3RD SMT.

NIRMALA DEVI BAM MEMORIAL INTERNATIONAL VIRTUAL MOOT COURT COMPETITION, 2021

NMC 09 (R)

3RD SMT. NIRMALA DEVI BAM MEMORIAL INTERNATIONAL

VIRTUAL MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF INDIA

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF

KAZA PORYO.........................………………………...………. PETITIONER

V.

UNION OF INDIA &

ANR......................................................RESPONDENTS

WRIT PETITION N o . X X X O F 2021

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND OTHER HON’BLE

JUSTICES OF THE SUPREME COURT OF INDIA

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WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

TABLE OF CONTENTS

COVER PAGE…………………………………………………………………………..
…….i

TABLE OF CONTENTS………………………………………….……...………………ii-
iii

LIST OF ABBREVIATIONS……………………………………………...…….……….…
iv

INDEX OF AUTHORITIES…………………………………………………………….v-
xiv

STATEMENT OF JURISDICTION……………………………………….………………
xv

STATEMENT OF FACTS………………………………………………………..…..……
xvi

ISSUES FOR CONSIDERATION………………………………………….....

………….xvii

SUMMARY OF ARGUMENTS………………………………………….…………xviii-xix

WRITTEN SUBMISSIONS…………………………………………………..………….1-
24

[1.] Whether the writ petition filed by Kaza Poryo is

Maintainable?..................................1

A. The petitioner does not have a locus

standi…………………………………….........1
B. There has been no violation of Fundamental Right……………………….
………...2
C. The Petitioner is required to exhaust existed alternative remedy……………...
…….2

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D. The court would not be justified in interfering with a policy

decision.......................3

[2.] Whether the word allottee is violative of Article 14, 19, 21 and 300A of Constitution
of India?
....................................................................................................................................3

A. It passes the test of Art. 14……………………………………...

……………………….4
B. It is not Arbitrary and
Unreasonable.................................................................................5
i. It is not
discriminatory.........................................................................................7
C. There is a presumption in favours of the validity of the statute…………………………
8
i. It is not ultra
vires.................................................................................................8
D. It is in consonance with Article
19...................................................................................9
i. Restriction under Article19 (6)
……………………………………..................10
E. It is in consonance with Article
21..................................................................................11
i. Right to life under Article 21 is not
absolute......................................................11
ii. It qualifies test of substantive due process and procedure established by
law...12
F. It is in consonance with Article
300A.............................................................................12

[3.] Whether the RERA and CPA are in conflict?

...............................................................13

A. Remedies available in RERA and CP Act are concurrent

remedies.............................13

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B. Both the acts are in addition and not in derogation with each
other.............................14
i. Allottees are consumer under the CP
Act...........................................................14
ii. It provides an option to complainant to seek alternate
remedy...........................15
C. The act RERA should be read harmoniously with the CP
Act......................................15

[4.] Whether the word allottee is arbitrary which is made in RERA?

...............................17

A. Under Inclusiveness and Over

Inclusiveness................................................................17
B. It is in accordance with Intention of
Legislature...........................................................18
C. Classification is
justifiable............................................................................................19
i. There is an intelligible differentia in the
classification.....................................19
ii. There is a reasonable nexus to the
object..........................................................20
iii. State needs to act in accordance to social need of hour as it fulfils doctrine of
necessity...........................................................................................................21
iv. Classification is not
Disproportionate...............................................................21

[5.] Whether Kaza Poryo is liable to refund the amount invested by Mr. Ashok?
……....22

A. Mr. Ashok is duly authorised to take the refund under the enumerated provision of
RERA
Act.....................................................................................................................22
B. The promoter is obliged to refund the principal amount after deducting
interest……..22

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C. There was vitiation of

contract......................................................................................23

PRAYER……………………………………………………………………………….……24

*NOTE: It is Bookmarked. Click on items (Issues) to directly jump to the respective

page.

LIST OF ABBREVIATIONS

A.I.R. All India Records

IBC Insolvency and Bankruptcy Code
Art. Article
Cl. Clause
Const. Constitution
NCLAT National Company Law Appellate Tribunal
Hon’ble Honourable
Anr. Another
Ors. Others
Pg. Page
S.C.R. Supreme Court Report
S.C. Supreme Court
S.C.C. Supreme Court Cases
v. Versus
CP Act Consumer Protection Act
RERA Real Estate Regulatory Authority
¶ & Para. Paragraph
A.P. Andhra Pradesh

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PC Privy Council
FR Fundamental Rights
NCLT National Company Law Tribunal
UOI Union of India
Co. Company
Ed. Edition
U.S. United State
& And
Ltd. Limited

INDEX OF AUTHORITIES

CASES

1. A.K. Gopalan v. State of Madras , A.I.R. 27 (S.C. 1950) ………….…………….......4 &

12
2. A.K. Roy v. Union of India, 1 S.C.C. 271 (1982)
………………………………………......6
3. Abdul Karim Thakur v. State , Kash L.J. 296 (1983)
……………………………………......8
4. Academy of Nutrition Improvement v. Union of India , 8 S.C.C. 274 (2011)
………….......3
5. AG v. HRH Prince Ernest Augustus,1 ALL ER 49 (1957)
……………………………......18
6. Ajay Nagpal v. Today Homes & Infrastructure Pvt Ltd, 5 S.C.C. 521 (2020) ………......16
7. Ajoy Kumar Banerjee and Ors. v. Union of India and Ors. , 3 S.C.C. 127 (1984)
………...10
8. AK Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950)
………………………………......11
9. Akhil Bharatiya Karamc Sangh (Railway) v. Union of India , 1 S.C.C. 246 (1981)
……......1

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10. All India Station Masters Association v. Central Railway , 2 S.C.R. 311 (1960)
………......20
11. Ambica Construction v. Union of India , 13 S.C.C. 475 (2007)
…………………………....21
12. Ameeroonisa Begum v. Mehboob Begum, A.I.R. 91 (S.C. 1953) …………………....4 &
5
13. Amrit Banaspati Co. Ltd. v. Union of India and Ors ., 3 S.C.C. 335 (1995)
……………......8
14. Anand Prakash v. Asst. Registrar , A.I.R. 22 (All. 1968)
……………………………….......9
15. Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1539 (S.C. 1974)
………...1
16. Anjum Hussain & Ors. v. Intellicity Private Ltd. and Ors., 6 S.C.C. 519 (2019)
………....19
17. Ankul Chandra Pradhan v. Union of India, 6 S.C.C. 1 (1997)
………………………….......4
18. Anuj Garg v. Hotel Association of India , 3 S.C.C. 1 (2008)
………………………….......20
19. AP Cooperative Oil Seeds Limited v. D Achyuta Rao , 13 S.C.C. 320 (2007) ……......6 &
7
20. Ashok Kumar Pandey v. State of West Bengal , A.I.R. 1923 (S.C. 2004) ………….
……....2
21. Ashok Kumar Thakur v Union of India , 6 S.C.C. 1 (2008)
…………………………….......5
22. Ashoka Smokeless Coal India (P.) Ltd v. UOI , 2 S.C.C. 640, 697 (2007)
………………......5
23. Ashutosh Gupta v. State of Rajasthan, 4 S.C.C. 34 (2002) ………………………........7 &
8
24. Asst. General Manager & Ors. v. Radhey Shyam Pandey , 1 S.C.C. 252 (2020)
………......23
25. Association of Drugs and Pharmaceuticals, A.P. v. A.P. Health, Medical, Housing and
Infrastructure Development Corporation, Hyd. and Anr., 2 A.L.D. 609 (2002)
………........3

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26. Avinash Chand Gupta v. State of Uttar Pradesh , 2 S.C.C. 726 (2004)
……………………...2
27. Babulal Ahmtalal Mehta v. Collector of Customs, A.I.R. 877 (S.C. 1957) …………...4 &
5
28. Bachan Singh v. State of Punjab, A.I.R. 1336 (S.C. 1982) ………………………......6 &
10
29. BALCO Employees’ Union (Regd.) v. Union of India, 3 S.C.C. 333 (2002)
……………....2
30. Bar Council, Uttar Pradesh v. State of Uttar Pradesh , A.I.R. 231 (S.C. 1973)
………….......6
31. Batterfield v.Stranaham, 192 US 70 (1906) …………………………………………….....8
32. Behampur Tapti Mills Ltd v. State of Madhya Pradesh , A.I.R. 255 (M.P.
1962) ..................8
33. Bharat Bank Ltd. v. Employees, S.C.R. 459 (1950)
……………………………………....14
34. Bharat Raichand Shah and Ors. v. Runwal Const. and Ors., S.C.C. 232
(2018) .................18
35. Bharat Sevashram Sangh and Ors. v. State of Gujarat, 4 S.C.C. 51 (1986)
……………......9
36. Binoy Viswam v. Union of India and Ors. , A.I.R. 2967 (S.C.
2017) .................................20
37. Board of Trustees of Port of Bombay v. Dilip Raghavendra , A.I.R. 109 (S.C. 1983)
…......11
38. Budhan Choudhary & Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955) ……….......5 &
20
39. Calcutta Electricity Corp. Ltd. v. Subhash Chandra Bose , 1 L.L.N. 353 (1992)
………......11
40. Calcutta Gas Co. Ltd. v. State of West Bengal , A.I.R. 1044 (S.C. 1962)
………………......2
41. Canada Sugar Refining Co. v. R., A.C. 735 (1898) ………………………………....15 &
17
42. Cellular Operators Association and Ors. v. TRAI and Ors. , 5 S.C.C 220 (2001)
………....10

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43. Chabungam Ibohal Singh v. Union of India , 2 S.C.C. 83 (1995)

………………………......6
44. Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy , 1 S.C.C. 608 (1990)
………......8
45. Chameli Singh v. State of Uttar Pradesh , 2 S.C.C. 549 (1996)
…………………………....11
46. Chandrakant Kalyandas v. State of Maharashtra, A.I.R. S.C. 1390 (S.C. 1970)
……….......9
47. Charanjit Lal v. Union of India,A.I.R. 41 (S.C. 1951)
………………………………….......8
48. Chebrolu Leela Rao and Ors v. State of A.P and Ors., A.I.R. 384 (S.C. 2020)
……….......11
49. Chintamani Rao v. State of M.P., A.I.R. 118 (S.C. 1951) ………………………........9 &
10
50. Chiranjit Lal Chwodhury v. UOI, A.I.R. 41 (S.C. 1951)
…………………………………...4
51. Chitra Sharma and Ors. v. UOI and Ors ., 18 S.C.C. 575 (2018) ..................................6 &
20
52. Coffee Bd. v. Joint C.T.O., A.I.R. 870 (S.C. 1971)
…………………………………….......1
53. Coimbatore District Coop. Bank v. Employees Assn , 4 S.C.C. 669 (2007)
……………....21
54. Collector of Customs v. Nathella Sampathu Chetty , A.I.R. 316 (S.C. 1962)
………….......18
55. Collector of Customs v. Sampathu Chettty , A.I.R. 316 (S.C.
1963) .....................................9
56. CCI v. Bharti Airtel Limited and Ors., 2 S.C.C. 521 (2019)
……………………………....17
57. Conf. of State Employees' Assn. v. State of Nagaland, 1 S.C.C. 496 (2006)
……………......3
58. Court on its own motion v. Union of India, 12 S.C.C 307 (2012)
………………………....10

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59. D.S. Nakara & Others. v. Union of India , A.I.R. 130 (S.C. 1983) ……………….......1 &
20
60. Dalip Singh v. State of Uttar Pradesh , 2 S.C.C. 114 (2010)
………………………………...2
61. Deepak Sibal v. Punjab University, A.I.R. 903 (S.C. 1989)
……………………………......7
62. D.T.C. v. D.T.C. Mazdoor Congress , 1 S.C.C. 600 (1991) …………………........9, 18 &
23
63. Dharam Dutt v. Union of India, 1 S.C.C. 712 (2004) paragraph 56 ………………......4 &
7
64. Dhruv Dev Chand v. Harmohinder Singh and Ors. , 3 S.C.R. 339 (1968)
……………........24
65. Directorate of Film Festivals v. Gaurav Ashwin Jain &Ors ., 4 S.C.C. 737 (2007)
……......3
66. E.P. Royappa v. State of T.N., 4 S.C.C. 3 (1974)
……………………………………….......5
67. Essar Steel Ltd. v. Union of India and Ors., 11 S.C.C. 1 (2016) ………………........11 &
14
68. Express Newspapers Ltd v. Union of India , A.I.R. 578 (S.C. 1958) ………………….
…...8
69. FairAir Engineers (P) Ltd. v. N.K. Modi , 6 S.C.C. 385 (1996)
…………………………...13
70. Federation of Bar Association in Karnataka v. Union of India , 6 S.C.C. 715 (2000)
……....1
71. Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 344 (S.C. 1981)
………………...1
72. Forum for People's Collective Efforts & Ors. v. State of West Bengal & Ors. , 9 S.C.C.
232 (2021)
…………………………………………………………………………………......13
73. Francis Coralie v. Union Territory of Delhi, 1 S.C.C. 608 (1981)
…………………….......11
74. G.D. Kelkar v. Chief Controller of Imports and Exports , A.I.R. 839 (S.C. 1967)
………......7

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75. G.K. Krishnan v. State of Tamil Nadu, A.I.R. 583 (S.C.

1975) ............................................8
76. GarikapattiVeeraya v. N. Subbiah Choudhary, S.C.R. 488 (1957)
……………………......19
77. Glanrock Estate (P) Ltd. v. State of T.N. , 10 S.C.C. 96 (2010)
…………………………......8
78. Gopal Das v. Union of India, A.I.R. 1 (S.C. 1955)
………………………………………....1
79. Gopal Krishnayya v. State of Andhra Pradesh , A.I.R. 292 (A.P.
1959) ................................8
80. Gopal Narain v. State of Madhya Pradesh, Jab L.J. 682 (1979)
…………………………....8
81. Gopala Krishnaya v. State of Andhra Pradesh, A.I.R. 292 (A.P. 1959), p 299
………….......8
82. Gopi Chand v. Delhi Administration, A.I.R. 609 (S.C. 1959)
……………………………...4
83. Graham v. Van Wyck, 14 Barb 53
(1852) ..............................................................................8
84. Guruvayoor Devaswom Managing Committee v. C.K. Rajan , 7 S.C.C. 546 (2003)
……....1
85. H.P. Gupta v. Union of India, 10 S.C.C. 658
(2002) .............................................................4
86. Hanif Quareshi v. State of Bihar, A.I.R. 731 (S.C. 1958)
………………………………....19
87. Hans Muller v. Superintendent, Presidency Jail and Ors., A.I.R. 367 (S.C. 1955)
………....1
88. Harakchand v. UOI, A.I.R. 1453 (S.C. 1970)
…………………………………………........9
89. Hindustan Construction Co. Ltd. and Ors. v. UOI and Ors. , A.I.R. 122 (S.C. 2020)
……....7
90. Imperia Structures Ltd. v. Anil Patni and Ors., S.C.C. 3590(2020) …………….......15 &
16

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91. In Re the Special Courts Bill, 1 S.C.C. 380 (1979)

………………………………………....4
92. Indian Express Newspapers (P) Ltd. v. Union of India , 1 S.C.C. 641 (1985)
……………....7
93. Indira Sawhney v. Union of India, A.I.R. 477 (S.C. 1993) ………………………......4 &
20
94. Indrajit Barua v. The State of Assam and Ors. , A.I.R. 513 (Del. 1983)
………………......11
95. Ireo Grace Pvt. Ltd. v. Abhishek Khanna and Ors. , S.C.C. 14 (2021) ………….......15 &
22
96. Issac Isangha Musumba v. State of Maharashtra, 15 S.C.C. 357 (2014)
………………....11
97. J.P. Srivastava Ltd. and Ors. v. Sugar Co. Ltd. and Ors ., 1 S.C.C. 172
(2005) ...................19
98. Jalan Trading Co Pvt Ltd v. Mill Mazdoor Sabha , A.I.R. 691 (S.C. 1967)
………………....8
99. Javed v. State of Haryana, A.I.R. 3057 (S.C. 2003)
…………………………………….......6
100. Joseph Shine v. Union of India , 3 S.C.C. 39
(2019) .......................................................7
101. Justice K.S. Puttaswamy & Ors. vs. Union of India & Ors. , 1 S.C.C. 1 (2019)
…………………………………………………………………………………...5, 7, 9 &
11
102. K. B. Nagpur, M.D. (Ayurvedic) v. Union of India, 9 S.C.C. 212 (2012)
…………......8
103. K. Nagaraj and Ors. v. State of A. P and Anr. , 1 S.C.C. 523 (1985)
………………......7
104. K. R. Lakshman v. Karnataka Electricity Board , 1 S.C.C. 442 (2001)
……………....19
105. K. T. Plantation Ltd. and Anr. v. State of Karnataka , 9 S.C.C. 146 (2011)
……….......12
106. K. Thimmappa v. Central Board of Directors, A.I.R. 467 (S.C. 2001)
……………......6

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107. K.D. Sharma v. SAIL, 12 S.C.C. 481 (2008)

…………………………………………..2
108. Kanubhai Brahmbhatt v. State of Gujarat , A.I.R. 1159(S.C. 1987)
……………….......3
109. Karnataka Restaurants Assn. v. State of Karnataka, 4 S.C.C. 372
(2018) ......................8
110. Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994)
…………………………….......20
111. Kavalappara & Ors. v. State of Madras and & , A.I.R. 1080 (S.C. 1960)
……………...8
112. Kedar Nath Bajoria v. State of West Bengal , A.I.R. 404 (S.C.
1953) ............................4
113. Kesavananda Bharati v. State of Kerala , 4 S.C.C. 225 (1973)
……………………......12
114. Khandige Sham Bhat v. Agricultural I.T.O., A.I.R. 591 (S.C. 1963)
………………....19
115. Kharak Singh v. The State of U. P. & Others , A.I.R. 1295 (S.C. 1963)
……………....10
116. KSL & Industries Case, B.C. 500 (2005)
…………………………………………....15
117. Kuldip Nayar v. Union of India, A.I.R. 3127 (S.C. 2006) …………………………....6
118. Kumari Chitra Ghosh v. Union of India, 2 S.C.C. 228 (1969)
……………………....20
119. Kunwar Chiranjit Singh v. Har Swarup, A.I.R. 1 (P.C. 1926)
……………………......22
120. Kuttisankaran Nair v. State of Kerala , A.I.R. 161 (Ker. 1965)
……………………....11
121. Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 873 (S.C. 1981)
………………....19
122. Lord Krishna Sugar Mills & Anr. v. UOI and Anr., 1 S.C.R. 39 (1960) …………....20
123. Louis De Raedt v. Union of India, A.I.R. 1886 (S.C. 1991)
……………………........12

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124. Lucknow Co-op Societies v. Registrar, A.I.R. 305 (All. 1967)

……………………......8
125. M. R. F. Ltd. v. Inspector Kerala Govt. and Ors. , 8 S.C.C. 227 (1998)
……………....20
126. Madhvan Pillai v. State of Kerala, A.I.R. 214 (Ker.
1966) .............................................9
127. Magan Bhai v. Union of India, 3 S.C.C. 400 (1970)
………………………………......2
128. Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, 9 S.C.C. 221 (2009)
…………....14
129. Maneka Gandhi v. Union of India , A.I.R. 597 (S.C. 1978)
………………………......11
130. Manish Kumar v. Union of India (UOI) and Ors., 2 S.C.C. 398 (2018) …………....19
131. Marbury v. Madison, 2 L Ed 60: 5 US (1)
…………………………………………....15
132. Mardia Chemicals Ltd. v. Union of India, 4 S.C.C. 311 (2004) ………………....8 &
21
133. Maula Bux v. Union of India , 2 S.C.C. 554 (1969)
…………………………………...22
134. Mihir alias Bhikari Charan Sahu v. State, Cri LJ 488 (2005)
…………………….......12
135. Minerva Mills Limited v. Union of India, 2 S.C.C. 59 (1980)
…………………..........11
136. Mohammed Ishaq v. S. Kazam Pasha, 12 S.C.C. 748 (2009)
……………………........3
137. Mohd Hanif Qureshi v. State of Bihar, A.I.R. 731 (S.C. 1958)
………………………...8
138. Moti Das v. Sahi,A.I.R. 942 (S.C. 1959), p
947 .............................................................8
139. Mudassar Builders v. Union of India and Ors., 2 S.C.C. 232 (2017)
…………….......17
140. Municipal Corpn. of Ahmedabad v. Jan Usmanbhai , 3 S.C.C. 20 (1986)
…………....10

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141. N.H.R.C. v. State of Arunachal Pradesh, A.I.R. 1234 (S.C. 1996)

………………......11
142. Nahar Industrial Ltd. v. Hong Kong Banking Corp., 6 S.C.C. 635 (2009)
……….......14
143. Narsing Das v.Chogemull,A.I.R. 435 (Cal.
1939) .........................................................8
144. Nathi Devi v. Radha Devi Gupta, A.I.R. 648 (S.C. 2005)
…………………………....17
145. National Seeds Corporation Case, 2 S.C.C. 506 (2012)
………………………….......13
146. National Seeds Corp. v. Madhusudhan Reddy & Anr., 2 S.C.C. 506 (2012)
………....13
147. Navtej Singh Johar and Ors. v. Union of India & Ors., 10 S.C.C. 1 (2018)
………......7
148. Newspapers Ltd. v. Industrial Tribunal, U.P., A.I.R. S.C. 532 (S.C.
1957) .................17
149. Nikhil Mehta v. AMR Infra. Ltd., S.C.C. 377 (N.C.L.A.T 2017) ……………......4 &
6
150. O.P. Singla v. Union of India ,4 S.C.C. 450 (1984)
……………………………….......18
151. Olga Tellis v. Bombay Municipal Corporation, A.I.R. 180 (S.C. 1986)
…………......11
152. Om Kumar v. Union of India, 2 S.C.C. 386 (2001) ………………………….......6 &
21
153. Onkar Lal Bajaj v. Union of India, A.I.R. 2562 (S.C. 2003)
………………………......7
154. P. Janardhan v. Union of India, A.I.R. 171 (Mysore 1970)
……………………….......9
155. P.P. Enterprises v. Union of India, 4 S.C.C. 409 (1998)
……………………………....4
156. Pameshwari Das Mehra v. Ram Chand Om Prakash , 5 S.C.C. 417 (2014)
………......24

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157. Pannalal Binjraj v. Union of India, A.I.R. 397, 408 (S.C. 1957)
…………………........7
158. Papnasam Labour Union v. Madura Coats Ltd. , A.I.R. 2200 (S.C. 1995)
…………....21
159. Pawan Dubey v. J. B. K Developers, 4 S. C. C 794 (2018)
…………………………...24
160. People’s Union for Civil Liberties v. UOI, A.I.R. 1442 (S.C. 2004) ………........8 &
11
161. Philips India Ltd. v. Labour Court, 3 S.C.C. 103 (1985) ……………………....15 &
17
162. Pioneer Urban Land and Infra. Ltd. v. UOI , 8 S.C.C. 416 (2019) ……....5, 12. 15 &
20
163. PN Kumar v. Municipal Corp of Delhi, 1 S.C.R 1 732 (1988)
……………………......2
164. PN Kumar v. Municipal Corp of Delhi, 1S.C.R 732 (1988)
…………………………...3
165. Poppatlal Shah v. State of Madras, A.I.R. 274 (S.C. 1953)
………………………......18
166. Prakash and Ors. v. Phulavati and ors., 1 S.C.C. 549
(2016) ........................................18
167. Prathyasa Mental Health v. State of Kerala , S.C.C. 2314 (Ker.
2020) ...........................1
168. Punjab Beverages Pvt. Ltd. v. Suresh Chand, 2 S.C.C. 144 (1978)
…………………..17
169. Queen v. Eduljee Byramjee, 3 MIA 468 (1846) .................................................17 &
18
170. R v. Duchess of Kingston 2 smith , 1 Leach 146 (1776)
……………………………...23
171. R v. Goldsmith, 1 WLR 151, 155 (1983)
…………………………………………......21
172. R. C. Poudyal v. Union of India, 1 Supp S.C.C. 324 (1994) at page 386
……………....4

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173. R.K.Garg v. Union of India, 4 S.C.C. 675

(1981) .........................................................8
174. Rabindranath Bose v. Union of India, 1 S.C.C. 84 (1970)
…………………………....2
175. Rajamudry Electric Ltd. v. Nageshwara Rao & Ors ., A.I.R. 213 (S.C. 1956)
………...17
176. Ram Jethmalani &Ors. v. Union of India &Ors. , 8 S.C.C. 1 (2011)
……………….......2
177. Ram Krishna Dalmia v. S.R. Tendolkar , S.C.R. 279 (1959) ………………....6, 8 &
20
178. Rameshwar and Ors. v. Jot Ram and Anr., 1 S.C.C. 194 (1976)
…………………......12
179. Ramji Lal Modi v. State of U.P , A.I.R. 620 (S.C. 1957)
……………………………....9
180. Ramkrishna Dalmia v. Tendolkar, S.C.R. 274 (1959), p 297 ………………...
……......8
181. Ramlila Maidan Incident v. Home Secretary, S.C.C. 1
(2012) ......................................9
182. Rashid Ahmed v. Municipal Board, Kairana, A.I.R. 163 (S.C. 1950)
…………….......3
183. Re special Reference Number 1, 10 S.C.C. 1 (2012)
………………………………......4
184. Re, Bidie (deceased), 2 ALL ER 995 (1948)
……………………………………........18
185. Re, Special Courts Bill, 2 S.C.R. 476 (1979), p. 534-
36 ...............................................19
186. Re: Kerala Education Bill, A.I.R. 956 (S.C. 1958)
…………………………………....8
187. RBI v. Peerless General Finance Co. Ltd. , 1 S.C.C. 642 (1996)
…………………......19
188. Rustom Cavasjee Cooper v. Union of India, 1 S.C.C. 248 (1970)
…………………....4

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189. S. Sundaram Pillai v. V.R. Pattabiraman, 1 S.C.C. 591 (1985)

…………………….......5
190. S.G. Jaisinghani v. UOI and State of J & K. , 1 S.C.R. 771
(1974) ..............................20
191. S.P. Gupta v. Union of India, Supp S.C.C. 87 (1981)
………………………………....1
192. Sachidanand Pandey v. State of West Bengal , 2 S.C.C. 295 (1987)
………………......1
193. Sanjeev Kapoor v. Chandana Kapoor and Others, A.I.R. 1064 (S.C. 2020)
………....12
194. Sant Lal Bharti v. State of Punjab, A.I.R. 485 (S.C.
1988) ............................................6
195. Sarda v. Dharmpal, A.I.R. 3450 (S.C. 2003)
………………………………………....11
196. Satyabrata Ghose v. Mugneeram and Co., S.C.R. 310 (1954) ………………....23 &
24
197. SC Cooper v. Union of India, 3 S.C.R. 530 (1970)
………………………………….....3
198. Secretary, Govt. of India v. Alka Shubhash Gadia, 3 S.C.R 583
(1990) .......................2
199. Shantisar Builders v. Narayan Khimlal Totame, A.I.R. 630 (S.C. 1990)
…………......11
200. Sharma Transport v. Govt. of Andhra Pradesh , 2 S.C.C. 188 (2002)
………………....5
201. Shayara Bano v. Union of India, 9 S.C.C. 1 (2017) ..............................................7 &
10
202. Shimnit Utsch Pvt Ltd. v. W. B Transport Ltd. & Ors. , 6 S.C.C. 303 (2010) …………
11
203. Shreya Singhal v. Union of India, 5 S.C.C. 1 (2015)
………………………………......7
204. Skypak Couriers Ltd. v. Tata Chemicals Ltd., 5 S.C.C. 294 (2000)
………………....13

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205. Sneha Mandal Co-Operative v. Union of India , A.I.R. 121 (Bom. 2000)
…………....10
206. Soma Chakravorthy v. C.B.I., 5 S.C.C. 403, 411 (2007)
…………………………......12
207. Sri Ram Builders v. State of M.P. and Ors. , 9 S.C.C. 211 (2014)
……………….......23
208. State of A.P. v. McDowell & Co., 3 S.C.C. 709 (1996)
……………………………....5
209. State of Bihar v. Kameshwar Singh, A.I.R. 252 (S.C. 1952)
………………………....17
210. State of Bihar v. Baidyanath Ayurved Bhawan (P) Ltd. , 2 S.C.C. 762 (2005)
………...8
211. State of Bombay v. F.N. Balsara , A.I.R. 318 (S.C. 1951)
………………………….......5
212. State of Gujarat v. Shri Ambica Mills Ltd. , 4 S.C.C. 656 (1974) …………......6, 8 &
17
213. State of Himachal Pradesh v. Narain Singh, 13 S.C.C. 165
(2009) ................................7
214. State of Kerala and Anr. v. N.M. Thomas and Ors. , 2 S.C.C. 310
(1976) ....................20
215. State of Kerala v. Aravind Modawdakar and Ors., 7 S.C.C. 400 (1999) …….......5 &
20
216. State of Kerala v. PUCL, C.D.J. 831 (S.C.
2014) ...........................................................9
217. State of Kerela v. N.M. Thomas, 2 S.C.C. 310 (1976)
……………………………......19
218. State of M.P. v. Bhopal Sugar Industries Ltd. , 6 S.C.R. 846, 850 (1964)
……………....4
219. State of Madhya Pradesh v. Mandavar , A.I.R. 493 (S.C. 1955)
……………………......6
220. State of Madras v. V.G. Row, A.I.R. 196 (S.C. 1952)
…………………………….......7

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221. State of Orissa v. Radheyshyam Meher , A.I.R. 855 (S.C. 1995)

…………………....10
222. State of Punjab v. Devans Modern Breweries Ltd., 11 S.C.C. 26 (2004)
…………........1
223. State of Punjab v. M.S. Chawla, A.I.R. 1225 (S.C.
1997) ...........................................11
224. State of Tamil Nadu v. Ananthi Ammal, A.I.R. 2114 (S.C. 1995)
………………........6
225. State of U.P. v. Kartar Singh, A.I.R. 1135 (S.C. 1964)
……………………………......7
226. State of Uttar Pradesh v. Kaushailiya and Ors. , A.I.R. 416 (S.C. 1964)
……………....5
227. State of W.B. v. Union of India , A.I.R. 1241 (S.C. 1963) ……………………...17 &
18
228. State of W. B & Ors. v. Rash Bihari & Ors. , 1 S.C.C. 479 (1993) ……………....7 &
20
229. State of West Bengal v. Ratnagiri Engineering Ltd., 4 S.C.C. 453 (2010)
…………......2
230. State v. Nanga and Ors., A.I.R. 25 (Raj.
1951) ..............................................................9
231. Subramanian Swami v. Director, CBI and Ors. , 8 S.C.C. 682 (2014)
……………….....3
232. Sukhdev Singh v Union Territory of Chandigarh, A.I.R. 5 (P&H 1987)
…………........8
233. Sunil Poddar v. Union Bank of India , 2 S.C.C. 326 (2008)
…………………………....2
234. Suresh Kumar Koushal v. Naz Foundation , 1 S.C.C. 1 (2014)
……………………....12
235. Suresh v. Swamy v. L&T Limited , 4 A.D.J. 406 (2018)
…………………………......21
236. Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019) …………………….......6, 7 &
13

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237. T Devadasan v. Union of India, A.I.R. 179 (S.C. 1964)

……………………………....4
238. T.M.A. Pai Foundation v. State of Karnataka , 8 S.C.C. 481 (2002)
…………………...9
239. Taylor v. Caldwell, 3 B&S 826 (1863)
……………………………………………....24
240. State of Gujarat & Ors. v.Ambica Mills Ltd. & Ors., 4 S.C.C. 656
(1974) ....................9
241. Thirumurugan Coop. Society v. M. Lalitha , 1 S.C.C. 305 (2004) …………......13 &
15
242. Tigner v. Texas, 310 U.S. 14 (S.C. 1940)
………………………………………….......7
243. Trans Mediterranean Airways v. Universal Exports , 10 S.C.C. 316 (2011) …………
13
244. Udayan Narayanan Namboodri v. State of Kerala , 2 Ker L.T. 928 (1988)
…………....8
245. Union of India v. M.V. Valliappan, 6 S.C.C. 259 (1996)
………………………….......6
246. Union of India v. Naveen Jindal, 2 S.C.C. 510 (2004)
……………………………......12
247. Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003)
………………………......2
248. United States v. Butler, 297 US 1
(1936) .......................................................................9
249. V.C. Shukla v. State (Delhi Admn.) , Supp S.C.C. 249
(1980) .......................................8
250. Venkateshwara Theatre v. State of A.P., 3 S.C.C. 677
(1993) .......................................8
251. Vijay Lakshmi vs Punjab University and Others, 1 S.C.C. 817 (2003)
……………....17
252. Vincent v. Union of India, A.I.R. 990 (S.C. 1987) ……………………………….……
9

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253. Virendra v. State of Punjab , A.I.R. 869 (S.C. 1957)

…………………………………...9
254. Waman Rao v. Union of India, 2 S.C.C. 362 (1981)
………………………………....10
255. Waverly Jute Mills Co Ltd v. Raymond Pvt Ltd , A.I.R. 90 (S.C. 1963)
……………...8
256. Welfare Association v. Ranjit P. Gohil, 9 S.C.C. 358 (2003) paragraph 60
………......4

ARTICLES AND JOURNALS

1. Ahmed, Remedy of Compensation under Article 32, LEGAL SERVICE INDIA (July 7
2020) https://www.legalservicesindia.com/article/2570/Remedy-of-Compensation-under-
Article-32.html
2. Prashanti, Compensatory Jurisprudence in India, LEGAL SERVICE INDIA (July 4
2020) http://www.legalservicesindia.com/article/2035/Compensatory-Jurisprudence In-
India.html
3. Megha Purohit, Mayank Purohit, An Analysis of Non-Refoulement In Indian Legal
Framework, Volume 2 JAMIA LAW JOURNAL 167 (2017).

BOOKS

1. 1&2 M.P. JAIN, INDIAN CONSTITUTIONAL LAW: WITH CONSTITUTIONAL

DOCUMENTS (6th Edition, Lexis Nexis Butterworths Wadhwa Nagpur, 2010).
2. 1&2 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA (AR Lakshmanan,
V.R. Manohar & Bhagabati Prosad Banerjee ed.,14th Edition, Lexis Nexis, 2009).
3. 1,2&3 SAMARADITYA PAL, INDIA’S CONSTITUTION ORIGINS AND
EVOLUTION (Lexis Nexis, 2014).
4. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4TH Edition., Central Law
Publication, 1991).
5. J. BEATSON, A. BURROWS & J. CARTWRIGHT, ANSON’S LAW OF CONTRACT
(29th Edition, Oxford University Press, 2010).
6. MP JAIN, INDIAN CONSTITUTIONAL LAW (8th Edition., Lexis Nexis, 2018).

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7. N S BINDRA, BINDRA’S INTERPRETATION OF STATUTES (M N Rao and Amita

Dhanda, 10th Edition, Lexis Nexis Butterworths, 2007).
8. MAMTA RAO, PUBLIC INTEREST LITIGATION (4th Edition, Eastern Book
company, 2015).
9. H.K SAHARAY, DUTT ON CONTRACT (11TH Edition, eastern law house, 2013).
10. V.S. WAHI, Treatise on Insolvency & Bankruptcy Code (3rd Edition, 2019).
11. PRANAV M KHATAVKAR, Insolvency and Bankruptcy Code, 2016 (Thomson
Reuters, Compilation of Select Judgement along with Executive Summaries).
12. DR. VK AGARWAL, Consumer Protection (Law and Practice (7th Edition, 2021).
13. Y.V. RAO, Commentary on the Consumer Protection Act, 1986 (4th Edition, 2017).
14. Taxman’s Insolvency and Bankruptcy Code 2016 – As amended by Insolvency &
Bankruptcy Code (Amendment) Ordinance 2019 (12th Edition, 2020).
15. SANJEEV KUMAR, Real Estate (Regulation and Development) Act, 2016 (1 st Edition,
2017).
16. Taman’s Guide to RERA with RERA Checklists (3rd Edition, 2017).
17. CA KAPIL GOYAL, Guide to Real Estate (Regulation & Development) Act, 2016 (1 st
Edition, 2019).

LEGAL DATABESES

1. www.scconline.com
2. www.manupatra.com
3. www.heinonline.com
4. www.jstor.com
5. www.lexisnexis.com

LEXICON

 Black’s Law Dictionary (9th edition, 2009)

 Oxford Dictionary of Law (2006)

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the jurisdiction in this matter under Art. 32 of the
Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.”

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STATEMENT OF FACTS

Background of the Case

KAZA PORYO is a private limited company incorporated in India has earned the status of
being one of the most prominent and trustworthy real estate developers of India. In the year
2018 KAZA PORYO planned to expand their business on big levels. Consequently, they
initiated ten mega real estate projects in different parts of the country.

Due to unreasonable rules of real estate industry the interest of allottees were often hampered
so, to curb this issue, the Indian Government enacted a law, Real Estate (Regulation and
Development) Act, 2016 (“RERA”), to defend the interests of the home buyers and make the
real estate developers liable for the delays in finishing the projects.

Conflict Arises

The KAZA PORYO project is started and the company is offering possession to the Allottees
who had made the pre investment. Mr. Ashok Prasad, one of the Allottee who has booked

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one flat of approx value of Rs. one crore. He has paid pre instalments amount of Rs. Fifty
Lacs only thereafter he has to pay post instalments of Rs. Fifty Lacs and Mr. Ashok Prasad
defaulted in making the post payment of instalments. An agreement to Sale has also been
executed between the KAZA PORYO and Mr. Ashok Prasad detailing the terms and
conditions of the agreement. Therefore, an amount of post instalments along with interest and
penal interest become approx. Rs. Fifty-Five Lacs i.e., more than the current price of the flat
in question, therefore, Mr. Ashok Prasad is not attracted to take the possession of flat and
only fascinated to take refund of the amount invested by him therefore, Mr. Ashok prasad
had approached before the NCLT and filed a case against KAZA PORYO.

Contention Raised by Kaza Poryo

The KAZA PORYO has appeared before the NCLT and filed its reply and taken a
preliminary objection including the word Allottees. i.e., Allottees as a Financial Creditor is a
violation of Article 14 of Constitution of India. KAZA PORYO has also challenged the
validity of the Allottees, including Mr. Ashok Prasad as Financial Creditor before the
Supreme Court of India. The question of law arises before the Supreme Court of India and
now the matter is pending for hearing.

ISSUES FOR CONSIDERATION

ISSUE- 1

WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?

ISSUE- 2

WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

VIOLATIVE OF ARTICLE 14, 19, 21 AND 300-A OF CONSTITUTION OF INDIA?

ISSUE- 3

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WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?

ISSUE- 4

WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?

ISSUE- 5

WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED

BY MR. ASHOK?

SUMMARY OF ARGUEMENTS

[1.] WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?

It is humbly submitted before this Hon’ble Court that the instant writ petition is not
maintainable. The Respondent seeks to establish that; (A) The petitioner does not have a
locus standi, (B) There has been no violation of Fundamental Right, (C) The petitioner is
required to exhaust existed alternative remedy and (D) The Hon’ble court would not be
justified in interfering with a policy decision.

[2.] WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

VIOLATIVE OF ARTICLE 14, 19, 21 AND 300-A OF CONSTITUTION OF INDIA?

It is humbly submitted before this Hon’ble Court that the word Allottees as Financial
Creditor is in consonance with Article 14, 19, 21 and 300-A of the Constitution. The
Respondent seeks to establish that; (A) It passes the test of Art. 14, (B) It is not Arbitrary and

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Unreasonable as (i) It is not Discriminatory, (C) There is a presumption in favours of the

validity of the statute as (i) It is not Ultravires, (D) It is in consonance with Article 19 as (i)
Restriction under Article 19(6) is Reasonable, (E) It is in consonance with Article 21 of the
Constitution as (i) Right to Life enshrined under Art. 21 is not absolute and (ii) It qualifies
test of substantive due process and procedure established by law and (F) It is in consonance
with Article 300-A.

[3.] WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?

It is humbly submitted before this Hon’ble Court that RERA Act, 2016 and CP Act, 2019 are
not in conflict with each other. The respondent seeks to establish that; (A) Remedies
available in RERA and CP Act are concurrent remedies, (B) Both the acts are in addition and
not in derogation with each other as (i) Allottees are consumer under the CP Act and (ii) It
provides option to complainant to seek alternate remedy and (C) RERA should be read
harmoniously with CP Act.

[4.] WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?

It is humbly submitted before this Hon’ble Court that the word ‘allottees’ enshrined under
RERA is not arbitrary. The Respondent seeks to establish that; (A) Under Inclusiveness and
Over Inclusiveness, (B) It is in accordance with Intention of Legislature and (C)
Classification is Justifiable as (i) There is an intelligible differentia in the classification, (ii)
There is a reasonable nexus to the object, (iii) State needs to act in accordance to social need
of hour as it fulfils doctrine of necessity and (iv) Classification is not Disproportionate.

[5.] WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT

INVESTED BY MR. ASHOK?

It is humbly submitted before this Hon’ble Court that Kaza Poryo is liable to refund the
amount invested by Mr. Ashok. The respondent seeks to establish that; (A) Mr. Ashok is
duly authorised to take the refund under the enumerated provision of RERA Act, (B) The
promoter is obliged to refund the principal amount after deducting the interest, (C) There was
vitiation of contract.

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WRITTEN SUBMISSIONS

1. WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS

MAINTAINABLE?

[¶1] It is humbly contended that the instant writ petition is not maintainable. The Respondent
seeks to establish that; (A) The petitioner does not have a locus standi, (B) There has been no
violation of Fundamental Right, (C) The petitioner is required to exhaust existed alternative
remedy and (D) The Hon’ble court would not be justified in interfering with a policy
decision.

(A) The petitioner does not have a locus standi

[¶2] Locus standi means signifies the right to bring an action and to be heard. 1 In State of
Punjab v. Devans Modern Breweries Ltd.2 and Prathyasa Mental Health Counselling Forum
v. State of Kerala,3 the Kerala High Court rejected PIL by unregistered body after referring
various decisions of SC vis-à-vis writ petition, like Guruvayoor Devaswom Managing
Committee v. C.K.Rajan4; Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of
India5; S.P. Gupta v. Union of India6 and D.S. Nakara &Others. v. Union of India7 observed
that no action lies in the SC under Art. 32 unless there is an infringement of a Fundamental
Right,8 as SC has previously emphasized that “The violation of Fundamental Right is sine
qua non of exercise of right conferred by Art. 32.” 9 In Hans Muller of Nurenberg v.
Superintendent, Presidency Jail, Calcutta and Ors.,10 SC held that only a person aggrieved
can impugn any given piece of legislation under Art. 32. It is submitted that, per curiam
Sachidanand Pandey v. State of West Bengal,11 courts must restrict free flow of case under
article 32.

1
Aiyar Ramanatha, P., Concise Law Dictionary, LexisNexis Buttersworth Wadhwa Nagpur, 2009.
2
State of Punjab v. Devans Modern Breweries Ltd., 11 S.C.C. 26 (2004).
3
Prathyasa Mental Health Counselling Forum v. State of Kerala, S.C.C. 2314 (Ker. 2020).
4
Guruvayoor Devaswom Managing Committee v. C.K.Rajan, 7 S.C.C. 546 (2003).
5
Akhil Bharatiya Soshit Karamchari Sangh (Railway) v. Union of India, 1 S.C.C. 246 (1981).
6
S.P. Gupta v. Union of India, Supp S.C.C. 87 (1981).
7
D.S. Nakara & Others. v. Union of India, A.I.R. 130 (S.C. 1983).
8
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1539 (S.C. 1974).
9
Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. 344 (S.C. 1981); Gopal Das v. Union of India, A.I.R.
1 (S.C. 1955).
10
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R. 367 (S.C. 1955)
11
Sachidanand Pandey v. State of West Bengal, 2 S.C.C. 295 (1987).

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[¶3] Where there is no infringement of Fundamental Right or scope for enforcement of any
Fundamental Right, the writ petition is not maintainable on the fragile ground. 12 Where writ
petition is challenging the Constitutional validity of any provision, then the petitioner should
file writ petition before High Court under Art. 226 of the Constitution. 13 Mere apprehension
that the petitioner would be deprived of his Fundamental Right is not enough to invoke the
jurisdiction of the Court under Art. 32.14 Unless satisfactory reasons are India in this regard,
filing of petition in such matters directly under Art. 32 of the Constitution is to be
discouraged.15 It has been held that if a person who comes to the Court with a writ with
vested interests, improper motion or actuated by a desire to win notoriety or cheap popularity
are not entitled to file writ petition. 16 In Rabindranath Bose v. Union of India,17 it was
observed that no relief can be given to petitioners who, without any reasonable explanation,
approach SC under Art. 32. In the instant writ, there is absence of reasonable explanation
from Kaza Poryo.

(B) There has been no violation of Fundamental Right

[¶4] When a person acquires a locus standi, he has to have a personal or individual right
which was violated or threatened to be violated which is not present in the instant case. 18 In
BALCO Employees’ Union (Regd.) v. Union of India,19 the Court held that the only ground
on which a person can maintain a writ is where there has been an element of violation of Art.
14 and 21. There cannot be any such thing as absolute or uncontrolled liberty wholly freed
from restraint.20

(C) The petitioner is required to exhaust existed alternative remedy

[¶5] It has been held that since Art. 32 confers “extraordinary” jurisdiction which shall be
brought into use where there is no alternate efficacious remedy is available. 21 The reason for
this is: first, to reduce increasing pendency of cases 22 and second, to inspire faith in hierarchy
12
Federation of Bar Association in Karnataka v. Union of India, 6 S.C.C. 715 (2000); Coffee Bd. v. Joint
C.T.O., A.I.R. 870 (S.C. 1971).
13
State of West Bengal v. Ratnagiri Engineering Private Limited, 4 S.C.C. 453 (2010).
14
Magan Bhai v. Union of India, 3 S.C.C. 400 (1970).
15
Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003).
16
Ashok Kumar Pandey v. State of West Bengal, A.I.R. 1923 (S.C. 2004).
17
Rabindranath Bose v. Union of India, 1 S.C.C. 84 (1970).
18
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1044 (S.C. 1962).
19
BALCO Employees’ Union (Regd.) v. Union of India, 3 S.C.C. 333 (2002).
20
Ram Jethmalani & Ors. v. Union of India & Ors., 8 S.C.C. 1 (2011).
21
Secretary, Govt. of India v. Alka Shubhash Gadia, 3 S.C.R, Supl. 583 (1990); Avinash Chand Gupta v. State
of Uttar Pradesh, 2 S.C.C. 726 (2004); Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003).
22
PN Kumar v. Municipal Corp of Delhi, 1 S.C.R 1 732 (1988).

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of Courts and the institution as a whole. The power to grant writs under Article 32 is a
discretionary power vested in the hands on this Hon'ble Court. 23 This Hon’ble Court has itself
imposed a self-restraint in its own wisdom on the exercise of jurisdiction under Art. 32 where
the party invoking jurisdiction has an effective adequate alternative remedy in form of Art.
226, although this Rule is a Rule of convenience and discretion rather than a Rule of law.24

[¶6] It is a well settled proposition of law that existence of an alternative adequate remedy is
a factor taken into consideration in a writ petition. 25 In Kanubhai Brahmbhatt v. State of
Gujarat,26 the Supreme Court held that a petitioner claiming of infraction of his fundamental
right should approach High Court rather Supreme Court in first instance as High Court under
Art. 226 has much wider than powers of the Supreme Court under Art. 32.27

(D) The Hon’ble court would not be justified in interfering with a policy decision

[¶7] The respondent most humbly submits that the Supreme Court has long held that
interference into policy actions is not within the its jurisdiction 28 as reiterated in the recent
Iodine Salt Case.29 It has been held that a writ petition cannot be maintainable if its sole
purpose is to question a policy decision of the Government. 30 In the Constitution Bench
decision of this Court in Subramanian Swami v. Director, CBI and Ors.,31 this Court held
that a legislation does not become unconstitutional merely because there is another view or
because another method may be considered to be as good or even more effective, like any
issue of social, or even economic policy. The list is truly extensive, 32 as the underlying
principle is sound in law.

Hence, it is humbly submitted before this Hon’ble Court that the instant Writ Petition is not
maintainable.

23
K.D. Sharma v. SAIL, 12 S.C.C. 481 (2008); Dalip Singh v. State of Uttar Pradesh, 2 S.C.C. 114 (2010);
Sunil Poddar v. Union Bank of India, 2 S.C.C. 326 (2008).
24
Mohammed Ishaq v. S. Kazam Pasha, 12 S.C.C. 748 (2009).
25
Rashid Ahmed v. Municipal Board, Kairana, A.I.R. 163 (S.C. 1950).
26
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1159 (S.C. 1987).
27
PN Kumar v. Municipal Corp of Delhi, 1 S.C.R 732 (1988); Confederation of All Nagaland State Services
Employees' Assn. v. State of Nagaland, (2006) 1 S.C.C. 496 (2006).
28
Directorate of Film Festivals v. Gaurav Ashwin Jain & Ors., 4 S.C.C. 737 (2007).
29
Academy of Nutrition Improvement v. Union of India, 8 S.C.C. 274 (2011).
30
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v. A.P. Health, Medical, Housing and
Infrastructure Development Corporation, Hyd. and Anr., 2 A.L.D. 609 (2002).
31
Subramanian Swami v. Director, CBI and Ors., 8 S.C.C. 682 (2014).
32
SC Cooper v. Union of India, 3 S.C.R. 530 (1970).

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2. WHETHER THE WORD ALLOTTEES AS FINANCIAL CREDITOR IS

VIOLATIVE OF ARTICLE 14, 19, 21 AND 300-A OF CONSTITUTION OF INDIA?

[¶8] It is humbly contended that the word Allottees as Financial Creditor is in consonance
with Article 14, 19, 21 and 300-A of the Constitution. The Respondent seeks to establish
that; (A) It passes the test of Art. 14, (B) It is not Arbitrary and Unreasonable as (i) It is not
Discriminatory, (C) There is a presumption in favours of the validity of the statute as (i) It is
not Ultravires, (D) It is in consonance with Article 19 as (i) Restriction under Article 19(6) is
Reasonable, (E) It is in consonance with Article 21 of the Constitution as (i) Right to Life
enshrined under Art. 21 is not absolute and (ii) It qualifies test of substantive due process and
procedure established by law and (F) It is in consonance with Article 300-A.

(A) It passes the test of Art. 14

[¶9] In Indira Sawhney v. Union of India,33 it was held that “Equality is one of the
magnificent corner-stones of Indian Democracy”. Any inequality in order to be
unconstitutional must be actually and palpably unreasonable and arbitrary. 34 A 5-judge bench
of this Hon’ble Court in R. C. Poudyal v. Union of India 35 has held that: “Para 130. In State
of M.P. v. Bhopal Sugar Industries Ltd., 36 this Court said: “The Legislature has always
power to make special laws to attain particular objects and for that purpose has authority to
select or classify persons, objects or transactions upon which law is intended to operate.37 In
this context, test of 'direct impact' in A.K. Gopalan v. State of Madras,38 has been
subsequently widened in Rustom Cavasjee Cooper v. Union of India,39 wherein test of 'direct
and inevitable consequence' was propounded. In Casu, the NCLAT in Nikhil Mehta and Sons
(HUF) v. AMR Infrastructure Ltd.,40 held that amounts raised by developers under assured
return schemes had the "commercial effect of a borrowing", which became clear from the
developer's annual returns in which the amount raised was shown as "commitment charges"

33
Indira Sawhney v. Union of India, A.I.R. 477 (S.C. 1993); Re special Reference Number 1, 10 S.C.C. 1
(2012).
34
Chiranjit Lal Chwodhury v. UOI, A.I.R. 41 (S.C. 1951); T Devadasan v. Union of India, A.I.R. 179 (S.C.
1964)
35
R. C. Poudyal v. Union of India, 1 Supp S.C.C. 324 (1994) at page 386.
36
State of M.P. v. Bhopal Sugar Industries Ltd., 6 S.C.R. 846, 850 (1964); See also, In Re the Special Courts
Bill, 1 S.C.C. 380 (1979).
37
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 91 (S.C. 1953); Babulal Ahmtalal Mehta v. Collector of
Customs, Calcutta, A.I.R. 877 (S.C. 1957); Gopi Chand v. Delhi Administration, A.I.R. 609 (S.C. 1959); H.P.
Gupta v. Union of India, 10 S.C.C. 658 (2002); Ankul Chandra Pradhan v. Union of India, 6 S.C.C. 1 (1997).
38
A.K. Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950).
39
Rustom Cavasjee Cooper v. Union of India, 1 S.C.C. 248 (1970).
40
Nikhil Mehta & Sons v. AMR Infrastructures Ltd., S.C.C. OnLine 377 (N.C.L.A.T 2017).

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under the head "financial costs". As a result, such allottees were held to be "financial
creditors" within the meaning of Section 5(7) of the Code.

[¶10] In several cases, this Court has invoked Chief Justice Patanjali Sastri’s words that Art.
14 does not require that classification brought about by legislation be “scientifically perfect
or logically complete”.41 What was required in such cases, he wrote, was that classification
must be “based on an intelligible principle having a reasonable relation to object which
legislature seeks to attain.”42 It is not obnoxious and is not open to charge of denial of equal
protection on ground that it has no application to other persons. 43 It is humbly submitted that
Art. 14 denies equal protection only when there is no reasonable basis for differentiation. 44 In
State of Kerala v. Aravind Ramakant Modawdakar and Ors., 45 the Court though noted, that
both the inter-state operators and intra-state operators were, in a generic sense, state carriage
operators, there was a distinction between the two. In the instant case, there is intelligible
differentia as treatment of Allottees as Financial Creditor has direct nexus with the object of
the Act.

[¶11] The Court held that it difficult to hold that this classification is either unreasonable or it
lacks a nexus to object or is violative of Article 14 as in instant case. In Arguendo, the first
distinguishing characteristic identified by the Court related to the nature of the transaction
between real-estate developers and apartment buyers. The consideration for time value of
money was the second distinguishing characteristic identified by the Court. 46 The third
distinguishing factor identified by the Supreme Court is that, unlike most operational
creditors, allottees are vitally concerned with the financial health of the real-estate developer
given that the completion of the project will be jeopardized if they are not financially
viable.47 In S. Sundaram Pillai v. V.R. Pattabiraman,48 this Court held that an explanation
cannot enlarge the scope of the original provision. In Casu, even if allottees are not permitted
to trigger the Code, they may still be protected by making suitable amendments for their
inclusion in the Committee of Creditors, so that they may have a voice in the future of the
41
Kedar Nath Bajoria v. State of West Bengal, A.I.R. 404 (S.C. 1953). See, e.g., Welfare Association v. Ranjit
P. Gohil, 9 S.C.C. 358 (2003) paragraph 60; Dharam Dutt v. Union of India, 1 S.C.C. 712 (2004) paragraph 56.
42
P.P. Enterprises v. Union of India, 4 S.C.C. 409 (1998).
43
State of Bombay v. F.N. Balsara, A.I.R. 318 (S.C. 1951).
44
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 91 (S.C. 1953); Babulal Ahmtalal Mehta v. Collector of
Customs, Calcutta, A.I.R. 877 (S.C. 1957); Ashoka Smokeless Coal India (P.) Ltd v. UOI, 2 S.C.C. 640, 697
(2007).
45
State of Kerala v. Aravind Ramakant Modawdakar and Ors., 7 S.C.C. 400 (1999).
46
Pioneer Urban Land and Infrastructure Ltd., 8 S.C.C. 416 (2019), ¶ 42.
47
Pioneer Urban Land and Infrastructure Ltd., 8 S.C.C. 416 (2019), ¶ 42.
48
S. Sundaram Pillai v. V.R. Pattabiraman, 1 S.C.C. 591 (1985).

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corporate debtor, which will impact the flats/apartments to be given to them or refunds to be
made, as the case may be.

(B) It is not Arbitrary and Unreasonable

[¶12] A Five Judge bench of Hon’ble Court in E.P. Royappa v. State of T.N.49 has explained
term arbitrary as very simply the lack of any reasoning which was reiterated by 5-judge
bench of this Court in Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors.50
No enactment can be struck down by just saying that it is arbitrary or unreasonable. 51 The
Principle of classification under Art. 14 has been subject of deliberation in a catena of
cases.52 No action of State should be of arbitrary and irrational nature which distinguishes
among Individuals.53 Bhagwati J in Bachchan Singh v State of Punjab54, A person cannot be
deprived of his liberty by law which is nebulous and uncertain in its definition and
application.55 An ordinary legislation cannot be challenged in a Court of Law on grounds of
violation of basic structure.56

[¶13] The restriction imposed was not unreasonable as mere fact that some hardship or
injustice is caused to someone is no ground to strike down the rule as unconstitutional. 57
Further Supreme Court has observed recently in K. Thimmappa v. Chairman, Central Board
of Directors,58 that mere differentiation does not per se amount to discrimination and to
attract operation of equal protection clause, it is necessary to show that the selection is
unreasonable or arbitrary and for that existing circumstances at time of taking decision had
to be examined.59 In Casu, Supreme Court held that an economic legislation does not violate
Article 14 only because it does not contain or make a perfect classification while giving

49
E.P. Royappa v. State of T.N., 4 S.C.C. 3 (1974); See also, Sharma Transport v. Government of Andhra
Pradesh, 2 S.C.C. 188 (2002).
50
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 1 S.C.C. 1 (2019).
51
State of A.P. v. McDowell & Co., 3 S.C.C. 709 (1996); State of A.P. v. McDowell & Co., 3 S.C.C. 709
(1996); Ashok Kumar Thakur v Union of India, 6 S.C.C. 1 (2008); State of Uttar Pradesh v. Kaushailiya and
Ors., A.I.R. 416 (S.C. 1964).
52
Budhan Choudhary & Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955).
53
Om Kumar v. Union of India, 2 S.C.C. 386 (2001).
54
Bachan Singh v. State of Punjab, A.I.R. 1336 (S.C. 1982).
55
A.K. Roy v. Union of India, 1 S.C.C. 271 (1982).
56
Kuldip Nayar v. Union of India, A.I.R. 3127 (S.C. 2006).
57
AP Cooperative Oil Seeds Federation Limited v. D Achyuta Rao, 13 S.C.C. 320 (2007).
58
K. Thimmappa v. Chairman, Central Board of Directors, A.I.R. 467 (S.C. 2001); Union of India v. M.V.
Valliappan, 6 S.C.C. 259 (1996).
59
Chabungam Ibohal Singh v. Union of India, 2 S.C.C. 83 (1995).

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effect to a policy.60 In Swiss Ribbons v. Union of India,61 the SC tenaciously upheld the
difference between operational and financial creditors and declared this classification
constitutionally valid. Nikhil Mehta & Sons v. AMR Infrastructures Ltd.62 is significant
because it was first to case to recognize apartment buyers as financial creditors and allow
them to trigger the IBC against the corporate debtor (real estate developer). The SC allowed
the appeal and ordered for the fresh constitution of CoC, which would enforce the status of
the allottees as financial creditors.63

[¶14] A statute upon a similar subject deriving its authority from another source can be
referred to, if its provisions have been held to be unreasonable, or have stood test of time,
only for purpose of indicating what may be said to be reasonable in the context, 64 and extent
to which it is not unconstitutional.65 A case of arbitrariness is not made out where two views
are possible and view taken by government cannot be challenged on ground that other view
is a better one.66 Mere fact that some hardship or injustice is caused to someone is no ground
to strike down rule altogether if otherwise rule appears to be just, fair and reasonable and not
unconstitutional.67 This Hon’ble Court, in State of Madras v. V.G. Row,68 held that “no
abstract standard or general pattern, of reasonableness can be laid down as applicable to all
cases”.

(i) It is not Discriminatory

[¶15] The courts have evolved the principle that if the law in question is based on rational
classification it is not regarded as discriminatory. 69 It has been held in the case of Deepak
Sibal v Punjab University70, that ‘[A] classification need not be made with “mathematical
precision”. It has also been held in the case of Pannalal Binjraj v Union of India 71that, ‘[T]he

60
Ram Krishna Dalmia v. S.R. Tendolkar, S.C.R. 279 (1959); State of Gujarat v. Shri Ambica Mills Ltd., 4
S.C.C. 656 (1974).
61
Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019).
62
Nikhil Mehta & Sons v. AMR Infrastructures Ltd., S.C.C. OnLine 377 (N.C.L.A.T 2017).
63
Chitra Sharma v. Union of India, Writ Petition (Civil) [No. 744 of 2017], decided on 9 August 2018.
64
State of Madhya Pradesh v. Mandavar, A.I.R. 493 (S.C. 1955); Bar Council, Uttar Pradesh v. State of Uttar
Pradesh, A.I.R. 231 (S.C. 1973); Sant Lal Bharti v. State of Punjab, A.I.R. 485 (S.C. 1988); State of Tamil
Nadu v. Ananthi Ammal, A.I.R. 2114 (S.C. 1995).
65
Javed v. State of Haryana, A.I.R. 3057 (S.C. 2003).
66
Onkar Lal Bajaj v. Union of India, A.I.R. 2562 (S.C. 2003).
67
A. P. Coop. Oil Seeds Growers Federation Ltd. v. D. Achyuta Rao, 13 S.C.C. 320 (2007).
68
State of Madras v. V.G. Row, A.I.R. 196 (S.C. 1952).
69
Ashutosh Gupta v. State of Rajasthan, 4 S.C.C. 34 (2002).
70
Deepak Sibal v. Punjab University, A.I.R. 903 (S.C. 1989); Dharam Dutt v. Union of India, A.I.R. 1295 (S.C.
2004).
71
Pannalal Binjraj v. Union of India, A.I.R. 397, 408 (S.C. 1957).

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courts start with a presumption that the administration has not acted in a discriminatory
manner; they would not easily assume abuse of power when discretion is vested in high
officials. There is a presumption that every factor which is relevant or material has been
taken into account in formulating the classification. 72 Evils in the same field may be of
different dimensions and proportions requiring different remedies or so the legislature may
think.73

[¶16] In State of West Bengal and Ors. v. Rash Bihari Sarkar and Ors.,74 exemption was
granted under Bengal Amusements Act, 1922 as amended in 1981 from Entertainment Tax
for theatre groups which were bonafide and which performed not for monetary gain which
tax exemption was not given to theatre groups which performed for monetary gains. Both
were theatre groups. State action must be fair and not arbitrary if it is to be pass muster in a
court of law.75 It falls foul of Article 14 if it is found to be vague. 76 What is essential is that
they have the same interest. Interpreting the words "same interest", it is still further true that
this Court, in Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy,77 has held that what
is required is only community of interest. It is clear that any alleged discrimination has to
meet the tests laid down in Ram Krishna Dalmia case. 78 In instant case, the word Allottees as
Financial Creditor is not discriminatory as the Code is not meant to be a debt recovery
mechanism.79

(C) There is a presumption in favours of the validity of the statute

72
State of U.P. v. Kartar Singh, A.I.R. 1135 (S.C. 1964); G.D. Kelkar v. Chief Controller of Imports and
Exports, A.I.R. 839 (S.C. 1967).
73
Tigner v. Texas, 310 U.S. 14 (S.C. 1940).
74
State of West Bengal and Ors. v. Rash Bihari Sarkar and Ors., 1 S.C.C. 479 (1993).
75
Shayara Bano v. Union of India, 9 S.C.C. 1 (2017); Indian Express Newspapers (Bombay) (P) Ltd. v. Union
of India, 1 S.C.C. 641 (1985); Navtej Singh Johar and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2018);
Joseph Shine v. Union of India, 3 S.C.C. 39 (2019); Justice K.S. Puttuswamy and Ors. v. Union of India and
Ors., 10 S.C.C. 1 (2017); Hindustan Construction Co. Ltd. and Ors. v. Union of India and Ors., A.I.R. 122 (S.C.
2020).
76
Shreya Singhal v. Union of India, 5 S.C.C. 1 (2015); K. Nagaraj and Ors. v. State of Andhra Pradesh and
Anr., 1 S.C.C. 523 (1985); State of Himachal Pradesh v. Narain Singh, 13 S.C.C. 165 (2009)
77
Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy, 1 S.C.C. 608 (1990).
78
Ram Krishna Dalmia v. S.R. Tendolkar, A.I.R. 538 (S.C. 1958); See also, V.C. Shukla v. State (Delhi
Admn.), Supp S.C.C. 249 (1980); State of Gujarat v. Shri Ambica Mills Ltd., 4 S.C.C. 656 (1974);
Venkateshwara Theatre v. State of A.P., 3 S.C.C. 677 (1993); Mardia Chemicals Ltd. v. Union of India, 4
S.C.C. 311 (2004); State of Bihar v. Shree Baidyanath Ayurved Bhawan (P) Ltd., 2 S.C.C. 762 (2005);
Karnataka Live Band Restaurants Assn. v. State of Karnataka, 4 S.C.C. 372 (2018).
79
Swiss Ribbons Swiss Ribbons (P) Ltd. v. Union of India, 4 S.C.C. 17 (2019), Para 28.

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[¶17] The Hon’ble Supreme Court in the case of Ashutosh Gupta v. State of Rajasthan80 held
that, ‘[T]here is always a presumption in favour of the constitutionality of enactment 81 and
the burden is upon him who attacks it to show that there has been a clear transgression of the
constitutional principles.82 The Courts of law have to presume that the particular law is intra
vires and not ultra vires.83 Furthermore, it was held in the case of People’s Union for Civil
Liberties v. Union of India84 that, ‘[A] statute carries with it a presumption of
Constitutionality. In Hanif Qureshi (Mhd) v State of Bihar 85 held that, ‘in order to sustain
the presumption of constitutionality the Court may take into consider matters of common
knowledge, matters of common report, history of times and may assume every state of facts
which can be conceived existing at legislation.’ It is equally presumed that legislature is
aware of general principles of law and didn’t intent to overthrow fundamental legal principle,
in absence of a contrary intention in unmistakable terms. 86 In Instant Case, Presumption of
Constitutionality applies.

(i) It is not Ultravires

[¶18] In P. Janardhan v. Union of India87 the Court said that “The term ultra vires simply
means beyond the power or lack of power. If any Act is introduced in interest of general
public, it shall not be held as ultra vires unless contrary is proved. 88 Mr. Justice Stone of the

80
Ashutosh Gupta v. State of Rajasthan, A.I.R. 1533 (S.C. 2002).
81
Narsing Das v. Chogemull, A.I.R. 435 (Cal. 1939); Batterfield v. Stranaham, 192 US 70 (1906); Gopal
Krishnayya v. State of Andhra Pradesh, A.I.R. 292 (A.P. 1959); Express Newspapers Ltd v. Union of India,
A.I.R. 578 (S.C. 1958), p 623; Jalan Trading Co Pvt Ltd v. Mill Mazdoor Sabha, A.I.R. 691 (S.C. 1967);
Lucknow Officials Co-op Hsg Societies v. Registrar of Co-op Societies, A.I.R. 305 (All. 1967); Behampur
Tapti Mills Ltd v. State of Madhya Pradesh, A.I.R. 255 (M.P. 1962); Waverly Jute Mills Co Ltd v. Raymond &
Co (I) Pvt Ltd, A.I.R. 90 (S.C. 1963); Ram Krishna Dalmia v. SR Tendolkar, A.I.R. 538 (S.C. 1958);
Kavalappara Kottarathil Kochuni and Ors. v. State of Madras and Ors., A.I.R. 1080 (S.C. 1960); G.K. Krishnan
v. State of Tamil Nadu, A.I.R. 583 (S.C. 1975); Ashutosh Gupta v. State of Rajasthan, A.I.R. 1533 (S.C. 2002);
R.K. Garg v. Union of India, 4 S.C.C. 675 (1981); Marida Chemicals Ltd., etc. v. Union of India and Ors., 4
S.C.C. 311 (2004); K. B. Nagpur, M.D. (Ayurvedic) v. Union of India, 9 S.C.C. 212 (2012).
82
Charanjit Lal v. Union of India, A.I.R. 41 (S.C. 1951); Mohd Hanif Qureshi v. State of Bihar, A.I.R. 731
(S.C. 1958); Abdul Karim Thakur v. State, Kash L.J. 296 (1983); Udayan Narayanan Namboodri v. State of
Kerala, 2 Ker L.T. 928 (1988); Amrit Banaspati Co. Ltd. vs. Union of India and Ors., 3 S.C.C. 335 (1995).
83
Gopal Narain v. State of Madhya Pradesh, Jab L.J. 682 (1979).
84
People’s Union for Civil Liberties v. Union of India, A.I.R. 1442 (S.C. 2004).
85
Hanif Qureshi (Mhd) v. State of Bihar, A.I.R. 731 (S.C. 1958); Re: Kerala Education Bill, A.I.R. 956 (S.C.
1958); Express Newspapers Ltd v. Union of India, A.I.R. 578 (S.C. 1958); Gopala Krishnaya v. State of Andhra
Pradesh, A.I.R. 292 (A.P. 1959), p 299; Moti Das v. Sahi, A.I.R. 942 (S.C. 1959), p 947; Ramkrishna Dalmia v.
Tendolkar, S.C.R. 274 (1959), p 297; Sukhdev Singh v Union Territory of Chandigarh, A.I.R. 5 (P&H 1987).
86
Graham v. Van Wyck, 14 Barb 53 (1852); Glanrock Estate (P) Ltd. v. State of T.N., 10 S.C.C. 96 (2010).
87
P. Janardhan v. Union of India, A.I.R. 171 (Mysore 1970); State v. Nanga and Ors., A.I.R. 25 (Raj. 1951);
Madhvan Pillai v. State of Kerala, A.I.R. 214 (Ker. 1966); Anand Prakash v. Asst. Registrar, A.I.R. 22 (All.
1968).
88
Bharat Sevashram Sangh and Ors. v. State of Gujarat and Ors., 4 S.C.C. 51 (1986).

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SC of the US has delineated these limitations in United States v. Butler,89 that Courts are
concerned only with the power to enact statutes, not with their wisdom and the only check
upon our exercise of power is our own sense of self-restraint. In Delhi Transport
Corporation. v. D.T.C. Mazdoor Congress,90 this Court held that if intention of provision is
clear, it is not permissible either to mend or bend it even if such recasting is in accord with
good reason and conscience. The word Allottees is not Ultravires as it has rational nexus
with object of the Act, i.e., IBC, 2016.

(D) It is in consonance with Article 19

[¶19] A law within the meaning of Article 19 of the Constitution would remain valid qua a
non-citizen.91 It is submitted that Art. 19 of the Constitution is not absolute, 92 and reasonable
restrictions can be placed93 in interest of general public.94 The reasonableness of the restraint
would have to be judged by the magnitude of the evil it seeks to restrain, curb or eliminate. 95
The nature of the right alleged to have been infringed, the underlying purpose of the
restrictions imposed, the extent and the urgency of the evil sought to be remedied thereby,
the disproportion of the imposition and prevailing conditions at the time, should all enter into
judicial verdict.96 It is necessary to see whether a class which comes into contact with such
knowledge suffer in their moral outlook or might have impure or lecherous thoughts aroused
in their minds.97 There cannot be any liberty absolute in nature and uncontrolled in operation
so as to confer a right wholly free from any restraint. 98 ‘Public interest’ means a subject
matter in which the rights of the public or section of the public is interested, a concern which
is advantageous to people as a whole.99 ‘Interest of general public’ is a comprehensive
expression intended to achieve socio-economic justice for the people by the State. 100 Govt.
policy in the public interest would override the business interests of an individual person.101
89
United States v. Butler, 297 US 1 (1936).
90
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1 Suppl. S.C.C. 600 (1991).
91
The State of Gujarat and Ors. v. Shri Ambica Mills Ltd., Ahmedabad and Ors., 4 S.C.C. 656 (1974).
92
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2017).
93
State of Kerala v. Peoples Union for Civil Liberties, C.D.J. 831 (S.C. 2014).
94
Indian Const. art. 19, cl. 5.
95
Collector of Customs v. Sampathu Chettty, A.I.R. 316 (S.C. 1963)
96
Harakchand v. UOI, A.I.R. 1453 (S.C. 1970); Chintamani Rao v. State of M.P., A.I.R. 118 (S.C. 1951).
97
Chandrakant Kalyandas Kakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (S.C. 1970).
98
Ramlila Maidan Incident v. Home Secretary, S.C.C. 1 (2012).
99
T.M.A. Pai Foundation v. State of Karnataka, 8 S.C.C. 481 (2002); Virendra v. State of Punjab, A.I.R. 869
(S.C. 1957); Ramji Lal Modi v. State of U.P, A.I.R. 620 (S.C. 1957).
100
Kharak Singh v. The State of U. P. & Others, A.I.R. 1295 (S.C. 1963); Bachan Singh v. State of Punjab,
A.I.R. 898 (S.C. 1980); Waman Rao v. Union of India, 2 S.C.C. 362 (1981); Court on its own motion v. Union
of India, 12 S.C.C 307 (2012); Sneha Mandal Co-Operative v. Union of India, A.I.R. 121 (Bom. 2000).
101
State of Orissa v. Radheyshyam Meher, A.I.R. 855 (S.C. 1995).

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(i) Restriction under Article 19(6) is Reasonable

[¶20] Perhaps the best exposition of what the expression "reasonable restriction" connotes
was laid down in Chintamanrao v. State of M.P.,102 as follows: The word "reasonable"
implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the
quality of reasonableness and unless it strikes a proper balance freedom guaranteed in article
19 (1) (g) and social control permitted by clause (6) of article 19, it must be held to be
wanting in that quality." Arts. 19 (1) (g), 19 (6) and 14 of the Constitution in Municipal
Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai, 103 a Constitution Bench of
this Court, while rejecting challenge, held as under: (SCC pp.30 & 31-33, paras 17 & 19-24)
"17. Cl. (6) of Art. 19 protects a law which imposes in interest of general public reasonable
restrictions on the exercise of the right conferred by sub-cl. (g) of cl. (1) of Art. 19. What the
court has to do is to consider whether restrictions imposed are reasonable in interest of
general public.

[¶21] In Cellular Operators Association of India and Ors. v. Telecom Regulatory Authority
of India and Ors.,104 the SC held that: A proper balance between the freedom guaranteed and
the social control permitted by Article 19(6) must be struck in all cases. We find that RERA
strikes balance between rights and obligations of promoter and allottees. In Ajoy Kumar
Banerjee and Ors. v. Union of India and Ors.,105 this Court, inter-alia, held, while dealing
with the challenge to a scheme, as amended by employees of Insurance Companies, on the
grounds that it violated the fundamental rights of Article 14, 19 (1)(g) and 31. This Court
held: Whether same results or better results could have been achieved and better basis of
differentiation evolved is within domain of legislature and must be left to the wisdom of
legislature. Applying test of Shayara Bano v. Union of India,106 it cannot be said that a square
peg has been forcibly fixed into a round hole so as to render Section 5(8)(f) manifestly
arbitrary i.e., excessive, disproportionate or without adequate determining principle. For
same reason, it cannot be said that Art. 19(1)(g) has been infracted and not saved by Art.
19(6) as Amendment Act is made in public interest, and it cannot be said to be an
unreasonable restriction on the Petitioner's fundamental right Under Art. 19(1)(g). There is

102
Chintamanrao v. State of M.P., S.C.R. 759 (1950).
103
Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai, 3 S.C.C. 20 (1986).
104
Cellular Operators Association of India and Ors. v. TRAI and Ors., 5 S.C.C 220 (2001).
105
Ajoy Kumar Banerjee and Ors. v. Union of India and Ors., 3 S.C.C. 127 (1984).
106
Shayara Bano v. Union of India, 9 S.C.C. 1 (2017).

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no infraction of Art. 300-A as no person is deprived of its property without authority of a

constitutionally valid law.” In instant Case, the Word Allottees is not in violation of Art. 19
as restriction is reasonable and in accordance with Art. 19(6).

(E) It is in consonance with Article 21 of the Constitution

[¶22] The Court has implied a whole bundle of human rights out of Article 21 by interpreting
it along with the DPSP,107 and international charters on Human Rights. 108 Right to life
includes right to dignified life 109, right to healthy life 110, right to livelihood111, right to food,
water and decent environment,112 shelter,113 right to social security and protection of
family114etc. State can regulate exercise of fundamental rights to save public from substantive
evil.115 If law protects greater social interests, then such law will wholesome and
beneficent.116 If economic situation demands government discretion to adopt a different
policy or alter its policy to serve public interest, such policy must be free from arbitrariness,
irrationality, bias and malice.117

(i) Right to Life enshrined under Art. 21 is not absolute

[¶23] No right in Part III of the Constitution is absolute, 118 and reasonable restrictions can be
placed.119 The Supreme Court was of the view that though the right to personal liberty has
been read into article 21, it cannot be treated as an absolute right. 120 Anyone can be deprived
of his right to life and liberty by a procedure established by law provided it is fair and

107
Minerva Mills Limited v. Union of India, 2 S.C.C. 59 (1980).
108
Peoples' Union of Civil Liberties v. Union of India, A.I.R. 1997 S.C. 568 (S.C. 1997).
109
Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978); Francis Coralie v. Administrator, Union Territory
of Delhi, 1 S.C.C. 608 (1981).
110
State of Punjab v. M.S. Chawla, A.I.R. 1225 (S.C. 1997); Vincent v. Union of India, A.I.R. 990 (S.C. 1987).
111
Board of Trustees of the Port of Bombay v. Dilip kumar Raghavendranath Nandkarni, A.I.R. 109 (S.C.
1983); Olga Tellis v. Bombay Municipal Corporation, A.I.R. 180 (S.C. 1986).
112
Chameli Singh v. State of Uttar Pradesh, 2 S.C.C. 549 (1996).
113
Shantisar Builders v. Narayan Khimlal Totame, A.I.R. 630 (S.C. 1990).
114
Calcutta Electricity Supply Corporation. Ltd. v. Subhash Chandra Bose, 1 L.L.N. 353 (1992).
115
Chebrolu Leela Prasad Rao and Ors v. State of A.P and Ors., A.I.R. 384 (S.C. 2020).
116
AK Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950); Indrajit Barua v. The State of Assam and Ors., A.I.R.
513 (Del. 1983).
117
Shimnit Utsch India Pvt Ltd. and Anr. v. West Bengal Transport Infrastructure Development Corporation
Ltd. and Ors., 6 S.C.C. 303 (2010); Essar Steel Ltd. v. Union of India and Ors., 11 S.C.C. 1 (2016).
118
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2017).
119
Kuttisankaran Nair v. State of Kerala, A.I.R. 161 (Ker. 1965).
120
Sarda v. Dharmpal, A.I.R. 3450 (S.C. 2003)

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reasonable.121 In the case of Louis De Raedt v. Union of India, the court held that the
fundamental rights to life, liberty, dignity are available to non-citizens of India.122

(ii) It qualifies test of substantive due process and procedure established by law

[¶24] Article 21 provides that the right to life and liberty is subject to procedure prescribed
by law.123 The Constitution is a living organ, 124 and so is the law of society. 125 Human
societies keep changing and their needs emerge. 126 The requirement is it should not be
arbitrary.127 The requirement of substantive due process read into Constitution through a
combined reading of Art. 14, 21 and 19 and as test required to be satisfied while judging
constitutionality of a statute.128 No uniform test can be culled out to classify acts as “carnal
intercourse against the order of nature”129 and yet a reasonable, just and fair procedure has
been established.

(F) It is in consonance with Article 300-A

[¶25] In the case of K. T. Plantation Private Limited and Anr. v. State of Karnataka,130 in
para 120, the Supreme Court observed thus: - “120. Shri Andhyarujina, learned senior
counsel submitted that Art.300A and the statute framed should satisfy the twin principles of
public purpose and adequate compensation. As mandated by Article 300A, a person can be
deprived of his property but in a just, fair and reasonable manner. In Casu, word “Allottees as
Financial Creditor is in consonance with Art. 300-A as it satisfies twin principle of public
purpose.

[¶26] The facts as they exist on the date of the action" must be held in the context in which
they were made.131 The 'Pioneer Judgment' in Pioneer Urban Land and Infrastructure Ltd.
and Anr. v. Union of India and Ors.,132 the Court held that the amendment by which the
explanation was inserted in Section 5(8) was clarificatory in nature and allottees/home

121
Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978); See also, Issac Isangha Musumba v. State of
Maharashtra, 15 S.C.C. 357 (2014); N.H.R.C. v. State of Arunachal Pradesh, A.I.R. 1234 (S.C. 1996).
122
Louis De Raedt v. Union of India, A.I.R. 1886 (S.C. 1991).
123
A.K. Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950).
124
Union of India v. Naveen Jindal, 2 S.C.C. 510 (2004).
125
Sanjeev Kapoor v. Chandana Kapoor and Others, A.I.R. 1064 (S.C. 2020).
126
Kesavananda Bharati v. State of Kerala, 4 S.C.C. 225 (1973).
127
Soma Chakravorthy v. C.B.I., 5 S.C.C. 403, 411 (2007).
128
Suresh Kumar Koushal v. Naz Foundation, 1 S.C.C. 1 (2014).
129
Mihir alias Bhikari Charan Sahu v. State, Cri LJ 488 (2005).
130
K. T. Plantation Private Limited and Anr. v. State of Karnataka, 9 S.C.C. 146 (2011).
131
Rameshwar and Ors. v. Jot Ram and Anr., 1 S.C.C. 194 (1976).
132
Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors., 8 S.C.C. 416 (2019).

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buyers were included in the main provision, i.e., Section 5(8)(f) from the inception of the
Code and the amending Act did not infringe Articles 14, 19(1)(g) read with Article 19(6) or
300A of the Constitution of India. The Hon’ble Supreme Court upheld the 2018 Amendment,
which granted status of "Financial Creditors" to the homebuyers and gave them the right to
be represented in the committee of creditors by authorized representative. The 2018
Amendment was based on the Insolvency Law Committee’s Report of March 2018 (ILC
report) which highlighted how real-estate projects in India were often delayed and that this
was a sector-wide concern.133

Hence, it is humbly submitted before this Hon’ble Court that the word Allottees as Financial
Creditor is in consonance with Article 14, 19, 21 and 300-A of the Constitution of India.

3. WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN

CONFLICT?

[¶27] It is humbly contended that RERA Act, 2016 and CP Act, 2019 are not in conflict with
each other. The respondent seeks to establish that; (A) Remedies available in RERA and CP
Act are concurrent remedies, (B) Both the acts are in addition and not in derogation with
each other as (i) Allottees are consumer under the CP Act and (ii) It provides option to
complainant to seek alternate remedy and (C) RERA should be read harmoniously with CP
Act.

(A) Remedies available in RERA and CP Act are concurrent remedies

[¶28] It is submitted that remedy available under CP Act is in addition to the remedies
available under other statutes and the availability of alternative remedies is not a bar to the
entertaining of a complaint filed under the Act. 134 The SC comes as a boon to homebuyers /
allottees of projects as it recognises and confirms the additional remedy available to them to
pursue their grievances. While this position has been upheld consistently, present decision
provides that remedies available to homebuyers under Consumer Protection Act vis a vis the
RERA.135

133
MINISTRY OF CORPORATE AFFAIRS, REPORT OF THE INSOLVENCY LAW COMMITTEE (March
2018) at 16.
134
National Seeds Corporation Case, 2 S.C.C. 506 (2012); Fair Air Engineers (P) Ltd. v. N.K. Modi, 6 S.C.C.
385 (1996); Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, 1 S.C.C. 305 (2004); Skypak
Couriers Ltd. v. Tata Chemicals Ltd., 5 S.C.C. 294 (2000); Trans Mediterranean Airways v. Universal Exports,
10 S.C.C. 316 (2011).
135
Forum for People's Collective Efforts and Ors. v. The State of West Bengal and Ors., 9 S.C.C. 232 (2021).

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[¶29] As a matter of fact, any attempt to exclude the allottees from the ambit of the CP Act
by implication will make that Act vulnerable to an attack of unconstitutionality on the ground
of discrimination and there is no reason why the provisions of the CP Act should be so
interpreted.136 It has been held that “which is that sufficient play in the joints must be given to
the legislature when it comes to economic legislation, and every experiment that the
legislature bona fide undertakes should not be interfered with by the Court.”137 In arguendo,
such right of an allottee is specifically made "without prejudice to any other remedy available
to him" under section 18 of the RERA. 138 The RERA Act thus definitely provides a remedy
to an allottee who wishes to withdraw from the project or claim return on his investment.

(B) Both the acts are in addition and not in derogation with each other

[¶30] It is submitted that RERA under section 88 and CP Act under section 100 are in
addition and not in derogation of any other law, and to that effect, submissions are made that
(i) allottees are consumer under CP Act, (ii) it provides an option to complainant to seek
alternate remedy.

(i) Allottees are consumer under the CP Act

[¶31] Before we consider whether the provisions of the RERA Act have made any change in
the legal position of CP Act, it is held that an allottee placed in circumstances similar to that
of the Complainants, could have initiated following proceedings before the RERA Act came
into force if he satisfied requirements of being a "consumer" under CP Act, he could have
initiated proceedings under the CP Act in addition to normal civil remedies. However, if he
did not fulfil requirements of being a "consumer", he could initiate and avail only normal
civil remedies.139

[¶32] In casu, on plain reading of Section 79 of the RERA Act, an allottee would stand
barred from invoking the jurisdiction of a Civil Court. 140 However, as regards the allottees
who can be called "consumers" within the meaning of the CP Act. The proceedings before
the National Commission are although judicial proceedings, but at the same time it is not a
civil court within the meaning of the provisions of the Code of Civil Procedure. It may have

136
National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr., 2 S.C.C. 506 (2012).
137
Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019).
138
RERA Act, S. 18.
139
Emaar MGF Ltd. and Anr. v. Aftab Singh, 12 S.C.C. 751 (2019).
140
RERA Act, S. 79.

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all the trappings of the civil court but yet it cannot be called a civil court. 141 On the strength
of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission
or Forum under the provisions of the CP Act to entertain any complaint so it makes clear that
the remedies under RERA to allottees were intended to be additional and not exclusive
remedies.

(ii) It provides an option to complainant to seek alternate remedy.

[¶33] The objects and reasons and scheme of 1986 Act is to provide for better protection of
the interest of the consumer and for that purpose to provide for better redressal, mechanism
through which cheaper, easier, expeditious and effective redressal is made available to
consumers. To serve purpose, quasi-judicial forums are set up at district, State and national
level with wide range of powers vested in them. These quasi-judicial forums, observing the
principles of natural justice, are empowered to give relief of a specific nature and to award,
wherever appropriate, compensation to the consumers and to impose penalties for
noncompliance with their orders.142

[¶34] As per Section 3 of Act provisions shall be in addition to and not in derogation of any
other provisions of any other law for time being in force. Scheme and purpose of Act sought
to protect interest of consumers better, provisions are to be interpreted broadly, positively
and purposefully in context of present case to give meaning to extended jurisdiction,
particularly when Section 3 seeks to provide remedy under the Act in addition to other
remedies provided under other Acts unless there is clear bar.143 In Pioneer Urban Land and
Infrastructure Limited vs. Union of India144, the bench has said that RERA is not in
derogation to any statute. Because of the presence of a Section like Section 88 of RERA
contained in the Recovery Act, which makes it clear that the Act is meant to be in addition to
and not in derogation of other statutes.145

(C) The act RERA should be read harmoniously with the CP Act.

[¶35] Section 100 of CP Act is enacted with intent to secure remedies under 2019 Act
dealing with protection of interests of Consumers, even after RERA Act was brought into
141
Malay Kumar Ganguli v. Dr. Sukumar Mukherjee, 9 S.C.C. 221 (2009); Bharat Bank Ltd. v. Employees,
S.C.R. 459 (1950); Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corp., 6 S.C.C. 635
(2009).
142
Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Ors., 1 S.C.C. 305 (2004).
143
Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors., S.C.C. 14 (2021).
144
Pioneer Urban Land and Infrastructure Limited v. Union of India, 8 S.C.C. 416 (2019).
145
KSL & Industries Case, B.C. 500 (2005).

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146
force. It is duty of Judicial Department if two laws conflict, Courts must decide on
operation of each.147 RERA is to be read harmoniously with the Code remedies that are given
to allottees of are therefore concurrent remedies, such allottees of being in a position to avail
of remedies under the CP Act, 1986, RERA as well as the triggering of the Insolvency and
Bankruptcy Code.148

[¶36] The intention of the Legislature must be found by reading the statute as a whole. 149
Every clause of a statute should be construed with reference to the context and other clauses
of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or
series of statutes relating to the subject-matter”.150

[¶37] Also, proviso to Section 71(1) of the RERA Act entitles a complainant who had
initiated proceedings under the CP Act before the RERA Act came into force, to withdraw
the proceedings under CP Act with permission of the Forum or Commission and file an
appropriate application before adjudicating officer under the RERA Act.

[¶38] The proviso thus gives a right or option to concerned complainant but does not
statutorily force him to withdraw such complaint nor do the provisions of the RERA Act
create any mechanism for transfer of such pending proceedings to authorities under RERA
Act.151 In Ajay Nagpal vs. Today Homes & Infrastructure Pvt Ltd" 152 National Consumer
Disputes Redressal Commission held that RERA Act does not bar filing of complaint under
CP Act 1986 against a builder/developer.

[¶39] It is necessary that legislature should be able to cure inadvertent defects in statutes or
their administration by making what has been aptly called 'small repairs'. 153 Hence, the
interplay of the Consumer Protection Act, the provisions of the Real Estate Regulation Act,
the balancing of the interests of the allottees in the sense of the optimal securing of the stake
of the allottees in the continuance of the real estate project itself would only strengthen the
classification further in regard to allottees.

146
Imperia Structures Ltd. v. Anil Patni and Ors., S.C.C. 3590 (2020).
147
Marbury v. Madison, 2 L Ed 60: 5 US (1) Crunch 137 (1803).
148
Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Anr., 8 S.C.C. 416 (2019).
149
Philips India Ltd. v. Labour Court, 3 S.C.C. 103 (1985).
150
Canada Sugar Refining Co. v. R., A.C. 735 (1898).
151
Imperia Structures Ltd. v. Anil Patni and Ors., S.C.C. 3590 (2020).
152
Ajay Nagpal v. Today Homes & Infrastructure Pvt Ltd., 5 S.C.C. 855 (2020).
153
Vol. 73, Harvard Law Review, p. 692.

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Hence, it is submitted that the Remedies available in RERA and CP Act are concurrent
remedies and are in addition and not in derogation with each other so, it must be declared
that they are not in conflict with each other.

4. WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN

RERA?

[¶40] It is humbly contended that the word ‘allottees’ enshrined under RERA is not arbitrary.
The Respondent seeks to establish that; (A) Under Inclusiveness and Over Inclusiveness, (B)
It is in accordance with Intention of Legislature and (C) Classification is Justifiable as (i)
There is an intelligible differentia in the classification, (ii) There is a reasonable nexus to the
object, (iii) State needs to act in accordance to social need of hour as it fulfils doctrine of
necessity and (iv) Classification is not Disproportionate.

(A) Under Inclusiveness and Over Inclusiveness

[¶41] Definition of 'allottee' suffers from over inclusiveness and under inclusiveness needs to
be considered.154 Under inclusiveness and over inclusiveness are aspects of the guarantee
Under Article 14. Unequals must not be treated equally. 155 In State of Gujarat and Anr. v.
Shree Ambica Mills Ltd.,156 this Court has laid down certain principles relating to under
inclusive and over inclusive classification. The definition of word 'allottee' 157 appears to be
split up into three categories broadly, they are-plot, apartment and buildings. Allottees can
present application in section 7158 on either of grounds. In Competition Commission of India
v. Bharti Airtel Limited and Ors.,159 All these arguments were really made based on the
presumption that some allottees who may now want to back out of the transaction and get a
return of their money owing to factors which may be endemic to them, would then be able to
trigger the Code mala fide, and a reading down of these provisions would, therefore, obviate
such problem.

[¶42] Here the word ‘whichever’ has been used. That is to say in the context of one-tenth of
the allottees, the greater the number of total numbers of allottees, the greater will be the
number of one-tenth. In other words, if the total number of allottees is less, then, one-tenth of

154
Mudassar Builders and Developers v. Union of India and Ors., 2 S.C.C. 232 (2017).
155
Vijay Lakshmi vs Punjab University and Others, 1 S.C.C. 817 (2003).
156
State of Gujarat and Anr. v. Shree Ambica Mills Ltd., 4 S.C.C. 656 (1974).
157
RERA Act, S. 2(d).
158
IBC Act, S. 7.
159
Competition Commission of India v. Bharti Airtel Limited and Ors., 2 S.C.C. 521 (2019).

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the total number will be less, and if in such circumstances, it is lesser than hundred, such
number of allottees can make application Under Section 7 under the impugned provisos.
Therefore, in calculating the total number of allottees in one sense is a double-edged sword
as the more is the numerator, the more will be the resultant figure required under the proviso.
Additionally, this hon’ble Court in Rajahmundry Electric Supply Corporation Ltd. v. A.
Nageshwara Rao and Ors.,160 clearly stated that no application could be made by any
member, in the case of a company having a share capital unless the member has obtained
consent, in writing, of not less than one hundred in number of the members of the company
or not less than one-tenth in number of the members, whichever is less and is not violating of
Art.14.

(B) It is in accordance with Intention of Legislature

[¶43] The intention of the Legislature must be found by reading the statute as a whole. 161 In
State of Bihar v. Kameshwar Singh,162 this Court held that: "52.......The legislature is the best
judge of what is good for the community, by whose suffrage it comes into existence". This
rule is referred to as an “elementary rule” by Viscount Simonds,; a “compelling rule” by
Lord Somervell in the case of AG v. HRH Prince Ernest Augustus,163 and a “settled rule” by
B.K. Mukherjee, J. in the case of Poppatlal Shah v. State of Madras,164 In the case of O.P.
Singla v. Union of India,165 hon’ble Chandrachud, C.J.I., as his Lordship then was, observed
that: “one must have regard to the scheme of the fasciculus of the relevant rules or sections in
order to determine the true meaning of any one or more of them.

[¶44] An isolated consideration of a provision leads to the risk of some other interrelated
provision becoming otiose or devoid of meaning. In the case of Prakash and Ors. v.
Phulavati and ors.,166 in para 19, the Apex Court observed thus: - “19. Interpretation of a
provision depends on text and context. It is a rule now firmly established that the intention of

160
Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao and Ors., A.I.R. 213 (S.C. 1956).
161
Philips India Ltd. v. Labour Court, 3 S.C.C. 103 (1985); See also., Canada Sugar Refining Co. v. R, A.C.
735 (1898); Queen v. Eduljee Byramjee, 3 MIA 468 (1846); Newspapers Ltd. v. Industrial Tribunal, U.P.,
A.I.R. 1957 S.C. 532 (S.C. 1957); State of W.B. v. Union of India, A.I.R. 1241 (S.C. 1963); Punjab Beverages
Pvt. Ltd. v. Suresh Chand, 2 S.C.C. 144 (1978); Nathi Devi v. Radha Devi Gupta, A.I.R. 648 (S.C. 2005).
162
State of Bihar v. Kameshwar Singh, A.I.R. 252 (S.C. 1952).
163
AG v. HRH Prince Ernest Augustus, 1 ALL ER 49 (1957).
164
Poppatlal Shah v. State of Madras, A.I.R. 274 (S.C. 1953).
165
O.P. Singla v. Union of India, 4 S.C.C. 450 (1984).
166
Prakash and Ors. v. Phulavati and ors., 1 S.C.C. 549 (2016)

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the Legislature must be found by reading the statute as a whole i.e., “ex visceribus actus”.167
It must compare the clause with the other parts.168

[¶45] The doctrine of reading down or of recasting the statute can be applied in limited
situations. It is essentially used, firstly, for saving a statute from being struck down on
account of its unconstitutionality. It is an extension of the principle that when two
interpretations are possible--one rendering it constitutional and the other making it
unconstitutional, the former should be preferred.169 In the case of Collector of Customs v.
Nathella Sampathu Chetty,170 this hon’ble court clearly stated that the intent of Parliament
shall not be defeated merely for the reason that it may operate a bit harshly on a small
Section of public where it may be necessary to make such provisions of achieving the desired
objectives.

[¶46] Allottees, being individual financial creditors like debenture holders and fixed deposit
holders and classified as such, show that they within the larger class of financial creditors,
there being no infraction of Article 14 on this score. 171 Furthermore, in the case of Bharat
Raichand Shah and Ors. v. Runwal Constructions and Ors.172, this hon’ble court stated that
the RERA has been framed in larger public interest after a thorough study and discussion
made at highest level by Standing Committee and Select Committee, which submitted its
detailed reports.

(C) Classification is justifiable

[¶47] The classification must satisfy two conditions, (i) it is founded on an intelligible
differentia which distinguishes those that are grouped together from others; and (ii) the
differentia must have a rational relation to object sought to be achieved. 173 If there is equality
and uniformity within each group, the law will not be condemned as discriminative, though
due to some fortuitous circumstance arising out of a peculiar situation some included in a
class get an advantage over others, so long as they are not singled out for special treatment.174

(i) There is an intelligible differentia in the classification

167
Poppatlal Shah v. State of Madras, A.I.R. 274 (S.C. 1953).
168
State of W.B. v. Union of India, A.I.R. 1241 (S.C. 1963); Queen v. Eduljee Byramjee, 3 MIA 468 (1846);
Re, Bidie (deceased), 2 ALL ER 995 (1948).
169
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1 Suppl. S.C.C. 600 (1991).
170
Collector of Customs v. Nathella Sampathu Chetty, 3 S.C.R. 786 (1962), pp. 829-30.
171
Collector of Customs v. Nathella Sampathu Chetty, A.I.R. 316 (S.C. 1962).
172
Bharat Raichand Shah and Ors. v. Runwal Constructions and Ors., S.C.C. 232 (2018)
173
Re, Special Courts Bill, 2 S.C.R. 476 (1979), p. 534-36.
174
Khandige Sham Bhat v. Agricultural I.T.O., A.I.R. 591 (S.C. 1963).

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[¶48] Intelligible differentia encompasses whether classification is rational and is capable of

being understood175 and basis of classification for judging validity of law can be gathered
from surrounding circumstances.176 Classification should base on intelligible differentia,
some real and substantial distinction, which distinguishes persons or things grouped together
in class from others left out of it.177 Equal treatment of unequal’s is not liable to struck down
discriminatory unless there is simultaneous absence of rational relation to object.178

[¶49] This Court has gone on to hold that only such allottee who has completely lost faith in
management would come Under Section 7 in hope that some other developer will take over
and complete project.179 Requirement would ensure that there is no needless multiplicity and
no single allottee would be able to achieve admission and its consequences without having a
certain minimum number of compatriots on board. Even vested right can be taken away by
the Legislature.180 A minimum threshold, authenticity and weightage to claim in a class
action.181

[¶50] In Casu, in instant case, it is brought principally to cure two ills. First, all the allottees
of same project can be clubbed before-hand for efficiency in hearings before Tribunal and
resolution process. Second, the legislature intends to bar applications by individual allottees
who with the provided liberty and access to the Tribunal, could single-handedly topple down
the existence of the real estate developer maliciously, despite, the entity being a going-
concern and in the hands of good management. This would consequentially revive and also
keep the real estate industry alive to the market needs.182 It is reasonable and logical to place
the threshold. The minimum threshold is a minimum requirement. The threshold is kept low
and reasonable. This Court has upheld sub-classification provided there is a rational basis.183

(ii) There is a reasonable nexus to the object

175
K. R. Lakshman v. Karnataka Electricity Board, 1 S.C.C. 442 (2001); State of Kerela v. N.M. Thomas, 2
S.C.C. 310 (1976).
176
Hanif Quareshi v. State of Bihar, A.I.R. 731 (S.C. 1958).
177
Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 873 (S.C. 1981).
178
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., 1 S.C.C. 642 (1996).
179
Manish Kumar vs. Union of India (UOI) and Ors., 2 S.C.C. 398 (2018).
180
Garikapatti Veeraya v. N. Subbiah Choudhary, S.C.R. 488 (1957).
181
J.P. Srivastava & Sons (P) Ltd. and Ors. v. Gwalior Sugar Co. Ltd. and Ors ., 1 S.C.C. 172 (2005); Anjum
Hussain and Ors. v. Intellicity Business Park Private Limited and Ors., 6 S.C.C. 519 (2019).
182
Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 8 S.C.C. 416 (2019), para 56.
183
Indra Sawhney and Ors. v. Union of India and Ors., 3 Supp. S.C.C. 217 (1992); Lord Krishna Sugar Mills
Limited and Anr. v. Union of India and Anr., 1 S.C.R. 39 (1960); State of Kerala and Anr. v. N.M. Thomas and
Ors., 2 S.C.C. 310 (1976); State of West Bengal and Anr. v. Rash Behari Sarkar and Anr., 1 S.C.C. 479 (1993);
State of Kerala v. Aravind Ramakant Modawdakar and Ors., 7 S.C.C. 400 (1999).

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[¶51] In Budhan Choudhry and Ors. v. The State of Bihar 184, it has been held by a 7-judge
bench of Hon’ble Court that Art. 14 prohibits class legislation but permits reasonable
classification. The same was held in Kumari Chitra Ghosh v. Union of India185 where 5 judge
benches of this Court have held that: “Para 9. ….. If the sources are properly classified
whether on territorial, geographical or other reasonable basis it is not for courts to interfere
with manner and method of making classification.” Classification must not be arbitrary but
scientific, and rest upon real and substantial distinction 186 between those covered and those
left out.187 The reasonableness of the restrictions is tested on basis that they must not be
arbitrary or of an excessive nature so as to go beyond requirement of interest of general
public.188 Classification is promotive of equality if its object is to bring those who share a
common characteristic under a class for differential treatment for sufficient and justifiable
reasons.189 In the case of Chitra Sharma and Ors. v. Union of India and Ors., 190 it was
observed that section 12 of CP Act also captures and embodies principle of Order 1 Rule 8
ensures the protection of class interest and also protect class interest without putting stiff
barriers as threshold limits.

(iii) State needs to act in accordance to social need of hour as it fulfils doctrine of
necessity

[¶52] Court should understand need of society, which legislature tries to satisfy, and the
judicial review of such legislation should be dynamic, pragmatic and elastic, examining
whether it satisfies need prevailing in society. 191 Doctrine of necessity is founded on
principle: “necessitas non habet legem” necessity knows no law which are found to be
constitutional even if such action would normally be deemed in contravention to established
norms or conventions.192

(iv) Classification is not Disproportionate

184
Budhan Choudhry and Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955); See also, Binoy Viswam vs. Union
of India (UOI) and Ors., A.I.R. 2967 (S.C. 2017); D.S. Nakara v. Union of India, 1 S.C.C. 305 (1983).
185
Kumari Chitra Ghosh v. Union of India, 2 S.C.C. 228 (1969).
186
Anuj Garg v. Hotel Association of India, 3 S.C.C. 1 (2008).
187
Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994).
188
M. R. F. Limited v. Inspector Kerala Govt. and Ors., 8 S.C.C. 227 (1998).
189
All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway , 2
S.C.R. 311 (1960); S.G. Jaisinghani v. Union of India and State of J & K. v. Triloki Nath Khosa, 1 S.C.R. 771
(1974); Indira Sawney v. Union of India, 3 Supp S.C.C. 217 (1992)
190
Chitra Sharma and Ors. v. UOI and Ors., 18 S.C.C. 575 (2018); See also., Ram Krishna Dalmia v. Justice
S.R. Tendolkar, A.I.R. 1958 S.C. 538; Budhan Chodhry v. State of Bihar, A.I.R. 191 (S.C. 1955).
191
Papnasam Labour Union v. Madura Coats Ltd., A.I.R. 2200 (S.C. 1995).
192
Ambica Construction v. Union of India, 13 S.C.C. 475 (2007).

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[¶53] The classical definition of proportionality has been given by Lord Diplock when his
Lordship rather ponderously stated “you must not use a steam hammer to crack a nut if a nut
cracker would do”.193 M. Jaganatha Rao J. rightly points out, the court may still look into
whether the choice made, infringes the rights excessively or not. 194 Traditionally the Indian
Supreme Court has applied a single standard of review – reasonableness – to examine
violations of Article 14. A similar attempt towards mere semantic change can be seen in Om
Kumar v. Union of India.195 Thus proportionality broadly requires that government action
must be no more intrusive than is necessary to meet an important public purpose. 196 In Casu,
the word Allottees under RERA is not Disproportionate and is reasonable, not arbitrary.

Hence, it is humbly submitted that word ‘allottees’ enshrined under RERA is not arbitrary.

5. WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED

BY MR. ASHOK?

[¶54] It is humbly contended that Kaza Poryo is liable to refund the amount invested by Mr.
Ashok. The respondent seeks to establish that; (A) Mr. Ashok is duly authorised to take the
refund under the enumerated provision of RERA Act, (B) The promoter is obliged to refund
the principal amount after deducting the interest, (C) There was vitiation of contract.

(A) Mr. Ashok is duly authorised to take the refund under the enumerated provision of
RERA Act

[¶55] Real Estate (Regulation and Development) Act clearly empowers a homebuyer to take
legal action or seek redressal in scenario of the builder/promoter/agent has presented false
information to the regulator or contravenes any provisions of the Act or the builder/promoter
fails to deliver the project within the scheduled timeline. 197 RERA also specifies that if a
buyer wishes to cancel the booking, the developer will have to refund the amount, along with
interest, within 90 days. This provision safeguards buyers from inordinate delays in
refunding process.

[¶56] Certain provision such as section 19(4) of the act explicitly states that “The allottee
shall be entitled to claim the refund of amount paid along with interest at such rate as may be

193
R v. Goldsmith, 1 WLR 151, 155 (1983).
194
Mardia Chemicals Ltd. v. Union of India, 4 S.C.C. 311,354 (2004).
195
Om Kumar v. Union of India, 2 S.C.C. 386 (2001).
196
Coimbatore District Central Coop. Bank v. Employees Assn, 4 S.C.C. 669 (2007).
197
Suresh v. Swamy v. L&T Limited, 4 A.D.J. 406 (2018).

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prescribed and compensation in the manner as provided under this Act, from the promoter, if
the promoter fails to comply or is unable to give possession of the apartment, plot or
building, as the case may be, in accordance with the terms of agreement for sale or due to
discontinuance of his business as a developer on account of suspension or revocation of his
registration under the provisions of this Act or the rules or regulations made there under.”
Additionally, section 7 of the act talks about the revocation of registration by the authority
particularly on the ground of false representation or fraudulent practice by the promoter. In
the instant case promoter demanded higher amount for the apartment as compare to the
actual one or initially agreed.198

(B) The promoter is obliged to refund the principal amount after deducting the interest

[¶57] A homebuyer may withdraw from purchase agreement for varied reasons. Provisions
of the Act thus have to be construed in favour of consumer to achieve purpose of enactment
as it is social benefit-oriented legislation. The primary duty of court while construing the
provisions of such an Act is to adopt a constructive approach subject to that it should not do
violence to the language of the provisions and is not contrary to the attempted objective of
the enactment.199 Earnest money is part of the purchase price when the transaction goes
forward; it is forfeited when the transaction falls through, by reason of the fault or failure of
the vendee.200

[¶58] It is forfeited when the transaction falls through by reason of the default or failure of
the purchaser.201 Furthermore, as per section 13(1) of RERA Act which states that “A
promoter shall not accept a sum more than ten per cent of the cost of the apartment, plot, or
building as the case may be, as an advance payment or an application fee, from a person
without first entering into a written agreement for sale with such person and register the said
agreement for sale, under any law for the time being in force.” In Casu, in the instant case
KAZA PORYO has accepted more than ten per cent of the cost of the apartment as advance
payment i.e., Rs 50,000,000 that amounts to fifty per cent of total amount.202

(C) There was vitiation of contract

198
¶ 9, Moot Proposition.
199
Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors., S.C.C. 14 (2021).
200
Maula Bux v. Union of India, 2 S.C.C. 554 (1969); Kunwar Chiranjit Singh v. Har Swarup, A.I.R. 1 (P.C.
1926).
201
Vol. II, Borrows, in Words & Phrases.
202
¶ 8, Moot Proposition.

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[¶59] The party whose consent was so caused, if they think fit, have the option to vitiate the
contract due to the virtue of it becoming voidable.203 It is contended that the Contract has
been vitiated because important information was withheld which amounts to fraud under the
ICA.204It is submitted that fraud is a collateral act which even vitiates most solemn
proceedings of courts of justice.205 It has already been established that where a contract is
vitiated as being contrary to public policy, the party adversely affected by it can sue to have
it declared void.206

[¶60] A contract which is entered into a result of fraud is voidable. Party so deceived has
right to revoke same and recover damages from other party. Freedom of contract is
reasonable social ideal only to extent that equality of bargaining power between contracting
parties can assumed and no injury is done to economic interest of community at large." 207
Doctrine of frustration of contract is really aspect of law of discharge of contract by reason of
supervening impossibility or illegality of the act agreed to be done and comes Section 56 of
ICA which lays down a rule of positive law and does not leave matter to be determined
according to intention of parties.208

[¶62] If the performance of a contract becomes impracticable or useless having regard to the
object and purpose the parties had in view then it must be held that the performance of the
contract has become impossible. But the supervening events should take away the basis of
the contract and it should be of such a character that it strikes at the root of the contract. 209
The performance of the contract becomes physically impossible because of the disappearance
of the subject-matter. But the principle is not confined to physical impossibilities. It extends
also to cases where the performance of the contract is physically impossible, but the object
the parties had in mind has failed to materialize.210 

[¶63] If an untoward event or change of circumstances totally upsets the very foundation
upon which the parties rested their bargain, it can very well be said that the promisor finds it
impossible to do the act which he promises to do. 211 It is clear that if there is entirely
unanticipated change of circumstances question will have to be considered whether this
203
The Indian Contract Act, Ss. 64 and 2(j).
204
The Indian Contract Act, S. 17(2).
205
R v. Duchess of Kingston 2 smith, 1 Leach 146 (1776).
206
Assistant General Manager and Ors. vs. Radhey Shyam Pandey, 1 S.C.C. 252 (2020).
207
Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., 1 Supp S.C.C. 600 (1991).
208
Sri Ram Builders v. State of M.P. and Ors., 9 S.C.C. 211 (2014).
209
Satyabrata Ghose v. Mugneeram Bangur and Co., S.C.R. 310 (1954).
210
Taylor v. Caldwell, 3 B&S 826 (1863).
211
Satyabrata Ghose v. Mugneeram Bangur & Co, krell v. Henry, 2 K.B. 740 (C.A. 1903).

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change of circumstances has affected performance of contract to such an extent as to make it

virtually impossible or extremely difficult or hazardous. If that be case, change of
circumstances not having been brought about by fault of either party, courts will not enforce
contract.212 When this occurs, parties are released from their obligation to perform contract
automatically.

[¶64] If further fulfilment of the contract is brought to an abrupt stop by some irresistible and
extraneous cause for which neither party is responsible, the contract shall terminate forthwith
and the parties be discharged.213 In Pawan Dubey v. J.B.K. Developer214 the NCLT refused to
consider a ‘delay’ as a default and stated that allottees could only seek relief as financial creditors
if there was a failure in the timely payment. In arguendo, the allottee shall have the right to
cancel/withdraw his allotment in the project as provided in the Act, provided that where the
allottee proposes to cancel/withdraw from the project without any fault of promoter,
promoter herein is entitled to forfeit booking amount paid for allotment. Balance amount of
money paid by allottee shall be returned by promoter to allottee after such cancellation.”

Hence, it is humbly submitted that Kaza Poryo is liable to refund the amount invested by Mr.
Ashok as promoter is obliged to refund the principal amount and Ashok is duly empowered
to take refund under provision of RERA and Contract Act.

PRAYER

It is hereinafter humbly prayed before the Hon’ble Supreme Court of India that in the light of
issue raised, argument advanced, authorities cited and pleadings made, the Hon’ble Court
may be pleased to adjudge and declare:

1. That, the instant writ petition is not maintainable.

2. That, the word Allottees as Financial Creditor is in consonance with Article 14, 19, 21
and 300-A of the Constitution.
3. That, RERA Act, 2016 and CP Act, 2019 are not in conflict with each other.
4. That, the word Allottee is not Arbitrary under RERA Act.
5. That, Kaza Poryo is liable to refund the amount invested by Mr. Ashok.

OR / OTHERWISE
212
Pameshwari Das Mehra v. Ram Chand Om Prakash, 5 S.C.C. 417 (2014).
213
Dhruv Dev Chand v. Harmohinder Singh and Ors., 3 S.C.R. 339 (1968).
214
Pawan Dubey v. J.B.K. Developers, SCC Online NCLT 794 (2018).

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PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY
DEEM FIT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD
CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE COUNSELS SHALL FOREVER PRAY.

Sd/-

(Counsel for the Respondents)

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