NDLI: M/s. Newtech Promoters and Developers Pvt. Ltd. Vs. State of Up & Ors. Etc.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Real Estate (Regulation and Development) Act
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Disposed Off
Headnote	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).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 Constitutions. 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 principal amount beingdetermined by the competent authority – 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 u/s. 40(1) – There appears some ambiguity in s. 40(1) and by harmonising the construction of the scheme of the Act with the right of recovery as mandated in s. 40(1), it is made 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 s. 40(1). A B Object and reasons of the Act – Explained. Interpretation of Statutes: Retroactive statute – Meaning of – Held: Retroactive statute means a statute which creates a new obligation on transactions or considerations already passed or destroys or impairs vested rights – 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
Judge	Hon'ble Mr. Justice Ajay Rastogi
Neutral Citation	2021 INSC 716
Petitioner	M/s. Newtech Promoters And Developers Pvt. Ltd.
Respondent	State Of Up & Ors. Etc.
SCR	[2021] 9 S.C.R. 909
Judgement Date	2021-11-11
Case Number	6745

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