M/S. NEWTECH PROMOTERS AND DEVELOPERS PVT. LTD. versus STATE OF UP & ORS. ETC.

Citation: [2021] 9 S.C.R. 909 · Decided: 11-11-2021 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Disposed off

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Judgment (excerpt)

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   [2021] 9 S.C.R. 909
909
M/S. NEWTECH PROMOTERS AND DEVELOPERS PVT. LTD.
v.
STATE OF UP & ORS. ETC.
(Civil Appeal Nos. 6745-6749 of 2021)
NOVEMBER 11, 2021
[UDAY UMESH LALIT, AJAY RASTOGI
AND ANIRUDDHA BOSE, JJ.]
Real Estate (Regulation and Development) Act, 2016:
ss. 3,18, 19, 31, 71, 81, 43(5) proviso and 40(1) – Appellants-
promoters and real estate developers failed to hand over possession
of the unit to allottees/home buyers – Complaint by home buyers
for refund – Single member of regulatory authority passed order
directing refund of the principal amount with interest – Writ petition
by promoters/real estate developers contending that single member
had no jurisdiction to pass the order of refund, and also challenged
the condition of pre-deposit for filing statutory appeal – Dismissal
of writ petition – On appeal, held: Act of 2016 is retroactive in
character – Conjoint reading of ss. 18 and 19 clearly manifests the
power of regulatory authority to examine and determine the outcome
of the complaint and refund of amount or interest thereon – It was
permissible for authority to delegate its power to one of its members
u/s 31 – Furthermore, the condition of pre-deposit for appeal was
sustainable – Thus, there is no error in the order passed by the
High Court – Uttar Pradesh Real Estate (Regulation and
Development) Rules, 2016.
Act of 2016 – Retrospective or retroactive in its operation –
Held: Application of the Act is retroactive in character and it cannot
be said to be violative of either Art. 14 or 19(1)(g) – 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 –
Projects already completed or to which the completion certificate
has been granted are not under its fold – At the same time, it would
apply after getting the on-going projects and future projects
registered u/s. 3 to prospectively follow the mandate of the Act – ss.
3(1), 13, 18(1) and 19(4) – Constitution of India – Arts. 14, 19(1)(g).
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SUPREME COURT REPORTS
[2021] 9 S.C.R.
ss. 12, 14, 18, 19 and 71 – Return/refund of the amount to
allottee – Jurisdiction of, regulatory authority or adjudicating officer
– Held: There is a complete delineation of the jurisdiction vested
with the regulatory authority and the adjudicating officer – A
conjoint reading of ss. 18 and 19 clearly manifests that when it
comes to refund of the amount, and interest thereon, it is the
regulatory authority which has the power to examine and determine
the outcome of a complaint – When it comes to seeking the relief of
adjudging compensation and interest thereon, the adjudicating
officer exclusively has the power to determine, keeping in view the
collective reading of s.71 r/w s.72 – If the adjudication u/ss. 12,
14, 18 and 19 other than compensation as envisaged, if extended
to the adjudicating officer as prayed that, may intend to expand
the ambit and scope of the powers and functions of the adjudicating
officer u/s. 71 and that would be against the mandate of the Act
2016.
s. 81 – Delegation of power to single member of the authority
to hear complaint instituted u/s. 31 – Permissibility of – Held: Is
permissible – s. 81 positively empowers the authority to delegate
such of its powers and functions to one of its member by general or
special order subject to s. 85 – It cannot said to be dehors the
mandate of law.
s. 43(5) proviso – Condition of pre-deposit for filing appeal
– Sustainability of – Held: Is sustainable in law – Obligation is cast
upon the promoter of pre-deposit u/s. 43(5), being a class in itself,
and the promoters 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 – Intention of the legislature was
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 u/s. 43(5) – Thus, it cannot
said to be onerous or in violation of Arts. 14 or 19(1)(g) of the
Constitution.
s. 40(1) – Issuance of recovery certificates for recovery of
principle amount under – Power of the authority – Held: Power of
authority to direct the refund of the principal amount is explicit in s.
18 and the interest that is payable is on the principal amount –
There is no interest in the absence of a 

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