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

(“Authority”), is rendered non est by reason of the law declared by the

Supreme Court in 2021, interpreting the provisions of the Real Estate

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Ashwini Vallakati

ASHWINI

JANARDAN

VALLAKATI

Digitally

signed by

ASHWINI

JANARDAN

VALLAKATI

Date:

2026.04.07

15:56:37

+0530

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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refund 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 Newtech

1

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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challenge 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 Marveledge

2

. 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 Singh

4

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 that

3 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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its judgment and decree would be nullities. The question is what is the effect

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 Advo cate

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 Exchange

5

, 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 Nigam

6

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 Kumar

7

, 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

Bhai

8

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

Srinivasan

9

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:

Scheme of RERA Act:

20. Before dealing with the aforesaid contentions, a bro ad

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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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 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 delegatin g

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, a nd

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 aw ard

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 subordin ate

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 Regulatory

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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, 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 Ranjan

10

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.

[Emphasis Supplied]

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 wa s

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 enfor cement

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 a nd

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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