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TMI Blog2021 (1) TMI 1346X X X X Extracts X X X X X X X X Extracts X X X X ..... rection in the nature certiorari quashing the impugned Recovery Certificate dated 8.9.2020 issued by opposite party no. 4. (iv) issue a writ, order or direction in the nature of certiorari quashing the impugned Recovery Citation dated 28.9.2020 issued by opposite party no. 5. (v) Issue a writ, order or direction in the nature of mandamus not to give effect the impugned recovery certificate dated 8.9.2020 and recovery citation dated 28.9.2020 issued by opposite party no. 4 and 5. (vi) Issue a writ, order or direction in the nature of mandamus directing the state respondents not to initiate coercive measures pursuant to the impugned recovery certificate dated 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 poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been raised in reference to Section 21 but it is not open for debate having been decided by this Court in Writ -C No.2248 of 2020 (M/s K.D.P. Build Well Pvt. Ltd. vs. State of U.P. and 4 Others) vide judgment dated 04.02.2020 and in Writ- C No.3289 of 2020 (Rudra Buildwell Constructions Pvt. Ltd. vs. Poonam Sood and Another) vide judgment dated 06.02.2020 holding order by one member to be legal. The issue regarding composition of RERA was considered in reference to Sections 21 and 81 of the Act of 2016. Section 81 provides for delegation of power/function and taking the aforesaid provision into consideration, the argument was not accepted. 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 unabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) any irregularity in the procedure of the Authority not affecting the merits of the case." 10. Section 21 of Act of 2016 speaks about composition of the Authority, which shall consist of a Chairperson and not less than two whole time Members to be appointed by the appropriate Government. Section 29, however, talks about the meeting of Authority and perusal of sub-section (2) thereof shows that in absence of Chairperson for any reason, the other Member chosen by the Members present amongst themselves at the meeting, shall preside thereby. Sub-section (2) to Section 29 permits adjudication of complaint even in absence of Chairperson so appointed by the appropriate Government. Thus, it is not necessary that the adjudication of the complaint has to be made by the composition of Authority, as given under Section 21 of the Act of 2016 though as per Section 29 also, it should be by two Members in absence of the Chairperson. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that recovery of interest, penalty or compensation alone can be made as arrears of land revenue. In the instance case, RERA has issued citation for return of the amount so deposited with the Promoter with interest. The refund of the principal amount cannot be through the process of execution given under Section 40(1) of the Act of 2016 but can be as per Section 40(2) of the Act of 2016. 15. To deal with the argument aforesaid, we are quoting Section 40 of the Act of 2016, hereunder : "40 Recovery of interest or penalty or compensation and enforcement of order, etc.- (1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrears of land revenue. (2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e enforced firstly by the Adjudicating Authority and in case of failure, through the civil court. Rules 23 and 24 of Uttar Pradesh Real Estate (Regulation and Development) Rules, 2016 (in short "Rules of 2016") were brought for that purpose and provides the machanism for execution of the order. 18. In the light of the aforesaid, we are required to give proper interpretation to Section 40 so that the object sought to be achieved by enactment of Act of 2016 is carried out. 19. In the instant case, the consumer had deposited a sum of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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