# Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi v. Union of India & Ors

- **Citation:** (2020) 11 ILRA 367
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-10-08
- **Case number:** WRIT - C No. 13904 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vibhor-vaibhav-infrahomes-pvt-ltd-delhi-v-union-of-india-ors-45409
- **Pages:** 7

## Headnote

A. Civil Law -Real Estate (Regulation and
Development) Act, 2016 - Sections 2(zk),
18, 43 and 71 - Violation of Builder-Buyer
Agreement - Failure in handing over the
Flat
-
Award
of
Compensation
and
Interest
claimed
-
Jurisdiction
of
Adjudicating Officer - Section 71 confers
power upon an Adjudicating Officer to
adjudge compensation under Sections 12,
14, 18 and 19 - Held, the impugned order
awarding compensation and interest for
breach of provisions of Section 18 is not
without jurisdiction - Petition dismissed
leaving it open for the petitioner to avail
remedy of appeal under Section 43(5).
(Para 11 and 16)
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition dismissed (E-1)
Cases relied on :-
Writ
C
No.
9120
of
2020;
Habitech
Infrastructure Limited Vs St. of U.P. & 2 ors.
decided on 06.07.2020

## Text

11 All. Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi Vs. Union of India & Ors.
367
exercised casually or lightly on mere
asking by the litigant.

17. The following principles emerge
from the aforesaid decisions:

(i) Writ petition is a public law
remedy and cannot be invoke for resolution
of private law dispute therefore, writ
petition is not maintainable for resolution
of a property or for declaration of title.

(ii) Where there is an alternative,
effective and efficacious remedy under law,
the High Court will not exercise its
jurisdiction under Article 226 of the
Constitution of India but rule of such
exclusion is a rule of discretion and where
the
matter
involves
enforcement
of
fundamental right or failure to follow
principles of natural justice discretion may
be exercise to entertain to under Article 226
of the Constitution of India. The writ
petition is not an appropriate remedy where
the matter required determination of
disputed
question
of
fact
involving
elaborate examination of evidence and
where the fundamental rights are infringed.

18. In view of the aforesaid discussions
as well as submissions made on behalf of the
petitioners we are of the opinion that in the
instant writ petition disputed question of facts
are involved and the petitioners are required
to adduce documentary evidence in support
of their case. The petitioners have been given
opportunity of hearing before passing
impugned order and their case do not fall in
any of the category discussed above as such
we exercising jurisdiction under Article 226
of the Constitution of India cannot exercise
the power of appellate court to reappreciate
the evidence.

19. With reference to the facts and
circumstances of the present case and in view
of the aforesaid prolix discussion, we are of
the opinion that the petitioners could have
raise their grievances adequately before the
appropriate forum available under the law, as
such, we find no merit in this writ petition
and the same is accordingly, dismissed.

20. No order as to costs.
----------
(2020)11ILR A367
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

WRIT - C No. 13904 of 2020

Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi
 ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Swapnil Rastogi, Sri Siddhartha Singhal

Counsel for the Respondents:
A.S.G.I., C.S.C., Sri Vinay Kumar Pathak,
Sri Wasim Masood, Sri Jagdish Prasad

A. Civil Law -Real Estate (Regulation and
Development) Act, 2016 - Sections 2(zk),
18, 43 and 71 - Violation of Builder-Buyer
Agreement - Failure in handing over the
Flat
-
Award
of
Compensation
and
Interest
claimed
-
Jurisdiction
of
Adjudicating Officer - Section 71 confers
power upon an Adjudicating Officer to
adjudge compensation under Sections 12,
14, 18 and 19 - Held, the impugned order
awarding compensation and interest for
breach of provisions of Section 18 is not
without jurisdiction - Petition dismissed
leaving it open for the petitioner to avail
remedy of appeal under Section 43(5).
(Para 11 and 16)
368 INDIAN LAW REPORTS ALLAHABAD SERIES
Writ Petition dismissed (E-1)
Cases relied on :-
Writ
C
No.
9120
of
2020;
Habitech
Infrastructure Limited Vs St. of U.P. & 2 ors.
decided on 06.07.2020

(Delivered by Hon'ble Surya Prakash Kesarwani, J.
& Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. Heard Sri Siddhartha Singhal,
holding brief of Sri Swapnil Rastogi,
learned counsel for the petitioner, Sri Vinay
Kumar
Pathak,
learned
counsel
for
Respondent No.1, Girish Vishvakarma,
learned standing counsel for Respondent
No.2 and Sri Jagdish Prasad holding brief
of Sri Wasim Masood, learned counsel for
Respondent Nos. 3 and 4.

2. This writ petition has been filed
praying for the following reliefs:

"(a) Issue a writ, order or
direction in the nature of certiorari calling
for the record and quashing the impugned
order
dated
30.09.2019
passed
by
Adjudicating Officer, Regional Office,
Uttar Pradesh, Real Estate Regulatory
Authority,
Gautambudh
Nagar
in
Complaint
Case
No.
ADJ/120185832
(Sarika Tulsian and another vs. Vibhor
Vaibhav Infrahome Pvt. Ltd.) (Annexure
No. 1);

(b) Issue a writ, order or direction
in the nature of certiorari calling for the
records
and
quashing
the
impugned
recovery
certificate
dated
25.06.2020
issued by Adjudicating Officer, Regional
Office,
Uttar
Pradesh,
Real
Estate
Regulatory, Gautambudh Nagar (Annexure
No. 2);

(c) Issue an appropriate writ,
order or direction declaring the proviso to
Section 43(5) of Real Estate (Regulation &
Development) Act, 2016 as arbitrary, ultra
vires to the constitution being in conflict
and contradictory to the spirit of the Real
Estate (Regulation & Development) Act,
2016."

3. Learned counsel for the petitioner
has stated that the petitioner is not pressing
the relief no.'c'.

Facts

4. Briefly stated facts of the present
case are that the petitioner is the promoter
within the meaning of Section 2(zk) of the
Real Estate (Regulation and Development)
Act, 2016 (hereinafter referred to as the
"Act, 2016"). The petitioner entered into
builder-buyer agreement dated 10.07.2011
with the respondent nos. 5 and 6.
Undisputedly
as
per
agreement
the
petitioner
was
under
a
contractual
obligation to handover the flat to the
respondent nos.5 and 6 within 30 months
from the date of agreement. A grace period
of 180 days was also provided in the
agreement. Thus as per agreement the
petitioner was liable to handover the flat
complete in all respect to the respondent
nos.5 and 6 within 30 + 6 = 36 months i.e.
three years. Thus, the last date for giving
possession of the flat by the petitioner to
the respondent nos.5 and 6 was 09.07.2014.
However, the petitioner could not complete
and handover the flat to the respondent
nos.5 and 6 within the agreed time and thus
violated provisions of Section 18 of the
Act, 2016. The actual possession of the flat
was received by the respondent nos. 5 and
6 on 26.12.2017. Since the petitioner
violated the provisions of Section 18 of the
Act, 2016, therefore, the respondent nos.5
and 6 filed an application on 18.01.2018
before the authority as defined in Section
2(i)
of
the
Act,
2016
claiming
compensation and interest. Since the
11 All. Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi Vs. Union of India & Ors.
369
respondent nos.5 and 6 have claimed
compensation also, therefore, the authority
passed an order dated 22.05.2019 holding
that the Adjudicating Officer may be
approached in this regard. Thus, the matter
came before the Adjudicating Officer under
Section 71 of the Act, 2016. The
Adjudicating Officer passed the impugned
order
dated
30.09.2019
awarding
compensation and interest. Aggrieved by
the aforesaid impugned order, the petitioner
has filed present writ petition under Section
226 of the Constitution of India.

Submissions

5. Learned counsel for the petitioner
submits as under:

(i) Adjudicating Officer under
Section 71 of the Act, 2016 has no power
to award interest and compensation, in the
event possession of the flat has been taken
by the allottee from the promoter.

(ii) Thus, since the impugned
order is without jurisdiction and, therefore,
neither appeal shall lie under Section 43 (5)
of the Act, 2016 nor the appeal is an
appropriate remedy.

6. No other point has been argued by
the learned counsel for the petitioner before
us.

7. In support of his submission
learned counsel for the petitioner has relied
upon the judgment of this Court dated
06.07.2020 in Writ-C No. 9120 of 2020
(Habitech Infrastructure Limited Vs. State
of U.P. and 2 others).

8. Learned standing counsel for the
respondent No.2 and learned counsel for
the respondent nos.3 and 4 have supported
the impugned order and jointly submit that
the Adjudicating Officer under Section 71
of the Act, 2016 has ample power to
adjudicate upon the compensation or
interest and thus the impugned order is not
without jurisdiction.

Discussion and Findings

9. Before we proceed to consider the
submission of the parties it would be
appropriate to reproduce the relevant
provisions of the Act, 2016, as under:-

" Section 18. Return of amount
and compensation--(1) If the promoter
fails to complete or is unable to give
possession of an apartment, plot or
building,--

(a) in accordance with the terms
of the agreement for sale or, as the case
may be, duly completed by the date
specified therein; or

(b) due to discontinuance of his
business as a developer on account of
suspension or revocation of the registration
under this Act or for any other reason,

he shall be 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, plot, building, as
the case may be, with interest at such rate
as may be prescribed in this behalf
including compensation in the manner as
provided under this Act:

Provided that where an allottee
does not intend to withdraw from the
project, he shall be paid, by the promoter,
interest for every month of delay, till the
handing over of the possession, at such rate
as may be prescribed.

(2)
The
promoter
shall
compensate the allottees in case of any loss
caused to him due to defective title of the
land, on which the project is being
developed or has been developed, in the
370 INDIAN LAW REPORTS ALLAHABAD SERIES
manner as provided under this Act, and the
claim
for
compensation
under
this
subsection shall not be barred by limitation
provided under any law for the time being
in force.

(3) If the promoter fails to
discharge any other obligations imposed
on him under this Act or the rules or
regulations made 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 under this Act.

Section
38.
Powers
of
Authority.--(1) The Authority shall have
powers to impose penalty or interest, in
regard to any contravention of obligations
cast upon the promoters, the allottees and
the real estate agents, under this Act or the
rules and the regulations made thereunder.

(2) The Authority shall be guided
by the principles of natural justice and,
subject to the other provisions of this Act
and the rules made thereunder, the
Authority shall have powers to regulate its
own procedure.

(3) Where an issue is raised
relating to agreement, action, omission,
practice or procedure that--

(a) has an appreciable prevention,
restriction or distortion of competition in
connection with the development of a real
estate project; or

(b) has effect of market power of
monopoly situation being abused for
affecting interest of allottees adversely,
then the Authority, may suo motu, make
reference in respect of such issue to the
Competition Commission of India"

Section 43. Establishment of
Real Estate Appellate Tribunal--(1) The
appropriate Government shall, within a
period of one year from the date of coming
into force of this Act, by notification,
establish an Appellate Tribunal to be
known as the-- (name of the State/Union
territory) Real Estate Appellate Tribunal.

(2) The appropriate Government
may, if it deems necessary, establish one or
more benches of the Appellate Tribunal, for
various jurisdictions, in the State or Union
territory, as the case may be.

(3) Every bench of the Appellate
Tribunal shall consist of at least one
Judicial Member and one Administrative or
Technical Member.

(4) The appropriate Government
of two or more States or Union territories
may, if it deems fit, establish one single
Appellate Tribunal:

Provided
that,
until
the
establishment of an Appellate Tribunal
under
this
section,
the
appropriate
Government shall designate, by order, any
Appellate Tribunal functioning under any
law for the time being in force, to be the
Appellate Tribunal to hear appeals under
the Act:

Provided further that after the
Appellate Tribunal under this section is
established, all matters pending with the
Appellate Tribunal designated to hear
appeals, shall stand transferred to the
Appellate Tribunal so established and shall
be heard from the stage such appeal is
transferred.

(5) Any person aggrieved by
any direction or decision or order made
by the Authority or by an adjudicating
officer under this Act may prefer an
appeal before the Appellate Tribunal
having jurisdiction over the matter:

Provided
that
where
a
promoter files an appeal with the
Appellate Tribunal, it shall not be
entertained, without the promoter first
having deposited with the Appellate
Tribunal atleast thirty per cent. of the
penalty, or such higher percentage as
11 All. Vibhor Vaibhav Infrahomes Pvt. Ltd., Delhi Vs. Union of India & Ors.
371
may be determined by the Appellate
Tribunal, or the total amount to be paid
to the allottee including interest and
compensation imposed on him, if any, or
with both, as the case may be, before the
said appeal is heard.

Explanation.--For the purpose of
this sub-section "person" shall include the
association of allottees or any voluntary
consumer association registered under any
law for the time being in force.

Section
71.
"Power
to
adjudicate"--(1) For the purpose of
adjudging compensation under sections
12, 14, 18 and section 19, the Authority
shall appoint in consultation with the
appropriate Government one or more
judicial officer as deemed necessary, who
is or has been a District Judge to be an
adjudicating officer for holding an inquiry
in the prescribed manner, after giving any
person concerned a reasonable opportunity
of being heard:

Provided that any person whose
complaint in respect of matters covered
under sections 12, 14, 18 and section 19 is
pending before the Consumer Disputes
Redressal Forum or the Consumer Disputes
Redressal Commission or the National
Consumer
Redressal
Commission,
established
under
section
9
of
the
Consumer Protection Act, 1986, on or
before the commencement of this Act, he
may, with the permission of such Forum or
Commission, as the case may be, withdraw
the complaint pending before it and file an
application before the adjudicating officer
under this Act.

(2) The application for adjudging
compensation under sub-section (1), shall
be dealt with by the adjudicating officer as
expeditiously as possible and dispose of the
same within a period of sixty days from the
date of receipt of the application:

Provided that where any such
application could not be disposed of within
the said period of sixty days, the
adjudicating officer shall record his reasons
in writing for not disposing of the
application within that period.

(3) While holding an inquiry
the adjudicating officer shall have power
to summon and enforce the attendance
of any person acquainted with the facts
and circumstances of the case to give
evidence or to produce any document
which in the opinion of the adjudicating
officer, may be useful for or relevant to
the subject matter of the inquiry and if,
on such inquiry, he is satisfied that the
person has failed to comply with the
provisions of any of the sections specified
in sub-section (1), he may direct to pay
such compensation or interest, as the
case any be, as he thinks fit in
accordance with the provisions of any of
those sections." (Emphasis supplied)

10. Learned counsel for the petitioner
has not disputed the fact that as per
agreement dated 10.07.2011 the petitionerpromoter was liable to handover physical
possession of the flats complete in all
respect to the Respondent Nos. 5 and 6
within 30 months from the date of
agreement. A grace period of 180 days was
also provided in the agreement. Thus the
flat was liable to be handed over to the
Respondent Nos. 5 and 6 by 09.07.2014
whereas possession of the flat was received
by the Respondent Nos.5 and 6 from the
petitioner
on
26.12.2017.
Thus,
contravention
of
the
agreement
is
undisputed.
Learned
counsel
for
the
petitioner also does not dispute the liability
of the petitioner for delay in handing over
the possession. Thus, the provisions of
Section 18 of the Act, as per undisputed
372 INDIAN LAW REPORTS ALLAHABAD SERIES
facts are attracted on the facts of the
present case.

11. Section 71 of the Act, 2016
confers power upon an Adjudicating
Officer to adjudge compensation under
Sections 12, 14, 18 and 19. Sub-section (3)
of Section 71 provides that if the
Adjudicating Officer is satisfied that the
person has failed to comply with the
provisions of any of the sections specified
in Sub-section (1) he may direct to pay
such compensation or interest, as the case
may be, as he thinks fit in accordance with
the provisions of any of those sections. By
the impugned order the Adjudicating
Officer has awarded compensation and
interest as provided under Section 71 of the
Act, 2016 for breach of provisions of
Section 18 of the Act, 2016. Thus, the
impugned order is not without jurisdiction.
Consequently, we do not find any merit in
the submissions of the learned counsel for
the petitioner and we hold that the
impugned order passed by the Adjudicating
Officer does not suffer from lack of
jurisdiction.

12. Section 38(1) of the Act, 2016
confers power upon the 'Authority' to
impose penalty or interest in regard to
contravention of obligations cast upon the
promoters, the allottees and the real estate
agents
under
the
Act,
Rules
and
Regulations. Power to award compensation
or interest has been conferred under
Section 71(1)/(3) of the Act, 2016 upon an
Adjudicating
Officer
for
adjudging
compensation under Section 12, 14, 18 and
Section 19 of the Act, 2016. Thus, the
power to adjudge compensation has been
conferred upon the Adjudicating Officer
and not upon the Authority. Therefore, the
impugned order passed by the Adjudicating
Officer adjudging compensation is well
within the four corners of the Section 71 of
the Act, 2016.

13. The judgment of this Court in the
case of Habitech Infrastructure Ltd. (supra)
relied by the learned counsel for the
petitioner is clearly distinguishable on
facts. In the case of Habitech Infrastructure
Ltd. (supra) the facts were that when the
promoter failed to fulfill his obligation to
handover the flats the allottee made an
application for refund of the entire amount
along with interest as the project was not
completed by the promoter in time. The
dispute in that case was confined to refund
of amount deposited by the allottee with the
promoter and award of interest. This court
considering the provisions of Section 38 of
the Act, 2016 found that the authority as
defined in Section 2(i) of the Act has power
to award interest. In the present case the
Respondent Nos. 5 and 6 have not
withdrawn the amount but they complained
and asked for compensation and interest for
delay in handing over the flat to them by
the petitioner-promoter. Thus, the judgment
of this Court in the case of Habitech
Infrastructure
Ltd.
(supra)
is
clearly
distinguishable on facts and does not
support the submission of the learned
counsel for the petitioner.

14. At this stage, learned counsel for
the petitioner now submits that the
petitioner may be relegated to remedy of
appeal under Section 43(5) of the Act,
2016.

15. It is always open for the petitioner
to avail the remedy of appeal under Section
43(5) of the Act in accordance with law, for
which no order is required to be passed.

16. For all the reasons aforestated we
do not find any merit in this writ petition.
11 All. Vijay Sharma Vs. Union of India & Ors.
373
Consequently, the writ is dismissed leaving
it open for the petitioner to avail remedy of
appeal under Section 43(5) of the Act,
2016. If the petitioner files an appeal before
the Appellate Authority in accordance with
law the Appellate Authority shall decide
the appeal without being influenced by any
of the observations made by this Court
touching the merits of the case.
----------
(2020)11ILR A373
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2020

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

WRIT - C No. 14488 of 2020

Vijay Sharma ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sumit Daga

Counsel for the Respondents:
A.S.G.I., Sri Ankit Gaur, Sri Chandra
Prakash Yadav, Sri Satish Kumar Rai

A. Civil Law - Public Premises (Eviction of
Unauthorised Occupants) Act, 1971 -
Sections 4, 5 and 5A - Unauthorized
Occupant - Demolition of Construction -
No Notice - Colourable Exercise of Power
-
Authority
has
determined
the
petitioner's
status
as
'unauthrorised
occupant' and has consequently directed
the construction to be demolished without
following the procedure contemplated
under Sections 4 and 5 of the Act, which is
subject to right to appeal under Section 9
of the Act - Once the law require a thing
to be done in a particular manner, it has to
be done in that manner alone and not
otherwise - Held, Order passed by the
authority under Section 5A(2) of the Act
suffers from colourable exercise of power
and cannot be sustained. (Para 15 and 21)
Writ Petition allowed (E-1)
Cases relied on :-
1. Cantonment Board & anr. Vs Church of North
India, (2012) 12 SCC 573
2. Union of India through Defence Estate Officer
& anr. Vs Shri Arun Saluza, 2015 (3) ADJ 594
3. Writ-C No. 40360 of 2015; Yogesh Agarwal
Vs Estate Officer & 2 ors.
4. Taylor Vs Taylor, (1876) 1 Ch.D. 426
5. Smt. Manju Arora Vs Estate Officer, Meerut
Cantonment & anr., 2018 (3) AWC 258

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Heard Sri Sumit Daga, learned counsel
for the petitioner, Sri Chandra Preshrank Yadav
for respondent nos. 1 and 3 and Sri Satish
Kumar Rai for respondent no. 2.

2. This petition is directed against a notice
dated 4.8.2016 and the consequential order
dated 28.2.2020 (Annexures- 1 and 3 to the writ
petition), whereby alleged constructions raised
by the petitioner has been directed to be
demolished. This order has been passed
invoking the provisions contained in Section
5A(2) of the Public Premises (Eviction of
Unauthorised
Occupants)
Act,
1971
(hereinafter referred to as the Act of 1971). The
order records that petitioner is an unauthorised
occupant and has no semblance of right to
remain in possession and, therefore, the
constructions raised by him are unlawful.

3. The writ petition was heard on
6.10.2020 and following orders were
passed:-

"One of the ground urged on
behalf of petitioner is that in view of repeal