Bombay High Court
Marvel Landmarks Pvt. Ltd. vs The State Of Maharashtra And Ors on 7 April, 2026
2026:BHC-AS:16466
901-F-J-WP-12121-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12121 OF 2024
Marvel Landmarks Pvt. Ltd. ...Petitioner
Versus
The State of Maharashtra & Ors ...Respondents
Mr. Amit Gharat, for Petitioner.
Mr. Abhishek Kothari a/w Monish Jain & Gaurav Nashikkar, i/b
M J Partners, for Respondent No.5.
Mr. R.S. Pawar, AGP for the Respondent-State.
CORAM : SOMASEKHAR SUNDARESAN, J.
RESERVED ON : January 22, 2026
PRONOUNCED ON : April 7, 2026
Judgement:
1. Rule. Rule is made returnable forthwith. By consent of the
parties, heard finally.
Context and Factual Background:
2. The Writ Petition raises an interesting question as to whether
an order dated December 17, 2019 (” Impugned Order”) passed by the
Learned Adjudicating Officer of the Real Estate Regulatory Authority
DigitallyASHWINI
signed by
ASHWINI
JANARDAN
(“Authority”), is rendered non est by reason of the law declared by the
JANARDAN VALLAKATI
VALLAKATI Date:
2026.04.07
15:56:37
+0530
Supreme Court in 2021, interpreting the provisions of the Real EstatePage 1 of 38
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901-F-J-WP-12121-2024.doc(Regulation and Development) Act, 2016 (” RERA Act“). The prayer in
this Writ Petition is to quash and set aside the Impugned Order and
another order dated October 8, 2021 (” Recovery Order”) passed in
recovery proceedings, on the premise that they are in conflict with the
law subsequently declared by the Supreme Court.
3. The relevant facts for purpose of adjudicating this Petition
fall in a rather narrow compass and are summarized below:-
A] A Learned Adjudicating Officer of the Authority passed the
Impugned Order directing refund of the amount of
Rs.1,35,99,246/- along with interest @10.20% per annum paid to
the Petitioner, Marvel Landmarks Pvt. Ltd. (” Marvel”) by
Respondent No.5, Mr. Siddharth Mohan Palesha, (” Flat
Purchaser”) until realisation;
B] The Impugned Order was not challenged within the
statutory period available for an Appeal under Section 44 of the
RERA Act;
C] On October 8, 2021, on account of non-compliance with the
Impugned Order, an order was passed for issuance of recovery
warrant (“Recovery Order”). Execution of RERA’s order for
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901-F-J-WP-12121-2024.docrefund of monies is to be effected as if the penalties were arrears
of land revenue under the Maharashtra Land Revenue Code,
1966;
D] On November 11, 2021, the Supreme Court passed a
judgment in the case of Newtech1 which, according to Marvel,
renders the Impugned Order and the Recovery Order non est; and
E] According to Marvel, an Adjudicating Officer can only pass
orders relating to compensation while an order of refund cannot
be passed by the Adjudicating Officer, and towards this end, the
law declared in Newtech is sought to be pressed into service.
Core Issue:
4. The short question to be considered for adjudicating in this
Petition is whether pursuant to the law declared in Newtech, Marvel
would be entitled to immunity from compliance with the Impugned
Order on the premise that the law as declared in Newtech, has rendered
the Impugned Order non est in the eyes of law. Put differently, the case
of Marvel is that Newtech has rendered the Impugned Order, although
passed in the past and having attained finality in the absence of a
1 Newtech Promoters and Developers Pvt. Ltd. v. State of UP – (2021) 18 SCC
1
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901-F-J-WP-12121-2024.docchallenge under a statutory appeal, even now the Impugned Order can
be quashed as being a product of exercise of power by an authority
without jurisdiction.
Contentions of the Parties:
5. Against this backdrop, I have heard at length Mr. Amit
Gharte, Learned Advocate for Marvel and Mr. Abhishek Kothari,
Learned Advocate for the Flat Purchasers, and, with their assistance,
examined the materials relied upon by them in furtherance of their
submissions.
6. Mr. Gharte would submit that in view of the law declared in
Newtech, this Court should declare that the Learned Adjudicating
Officer who passed the Impugned Order was wholly without
jurisdiction. The jurisdiction to order a refund along with interest is
unavailable under Section 71 of the RERA Act, he would submit,
contending therefore, that any attempt to execute the Impugned Order
would be illegal. Mr. Gharte would also rely upon a decision of a
Learned Division Bench of this Court in the case of Marveledge2. He
would also draw my attention to other decisions of the same Learned
2 Marveledge Realtors Pvt. Ltd. v. State of Maharashtra – judgement dated
September 13, 2024 in Writ Petition No.10912 of 2022
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Division Bench following the ruling in Marveledge, and to a decision of a
Learned Single Judge in a Petition filed by this very Petitioner 3, wherein
a stay was granted on an order directing refund as also an order of
proclamation issued in recovery proceedings. A final ruling the aforesaid
Writ Petition regard did not transpire, since the parties settled the
dispute and the Petition was withdrawn.
7. Mr. Gharte would further rely on a decision of the Supreme
Court in Kiran Singh4 and in particular, Paragraph 6 thereof, which
reads thus:-
“6. The answer to these contentions must depend on what the position in
law is when a court entertains a suit or an appeal over which it has no
jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on
that position. It is a fundamental principle well established that a decree
passed by a court without jurisdiction is a nullity, and that its invalidity
could be set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral proceedings. A
defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in
respect of the subject-matter of the action, strikes at the very authority of the
court to pass any decree, and such a defect cannot be cured even by consent
of parties. If the question now under consideration fell to be determined only
on the application of general principles governing the matter, there can be
no doubt that the District Court of Monghyr was coram non judice, and that3 Marvel Landmarks Pvt. Ltd. v. State of Maharashtra and Ors. – judgement
dated July 24, 2024 in Writ Petition No.10088 of 2024
4 Kiran Singh & Ors v. Chaman Paswan & Ors. – (1954) 1 SCC 710
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of Section 11 of the Suits Valuation Act on this position.
[Emphasis Supplied]
8. Based on the aforesaid reasoning, Mr. Gharte would also
submit that, after the declaration of the law in Newtech, there are
instances where RERA itself has not been enforcing its refund orders on
the premise that they are a nullity. Therefore, he desires that the Writ
Court must endorse such a position and positively declare the Impugned
Order and the Recovery Order are a nullity.
9. In sharp contrast, Mr. Abhishek Kothari, Learned Advocate
on behalf of the Flat Purchaser, would submit that when the Impugned
Order was passed, the Learned Adjudicating Officer was validly
discharging the functions assigned to him by the Authority, and that he
declared the refund to be due in exercise of such valid authority. Mr.
Kothari would submit that under the provisions of the RERA Act, the
Authority is to consist of a Chairperson and not less than two full-time
members. Likewise, for the purposes of exercising jurisdiction under
Section 71 of the Act, Adjudicating Officers are to be appointed by
RERA. Regardless of whether it is an Adjudicating Officer or a Whole
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Time Member (“WTM”) discharging the functions, it would be the
Authority that is discharging the functions when they so act.
10. Mr. Kothari would point to Section 30(c) of the RERA Act, to
indicate that no act or proceeding of the Authority shall become invalid,
merely by a reason of any irregularity in the procedure of the Authority,
not affecting the merits of the case. He would further submit that the
Impugned Order was amenable to an Appeal in terms of Section 43(5) of
the RERA Act. Any person aggrieved by any direction, decision or order
made by RERA or by an Adjudicating Officer is entitled to file an Appeal
before the Appellate Tribunal. Such Appeal is required to be filed within
a period of 60 days with a further extension of 60 days, during which a
delay in filing an Appeal may be condoned by the Appellate Tribunal.
Since Marvel did not challenge the Impugned Order at all, the
Impugned Order became final and is executable as if it were arrears of
land revenue, and therefore, such crystallised rights cannot be undone
by Marvel by a subsequent judgement. In any case, Marvel has come to
Court with significant delay from date of the Impugned Order and the
writ jurisdiction cannot be used to re-open closed matters that have
attained finality. Once the Impugned Order became executable as a
decree on the expiry of 120 days from when it was passed, having
attained finality, it would follow that even if the law declared in Newtech
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were to be somehow adopted by Marvel, it cannot disturb positions that
have already been crystallised and have attained finality.
11. Even while Newtech was decided on November 11, 2021, this
Petition has been filed only on August 26, 2024. Therefore, Mr. Kothari
would submit that there are two layers of delay and laches that visit this
Petition – the first is the delay from the passing of the Impugned Order
in December 2019, by which count the delay is of nearly five years; and
second, even after the law was declared in Newtech, Marvel has come
nearly three years late. Therefore, Mr. Kothari would submit that this
Court, in exercise of its discretionary extraordinary jurisdiction, ought
not to entertain this Petition or grant any relief to a party that is taking a
chance at disturbing crystallised rights that have already partaken the
character of a decree.
12. Mr. Kothari would further submit that even in the execution
proceedings, not once did Marvel raise any issue about purportedly
benefiting from the law declared in Newtech. In fact, it is when the
Collector (Respondent No.3 and 4, the District Collector Pune and the
Tehsildar, Taluka Haveli) abdicated their duties that the Flat Purchaser
was constrained to file Writ Petition No.2271 of 2024 (” WP 2271″)
seeking a mandamus and a direction to the Collector to deal with the
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matter. It is in that petition that the contention of Newtech having
denuded the Impugned Order of enforceability has been taken by this
Petitioner. As a backlash to the filing of WP 2271, the present Petition
has been filed in August 2024.
13. Mr. Kothari would also point to Marvel having been admitted
to a Corporate Insolvency Resolution Process (” CIRP”) under the
Insolvency and Bankruptcy Code, 2016 (” IBC”) on June 13, 2025 which
came to be withdrawn in view of a settlement being arrived at in those
proceedings recorded before the Adjudicating Authority under the IBC.
Yet, an Interim Application No.10471 of 2025 was filed in the WP 2271
on July 19, 2025, claiming that Marvel was a protectee of the
moratorium under the IBC. Even in this application, Marvel did not
employ the stance raised in this Writ Petition, namely, that the
Impugned Order is non est. Therefore, he would submit that this Court
ought not to exercise its discretionary in favour of such a party.
14. Mr. Kothari would rely on the decision of the Supreme Court
in Saurashtra Kutch Stock Exchange5, to submit that a judicial decision,
while retrospective, would not disturb matters that are res judicata or
5 Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock
Exchange Ltd. – 2008 (14) SCC 171
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where accounts have been settled in the meantime. He would rely on the
following extracts:-
35. In our judgment, it is also well settled that a judicial decision acts
retrospectively. According to Blackstonian theory, it is not the function of the
court to pronounce a “new rule” but to maintain and expound the “old
one”. In other words, Judges do not make law, they only discover or find the
correct law. The law has always been the same. If a subsequent decision
alters the earlier one, it (the later decision) does not make new law. It only
discovers the correct principle of law which has to be applied
retrospectively. To put it differently, even where an earlier decision of the
court operated for quite some time, the decision rendered later on would
have retrospective effect clarifying the legal position which was earlier not
correctly understood.
36. Salmond in his well known work states:
“[T]he theory of case law is that a judge does not make law; he merely
declares it; and the overruling of a previous decision is a declaration that
the supposed rule never was law. Hence any intermediate transactions made
on the strength of the supposed rule are governed by the law established in
the overruling decision. The overruling is retrospective, except as regards
matters that are res judicatae or accounts that have been settled in the
meantime.”
[Emphasis Supplied]
15. Further reliance is placed on UP Jal Nigam6 to indicate that
delay in approaching the Writ Court would be a material factor for not
6 U.P. Jal Nigam v. Jaswant Singh – (2006) 11 SCC 464
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granting relief, even if relief had been granted in earlier timely writs
invoking the same principles of law. Various employees of the Uttar
Pradesh Jal Nigam had been retired on superannuation at the age of 58
years. Some of them challenged the retirement and were allowed to
continue up to the age of 60 years. This led to Appeals in the Supreme
Court in the case of Harwindra Kumar7, which ruled that
superannuation would occur at the age of 60. During the pendency of
such proceedings, a set of Writ Petitions came to be filed in the High
Court by employees who had retired long back at the age of 58. Some of
the petitioners who were yet to retire got relief with interim orders
allowing them to continue in service. All the writs came to be disposed
of in the light of the ruling in Harwindra Kumar.
16. In appeal, the Supreme Court was faced with the question as
to whether relief should be granted to other similarly placed persons
who were not vigilant and did not stay alert to challenge their
retirement and had gone on to accept the same, but much later filed
Writ Petitions invoking the judgement in Harwindra Kumar. This was
considered by the Supreme Court as a serious question and was
answered in UP Jal Nigam, essentially holding that those who are not
alert and do not come to Court in time have acquiesced in accepting
7 Harwindra Kumar v. Chief Engineer, Karmik & Ors. – (2005) 13 SCC 300
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their retirement without challenge in time. If they had been vigilant and
had come to Court along with the others who eventually succeeded, they
could have been given the same treatment but the Court should be very
slow in granting reliefs to those who did not come in time. Therefore,
the Court refused to come to the aid of the employees who did not
contemporaneously approach the Writ Court on the premise that the
discretionary power to issue a writ would not be exercised in their
favour.
17. Mr. Kothari would also rely upon the judgement in Bhailal
Bhai8 whereby 31 appeals filed by State of Madhya Pradesh challenging
disposal of petitions filed by tobacco dealers on the sales tax on tobacco
was considered. The Supreme Court considered that a tax applicable
before independence in the State of Madhya Bharat would have been
saved within the saving provisions of Article 304(a) of the Constitution
of India. It was held that the tax was in contravention of the provisions
of Article 301 of the Constitution and had been rightly held to be invalid
and those assessments were invalid in law. At the same time, the
Supreme Court held (in para 17) that Article 226 is not intended to
supersede all the modes of relief that are available to the parties and
8 State of Madhya Pradesh & Ors. v. Bhailal Bhai & Ors. – 1964 SCC OnLine
SC 10
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that the power to give relief under Article 226 must necessarily factor in
the delay on the part of the aggrieved party in seeking a special
extraordinary remedy and the excuse presented for seeking such
remedy. Therefore, the following extracts are noteworthy.
At the same time we cannot lose sight of the fact that the special remedy
provided in Article 226 is not intended to supersede completely the modes of
obtaining relief by an action in a Civil Court or to deny defences legitimately
open in such actions. It has been made clear more than once that the power to
give relief under Article 226 is a discretionary power. This is specially true in
the case of power to issue writs in the nature of mandamus. Among the several
matters which the High Courts rightly take into consideration in the exercise
of that discretion is the delay made by the aggrieved party in seeking this
special remedy and what excuse there is for it. Another is the nature of
controversy of facts and law that may have to be decided as regards the
availability of consequential relief. Thus, where, as in these cases, a person
comes to the court for relief under Article 226 on the allegation that he has
been assessed to tax under a void legislation and having paid it under a
mistake is entitled to get it back, the court, if it finds that the assessment was
void, being made under a void provision of law, and the payment was made by
mistake, is still not bound to exercise its discretion directing repayment.
Whether repayment should be ordered in the exercise of this discretion will
depend in each case on its own facts and circumstances. It is not easy nor is it
desirable to lay down any Rule for universal application. It may however be
stated as a general Rule that if there has been unreasonable delay the court
ought not ordinarily to lend its aid to a party by this extraordinary remedy of
mandamus. Again, where even if there is no such delay the Government or the
statutory authority against whom the consequential relief is prayed for raises
a prima facie triable issue as regards the availability of such relief on the
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merits on the grounds like limitation the court should ordinarily refuse to issue
the writ of mandamus for such payment. In both these kinds of cases it will be
sound use of discretion to leave the party to seek his remedy by the ordinary
mode of action in a Civil Court and to refuse to exercise in his favour the
extraordinary remedy under Article 226 of the Constitution.
[Emphasis Supplied]
18. In support of his contention, under Section 30 of the RERA
Act, namely, that irregularity in procedure not affecting the merits of the
case would not invalidate the decision, Mr. Kothari would rely upon BK
Srinivasan9 and in particular paragraph 11 which is extracted below:-
11. The only other provision of the Act to which reference is necessary is,
what we may call, the “Ganga” clause [ According to Hindu tradition the
waters of the Ganga purify, cleanse the sins and remedy all insufficiencies.].
Section 76-J which provides for “Validation of acts and proceedings”. It is
as follows:
“76-J. Validation of acts and proceedings.–No act done or
proceeding taken under this Act shall be questioned on the ground
merely of,
(a) the existence of any vacancy in, or any defect in the constitution of
the Board or any Planning Authority;
(b) any person having ceased to be a member;
(c) any person associated with the Board or any Planning Authority
under Section 4-F having voted in contravention of the said section; or
(d) the failure to serve a notice on any person, where no substantial
injustice has resulted from such failure; or
9 B. K. Srinivasan & Ors. v. State of Karnataka – (1987) 1 SCC 658
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(e) any omission, defect or irregularity not affecting the merits of the
case.
19. Mr. Kothari would submit that the provisions of Section 76-J
extracted in the aforesaid case were a “Ganga Clause” which is meant to
cleanse and purify any insufficiency and that is precisely what is codified
in Section 30(c) of the RERA Act. Towards this end, he would submit
that at the relevant time RERA had issued Circular No.7 of 2017 dated
July 24, 2017 stipulating the Standard Operating Procedure for dealing
with complaints by Flat Purchasers. The said circular provides that once
a complaint is received online, it is automatically assigned by the
software to the Chairperson and the two WTMs, and where a person
seeks compensation, the case would then be transferred by them to an
Adjudicating Officer. He would submit that this Standard Operating
Procedure was essentially based on the law as it then stood and was then
understood. In any case, the declaration of the law in Newtech came
much later. Therefore, Mr. Kothari would contend, even if it were to be
declared that the process adopted by the Authority was declared to be in
conflict with the requirement of law, such a procedural outcome would
be saved by the codified position obtaining from Section 30(c) of the
RERA Act. Mr. Kothari would also point out that in accordance with the
rules made under the RERA Act, namely, the Maharashtra Real Estate
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(Regulation and Development) Rules, 2016, a specific Form-M is
stipulated for complaints to be made to the Authority. The Flat
Purchaser had made a complaint in Form-M. This complaint was
therefore processed by the Authority and since it had prayers for
compensation as well as for refund, the Authority was entitled to validly
assign the case to an Adjudicating Officer. If that process is considered
improper by a reading of the law in Newtech, he would submit that the
Impugned Order which is on merits, stands protected by Section 30(c).
ANALYSIS AND FINDINGS:
20. Before dealing with the aforesaid contentions, a broad
understanding of the scheme of the RERA Act would be in order. The
following provisions of the RERA Act are noteworthy.
21. Section 18 stipulates the substantial rights of an allottee of a
unit upon non-performance by the promoter of a project, including the
return of amounts paid to the promoter of a project :
18. Return of amount and compensation.–(1) If the promoter fails to
complete or is unable to give possession of an apartment, plot or building,–
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(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]
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22. It is clear that Section 18 is the substantive statutory right to
protections when the allottee of premises is a victim of non-
performance. The protections include a full refund and termination of
contract; specific relief of the contract with statutory interest for the
delayed performance; compensation due to defect in title without being
impeded by limitation; and compensation in terms of other provisions
of the RERA Act.
23. Section 21 deals with the composition of RERA (the phrase
used for it is “Authority”) while Section 25 provides for administrative
powers of the Chairperson. Essentially, RERA comprises a Chairperson
and at least two WTMs, with the Chairperson being the chief executive
and administrative head of RERA. These provisions read thus:
21. Composition of Authority.–The Authority shall consist of a
Chairperson and not less than two whole time Members to be appointed by
the appropriate Government.
25. Administrative powers of Chairperson.–The Chairperson shall have
powers of general superintendence and directions in the conduct of the
affairs of Authority and he shall, in addition to presiding over the meetings
of the Authority, exercise and discharge such administrative powers and
functions of the Authority as may be prescribed.
[Emphasis Supplied]
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24. Section 28 envisages the role of other officers and employees
of RERA. When read with Section 71, which provides for appointment of
a judicial officer for purposes of adjudicating claims for compensation.
The Adjudicating Officer appointed by RERA under Section 71, when
read with Section 28(2) would inexorably point to the Adjudicating
Officer being an employee of RERA. These provisions read thus:
28. Officers and other employees of Authority.–(1) The appropriate
Government may, in consultation with the Authority appoint such officers
and employees as it considers necessary for the efficient discharge of their
functions under this Act who would discharge their functions under the
general superintendence of the Chairperson.
(2) The salary and allowances payable to, and the other terms and
conditions of service of, the officers and of the employees of the Authority
appointed under sub-section (1) shall be such as may be prescribed.
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
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901-F-J-WP-12121-2024.doccommencement 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 sub-section (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.
[Emphasis Supplied]
25. Section 81 of the RERA Act provides for RERA delegating
authority to any officer, by general or special order to carry out its
functions under the Act, except for the power to make regulations under
the Act. This provision reads as follows:
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81. Delegation.–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.
[Emphasis Supplied]
26. The scheme of the aforesaid provisions is clear – the RERA is
essentially a regulatory authority established under the RERA Act. The
design of RERA as a regulator is quite akin to the design of many
regulators, where the three pillars of State are rolled into one body
corporate. RERA has law-making powers under Section 85, and
therefore, Section 81 makes it clear that such legislative function has to
be carried out without any delegation of such power to any officer of
RERA. The quasi-judicial powers includes the power to award
compensation, where an adjudicatory role has to be played – for this
purpose, to maintain separation of powers and judicial independence,
the Adjudicating Officers who are appointed are meant to have judicial
experience and are appointed to play such adjudicatory function.
27. Administrative oversight over them would still be with RERA,
with the Chairperson at the helm of affairs, but the Adjudicating Officers
need to discharge a quasi-judicial role independently, and therefore the
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separation of powers is evident from Section 71 of the Act. All the rest of
the functions, which include registration and regulation of a nature of
prudential regulation and enforcement are executive functions, which
are to be run under the overall superintendence of RERA (namely, the
Chairperson and at least two WTMs) with such functions being carried
out by officials and employees of RERA.
28. What becomes clear is that the adjudication of compensation
is something that an Adjudicating Officer alone can deal with while
other powers, save and except the power to make subordinate
legislation, may be exercised by any officer to whom such power is
assigned by RERA. The matter in hand involves the Impugned Order
having been passed for issuance of a refund, and such power having
been exercised by an Adjudicating Officer. This is not a case of an
officer who is not a judicial Adjudicating Officer having granted
compensation – something directly contrary to the statutory scheme of
the RERA Act.
Analysis of Newtech:
29. Against this backdrop, the contention about Newtech having
implications for this Petition needs to be examined to answer whether
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the exercise of power of directing a refund can ever be effected by an
Adjudicating Officer. In Newtech, complaints were instituted by home
buyers for refund of the investments made by them in the units
developed by the promoters of the project in question. An order of
refund was passed by a WTM. The promoter of the project challenged
the direction in the Allahabad High Court on the ground that the WTM
had no jurisdiction to issue orders of refund and only the Adjudicating
Officer could issue such an order. The High Court rejected the writ
petitions and the matter reached the Supreme Court, which dismissed
the appeals challenging the High Court judgement. When doing so, the
Supreme Court, among others framed the following question:
2. Whether the Authority has jurisdiction to direct return/refund of the
amount to the allottee under Sections 12, 14, 18 and 19 of RERA or the
jurisdiction exclusively lies with the adjudicating officer under Section 71 of
RERA?
[Emphasis Supplied]
30. After analysing the contentions of the parties, answering that
the WTM has the authority to direct a refund, the Supreme Court
concluded thus:
85. From the scheme of the Act of which a detailed reference has been
made and taking note of power of adjudication delineated with the RegulatoryPage 23 of 38
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901-F-J-WP-12121-2024.docAuthority 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, is 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 2016 Act.
[Emphasis Supplied]
31. Marvel relies primarily on the last part of Paragraph 85
extracted above i.e. observations about adjudication of facets other than
compensation by the Adjudicating Officer. Based on these observations,
Marvel contends that the Supreme Court has squarely held that the
Adjudicating Officer could never exercise any power other than
adjudication of compensation and that such adjudication would expand
the ambit and scope of the functions of the Adjudicating Officer under
Section 71 of the RERA Act and be contrary to the mandate of the RERA
Act.
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32. In Newtech, the Supreme Court was dealing with a
contention that the WTM could never exercise the power to direct a
refund. The analysis and findings of the Supreme Court in Newtech,
essentially are responsive to whether the WTM could have exercised
jurisdiction to direct a refund. The Supreme Court was not dealing with
a contention that the Adjudicating Officer could be delegated the power
to direct a refund. Therefore, in my view, one must not lose the nuance
with which the binding precedential nature of contents of Newtech must
be discerned. What constitutes a precedent is subject matter of
numerous well-settled iterations by the Supreme Court. The following
extract from Ravi Ranjan10 should suffice:
It is well settled that a judgment is a precedent for the issue of law that is
raised and decided. The judgment has to be construed in the backdrop of the
facts and circumstances in which the judgment has been rendered. Words,
phrases and sentences in a judgment, cannot be read out of context. Nor is a
judgment to be read and interpreted in the manner of a statute. It is only the
law as interpreted by in an earlier judgment, which constitutes a binding
precedent, and not everything that the Judges say.
10 Ravi Ranjan Developers Pvt. Ltd. Vs. Aditya Kumar Chatterjee – 2022 SCC
OnLine SC 568
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33. Seen in that light, in Newtech, the Supreme Court essentially
held that the WTM can indeed exercise the power to direct a refund.
The Supreme Court did not at all venture into what the Adjudicating
Officer cannot do. The Supreme Court only repelled the contention of
the appellants before it that the Adjudicating Officer alone could deal
with adjudication of a refund, and in that context indicated that
extrapolating adjudication of issues beyond compensation may expand
the ambit and scope of the Adjudicating Officer’s powers under Section
71 of the Act. The Supreme Court took care to state that the
extrapolated jurisdiction of the Adjudicating Officer ” as prayed” by the
appellants in Newtech, may expand the ambit and scope of the powers
and functions under Section 71 of the RERA Act. The Supreme Court
was not dealing with a case of a positive delegation to the Adjudicating
Officer under Section 81 of the Act.
34. I have already extracted and discussed Section 71 of the Act
above – that provision exclusively confers adjudication of compensation
on the Adjudicating Officer. It preserves this subject for that officer’s
jurisdiction alone. It is not a provision that limits what else may be
delegated to the Adjudicating Officer, in particular, when one reads it
with Section 81 of the RERA Act, which is also extracted and analysed
above.
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35. Under Section 81, any power and function of RERA other
than the legislative function may be delegated to any officer of RERA.
The Adjudicating Officer is but an officer of RERA. It would follow that
there is a power to delegate any of RERA’s powers and functions to the
Adjudicating Officer. What the scheme of the RERA Act prohibits is the
delegation of the power to adjudicate compensation, exercisable solely
by the Adjudicating Officer to any other officer because that would be
contrary to the requirement that quasi-judicial adjudication of
compensation must necessarily vest in the Adjudicating Officer, who is
meant to be a judicial officer.
36. In that light, another question framed by the Supreme Court
in Newtech – about delegation of powers – becomes relevant. It is as
follows:
3. Whether Section 81 of RERA authorises the Authority to delegate its
powers to a Single member of the Authority to hear complaints instituted
under Section 31 of RERA?
[Emphasis Supplied]
37. In dealing with the aforesaid question, the Supreme Court set
out the following analysis:
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86. 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 14-8-2018,
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 homebuyers which rose to about 36,826
complaints, the Authority in its later meeting held on 5-12-2018 empowered
the Single Member to hear the complaints relating to refund of the amount
filed under Section 31 of the Act.
107. Pursuant to the delegation of power to the Single Member of the
Authority, complaints filed by the allottees/homebuyers 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.
111. Section 81 of the 2016 Act 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.
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112. In the instant case, the Authority by a special order dated 5-12-2018
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/homebuyer 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.
113. 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 the learned counsel for the promoters if to be
accepted, the very mandate of Section 81 itself will become otiose and
nugatory.
114. 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
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Single Member of the Authority is indeed within the fold of Section 81 of the
Act.
115. The further submission made by the 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 the 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.
117. In the instant case, by exercising its power under Section 81 of the Act,
the Authority, by a special order dated 5-12-2018 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
dehors 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.
[Emphasis Supplied]
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38. Therefore, when one takes a holistic view of the analysis in
Newtech, it is very clear that not only was the Supreme Court examining
an issue that is fundamentally different from the factual matrix at hand,
but also the Supreme Court made it clear that it was not dealing with
any aspect of whether delegation to the Adjudicating Officer was valid.
On the contrary, the Supreme Court squarely held that if and when any
delegation under Section 81 of the RERA Act is assailed as being
contrary to the scheme of the RERA Act, such delegation would be open
to judicial review.
39. Therefore, in my view, as indicated in Ravi Ranjan, extracted
above, Newtech is not a precedent that would have a bearing on this
factual matrix of this case. Indeed, neither should words, phrases and
sentences in a judgement be read out of context nor should a judgement
be read like one would read a statute.
40. Indeed, in Issue No. 2 in Newtech, the Supreme Court was
not dealing with a question of delegation under Section 81 of the Act,
but was dealing with whether under the very scheme of the RERA Act
(without any element delegation of power under Section 81), it could be
held that the Adjudicating Officer had exclusive jurisdiction to grant
refund. The Supreme Court answered in the negative. In Issue No. 3,
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the Supreme Court considered the question of delegation and squarely
answered that delegation of any power or function of RERA to any
officer of RERA was feasible under Section 81 save and except for the
power to make subordinate legislation.
41. There is one other facet of Newtech that stands out, and that
too to indicate what the power to adjudicate compensation entails, and
what the power to direct refund does not entail. The Supreme Court
analysed the scheme of the RERA Act to find that the exercise of power
to adjudicate compensation necessitated conducting of a trial while in
sharp contrast, the exercise of power to direct a refund, although strictly
not mechanical, the kind of inquiry to be undertaken was summary in
nature based on indisputable documentary evidence with minimal
scrutiny and no discretion in dealing with admitted material on record.
42. Therefore, what an Adjudicating Officer alone is empowered
by law to do, with a careful choice of who can be an Adjudicating Officer
(a judicial officer), other officers of RERA (who are not judicially
trained) cannot be expected to do. On the other hand, a judicially
trained Adjudicating Officer, in whose domain a quasi-judicial
adjudication would lie, would be able to undertake the lesser task of
conducting a summary procedure to decide a refund. Therefore,
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delegation of the exercise of refund power to the Adjudicating Officer is
not contrary to the scheme of the Act. It is the extrapolation of Section
71 “as prayed” that was commented upon by the Supreme Court, making
it clear that any other manner of delegation can always be judicially
reviewed when such a delegation is made.
43. Marvel is indeed conscious that the Supreme Court was
dealing with a contention that the WTM could never exercise the power
to direct a refund and that it was not dealing with a contention (such as
the matter in hand) that the Adjudicating Officer could never be
delegated with the power to direct a refund. Conscious that a judgement
is a precedent for what it decides, Marvel contends that obiter dicta of
the Supreme Court is binding on the High Court. For the reasons set
out above, in my opinion, even the obiter dicta in Newtech is not the
nature as sought to be canvassed by Marvel.
Case against Exercise of Discretion for a Writ:
44. I have set out above why in my view Newtech does not
constitute a reasonable basis for interference that the Impugned Order
was a product of coram non judice and that it needs to be quashed at
this distance of time, and that the Recovery Order to enforce the
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Impugned Order deserves to be set aside. However, faced with an
expression of the aforesaid prima facie view, Marvel would at a later
date of hearing, point to Marveledge, where a Learned Division Bench of
this Court had exercised discretion to quash a recovery order accepting
the reading of the extract from Newtech as canvassed in the captioned
Writ Petition.
45. The second issue of delegation under Section 81 of the RERA
Act dealt with in Newtech, does not seem to have been presented to the
Learned Division Bench and there is no ruling on that facet of the
matter. Be that as it may, judicial discipline would necessitate having to
respectfully follow the approach of the Learned Division Bench, the only
scope that remains is limited to any distinguishing features in the
matter in hand.
46. In this light, purely from the perspective of whether
discretion ought to be exercised in the captioned Writ Petition, it is clear
to me that the instant case stands on a completely distinguishable and
different footing. It is indeed the duty of the writ court to see if the facts
of the matter in hand would warrant exercise of discretion in the same
manner in the particular facts of the instant case.
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47. In that light, it is noteworthy that the Impugned Order had
been passed in December 2019, seven years ago. The Recovery Order
was passed in October 2021, five years ago. The Supreme Court
judgement in Newtech was rendered in November 2021. Marvel had a
statutory right to appeal against the Impugned Order, which it did not
avail of. This resulted in the Impugned Order attaining finality and
there was nothing in the then state of the law to cast any cloud over the
Impugned Order. When Marvel participated in the enforcement
proceedings that led to the Recovery Order, the judgement in Newtech
had not been rendered. However, Marvel did not even table the issue –
evidently there was no issue to table because even if Marvel is assumed
to have known about the issues framed in Newtech, the issue was not at
all aligned with the issue involved in the facts of the instant case.
48. Even after the judgement was rendered in Newtech, Marvel
did not file any writ petition seeking to rely on Newtech until nearly
three years later, in 2024. Even if one can raise the facet of jurisdiction
at any stage it is well settled that closed and concluded matters cannot
be reopened on the premise that a subsequent judgement of a superior
court has declared the law differently. Once there is a statutory period
for an appeal and that period has expired, the order has attained
finality. If a subsequent declaration of the law (as perceived by Marvel to
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give it some basis to reopen the issue) is made, it would not follow that
long-closed matters can be reopened. In this light, I am not inclined to
exercise discretion to interfere with the finally closed Impugned Order
as a matter of exercise of discretion in the extraordinary writ
jurisdiction of this Court.
49. Marvel would contend that the jurisdictional issue cuts to the
root of the matter and it can be raised even in execution. This
contention can always be raised in the enforcement proceedings before
the authorities who conduct the execution. I am not inclined to exercise
the discretion available in jurisdiction of the writ court to make an
intervention and reopen a matter that had already attained finality way
before Marvel started perceiving the rights purportedly flowing to it
from Newtech. The earlier decisions are distinguishable because they
only examined whether Section 71 of the RERA Act created a divide in
the jurisdiction of the Adjudicating Officer ” as prayed” by the appellants
in Newtech, and did not examine the effect of Section 81 of the Act.
50. That apart, WP 2271 was filed by the Flat Purchaser and
another Learned Division Bench is seized of the matter. The captioned
Writ Petition was filed subsequently and is fomenting and creating
multiplicity of litigation to attempt to reopen a matter that had attained
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finality seven years ago (as of now) and five years ago (as of the time this
Writ Petition was filed). It is also noteworthy that admittedly,
Marveledge is an affiliate or sister concern of Marvel, it is apparent that
Marvel has simply attempted to take a chance with this Writ Petition.
51. This is why Mr. Kothari’s reliance on UP Jal Nigam and
Bhailal Bhai resonates with me in the decision not to exercise discretion
in favour of the intervention sought by Marvel in this Writ Petition. The
law does not protect the indolent and indeed the stratagem of following
suit after Marveledge to reopen even older cases does not appeal to me
to issue a writ as sought by Marvel.
52. Purely for completeness, it must be stated that Mr. Kothari’s
contention about the “Ganga Clause” has no application to this case.
That provision relates to defect in constitution of the relevant bench and
is not relevant for purposes of considering the contention of inherent
lack of jurisdiction raised by Marvel, based on the observation in
Newtech.
Conclusion:
53. Therefore, to summarise, considering: (i) that the Impugned
Order had attained finality in 2019; (ii) that the captioned Writ Petition
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was filed nearly three years after Newtech was delivered; (iii) that the
petition in Marveledge was filed close to the ruling in Newtech; (iv) that
the analysis of the scheme of the RERA Act read with the interpretation
in Newtech as set out above, does not point to an inexorable binding
ratio or obiter having come into existence; (v) that Marveledge is
distinguishable as explained above; (vi) that there is an inordinate and
unexplained delay in filing the captioned Writ Petition; (vii) that
another Learned Division Bench is seized of WP 2271 and this issue can
indeed be gone into in those proceedings that had been initiated by the
Flat Purchaser prior in time; (viii) and that the writ court must
necessarily apply its mind to the matter of whether to exercise discretion
in favour of issuance of writ, I am not inclined to use the discretionary
writ jurisdiction in favour of Marvel to interfere with the Impugned
Order or the Recovery Order.
54. The Writ Petition is therefore dismissed without any
intervention. No costs.
55. All actions required to be taken pursuant to this order shall
be taken upon receipt of a downloaded copy as available on this Court’s
website.
[SOMASEKHAR SUNDARESAN, J.]
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