orders and further
the pecuniary loss, if caused, is not
determined, even no rough calculation was
made, therefore, conduct of petitioner
would not falls under "grave misconduct".
The punishment awarded to petitioner
appears to be very harsh and it would not
be wrong to say that punishment is
shockingly disproportionate.

26. Taking note of Ram Karan
(supra), the findings that charges are
proved against the petitioner are upheld to
the extent discussed above. However, the
order of punishment dated 03.08.2012 is set
aside and matter is remanded back to
respondents to pass a fresh order of
punishment
after
considering
the
observations made in this judgment.

27. The writ petition is partly allowed
with aforesaid observations and directions.
----------
(2022)07ILR A54
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.07.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

RERA Appeal No. 26 of 2022
&
RERA Appeal No. 27 of 2022
&
RERA Appeal No. 8 of 2022

U.P. Awas Evam Vikas Parishad, Lucknow
 ...Appellant
Versus
Nishta Bhatnagar ...Respondent

Counsel for the Appellant:
Shikhar Srivastava, Satya Prakash

Counsel for the Respondent:

A. RERA Appeal- Real Estate (Regulation
and Development) Act, 2016 - Section 58possession of the flat was to be given
within 30 months from the date of
allotment-the possession has only been
given on 12.12.2017 after substantial
delay and after the sale deed executed on
18.08.2017-taking into consideration the
said default on the part of the appellant
and the categoric provision of Section
7 All. U.P. Awas Evam Vikas Parishad, Lucknow Vs. Nishta Bhatnagar
55
18(3) of the Act, 2016, the Authority has
awarded compensation in the shape of
interest- Mere fact that the respondent
accepted terms of conveyance deed and
took possession of the flat cannot deprive
the
respondent
from
claiming
compensation for the failure on the part of
the
promoter/appellant
herein
to
discharge the obligations-The authority as
well as the Tribunal have proceeded to
grant compensation in terms of provisions
contained in Section 71 r/w 72 of the Act
2016-The
Court
finds
no
substantial
question of law involved. (Para 1 to 29)

The appeal is dismissed.(E-6)

List of Cases cited:

1. Sir Chunilal Vs Mehta & Sons Ltd. Vs Century
Spg. & Mfg. Co. Ltd. (1962) SC 1314

2. Hero Vinoth Vs Seshammal (2006) 5 SCC 545

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

4. Ramchandra Vs Ramalingam (1963) AIR SC
302

5. Nazir Mohamed Vs J. Kamala & ors. (2020)
AIR SC 4321
(Delivered by Hon'ble Abdul Moin, J.)

1. This is an application for
condonation of delay in filing the appeal
supported with affidavit.

2. Heard Shri Sikhar Srivastava,
learned counsel for the appellant.

3. The reasons indicated in the
affidavit filed in support of the application
are sufficient.

4. Accordingly, the application is
allowed and delay in filing the appeal is
hereby condoned.

Order on memo of main appeal

1. Heard Shri Shikhar Srivastava,
learned counsel for the appellant.

2. Learned counsel for the appellant
contends that the issue involved in RERA
APPEAL No. - 26 of 2022, RERA
APPEAL No. - 27 of 2022 and RERA
APPEAL No. - 8 of 2022 are the same. As
such, the Court proceeds to hear all the
appeals together. For convenience, facts of
RERA APPEAL No. - 26 of 2022 are being
taken.

3. The instant appeal has been filed
under
Section
58
of
Real
Estate
(Regulation and Development) Act, 2016
(hereinafter referred as 'Act 2016') against
the order dated 09.03.2022 passed by the
Uttar
Pradesh
Real
Estate Appellate
Tribunal, Lucknow (hereinafter referred as
'Tribunal') in Appeal No. 85 of 2020 in re:
U.P. Awas Vikas Evam Parishad vs Nishtha
Bhatnagar.

4. The appeal has been filed by
framing the following substantial questions
of law which for the sake of convenience
are reproduced below:

"(i) Whether a complaint by an
allottee can be entertained under the
provisions of Section 71 of Real Estate
(Regulation and Development) Act, 2016
after the execution of a sale deed and
handing over of possession by the Promoter
including the appellant as defined under
Section 2(zk) of the Real Estate (Regulation
and Development) Act, 2016, to the
allottee?

(ii) Whether delay interest on the
deposited amount can be given to allottees,
once they have accepted the terms of the
56 INDIAN LAW REPORTS ALLAHABAD SERIES
conveyance deed and taken possession of
the flat/residential unit without any protest?

(iii) Whether the allottee is
entitled to interest, if he has been handed
over possession of the flat with delay, but
on the agreed commercial price?

(iv) Whether the allottee would be
entitled to interest w.e.f. the date of
enforcement of Act or from the proposed
date of completion of project?"

5. Section 58 of the Act 2016 restricts
the right of second appeal on the grounds
specified in Section 100 of Code of Civil
Procedure, 1908. Section 100 of the Code
of Civil Procedure, 1908 reads as follows:

"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:

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."

6. Thus, it is apparent that keeping in
view Section 100 of the CPC read with
Section 58 of the Act 2016 the second
appeal can only be filed where a substantial
question of law is involved meaning
thereby that the existence of substantial
question of law is the sine qua non for the
exercise of jurisdiction under Section 58 of
the Act 2016.

7. The principles for deciding when a
question of law becomes a substantial
question of law, have been enunciated by a
Constitution Bench of Hon'ble the Apex
Court Court in the case of Sir Chunilal V.
Mehta & Sons Ltd. v. Century Spg. &
Mfg. Co. Ltd. reported in AIR 1962 SC
1314, where the Apex Court held as under:

"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."

8. In the case of Hero Vinoth v.
Seshammal reported in (2006) 5 SCC 545,
7 All. U.P. Awas Evam Vikas Parishad, Lucknow Vs. Nishta Bhatnagar
57
Hon'ble the Apex Court referred to and
relied upon Chunilal v. Mehta and Sons
(supra)
and
other
judgments
and
summarised the tests to find out whether a
given set of questions of law were mere
questions of law or substantial questions of
law. The relevant paragraphs of the
judgment of the Apex Court in Hero
Vinoth (supra) are set out hereinbelow:

21.
The
phrase
"substantial
question of law", as occurring in the
amended Section 100 Code of Civil
Procedure is not defined in the Code. The
word substantial, as qualifying "question of
law", means of having substance, essential,
real,
of
sound
worth,
important
or
considerable. It is to be understood as
something
in
contradistinction
withtechnical, of no substance or consequence,
or academic merely. However, it is clear
that the legislature has chosen not to
qualify the scope of "substantial question of
law" by suffixing the words "of general
importance" as has been done in many
other provisions such as Section 109 of the
Code
or
Article
133(1)(a)
of
the
Constitution. The substantial question of
law on which a second appeal shall be
heard need not necessarily be a substantial
question of law of general importance. In
Guran Ditta v. Ram Ditta AIR 1928 PC 172
the phrase substantial question of law as it
was employed in the last Clause of the then
existing Section 100 Code of Civil
Procedure
(since
omitted
by
the
Amendment Act, 1973) came up for
consideration and their Lordships held that
it did not mean a substantial question of
general importance but a substantial
question of law which was involved in the
case. In Sir Chunilal case AIR 1962 SC
1314 the Constitution Bench expressed
agreement with the following view taken
by a Full Bench of the Madras High Court
in Rimmalapudi Subba Rao v. Noony
Veeraju AIR 1951 Mad 969 (Sir Chunilal
case AIR 1962 SC 1314).

When a question of law is fairly
arguable, where there is room for difference
of opinion on it or where the Court thought
it necessary to deal with that question at
some length and discuss alternative views,
then the question would be a substantial
question of law. On the other hand if the
question was practically covered by the
decision of the highest court or if the
general
principles
to
be
applied
in
determining the question are well settled
and the only question was of applying those
principles to the particular fact of the case
it would not be a substantial question of
law.

9. 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.

10. To be a question of law "involved
in the case", there must be first, a
foundation for it laid in the pleadings, and
the question should emerge from the
sustainable findings of fact, arrived at by
Courts of facts, and it must be necessary to
decide that question of law for a just and
proper decision of the case.

11. Whether a question of law is a
substantial one and whether such question
is involved in the case or not, would
depend on the facts and circumstances of
each
case.
The
paramount
overall
consideration is the need for striking a
judicious
balance
between
the
indispensable obligation to do justice at all
stages and the impelling necessity of
58 INDIAN LAW REPORTS ALLAHABAD SERIES
avoiding prolongation in the life of any lis.
This
proposition
finds
support
from
Santosh Hazari v. Purushottam Tiwari
(2001) 3 SCC 179.

12. In a Second Appeal, the
jurisdiction of the High Court being
confined to substantial question of law, a
finding of fact is not open to challenge in
second appeal, even if the appreciation of
evidence is palpably erroneous and the
finding of fact incorrect as held in
Ramchandra v. Ramalingam AIR 1963
SC 302. An entirely new point, raised for
the first time, before the High Court, is not
a question involved in the case, unless it
goes to the root of the matter.

13. The principles culled out from the
aforesaid judgements of Hon'ble the Apex
Court relevant for this case may be
summarised as follows:

(i) 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
construing a document, it gives rise to a
question of law.

(ii) 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.

(iii) 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.

(iv) 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.

14. The aforesaid principles of law
have already been considered by Hon'ble
the Apex Court in the case of Nazir
Mohamed vs J. Kamala and others
reported in AIR 2020 SC 4321.

15. Now the Court proceeds to see
whether the four ''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. For
this purpose facts of the case may also have
to be indicated which are as follows.
7 All. U.P. Awas Evam Vikas Parishad, Lucknow Vs. Nishta Bhatnagar
59

16. From perusal of the appeal it
comes out that the respondent had booked a
"2BHK + STUDY" type of flat with the
U.P.
Awas
Evam
Vikas
Parishad
(hereinafter referred as 'Parishad') and paid
a booking amount of Rs 1.81 lakhs in terms
of scheme floated by the Parishad in the
year 2012.

17. It is claimed that the respondent
was allotted a flat in Mandakini Enclave
vide a letter dated 27.09.2013. The
Parishad
thereafter
demanded
certain
amount towards allotted flat and fixed the
price of the flat at Rs. 37.50 lakhs. The
respondent claims to have submitted the
aforesaid amount. It is admitted that the
possession of the flat was supposed to be
given within 30 months from the date of
allotment as per clause 9.1 of the brochure.
It is only by means of letter dated
12.04.2017, a copy of which is at page 152
of the appeal, that the respondent has been
asked to deposit an amount of Rs 5.87
lakhs so that the registration of the
apartment can be done. Admittedly, the
amount has been deposited in July 2017,
the registration was done on 18.08.2017
and the possession has been given on
12.12.2017.

18. It is submitted that after having
received
the
possession
and
after
registration was done the respondent has
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
alongwith advocate fee and court fee. The
complaint was registered as complaint no.
9201817572 in re: Smt Nishtha Bhatnagar
vs U.P. Awas Evam Vikas Parishad and the
Authority concerned vide order dated
31.01.2019, a copy of which is annexure 1
to the appeal, allowed the complaint and
has directed the Parishad to pay interest on
the total amount of Rs 37.50 lakh till the
date of possession of the apartment. The
interest has been directed to be paid at the
rate of MCLR + 1%.

19. Being aggrieved the Parishad filed
an Appeal no. 85 of 2020 in re: U.P. Awas
Evam Vikas Parishad vs Nishtha Bhatnagar
before the Tribunal. The Tribunal vide the
impugned order dated 09.03.2022 has
upheld the order of the Authority and hence
the present second appeal.

20. The Court has gone through the
appeal filed by the Parishad with assistance
of Shri Sikhar Srivastava, learned counsel
appearing for the appellant and the alleged
substantial questions of law.

21. Following the principles of law
laid down by Hon'ble the Apex Court in
the judgments referred above, 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 in
the instant Second Appeal are specifically
covered by the specific provisions of law
as per the interpretation given by Hon'ble
the Apex Court and do not involve any
debatable legal issue. Even otherwise the
learned Tribunal has not ignored or acted
contrary to the legal principles or has
violated the provisions of the Act 2016
rather the same have been followed
scrupulously. Learned Tribunal has also
not ignored any material evidence or has
drawn wrong inference or cast the burden
of proof on the appellants herein as would
be apparent from the perusal of the
impugned judgment.
60 INDIAN LAW REPORTS ALLAHABAD SERIES

22. However, as the appeal has been
filed and learned counsel for the appellant
has vehemently argued on the aforesaid
questions, as such the Court proceeds to
answer the said questions as formulated by
the appellant.

23. As regards the question of law no.
1 which is:

"(i) Whether a complaint by an
allottee can be entertained under the
provisions of Section 71 of Real Estate
(Regulation and Development) Act, 2016
after the execution of a sale deed and
handing over of possession by the Promoter
including the appellant as defined under
Section 2(zk) of the Real Estate (Regulation
and Development) Act, 2016, to the
allottee?"

24. Learned counsel for the appellant
is unable to indicate anywhere from the Act
2016 that there is a bar per which a
complaint cannot be filed after the
possession has been taken. No case law to
the said effect has been produced by
learned counsel for the appellant and hence
considering that there is no bar under the
Act 2016 either restraining or refraining the
allottee from filing of complaint after
taking possession, the Court does not find
any question of law involved in this regard.

25. As regards question no. 2 which
is:

"Whether delay interest on the
deposited amount can be given to allottees,
once they have accepted the terms of the
conveyance deed and taken possession of
the
flat/residential
unit
without
any
protest?"

and question no. 3 which is:

"Whether the allottee is entitled
to interest, if he has been handed over
possession of the flat with delay, but on the
agreed commercial price?"

the same are linked to each other
and as such are being dealt together.

26. A perusal of the order passed by
the Authority as well as the Tribunal would
indicate that the authority as well as the
Tribunal
have
proceeded
to
grant
compensation in terms of provisions
contained in Section 71 read with Section
72 of the Act 2016. Even otherwise Section
18(3) of the Act 2016 categorically
provides that if the promoters fail to
discharge any other obligation imposed on
him under this Act or the rules or
regulations thereunder or in accordance
with the terms and conditions of the
agreement for sale, he shall be liable to
pay such compensation to the allottees,
in the manner as provided in the Act.

27. Admittedly, as per the brochure,
the possession of the flat was to be given
within 30 months from the date of
allotment. Admittedly, the possession has
only been given on 12.12.2017 after
substantial delay and after the sale deed
executed on 18.08.2017. Taking into
consideration the said default on the part of
the appellant and the categoric provision of
Section 18(3) of the Act 2016, the
Authority has awarded compensation in the
shape of interest. Mere fact that the
respondent accepted terms of conveyance
deed and took possession of the flat cannot
deprive the respondent from claiming
compensation for the failure on the part of
the promoter/appellant herein to discharge
the obligations. As such, this Court does
not find any question of law involved with
regard to questions no. (2) and (3).
7 All. Udayvir & Ors. Vs. Board of Revenue, U.P. at Prayagraj & Ors.
61

28. As regards question no. 4 which
is:

"Whether the allottee would be
entitled to interest w.e.f. the date of
enforcement of Act or from the proposed
date of completion of project?"

no substantial argument has been
raised by learned counsel for the appellant.
Even otherwise the learned Authority as
well as learned Tribunal has categorically
indicated that the amount of interest which
is to be paid would be from the date of
deposit of the aforesaid amount. Thus the
Court does not find any question of law
involved with regard to question no. 4 also.

29. Considering the aforesaid, the
Court does not find any merit in the appeal.
Accordingly the appeal is dismissed.
----------
(2022)07ILR A61
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.07.2022

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ B No. 247 of 2022

Udayvir & Ors. ...Petitioners
Versus
Board of Revenue, U.P. at Prayagraj & Ors.
 ...Respondents

Counsel for the Petitioners:
Dharm Raj Mishra, Ratnesh Singh

Counsel for the Respondents:
C.S.C., Ashok Kumar Singh, Pankaj Gupta,
Rahul Kumar Singh, Vijai Bahadur Verma

A. Land Law - U.P. Zamindari Abolition &
Land Reforms Act, 1950-Section 229-Bsuit for title declaration-Petitioner filed
and appeal u/s 331(3) of the Act against
the dismissal of suit u/s 229-B of the Act
which was dismissed-again petitioner filed
a revision u/s 333 of the Act before the
Board
of
Revenue
which
was
also
dismissed-Once the statute, in its wisdom
has specifically mandated under Section
331(4) of the Act, 1950 for filing of second
appeal by use of the word "shall", as such
in case the petitioners were aggrieved
against the order passed u/s 331(3) of the
Act they could only have filed a second
appeal and no revision u/s 333 of the Act
was maintainable-The order of the Board
of revenue is set aside.(Para 1 to 30)

B. Section 333 of the Act, 1950 does not
quantify or define "Appeal". the statutory
scope and purpose of Section 333 is to be
availed only in those situations or legal
circumstances where against an order or
judgment rendered by the Subordinate
Court either no appeal lies or where an
appeal lies but it has not been preferred.
However, those cases in which the statute
provides the forum of second appeal, the
power of revision can never be treated to
be synonymous to power of appeal as it
would defeat the very purpose of creation
of the different forum.(Para 22)

The writ petition is partly allowed. (E-6)

List of Cases cited:

1. Lachman Das Vs Santosh Singh (1996) All
Civil Journal 324

2. Mirza Kishwar Beg Vs Board of Revenue &
ors. (1975) RD 373

3. Prema Devi Vs Mathura Dutt Pandey (2019)
AIR Online Utr 564
(Delivered by Hon'ble Abdul Moin, J.)

1. Heard Mohd. Arif Khan, learned
Senior Advocate assisted by Sri Dharm Raj
Mishra, learned counsel appearing for the
petitioner, Sri Abhinav Narain Trivedi,
learned Chief Standing counsel assisted by
Sri Hemant Kumar Pandey, learned counsel