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TMI Blog2020 (2) TMI 1736X X X X Extracts X X X X X X X X Extracts X X X X ..... no.5 before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar in the year 2012. Since then several notices were issued and adequate opportunity was afforded to the petitioner by the authorities concerned but th petitioner was avoiding the appearance and hearing of the case being no alternative the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar passed the impugned orders. There are no hesitation to observe that the undisputed fact is that the respondent no.5 has paid the entire amount towards the cost of Flat yet possession of the Flat was not given to the respondent no.5 since 2012 till filing of this writ petition. It is further not denied by the petitioner that the order of the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar was passed in the year 2018 and since then any amount in compliance of the order impugned was paid to the respondent no.5. This conduct of the petitioner shows that he is not liable to get any sympathy by this Court while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. It is further obseraved that the law of equity and principle of natural justice go in favour of respondent No. 5. Conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed the impugned orders dated 13.06.2018 and modified order dated 29.06.2018, by which a direction was issued to the petitioner to repay all the amount deposited by the respondent no.5 with MCLR+1 percent interest from the date of deposit till the date of payment of the amount, copy of the order dated 13.06.2018 and 29.06.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar is filed as Annexure No. 3 to the writ petition. Learned counsel for the petitioner further submits that in the first prayer the date of impugned order is wrongly transcribed as 29.06.2012 in place of 29.06.2018. He prays and allowed to correct the date of impugned order dated 29.06.2018. Learned counsel for the petitioner further argued that the orders dated 13.06.2018 and 29.6.2018 passed by the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar is without jurisdiction and the same is liable to be quashed on the ground that the order was not passed by the Competent Authority and the same is passed by one member which is against the provision of Section 21 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the 'Act, 2016"), which provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power as per Agenda No. 1, to a single member to hear the cases on the basis of the complaint in both the Benches sitting at Lucknow and Gautam Budh Nagar, therefore, the single member has full jurisdiction to decide the cases on the basis of complaint filed before the U.P. Real Estate Regulatory Authority and the objection raised by the counsel for the petitioner has no valid reason in the eyes of law and the impugned order passed by the single member is valid and in accordance with law and the same could not be said to be passed without jurisdiction, no interference is required by this Court under Article 226 of the Constitution of India and the present writ petition is liable to be dismissed. He has placed the copy of the minutes of fifth meeting dated 05.12.2018 of the U.P. Real Estate Regulatory Authority before the Court, the same is taken on record. Learned counsel for the respondent No. 2 further brought our attention towards Sections 18, 34, 38, 40 and 71 of the Real Estate (Regulation and Development) Act, 2016 and Clause 9.2(ii) of the form of agreement contained in the Annexure to the U.P. Real Estate Regulation (Agreemet for sale/lease) Rule, 2018 for adjudication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctions of the Authority shall include- (a) to register and regulate real estate projects and real estate agents registered under this Act; (b) to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted; (c) to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalised under this Act, with reasons therefor, for access to the general public; (d) to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked; (e) to fix through regulations for each areas under its jurisdiction the standard fees tobe levied on the allottees or the promoter or the real estate agent, as the case may be; (f) to ensure compliance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;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 subsection (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued and thereafter a citation was issued for a sum of Rs. 6,55,764.26 plus other charges. We have no hesitation to say that the petitioner has received the cost of the Flat from the respondent No. 5 but was adopting delaying tactics for not giving the possession of the Flat to the respondent No. 5 and also keeping the money of respondent no.5 since 2012. The respondent No. 5 was running from pillar to post for taking possession of the Flat, the action of the petitioner appears to be illegal, arbitrary and with a bad intention to grab the entire amount of the respondent No. 5, for this action of the petitioner, this Court will not shut its eye. It is also not out of place to mention here that in the society were we are living having own shelter, the common people has to invest their entire saving with the hope to live remaining life in their own house with mental satisfaction, but the builders like petitioner is throwing the hope and feelings of purchaser, like a hot potato in the hand. We are further not inclined to interfere in the impugned orders on the ground taken by the learned counsel for the petitioner that the order passed by a single member is without jurisdiction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #2366; 5.01 उ०प्र भू० सम्पदा विनियामक प्राधिकरण की दोनों पीठ द्वारा माह दिसम्बर, 2018 तथा बाद में भी आवश्यकता अनुसार एकल पीठ के रूप में भी कार्य करते हुए लखनऊ तथा गौतमबुद्धनगर में एक ही दिवस पर शिकायतों की सुनवाई का प्र& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;र्णय निम्नवत हैं:- एजेन्डा बिन्दु-1 उ० प्र० भू-सम्पदा विनियामक प्राधिकरण की दोनों पीठ द्वारा माह दिसम्बर, 2018 तथा बाद में भी आवश्यकता अनुसार एकल पीठ के रुप में भी कार्य करते हुए लखनऊ तथा गौतमबुद्धनगर में एक ही ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25;े पैनल हेतु चयनित किया गयाः- 1- श्री गोपाल कुलश्रेष्ठ 2- श्री सैय्यद सरवत महमूम 3- श्री मुकेश प्रकाश एजेण्डा बिन्दु - 3 उ०प्र० भू-सम्पदा (विनियमन एवं विकास) नियमावली-2016 के नियम 2(1)(h) तथा नियम० 15 में संशोधन का प्रस्ताव। न ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 367;पिः- निम्नलिखित को सूचनार्थ एवं आवश्यक कार्यवाही हेतु । 1. मा० अध्यक्ष, उ०प्र० भू- सम्पदा विनियामक प्राधिकरण। 2. मा० सदस्यगण, उ०प्र० भू- सम्पदा विनियामक प्राधिकरण। 3. प्रमुख सचिव, आवास एवं शहरी नियोजन विभाग, उ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction they are required to say so. Taking note of a submission made at the behest of the auction-purchaser and then proceed to say that he is at liberty to file any action against the bank for any omission committed by it has no sanction of law. The said observation is wholly bereft of jurisdiction, and indubitably is totally unwarranted in the obtaining factual matrix. Therefore, we have no hesitation in deleting the observation, namely, "liberty is also given to the auction-purchaser to file action against the bank for any omission committed by it." Learned counsel for the petitioner further referred the decision of Hon'ble Apex Court in the case of V.K. Ashokan vs. Assistant Excise Commissioner and others, (2009) 14 SCC 85 and drawn our attention on paragraph no. 42 of the judgment, which is quoted as under:- "Functions of the Board and/or its power under the Act have not been specified under the Act. The Board, indisputably, derives its power to act in a supervisory capacity only in terms of the provisions of the Kerala Board of Revenue Act and not under the said Act. Board, thus, did not have any supervisory jurisdiction under the Act, apart from the functions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a dispute is raised against a particular demand, the Tribunal will have to go into the facts and materials on the basis of which the demand is raised and decide whether the demand is in accordance with the license agreement and in particular the definition of Adjusted Gross Revenue in the license agreement and can also interpret the terms and conditions of the license agreement. We, however, find from the order dated 07.07.2006 that instead of challenging any demands made on them, the licensees have questioned the validity of the definition of Adjusted Gross Revenue in the licenses given to them and the Tribunal has finally decided in its order dated 30.08.2007 as to what items of revenue would be part of Adjusted Gross Revenue and what items of revenue would not be part of Adjusted Gross Revenue without going into the facts and materials relating to the demand on a particular licensee. 67. We have delivered today the judgment in these cases and while answering the last substantial question of law, we have held that when a particular demand is raised on a licencee, the licensee can challenge the demand before the Tribunal and the Tribunal will have to go into the facts and ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure should be given the ordinary meaning as given in the dictionaries, and termed as misconceived the argument that the interest under section 34 could be awarded only on the original sum advanced as the argument ran counter to the normal banking practice, and which, if accepted, would act as a premium for those not paying the amount of interest when it is due at the cost of those making payment of interest when it is due. It was held that the bank was entitled to the sum claimed as due from and payable by the defendants as the principal sum with future interest on such amount from the date of suit to the date of realisation. Reliance was placed on Division Bench decision of Madras High Court in Sigappiachi v. M.A.P.A. Palaniappa Chettiar, AIR (1972) Madras 463, holding that the 'principal sum adjudged' (within the meaning of Section 34 of the Code of Civil Procedure) is the amount found due as on the date of the suit." We further place reliance of judgment of the Hon'ble Apex Court in the case Thazhathe Purayil Sarabi and others Vs. Union of India and another, reported in (2009) 7 SCC 372, and the Hon'ble Apex Court was pleased to observe that the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of use and retention of the money collected unauthorizedly by the Department. When the collection is illegal, there is corresponding obligation on the revenue to refund such amount with interest in as much as they have retained and enjoyed the money deposited. Even the Department has understood the object behind insertion of Section 244A, as that, an assessee is entitled to payment of interest for money remaining with the Government which would be refunded. There is no reason to restrict the same to an assessee only without extending the similar benefit to a resident/ deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non-resident/ foreign company. 38. Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance tax is a method now statutorily adopted by fiscal legislation to ensure that the aforesaid amount of tax which has been duly paid in prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing Statute. Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, therebeing no express statutory prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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