2021 SCC Online SC 1044 in The Supreme Court of India: Versus

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.
Page 1 Friday, December 10, 2021

Printed For: Mr. Narendar Naik
SCC Online Web Edition: http://www.scconline.com
© 2021 EBC Publishing Pvt.Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2021 SCC OnLine SC 1044
In the Supreme Court of India

(BEFORE UDAY U. LALIT, AJAY RASTOGI AND ANIRUDDHA BOSE, JJ.)
Civil Appeal No(s). 6745 - 6749 of 2021

(Arising out of SLP (Civil) No(s). 3711-3715 of 2021)
Newtech Promoters and Developers Pvt. Ltd. … Appellant(s);
Versus
State of UP and Others … Respondent(s).
With
Civil Appeal No(s). 6750 of 2021
(Arising out of SLP(Civil) No(s). 14733 of 2020)
(Arising out of SLP (Civil) No(s). 2647 of 2021)
(Arising out of SLP (Civil) No(s). 3185 of 2021)
Civil Appeal No(s). 6745 - 6749 of 2021 (Arising out of SLP (Civil) No(s). 3711-
3715 of 2021), Civil Appeal No(s). 6750 of 2021 (Arising out of SLP(Civil) No(s).
14733 of 2020), Civil Appeal No(s). 6751 of 2021 (Arising out of SLP (Civil) No(s).
2647 of 2021), Civil Appeal No(s). 6752 of 2021 (Arising out of SLP (Civil) No(s).
6711 of 2021) and Civil Appeal No(s). 6757 of 2021 (Arising out of SLP (Civil) No
(s). 1670 of 2021)
Decided on November 11, 2021
The Judgment of the Court was delivered by
AJAY RASTOGI, J.:— Leave granted.
2. The present batch of appeals are filed at the instance of promoter/real estate
developer assailing the common issues and certain provisions of The Real Estate
(Regulation and Development) Act, 2016 (hereinafter being referred to as “the Act”),
The Uttar Pradesh Real Estate(Regulation and Development) Rules, 2016 (hereinafter
referred to as “the Rules”) and the functioning of the Uttar Pradesh Real Estate
Regulatory Authority (hereinafter referred to as “the Authority”), although being
decided by separate orders by the High Court of Allahabad, since the self-same
questions are involved with the consent are being decided by the present judgment.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
3. The respondents herein are the allottees/home buyers who have made their
substantial investment from their hard earned savings under the belief that the
promotor/real estate developer will hand over possession of the unit in terms of home
buyer's agreement but their bonafide belief stood shaken when the promotors failed to
hand over possession of a unit/plot/building in terms of the agreement and complaints
were instituted by the home buyers for refund of the investment made along with
interest under Section 31 of the Act.
4. The impugned orders came to be passed by the single member of the authority
on the complaint instituted at the instance of the home buyers/allottees after hearing
the parties with the direction to refund the principal amount along with interest(MCLR
+ 1%) as prescribed by the State Government under the Act. In the ordinary course of
business, the order passed by the authority is appealable under Section 43(5) of the
Act provided the statutory compliance of pre-deposit being made under proviso to
Section 43(5) before the Appellate Tribunal but the promoter/real estate developers
approached the High Court by filing a writ petition under Articles 226 and 227 of the
Constitution questioning the order passed by the authority holding it to be without
jurisdiction as it has been passed by a single member of the authority who according
to the appellants holds no jurisdiction to pass such orders of refund of the amount as
contemplated under Section 18 of the Act and have also challenged the condition of
pre-deposit as envisaged under proviso to Section 43(5) of the Act for filing of a
statutory appeal and raised certain ancillary questions for consideration in writ
jurisdiction of the High Court of Allahabad. Being aggrieved by the orders passed by
the High Court dismissing their writ petitions, the present batch of appeals have been
preferred at the instance of the promoters/real estate developers.
5. Before adverting to the legal submissions made before us, we consider it
appropriate to take a bird's-eye view of the scheme of the Act 2016 which may be
apposite for proper appreciation of the submissions made by the parties.
Object and Reasons of the Act 2016
6. Over the past two decades, with the growth of population and the attraction of
the people to shift towards urbanization, the demand for housing increased manifold.
Government also introduced various housing schemes to cope with the increasing
demand but the experience shows that demands of the housing sector could not be
meted out by the Government at its own level for various reasons to meet the
requirement, the private players entered into the real estate sector in meeting out the
rising demand of housing. Though availability of loans, both from public and private
banks, become easier, still the High rate of interest and the EMI has posed additional
financial burden on the people.
7. At the given time, the real estate and housing sector was largely unregulated
and the consequence was that consumers were unable to procure complete
information for enforced accountability towards builders and developers in the absence
of an effective mechanism in place. Though, The Consumer Protection Act, 1986 was
available to cater the demand of home buyers in the real estate sector but the
experience shows that this mechanism was inadequate to address the needs of the
home buyers and promoters in the real estate sector.
8. At this juncture, the need for Real Estate(Regulation) Bill was badly felt for
establishing an oversight mechanism to enforce accountability to the real estate sector
and providing an adjudicating machinery for speedy dispute redressal mechanism and
safeguarding the investments made by the home buyers through legislation to the
extent permissible under the law.
9. The statement of object and reasons of the Act indicates that the primal position
of the regulatory authority is to regulate the real estate sector having jurisdiction to
ensure compliance with the obligation cast upon the promoters. The opening
-----------------------------------------------------------------------------------------------------------------------------------------------------------
statement of objects and reasons which has a material bearing on the subject reads as
follows:—
“The real estate sector plays a catalytic role in fulfilling the need and demand for
housing and infrastructure in the country. While this sector has grown significantly
in recent years, it has been largely unregulated, with absence of professionalism
and standardisation and lack of adequate consumer protection. Though the
Consumer Protection Act, 1986 is available as a forum to the buyers in the real
estate market, the recourse is only curative and is not adequate to address all the
concerns of buyers and promoters in that sector. The lack of standardisation, has
been a constraint to the healthy and orderly growth of industry. Therefore, the need
to regulating the sector has been emphasised in various forums.
2. In view of the above, it becomes necessary to have a Central legislation,
namely, the Real Estate (Regulation and Development) Bill, 2013, in the interest of
the effective consumer protection, uniformity and standardisation of business
practices and transactions in the real estate sector. The proposed Bill provides for
the establishment of the Real estate Regulatory Authority (the Authority) for
regulation and promotion of real estate sector and to ensure sale of plot, apartment
or building, as the case may be, in an efficient and transparent manner and to
protect the interest of consumers in real estate sector and establish the Real Estate
Appellate Tribunal to hear appeals from the decisions, directions or orders of the
Authority.”
10. It was introduced with an object to ensure greater accountability towards
consumers, to significantly reduce frauds & delays and also the current high
transaction costs, and to balance the interests of consumers and promoters by
imposing certain responsibilities on both, and to bring transparency of the contractual
conditions, set minimum standards of accountability and a fast-track dispute
resolution mechanism. It also proposes to induct professionalism and standardization
in the sector, thus paving the way for accelerated growth and investments in the long
run.
11. Some of the relevant Statement of Objects and Reasons are extracted as under:
—
“4…
(d) to impose liability upon the promoter to pay such compensation to the
allottees, in the manner as provided under the proposed legislation, in case if he
fails to discharge any obligations imposed on him under the proposed legislation;
(f) the functions of the Authority shall, inter alia, include - (i) to render advice to
the appropriate Government in matters relating to the development of real estate
sector; (ii) to publish and maintain a website of records of all real estate projects
for which registration has been given, with such details as may be prescribed; (iii)
to ensure compliance of the obligations cast upon the promoters, the allotees and
the real estate agents under the proposed legislation.
…
(i) to appoint an adjudicating officer by the Authority for adjudging
compensation under sections 12, 14 and 16 of the proposed legislation.
…”
12. The Bill provides for establishment of the authority for regulation and promotion
of real estate sector, to ensure sale of plot, apartment or building or sale of real estate
project in an efficient and transparent manner and to protect the interest of consumers
in the real estate sector and provide the adjudicating mechanism for speedy dispute
redressal mechanism by establishing the regulatory authority and the adjudicating
officer and in hierarchy, the Appellate Tribunal for early and prompt disposal of the
complaint being instituted primarily by the home buyers for whom this Act has been
-----------------------------------------------------------------------------------------------------------------------------------------------------------
enacted by the Parliament in 2016.

13. To examine the matter in this perspective, consider what a house means in
India. The data shows that about more than 77% of total assets of an average Indian
household are held in real estate and it's the single largest investment of an individual
in his lifetime. The real estate in India has a peculiar feature. The buyer borrows
money to pay for a house and simultaneously plays the role of a financer as building
projects collect money upfront and this puts the buyer in a very vulnerable position-
the weakest stakeholder with a high financial exposure. The amendment to the
Insolvency and Bankruptcy Code, 2018 recognised the home buyers as financial
creditors and the present enactment is the most important regulatory intervention in
favour of the home buyers and it's had an impact and with passage of time, has
become a yardstick of laying down minimum standards in the market. Earlier, the real
estate sector was completely unregulated and there was no transparency in their
business profile and after the present enactment, it is open for the potential home
buyers to check if a project is approved under the Act, 2016 that at least gives a
satisfaction to a person who is coming forward in making a lifetime investment.
14. That apart from the project being statutorily regulated, it attaches certain
authenticity with regard to completion of the project and a statutory obligation upon
the developer and home buyer to abide by the terms and conditions of the home
buyers agreement and statutory compliance to the mandate of law. In addition, any
project which is approved under the Act, 2016 helps the promoter in raising funds
from banks and statistics shows that buyers express their satisfaction in approved
projects which is beneficial not only to the home buyers but to the promoters and real
estate agents as well.
15. Chapter II of the Act relates to the registration of real estate projects. Section 3
mandates prior registration of real estate projects including ongoing projects with the
Real Estate Regulatory Authority. Section 4 prescribes the ingredients of application by
the promotor for registration of real estate projects. In particular, the promotor is
required to state in the application under subsection 2(L)(c) of Section 4, the timelines
for completion of the project. Section 5 relates to the grant of registration by the
authority and inter alia states that no application shall be rejected unless the applicant
has been given an opportunity of being heard in the matter. As per Section 5(3) of the
Act, the registration is co-terminus with the completion of the project. Under Section
6, the authority can extend registration based on the facts of each case or the
occurrence of the force majeure. Section 7 pertains to revocation of registration. As per
Section 8, the authority is under obligation to inter alia carry out the remaining
development work where there is lapse or revocation of the registration.
16. Chapter III lays down, ‘functions and duties of promotor’ which is relevant for
the purpose of the present case. Section 11 thereof elaborates on the functions and
duties of the promoters. Under sub-Section (4) of Section 11, several obligations have
been casted upon the promoters. Under sub-section (5) of Section 11, the promoter
may cancel the allotment if the allottee/home buyer commits any breach of the terms
of the agreement for sale, and in such case, the aggrieved allottee has the right to
approach the authority.
17. Section 12 provides that if any default being committed by the promoter, either
in reference to the information contained in the notice, advertisement or prospectus or
on the basis of the model apartment, plot or building which causes any loss or damage
to the allottee/home buyer by reason of any incorrect or false statement or wants to
withdraw from the project, he shall be compensated by the promoter in the manner as
prescribed under the Act.
18. Section 14 relates to adherence to Sanctioned Plans & Project specification by
the promoters and Section 14(3) empowers the allottee to receive compensation in the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
event where there is any structural defect.

19. Section 18(1) of the Act spells out the consequences if the promoter fails to
complete or is unable to give possession of an apartment, plot or building either in
terms of the agreement for sale or to complete the project by the date specified
therein or on account of discontinuance of his business as a developer either on
account of suspension or revocation of the registration under the Act or for any other
reason, the allottee/home buyer holds an unqualified right to seek refund of the
amount with interest at such rate as may be prescribed in this behalf.
20. Section 18(2) of the Act mandates that in case, loss is caused to allottee due to
defective title of the land, on which the project is being developed or has been
developed, the promoter shall compensate the allottee and such claim for
compensation under Section 18(2) shall not be barred by limitation provided under
any law for the time being in force.
21. Section 18(3) of the Act states that where the promoter fails to discharge any
other obligation under the Act or the rules or regulations framed thereunder or in
accordance with the terms and conditions of the agreement for sale, the promoter
shall be liable to pay ‘such compensation’ to the allottees, in the manner as prescribed
under the Act.
22. If we take a conjoint reading of sub-sections (1), (2) and (3) of Section 18 of
the Act, the different contingencies spelt out therein, (A) the allottee can either seek
refund of the amount by withdrawing from the project; (B) such refund could be made
together with interest as may be prescribed; (C) in addition, can also claim
compensation payable under Sections 18(2) and 18(3) of the Act; (D) the allottee has
the liberty, if he does not intend to withdraw from the project, will be required to be
paid interest by the promoter for every months' delay in handing over possession at
such rates as may be prescribed.
23. Correspondingly, Section 19 of the Act spells out “Rights and duties of
allottees”. Section 19(3) makes the allottee entitled to claim possession of the
apartment, plot or building, as the case may be. Section 19(4) provides that if the
promoter fails to comply or being unable to give possession of the apartment, plot or
building in terms of the agreement, it makes the allottees entitled to claim the refund
of amount paid along with interest and compensation in the manner prescribed under
the Act.
24. Section 19(4) is almost a mirror provision to Section 18(1) of the Act. Both
these provisions recognize right of an allottee two distinct remedies, viz, refund of the
amount together with interest or interest for delayed handing over of possession and
compensation.
25. The unqualified right of the allottee to seek refund referred under Section 18(1)
(a) and Section 19(4) of the Act is not dependent on any contingencies or stipulations
thereof. It appears that the legislature has consciously provided this right of refund on
demand as an unconditional absolute right to the allottee, if the promoter fails to give
possession of the apartment, plot or building within the time stipulated under the
terms of the agreement regardless of unforeseen events or stay orders of the
Court/Tribunal, which is in either way not attributable to the allottee/home buyer, the
promoter is under an obligation to refund the amount on demand with interest at the
rate prescribed by the State Government including compensation in the manner
provided under the Act with the proviso that if the allottee does not wish to withdraw
from the project, he shall be entitled for interest for the period of delay till handing
over possession at the rate prescribed.
26. If we turn to the power of the authority, it envisages under Section 31, the
complaints can be filed either with the authority or adjudicating officer for violation or
contravention of the provisions of the Act or the rules and regulations framed
-----------------------------------------------------------------------------------------------------------------------------------------------------------
thereunder. Such complaint can be filed against “any promoter, allottee or real estate
agent”, as the case may be, and can be filed by “any aggrieved person”, and it has to
be read with an explanation, “person” includes an association of allottees or any
voluntary consumer association registered under any law for the time being in force.
The form and manner in which complaint is to be instituted has been provided under
sub-section(2) of Section 31.
27. Section 32 refers to functions of the authority for promotion of real estate sector
and Sections 34 to 38 of the Act recognize different nature of powers and functions of
the authority regarding compliance of its regulations cast upon the promoters, allottee
or the real estate agents and to appoint one or more persons to make an inquiry into
the affairs of any promoter, allottee or the real estate agent and to pass any interim
orders, if the promoter, allottee or real estate agent is failing in discharging of its
functions under the Act, rules or regulations, and to issue directions from time to time
to the promoter, allottee or real estate agents, if considered necessary can impose
penalty or interest if failed to carry out its obligations.
28. At the same time, Chapter VIII of the Act talks about offences, penalties and
adjudication. Various kinds of penalties are set out in Sections 59 to 68. Each of these
provisions clearly states that the penalty thereunder is required to be determined by
the authority.
29. We are concerned with Section 71 of the Act titled ‘power to adjudicate’ which
is specific to the adjudicating officer. Subsection(1) of Section 71 opens with the
words “for the purpose of adjudging compensation under Sections 12, 14, 18 and 19”,
the Authority has to appoint in consultation with the appropriate Government, a
judicial officer not below the rank of the District Judge, as an adjudicating officer, to
hold inquiry in the prescribed manner after giving a person concerned a reasonable
opportunity of hearing. At the same time, sub-section (2) casts an obligation upon the
adjudicating officer that while adjudging compensation under sub-section (1), the
application has to be dealt with expeditiously as possible and to be disposed of within
60 days. If there is a delay being caused exceeding the statutory period of 60 days, in
disposal of the application, reasons are to be recorded for extension of the period.
30. Under sub-section (3) of Section 71, the adjudicating officer has been
empowered not only to summon and enforce the attendance of persons acquainted
with the facts and circumstances of the case to give evidence or to produce any
document which may be useful and relevant for adjudication, is supposed to take note
of the various parameters as referred to under Section 72 which still is illustrative and
not exhaustive while adjudging the quantum of compensation payable to the person
aggrieved and interest, as the case may be.
31. After we have heard learned counsel for the parties at length, the following
questions emerges for our consideration in the present batch of appeals are as under:
—
1. Whether the Act 2016 is retrospective or retroactive in its operation and what will
be its legal consequence if tested on the anvil of the Constitution of India?
2. Whether the authority has jurisdiction to direct return/refund of the amount to
the allottee under Sections 12, 14, 18 and 19 of the Act or the jurisdiction
exclusively lies with the adjudicating officer under Section 71 of the Act?
3. Whether Section 81 of the Act authorizes the authority to delegate its powers to
a single member of the authority to hear complaints instituted under Section 31
of the Act?
4. Whether the condition of pre-deposit under proviso to Section 43(5) of the Act
for entertaining substantive right of appeal is sustainable in law?
5. Whether the authority has power to issue recovery certificate for recovery of the
principal amount under Section 40(1) of the Act?
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Question 1 : - Whether the Act 2016 is retrospective or retroactive in its

operation and what will be its legal consequence if tested on the anvil of the
Constitution of India?
32. The issue concerns the retroactive application of the provisions of the Act 2016
particularly, with reference to the ongoing projects. If we take note of the objects and
reasons and the scheme of the Act, it manifests that the Parliament in its wisdom after
holding extensive deliberation on the subject thought it necessary to have a central
legislation in the paramount interest for effective consumer protection, uniformity and
standardisation of business practices and transactions in the real estate sector, to
ensure greater accountability towards consumers, to overcome frauds and delays and
also the higher transaction costs, and accordingly intended to balance the interests of
consumers and promoters by imposing certain duties and responsibilities on both. The
deliberation on the subject was going on since 2013 but finally the Act was enacted in
the year 2016 with effect from 25th March, 2016.
33. Under Chapter II of the Act 2016, registration of real estate projects became
mandatory and to make the statute applicable and to take its place under sub-Section
(1) of Section 3, it was made statutory that without registering the real estate project
with a real estate regulatory authority established under the Act, no promoter shall
advertise, market, book, sell or offer for sale, or invite persons to purchase in any
manner a plot, apartment or building, as the case may be in any real estate project
but with the aid of proviso to Section 3(1), it was mandated that such of the projects
which are ongoing on the date of commencement of the Act and more specifically the
projects to which the completion certificate has not been issued, such promoters shall
be under obligation to make an application to the authority for registration of the said
project within a period of three months from the date of commencement of the Act.
With certain exemptions being granted to such of the projects covered by sub-section
(2) of Section 3 of the Act, as a consequence, all such home buyers agreements which
has been executed by the parties inter se has to abide the legislative mandate in
completion of their ongoing running projects.
34. The term “ongoing project” has not been so defined under the Act while the
expression “real estate project” is defined under Section 2(zn) of the Act which reads
as under:—
“2(zn) “real estate project” means the development of a building or a building
consisting of apartments, or converting an existing building or a part thereof into
apartments, or the development of land into plots or apartments, as the case may
be, for the purpose of selling all or some of the said apartments or plots or building,
as the case may be, and includes the common areas, the development works, all
improvements and structures thereon, and all easement, rights and appurtenances
belonging thereto;”
35. The Act is intended to comply even to the ongoing real estate project. The
expression “ongoing project” has been defined under Rule 2(h) of the Uttar Pradesh
Real Estate (Regulation and Development) Rules, 2016 which reads as under:—
“2(h) “Ongoing project” means a project where development is going on and for
which completion certificate has not been issued but excludes such projects which
fulfil any of the following criteria on the date of notification of these rules:
(i) where services have been handed over to the Local Authority for maintenance.
(ii) where common areas and facilities have been handed over to the Association
for the Residents' Welfare Association for maintenance.
(iii) where all development work have been completed and sale/lease deeds of
sixty percent of the apartment/houses/plots have been executed.
(iv) where all development works have been completed and application has been
filed with the competent authority for issue of completion certificate.”
-----------------------------------------------------------------------------------------------------------------------------------------------------------
36. The expression “completion certification” has been defined under Section 2(q)
and “occupancy certificate” under Section 2(zf) of the Act which reads as under:—
“2(q) “completion certificate” means the completion certificate, or such other
certificate, by whatever name called, issued by the competent authority certifying
that the real estate project has been developed according to the sanctioned plan,
layout plan and specifications, as approved by the competent authority under the
local laws;
2(zf) “occupancy certificate” means the occupancy certificate, or such other
certificate, by whatever name called, issued by the competent authority permitting
occupation of any building, as provided under local laws, which has provision for
civic infrastructure such as water, sanitation and electricity;”
37. Looking to the scheme of Act 2016 and Section 3 in particular of which a
detailed discussion has been made, all “ongoing projects” that commence prior to the
Act and in respect to which completion certificate has not been issued are covered
under the Act. It manifests that the legislative intent is to make the Act applicable not
only to the projects which were yet to commence after the Act became operational but
also to bring under its fold the ongoing projects and to protect from its inception the
inter se rights of the stake holders, including allottees/home buyers, promoters and
real estate agents while imposing certain duties and responsibilities on each of them
and to regulate, administer and supervise the unregulated real estate sector within the
fold of the real estate authority.
38. The emphasis of Mr. Kapil Sibal, learned senior counsel for the appellant is that
the agreement of sale was executed in the year 2010-11, i.e. much before the coming
into force of the Act and the present Act has retrospective application and registration
of ongoing project under the Act would be in contravention to the contractual rights
established between the promoter and allottee under the agreement for sale executed
which is impermissible in law and further submits that Sections 13, 18(1), 19(4) of
the Act 2016 to the extent of their retrospective application is in violation of Articles
14, 19(1)(g) of the Constitution of India.
39. Mr. Tushar Mehta, learned Solicitor General, on the other hand, submits that a
bare perusal of the object and reasons manifest that the Act does not take away the
substantive jurisdiction, rather it protects the interest of homebuyers where
project/possession is delayed and further submits that the scheme of the Act has
retroactive application, which is permissible under the law. The provisions make it
clear that it operates in future, however, its operation is based upon the character and
status which have been done earlier and the presumption against retrospectivity in
this case is ex-facie rebuttable. The literal interpretation of the statute manifest that it
has not made any distinction between the “existing” real estate projects and “new”
real estate projects as has been defined under Section 2(zn) of the Act.
40. Learned counsel further submits that the key word, i.e., “ongoing on the date of
the commencement of this Act” by necessary implication, ex-facie and without any
ambiguity, means and includes those projects which were ongoing and in cases where
only issuance of completion certificate remained pending, legislature intended that
even those projects have to be registered under the Act. Therefore, the ambit of Act is
to bring all projects under its fold, provided that completion certificate has not been
issued. The case of the appellant is based on “occupancy certificate” and not of
“completion certificate”. In this context, learned counsel submits that the said proviso
ought to be read with Section 3(2)(b), which specifically excludes projects where
completion certificate has been received prior to the commencement of the Act. Thus,
those projects under Section 3(2) need not be registered under the Act and, therefore,
the intent of the Act hinges on whether or not a project has received a completion
certificate on the date of commencement of the Act.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
41. The clear and unambiguous language of the statute is retroactive in operation
and by applying purposive interpretation rule of statutory construction, only one result
is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale
of plot, apartment or building, real estate project is done in an efficient and
transparent manner so that the interest of consumers in the real estate sector is
protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions
for safeguarding the pecuniary interest of the consumers/allottees. In the given
circumstances, if the Act is held prospective then the adjudicatory mechanism under
Section 31 would not be available to any of the allottee for an on-going project. Thus,
it negates the contention of the promoters regarding the contractual terms having an
overriding effect over the retrospective applicability of the Act, even on facts of this
case.
42. What the provision further emphasizes is that a promoter of a project which is
not complete/sans completion certificate shall get the project registered under the Act
but while getting the project registered, promoter is under an obligation to prescribe
fresh timelines for getting the remaining development work completed and from the
scheme of the Act, we do not find that the first proviso to Section 3(1) in any manner
is either violative of Articles 14 and 19(1)(g) of the Constitution of India. The
Parliament is always competent to enact any law affecting the antecedent events
under its fold within the parameters of law.
43. In State of Bombay (Now Maharashtra) v. Vishnu Ramchandra1 , this Court
observed that if the part of requisites for operation of the statute were drawn from a
time antecedent to its passing, it did not make the statute retrospective so long as the
action was taken after the Act came into force.
44. To meet out different nature of exigencies, it was noticed by the Parliament that
Pan India, large number of real estate projects where the allottees did not get
possession for years together and complaints being filed before different forums
including under the Consumer Protection Act has failed to deliver
adequate/satisfactory results to the consumer/allottees and their life savings is locked
in and sizable sections of allottees had invested their hard-earned money, money
obtained through loans or financial institutions with the belief that they will be able to
get a roof in the form of their apartments/flats/unit.
45. At the given time, there was no law regulating the real estate sector,
development works/obligations of promoter and allottee, it was badly felt that such of
the ongoing projects to which completion certificate has not been issued must be
brought within the fold of the Act 2016 in securing the interests of allottees,
promoters, real estate agents in its best possible way obviously, within the parameters
of law. Merely because enactment as prayed is made retroactive in its operation, it
cannot be said to be either violative of Articles 14 or 19(1)(g) of the Constitution of
India. To the contrary, the Parliament indeed has the power to legislate even
retrospectively to take into its fold the pre-existing contract and rights executed
between the parties in the larger public interest.
46. The consequences for breach of such obligations under the Act are prospective
in operation and in case ongoing project, of which completion certificate is not
obtained, are not to be covered under the Act, there is every likelihood of
classifications in respect of underdeveloped ongoing project and the new project to be
commenced.
47. The legislative power to make the law with prospective/retrospective effect is
well recognized and it would not be permissible for the appellants/promoters to say
that they have any vested right in dealing with the completion of the project by
leaving the allottees in lurch, in a helpless and miserable condition that at least may
not be acceptable within the four corners of law.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
48. The distinction between retrospective and retroactive has been explained by
this Court in Jay Mahakali Rolling Mills v. Union of India2 , which reads as under:—
“8. “Retrospective” means looking backward, contemplating what is past, having
reference to a statute or things existing before the statute in question.
Retrospective law means a law which looks backward or contemplates the past;
one, which is made to affect acts or facts occurring, or rights occurring, before it
comes into force. Retroactive statute means a statute, which creates a new
obligation on transactions or considerations or destroys or impairs vested rights.”
49. Further, this Court in Shanti Conductors Private Limited v. Assam State
Electricity Board3 , held as under:—
“67. Retroactivity in the context of the statute consists of application of new rule
of law to an act or transaction which has been completed before the rule was
promulgated.
68. In the present case, the liability of buyer to make payment and day from
which payment and interest become payable under Sections 3 and 4 does not relate
to any event which took place prior to the 1993 Act, it is not even necessary for us
to say that the 1993 Act is retroactive in operation. The 1993 Act is clearly
prospective in operation and it is not necessary to term it as retroactive in
operation. We, thus, do not subscribe to the opinion dated 31-8-2016 [Shanti
Conductors (P) Ltd. v. Assam SEB, (2016) 15 SCC 13] of one of the Hon'ble Judges
holding that the 1993 Act is retroactive.”
50. In the recent judgment of this Court rendered in the case of Vineeta Sharma v.
Rakesh Sharma4 wherein, this Court has interpreted the scope of Section 6(1) of the
Hindu Succession Act, 1956, the law of retroactive statute held as under:—
“61. The prospective statute operates from the date of its enactment conferring
new rights. The retrospective statute operates backwards and takes away or impairs
vested rights acquired under existing laws. A retroactive statute is the one that
does not operate retrospectively. It operates in futuro. However, its operation is
based upon the character or status that arose earlier. Characteristic or event which
happened in the past or requisites which had been drawn from antecedent events.
Under the amended Section 6, since the right is given by birth, that is, an
antecedent event, and the provisions operate concerning claiming rights on and
from the date of the Amendment Act.”
51. Thus, it is clear that the statute is not retrospective merely because it affects
existing rights or its retrospection because a part of the requisites for its action is
drawn from a time antecedent to its passing, at the same time, retroactive statute
means a statute which creates a new obligation on transactions or considerations
already passed or destroys or impairs vested rights.
52. The Parliament intended to bring within the fold of the statute the ongoing real
estate projects in its wide amplitude used the term “converting and existing building
or a part thereof into apartments” including every kind of developmental activity either
existing or upcoming in future under Section 3(1) of the Act, the intention of the
legislature by necessary implication and without any ambiguity is to include those
projects which were ongoing and in cases where completion certificate has not been
issued within fold of the Act.
53. That even the terms of the agreement to sale or home buyers agreement
invariably indicates the intention of the developer that any subsequent legislation,
rules and regulations etc. issued by competent authorities will be binding on the
parties. The clauses have imposed the applicability of subsequent legislations to be
applicable and binding on the flat buyer/allottee and either of the parties,
promoters/home buyers or allottees, cannot shirk from their responsibilities/liabilities
under the Act and implies their challenge to the violation of the provisions of the Act
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and it negates the contention advanced by the appellants regarding contractual terms
having an overriding effect to the retrospective applicability of the Authority under the
provisions of the Act which is completely misplaced and deserves rejection.
54. From the scheme of the Act 2016, its application is retroactive in character and
it can safely be observed that the projects already completed or to which the
completion certificate has been granted are not under its fold and therefore, vested or
accrued rights, if any, in no manner are affected. At the same time, it will apply after
getting the on-going projects and future projects registered under Section 3 to
prospectively follow the mandate of the Act 2016.
Question no. 2 : Whether the authority has jurisdiction to direct return/refund
of the amount to the allottee under Sections 12, 14, 18 and 19 of the Act or
the jurisdiction exclusively lies with the adjudicating officer under Section 71
of the Act?
55. Before examining the question, we have to take a holistic view of the scheme of
the Act along with the rules/regulations framed by the Authority in exercise of its
powers under Sections 84 and 85 of the Act that postulates certain functions and
duties to the promoter of the real estate project and its entailing consequences if the
promoter fails to fulfil his obligations defined under Chapter III. Some of the
obligations are spelt out in Sections 12, 14, 18 and 19 of the Act.
56. Section 12 which falls for consideration in these petitions reads as follows:
“12. Where any person makes an advance or a deposit on the basis of the
information contained in the notice advertisement or prospectus, or on the basis of
any model apartment, plot or building, at the case may be, and sustains any loss or
damage by reason of any incorrect, false statement included therein, he shall be
compensated by the promoter in the manner as provided under this Act:”
Provided that if the person affected by such incorrect, false statement
contained in the notice, advertisement or prospectus, or the model apartment,
plot or building, as the case may be, intends to withdraw from the proposed
project, he shall be returned his entire investment along with interest at such
rate as may be prescribed and the compensation in the manner provided
under this Act.”
57. Section 14 relates to adherence to sanctioned plans and project specifications
by the promoter. Section 14(3) empowers the allottee to receive compensation in the
event there is any structural defect or any other defect in workmanship etc. Section 14
(3) reads as under:
“(3) In case any structural defect or any other defect in workmanship, quality or
provision of services or any other obligations of the promoter as per the agreement
for sale relating to such development is brought to the notice of the promoter within
a period of five years by the allottee from the date of handing over possession, it
shall be the duty of the promoter to rectify such defects without further charge,
within thirty days, and in the event of promoter's failure to rectify such defects
within such time, the aggrieved allottees shall be entitled to receive appropriate
compensation in the manner as provided under this Act.”
58. Section 18 starts with the marginal note “Return of amount and compensation”.
The two aspects namely ‘return of amount’ and ‘compensation’ are distinctly
delineated. Section 18 reads as follows:
18.(1) If the promoter fails to complete or is unable to give possession of an
apartment, plot or building,-
(a) in accordance with the terms of the agreement for sale or, as the case may
be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
suspension or revocation of the registration under this Act or for any other
reason,
he shall be liable on demand to the allottees, in case the allottee wishes
to withdraw from the project, without prejudice to any other remedy
available, to return the amount received by him in respect of that
apartment, plot, building, as the case may be, with interest at such rate as
may be prescribed in this behalf including compensation in the manner as
provided under this Act:
Provided that where an allottee does not intend to withdraw from the project,
he shall be paid, by the promoter, interest for every month of delay, till the
handing over of the possession, at such rate as may be prescribed.
(2) The promoter shall compensate the allottees in case of any loss caused to
him due to defective title of the land, on which the project is being developed or
has been developed, in the manner as provided under this Act, and the claim for
compensation under this subsection shall not be barred by limitation provided
under any law for the time being in force.
(3) If the promoter fails to discharge any other obligations imposed on him
under this Act or the rules or regulations made thereunder or in accordance with the
terms and conditions of the agreement for sale, he shall be liable to pay such
compensation to the allottees, in the manner as provided under this Act.
(emphasis supplied)
59. Chapter IV deals with the rights and duties of the allottees and in particular,
Section 19(4) entitles the allottees to a refund of the amount paid. Section 19(4)
reads as follows:—
“(4) The allottee shall be entitled to claim the refund of amount paid along
with interest at such rate as may be 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 thereunder.”
60. Section 31 relates to the filing of complaints to the authority and reads as
follows:
Filing of complaints with the Authority or the adjudicating officer—
(1) Any aggrieved person may file a complaint with the Authority or the
adjudicating officer, as the case may be, for any violation or contravention of
the provisions of this Act or the rules and regulations made thereunder,
against any promoter, allottee or real estate agent, as the case may be.
Explanation—For the purpose of this sub-section “person” shall include the
association of allottees or any voluntary consumer association registered under
any law for the time being in force.
(2) The form, manner and fees for filing complaint under subsection (1) shall be
such as may be prescribed.
61. Section 71 relates to Power to Adjudicate vested with the adjudicating officer
while adjudging compensation which reads as follows:
71. Power to adjudicate.—
(1) For the purpose of adjudging compensation under sections 12, 14, 18
and section 19, the Authority shall appoint, in consultation with the
appropriate Government, one or more judicial officer as deemed
necessary, who is or has been a District Judge to be an adjudicating
-----------------------------------------------------------------------------------------------------------------------------------------------------------
officer for holding an inquiry in the prescribed manner, after giving any person
concerned a reasonable opportunity of being heard:
Provided that any person whose complaint in respect of matters covered
under sections 12, 14, 18 and section 19 is pending before the Consumer
Disputes Redressal Forum or the Consumer Disputes Redressal Commission
or the National Consumer Redressal Commission, established under Section
9 of the Consumer Protection Act, 1986 (68 of 1986), on or before the
commencement of this Act, he may, with the permission of such Forum or
Commission, as the case may be, withdraw the complaint pending before it
and file an application before the adjudicating officer under this Act.
(2) The application for adjudging compensation under subsection (1), shall be
dealt with by the adjudicating officer as expeditiously as possible and dispose
of the same within a period of sixty days from the date of receipt of the
application : Provided that where any such application could not be disposed
of within the said period of sixty days, the adjudicating officer shall record his
reasons in writing for not disposing of the application within that period.
(3) While holding an inquiry the adjudicating officer shall have power to summon
and enforce the attendance of any person acquainted with the facts and
circumstances of the case to give evidence or to produce any document which
in the opinion of the adjudicating officer, may be useful for or relevant to the
subject matter of the inquiry and if, on such inquiry, he is satisfied that the
person has failed to comply with the provisions of any of the sections specified
in sub-section (1), he may direct to pay such compensation or interest, as
the case any be, as he thinks fit in accordance with the provisions of any of
those sections.
62. The broad factors to be considered while adjudging compensation have been
provided under Section 72 which reads as under:—
“72. While adjudging the quantum of compensation or interest, as the
case may be, under section 71, the adjudicating officer shall have due
regard to the following factors, namely:—
(a) the amount of disproportionate gain or unfair advantage, wherever
quantifiable, made as a result of the default;
(b) the amount of loss caused as a result of the default;
(c) the repetitive nature of the default;
(d) such other factors which the adjudicating officer considers necessary to the
case in furtherance of justice.”
63. The Uttar Pradesh Real Estate Regulatory Authority in exercise of its power
under Section 85 of the Act 2016 has framed its regulations on 27th February, 2019
called as Uttar Pradesh Real Estate Regulatory Authority(General) Regulations, 2019
(hereinafter being referred to as “Regulations 2019”).
64. Regulations 18 to 23 deal with meetings of the authority, other than
adjudication proceedings. Regulation 24 falls in the chapter of “Adjudicatory
Proceedings” and reads as follows:—
“24(a) For adjudication proceedings with respect to complaints filed with the
Authority, the Authority may, by order, direct that specific matters or issues be
heard and decided by a single bench of either the Chairperson or any Member of the
Authority.
(b) The Authority, in consultation with the state government, will appoint
Adjudicating Officers on the Panel of U.P. RERA for the purposes of adjudicating the
matters of compensation admissible under the Act.
(c) The aggrieved persons will be required to file complaints before the Authority
-----------------------------------------------------------------------------------------------------------------------------------------------------------
online in form - M. The Claims of compensation will also be included in form - M

itself. While the Authority will decide all the questions of breaches of the Act, Rules
and Regulations, it will refer the question relating to the adjudication of
compensation to one of the Adjudicating Officers on the Panel of U.P. RERA who will
then decide the matter expeditiously and preferably within 60 days.
(d) The Adjudicating Officers on the Panel of U.P. RERA will hold their courts at
Lucknow or Gautam Buddhnagar as decided by the chairman. The complaints
relating to the districts of NCR will be heard at Gautam Buddhnagar whereas
complaints from the remaining districts of the State will be heard at Lucknow.
65. The complaint before the regulatory authority for any violation of the Act or
rules or regulations made thereunder by an aggrieved person has to be submitted in
Form (M) as per the procedure prescribed under Rule 33(1) which the regulatory
authority has to follow. At the same time, any person who is aggrieved to claim
compensation under Sections 12, 14, 18 and 19 has to submit his compliant in Form
(N) for adjudging compensation as per the procedure provided under Section 71(3) of
the Act taking into consideration the factors indicated under Section 72 and in the
manner provided under Rule 34(1) of the Rules 2016.
66. Rules 33(1) and 34(1) of the Uttar Pradesh Real Estate(Regulation and
Development) Rules, 2016 which is relatable to the adjudicatory powers of the
regulatory authority/adjudicating officer reads as follows:—
“33(1) Any aggrieved person may file a complaint with the regulatory authority
for any violation under the Act or the rules and regulations made thereunder, save
as those provided to be adjudicated by the adjudicating officer, in Form ‘M’ which
shall be accompanied by a fee of rupees one thousand in the form of a demand
draft drawn on a nationalized bank in favour of regulatory authority and payable at
the main branch of that bank at the station where the seat of the said regulatory
authority is situated. Explanation : - For the purpose of this sub-rule “person” shall
include the association of allottees or any voluntary consumer association registered
under any law or the time being in force.
34(1) Any aggrieved person may file a complaint with the adjudicating officer
for compensation under Sections 12, 14, 18 and 19 in Form N which shall be
accompanied by a fee of rupees one thousand in the form of a demand draft drawn
on a nationalized bank in favour of regulatory authority and payable at the main
branch of that bank at the station where the rest of the said regulatory authority is
situated.”
(emphasis supplied)
67. Rule 33(2) of the Rules 2016 delineates the procedure which the authority has
to follow in making inquiry to the allegations or violations of the provisions of the Act,
rules and regulations. At the given time, Rule 34(2) delineates the procedure to be
followed by the adjudicating officer while adjudging quantum of compensation and
interest which the person aggrieved is entitled for under the provisions of the Act.
68. Mr. Kapil Sibal, learned senior counsel for the appellants submits that both the
‘authority’ and the ‘adjudicating officer’ operate in completely distinct spheres. The
authority and the adjudicating officer are defined under Sections 2(i) and 2(a) of the
Act and are, therefore, creature of statute and their powers and respective jurisdiction
(s) are explicitly delineated in the statute itself.
69. The adjudicating officer under Section 71 is specifically vested with the
jurisdiction to adjudicate complaints under Sections 12, 14, 18 & 19 of the Act 2016.
In disposing of such complaints, the adjudicating officer alone is empowered under
Section 71(3) to conduct enquiry and direct the payment of refund as well as
compensation and interest, as the case may be, in taking note of the broad
parameters enumerated in Section 72 and such complaints are to be statutorily
-----------------------------------------------------------------------------------------------------------------------------------------------------------
disposed of within 60 days failing which the reasons are to be recorded.

70. According to the learned counsel for the appellants, proviso to Section 71(1),
the jurisdiction to adjudicate complaints under Sections 12, 14, 18 and 19 which were
earlier pending before the authority established under the Consumer Protection Act,
1986 stands vested with the adjudicating officer. According to him, the legislative
intent is clear and unambiguous that the complaints emanating from the bundle of
rights which flow from Sections 12, 14, 18 and 19 including the cause of action for
refund and interest be withdrawn from the forums established under the Consumer
Protection Act and in turn be filed before and adjudicated by the Adjudicating Officer
under this Act and that being the legislative intent, matters arising under Sections 12,
14, 18 and 19 would be examined and adjudicated exclusively by the adjudicating
officer as mandated by law.
71. Per contra, Ms. Madhavi Divan, learned senior counsel for the respondents while
supporting the findings recorded by the High Court in the impugned judgment
submits that the Act provides distinct remedies, i.e., ‘return of amount/investment’ on
the one hand and ‘compensation’ on the other, to be determined separately. According
to her, the right to refund on demand is a statutory right, fundamentally, contextually
and conceptually distinct from the right to receive compensation. While the right to
refund emanates from the Legislature's recognition of the fact that homebuyers are
“out of pocket” financial creditors, the right to compensation seeks to make amends
for injury or loss.
72. Thus, refund and compensation are two distinct rights under the Act and cannot
be conflated. The manner in which the two are to be determined would require a
different process and involve different considerations. According to her, the
determination of compensation involves a full-fledged adjudicatory process which is
more complex than that involved in determining refund. To do so, it would tantamount
to regressing into the very malaise that the legislature intended to liberate the
allottees-homebuyers. The result of conflating the rights and/or relegating the
allottees to the adjudicating officer would amount to a compromise of the timeliness of
the right to refund on demand. It would also deter and daunt allottees from seeking
compensation because in the process the remedies would be clubbed and the
availability of refund would get relatively delayed as compensation requires a more
elaborate adjudication process (even though the same is required to be completed in
60 days). The authority to determine a claim for refund on demand while the
adjudicating officer to determine the claim for compensation.
73. The expression “on demand” which follows the right to “return of amount” is
indicative of the priority, immediacy and expediency which is accorded to the right to
refund. Thus, according to her, the expressions “refund” and “return of amount” is an
act of restitution, and the obligation to restitute lies on the person or the authority
that has received unjust enrichment or unjust benefit.
74. Learned counsel further submits that in order to give full effect to the letter and
spirit of the right to refund in the context explained above, there can be no doubt that
the determination of the right to refund must be left to the authority whereas the
adjudication for adjudging compensation with the adjudicating officer as reflected
under Section 71 of the Act. According to the learned counsel, the authority is fully
seized with the standard agreements entered into between the promoters and the
allottees, and therefore, is best equipped to determine the extent of delay, if any.
Therefore, refund claims can most conveniently and effectively be dealt with by the
authority and interest on refund is available at the rate prescribed by the appropriate
Government. In the instant batch of matters, the prescribed rate of interest is (MCLR
+ 1%), which has been notified by the Government of Uttar Pradesh.
75. The legislature in its wisdom has made a specific provision delineating power to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
be exercised by the regulatory authority/adjudicating officer. “Refund of the amount”

and “compensation” are two distinct components which the allottee or the person
aggrieved is entitled to claim if the promoter has not been able to hand over
possession with a nature of enquiry and mechanism provided under the Act. So far as
the claim with respect to refund of amount on demand under Sections 18(1) and 19
(4) of the Act is concerned, it vests within the jurisdiction of the regulatory authority.
Section 71 carves out the jurisdiction of the adjudicating officer to adjudge
compensation under Sections 12, 14, 18 and 19 after holding enquiry under Section
71(3) of the Act keeping in view the broad contours referred to under Section 72 of
the Act.
76. The submission made by learned counsel for the appellants that the proviso
under Section 71(1) empowers the adjudicating officer to examine the complaints
made under Sections 12, 14, 18 and 19 pending before the Consumer Disputes
Redressal Forum/Commission is in different context and it was one time mechanism to
provide a window to the consumers whose composite claims are pending before the
Consumer Forum/Commission to avail the benevolent provision of the Act 2016 for the
reason that under the Consumer Protection Act, there is no distinction as to whether
the complaint is for refund of the amount or for compensation as defined under
Section 71(1) of the Act, but after the Act 2016 has come into force, if any person
aggrieved wants to make complaint for refund against the promotor or real estate
agent other than compensation, it is to be lodged to the regulatory authority and for
adjudging compensation to the adjudicating officer, and the delineation has been
made to expedite the process of adjudication invoked by the person aggrieved when a
complaint has been made under Section 31 of the Act to be adjudicated either by the
authority/adjudicating officer as per the procedure prescribed under the Act.
77. The further submission made by the learned counsel for the appellants is that
the return of the amount adversely impacts the promotor and such a question can be
looked into by the adjudicating officer in the better prospective. The submission has
no foundation for the reason that the legislative intention and mandate is clear that
Section 18(1) is an indefeasible right of the allottee to get a return of the amount on
demand if the promoter is unable to handover possession in terms of the agreement
for sale or failed to complete the project by the date specified and the justification
which the promotor wants to tender as his defence as to why the withdrawal of the
amount under the scheme of the Act may not be justified appears to be insignificant
and the regulatory authority with summary nature of scrutiny of undisputed facts may
determine the refund of the amount which the allottee has deposited, while seeking
withdrawal from the project, with interest, that too has been prescribed under the Act,
as in the instant case, the State of Uttar Pradesh has prescribed MCLR + 1% leaving
no discretion to the authority and can also claim compensation as per the procedure
prescribed under Section 71(3) read with Section 72 of the Act.
78. This Court while interpreting Section 18 of the Act, in Imperia Structures Ltd. v.
Anil Patni5 held that Section 18 confers an unqualified right upon an allottee to get
refund of the amount deposited with the promoter and interest at the prescribed rate,
if the promoter fails to complete or is unable to give possession of an apartment as per
the date specified in the home buyer's agreement in para 25 held as under:—
“25. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is
unable to give possession of an apartment duly completed by the date specified in
the agreement, the promoter would be liable, on demand, to return the amount
received by him in respect of that apartment if the allottee wishes to withdraw from
the Project. Such right of an allottee is specifically made “without prejudice to any
other remedy available to him”. The right so given to the allottee is unqualified
and if availed, the money deposited by the allottee has to be refunded with interest
at such rate as may be prescribed. The proviso to Section 18(1) contemplates a
-----------------------------------------------------------------------------------------------------------------------------------------------------------
situation where the allottee does not intend to withdraw from the Project. In that
case he is entitled to and must be paid interest for every month of delay till the
handing over of the possession. It is up to the allottee to proceed either under
Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came
under the latter category. The RERA Act thus definitely provides a remedy to an
allottee who wishes to withdraw from the Project or claim return on his investment.”
(emphasis supplied)
79. To safeguard the interests of the parties, on being decided by the regulatory
authority/adjudicating officer, it is always subject to appeal before the Tribunal under
Section 43(5) provided condition of pre-deposit being complied with can be further
challenged in appeal before the High Court under Section 58 of the Act and, thus, the
legislature has put reasonable restriction and safeguards at all stages.
80. The further submission made by learned counsel for the appellants that if the
allottee has defaulted the terms of the agreement and still refund is claimed which can
be possible, to be determined by the adjudicating officer. The submission appears to
be attractive but is not supported with legislative intent for the reason that if the
allottee has made a default either in making instalments or made any breach of the
agreement, the promoter has a right to cancel the allotment in terms of Section 11(5)
of the Act and proviso to sub-section 5 of Section 11 enables the allottee to approach
the regulatory authority to question the termination or cancellation of the agreement
by the promotor and thus, the interest of the promoter is equally safeguarded.
81. The opening words of Section 71(1) of the Act make it clear that the scope and
functions of the adjudicating officer are only for “adjudging compensation” under
Sections 12, 14, 18 and 19 of the Act. If the legislative intent was to expand the scope
of the powers of the adjudicating officer, then the wording of Section 71(1) ought to
have been different. On the contrary, even the opening words of Section 71(2) of the
Act make it clear that an application before the adjudicating officer is only for
“adjudging compensation”. Even in Section 71(3) of the Act, it is reiterated that the
adjudicating officer may direct “to pay such compensation or interest” as the case may
be as he thinks fit, in accordance with provisions of Sections 12, 14, 18 and 19 of the
Act. This has to be seen together with the opening words of Section 72 of the Act,
which reads “while adjudging the quantum of compensation or interest, as the case
may be, under Section 71, the adjudicating officer shall have due regards” to the
broad parameters to be kept in mind while adjudging compensation to be determined
under Section 71 of the Act.
82. The further submission made by the learned counsel for the appellants that if
the authority and the adjudicating officer either come to different conclusions on the
same questions or in a single complaint, the person aggrieved is seeking manifold
reliefs with one of the relief of compensation and payment of interest, with the
timelines being provided for the adjudicating officer to decide the complaint under
Section 71 of the Act. At least, there is no provision which could be referred to
expedite the matter if filed before the regulatory authority. The submission may not
hold good for the reason that there is a complete delineation of the jurisdiction vested
with the regulatory authority and the adjudicating officer. If there is any breach or
violation of the provisions of Sections 12, 14, 18 and 19 of the Act by the promoter,
such a complaint straightaway has to be filed before the regulatory authority. What is
being referable to the adjudicating officer is for adjudging compensation, as reflected
under Section 71 of the Act and accordingly rules and regulations have been framed
by the authority for streamlining the complaints which are made by the aggrieved
person either on account of violation of the provisions of Sections 12, 14, 18 and 19 or
for adjudging compensation and there appears no question of any inconsistency being
made, in the given circumstances, either by the regulatory authority or the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
adjudicating officer.
83. So far as the single complaint is filed seeking a combination of reliefs, it is
suffice to say, that after the rules have been framed, the aggrieved person has to file
complaint in a separate format. If there is a violation of the provisions of Sections 12,
14, 18 and 19, the person aggrieved has to file a complaint as per form (M) or for
compensation under form (N) as referred to under Rules 33(1) and 34(1) of the Rules.
The procedure for inquiry is different in both the set of adjudication and as observed,
there is no room for any inconsistency and the power of adjudication being delineated,
still if composite application is filed, can be segregated at the appropriate stage.
84. So far as submission in respect of the expeditious disposal of the application
before the adjudicating officer, as referred to under sub-section (2) of Section 71 is
concerned, it pre-supposes that the adjudicatory mechanism provided under Section
71(3) of the Act has to be disposed of within 60 days. It is expected by the regulatory
authority to dispose of the application expeditiously and not to restrain the mandate of
60 days as referred to under Section 71(3) of the Act.
85. The provisions of which a detailed reference has been made, if we go with the
literal rule of interpretation that when the words of the statute are clear, plain and
unambiguous, the Courts are bound to give effect to that meaning regardless of its
consequence. It leaves no manner of doubt and it is always advisable to interpret the
legislative wisdom in the literary sense as being intended by the legislature and the
Courts are not supposed to embark upon an inquiry and find out a solution in
substituting the legislative wisdom which is always to be avoided.
86. From the scheme of the Act of which a detailed reference has been made and
taking note of power of adjudication delineated with the regulatory authority and
adjudicating officer, what finally culls out is that although the Act indicates the distinct
expressions like ‘refund’, ‘interest’, ‘penalty’ and ‘compensation’, a conjoint reading of
Sections 18 and 19 clearly manifests that when it comes to refund of the amount, and
interest on the refund amount, or directing payment of interest for delayed delivery of
possession, or penalty and interest thereon, it is the regulatory authority which has
the power to examine and determine the outcome of a complaint. At the same time,
when it comes to a question of seeking the relief of adjudging compensation and
interest thereon under Sections 12, 14, 18 and 19, the adjudicating officer exclusively
has the power to determine, keeping in view the collective reading of Section 71 read
with Section 72 of the Act. If the adjudication under Sections 12, 14, 18 and 19 other
than compensation as envisaged, if extended to the adjudicating officer as prayed
that, in our view, may intend to expand the ambit and scope of the powers and
functions of the adjudicating officer under Section 71 and that would be against the
mandate of the Act 2016.
Question no. 3 : Whether Section 81 of the Act authorizes the authority to
delegate its powers to a single member of the authority to hear complaints
instituted under Section 31 of the Act?
87. It is the specific stand of the respondent Authority of the State of Uttar Pradesh
that the power has been delegated under Section 81 to the single member of the
authority only for hearing complaints under Section 31 of the Act. To meet out the
exigency, the authority in its meeting held on 14th August 2018, had earlier decided to
delegate the hearing of complaints to the benches comprising of two members each
but later looking into the volume of complaints which were filed by the home buyers
which rose to about 36,826 complaints, the authority in its later meeting held on 5th
December, 2018 empowered the single member to hear the complaints relating to
refund of the amount filed under Section 31 of the Act.
88. Mr. Gopal Sankarnarayanan, learned counsel for the appellants submits that if
this Court comes to the conclusion that other than adjudging compensation wherever
-----------------------------------------------------------------------------------------------------------------------------------------------------------
provided all other elements/components including refund of the amount and interest
etc. vests for adjudication by the authority, in that event, such power vests with the
authority constituted under Section 21 and is not open to be delegated in exercise of
power under Section 81 of the Act to a single member of the authority and such
delegation is a complete abuse of power vested with the authority and such orders
passed by the single member of the authority in directing refund of the amount with
interest are wholly without jurisdiction and is in contravention to the scheme of the
Act.
89. Learned counsel further submits that the order passed by the single member of
the authority is without jurisdiction and it suffers from coram non-judice. Section 21 of
the Act clearly provides that the authority shall consist of a Chairperson and not less
than two whole time members to be appointed by the Government. Regulation 24(a)
of the Regulations 2019 framed by the authority is in clear contravention to the parent
statute that the delegation of power can be of class, category of cases, specific to the
member of the authority but a general delegation of power to the single member of
the authority in exercise of power under Section 81 is not contemplated under the Act
and delegation to a single member of the authority in adjudicating the disputes under
Sections 12, 14, 18 and 19 is without jurisdiction and that is the reason for which the
appellants have approached the High Court by filing a writ petition under Article 226
of the Constitution and in furtherance to this Court.
90. Learned counsel further submits that from the plain reading of the statute
itself, the role of the authority is of a quasi-judicial body forms its underpinning. The
adjudicatory role of the authority is specifically recognized under Sections 5, 6, 7(2), 9
(3) and 31 where the authority is supposed to hear the other side, after compliance of
the principles of natural justice, is supposed to pass an order in accordance with law.
91. Section 31 allows the aggrieved person to file a complaint with the authority or
the adjudicating officer for any violation or breach or contravention to the provisions of
the Act or the rules and regulations made thereunder and this being a quasi-judicial
power to be exercised by the authority could not be delegated to a single member of
the authority under the guise of Section 81 of the Act, that apart, there are certain
provisions where authority alone holds power to initiate action or make inquiries like
Sections 35(1), 35(2), 36 or 38, the powers are exclusively exercised by the authority
and the tests for determining whether an action is quasi-judicial or not are laid down
in Province of Bombay v. Kushaldas S Advani6 which has been consistently followed by
the Constitution Bench in its decision in Shivji Nathubhai v. Union of India7 ; Harinagar
Sugar Mills Limited v. Shyam Sunder Jhunjhunwala8 .
92. Learned counsel further submits that according to him, the powers which have
been exercised by the authority under Sections 12, 14, 18 and 19 of the Act have the
trappings of the judicial function which in no manner can be delegated without being
expressly bestowed. Placing reliance on two decisions of the Queen's Bench in Barnard
v. National Dock Labour Board9 and Vine v. National Dock Labour Board10 and taking
assistance thereof, learned counsel submits that the judgments indicated above
makes it clear that the delegation of judicial power must be express; that a provision
of quorum for a quasi-judicial body is distinguishable from the delegation of power to
the exclusion of other members of that body; and the reasons of workload cannot
trump the legal requirement. These principles have been adopted by this Court
consistently in Bombay Municipal Corporation v. Dhondu Narayan Chowdhary11 ; Sahni
Silk Mills(P) Ltd. v. Employees State Insurance Corporation12 ; Jagannath Temple
Managing Committee v. Siddha Math13 .
93. Learned counsel submits that it has been consistently held by this Court that
the power being quasi-judicial in nature, the presumption is that it ought to be
exercised by the authority competent and no other, unless the law expressly or by
-----------------------------------------------------------------------------------------------------------------------------------------------------------
clear implication permits it.

94. Learned counsel further submits that even by necessary implication, the judicial
power of the authority cannot be delegated by the multi-member authority to any of
its members. If at all there are practical considerations of workload, the Government
can always establish more than one authority in terms of the second proviso to Section
20(1).
95. Per contra, Mr. Devadatt Kamat, learned senior counsel for the respondents
submits that the complaint of the appellants has been primarily on the issue that a
single member is not competent to exercise power to hear complaints under Section
31 of the Act and the delegation of its power by the authority invoking Section 81 is
beyond jurisdiction.
96. Learned counsel submits that as a matter of fact the entire functioning of the
authority has not been delegated to the single member. It is only the hearing of
complaints under Section 31 that the single member of the authority has been
empowered to deal with such complaints, keeping in view the overall object of speedy
disposal of such complaints mandated under the law. According to him, it is factually
incorrect to say that the other functions of the authority like imposition of penalty
under Section 38, revocation of registration under Section 7 or functions of the
authority under Sections 32 or 33 have been delegated to a single member of the
authority.
97. Learned counsel further submits that the question is not whether the delegation
per se to a single member is bad, but the question is whether the power to hear
complaints in reference to Sections 12, 14, 18 and 19 delegated to a single member is
permissible under the law. It may be noticed that the authority has been vested with
several other powers and functions under the Act, which the authority has consciously
not delegated to a single member.
98. Learned counsel further submits that pursuant to the delegation of power under
Section 81 by the special order dated 5th December, 2018 read with Regulation 24, a
single member has been authorized by the authority to hear the matters related to
refund of the amount under Section 31 of the Act.
99. Learned counsel further submits that almost in a pari materia scheme, Section
29-A of the SEBI Act gives the power to delegate and Section 19 of the SEBI Act
empowers the board to delegate its power to any member of the Board has been
examined by this Court in Saurashtra Kutch Stock Exchange Ltd. v. Securities and
Exchange Board of India14 . This Court has approved the power of delegation to a single
member of the respective authority and held that such delegation is always
permissible in law unless specifically prohibited and as long as there is a legislative
sanction for delegation of even judicial power, there is no illegality as held in Bombay
Municipal Corporation (supra); State of Uttar Pradesh v. Batuk Deo Pati Tripathi15
Heinz India Private Limited v. State of Uttar Pradesh16 ; and taking assistance thereof,
learned counsel submits that such delegation of power to a single member of the
authority in deciding application for refund of the amount and interest under Section
18 of the Act is well within the jurisdiction of the authority to its delegatee more so
when the power to delegate under Section 81 has not been questioned in either of the
pending appeals before the Court.
100. Learned counsel further submits that Section 21 of the Act relates to the
composition of the authority and does not deal with minimum bench strength. At the
given time, the legislature has consciously avoided prescribing any minimum
bench/quorum strength to hear complaints by the authority. At the same time, the Act
only prescribes a bench/quorum only of the Appellate Tribunal under Section 43(3) of
the Act and further submits that in the absence of the minimum bench/quorum
strength being fixed by statute, it is impermissible to treat the composition of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
authority itself as a minimum bench strength.

101. Learned counsel further submits that Sections 29 and 81 are not in derogation
to each other and operate in different fields. Section 29 is concerned with the
meetings of the authority and does not envisage in its fold the quasi-judicial functions
which the Act casts upon the authority. The term “meetings” under Section 29 does
not deal with the performance of quasi-judicial functions which are referred to the
authority under Section 31. It can only refer to meetings on policy/regulatory issues
and invited attention to Sections 32 and 33 of the Act which are in the nature of
policy/regulatory decisions the authority is mandated under the Act. It can be further
noticed from Section 29(3) and (4) which talks about ‘questions’ before the authority,
to be disposed off within 60 days of receiving the ‘application’ and there is no
reference to any ‘complaints’ as indicated in Section 31 of the Act.
102. To examine the scheme of the Act it may be relevant to take note of certain
provisions add infra:—
“21. The Authority shall consist of a Chairperson and not less than two whole
time Members to be appointed by the appropriate Government.
29. (1) The Authority shall meet at such places and times, and shall follow such
rules of procedure in regard to the transaction of business at its meetings,
(including quorum at such meetings), as may be specified by the regulations made
by the Authority.
(2) If the Chairperson for any reason, is unable to attend a meeting of the
Authority, any other Member chosen by the Members present amongst themselves
at the meeting, shall preside at the meeting.
(3) All questions which come up before any meeting of the Authority shall be
decided by a majority of votes by the Members present and voting, and in the event
of an equality of votes, the Chairperson or in his absence, the person presiding shall
have a second or casting vote.
(4) The questions which come up before the Authority shall be dealt with as
expeditiously as possible and the Authority shall dispose of the same within a
period of sixty days from the date of receipt of the application:
Provided that where any such application could not be disposed of within the
said period of sixty days, the Authority shall record its reasons in writing for not
disposing of the application within that period.
31. (1) Any aggrieved person may file a complaint with the Authority or the
adjudicating officer, as the case may be, for any violation or contravention of the
provisions of this Act or the rules and regulations made thereunder against any
promoter allottee or real estate agent, as the case may be.
Explanation.—For the purpose of this sub-section “person” shall include the
association of allottees or any voluntary consumer association registered under any
law for the time being in force. (2) The form, manner and fees for filing complaint
under sub-section (1) shall be such as may be specified.
81. The Authority may, by general or special order in writing, delegate to any
member, officer of the Authority or any other person subject to such conditions, if
any, as may be specified in the order, such of its powers and functions under this
Act (except the power to make regulations under section 85), as it may deem
necessary.
103. Section 21 of the Act relates to the composition of the authority which
consists of a Chairperson and not less than two whole time members to be appointed
by the appropriate Government but conspicuously it does not mention minimum bench
strength at the same time consciously prescribes minimum bench/quorum while
constituting the Real Estate Appellate Tribunal as reflected under Section 43(3) of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Act.
104. The emphasis of the appellants was on Section 29 of the Act which indicates
the quorum of meetings of the authority. There is a specific provision that there shall
be a meeting of the authority with the minimum quorum being prescribed, such
business of the meeting of the authority indeed could not be delegated to a single
member of the authority in exercise of power under Section 81 of the Act.
105. The term meeting under Section 29 of the Act does not deal with the
performance of the authority in quasi-judicial matters which are referred to under
Section 31 of the Act. It only refers to meetings, policy/regulatory issues that the
authority is mandated to discharge under the Act. It may be noticed that Sections 32
and 33 are in the nature of policy/regulatory directions which the authority is
mandated to be discharged indisputably have to be undertaken by the authority while
functioning as a whole body under Section 29 of the Act.
106. To add it further, Section 29(3) and (4) of the Act talks about the questions
before the authority which are to be disposed of within 60 days on receiving the
applications. It may be noticed that there is no reference to any complaint referred to
under Section 31 of the Act. To buttress it further, Section 29 and Section 81 of the
Act are not in derogation to each other. To the contrary, both operate in different
fields. Section 29 deals with the meetings of the authority to be held for taking
policy/regulatory decisions in the interest of the stake holders and does not envisage
in its fold quasi-judicial functions which the Act casts upon the authority. The
legislative intention as reflected from Section 29 is a recognition of the rationale that
policy matters ought to be considered and decided by the entire strength of the
authority so that the policy decisions reflect the acquired experience of the members
and Chairman of the authority.
107. It may be relevant to note that the authority in its meeting held on 5th
December, 2018 in exercise of its power under Section 81 of the Act for disposal of
complaints under Section 31 delegated its power to a single member of the authority.
The extract of the minutes of the meeting dated 5th December, 2018 relevant for the
purpose is extracted as under:—
Sl. No. Agenda
5.01 Both the benches of Uttar Pradesh Real
Estate Regulatory Authority in the month
of December 2018 and subsequently also
while working as single benches as per
the requirement, proposal for disposal of
complaint cases at Lucknow and
Gautambudh Nagar on same dates
- -
- -
Point wise decision on agenda is as under:—
Agenda point no. 1:
Regarding hearing by both the benches of Uttar Pradesh Real Estate Regulatory
Authority in the month of December 2018 and subsequently also while working as
single benches as per the requirement, for disposal of complaint cases at Lucknow
and Gautambudh Nagar on same dates.
Decision:
Proposal was approved by the authority.
..
..”
108. Pursuant to the delegation of power to the single member of the authority,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
complaints filed by the allottees/home buyers for refund of the amount and interest
under Section 31 of the Act came to be decided by the single member of the authority
after hearing the parties in accordance with the provisions of the Act.
109. This Court, while examining the pari materia provisions of delegation of power
under Section 29A and Section 19 of the SEBI Act which empowered the board to
delegate its power to any member of the Board held that the board may in writing
delegate its power to any member of the board and such is valid in law as held by this
Court in Saurashtra Kutch Stock Exchange Ltd. (supra) as under:—
“6. The High Court dismissed the special civil application vide order dated 19-11
-2007 [Saurashtra Kutch Stock Exchange Ltd. v. SEBI, Special Civil Application No.
23902 of 2007, decided on 19-11-2007 (Guj)] and considered the submission of
the appellant in the following manner:
“Section 29-A is reproduced hereunder:
‘29-A. Power to delegate.—The Central Government may, by order
published in the Official Gazette, direct that the powers (except the power
under Section 30) exercisable by it under any provision of this Act shall, in
relation to such matters and subject to such conditions, if any, as may be
specified in the order, be exercisable also by the Securities and Exchange
Board of India or Reserve Bank of India constituted under Section 3 of the
Reserve Bank of India Act, 1934 (2 of 1934).’
Notification dated 13-9-1994 issued by the Central Government reads as under:
‘In exercise of powers conferred by Section 29-A of the Securities Contracts
(Regulation) Act, 1956 (42 of 1956), the Central Government hereby directs that
the powers exercisable by it under Section 3, sub-sections (1), (2), (3) and (4)
of Section 4, Section 5, sub-section (2) of Section 7-A, Section 13, sub-section
(2) of Section 18, Section 22 and sub-section (2) of Section 28 of the Act shall
also be exercisable by the Securities and Exchange Board of India.’
110. Section 19 of the SEBI Act, 1992 reads as under:
‘19. Delegation.—The Board may, by general or special order in writing delegate
to any member, officer of the Board or any other person subject to such conditions,
if any, as may be specified in the order, such of its powers and functions under this
Act (except the powers under Section 29) as it may deem necessary.’
Thus, the above Notification dated 13-9-1994 issued in exercise of power under
Section 29-A of the SCR Act of 1956, read with Section 19 of the SEBI Act, would
mean that the Board may in writing delegate its power to any member of the Board
and, therefore, the power exercised by the Full-Time Member of the Board under
Section 11 of the SEBI Act, 1992, or even withdrawal or recognition under Section 5
of the SCR Act of 1956, cannot be said to be unjust or arbitrary or dehors the
provisions of the statute and, therefore, the contention of Mr. Shelat that no remedy
of appeal is available to the petitioner cannot be accepted.”
9. In Para 2 of the civil appeal, the following question of law has been framed:
“Whether the whole-time single member of SEBI has no jurisdiction to cancel
or withdraw recognition granted to a stock exchange on the principle that
delegate cannot further delegate its power, and whether the order under
challenge is without jurisdiction?”
In our view, it is not necessary to go into the above question as we find that
this very question was raised by the appellant before the High Court in
extraordinary jurisdiction under Article 226 of the Constitution of India. The High
Court, as noted above, in its order dated 19-11-2007 [Saurashtra Kutch Stock
Exchange Ltd. v. SEBI, Special Civil Application No. 23902 of 2007, decided on
19-11-2007 (Guj)] held that the withdrawal of recognition under Section 5 of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
1956 Act by the Full-Time Member of SEBI under Section 11 of the Securities
and Exchange Board of India Act, 1992 cannot be said to be dehors the
provisions of the Act. The special leave petition from the above order of the High
Court came to be dismissed by this Court on 10-3-2008 [Saurashtra Kutch Stock
Exchange Ltd. v. SEBI, SLP (C) No. 5197 of 2008, decided on 10-3-2008 (SC)].
The same question cannot be allowed to be reopened in the present appeal.”
111. The express provision of delegation of power under the SEBI Act is akin to
Section 81 of the Act 2016. This Court observed that if the power has been delegated
by the competent authority under the statute, such action, if being exercised by a
single member cannot be said to be dehors the provisions of the Act.
112. In Heinz India Private Limited (supra), the revisional powers were conferred
upon the State Agricultural Market Board under Section 32 of the state law to examine
the orders passed by the market committee. Section 33 thereof empowered the Board
to delegate its powers to the Director. In the facts of the case, an objection was taken
to the exercise of revisional powers not by the Director himself but by some officer
lower in the hierarchy. This Court, while taking note of the definition of ‘Director’ as
provided in Section 2(h) to include “any other officer authorized by the Director to
perform all or any of his functions under this Act” held as under:—
“34. Now, it is true that the stakes involved in the present batch of cases are
substantial and those called upon to satisfy the demands raised against them would
like their cases to be heard by a senior officer or a committee of officers to be
nominated by the Board. But in the absence of any data as to the number of cases
that arise for consideration involving a challenge to the demands raised by the
Market Committee and the nature of the disputes that generally fall for
determination in such cases, it will not be possible for this Court to step in and
direct an alteration in the mechanism that is currently in place. The power to decide
the revisions vests with the Board who also enjoys the power to delegate that
function to the Director. So long as there is statutory sanction for the Director to
exercise the revisional power vested in the Board, any argument that such a
delegation is either impermissible or does not serve the purpose of providing a
suitable machinery for adjudication of the disputes shall have to be rejected.”
113. Section 81 of the Act 2016 empowers the authority, by general or special
order in writing, to delegate its powers to any member of the authority, subject to
conditions as may be specified in the order, such of the powers and functions under
the Act. What has been excluded is the power to make regulations under Section 85,
rest of the powers exercised by the authority can always be delegated to any of its
members obviously for expeditious disposal of the applications/complaints including
complaints filed under Section 31 of the Act and exercise of such power by a general
and special order to its members is always permissible under the provisions of the Act.
114. In the instant case, the authority by a special order dated 5th December, 2018
has delegated its power to the single member for disposal of complaints filed under
Section 31 of the Act. So far as refund of the amount with interest is concerned, it
may not be considered strictly to be mechanical in process but the kind of inquiry
which has to be undertaken by the authority is of a summary procedure based on the
indisputable documentary evidence, indicating the amount which the allottee/home
buyer had invested and interest that has been prescribed by the competent authority
leaving no discretion with minimal nature of scrutiny of admitted material on record is
needed, if has been delegated by the authority, to be exercised by the single member
of the authority in exercise of its power under Section 81 of the Act, which explicitly
empowers the authority to delegate under its wisdom that cannot be said to be dehors
the provisions of the Act.
115. What is being urged by the learned counsel for the appellants in interpreting
-----------------------------------------------------------------------------------------------------------------------------------------------------------
the scope of Section 29 of the Act is limited only to policy matters and cannot be read
in derogation to Section 81 of the Act and the interpretation as argued by learned
counsel for the promoters if to be accepted, the very mandate of Section 81 itself will
become otiose and nugatory.
116. It is a well-established principle of interpretation of law that the court should
read the section in literal sense and cannot rewrite it to suit its convenience; nor does
any canon of construction permit the court to read the section in such a manner as to
render it to some extent otiose. Section 81 of the Act positively empowers the
authority to delegate such of its powers and functions to any member by a general or
a special order with an exception to make regulations under Section 85 of the Act. As
a consequence, except the power to make regulations under Section 85 of the Act,
other powers and functions of the authority, by a general or special order, if delegated
to a single member of the authority is indeed within the fold of Section 81 of the Act.
117. The further submission made by learned counsel for the promoters that
Section 81 of the Act empowers even delegation to any officer of the authority or any
other person, it is true that the authority, by general or special order, can delegate any
of its powers and functions to be exercised by any member or officer of the authority
or any other person but we are not examining the delegation of power to any third
party. To be more specific, this Court is examining the limited question as to whether
the power under Section 81 of the Act can be delegated by the authority to any of its
member to decide the complaint under Section 31 of the Act. What has been urged by
learned counsel for the promoters is hypothetical which does not arise in the facts of
the case. If the delegation is made at any point of time which is in contravention to
the scheme of the Act or is not going to serve the purpose and object with which
power to delegate has been mandated under Section 81 of the Act, it is always open
for judicial review.
118. The further submission made by learned counsel for the appellants that
Section 81 of the Act permits the authority to delegate such powers and functions to
any member of the authority which are mainly administrative or clerical, and cannot
possibly encompass any of the core functions which are to be discharged by the
authority, the judicial functions are non-delegable, as these are the core functions of
the authority. The submission may not hold good for the reason that the power to be
exercised by the authority in deciding complaints under Section 31 of the Act is quasi-
judicial in nature which is delegable provided there is a provision in the statute. As
already observed, Section 81 of the Act empowers the authority to delegate its power
and functions to any of its member, by general or special order.
119. In the instant case, by exercising its power under Section 81 of the Act, the
authority, by a special order dated 5th December, 2018 has delegated its power to the
single member of the authority to exercise and decide complaints under Section 31 of
the Act and that being permissible in law, cannot be said to be de hors the mandate of
the Act. At the same time, the power to be exercised by the adjudicating officer who
has been appointed by the authority in consultation with the appropriate Government
under Section 71 of the Act, such powers are non-delegable to any of its members or
officers in exercise of power under Section 81 of the Act.
120. That scheme of the Act, 2016 provides an in-built mechanism and any order
passed on a complaint by the authority under Section 31 is appealable before the
tribunal under Section 43(5) and further in appeal to the High Court under Section 58
of the Act on one or more ground specified under Section 100 of the Civil Procedure
Code, 1908, if any manifest error is left by the authority either in computation or in
the amount refundable to the allottee/home buyer, is open to be considered at the
appellate stage on the complaint made by the person aggrieved.
121. In view of the remedial mechanism provided under the scheme of the Act
-----------------------------------------------------------------------------------------------------------------------------------------------------------
2016, in our considered view, the power of delegation under Section 81 of the Act by
the authority to one of its member for deciding applications/complaints under Section
31 of the Act is not only well defined but expressly permissible and that cannot be
said to be dehors the mandate of law.
Question no. 4 : - Whether the condition of pre-deposit under proviso to
Section 43(5) of the Act for entertaining substantive right of appeal is
sustainable in law?
122. Before we examine the challenge to the proviso to Section 43(5) of the Act of
making pre-deposit for entertaining an appeal before the Tribunal, it may be apposite
to take note of Section 43(5) of the Act, 2016. Section 43(5) reads as follows:—
“43. Establishment of Real Estate Appellate Tribunal-
…….
(5) Any person aggrieved by any direction or decision or order made by the
Authority or by an adjudicating officer under this Act may prefer an appeal before
the Appellate Tribunal having jurisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate Tribunal, it
shall not be entertained, without the promoter first having deposited with the
Appellate Tribunal at least thirty per cent of the penalty, or such higher
percentage as may be determined by the Appellate Tribunal, or the total amount
to be paid to the allottee including interest and compensation imposed on him, if
any, or with both, as the case may be, before the said appeal is heard.
Explanation - For the purpose of this sub-section “person” shall include the
association of allottees or any voluntary consumer association registered under any
law for the time being in force.”
123. It may straightaway be noticed that Section 43(5) of the Act envisages the
filing of an appeal before the appellate tribunal against the order of an authority or the
adjudicating officer by any person aggrieved and where the promoter intends to
appeal against an order of authority or adjudicating officer against imposition of
penalty, the promoter has to deposit at least 30 per cent of the penalty amount or
such higher amount as may be directed by the appellate tribunal. Where the appeal is
against any other order which involves the return of the amount to the allottee, the
promoter is under obligation to deposit with the appellate tribunal the total amount to
be paid to the allottee which includes interest and compensation imposed on him, if
any, or with both, as the case may be, before the appeal is to be instituted.
124. The plea advanced by the learned counsel for the appellants is that
substantive right of appeal against an order of authority/adjudicating officer cannot
remain dependent on fulfilment of pre-deposit which is otherwise onerous on the
builders alone and only the builders/promoters who are in appeal are required to make
the pre-deposit to get the appeal entertained by the Appellate Tribunal is
discriminatory amongst the stakeholders as defined under the provisions of the Act.
125. Learned counsel further submits that if the entire sum as has been computed
either by the Authority or adjudicating officer, is to be deposited including 30 per cent
of the penalty in the first place, the remedy of appeal provided by one hand is being
taken away by the other since the promoter is financially under distress and incapable
to deposit the full computed amount by the authority/adjudicating officer. The right of
appreciation of his defence at appellate stage which is made available to him under
the statute became nugatory because of the onerous mandatory requirement of pre-
deposit in entertaining the appeal only on the promoter who intends to prefer under
Section 43(5) of the Act which according to him is in the given facts and
circumstances of this case is unconstitutional and violative of Article 14 of the
Constitution of India.
126. The submission in the first blush appears to be attractive but is not
-----------------------------------------------------------------------------------------------------------------------------------------------------------
sustainable in law for the reason that a perusal of scheme of the Act makes it clear
that the limited rights and duties are provided on the shoulders of the allottees under
Section 19 of the Act at a given time, several onerous duties and obligations have
been imposed on the promoters i.e. registration, duties of promoters, obligations of
promoters, adherence to sanctioned plans, insurance of real estate, payment of
penalty, interest and compensation, etc. under Chapters III and VIII of the Act 2016.
This classification between consumers and promoters is based upon the intelligible
differentia between the rights, duties and obligations cast upon the allottees/home
buyers and the promoters and is in furtherance of the object and purpose of the Act to
protect the interest of the consumers vis-a-viz., the promoters in the real estate
sector. The promoters and allottees are distinctly identifiable, separate class of persons
having been differently and separately dealt with under the various provisions of the
Act.
127. Therefore, the question of discrimination in the first place does not arise which
has been alleged as they fall under distinct and different categories/classes.
128. It may further be noticed that under the present real estate sector which is
now being regulated under the provisions of the Act 2016, the complaint for refund of
the amount of payment which the allottee/consumer has deposited with the promoter
and at a later stage, when the promoter is unable to hand over possession in breach of
the conditions of the agreement between the parties, are being instituted at the
instance of the consumer/allotee demanding for refund of the amount deposited by
them and after the scrutiny of facts being made based on the contemporaneous
documentary evidence on record made available by the respective parties, the
legislature in its wisdom has intended to ensure that the money which has been
computed by the authority at least must be safeguarded if the promoter intends to
prefer an appeal before the tribunal and in case, the appeal fails at a later stage, it
becomes difficult for the consumer/allottee to get the amount recovered which has
been determined by the authority and to avoid the consumer/allottee to go from pillar
to post for recovery of the amount that has been determined by the authority in fact,
belongs to the allottee at a later stage could be saved from all the miseries which
come forward against him.
129. At the same time, it will avoid unscrupulous and uncalled for litigation at the
appellate stage and restrict the promoter if feels that there is some manifest material
irregularity being committed or his defence has not been properly appreciated at the
first stage, would prefer an appeal for re-appraisal of the evidence on record provided
substantive compliance of the condition of pre-deposit is made over, the rights of the
parties inter se could easily be saved for adjudication at the appellate stage.
130. There are multiple statutes which provide a condition of pre-deposit of a
stipulated statutory amount to be deposited before an appeal is entertained by an
appellate forum/tribunal for reappraisal of facts and law at the appellate stage and it
has been examined by this Court as well. Proviso to Section 18 of SARFAESI Act, 2002
of the Act which provides pre-deposit is as follows:—
“18. Appeal to Appellate Tribunal
…….
Provided further that no appeal shall be entertained unless the borrower has
deposited with the Appellate Tribunal fifty per cent of the amount of debt due from
him, as claimed by the secured creditors or determined by the Debts Recovery
Tribunal, whichever is less:
Provided also that the Appellate Tribunal may, for the reasons to be recorded in
writing, reduce the amount to not less than twenty-five per cent. of debt referred to
in the second proviso.”
131. The intention of the legislature appears to be to ensure that the rights of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
decree-holder (the successful party) is to be protected and only genuine bona fide
appeals are to be entertained. While interpretating Section 18 of SARFAESI Act, this
Court in Narayan Chandra Ghosh v. UCO Bank17 observed as under:—
“8. It is well-settled that when a statute confers a right of appeal, while granting
the right, the legislature can impose conditions for the exercise of such right, so
long as the conditions are not so onerous as to amount to unreasonable restrictions,
rendering the right almost illusory. Bearing in mind the object of the Act, the
conditions hedged in the said proviso cannot be said to be onerous. Thus, we hold
that the requirement of pre-deposit under subsection (1) of Section 18 of the Act is
mandatory and there is no reason whatsoever for not giving full effect to the
provisions contained in Section 18 of the Act. In that view of the matter, no court,
much less the Appellate Tribunal, a creature of the Act itself, can refuse to give full
effect to the provisions of the statute. We have no hesitation in holding that deposit
under the second proviso to Section 18(1) of the Act being a condition precedent
for preferring an appeal under the said section, the Appellate Tribunal had erred in
law in entertaining the appeal without directing the appellant to comply with the
said mandatory requirement.”
132. In Har Devi Asnani v. State of Rajasthan18 , the validity of proviso to Section
65(1) of the Rajasthan Stamp Act, 1998 came up for consideration in terms of which
no revision application could be entertained unless it was accompanied by a
satisfactory proof of payment of 50 per cent of the recoverable amount. Relying on the
earlier decisions of this Court including in Government of Andhra Pradesh v. P. Laxmi
Devi (Smt.)19 , the challenge was repelled and the view expressed in P. Laxmi Devi
(supra) was repeated in Har Devi Ashani (supra) wherein this Court held as under:—
“In our opinion in this situation it is always open to a party to file a writ petition
challenging the exorbitant demand made by the registering officer under the
proviso to Section 47-A alleging that the determination made is arbitrary and/or
based on extraneous considerations, and in that case it is always open to the High
Court, if it is satisfied that the allegation is correct, to set aside such exorbitant
demand under the proviso to Section 47-A of the Stamp Act by declaring the
demand arbitrary. It is well settled that arbitrariness violates Article 14 of the
Constitution vide Maneka Gandhi v. Union of India [(1978) 1 SCC 248]. Hence, the
party is not remediless in this situation.”
133. At the same time, Section 19 of the Consumer Protection Act, 1986 prescribes
a condition for pre-deposit which provides that an appeal shall not be entertained
unless 50 per cent of the amount awarded by the State Commission or Rs. 35,000/-
whichever is less is deposited before the National Consumer Disputes Redressal
Commission(NCDRC). This Court while placing reliance on State of Haryana v. Maruti
Udyog Ltd.20 ; in Shreenath Corporation v. Consumer Education and Research Society21
held that such a condition is imposed to avoid frivolous appeals.
“7. Section 19 of the Consumer Protection Act, 1986 deals with the appeals
against the order made by the State Commission in exercise of its power conferred
by sub-clause (i) of clause (a) of Section 17 and the said section reads as follows:
“19. Appeals.—Any person aggrieved by an order made by the State
Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of
Section 17 may prefer an appeal against such order to the National Commission
within a period of thirty days from the date of the order in such form and manner
as may be prescribed:
Provided that the National Commission may entertain an appeal after the expiry
of the said period of thirty days if it is satisfied that there was sufficient cause for
not filing it within that period:
Provided further that no appeal by a person, who is required to pay any amount
-----------------------------------------------------------------------------------------------------------------------------------------------------------
in terms of an order of the State Commission, shall be entertained by the National

Commission unless the appellant has deposited in the prescribed manner fifty per
cent of the amount or rupees thirty-five thousand, whichever is less.”
On plain reading of the aforesaid Section 19, we find that the second proviso to
Section 19 of the Act relates to “pre-deposit” required for an appeal to be
entertained by the National Commission.
9. The second proviso to Section 19 of the Act mandates pre-deposit for
consideration of an appeal before the National Commission. It requires 50% of the
amount in terms of an order of the State Commission or Rs. 35,000, whichever is
less for entertainment of an appeal by the National Commission. Unless the
appellant has deposited the pre-deposit amount, the appeal cannot be entertained
by the National Commission. A pre-deposit condition to deposit 50% of the amount
in terms of the order of the State Commission or Rs. 35,000 being condition
precedent for entertaining appeal, it has no nexus with the order of stay, as such an
order may or may not be passed by the National Commission. The condition of pre-
deposit is there to avoid frivolous appeals.”
134. Similarly, under Section 19 of the Micro, Small and Medium Enterprises
Development Act, 2006, any appellant, other than the supplier, is required to make a
pre-deposit of 75 per cent to maintain an appeal against any decree, award or order
made either by the Micro and Small Enterprises Facilitation Council or by any
institution or center providing alternate dispute resolution services to which a
reference is made by the Council. Section 19 reads as follows:—
“19. Application for setting aside decree, award or order.—No application
for setting aside any decree, award or other order made either by the Council itself
or by any institution or centre providing alternate dispute resolution services to
which a reference is made by the Council, shall be entertained by any court unless
the appellant (not being a supplier) has deposited with it seventy-five per cent. of
the amount in terms of the decree, award or, as the case may be, the other order in
the manner directed by such court : Provided that pending disposal of the
application to set aside the decree, award or order, the court shall order that such
percentage of the amount deposited shall be paid to the supplier, as it considers
reasonable under the circumstances of the case, subject to such conditions as it
deems necessary to impose.”
135. Similarly, the condition of pre-deposit has been examined recently by this
Court in Tecnimont Pvt. Ltd. (Formerly Known As Tecnimont ICB Private Limited) v.
State of Punjab22 , where the validity of Section 62(5) of the Punjab Value Added Tax
Act, 2005 (PVAT) which imposes a condition of 25 per cent of pre-deposit for hearing
of first appeal has been upheld. Section 62(5) of the PVAT Act reads as follows:—
“62. First Appeal
……
(5) No appeal shall be entertained, unless such appeal is accompanied by
satisfactory proof of the prior minimum payment of twenty-five per cent of the total
amount of tax, penalty and interest, if any.
……..”
136. To be noticed, the intention of the instant legislation appears to be that the
promoters ought to show their bona fides by depositing the amount so contemplated.
137. It is indeed the right of appeal which is a creature of the statute, without a
statutory provision, creating such a right the person aggrieved is not entitled to file
the appeal. It is neither an absolute right nor an ingredient of natural justice, the
principles of which must be followed in all judicial and quasi-judicial litigations and it
is always be circumscribed with the conditions of grant. At the given time, it is open
for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on
-----------------------------------------------------------------------------------------------------------------------------------------------------------
fulfilment of precondition, if any, against the order passed by the Authority in

question.
138. In our considered view, the obligation cast upon the promoter of pre-deposit
under Section 43(5) of the Act, being a class in itself, and the promoters who are in
receipt of money which is being claimed by the home buyers/allottees for refund and
determined in the first place by the competent authority, if legislature in its wisdom
intended to ensure that money once determined by the authority be saved if appeal is
to be preferred at the instance of the promoter after due compliance of pre-deposit as
envisaged under Section 43(5) of the Act, in no circumstance can be said to be
onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of
India.
Question No. 5 : -Whether the authority has the power to issue recovery
certificates for recovery of the principal amount under Section 40(1) of the
Act?
139. To examine this question, it will be apposite to take note of Section 40 that
states regarding the recovery of interest or penalty or compensation to be recovered as
arrears of land revenue, and reads as under:—
40. Recovery of interest or penalty or compensation and enforcement of
order, etc.—
(1) If a promoter or an allottee or a real estate agent, as the case may be, fails
to pay any interest or penalty or compensation imposed on him, by the
adjudicating officer or the Regulatory Authority or the Appellate Authority, as
the case may be, under this Act or the rules and regulations made thereunder,
it shall be recoverable from such promoter or allottee or real estate agent, in
such manner as may be prescribed as an arrears of land revenue.
(2) If any adjudicating officer or the Regulatory Authority or the Appellate
Tribunal, as the case may be, issues any order or directs any person to do any
act, or refrain from doing any act, which it is empowered to do under this Act
or the rules or regulations made thereunder, then in case of failure by any
person to comply with such order or direction, the same shall be enforced, in
such manner as may be prescribed.”
140. The submission of the appellants/promoters is that under Section 40(1) of the
Act only the interest or penalty imposed by the authority can be recovered as arrears
of land revenue and no recovery certificate for the principal amount as determined by
the authority can be issued. If we examine the scheme of the Act, the power of
authority to direct the refund of the principal amount is explicit in Section 18 and the
interest that is payable is on the principal amount in other words, there is no interest
in the absence of a principal amount being determined by the competent authority.
Further the statute as such is read to mean that the principal sum with interest has
become a composite amount quantified upon to be recovered as arrears of land
revenue under Section 40(1) of the Act.
141. It is settled principle of law that if the plain interpretation does not fulfil the
mandate and object of the Act, this Court has to interpret the law in consonance with
the spirit and purpose of the statute. There is indeed a visible inconsistency in the
powers of the authority regarding refund of the amount received by the promoter and
the provision of law in Section 18 and the text of the provision by which such refund
can be referred under Section 40(1). While harmonising the construction of the
scheme of the Act with the right of recovery as mandated in Section 40(1) of the Act
keeping in mind the intention of the legislature to provide for a speedy recovery of the
amount invested by the allottee along with the interest incurred thereon is self-
explanatory. However, if Section 40(1) is strictly construed and it is understood to
mean that only penalty and interest on the principal amount are recoverable as arrears
-----------------------------------------------------------------------------------------------------------------------------------------------------------
of land revenue, it would defeat the basic purpose of the Act.

142. Taking into consideration the scheme of the Act what is to be returned to the
allottee is his own life savings with interest on computed/quantified by the authority
becomes recoverable and such arrear becomes enforceable in law. There appears some
ambiguity in Section 40(1) of the Act that in our view, by harmonising the provision
with the purpose of the Act, is given effect to the provisions is allowed to operate
rather running either of them redundant, noticing purport of the legislature and the
above-stated principle into consideration, we make it clear that the amount which has
been determined and refundable to the allottees/home buyers either by the authority
or the adjudicating officer in terms of the order is recoverable within the ambit of
Section 40(1) of the Act.
143. The upshot of the discussion is that we find no error in the judgment
impugned in the instant appeals. Consequently, the batch of appeals are disposed off
in the above terms. However, we make it clear that if any of the appellant intends to
prefer appeal before the Appellate Tribunal against the order of the authority, it may
be open for him to challenge within 30 days from today provided the appellant(s)
comply with the condition of pre-deposit as contemplated under the proviso to Section
43(5) of the Act which may be decided by the Tribunal on its own merits in accordance
with law. No costs.
144. Pending application(s), if any, stand disposed of.
———
1 AIR 1961 SC 307
2 (2007) 12 SCC 198
3 (2019) 19 SCC 529
4 (2020) 9 SCC 1
5 (2020) 10 SCC 783
6
1950 SCR 621
7
(1960) 2 SCR 775
8
(1962) 2 SCR 339
9 [1953] 2 Q.B. 18
10 [1956] 1 Q.B. 658
11 (1965) 2 SCR 929
12 (1994) 5 SCC 346
13
(2015) 16 SCC 542
14 (2012) 13 SCC 501
15 (1978) 2 SCC 102
16
(2012) 5 SCC 443
17 (2011) 4 SCC 548
18 (2011) 14 SCC 160
19
(2008) 4 SCC 720
20 (2000) 7 SCC 348
21 (2014) 8 SCC 657
-----------------------------------------------------------------------------------------------------------------------------------------------------------
22
AIR 2019 SC 4489
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

2021 SCC Online SC 1044 in The Supreme Court of India: Versus

Uploaded by

Copyright:

Available Formats

2021 SCC Online SC 1044 in The Supreme Court of India: Versus

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2021 SCC Online SC 1044 in The Supreme Court of India: Versus

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2021 EBC Publishing Pvt. Ltd.

Page 1 Friday, December 10, 2021

2021 SCC OnLine SC 1044

In the Supreme Court of India

Civil Appeal No(s). 6745 - 6749 of 2021

enacted by the Parliament in 2016.

event where there is any structural defect.

Question 1 : - Whether the Act 2016 is retrospective or retroactive in its

online in form - M. The Claims of compensation will also be included in form - M

disposed of within 60 days failing which the reasons are to be recorded.

be exercised by the regulatory authority/adjudicating officer. “Refund of the amount”

clear implication permits it.

authority itself as a minimum bench strength.

in terms of an order of the State Commission, shall be entertained by the National

fulfilment of precondition, if any, against the order passed by the Authority in

of land revenue, it would defeat the basic purpose of the Act.

You might also like