9911796707
TMI Blog2021 (1) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, 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. 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. 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 Regu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e coercive measures pursuant to the impugned recovery certificate dated 8.9.2020 and recovery citation dated 28.9.2020 issued by opposite party no. 4 and 5." 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.28,21,414/- 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the aforesaid provision into consideration, the argument was not accepted. 8. 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. 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. 9. It is further necessary to refer Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (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. 11. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcement 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." 16. 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.28 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. 28 lacs and odd, the non-petitioner consumer is to be send to civil court while recovery of amount of interest of Rs.19 lacs and odd can be made as arrears of land revenue, as admitted by the counsel for the petitioner himself. If recovery of amount is to be sought by dividing it in two parts and by different method, it would be against the object of the Act of 2016. The object of speedy redressal would frustrate if recovery of the amount is also sought through the civil court. We thus hold that the purpose and object of Section 40(1) is to allow recovery of the amount as arrears of land revenue so as to expeditiously give the relief to the consumer having suffered ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
