Contractual Terms Do Not Have Overriding Effect On RERA Act; Promotor Cannot Shirk From Responsibilities: Allahabad HC

The Allahabad High Court observed that the promoter cannot shirk from the responsibilities/ liabilities under the Real Estate (Regulation and Development) Act, 2016, and the contractual terms do not have an overriding effect to the retrospective applicability of the authority under the provisions of the Act.

The Bench of Justice Om Prakash Shuklat observed that, "promoter cannot shirk from the responsibilities/ liabilities under the act and the contractual terms do not have an overriding effect to the retrospective applicability of the authority under the provisions of the Act and...the regulatory authority is required to examine a complaint as per the provisions of the Act, rules and regulations and not merely on the basis of the terms and conditions of the registration booklet or as provided in the demand letter only."

Counsel Anurag Singh, Counsel Umesh Chandra Pandey and Counsel Shikhar Srivastava appeared for the appellant, while Counsel Pradeep Kumar Singh and Counsel Santosh Kumar Bhatt appeared for the respondent.

The appellant, a public institution under U.P Avas Evam Vikas Adhiniyam, 1973, faced a complaint for delayed possession of a flat. The appellant argued that delays were beyond its control due to changes in legislation. The respondent, who had been allotted a flat, complained of delayed possession, alleging no windows, parking issues, and other deficiencies.

The Adjudicating Authority acknowledged the delay, directing the appellant to pay interest as compensation for the period of delay in possession. The appellant appealed to the Appellate Tribunal, which, after considering multiple appeals, rejected them collectively. The appellant challenged this decision.

The High Court observed that the appellant was unable to show from records as to how the impugned judgment suffers from any illegality and as to which specific material or law has been improperly considered by the Appellate Tribunal. 

In that vein, it was further said that, "The Appellate Tribunal examined the evidence on record at length, and arrived at a reasoned conclusion, that there was a delay in handing over of the possession of the project to the respondent. This finding is based on cogent and binding documents of Registration Document, occupation certificate, including the registered sale deeds by which the respective allottees have taken possession of the flats. There was no erroneous inference from any proved fact."

The Court perused the case of M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P, wherein the point of jurisdiction had been raised before the Apex Court. In that case, it had been stressed that the promoter cannot shirk from the responsibilities/ liabilities under the act and the contractual terms do not have an overriding effect to the retrospective applicability of the authority under the provisions of the Act. Subsequently, the Tribunal held that a home buyer does not lose his/her right to claim compensation for the delay in possession even after execution of the conveyance deed and taking of possession of the unit/Apartment/Flat booked by him.

Therefore, it was held that there was no illegality or perversity in the order of the Adjudicating officer in awarding interest as compensation to the complainant for delay in possession of the flat. 

Cause Title: U.P. Avas Evam Vikas Parishad vs Dhruv Kumar Chaturvedi

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