Case Title : Raj Kumar Tulsyan Vs Savior Builders Pvt. Ltd. Noida Thr. its director

Bench: Justice Abdul Moini

Citation: RERA Appeal No. – 29 of 2022

The Allahabad High Court, Lucknow on Friday allowed the appeal filed against the decision of the RERA Tribunal and framed three important questions of law.

A bench of Justice Abdul Moin was dealing with a case where the appellant had booked an apartment with the respondent promoter. As per the agreement reached between the appellant and the respondent, possession of the apartment was to be given by December 2015.

When the respondent failed to deliver the possession, a complaint was lodged before the Authority in March 2018 praying for a refund of the amount paid by him to the appellant.

The refund was claimed in view of Section 18 of the Real Estate (Regulation and Development) Act, 2016, which provides for a refund of the amount and compensation. The Authority, while disposing of the complaint of the appellant by the impugned order, directed the respondent to give physical possession of the apartment by a particular date and pay the fine as per rules.

The Real Estate Appellate Tribunal dismissed the appeal filed against the order of the RERA Authority on the grounds of maintainability of the complaint under section 31 and appeal under section 44 of the RERA Act 2016 against the unregistered project.

The appellant submitted that the Tribunal had misinterpreted the judgment passed by the Hon'ble Supreme Court and held that unregistered projects do not come under the purview of the 2016 Act and that complaints and appeals against unregistered projects are considered non-maintainable.

Against the decision and order of the Tribunal, RERA appeal was filed before the Hon'ble Allahabad High Court sitting at Lucknow, whereby the Hon'ble Court allowed the appeal and framed 3 important questions of law and stayed the order of the Tribunal.

There were three important questions:

Whether the finding of the learned Tribunal on appeal before the Appellate Authority against the non-maintenance and unregistered projects of the RERA Authority is based on misinterpretation of the judgment delivered by the Hon'ble Supreme Court in M/s Newtech Promoters & Developers Pvt Ltd Vs State of U.P. ?

Whether the finding of the learned Tribunal on appeal before the Appellate Authority against the non-maintenance and unregistered projects of the RERA Authority, is against the provisions contained in the Real Estate (Regulation and Development) Act, 2016 and thus, is perverse and law Not sustainable?

Whether the learned Tribunal erred in finding that neither the complaint before the RERA Authority nor the appeal before the Appellate Authority would be maintainable against the unregistered projects, as the real estate developers/promoters would be liable to a penalty for not getting their projects registered. Will use it as tool.?

In view of the above, the High Court stayed the order of the Tribunal till the next date of hearing.