M/s. Newtech Promoters and Developers Pvt. Ltd. vs State of Up & Ors. etc.

Act of 2016 – Retrospective or retroactive in its operation – Held: Application of the Act is retroactive in character and it cannot be said to be violative of either Art. 14 or 19(1)(g) – Intention of the legislature by necessary implication and without any ambiguity is to include those projects which were ongoing and in cases where completion certificate has not been issued within fold of the Act – Projects already completed or to which the completion certificate has been granted are not under its fold – At the same time, it would apply after getting the on-going projects and future projects registered u/s. 3 to prospectively follow the mandate of the Act – ss. 3(1), 13, 18(1) and 19(4) – Constitution of India – Arts. 14, 19(1)(g). ss. 12, 14, 18, 19 and 71 – Return/refund of the amount to allottee – Jurisdiction of, regulatory authority or adjudicating officer – Held: There is a complete delineation of the jurisdiction vested with the regulatory authority and the adjudicating officer – A conjoint reading of ss. 18 and 19 clearly manifests that when it comes to refund of the amount, and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint – When it comes to seeking the relief of adjudging compensation and interest thereon, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of s.71 r/w s.72 – If the adjudication u/ss. 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicating officer as prayed that, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer u/s. 71 and that would be against the mandate of the Act 2016.

s. 81 – Delegation of power to single member of the authority to hear complaint instituted u/s. 31 – Permissibility of – Held: Is permissible – s. 81 positively empowers the authority to delegate such of its powers and functions to one of its member by general or special order subject to s. 85 – It cannot said to be dehors the mandate of law.

s. 43(5) proviso – Condition of pre-deposit for filing appeal – Sustainability of – Held: Is sustainable in law – Obligation is cast upon the promoter of pre-deposit u/s. 43(5), being a class in itself, and the promoters are in receipt of money which is being claimed by the home buyers/allottees for refund and determined in the first place by the competent authority – Intention of the legislature was to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged u/s. 43(5) – Thus, it cannot said to be onerous or in violation of Arts. 14 or 19(1)(g) of the Constitution.

s. 40(1) – Issuance of recovery certificates for recovery of principle amount under – Power of the authority – Held: Power of authority to direct the refund of the principal amount is explicit in s.

18 and the interest that is payable is on the principal amount – There is no interest in the absence of a principal amount being determined by the competent authority – Statute as such is read to mean that the principal sum with interest has become a composite amount quantified upon to be recovered as arrears of land revenue u/s. 40(1) – There appears some ambiguity in s. 40(1) and by harmonising the construction of the scheme of the Act with the right of recovery as mandated in s. 40(1), it is made clear that the amount which has been determined and refundable to the allottees/home buyers either by the authority or the adjudicating officer in terms of the order is recoverable within the ambit of s. 40(1).

Object and reasons of the Act – Explained.

Interpretation of Statutes:

Retroactive statute – Meaning of – Held: Retroactive statute means a statute which creates a new obligation on transactions or considerations already passed or destroys or impairs vested rights – Statute is not retrospective merely because it affects existing rights or its retrospection because a part of the requisites for its action is drawn from a time antecedent to its passing.

Disposing of the appeals, the Court

HELD: 1.1. Looking to the scheme of Real Estate (Regulation and Development) Act, 2016 and Section 3 in particular, all “ongoing projects” that commence prior to the Act and in respect to which completion certificate has not been issued are covered under the Act. It manifests that the legislative intent is to make the Act applicable not only to the projects which were yet to commence after the Act became operational but also to bring under its fold the ongoing projects and to protect from its inception the inter se rights of the stake holders, including allottees/home buyers, promoters and real estate agents while imposing certain duties and responsibilities on each of them and to regulate, administer and supervise the unregulated real estate sector within the fold of the real estate Authority. [Para 37][939-B-D]

1.2. The clear and unambiguous language of the statute is retroactive in operation and by applying purposive interpretation rule of statutory construction, only one result is possible, i.e., the legislature consciously enacted a retroactive statute to ensure sale of plot, apartment or building, real estate project is done in an efficient and transparent manner so that the interest of consumers in the real estate sector is protected by all means and Sections 13, 18(1) and 19(4) are all beneficial provisions for safeguarding the pecuniary interest of the consumers/allottees. In the given circumstances, if the Act is held prospective then the adjudicatory mechanism under Section 31 would not be available to any of the allottee for an ongoing project. Thus, it negates the submission of the promoters regarding the contractual terms having an overriding effect over the retrospective applicability of the Act, even on facts of the case. [Para 41][940-D-F]

1.3. The provision further emphasizes is that a promoter of a project which is not complete/sans completion certificate shall get the project registered under the Act but while getting the project registered, promoter is under an obligation to prescribe fresh timelines for getting the remaining development work completed and from the scheme of the Act, the first proviso to Section 3(1) is not in any manner violative of Articles 14 and 19(1)(g) of the Constitution of India. The Parliament is always competent to enact any law affecting the antecedent events under its fold within the parameters of law. [Para 42][940-F-H]

1.4. At the given time, there was no law regulating the real estate sector, development works/obligations of promoter and allottee, it was badly felt that such of the ongoing projects to which completion certificate has not been issued must be brought within the fold of the Act 2016 in securing the interests of allottees, promoters, real estate agents in its best possible way obviously, within the parameters of law. Merely because enactment as prayed is made retroactive in its operation, it cannot be said to be either violative of Articles 14 or 19(1)(g) of the Constitution of India. To the contrary, the Parliament indeed has the power to legislate even retrospectively to take into its fold the pre-existing contract and rights executed between the parties in the larger public interest. [Para 45][941-D-F]

1.5. The consequences for breach of such obligations under the Act are prospective in operation and in case ongoing project, of which completion certificate is not obtained, are not to be covered under the Act, there is every likelihood of classifications in respect of underdeveloped ongoing project and the new project to be commenced. [Para 46][941-F]

1.6. The legislative power to make the law with prospective/retrospective effect is well recognized and it would not be permissible for the appellants/promoters to say that they have any vested right in dealing with the completion of the project by leaving the allottees in lurch, in a helpless and miserable condition that at least may not be acceptable within the four corners of law. [Para 47][941-G-H]

1.7. The statute is not retrospective merely because it affects existing rights or its retrospection because a part of the requisites for its action is drawn from a time antecedent to its passing, at the same time, retroactive statute means a statute which creates a new obligation on transactions or considerations already passed or destroys or impairs vested rights. [Para 51][943-C]

1.8. The Parliament intended to bring within the fold of the statute the ongoing real estate projects in its wide amplitude used the term “converting and existing building or a part thereof into apartments” including every kind of developmental activity either existing or upcoming in future under Section 3(1) of the Act, the intention of the legislature by necessary implication and without any ambiguity is to include those projects which were ongoing and in cases where Completion certificate has not been issued within fold of the Act. [Para 52][943-D-E]

1.9. Even the terms of the agreement to sale or home buyers agreement invariably indicates the intention of the developer that any subsequent legislation, rules and regulations etc. issued by competent authorities would be binding on the parties. The clauses have imposed the applicability of subsequent legislations to be applicable and binding on the flat buyer/allottee and either of the parties, promoters/home buyers or allottees, cannot shirk from their responsibilities/liabilities under the Act and implies their challenge to the violation of the provisions of the Act and it negates the submission regarding contractual terms having an overriding effect to the retrospective applicability of the Authority under the provisions of the Act which is completely misplaced and is rejected. [Para 53][943-E-G]

1.10. From the scheme of the Act 2016, its application is retroactive in character and it can safely be observed that the projects already completed or to which the completion certificate has been granted are not under its fold and therefore, vested or accrued rights, if any, in no manner are affected. At the same time, it will apply after getting the on-going projects and future projects registered under Section 3 to prospectively follow the mandate of the Act 2016. [Para 54][943-G-H; 944-A] State of Bombay (Now Maharashtra) versus Vishnu Ramchandra AIR 1961 SC 307 : [1961] 2 SCR 26;

Jay Mahakali Rolling Mills vs. Union of India and Others 2007 (12) SCC 198 : [2007] 8 SCR 855; Shanti Conductors Private Limited and Another vs. Assam State Electricity Board and Others 2019 (19) SCC 529; Vineeta Sharma vs. Rakesh Sharma and Others 2020

(9) SCC 1 – referred to.

2.1. The legislature in its wisdom has made a specific provision delineating power to be exercised by the regulatory authority/adjudicating officer. “Refund of the amount” and “compensation” are two distinct components which the allottee or the person aggrieved is entitled to claim if the promoter has not been able to hand over possession with a nature of enquiry and mechanism provided under the Act. So far as the claim with respect to refund of amount on demand under Sections 18(1) and 19(4) of the Act is concerned, it vests within the jurisdiction of the regulatory authority. Section 71 carves out the jurisdiction of the adjudicating officer to adjudge compensation under Sections 12, 14, 18 and 19 after holding enquiry under Section 71(3) of the Act keeping in view the broad contours referred to under Section

72 of the Act. [Para 75][952-B-D]

2.2. After the Act of 2016 has come into force, if any person aggrieved wants to make complaint for refund against the promotor or real estate agent other than compensation, it is to be lodged to the regulatory authority and for adjudging compensation to the adjudicating officer, and the delineation has been made to expedite the process of adjudication invoked by the person aggrieved when a complaint has been made under Section 31 of the Act to be adjudicated either by the authority/adjudicating officer as per the procedure prescribed under the Act. [Para 76][952-E-G]

2.3 To safeguard the interests of the parties, on being decided by the regulatory authority/adjudicating officer, it is always subject to appeal before the tribunal under Section 43(5) provided condition of pre-deposit being complied with can be further challenged in appeal before the High Court under Section 58 of the Act and, thus, the legislature has put reasonable restriction and safeguards at all stages. [Para 79][954-A-B]

2.4 The submission that if the allottee has defaulted the terms of the agreement and still refund is claimed which can be possible, to be determined by the adjudicating officer, appears to be attractive but is not supported with legislative intent for the reason that if the allottee has made a default either in making instalments or made any breach of the agreement, the promoter has a right to cancel the allotment in terms of Section 11(5) of the Act and proviso to sub-section 5 of Section 11 enables the allottee to approach the regulatory authority to question the termination or cancellation of the agreement by the promotor and thus, the interest of the promoter is equally safeguarded. [Para 80] [954-B-D]

2.5. The opening words of Section 71(1) of the Act make it clear that the scope and functions of the adjudicating officer are only for “adjudging compensation” under Sections 12, 14, 18 and

19 of the Act. If the legislative intent was to expand the scope of the powers of the adjudicating officer, then the wording of Section 71(1) ought to have been different. On the contrary, even the opening words of Section 71(2) of the Act make it clear that an application before the adjudicating officer is only for “adjudging compensation”. Even in Section 71(3) of the Act, it is reiterated that the adjudicating officer may direct “to pay such compensation or interest” as the case may be as he thinks fit, in accordance with provisions of Sections 12, 14, 18 and 19 of the Act. This has to be seen together with the opening words of Section 72 of the Act, which reads “while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regards” to the broad parameters to be kept in mind while adjudging compensation to be determined under Section 71 of the Act. [Para 81]954-D-G]

2.6 There is a complete delineation of the jurisdiction vested with the regulatory authority and the adjudicating officer. If there is any breach or violation of the provisions of Sections 12, 14, 18 and 19 of the Act by the promoter, such a complaint straightaway has to be filed before the regulatory authority. What is being referable to the adjudicating officer is for adjudging compensation, as reflected under Section 71 of the Act and accordingly rules and regulations have been framed by the authority for streamlining the complaints which are made by the aggrieved person either on account of violation of the provisions of Sections 12, 14, 18 and 19 or for adjudging compensation and there appears no question of any inconsistency being made, in the given circumstances, either by the regulatory authority or the adjudicating officer. [Para 82][955-A-D]

2.7 So far as the single complaint is filed seeking a combination of reliefs, it is suffice to say, that after the rules have been framed, the aggrieved person has to file complaint in a separate format. If there is a violation of the provisions of sections 12, 14, 18 and 19, the person aggrieved has to file a complaint as per form (M) or for compensation under form (N) as referred to under Rules 33(1) and 34(1) of the Rules. The procedure for inquiry is different in both the set of adjudication and there is no room for any inconsistency and the power of adjudication being delineated, still if composite application is filed, can be segregated at the appropriate stage. [Para 83][955-D-F]

2.8. If the literal rule of interpretation is seen that when the words of the statute are clear, plain and unambiguous, the Courts are bound to give effect to that meaning regardless of its consequence. It is always advisable to interpret the legislative wisdom in the literary sense as being intended by the legislature and the Courts are not supposed to embark upon an inquiry and find out a solution in substituting the legislative wisdom which is always to be avoided. [Para 85][955-G-H; 956-A]

2.9 From the scheme of the Act and taking note of power of adjudication delineated with the regulatory 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 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, if extended to the adjudicating officer as prayed that, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016. [Para 86][956-B-E]

Imperia Structures Ltd. vs. Anil Patni and Another 2020

(10) SCC 783 – referred to.

3.1. Section 21 of the Act relates to the composition of the authority which consists of a Chairperson and not less than two whole time members to be appointed by the appropriate Government but conspicuously it does not mention minimum bench strength at the same time consciously prescribes minimum bench/quorum while constituting the Real Estate Appellate Tribunal as reflected under Section 43(3) of the Act. [Para 103][962-A-B]

3.2. The emphasis was on Section 29 of the Act which indicates the quorum of meetings of the authority. There is a specific provision that there shall be a meeting of the authority with the minimum quorum being prescribed, such business of the meeting of the authority indeed could not be delegated to a single member of the authority in exercise of power under Section

81 of the Act. The term meeting under Section 29 of the Act does not deal with the performance of the authority in quasi-judicial matters which are referred to under Section 31 of the Act. It only refers to meetings, policy/regulatory issues that the authority is mandated to discharge under the Act. Sections 32 and 33 are in the nature of policy/regulatory directions which the authority is mandated to be discharged indisputably have to be undertaken by the authority while functioning as a whole body under Section

29 of the Act. [Paras 104, 105][962-B-E]

3.3 Section 29(3) and (4) of the Act talks about the questions before the authority which are to be disposed of within 60 days on receiving the applications. It may be noticed that there is no reference to any complaint referred to under Section 31 of the Act. To buttress it further, Section 29 and Section 81 of the Act are not in derogation to each other. To the contrary, both operate in different fields. Section 29 deals with the meetings of the authority to be held for taking policy/regulatory decisions in the interest of the stake holders and does not envisage in its fold quasi-judicial functions which the Act casts upon the authority. The legislative intention as reflected from Section 29 is a recognition of the rationale that policy matters ought to be considered and decided by the entire strength of the authority so that the policy decisions reflect the acquired experience of the members and Chairman of the authority. [Para 106][962-E-G]

3.4 Section 81 of the Act 2016 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. [Para 112][966-EG]

3.5 In the instant case, the authority by a special order dated 5th December, 2018 has delegated its power to the single member for disposal of complaints filed under Section 31 of the Act. Pursuant to the delegation of power to the single member of the authority, complaints filed by the allottees/home buyers 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. 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/home buyer 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. [Paras 107, 108, 113][962-H; 963-A; 966-G-H; 967-A-B]

3.6 What is being urged by 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 promoters if to be accepted, the very mandate of Section 81 itself will become otiose and nugatory. [Para 114][967-B-C]

3.7 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 single member of the authority is indeed within the fold of Section 81 of the Act. [Para 115][967-C-E]

3.8 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. [Para 116][967-G-H; 968-A]

3.9 The power to be exercised by the authority in deciding complaints under Section 31 of the Act is quasi-judicial in nature which is delegable provided there is a provision in the statute. Section 81 of the Act empowers the authority to delegate its power and functions to any of its member, by general or special order. [Para 117][968-C]

3.10 In the instant case, by exercising its power under Section 81 of the Act, the authority, by a special order dated 5th December, 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 de hors 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. [Para 118][968-D-E]

3.11 That scheme of the Act, 2016 provides an in-built mechanism and any order passed on a complaint by the authority under Section 31 is appealable before the tribunal under Section 43(5) and further in appeal to the High Court under Section 58 of the Act on one or more ground specified under Section 100 of the Code of Civil Procedure, 1908, if any manifest error is left by the authority either in computation or in the amount refundable to the allottee/home buyer, is open to be considered at the appellate stage on the complaint made by the person aggrieved. [Para 119][968-F-G]

3.12 In view of the remedial mechanism provided under the Scheme of the Act, 2016 the power of delegation under Section 81 of the Act by the authority to one of its members for deciding applications/complaints under Section 31 of the Act is not only well defined but expressly permissible and that cannot be said to be dehors the mandate of law. [Para 120][968-G-H]

Province of Bombay vs. Kushaldas S Advani and Others [1950] SCR 621; Shivji Nathubhai vs. Union of India and Others [1960] 2 SCR 775; Harinagar Sugar Mills Limited vs. Shyam Sunder Jhunjhunwala and Others [1962] 2 SCR 339; Bombay Municipal Corporation vs. Dhondu Narayan Chowdhary [1965] 2 SCR 929; Sahni Silk Mills(P) Ltd. and Another vs. Employees State Insurance Corporation (1994) 5 SCC 346 : [1994] 1 Suppl. SCR 626; Jagannath Temple Managing

Committee vs. Siddha Math and Others (2015) 16 SCC 542; Saurashtra Kutch Stock Exchange Ltd. vs.

Securities and Exchange Board of India and Another (2012) 13 SCC 501; State of Uttar Pradesh vs. Batuk Deo Pati Tripathi and Another (1978) 2 SCC 102 : [1978] 3 SCR 131; Heinz India Private Limited and Another vs. State of Uttar Pradesh (2012) 5 SCC 443 : [2012] 3 SCR 898 – referred to.

Barnard vs. National Dock Labour Board 1953 (2) QB 18; Vine vs. National Dock Labour Board 1956 (1) QB

658 – referred to.

4.1 Section 43(5) of the Act envisages the filing of an appeal before the appellate tribunal against the order of an authority or the adjudicating officer by any person aggrieved and where the promoter intends to appeal against an order of authority or adjudicating officer against imposition of penalty, the promoter has to deposit at least 30 per cent of the penalty amount or such higher amount as may be directed by the appellate tribunal. Where the appeal is against any other order which involves the return of the amount to the allottee, the promoter is under obligation to deposit with the appellate tribunal the total amount to be paid to the allottee which includes interest and compensation imposed on him, if any, or with both, as the case may be, before the appeal is to be instituted. [Para 122][969-F-H]

4.2. Perusal of scheme of the Act makes it clear that the limited rights and duties are provided on the shoulders of the allottees under Section 19 of the Act at a given time, several onerous duties and obligations have been imposed on the promoters i.e. registration, duties of promoters, obligations of promoters, adherence to sanctioned plans, insurance of real estate, payment of penalty, interest and compensation, etc. under Chapters III and VIII of the Act 2016. This classification between consumers and promoters is based upon the intelligible differentia between the rights, duties and obligations cast upon the allottees/home buyers and the promoters and is in furtherance of the object and purpose of the Act to protect the interest of the consumers vis-a-viz., the promoters in the real estate sector. The promoters and allottees are distinctly identifiable, separate class of persons having been differently and separately dealt with under the various provisions of the Act. Therefore, the question of discrimination in the first place does not arise which has been alleged as they fall under distinct and different categories/classes. [Paras 125, 126][970-E-H]

4.3. Under the present real estate sector which is now being regulated under the provisions of the Act 2016, the complaint for refund of the amount of payment which the allottee/consumer has deposited with the promoter and at a later stage, when the promoter is unable to hand over possession in breach of the conditions of the agreement between the parties, are being instituted at the instance of the consumer/allotee demanding for refund of the amount deposited by them and after the scrutiny of facts being made based on the contemporaneous documentary evidence on record made available by the respective parties. The legislature in its wisdom has intended to ensure that the money which has been computed by the authority at least must be safeguarded if the promoter intends to prefer an appeal before the tribunal and in case, the appeal fails at a later stage, it becomes difficult for the consumer/allottee to get the amount recovered which has been determined by the authority and to avoid the consumer/allottee to go from pillar to post for recovery of the amount that has been determined by the authority in fact, belongs to the allottee at a later stage could be saved from all the miseries which come forward against him. [Para 127][971-A-D]

4.4. At the same time, it will avoid unscrupulous and uncalled for litigation at the appellate stage and restrict the promoter if feels that there is some manifest material irregularity being committed or his defence has not been properly appreciated at the first stage, would prefer an appeal for re-appraisal of the evidence on record provided substantive compliance of the condition of pre-deposit is made over, the rights of the parties inter se could easily be saved for adjudication at the appellate stage. [Para 128][971-E]

4.5. There are multiple statutes which provide a condition of pre-deposit of a stipulated statutory amount to be deposited before an appeal is entertained by an appellate forum/tribunal for reappraisal of facts and law at the appellate stage. The intention of the instant legislation appears to be that the promoters ought to show their bona fides by depositing the amount so contemplated. [Paras 129, 135][971-F-G; 975-D-E]

4.6. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi-judicial litigations and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfilment of precondition, if any, against the order passed by the Authority in question. [Para 136][975-E-G]

4.7. The obligation cast upon the promoter of pre-deposit under Section 43(5) of the Act, being a class in itself, and the promoters who are in receipt of money which is being claimed by the home buyers/allottees for refund and determined in the first place by the competent authority, if legislature in its wisdom intended to ensure that money once determined by the authority be saved if appeal is to be preferred at the instance of the promoter after due compliance of pre-deposit as envisaged under Section 43(5) of the Act, in no circumstance can be said to be onerous as prayed for or in violation of Articles 14 or 19(1)(g) of the Constitution of India. [Para 137][975-G-H; 976-A-B] Narayan Chandra Ghosh vs. UCO Bank and Others

(2011) 4 SCC 548 : [2011] 3 SCR 1024; Har Devi Asnani vs. State of Rajasthan and Others (2011) 14 SCC

160 : [2011] 11 SCR 599; Government of Andhra

Pradesh and Others vs. P. Laxmi Devi (Smt.) (2008) 4 SCC 720 : [2008] 3 SCR 330; State of Haryana vs. Maruti Udyog Ltd. and Others 2000 (7) SCC 348 : [2000] 3 Suppl. SCR 185; Shreenath Corporation and Others vs. Consumer Education and Research Society and Others 2014 (8) SCC 657 : [2014] 9 SCR 356; Tecnimont Pvt. Ltd. (Formerly Known As Tecnimont ICB Private Limited) vs. State of Punjab and Others AIR 2019 SC 4489 : [2019] 12 SCR 229 – referred to.

5.1 The power of authority to direct the refund of the principal amount is explicit in Section 18 and the interest that is payable is on the principal amount in other words, there is no interest in the absence of a principal amount being determined by the competent authority. Further the statute as such is read to mean that the principal sum with interest has become a composite amount quantified upon to be recovered as arrears of land revenue under Section 40(1) of the Act. [Para 139][976-G-H]

5.2 It is settled principle of law that if the plain interpretation does not fulfil the mandate and object of the Act, this Court has to interpret the law in consonance with the spirit and purpose of the statute. There is indeed a visible inconsistency in the powers of the authority regarding refund of the amount received by the promoter and the provision of law in Section 18 and the text of the provision by which such refund can be referred under Section 40(1). While harmonising the construction of the scheme of the Act with the right of recovery as mandated in Section 40(1) of the Act keeping in mind the intention of the legislature to provide for a speedy recovery of the amount invested by the allottee along with the interest incurred thereon is self-explanatory. However, if Section 40(1) is strictly construed and it is understood to mean that only penalty and interest on the principal amount are recoverable as arrears of land revenue, it would defeat the basic purpose of the Act. [Para 140][977-A-C]

5.3 Taking into consideration the scheme of the Act what is to be returned to the allottee is his own life savings with interest on computed/quantified by the authority becomes recoverable and such arrear becomes enforceable in law. There appears some ambiguity in Section 40(1) of the Act that by harmonising the provision with the purpose of the Act, is given effect to the provisions is allowed to operate rather running either of them redundant, noticing purport of the legislature and the abovestated principle into consideration, it is made clear that the amount which has been determined and refundable to the allottees/home buyers either by the authority or the adjudicating officer in terms of the order is recoverable within the ambit of Section 40(1) of the Act. [Para 141][977-D-E]

5.4 There is no error in the judgment impugned in the appeals. [Para 142][977-F]