As per case facts, the Petitioner challenged a notification that vested the Adjudicating Officer of HRERA with Collector powers under the Haryana Land Revenue Act to execute recovery certificates. These ...
No Acts & Articles mentioned in this case
CWP-14937-2024 (O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-14937-2024 (O&M)
Reserved on: 18.03.2025
Date of Decision : 24.04.2025
M/S VATIKA LIMITED
...Petitioner
V/S
UNION OF INDIA AND OTHERS
...Respondents
CORAM: HON’BLE MR. JUSTICE SURESHWAR THAKUR
HON’BLE MR. JUSTICE H.S. GREWAL
Present : Mr. Ashok Aggarwal, Senior Advocate and
Mr. Anand Chhibbar, Senior Advocate with
Mr. Vaibhav Sahni, Advocate and
Mr. Venket Rao, Advocate for the petitioner.
Mr. Satya Pal Jain, Addl. Solicitor General of India with
Mr. Shobit Phutela, Senior Panel Counsel
for the respondent(s)/Union of India.
Mr. Ankur Mittal, Addl. A.G., Haryana with
Ms. Svaneel Jaswal, Addl. A.G. Haryana,
Mr. P.P. Chahar, Sr. DAG, Haryana,
Mr. Saurah Mago, DAG, Haryana,
Mr. Gaurav Bansal, DAG, Haryana and
Mr. Karan Jindal, Assistant A.G. Haryana.
Mr. Ankur Mittal, Advocate
Ms. Kushaldeep Kaur Manchanda, Advocate
Ms. Gurcharan Kaur, Advocate,
Mr. Sandeep Chabbra, Advocate and
Ms. Saanvi Singla, Advocate
for the respondent-RERA.
***
SURESHWAR THAKUR, J.
1. Through the instant writ petition, the petitioner has prayed for
the issuance of a writ in the nature of Certiorari wherebys it seeks the
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quashing of the notification No.50/15/2024-5S(1) dated 11.05.2024
(Annexure P-1), issued by the Chief Secretary to Government, Haryana, thus
on the ground that the said is patently illegal, arbitrary and is made sub
coloris officio. A further prayer is made for staying the operation of the
apposite notification till the final adjudication of the present writ petition.
2. The present petition is preferred by the petitioner wherebys
becomes challenged the validity of the subject notification dated 11.05.2024
(Annexure P-1) issued by respondent No.2, Chief Secretary to Government,
Haryana, whereby respondent No.4-Adjudicating Officer, Haryana Real
Estate Regulatory Authority, Gurugram (hereinafter referred to as ‘the
Adjudicatory Authority’), was vested with the powers of the Collector under
the Haryana Land Revenue Act, 1887 (hereinafter referred to as ‘the Act of
1887’), thus to execute the recovery certificates issued by the Haryana Real
Estate Regulatory Authority (hereinafter referred to as ‘HRERA’).
3. The competent authorities under the HRERA by exercising the
powers vested under Section 81 of the Real Estate (Regulation and
Development) Act, 2016 (hereinafter referred to as ‘the Act of 2016’), thus
proceeded to delegate, the powers of execution of orders passed by them
under Section 40 of the Act of 2016, rather vis-a-vis the Adjudicating
Officers/Authorities concerned. The provisions of Section 81 of the Act of
2016 become extracted hereinafter.
“Section 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.”
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4. Upon the thereunders occurrence of the apposite delegation(s)
of powers, thus for therebys making executions of the orders passed by the
HRERA Authorities, rather the Ld. Adjudicating Officer/Authority initiated
the process of execution of the orders passed by the Authorities constituted
under the Act of 2016. The said passed executable orders appertain to
payment of interest, penalty and compensation. The (supra) passed orders
are in terms of Section 40(1) of the Act of 2016, provisions whereof
becomes extracted hereinafter, whereunders it becomes ordained, that the
orders appertaining to payment of interest, penalty or compensation, thus are
recoverable, as arrears of land revenue, rather from such promoter, allottee
or real estate agent, but in such manner as may be prescribed. The
conferment of the apposite powers upon the adjudicating officer/authority
concerned, thus purportedly pursuant to the (supra) extracted provision,
besides pursuant to the making of the impugned notification, thus is
contended to be in violation of the provisions embodied in Section 40(1) of
the Act of 2016.
5. Furthermore, it is contended that though it is envisaged in sub
Section 1 of Section 40 of the Act of 2016, that those orders appertaining to
levying of interest or penalty or compensation, as the case may be,
respectively upon a promoter or an allottee or a real estate agent, thereupons
all the (supra) becoming amenable to be recoverable as arrears of land
revenue. However, reiteratedly it is contended that the impugned
notification, thus makes contravention of the mandate enunciated in Section
40(1) of the Act of 2016.
“Section 40. Recovery of interest or penalty or compensation and
enforcement of order, etc.-
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(1) If a promoter or an allottee or a real estate agent, as the case
may be, fails to pay any interest or penalty or compensation imposed
on him, by the adjudicating officer or the Regulatory Authority or the
Appellate Authority, as the case may be, under this Act or the rules
and regulations made thereunder, it shall be recoverable from such
promoter or allottee or real estate agent, in such manner as may be
prescribed as an arrears of land revenue.
(2) If any adjudicating officer or the Regulatory Authority or the
Appellate Tribunal, as the case may be, issues any order or directs
any person to do any act, or refrain from doing any act, which it is
empowered to do under this Act or the rules or regulations made
thereunder, then in case of failure by any person to comply with such
order or direction, the same shall be enforced, in such manner as
may be prescribed…”
6. Impugned notification becomes extracted hereinafter.
“No.50/15/2024-55(1)- In exercise of powers conferred by
sections 10 and 27 of the Haryana Land Revenue Act, 1887 (Punjab
Act No. 17 of 1887) read with section 83 of the Real Estate
(Regulation and Development) Act, 2016 (Central Act 16 of 2016),
the Governor of Haryana hereby vests adjudicating officer appointed
under sub-section (1) of section 71 of the Real Estate (Regulation
and Development) Act, 2016 (Central Act 16 of 2016) with the
powers of the Collector for execution of recovery
warrants/certificates under the Haryana Land Revenue Act, 1887
(Punjab Act 17 of 1887) to execute the recovery certificates issued by
the Haryana Real Estate Regulatory Authority at Gurugram and
Panchkula within their respective jurisdiction as notified by the
Haryana Government, Town and Country Planning Department,
notification No. 1/92/2017-1TCP, dated the 18th February, 2020.
Further, all pending recoveries with the District Collectors in
the State of Haryana initiated pursuant to the receipt of recovery
certificates issued by the Haryana Real Estate Regulatory Authority
at Gurugram and Panchkula shall stands transferred to the
adjudicating officer of respective authority, from the date of
publication of this notification in the official Gazette.”
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7. In respect of the (supra) controversy a writ petition bearing
No.CWP-7738 of 2022 titled “M/s International Land Developers Private
Limited Vs. Aditi Chauhan and Ors.” became filed before this Court. This
Court vide judgment dated 17.08.2022, thus decided the said writ petition
wherebys, it was held that the execution of orders appertaining to levies of
interest, penalty and compensation, thus as decree(s) passed by the civil
court, rather would be illegal and unlawful, primarily for the reason that the
same is not in terms of Section 40(1) of the Act of 2016. This Court
interpreted the entire provisions embodied in Section 40 of the Act of 2016
and further directed the Ld. Adjudicating Officer /Ld. Authority, to initiate
the process qua execution of the appositely passed orders, thus in terms of
the provisions of the Act of 1887 i.e. the Haryana Land Revenue Act, 1887.
The State was further directed to make an appropriate amendment to Rule 27
of Haryana Real Estate (Regulation and Development) Rules, 2017
(hereinafter referred to as ‘the Rules of 2017’). Moreover for making an
effective enforcement of the appositely passed orders, the State was directed
to permanently post a revenue official with every Ld. Authorities, as
constituted under the Act of 2016, in the State of Haryana, thus for making
executory recoveries or to confer powers of making executory recovery(ies)
upon the officer(s) already posted with the Ld. Authorities. Relevant
paragraphs of the judgment (supra) become extracted hereinafter.
“89. Coming then to the provisions contained within Section
40; very obviously sub-section (1) thereof pertains only to
enforcement of an order directing payment of any interest or penalty
or compensation, whether such order is passed by the Adjudicating
Officer, the Regulatory Authority or the Appellate Tribunal; whereas
sub-section (2) is a provision for enforcement of any order or
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direction given by either the AO or the Authority or the Appellate
Tribunal.
Therefore, any person as violates any direction or order
issued even in respect of summoning such person etc., would be dealt
with wholly under the provision of sub-section (2), with however the
provision of subsection (1) to apply to an order pertaining to
payment of interest, penalty or compensation as ordered by the
AO/Authority/Appellate Tribunal.
Again, very obviously, sub-section (1) postulates that if any
person fails to pay any interest or penalty or compensation imposed,
it shall be recoverable from such person (whether a promoter, an
allottee or a Real Estate agent) "in such manner as may be
prescribed as an arrear of land revenue".
91. To repeat yet again, sub-section (1) of Section 40
stipulates that the manner of recovery of payment of interest, penalty
and compensation, may be prescribed (by rules) for recovery as an
arrear of land revenue and does not postulate any other method of
such recovery; however sub-rule (1) of Rule 27 empowers the
AO/Authority/Tribunal to enforce any order passed by it under
Section 40 (without specifying any particular sub-section thereof), as
if it were a decree or an order made by a civil court in a suit pending
before it.
92 to 94 Xxx
95. Consequently, in order to try and ensure that the execution
proceedings do not get delayed in the present case, we direct the
Authority/the Adjudicating Officer to immediately take appropriate
measures to get the recovery effected in such proceedings as arrears
of land revenue (subject of course to any interim order passed by the
Tribunal in any appeal that the petitioner may file after making the
pre deposit necessary).
Upon such proceedings being initiated by the AO/Authority,
the revenue officers/any other officers/officials and specifically the
Collector concerned, as would be responsible for taking such
proceedings to their logical conclusion (for realization of the sum
due as per the execution proceedings as arrears of land revenue),
would conclude such proceedings within a period of three months
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from the date that such proceedings are received by the
Collector/other revenue officers/officials.
It is made absolutely clear that if the said proceedings are not
completed by the Collector/revenue officers and other
officers/officials as have jurisdiction to do so, respondent no.3 herein
would be within its right to take recourse to its remedy for violation
of this order.
96. As regards a permanent solution to ensure compliance of
what is stipulated in sub-section (1) of Section 40 of the Act, the
respondent State Government of Haryana is directed to consider
within a period of 4 months from today, an appropriate amendment
in Rule 27 of the Rules, so as to ensure that any amount that is
recoverable in terms of the said provision [Section 40(1)], is
recovered within the shortest possible time; by way of either posting
permanently a revenue official to each Regulatory Authority in
Haryana as has been constituted under the provisions of the Act,
empowered with the jurisdiction as would be necessary to be
conferred upon him/her for recovery as arrears of land revenue, so
that upon any execution proceedings being filed for giving effect to
any recovery in terms of Section 40(1), the matters need not be
referred to regular revenue Authorities and can be effectively dealt
with immediately by the officer posted in the Authority itself for that
purpose, (as has been conferred with such jurisdiction to carry out
the procedure of recovery by way of arrears of land revenue).
Alternatively, the Government could also consider conferring
powers of recovery under the relevant provisions of the Land
Revenue Act, upon any officer already posted in the Regulatory
Authority.”
8. The learned counsel for the petitioner submits, that this Court
had specifically directed the State to consider making an amendment to Rule
27 of the Rules of 2017 or to permanently appoint a Revenue Officer with
the Authority(ies) concerned, or if there is already a Revenue Officer
deputed with the Authority, thereupon the said person(s) can become
conferred with the powers to carry out the apposite recoveries, thus as
CWP-14937-2024 (O&M)
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arrears of land revenue, through recoursing the apposite provisions
embodied under the Act of 1887. However, in the passing of the said
directions on 17.08.2022, the learned Single Bench of this Court remained
oblivious to the fact that the Rules of 2017, in the said regard were already
on the statute book in the year 2017.
9. In purported utter variance to the (supra) directions passed by
this Court, the State has bestowed the powers of the Revenue Officer upon
the Ld. Adjudicating Officer/Authority concerned, who is/are but appointed
under Section 71 of the Act of 2016 and who rather become vested with the
apposite statutory powers and duties. Provisions of Section 71 of the Act of
2016 become extracted hereinafter.
“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 mat-
ters covered under sections 12, 14, 18 and section 19 is pending be-
fore the Consumer Disputes Redressal Forum or the Consumer Dis-
putes Redressal Commission or the National Consumer Redressal
Commission, established under section 9 of the Consumer Protection
Act, 1986 (68 of 1986), on or before the commencement of this Act,
he may, with the permission of such Forum or Commission, as the
case may be, withdraw the complaint pending before it and file an
application before the adjudicating officer under this Act.
(2) The application for adjudging compensation under sub-
section (1), shall be dealt with by the adjudicating officer as expedi-
tiously as possible and dispose of the same within a period of sixty
days from the date of receipt of the application:
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Provided that where any such application could not be dis-
posed of within the said period of sixty days, the adjudicating officer
shall record his reasons in writing for not disposing of the applica-
tion 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.
10. Definition of “adjudicating officer” is provided under Section
2(a) of the Act of 2016 and becomes extracted hereinafter.
2(a) “adjudicating officer” means the adjudicating officer
appointed under sub-section (1) of section 71.
11. For the reasons to be assigned hereinafter the directions passed
by the learned Bench of this Court are per incuriam the provisions as
envisaged in Section 81 of the Act of 2016, per incuriam the
contemplation(s) as envisaged in Section 40(1) of the Act of 2016, besides
are per incuriam vis-a-vis the mandate encapsulated in Section 71 of the Act
of 2016. Moreover for the further reason to be assigned hereinafter the
impugned notification is in derogation of the mandate encapsulated in Rule
27 of the Rules of 2017, provisions whereof becomes extracted hereinafter.
“27. (1) Every order passed by the adjudicating officer or the
Authority or the Appellate Tribunal, as the case may be, under the
Act or rules and the regulation made thereunder, shall be enforced by
an adjudicating officer of the Authority or Appellate Tribunal in the
same manner as if it were a decree or an order made by a civil court
in a suite pending therein; and it shall be lawful for the adjudicating
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officer or the Authority or the Appellate Tribunal, as the case may
be, in the event of its inability to execute the order, send such order
to the civil court, to execute such order.
(2) The court may, for the purposes of compounding any offence
punishable with imprisonment under the Act accept an amount as
specified in the Table below:-
Offence Amount to be paid for
compounding the offence
Punishable with imprisonment
under sub section (2) of
section 59.
five to ten percent of the estimated
cost of the real estate project.
Punishable with imprisonment
under section 64.
five to ten percent of the estimated
cost of the real estate project.
Punishable with imprisonment
under section 66.
five to ten percent of the estimated
cost of the plot, apartment or
building, as the case may be, of the
real estate project, for which the
sale or purchase has been
facilitated.
Punishable with imprisonment
under section 68.
five to ten percent of the estimated
cost of the plot, apartment or
building, as the case may be.
12. Sub Section 1 of Section 40 of the Act of 2016, though creates a
statutory mechanism for effectively ensuring the recovery(ies) of interest or
penalty or compensation as become imposed upon the concerned. Moreover,
the said provision(s) also make ordainments, thus for therebys effectively
enforcing the orders respectively passed by the adjudicating officer/authority
concerned, or by the regulatory authority, besides by the appellate authority
concerned. Moreover, though the liability(ies) qua levyings of interest or
penalty or compensation, may become respectively encumbered upon a
promoter, an allottee or a real estate agent. In addition, though the
jurisdiction to levy all (supra) upon the (supra), though does also become
respectively vested, thus respectively in the regulatory authority or in the
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appellate authority, and upon the adjudicating officer/authority concerned,
but all the said imposed/levies penalties or compensation or interest are
detailed thereins to be recoverable as arrears of land revenue.
13. Though reiteratedly, thus a jurisdiction for effectively executing
rather the respective levyings rather respectively of interest, penalty or
compensation, but is a jurisdiction respectively vested in the regulatory
authority or the appellate authority or in adjudicating officer/ authority, thus
under a common theretos provision engrafted in sub Section 1 of Section 40
of the Act of 2016, besides as stated (supra) all (supra) are prescribed to be
recoverable as arrears of land revenue.
14. In consequence, the jurisdiction which becomes vested in the
regulatory authority or in the appellate authority, as become created under
the Act of 2016, thus for imposing interest, penalty, rather respectively upon
a promoter, allottee or a real estate agent, naturally stands, on a pedestal
different from the foisting of jurisdiction in the adjudicating officer/
authority, to also do likewise, but only in respect of adjudging compensation
in terms of Section 71 of the Act of 2016. The expanse of the jurisdiction
vested in the regulatory authority or in the appellate authority, is in extenso
detailed in Section 34, besides in Sections 59 to 70 of the Act of 2016,
provisions whereof becomes extracted hereinafter.
“34. Functions of Authority.—The functions of the Authority shall
include—
(a) to register and regulate real estate projects and real estate agents
registered under this Act;
(b) to publish and maintain a website of records, for public viewing,
of all real estate projects for which registration has been given, with
such details as may be prescribed, including information provided in
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the application for which registration has been granted;
(c) to maintain a database, on its website, for public viewing, and
enter the names and photographs of promoters as defaulters includ-
ing the project details, registration for which has been revoked or
have been penalised under this Act, with reasons therefor, for access
to the general public;
(d) to maintain a database, on its website, for public viewing, and
enter the names and photographs of real estate agents who have ap-
plied and registered under this Act, with such details as may be pre-
scribed, including those whose registration has been rejected or re-
voked;
(e) to fix through regulations for each areas under its jurisdiction the
standard fees to be levied on the allottees or the promoter or the real
estate agent, as the case may be;
(f) to ensure compliance of the obligations cast upon the promoters,
the allottees and the real estate agents under this Act and the rules
and regulations made thereunder;
(g) to ensure compliance of its regulations or orders or directions
made in exercise of its powers under this Act;
(h) to perform such other functions as may be entrusted to the
Authority by the appropriate Government as may be necessary to
carry out the provisions of this Act.
35 to 58 xxx
59. Punishment for non registration under section 3.—(1) If
any promoter contravenes the provisions of section 3, he shall be li-
able to a penalty which may extend up to ten per cent. of the esti-
mated cost of the real estate project as determined by the Authority.
(2) If any promoter does not comply with the orders, decisions
or directions issued under sub-section (1) or continues to violate the
provisions of section 3, he shall be punishable with imprisonment for
a term which may extend up to three years or with fine which may
extend up to a further ten per cent. of the estimated cost of the real
estate project, or with both.
60. Penalty for contravention of section 4.—If any promoter
provides false information or contravenes the provisions of section 4,
he shall be liable to a penalty which may extend up to five per cent.
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of the estimated cost of the real estate project, as determined by the
Authority.
61. Penalty for contravention of other provisions of this Act.
—If any promoter contravenes any other provisions of this Act, other
than that provided under section 3 or section 4, or the rules or regu-
lations made thereunder, he shall be liable to a penalty which may
extend up to five per cent. of the estimated cost of the real estate
project as determined by the Authority.
62. Penalty for non registration and contravention under
sections 9 and 10.—If any real estate agent fails to comply with or
contravenes the provisions of section 9 or section 10, he shall be li-
able to a penalty of ten thousand rupees for every day during which
such default continues, which may cumulatively extend up to five per
cent. of the cost of plot, apartment or building, as the case may be, of
the real estate project, for which the sale or purchase has been facili-
tated as determined by the Authority.
63. Penalty for failure to comply with orders of Authority by
promoter.—If any promoter, who fails to comply with, or contra-
venes any of the orders or directions of the Authority, he shall be li-
able to a penalty for every day during which such default continues,
which may cumulatively extend up to five per cent., of the estimated
cost of the real estate project as determined by the Authority.
64. Penalty for failure to comply with orders of Appellate
Tribunal by promoter.—If any promoter, who fails to comply with,
or contravenes any of the orders, decisions or directions of the
Appellate Tribunal, he shall be punishable with imprisonment for a
term which may extend up to three years or with fine for every day
during which such default continues, which may cumulatively extend
up to ten per cent. of the estimated cost of the real estate project, or
with both.
65. Penalty for failure to comply with orders of Authority by
real estate agent.—If any real estate agent, who fails to comply with,
or contravenes any of the orders or directions of the Authority, he
shall be liable to a penalty for every day during which such default
continues, which may cumulatively extend up to five per cent., of the
estimated cost of plot, apartment or building, as the case may be, of
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the real estate project, for which the sale or purchase has been facili-
tated and as determined by the Authority.
66. Penalty for failure to comply with orders of Appellate
Tribunal by real estate agent.—If any real estate agent, who fails to
comply with, or contravenes any of the orders, decisions or direc-
tions of the Appellate Tribunal, he shall be punishable with impris-
onment for a term which may extend up to one year or with fine for
every day during which such default continues, which may cumula-
tively extend up to ten per cent. of the estimated cost of plot, apart-
ment or building, as the case may be, of the real estate project, for
which the sale or purchase has been facilitated, or with both.
67. Penalty for failure to comply with orders of Authority by
allottee.—If any allottee, who fails to comply with, or contravenes
any of the orders, decisions or directions of the Authority he shall be
liable to a penalty for the period during which such default contin-
ues, which may cumulatively extend up to five per cent. of the plot,
apartment or building cost, as the case may be, as determined by the
Authority.
68. Penalty for failure to comply with orders of Appellate
Tribunal by allottee.—If any allottee, who fails to comply with, or
contravenes any of the orders or directions of the Appellate Tribunal,
as the case may be, he shall be punishable with imprisonment for a
term which may extend up to one year or with fine for every day dur-
ing which such default continues, which may cumulatively extend up
to ten per cent. of the plot, apartment or building cost, as the case
may be, or with both.
69. Offences by companies.—(1) Where an Offence under this
Act has been committed by a company, every person who, at the
time, the offence was committed was in charge of, or was responsible
to the company for the conduct of, the business of the company, as
well as the company, shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section, shall ren-
der any such person liable to any punishment under this Act if he
proves that the offence was committed without his knowledge or that
he had exercised all due diligence to prevent the commission of such
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offence.
(2) Notwithstanding anything contained in sub-section (1),
where an offence under this Act has been committed by a company,
and it is proved that the offence has been committed with the consent
or connivance of, or is attributable to, any neglect on the part of any
director, manager, secretary or other officer of the company, such di-
rector, manager, secretary or other officer shall also be deemed to be
guilty of that offence and shall be liable to be proceeded against and
punished accordingly.
Explanation.—For the purpose of this section,—
(a) “company” means any body corporate and includes a
firm, or other association of individuals; and
(b) “director” in relation to a firm, means a partner in the
firm.
70. Compounding of offences.—Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), if
any person is punished with imprisonment under this Act, the punish-
ment may, either before or after the institution of the prosecution, be
compounded by the court on such terms and conditions and on pay-
ment of such sums as may be prescribed:
Provided that the sum prescribed shall not, in any case,
exceed the maximum amount of the fine which may be imposed for
the offence so compounded.”
15. A reading of the hereinabove provision(s), does unravel, that
therebys a plenitude of jurisdiction becoming foisted respectively in the
regulatory authority or in the appellate authority. Tritely also the
adjudicatory powers envisaged in the (supra) provisions, appears to be at par
with the adjudicatory jurisdiction invested in the adjudicating officer/
authority, through the mandate enclosed in Section 71 of the Act of 2016.
16. A closest reading of hereinabove extracted Section 71 of the Act
of 2016 reveals, that the adjudicating officer/authority, rather becoming
enjoined, to hold an enquiry for adjudging compensation under Sections 12,
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14, 18 and 19 of the Act of 2016, provisions whereof become extracted
hereinafter, whereupons obviously he has also an expansive jurisdiction but
limited to adjudging compensation.
“12. Obligations of promoter regarding veracity of the
advertisement or prospectus.—Where any person makes an advance
or a deposit on the basis of the information contained in the notice,
advertisement or prospectus, or on the basis of any model apartment,
plot or building, as the case may be, and sustains any loss or
damage by reason of any incorrect, false statement included therein,
he shall be compensated by the promoter in the manner as provided
under this Act:
Provided that if the person affected by such incorrect, false
statement contained in the notice, advertisement or prospectus, or
the model apartment, plot or building as the case may be, intends to
withdraw from the proposed project, he shall be returned his entire
investment along with interest at such rate as may be prescribed and
the compensation in the manner provided under this Act.
13. XXX
14. Adherence to sanctioned plans and project specifica-
tions by the promoter.—(1) The proposed project shall be developed
and completed by the promoter in accordance with the sanctioned
plans, layout plans and specifications as approved by the competent
authorities.
(2) Notwithstanding anything contained in any law, contract
or agreement, after the sanctioned plans, layout plans and
specifications and the nature of the fixtures, fittings, amenities and
common areas, of the apartment, plot or building, as the case may
be, as approved by the competent authority, are disclosed or
furnished to the person who agree to take one or more of the said
apartment, plot or building, as the case may be, the promoter shall
not make—
(i) any additions and alterations in the sanctioned plans, lay-
out plans and specifications and the nature of fixtures, fittings and
amenities described therein in respect of the apartment, plot or
building, as the case may be, which are agreed to be taken, without
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the previous consent of that person:
Provided that the promoter may make such minor additions or
alterations as may be required by the allottee, or such minor changes
or alterations as may be necessary due to architectural and struc-
tural reasons duly recommended and verified by an authorised Ar-
chitect or Engineer after proper declaration and intimation to the al-
lottee.
Explanation.—For the purpose of this clause, “minor addi-
tions or alterations” excludes structural change including an addi-
tion to the area or change in height, or the removal of part of a
building, or any change to the structure, such as the construction or
removal or cutting into of any wall or a part of a wall, partition, col-
umn, beam, joist, floor including a mezzanine floor or other support,
or a change to or closing of any required means of access ingress or
egress or a change to the fixtures or equipment, etc.
(ii) any other alterations or additions in the sanctioned plans, layout
plans and specifications of the buildings or the common areas within
the project without the previous written consent of at least two-thirds
of the allottees, other than the promoter, who have agreed to take
apartments in such building.
Explanation.—For the purpose of this clause, the allottee, ir-
respective of the number of apartments or plots, as the case may be,
booked by him or booked in the name of his family, or in the case of
other persons such as companies or firms or any association of indi-
viduals, etc., by whatever name called, booked in its name or booked
in the name of its associated entities or related enterprises, shall be
considered as one allottee only.
(3) In case any structural defect or any other defect in
workmanship, quality or provision of services or any other
obligations of the promoter as per the agreement for sale relating to
such development is brought to the notice of the promoter within a
period of five years by the allottee from the date of handing over
possession, it shall be the duty of the promoter to rectify such defects
without further charge, within thirty days, and in the event of
promoter's failure to rectify such defects within such time, the
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aggrieved allottees shall be entitled to receive appropriate
compensation in the manner as provided under this Act.
15 to 17. XXX
18. Return of amount and compensation.—(1) If the pro-
moter fails to complete or is unable to give possession of an apart-
ment, plot or building,—
(a) in accordance with the terms of the agreement for sale or, as the
case may be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account
of suspension or revocation of the registration under this Act or for
any other reason, he shall be liable on demand to the allottees, in
case the allottee wishes to withdraw from the project, without preju-
dice 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 includ-
ing 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.
19. Rights and duties of allottees.—(1) The allottee shall be
entitled to obtain the information relating to sanctioned plans, layout
plans along with the specifications, approved by the competent au-
thority and such other information as provided in this Act or the
rules and regulations made thereunder or the agreement for sale
CWP-14937-2024 (O&M)
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signed with the promoter.
(2) The allottee shall be entitled to know stage-wise time
schedule of completion of the project, including the provisions for
water, sanitation, electricity and other amenities and services as
agreed to between the promoter and the allottee in accordance with
the terms and conditions of the agreement for sale.
(3) The allottee shall be entitled to claim the possession of
apartment, plot or building, as the case may be, and the association
of allottees shall be entitled to claim the possession of the common
areas, as per the declaration given by the promoter under sub-clause
(C) of clause (l) of sub-section (2) of section 4.
(4) The allottee shall be entitled to claim the refund of amount
paid along with interest at such rate as may be prescribed and com-
pensation in the manner as provided under this Act, from the pro-
moter, if the promoter fails to comply or is unable to give possession
of the apartment, plot or building, as the case may be, in accordance
with the terms of agreement for sale or due to discontinuance of his
business as a developer on account of suspension or revocation of
his registration under the provisions of this Act or the rules or regu-
lations made thereunder.
(5) The allottee shall be entitled to have the necessary docu-
ments and plans, including that of common areas, after handing over
the physical possession of the apartment or plot or building as the
case may be, by the promoter.
(6) Every allottee, who has entered into an agreement for sale
to take an apartment, plot or building as the case may be, under sec-
tion 13, shall be responsible to make necessary payments in the man-
ner and within the time as specified in the said agreement for sale
and shall pay at the proper time and place, the share of the registra-
tion charges, municipal taxes, water and electricity charges, mainte-
nance charges, ground rent, and other charges, if any.
(7) The allottee shall be liable to pay interest, at such rate as
may be prescribed, for any delay in payment towards any amount or
charges to be paid under sub-section (6).
(8) The obligations of the allottee under sub-section (6) and
the liability towards interest under sub-section (7) may be reduced
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when mutually agreed to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or building as the
case may be, shall participate towards the formation of an associa-
tion or society or cooperative society of the allottees, or a federation
of the same.
(10) Every allottee shall take physical possession of the apart-
ment, plot or building as the case may be, within a period of two
months of the occupancy certificate issued for the said apartment,
plot or building, as the case may be.
(11) Every allottee shall participate towards registration of
the conveyance deed of the apartment, plot or building, as the case
may be, as provided under sub-section (1) of section 17 of this Act.”
17. Therefore, if vis-a-vis any adjudicating officer/authority, thus an
adjudicatory jurisdiction, is bestowed to assess compensation to an
aggrieved, therebys since Section 40(1) of the Act of 2016, speaks that apart,
from interest or penalty being recoverable as arrears of land revenue, but
also the assessed compensation being also likewise recoverable. Resultantly,
Section 40(1) creates a common executory quasi judicial mechanism both
for therebys effectively ensuring the recovery of interest or penalty as well
as for ensuring the recovery of compensation.
18. Tritely though an executory mechanism for effectively
enforcing the adjudged compensation amount, rather becomes envisaged in
sub Section 1 of Section 40 of the Act of 2016, which is but similar to the
execution of orders of penalties or interest as become passed respectively by
regulatory authority or by the appellate authority. However, yet there are
separately conferred functional adjudicatory fields rather respectively upon
the regulatory authority or upon the appellate authority besides upon the
adjudicating officers/ authorities concerned.
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19. In other words, the adjudicatory scopes of all (supra) are
different, but the adjudicated upon lis, but is contemplated in sub Section 1
of Section 40 of the Act of 2016, to be effectively executable, through a
common recourse theretos, becoming made by the recipient of favourable
order(s), as become respectively passed by the regulatory authority or by the
appellate authorities or the adjudicating officers/authorities, latter whereof
exercise(s) jurisdiction under Section 71 of the Act of 2016.
20. Therefore, this Court is required to be searching for those
provisions as envisaged in the relevant statute(s) wherebys there is
permissibility for recovering the (supra) levies, as arrears of land revenue.
The said provision become embodied in Section 67 of the Act of 1887,
provisions whereof become extracted hereinafter.
“67. Processes for recovery of arrears.-- Subject to the other
provisions of this Act, an arrear of land-revenue may be
recovered by any one or more of the following processes,
namely: -
(a) by service of writ of demand on the defaulter;
(b) by arrest and detention of his person;
(c) by distress and sale of his movable property and uncut or
ungathered crops;
(d) by transfer of the holding in respect of which the arrear is
due;
(e) by attachment of the estate or holding in respect of which
the arrear is due;
(f) by annulment of the assessment of that estate or holding;
(g) by sale of that estate or holding;
(h) by proceedings against other immovable property of the
defaulter.”
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21. A perusal of the said provision details the invokable processes
for effectively recovering the apposite arrears of land revenue.
22. The envisaged therein invokable remedies for ensuring effective
recoveries of arrears of land revenue, thus encompasses the power to arrest
and detain the defaulter, to attach and sell his movable property and/or uncut
or ungathered crops, besides envisage the makings of attachment of the
defaulter’s estate or holding in respect of which the arrear is due. As such,
the thereunders prescribed remedies are expansive and work as a sufficient
deterrent against the person concerned, upon whom the (supra) levies are
respectively fastened, thus respectively by the regulatory authority or the
appellate authority or by the adjudicating officer/authority, rather against
violations being made qua the apposite adjudication becoming rendered
against it/him/her.
23. It appears that in terms of Section 27 of the Act of 1887,
provisions whereof becomes extracted hereinafter, the impugned notification
has been issued. Moreover, as stated (supra) it also appears that in terms of
Section 81 of the Act of 2016, the delegation of powers of execution have
been made vis-a-vis the adjudicating officer/ authority.
“27. Conferment of powers by Revenue-officer.-- (1) The 5(State
Government) may by notification confer on any person:--
(a) all or any of the powers of a Financial Commissioner,
Commissioner or Collector under this Act; or
(b) all or any of the powers with which an Assistant Collector
may be invested thereunder, and may by notification withdraw
any powers so conferred.
(2) A person on whom powers are conferred under sub-section (1)
shall exercise those powers within such local limits and in such
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classes of cases as the '(State Government) may direct, and, except
as otherwise directed by the 2(State Government), shall for all
purposes connected with the exercise thereof be deemed to be a
Financial Commissioner, Commissioner, Collector or Assistant
Collector, as the case may be.
(3) In any of the powers of a Collector, under this Act are
conferred on an Assistant Collector, they shall, unless the 3[State
Government] by special order otherwise directs, be exercised by him
subject to the control of the Collector.”
24. For the reasons to be assigned hereinafter neither the
notification is valid nor any purported delegation as has been made vis-a-vis
the adjudicating officer/authority, thus in terms of Section 81 of the Act of
2016, or in terms of Section 27 of the Act 1887, rather is valid.
25. The primary reason for stating so immediately stems, from the
factum, that the adjudicating officer/authority also exercises the apposite
adjudicatory jurisdiction under Section 40(1) of the Act of 2016. Moreover,
when the scope of the adjudicatory jurisdiction bestowed upon the
regulatory authorities concerned, or upon the appellate authority concerned,
as constituted under the Act of 2016, but is different from the exercisable
adjudicatory jurisdiction conferred upon the adjudicating officer/ authority
concerned, inasmuch as, the former(s) exercising jurisdiction, thus covering
the field of levyings of interest and penalty, upon, the concerned, whereas,
the last exercising jurisdiction under Section 71 of the Act of 2016, thus to
assess compensation in terms of Section 40(1) of the Act of 2016.
26. Though there is a common executory remedy created under sub
Section 1 of Section 40 of the Act of 2016, vis-a-vis all (supra), thus for each
(supra) effectively executing/enforcing the adjudicated lis’. Nonetheless the
said commonality qua foisting of executory jurisdiction, upon (supra) but
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cannot be extended, to thus also empower the adjudicating officer/authority
rather to execute orders appertaining to levying of interest and penalty upon
the concerned, as become respectively passed by the regulatory authority
and by the appellate authority concerned. Since the adjudicatory jurisdiction
in respect of levy of interest and penalty becomes conferred upon the
regulatory authorities or upon the appellate authorities, therebys the powers
of executing the same is also to be conferred upon the (supra) as is done
through sub Section 1 of Section 40 of the Act of 2016, and is not required
to be snatched from them nor is to be conferred upon the adjudicating
officer/authority.
27. More so, when there is no such apposite explicitly spoken
apposite extension either in sub Section 1 of Section 40 of the Act of 2016 or
in any other statutory provision embodied in the Act of 2016, wherebys the
adjudicated lis’ appertaining to levy of penalty and interest upon the
concerned, as made by the regulatory authority concerned, or the appellate
authority concerned, thus is permitted to be executed by the adjudicating
officer/authority.
28. If there is no explicit statutory conferment of any executory
mechanism, to the said extent, therebys the conferments thereofs, upon the
adjudicating officer/authority, wherebys the adjudicating officer/ authority
becomes empowered to execute the levies, appertaining to penalty and
interest, as become appositely fastened by the regulatory authority or by the
appellate authority concerned. Resultantly necessarily therebys, the said
conferment of executory jurisdiction qua the (supra) vis-a-vis the (supra)
levies, but would be an ill conferment thereof, as has been done through the
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passing of the impugned notification. Reiteratedly in sequel, the said
notification is vitiated. If the said is permitted to be done therebys there
would be conferment of jurisdiction upon the adjudicating officer/ authority,
despite the same not becoming explicitly envisaged in the statute.
29. In consequence, the impugned notification, thus is in derogation
of the explicit statutory adjudicatory jurisdiction vested, respectively in the
regulatory authorities and in the appellate authority concerned, besides
breaches the affiliated thereto foisting of executory jurisdiction upon the
(supra).
30. Even if assumingly though there is through the purported
invocation of the mandate enclosed in Section 81 of the Act of 2016, thus a
purported delegation of powers to the adjudicating officer/authority
concerned. However even the said provision, was not recoursable, especially
when for all the (supra) stated reasons, rather therebys, it would make an
open rife conflict, rather with the specifically statutorily earmarked fields of
adjudication, thus respectively upon the regulatory authorities or the
appellate authority concerned, besides qua the adjudicating officer/authority.
As such, the orders passed by the regulatory authorities concerned, and the
appellate authority concerned, as become constituted under the Act of 2016,
but cannot be permitted to be executed by the adjudicating officer/ authority
concerned, as therebys there would be an impermissible vestment of
executory jurisdiction in the adjudicating officer/ authority, which otherwise
is not explicitly pronounced to be so conferred upon him. Resultantly, the
provisions of Section 81 of the Act of 2016, but cannot be extended to reach
a scenario wherebys therethroughs executory jurisdiction, which has not
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been specifically invested in the adjudicating officer/ authority, but becomes
conferred upon the adjudicating officer/ authority concerned.
31. Though, it appears that the mandate enclosed in Section 27 of
the Act of 1887 wherebys the thereunders conferred exercisable jurisdiction,
thus can be conferred upon “any person”, within the ambit whereof, thus the
adjudicating officer, rather becomes contended to fall. However, even the
said argument pales into insignificance. Significantly in the wake of this
Court, thus making the hereinabove inference, wherebys this Court has
stated that when there are different adjudicatory fields, respectively endowed
vis-a-vis the regulatory authority(ies), the appellate authority and the
adjudicating officer/ authority, besides when the adjudications respectively
made by them are but obviously to be separately executable by them.
Therefore, when it has also been stated hereinabove, that the power to
execute the orders passed by the regulatory authority(ies) and those passed
by the appellate authority(ies), thus is vested in the (supra), than in the
adjudicating officer/ authority, who also has different fields of adjudication
and also has powers’ to execute the verdicts passed by (supra). Therefore,
when it has also been stated hereinabove, that there cannot be any co-
mingling of separately created adjudicatory fields, therebys but obviously
there cannot be any co-mingling of separately foisted executory
jurisdiction(s) respectively upon the (supra). In sequel, the said argument is
rejected.
32. The direction(s) (supra) passed by the learned Single Bench of
this Court are also to the considered mind of this Court, thus per incuriam
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the provisions embodied in Rule 27 of the Rules of 2017, provisions
whereof are extracted hereinabove, and are re-extracted hereinafter.
“
“27. (1) Every order passed by the adjudicating officer or the
Authority or the Appellate Tribunal, as the case may be, under the
Act or rules and the regulation made thereunder, shall be enforced by
an adjudicating officer of the Authority or Appellate Tribunal in the
same manner as if it were a decree or an order made by a civil court
in a suite pending therein; and it shall be lawful for the adjudicating
officer or the Authority or the Appellate Tribunal, as the case may
be, in the event of its inability to execute the order, send such order
to the civil court, to execute such order.
(2) The court may, for the purposes of compounding any offence
punishable with imprisonment under the Act accept an amount as
specified in the Table below:-
Offence Amount to be paid for
compounding the offence
Punishable with imprisonment
under sub section (2) of
section 59.
five to ten percent of the estimated
cost of the real estate project.
Punishable with imprisonment
under section 64.
five to ten percent of the estimated
cost of the real estate project.
Punishable with imprisonment
under section 66.
five to ten percent of the estimated
cost of the plot, apartment or
building, as the case may be, of the
real estate project, for which the
sale or purchase has been
facilitated.
Punishable with imprisonment
under section 68.
five to ten percent of the estimated
cost of the plot, apartment or
building, as the case may be.
33. Since a closest reading of the above extracted provisions also
reveals, that though the power of ensuring the apposite executions, becomes
respectively conferred upon the adjudicating officer/authority or the
regulatory authority or the appellate tribunal, therebys too, when each of the
(supra) enjoy(s) separate powers to execute the respectively passed orders,
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which become so passed, through each exercising separately envisaged
adjudicatory fields, therebys there cannot be any coalescing of the apposite
executory jurisdictions, as has been untenably created, through the passing
of the impugned notification, and also by the making of the verdict by the
learned Single Bench of this Court.
34. Furthermore, the learned Single Bench of this Court, also fell in
error qua the adjudicated lis’, respectively by the regulatory authority, by the
appellate authority, and by the adjudicating officer/authority, rather cannot
become enforced alike the decree of a civil court, especially since therebys
the learned Single Bench of this Court, but has militated against the mandate
spoken in Rule 27 of the Rules of 2017. Since thereins it is explicitly
enunciated that the adjudicated lis’ can be effectively executed as a decree of
the civil court, besides obviously as arrears of land revenue. Since the decree
of a civil court is executable in the manner envisaged in the (supra) extracted
provisions carried in Section 67 of the Act of 1887, therefore, the
recoverable arrears of land revenue, thus can also be ensured to be recovered
in the contemplated thereins manner.
35. In aftermath, there is merit in the instant writ petition, and, the
same is allowed. Resultantly, the impugned notification dated 11.05.2024
(Annexure P-1) is hereby quashed and set aside.
36. However, it is clarified that the orders respectively passed by
the regulatory authority or by the appellate authority or by the adjudicating
officer/authority, as created under the Act of 2016, shall become separately
executed by them, through the apposite application(s) in terms of Section
40(1) of the Act of 2016, becoming filed before each of the (supra),
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whereafter in case the levies imposed upon the concerned, if remained
undeposited, thus subsequently, on the filed execution application, rather
before each, thus they shall be recovered as arrears of land revenue in terms
of Rule 27 of the Rules of 2017, besides in terms of Section 67 of the Act of
1887. Moreover in doing so all (supra) shall ensure that the apposite orders
are executed in the same manner, as decrees rendered by civil court of
competent jurisdiction, thus are executed.
(SURESHWAR THAKUR)
JUDGE
24.04.2025 (H.S. GREWAL)
Ithlesh JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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