1. This appeal has been filed by the Lucknow Development Authority (hereinafter referred to as 'the appellant') against the judgment and order dated 16.07.2021 passed by the Adjudicating Officer of the Uttar Pradesh Real Estate Regulatory Authority, Lucknow (hereinafter referred to as 'the Adjudicating Officer') in Complaint no. ADJ/LKO162/08/58824/2020 (Suyash Gupta Vs. Lucknow Vikas Pradhikaran) whereby the complaint of the respondent was allowed and the appellant was directed to pay interest to the respondent in the shape of compensation at the rate of MCLR+1% per annum on the earlier cost of the flat i.e. Rs. 25,70,000/- for the delay period from 30.08.2015 to 07.08.2019, within 45 days from the date of order. In case of non-payment by the appellant, after the stipulated period, the respondent will be entitled to interest at the same rate on the amount of compensation.

2. The case was registered as defective appeal (Appeal No. (D) 874 of 2021) and subsequently vide order dated 04.07.2022 it was converted into Regular Appeal No. 874 of 2021.

3. The facts giving rise to present appeal, as culled out from the pleadings, are that the appellant is a Development Authority constituted under the provisions of the U.P. Urban Planning and Development Act, 1973, and is an instrumentality of the State, which works on no profit and no loss basis. As such the appellant does not stand on same pedestrian of other Real Estate Developers who are involved in the Real Estate business for earning profits.

3.1. Being instrumentality of the State and non-profit making Real Estate Developer, the schemes which are being developed by the appellant are for the purpose of meeting out residential needs of the public at large in the city of Lucknow, at affordable rates and no profit has been earned by the appellant out of the transactions taken place between the appellant and the respondent.

3.2. A Scheme of multistoried residential apartment known as 'Panchsheel Apartments' was floated by the appellant at Vikalp Khand-3, Gomti Nagar, Lucknow.

3.3. Having full and complete knowledge of the terms and conditions mentioned in the Brochure of the scheme the respondent preferred an application for allotment of a residential unit having 2 bed room in the aforesaid scheme. The aforesaid application was duly supported with an affidavit. In view of the application form a unit having 2 bed rooms bearing Flat No. PS-5/103/A-1 was allotted to the respondent vide allotment letter dated 31.08.2012.

3.4. The terms and conditions of the Booklet of the scheme itself is a contract and after the allotment the same was bound to be complied with by both the parties.

3.5. As per Clause 2.4 of the Brochure, the possession of the flat was proposed to be handed over to the allottees within 24 months.

3.6. Clause 2.4 of the Brochure shows that time was not the essence of the contract. The period of 2 years for handing over the possession was given on estimate basis. The respondent did not rescind the contract on the ground of non-performance. The respondent accepted the delayed performance in terms of the contract. In these circumstances the question of any breach of contract or agreement did not arise which could lead to the payment of damages under the general law governing the contract.

3.7. Clause 13.1 of the Brochure provides that any other conditions/rules as well as any amendment/change/supersession in such Rules formulated by the appellant or the Government from time to time, prevailing in Lucknow Development Authority at relevant point of time shall be binding upon the allottee even after the allotment.

3.8. The appellant being a development authority is governed by the Rules and Regulations formulated by the State Government or the Board of appellant.

3.9. In the light of Clause 13.1 of the Brochure, the procedure for allotment of residential buildings of Lucknow Development Authority as formulated by the Board of LDA in the year 1993 are also binding upon the respondent.

3.10. Condition No. 38.1 of the aforesaid Procedure of 1993 provides that where a situation arises that due to inevitable reasons, the construction of buildings are delayed, in such cases the Lucknow Development Authority (LDA) shall not be held liable. It is further stated in the aforesaid condition that upon arising of such situation, the allottees may request for refund of their amount deposited with LDA and upon such request made by the allottees the LDA shall refund their amount without any deduction. Moreover, in those cases where allottee's amount remains deposited in LDA's account for a period exceeding one year, the refund of deposit to the allottees will be made along with simple interest at the rate of 6% per annum.

3.11. The aforesaid procedure was superseded in the year 2016 by means of Lucknow Development Authority Procedure for Registration and Allotment of Residential Properties 2016 (hereinafter referred to as '2016 Procedure') whereby new set of procedure and conditions have been prescribed by the Board of LDA.

3.12. Condition no. 14.2 of the 2016 Procedure provides that in the event of delay in delivering possession of the property in prescribed time, the allottees are entitled to claim refund of deposited amount with interest at the rate of 9% simple interest per annum. The aforesaid condition also provides that in the event of delay in delivery of possession, if the allottee prefers for possession of the property rather than refund of the amount deposited, the allottee's right to claim interest/compensation shall be forfeited.

3.13. Thus, considering the terms and conditions in vogue at the relevant point of time, the allottee was entitled either to claim refund at 6% simple interest per annum on the amount deposited or claim possession of the flat without claiming interest/compensation for the delay caused in delivering the possession of the flat.

3.14. If condition no. 14.2 of 2016 Procedure is considered in the instant matter, the allottee, if prefers to claim refund of the deposited amount, shall merely be entitled for refund of deposited amount at simple interest of 9% per annum.

3.15. From joint perusal of clauses 2.4, 13.1 of the Brochure, Condition No. 38.1 of 1993 Procedure and Condition No. 14.2 of 2016 Procedure, it transpires that as per the agreed terms and conditions between the appellant and the respondents, the flat in question was proposed to be handed over to the respondents within 24 months. However, in the event of delay in handing over the possession by the appellant beyond 24 months, the respondent was at liberty to claim refund of amount deposited along with simple interest at the rate of 6% per annum prior to 2016 Procedure came into force and at the rate of 9% simple interest per annum after 2016 Procedure came into force. As per conditions mentioned hereinabove the allottees who prefer possession of flat despite delay in handing over of possession by the appellant are not at all entitled for any compensation/interest.

3.16. It is, therefore, evident that at all times an option was available with the allottees to claim refund of amount along with interest even before the due date in case the allottee is not satisfied with the pace of development work.

3.17. The appellant is a development authority created under the Uttar Pradesh Urban Planning and Development Act 1973 which is dependent upon the State Government for acquisition of land for its development projects. Thus, any issue relating to land acquisition proceeding is beyond the control of the appellant.

3.18. The sale deed of the flat in question has already been executed on 16.04.2021 in favour of the respondent after complete amount for the said flat was deposited with the appellant. The cost of the aforesaid flat was not increased by the appellant even after increase in the circle rate determined by the District Magistrate. The flat allotted is delivered at the rate which was prevalent at the time of booking i.e. in the year 2012, as such the allottee will not be entitled to claim any interest/compensation because he has the benefit of appreciation in value.

3.19. The delay caused in granting the possession of the allotted flat to the respondent was on account of inevitable circumstances faced by the appellant.

3.20. Final costing letter was issued to the respondent on 14.07.2021 for the purpose of delivery of possession.

3.21. The development work of the aforesaid scheme was stalled on account of continuous agitation of farmers resulting into civil disturbance on the spot and could only be completed in the month of May 2019.

3.22. The project in question was advertised by the appellant and the flat was allotted to the respondent prior to coming into force of the Act 2016. The respondent never exercised his option to claim interest despite the fact that the project in question was delayed.

3.23. After coming into force of the Act 2016 the project of the appellant was registered with RERA and completion certificate was issued on 17.02.2020.

3.24. The respondent preferred Complaint No. ADJ/LKO162/08/58824/2020 before the Regulatory Authority which was decided by the Adjudicating Officer of the Regulatory Authority vide impugned order dated 16.07.2021 in the manner stated in para 1 above.

4. Being aggrieved by the impugned order dated 16.07.2021 passed by the Adjudicating Officer of the Regulatory Authority, the appellant has filed the present appeal on various grounds but during the course of arguments on 11.07.2022 learned counsel for the appellant pressed ground nos. A, L & O which are as under:--

(A) Because the learned Authority has failed to consider the terms and conditions mentioned in the Brochure of the Scheme in its entirety, rather certain conditions have been taken into account in isolation and rest of the provisions have been ignored which is not permissible.

(L) Because on account of agitation of farmers and law and order situation created by the farmers' unions the development of the project could not be completed within the proposed time limit, thus there was no deliberate delay on the part of the appellant.

(O) Because on account of impugned order dated 16.07.2021, in so far as direction to pay interest is concerned, irreparable loss and injury to the appellant will be caused which will ultimately result into loss to public exchequer, thereby having adverse effect upon the upcoming public welfare scheme of the appellant.

5. The appellant has prayed for setting aside the impugned judgment and order dated 16.07.2021 to the extent that interest at the rate of MCLR+1% per annum for the period from 30.08.2015 till date of offering possession i.e. 07.08.2019, in the interest of justice.

6. The respondent filed his objection to the memo of appeal and submitted that the LDA being an instrumentality of the State Government was under an obligation to act in a fair and upright manner. It should have provided the flat along with all the amenities which were mentioned in the brochure like (1) Modern Club with facilities for entertainment, (2) 24 x 7 Power Backup for the flats, (3) High Quality Central Security System for the safety of residents, (4) State of the Art Fire Fighting Mechanism etc. The LDA apart from taking action against the contractor, should have also taken action against its own officers who were responsible for delay.

6.1. Even after passing of order dated 16.07.2019, the LDA has not completed the project, still there is no club house and all the bathrooms constructed by LDA are defective. There is heavy leakage in the bathrooms and for their repair work the LDA has floated tenders on 07.01.2021 and 22.09.2021.

6.2. It is incorrect to say that time was not the essence of the contract. It was specifically mentioned in the brochure that flats will be provided within a span of 24 months.

6.3. Flat was allotted on 08.08.2012. Intimation of allotment was sent on 31.08.2012. As such the flat with all the amenities mentioned in the brochure should have been provided by 31.08.2014. However, LDA took more than 8 years to offer possession. Completion certificate for the project was issued on 17.02.2020, hence any offer of possession issued prior to 17.02.2020 is nullity in the eyes of law.

6.4. It is incorrect to say that impugned order has been passed in an arbitrary and illegal manner.

6.5. Clauses of Brochure of the scheme "Panchsheel Multistoried Residential Scheme" are binding on the parties. The 1993 scheme of LDA is not applicable in the instant case. Condition no. 38.1 of 1993 Procedure is not applicable on the respondent.

6.6. The appellant was supposed to complete the project by 31.08.2014. There was inordinate delay of more than 8 years in completion of the project. Completion certificate was obtained on 17.02.2020, as such the appellant has been rightly directed to pay compensation to the respondent. The respondent has made all the payments to the appellant on time, even then the appellant has taken more than eight years and still the amenities mentioned in the brochure like Club House, dedicated play area for children, large well landscaped open area for healthy living, boundary wall on all the sides, fire-fighting system, High Level Central Security System for the safety of the residents etc. have not been completed. The respondent is sufferer due to the inordinate delay caused by the appellant in completion of work, as such the respondent is entitled for appropriate compensation.

6.7. The respondent has nothing to do with the issue of land acquisition. The allotment letter was issued on 31.08.2012. As per brochure the flat with all the amenities should have been completed within 24 months i.e. by 31.08.2014. It is incorrect to say that cost of the flat has not been increased.

6.8. Possession was not offered by final costing letter dated 14.07.2021. Final costing letter (Annexure-7) was issued on 14.11.2019, which was only an intimation to pay additional price which was duly paid and thereafter Completion Certificate obtained by the appellant on 17.02.2020. Any offer of possession issued prior to 17.02.2020 is a nullity in the eyes of law.

6.9. No offer of possession was issued by the appellant. Registry was done on 14.06.2021. Possession was supposed to be given within two weeks from the date of Registry. However, the possession was given in the month of February 2022. The respondent has a right to claim compensation from the appellant for delay in completion of the project. The Hon'ble Supreme Court in the case of Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P. & others has clarified the law in this regard, as such the claim of the respondent is maintainable.

6.10. It is incorrect to say that construction work was stalled due to any agitation by farmers or their unions on the project site. It is also incorrect to say that there was any kind of law and order situation due to which construction work was affected.

6.11. It is incorrect to say that relevant facts and issues have not been considered. It is also incorrect to say that the Adjudicating Officer has passed the impugned order without having jurisdiction.

7. Heard Dr. Surendra Kumar Sharma, learned counsel for the appellant and Shri Suyash Gupta, the respondent in person.

8. On the basis of examination of pleadings, record of appeal and submissions of both the parties, the admitted facts of the case are that a Scheme of multistoried residential apartment known as 'Panchsheel Apartments' was floated by the appellant at Vikalp Khand-3, Gomti Nagar, Lucknow. The respondent preferred an application for allotment of a residential unit having 2 bed room in the aforesaid scheme. In view of the aforesaid application form a unit, having 2 bed rooms bearing Flat No. PS-5/103/A-1, was allotted to the respondent vide allotment letter dated 31.08.2012.

8.1. As per Clause 2.4 of the Brochure, the possession of the flat was proposed to be handed over to the allottee within 24 months.

8.2. The sale deed of the flat in question executed on 16.04.2021 in favour of the respondent after complete amount for the said flat was deposited with the appellant.

8.3. Final costing letter was issued to the respondent on 14.07.2021 for the purpose of delivery of possession and possession was given in the month of February, 2022.

8.4. As per complainant/respondent there was a delay of about 8 years in giving the possession of the booked unit. Hence, the respondent/allottee filed online complaint on 22.08.2020 seeking compensation under various heads for lack of assured amenities and delay etc. The complaint of the allottee/respondent was allowed vide impugned order dated 16.07.2021 passed by the Adjudicating Officer, whereby the Adjudicating Officer directed the Lucknow Development Authority/Appellant to pay interest for delay (from 30.08.2015 to 07.08.2019) @ MCLR+1% per annum as compensation on the earlier amount of Rs. 25,70,000/- within 45 days from the date of impugned order.

8.5. The appellant (LDA) has filed the instant appeal for setting aside of the impugned order dated 16.07.2021 with respect to grant of interest @ MCLR+1% per annum for the period from 30.08.2015 to 07.08.2019.

9. In order to examine the grounds taken by the appellant and the issue involved in the instant appeal, we deem it proper to frame the following issues:--

(1) Whether under the scheme of Act 2016 and Rules 2016 any mechanism has been provided for determination of the interest or compensation for delay in handing over possession of the apartment/plot to the allottee and/or refund with interest, if allottee does not want to continue/wish to withdraw from the project

(2) Whether the Adjudicating Officer ought to have examined the complaint of respondent/allottee only on the basis of agreed terms and conditions mentioned in the Brochure read with Procedure, Rules and Regulations of Lucknow Development Authority

(3) Whether the project in question of the Lucknow Development Authority/appellant is delayed

(4) Whether it is necessary and mandatory for the Promoter to have first Completion Certificate (CA) and Occupation Certificate (OC) under the provisions of the of 2016 and Rules of 2016 read with the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 before offering possession as well as asking the allottee to settle the account and satisfy the final demand

(5) Whether the complainant can claim interest and/or compensation for delayed possession of the Unit/Apartment/Flat by the appellant after execution of the conveyance deed and taking over possession of the Unit

(6) Whether there is any illegality or perversity in the impugned order dated 16.07.2021 of the Adjudicating Officer in granting interest as compensation to the respondent for delay in providing possession of the flat by the appellant

10. Issue No. (1) is regarding, whether under the scheme of the Act, 2016 and Rules, 2016 any mechanism has been provided for determination of the interest or compensation for the delay in handing over possession and/or refund with interest/compensation if allottee chooses to withdraw from the Project.

10.1. The Act envisages adjudication by the Regulatory Authority in terms of the powers under Chapter V of the and in particular Sections 31, 32, 34,35 and 40 of the Act, and for adjudging compensation by the Adjudicating Officer in terms of the power under Chapter VIII of the and in particular Sections 71 and 72 thereof.

10.2. The Act spells out the obligations of the promoter of a real estate project and the consequence of the promoter failing to fulfill those obligations. Some of those obligations are enumerated in Section 11, 12 to 18 of the.

10.3. Section 18 of thetalks of the consequence of the failure by the promoter to complete or to be unable to give possession of an apartment, plot or building either in terms of the agreement for sale or failure to complete the project by the date specified therein or on account of discontinuance of his business either on account of suspension or revocation of the registration under the or for any other reason. In the event of either of the above contingencies under Section 18 (1) (a) of the Act, the promoter is made liable on the demand of the allottee:

(i) In the event that the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by the promoter in respect of that apartment, plot, building, as the case may be, together with "interest at such rate as may be prescribed", "including compensation in the manner as provided under this Act";

(ii) Where an allottee does not intend to withdraw from the project, the promoter shall pay him for every month's delay in the handing over of the possession "interest at such rate as may be prescribed". Section 18 (2) of themandates that in case loss is caused to allottee due to the defective title of the land, on which the project is being developed or has been developed, the promoter shall compensate the allottee and that such claim for compensation under Section 18 (2) shall not be barred by limitation provided under any law for the time being in force.

10.4. Section 18 (3) of thestates that where the promoter fails to discharge any other obligations under the or the Rules or Regulations made there under or in accordance with the terms and conditions of the agreement for sale, the promoter shall be liable to pay "such compensation" to the allottees, in the manner as provided under the.

10.5. It is apparent on a reading of Section 18 of theas a whole that upon the contingencies spelt out therein, (i) the allottee can either seek refund of the amount by withdrawing from the project; (ii) such refund could be together with interest as may be prescribed; (iii) the above amounts would be independent of the compensation payable to an allottee either in terms of Sections 18 (2) or 18 (3) of the read with other provisions; (iv) the allottee who does not intend to withdraw from the project will be required to be paid by the promoter interest for every month's delay of handing over possession.

10.6. When one turns to the powers of the Authority, it is seen that under Section 31, the complaints can be filed either with the Authority or with the Adjudicating Officer (AO) for violation or contravention of the provisions of the or the Rules and Regulations. Such complaint can be filed against "any promoter, allottee or real estate agent", as the case may be. Such complaint can be filed by "any aggrieved person". The Explanation to Section 31 (1) of thestates that for the purposes of said sub-section "person" shall include an association of allottees or any voluntary consumer association registered under any law for the time being in force. Section 31 (2) states that the form, manner and fees for filing a complaint under sub-section (1) shall be such as may be prescribed.

10.7. Having gone through the relevant Sections of the, we find that as per Sections 12, 18 and 19 of the Act, the allottee, in case of default by the promoter, is entitled to refund of his/her entire investment along with "interest at such rate as may be prescribed" and "compensation in the manner provided under the". Whereas in Section 12, the part dealing with interest and the part dealing with compensation are joined with the word "and" while in Section "18" they are joined with the word "including". Also, "at such rate as may be prescribed" is suffixed to the word "interest" in the context of refund of investment, but the expression "at such rate as may be prescribed" is neither prefixed nor suffixed to the word "compensation" in any of the Sections of the. The term compensation is suffixed by the expression "in the manner as provided under this Act" in Sections 12, 14, 18 & 19 of the. However, compensation and interest are qualified by the term "as he thinks fit in accordance with the provisions of any of those sections" in Section 71 of the. Theonly lays down for "holding an enquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard" under Section 71. The Act very clearly provides that the quantum of compensation or "interest as he thinks fit" under Section 71 will be decided taking into consideration the factors listed under Section 72 of the.

10.8. We further examined Section 31 of theand Rule 33 & Rule 34 of the Rules. The relevant portions of Section 31 of theand Rule 33 of the Rules are extracted as follows:-

Extract of Section 31 of the

"(1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter, allottee or real estate agent, as the case may be.

Explanation

For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.

(2 The form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations."

As can be seen from above, Section 31(2) of theprovides for specifying by regulations, the form, manner and fee for filing complaint under Section 31(1) of the. As provided under Section 31(2) of the Act, the U.P. Government has framed Rules, 2016. Rule 33(1) provides for manner of filing a complaint with the Regulatory Authority. Rule 33(1) is extracted as follows:-

Extract of Rule 33(1) of Rules-

(1) Any aggrieved person may file a complaint with the regulatory authority for any violation under the or the rules and regulations, made there under, save as those provided to be adjudicated by the adjudicating officer, in Form M which shall be accompanied by a fee of rupees one thousand in the form of a demand draft drawn on a nationalized bank, in favour of regulatory authority and payable at the main branch of that bank at the station, where the seat of the said regulatory authority is situated.

It is evident from Rule 33(1) of the Rules that the complaints filed with the Regulatory Authority should be in Form M, except those complaints which require to be adjudicated by the Adjudicating Officer. On top of Form M, it is clearly written that it is as per provisions of Rule 33(1) and is meant for filing complaint under Section 31 of the. Further Column 5 of the Form M specifically requires a complainant to indicate the relief(s) sought.

10.9. We have further examined Rule 34(1) of the Rules which relate to filing of a complaint with the Adjudicating Officer for compensation. Rule 34(1) reads as follows:-

Extract of Rule 34(1)

(1) Any aggrieved person may file a complaint with the adjudicating officer for compensation under Section 12, 14, 18 and 19 in Form N, which shall be accompanied by a fee of rupees one thousand in the form of a demand draft drawn on a nationalized bank in favour of regulatory authority and payable at the main branch of that bank at the station, where the seat of the said regulatory authority is situated.

10.10. It is clear from Rule 34 (1) of the Rules that a complaint for "compensation" under Sections 12, 14, 18 and 19 of theis to be filed before the Adjudicating Officer in Form N. It is mentioned on top of Form N itself that it is an application to Adjudicating Officer for claim of compensation under Rule 34(1) of the Rules and under Section 31 of theread with Section 71 of the. A complainant is required to indicate in Column 5 of Form N, the compensation sought.

10.11. Thus, it is our considered view that Form N is to be filed before an "Adjudicating Officer" for only claiming "compensation" under Rule 34(1); whereas Form M is to be filed before the Regulatory Authority under Rule 33(1) of the Rules for all types of reliefs, barring "compensation", for any violation under the, Rules or Regulations.

10.12. We have also examined the provisions of Sections 71 and 72 of the. The opening words of Section 71 (1) of themake it clear that the scope and functions of the Adjudicating Officer (AO) are only for 'adjudging compensation under Sections 12, 14, 18 and 19 of the'. If the legislative intent was to expand the scope of the powers of the AO, then the wording of Section 71 (1) ought to have been different. On the contrary, even the opening words of Section 71 (2) of themake it clear that an application before the AO is only for 'adjudging compensation'. Even in Section 71 (3) of the Act, it is reiterated that the AO 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. This has to be seen together with the opening words of Section 72 of the Act, which read "while adjudging the quantum of compensation or interest, as the case may be, under Section 71, the adjudicating officer shall have due regard to the following factors, namely,................"

On a collective reading of Sections 71 and 72 of the Act, the legislative intent becomes explicit. This is to limit the scope of the adjudicatory powers of the AO for determining "compensation or interest as he thinks fit" in the event of violation of Sections 12, 14, 18 and 19 of the.

10.13. On examination of Section 35 of the Act, we find that the powers of the Regularity Authority under Section 35 of theare of a wide nature. While discharging those functions, it will be open to the Authority to even require the AO to conduct the inquiry. Section 35 (2) of thealso makes it plain that the Regulatory Authority will have the same powers as a Civil Court. The legislative intent is, therefore, not to diminish the adjudicatory functions of the Regulatory Authority, but rather to provide it with all the trappings of a quasi-judicial/judicial authority while inquiring into the complaints and issuing directions, such as directing the Adjudicating Officer to adjudicate the compensation or interest. The legislature in its own wisdom has used the word "Authority" as well as "Adjudicating Officer" wherever it is required. Furthermore, the legislature has clearly, intentionally and suitably used the word "penalty" or "interest at such rate as may be prescribed" in case of the Regulatory Authority and "compensation" or "interest as he thinks fit" in case of the Adjudicating Officer.

10.14. Further, the Hon'ble Bombay High Court in the case of Neelkamal Realtors Suburban Pvt. Ltd. And others Vs. Union of India (supra) observed as follows:-

"Section 18(1)(b) lays down that if the promoter fails to complete or is unable to give possession of an apartment due to discontinuance of his business as a developer on account of suspension or revocation of the registration under the or for any other reason, he is liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice in this behalf including compensation. If the allottee does not intend to withdraw from the project he shall be paid by the promoter interest for every month's delay till handing over of the possession. The requirement to pay interest is not a penalty as the payment of interest is compensatory in nature in the light of the delay suffered by the allottee who has paid for his apartment but has not received possession of it. The obligation imposed on the promoter to pay interest till such time as the apartment is handed over to him is not unreasonable. The interest is merely compensation for use of money".

10.14. The Hon'ble Supreme Court in Civil Appeal No. 3581-3590 of 2020 M/S Imperia Structures Ltd. Vs. Anil Patni and another decided on 02.11.2020, while examining the provisions of Section 18 of the Act, 2016, vide para 23, has been pleased to observe as under:--

"23. In terms of Section 18 of the RERA Act, if a promoter fails to complete or is unable to give possession of an apartment duly completed by the date specified in the agreement, the Promoter would be liable, on demand, to return the amount received by him in respect of that apartment if the allottee wishes to withdraw from the Project. Such right of an allottee is specifically made "without prejudice to any other remedy available to him". The right so given to the allottee is unqualified and if availed, the money deposited by the allottee has to be refunded with interest at such rate as may be prescribed. The proviso to Section 18(1) contemplates a situation where the allottee does not intend to withdraw from the Project. In that case he is entitled to and must be paid interest for every month of delay till the handing over of the possession. It is upto the allottee to proceed either under Section 18(1) or under proviso to Section 18(1). The case of Himanshu Giri came under the latter category. The RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the Project or claim return on his investment."

10.15. The plain language of Section 18(1) (a) shows that if the promoter fails to complete or is unable to give possession of an apartment, plot or building in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein, he would be liable to return the amount received by him together with interest including compensation. In case the allottee does not intend to withdraw from the project, the promoter is liable to pay interest for every month's delay till handing over of possession.

10.16. The Real Estate (Regulation and Development) Act, 2016 is a special Act and the object of Section 18 is to recompense an allottee for depriving him of the use of the funds paid by him to the Promoter. The Promoter who has received money from the allottee but has failed to adhere to his contractual or statutory obligations, cannot claim that he is entitled to utilize the monies without paying any interest with respect thereto to the allottee. The provisions of the ensure that the allottees' money is not misused or unreasonably retained by the promoter. That Act aims at protecting interest of consumers in the real estate sector by establishing an adjudicating mechanism for speedy redressal of disputes. Also, the aims at protecting larger interest of allottees/flat or house buyers, who are waiting for getting their possession and are helpless in getting speedy remedy to their endless problems. The provisions of the seek to protect the allottees and simplify the remedying of wrongs committed by a Promoter.

10.17. From the aforementioned discussion, it is clear that the of 2016 provides a mechanism for determination of interest and/or compensation for the delay in handing over possession of the unit to the allottee, if the allottee wishes to stay with the project and/or refund with interest, if allottee wants to withdraw from the project. Issue no. (1) is decided accordingly.

11. Issues nos. (2): Lucknow Development Authority (LDA) took a plea that present case ought to have been governed with the already agreed terms and conditions i.e. terms and conditions mentioned in the Brochure of the Scheme, read with Rules and Regulations of the LDA, but the Adjudicating Officer failed to consider the same and has taken into account certain conditions in isolation and rest of the provisions have been ignored, which is impermissible, further the Adjudicating Officer failed to consider that in none of the conditions as per agreed terms, the allottee/respondent was entitled for any compensation/interest, in case the allottee/respondent decides to receive possession of the flat despite delay in handing over of possession.

11.1. The Lucknow Development Authority, the appellant placed reliance on clause 2.4 of its Brochure and submitted that the possession of the flat was proposed to be provided to the allottees within 24 months. Learned counsel for the appellant further placed reliance on clause 13.1 and submitted that in the Brochure, it is specifically provided that after allotment order conditions/rules applicable in Lucknow Development Authority or the State Government shall be binding upon the allottee.

11.2. The appellant/LDA has further submitted that the procedure for allotment of residential buildings of LDA was formulated by the Board of LDA in the year 1993, and the same are binding upon the allottee as per clause 13.1 of the Brochure, and condition no. 38.1 of the same provides that in case construction of the buildings is delayed for the reasons beyond its control then in that case LDA shall not be responsible for the delay, and in case, the amount deposited by the allottee remained in the account of LDA for a period of one year or more, then in that case simple interest at the @ 6%. p.a. shall be applicable on the deposited amount. The Procedure of 1993 was superseded in the year 2016 by means of Lucknow Development Authority procedure for registration and allotment of residential properties, 2016, and vide condition no. 14.2, it is provided that in case the Lucknow Development Authority (LDA) did not deliver the possession of the property within the time limit prescribed then the allottee may demand the refund of deposited amount with an interest at the rate of 9% p.a., and in case allottee accepts the possession despite of delay, no interest/compensation shall be payable to such an allottee. Thus the allottee in this case is entitled for only refund of amount with interest at the rate of 6% p.a. in view of the terms and conditions applicable on the date of allotment, and after coming into force of 2016 Procedure simple interest at the rate of 9%, if he chooses to withdraw from the project. Further in none of the conditions as per the agreed terms, the respondent was entitled for any compensation/interest in case the respondent decides to receive possession of the flat despite of delay in handing over of possession and therefore, the respondent who has consented on oath to abide by the provisions contained in the rules, while submitting application duly supported with an affidavit for allotment of a residential unit in the scheme in question, cannot claim interest & possession both, contrary to the undertaking given on oath.

11.3. On examination of the Brochure we found that in clause 13.1 it is mentioned that after allotment other conditions/rules applicable in Lucknow Development Authority (LDA) and any amendment/supersession in such Rules by the LDA or the State Government shall be binding upon the allottee, but specific conditions/rules have not been mentioned. Even it is also not mentioned in the Brochure, from where an applicant/allottee can find those conditions/rules. The Lucknow Development Authority (LDA) cannot take advantage of clause 13.1 of the Brochure, while applying procedure for allotment of residential building of LDA formulated in the year 1993 or subsequent new procedure framed in the year 2016, specially with respect to the rate of interest to be paid by the LDA in case the allottee chooses to seek refund on account of delay in completion of the project or no interest for delay in completion of Project, if allottee chooses to opt or decides to take possession of the unit even in the event of delay in completion of the Project, as such conditions fall in the category of one sided or dotted line agreement.

11.4. Another important aspect of the matter is that the grant of interest to the allottee by the Lucknow Development Authority, if the allottee opts to withdraw from the project on account of delay, and providing no interest to the allottee in case he/she takes possession of the apartment in the project, is in violation as well as contrary to the provisions of sub-section (2) of Section 4 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010 (hereinafter referred to as 'the U.P. Apartment Act, 2010'). In order to appreciate sub-section (2) of Section 4 of the U.P. Apartment Act, 2010, the same is reproduced as follows:--

"CHAPTER II
DUTIES AND LIABILITIES OF PROMOTERS.

4. General liabilities of promoter.-- ..................

(2) Every promoter shall,

(a) specify in writing the date by which construction of the apartment is to be completed subject to force majeure clause and intimation sent to such purchaser;

(b) declare the penalty for delay in completion of the building and also penalty in the event of non-payment of instalment by the purchaser;

(c) declare the conditions for cancellation or withdrawal of allotment and the extent of compensation either way in the event of violations of any of the conditions;

(d) give on demand by the intending purchaser, on payment of photocopying charges, true copies of the documents referred to in this section.

The provisions of Sub Section (2) (b) of Section 4 of the Apartment Act, 2010 mandates the promoter to declare the penalty for delay in completion of the building and also penalty in the event of nonpayment of installment by the purchaser, meaning thereby that in the Brochure a promoter is required to mention about the penalty for the delay in completion of the building and also penalty in the event of non-payment of installment by the purchaser. In the present case the Lucknow Development Authority in clause 2.1 of the Brochure only mentioned the obligation of the allottee to make payment of the installment in time and in case of failure the allottee has to pay penalty at the rate of 15% per annum and if due installment and penalty with interest are not paid within 90 days then his/her reservation/allotment was liable to be cancelled, whereas as per provisions of sub-section (2)(b) of Section 4 of the Apartment Act, 2010, the promoter was to declare and specifically mention the penalty to be paid by it, in case of delay in completion of the project. Thus the concerned provisions of the Procedure of 2016, is in violation of the Apartment Act, 2010, and it being a statutory organization, the Lucknow Development Authority is required to follow the concerned laws in its words and spirit.

11.5. Having examined the terms and conditions of the Registration Booklet/Agreement, we would like to examine the laws on contracts. In this connection, it is useful to note what Chitty has to say about the old ideas of freedom of contract in modern times. The relevant passages are to be found in Chitty on Contracts, Twenty-fifth Edition, Volume I, in paragraph 4, and are as follows:-

"These ideas have to a large extent lost their appeal today. "Freedom of contract", it has been said, "is a reasonable social ideal only to the extent that equality of bargaining power between contracting parties can be assumed, and no injury is done to the economic interests of the community at large." Freedom of contract is of little value when one party has no alternative between accepting a set of terms proposed by the other or doing without the goods or services offered. Many contracts entered into by public utility undertakings and others take the form of a set of terms fixed in advance by one party and not open to discussion by the other. These are called "contracts d'adhesion" by French lawyers. Traders frequently contract, not on individually negotiated terms, but on those contained in a standard form of contract settled by a trade association. And the terms of an employee's contract of employment may be determined by agreement between his trade union and his employer, or by a statutory scheme of employment. Such transactions are nevertheless contracts notwithstanding that freedom of contract is to a great extent lacking.

Where freedom of contract is absent, the disadvantages to consumers or members of the public have to some extent been offset by administrative procedure for consultation, and by legislation. Many statutes introduce terms into contracts which the parties are forbidden to exclude, or declare that certain provisions in a contract shall be void. And the courts have developed a number of devices for refusing to implement exemption clauses imposed by the economically stronger party on the weaker, although they have not recognised in themselves any general power (except by statute) to declare broadly that an exemption clause will not be enforced unless it is reasonable. Again, more recently, certain of the judges appear to have recognised the possibility of relief from contractual obligations on the ground of "inequality of bargaining power".

11.6. Now turning to the question regarding ex-facie one sided, unfair and unreasonable agreement terms of a contract, the Hon'ble Supreme Court in LIC of India and Anr. Vs. Consumer Education & Research Centre & Ors., (1995)5 SCC 482 [LQ/SC/1995/657] , decided on 10th May 1995, was pleased to observe that:-

"in dotted line contracts there would be no occasion for a weaker party to bargain or to assume to have equal bargaining power. He has either to accept or leave the services or goods in terms of the dotted line ........ imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line.........".

11.7. The Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34(SC) [LQ/SC/2019/611] , rejected the plea of the builder that it should not be directed to pay interest at the rate of 10.7% as the agreement provided for 6% interest. The Hon'ble Supreme Court observed that:-

"6.7. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent - Flat Purchaser. The Appellant - Builder could not seek to bind the Respondent with such one-sided contractual terms."

11.8. Subsequently, in Wg. Cdr. Arifur Rahman Khan & Ors. Vs. DLF Southern Homes Pvt. Ltd., reported in affirming the view taken in the Judgment in Pioneer's case (supra) the Hon'ble Supreme Court held that the term of the agreement authored by the Developer does not maintain a level platform between the Developer and the flat purchaser. The stringent terms imposed on the flat purchaser are not in consonance with the obligation of the Developer to meet the time lines for construction and handing over possession, and do not reflect an even bargain. The failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, would amount to a deficiency of service. Given the one-sided nature of the Apartment Buyer's Agreement, the consumer fora had the jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service.

11.9. Moreover, Section 23 of the Contract Act, 1872 provides that what consideration and objects are lawful, and what are not. It says that the consideration or object of an agreement is lawful, unless, it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void to the extent it is "opposed to Public Policy".

11.10. The expression "public policy" or "opposed to public policy" has not been defined in the Contract Act. In R.B. Singh Vs. State of U.P. a Division Bench of the Hon'ble Allahabad High Court explained the meaning of word "Policy" and "Public Policy" as defined in various Dictionaries-

"30. In Grocier New Webster's Dictionary (page 304) "Policy" has been defined as a selected, planned line of conduct in the light of which individual decisions are made and coordination achieved. In Legal Glossary (1993, page 250) "policy" means a course of action adopted as advantageous or expedient. According to the Oxford Dictionary the word "Policy" means political sagacity, State-craft, prudent conduct, sagacity, craftiness, 'course of action adopted by Government'. According to Webster's New International Dictionary "policy" means a settled or definite course or method adopted and followed by a Government, institution, body or individual; a civil or ecclesiastical policy; Government; the science of Government.

31. In Law Lexicon with Legal Maxims it has been mentioned that the general head of "public policy" covers a wide range of topics, such as for example, trading with the enemy in time of war, stifling prosecutions, champerty and maintenance, and various other mater's; it has even been said in the House of Lords that public policy is always an unsafe and treacherous ground for legal decision. In Black's Law Dictionary "Public Policy" mean community common sense and common conscience, extended and applied throughout the State to matters of public morals, health, safety, welfare, and the like; it is that general and well settled public opinion relating to man's plan, palpable duty to his fellowmen, having due regard to all circumstances of each particular relation and situation. In Words and Phrases (West Publishing Co.) the word "public policy" generally means that imports something that is uncertain and fluctuating, varying with the changing economic needs, social customs and moral aspiration of the people. Lord Wright in his Legal Essays and Addresses (Vol. III, pages 76 and 78) stated that public policy like any other branch of the common law ought to be and I thing is, governed by the judicial use of precedents..... If it is said that rules of public policy have to be moulded to suit new conditions of a changing world, that is true, but the same is true with the principles of the canon law generally; Lord Lindley held in Janson v. Driefontein Consolidated Mines Ltd. that "a contract or other branch which is against public policy i.e. against the general interest of the country is illegal."

11.11. In Gherulal Parakh v. Mahadeodas Malya, AIR 1959 SC 781 [LQ/SC/1959/38] the Hon'ble Supreme Court while defining the word "Public Policy" or the "Policy of Law" has held as under:-

"Public policy or the policy of the law is an illusive concept; it has been described as "untrustworthy guide", "variable quality", "uncertain one", "unruly horse", etc. The primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but in certain cases, the court may relieve them of their duty on a rule founded on what is called the public policy for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public."

11.12. In the case of Central Inlad Water Transport Corpn. v. Brojo Nath Ganguly,(1986) 3 SCC 156 [LQ/SC/1986/114] the Hon'ble Supreme Court explained the above expressions and held-

"The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, the expressions "public policy", "opposed to public policy" or "contrary to public policy" are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time."

The Hon'ble Supreme Court, after discussing the different schools of thought including landmark judgments on the expression of "public policy", further explained in the above case that-

"It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification, Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles under lying the Fundamental Rights and the Directive Principles enshrined in our Constitution".

11.13. Thus, where the terms of a contract show that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder, then certainly the contractual terms of the Agreement are one sided, unfair and unreasonable. It would also be referred as an unconscionable bargain. An unconscionable bargain would be one which is irreconcilable with what is right or reasonable or the terms of which are so unfair and unreasonable that they shock conscience of the Court.

11.14. Now again the question is that under which head an unconscionable bargain would fall If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, 3rd Edn., Vol. II, p. 2288, when used with reference to actions etc, as "showing no regard for conscience; irreconcilable with what is right or reasonable".

11.15. The Hon'ble Supreme Court in the case of DLF Universal Ltd. Vs. Town & Country Planning Deptt. reported in (2010) 14 SCC was pleased to quote in the heading "Interpretation of contract" as follows:-

"Interpretation of contract

13. It is settled principle in law that a contract is interpreted according to its purpose. The purpose of a contract is the interests, objectives, values, policy that the contract is designed to actualize. It comprises joint intent of the parties. Every such contract expresses the autonomy of the contractual parties' private will. It creates reasonable, legally protected expectations between the parties and reliance on its results. Consistent with the character of purposive interpretation, the court is required to determine the ultimate purpose of a contract primarily by the joint intent of the parties at the time the contract so formed. It is not the intent of a single party; it is the joint intent of both parties and the joint intent of the parties is to be discovered from the entirety of the contract and the circumstances surrounding its formation.

"14. As is stated in Anson's Law of Contract:

a basic principle of the Common Law of Contract is that the parties are free to determine for themselves what primary obligations they will accept....Today, the position is seen in a different light. Freedom of contract is generally regarded as a reasonable, social, ideal only to the extent that equality of bargaining power between the contracting parties can be assumed and no injury is done to the interests of the community at large.
15. The Court assumes:

that the parties to the contract are reasonable persons who seek to achieve reasonable results, fairness and efficiency.... In a contract between the joint intent of the parties and the intent of the reasonable person, joint intent trumps, and the Judge should interpret the contract accordingly. A party who claims otherwise, violates the principle of good faith."

11.16. An examination of Section 71 of thereveals that an A.O. is to be appointed by the Regulatory Authority in consultation with the Government. The A.O. alone has powers to deal with the applications for adjudging compensation under Section 71 read with Sections 12, 14, 18 & 19 of the. Section 71(3) further provides that the A.O. has powers to decide compensation or interest "as he thinks fit" in accordance with the provisions of Section 12, 14, 18 & 19 of the.

11.17. We note that the Lucknow Development Authority had floated a scheme of multi storeyed residential apartments in Vikalp Khand-3, Gomti Nagar, Lucknow in the name of Panchsheel Apartments and in pursuance to the advertisement of the Lucknow Development Authority/appellant, the respondent purchased the Brochure and preferred an application for allotment of a unit. The respondent was allotted flat [property No. PS-5/103-A-1] vide allotment letter dated 31.08.2012. The installments have also been deposited by the allottee as per the schedule mentioned in the allotment letter.

11.18. On scrutiny of the terms and conditions of the Brochure and allotment letter dated 31.08.2012 read with clauses of Lucknow Development Authority Procedure for Registration and Allotment of Residential Properties 1993 and 2016, we find that the rate of interest payable by the buyer/allottee to the promoter in case of default in payment works out to much higher than the interest or delayed penalty payable by the promoter to the buyer/allottee in case of default/delay if allottee seeks refund and no interest in case allottee chooses to continue with the project despite delay. It is evident from these terms and conditions of the Demand Letter and the Clauses of Registration Booklet as well as Lucknow Development Authority Procedure for Registration and Allotment of Residential Properties 1993 and 2016 that they do not provide a level playing field between the promoter and the allottee. We feel that this imbalance is on account of the fact that the buyer/allottee has much less bargaining power as compared to the promoter, and since the buyer/allottee had no choice but to accept such "dotted line, one sided, unjust and unreasonable" terms and conditions of the Registration Booklet, and of the allotment/demand letter, as framed by the promoter. Such terms and conditions which are one-sided, unjust and unreasonable cannot be made binding on the allottee.

11.19. In the light of above, we also observe that the promoter in the present case is an undertaking of the State Government having wide powers for acquisition of land and for development of residential projects. The rules, terms & conditions provided in the Registration Booklet and the Demand letter are heavily loaded in favour of the promoter and the buyer is at an obvious disadvantaged position and has no real choice but to agree to the rules, terms & conditions of the Registration Booklet and of the Demand Letter in order to buy a residential flat of his dreams, using his hard earned savings. Such terms and conditions of agreement, called by any name whatsoever, fall in the category of "dotted line" agreements or "one sided, unfair and unreasonable" agreements. Further, the Hon'ble Apex Court in several cases was pleased to observe that an unreasonable, unfair contract or an unreasonable and unfair clause in a contract where Contracting Parties are not equal in bargaining powers and where a man has no choice or rather a meaningful choice but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form as a part of the contract, cannot be allowed to act disadvantageously to the interest of the allottee/home buyer.

11.20. Further, Hon'ble Supreme Court time and again examined the issue of one sided apartment buyers' agreement and vide Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan (supra) was pleased to observe that incorporation of such one sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair method or practices for the purpose of selling the flats by the builder, and again in Wg. Cdr. Arifur Rahman Khan & Others Vs. DLF Southern Homes Pvt. Ltd. (supra) while affirming the view taken in the judgment of Pioneer's case (supra) the Hon'ble Supreme Court held that on failure of the Developer to comply with the contractual obligation to provide the flat within the contractually stipulated period, the consumer fora has jurisdiction to award just and reasonable compensation as an incident of the power to direct removal of deficiency in service.

11.21. On the basis of the aforesaid analysis, we are of the view that the terms and conditions mentioned in the Brochure are binding on both the parties except clause 2.1 read with concerned provisions i.e. 14.2 of Lucknow Development Authority Procedure for Registration and Allotment of Residential Properties, 2016 which provides that, "in case allottee accepts the possession despite of delay, no interest/compensation shall be payable to such an allottee", being unreasonable, unfair, unjust and one sided and contrary to the provision of sub-section (2) (b) of Section 4 of the U.P. Apartment Act, 2010 apart from being unilateral and unfair.

11.22. We thus while rejecting the argument of the promoter that Adjudicating Officer's order is not sustainable merely on the ground that it has ordered the promoter to pay to the allottee/complainant an interest not provided in the Registration Booklet, hold that A. O. is required to examine a complaint as per the provisions of the, Rules and Regulations and not merely on the basis of the terms and conditions of the Registration Booklet or as provided in the Demand/Allotment Letter etc. only, taking into consideration the observations of Hon'ble Supreme Court in Civil Appeal No. (s). 6745-6749 of 2021 (M/s. Newtech Promoters & Developers Pvt. Ltd. Vs. State of U.P. & others) dated 11.11.2021 regarding terms of the contract to the effect that promoter cannot shirk from the responsibilities/liabilities under the and the Contractual terms do not have an overriding effect to the retrospective applicability of the authority under the provisions of the. The issue no. (2) is answered against the Lucknow Development Authority.

12. Vide Issue No. (3) we are required to examine as to whether the project in question of the Lucknow Development Authority/appellant is delayed.

12.1. From the perusal of the pleadings and documents available on record it is evident that a scheme of multistoried residential apartment known as 'Panchsheel Apartments' was floated by the appellant at Vikalp Khand-3, Gomti Nagar, Lucknow and the respondent applied for allotment of a residential unit having 2 bed rooms and was allotted Flat No. PS-5/103/A-1 vide allotment letter dated 31.08.2012.

12.2. As per clause 2.4 of the Brochure, the possession of the flat was proposed to be handed over to the allottee within 24 months from the date of booking i.e. 31.08.2012. The sale deed of the flat in question was executed on 16.04.2021 whereas final costing letter was issued to the respondent on 14.07.2021 for the purpose of delivery of possession and the possession was given to the respondent in the month of March 2022. The Completion Certificate of the project in question was issued by the competent authority on 17.02.2020. Thus, any offer of possession and raising final demand could have been issued by the appellant only after 17.02.2020. The offer of possession was given by the appellant to the respondent on 07.08.2019, much prior to the receipt of the Completion Certificate. But since the respondent has not challenged the dates mentioned in the impugned order with respect to making any observation on the issue of the period of entitlement of interest for delay, we restrain ourselves from making any observation and examining the issue regarding the period of interest awarded by the Adjudicating Officer.

12.3. As per clause 2.4 of the Brochure of the project and the allotment letter the possession of the flat was proposed to be given within 24 months and as the flat was allotted vide allotment letter dated 31.08.2012, therefore, the appellant was required to offer possession by 30.08.2014 and the appellant cannot be permitted to take stand that on the ground of proposed possession within 24 months the allottee can be made to wait indefinitely.

12.4. Though the proposed period of completion of the project is 24 months and there will always be some variation in the actual time, but an allottee cannot be made to wait indefinitely for handing over of the possession merely on the ground that the time specified is an estimated period. We are of the view that the possession ought to have been given within 24 months + a month or so required for final finishing.

12.5. In view of the above, we hold that there is delay of about 8 years and 6 months in making offer of possession by the appellant to the respondent. Issue no. (3) is decided accordingly.

13. Issue no. (4) is as to whether it is necessary and mandatory for the Promoter to have first Completion Certificate (CA) and Occupation Certificate (OC) under the provisions of the of 2016 and Rules of 2016 read with the U.P. Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 before offering possession as well as asking the allottee to settle the account and satisfy the final demand

13.1. In order to appreciate the issue, we examine Section 2(q) and Section 2(zf) of theof 2016, which defines Completion & Occupancy Certificate, the same are extracted as follows:-

"Section 2:- Definitions - In this Act, unless the context otherwise requires,-

.................................................................................... ...........................................................................

"Section 2 (q) "completion certificate" means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws;"

"Section 2 (zf) "occupancy certificate" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity;"

13.2. On examination of the provisions of Section 2 (q) and Section 2(zf), we find that completion certificate is basically a certificate issued by the competent authority certifying that the Real Estate Project has been developed according to the sanctioned plan, lay out plan and specifications, as approved by the competent authority under the local laws. On the other hand, the occupancy certificate is issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity etc.

13.3. Similarly, Section 4(5) of the U.P. Apartments Act, 2010 prescribes for Completion Certificate, which reads as follows:-

"Section 4(5) of the U.P. Apartments Act, 2010:-An apartment may be transferred by the promoter to any person only after obtaining the completion certificate from the prescribed sanctioning authority concerned as per building bye-laws. The completion certificate shall be obtained by promoter from prescribed authority [within the period specified for completion of the project in the development permit or the building permit as the case may be] Provided that if the construction work is not completed within the stipulated period, with the permission of the prescribed authority;

Provided further that if the completion certificate is not issued by the prescribed sanctioning authority within three months of submission of the application by the promoter complete with all certificates and other documents required, the same shall be deemed to have been issued after the expiry of three months.

Explanation: For the purposes of this sub-section "completion" means the completion of the construction works of a building as a whole or the completion of an independent block of such building, as the case may be."

13.4. Section 4(5) of the U.P. Apartments Act 2010 clearly lays down that an apartment may be transferred by the Promoter to any person (allottee) only after obtaining the C.C. from the prescribed sanctioning authority concerned as per building by-laws. The C.C. is required to be obtained by the Promoter, meaning thereby that Allottee has no role to play in obtaining C.C. from the prescribed authority. A Promoter is required to first obtain C.C./O.C. from the prescribed authority, only thereafter register conveyance deed of the real estate in favour of the Allottee(s) and a legal & habitable possession can be offered to the Allottees.

13.5. The issue of offering handing over possession prior to obtaining occupancy certificate was also examined by the Hon'ble Supreme Court in Civil Appeal Nos. 1232 and 1443-1444 of 2019 R.V. Prasannakumaar and ors. Vs. Mantri Castles Pvt. Ltd. and ors. decided on 11.02.2019 wherein it has been observed that possession cannot be handed over prior to obtaining occupancy certificate.

13.6. In view of the aforesaid analysis, we are of the considered view that as per the provisions of the U.P. Apartments Act, 2010 read with the provisions of Act, 2016 a Promoter is required to offer legal and habitable possession to the allottee only after obtaining C.C./O.C. and ask for clearing dues by raising final demand. Issue no. (4) is answered accordingly.

14. The Issue No. 5 is regarding whether the complainant can claim interest and/or compensation for delayed possession of the Unit/Apartment/Flat by the appellant after execution of the conveyance deed and taking over possession of the Unit

14.1. As per record, the conveyance deed was executed on 16.04.2021 by the appellant in favour of the respondent and possession of the Unit/Apartment/Flat was given to the respondent in the month of February 2022, whereas, as per Registration Booklet of the respondent, the possession of the Unit/Apartment/Flat was to be given to the appellants in 24 months from the date of allotment i.e. 31.08.2012 and thus possession was given to the allottees/appellants after a delay of about 7 years and 6 months.

14.2. The purpose of Section 18(1)(a) is to ameliorate the buyers in real estate sector and balance the rights of all the stake holders.

14.3. Further Section 18 of thedoes not prohibit to the allottee to file the complaint with the Real Estate Regulatory Authority or Adjudicating Officer against the promoter, after taking delayed possession of flat for the violation of the provisions of the and breach of terms of agreement by promoter, seeking for the relief for delayed possession by the promoter. Also, the does not provide any limitation clause for filing of complaint by the allottee with the Real Estate Regulatory Authority or Adjudicating Officer against the Promoter to claim relief for violation and contravention of provisions of the by him. It is the legitimate right of the allottee to file complaint against the promoter even after the possession of the flat/house/plot is given to him if there is violation of the provisions of the by the Promoter. The provisions of the seek to protect the allottees and simplify the remedying of wrongs committed by a Promoter. The intention of the is to bring the complaints of allottees before one Authority and simplify the process.

14.4. The issue regarding claim for compensation of an allottee for delay in handing over possession of the Unit/Apartment/Flat against promoter/builder after execution of conveyance deed and taking over possession, is no more res integra. The Hon'ble Supreme Court in the case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultan and others Versus DLF Southern Homes Pvt. Ltd. (now known as BEGUR OMR Homes Pvt. Ltd. and others, (reported in SCC online SC 667) while examining the issue whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title, was pleased to observe that it would be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. Paras 34, 35 and 36 of the aforesaid judgment read as under:-

"34. The developer has not disputed these communications. Though these are four communications issued by the developer, the appellants submitted that they are not isolated aberrations but fit into a pattern. The developer does not state that it was willing to offer the flat purchasers possession of their flats and the right to execute conveyance of the flats while reserving their claim for compensation for delay. On the contrary, the tenor of the communications indicates that while executing the Deeds of Conveyance, the flat buyers were informed that no form of protest or reservation would be acceptable. The flat buyers were essentially presented with an unfair choice of either retaining their right to pursue their claims (in which event they would not get possession or title in the meantime) or to forsake the claims in order to perfect their title to the flats for which they had paid valuable consideration. In this backdrop, the simple question which we need to address is whether a flat buyer who seeks to espouse a claim against the developer for delayed possession can as a consequence of doing so be compelled to defer the right to obtain a conveyance to perfect their title. It would, in our view, be manifestly unreasonable to expect that in order to pursue a claim for compensation for delayed handing over of possession, the purchaser must indefinitely defer obtaining a conveyance of the premises purchased or, if they seek to obtain a Deed of Conveyance to forsake the right to claim compensation. This basically is a position which the NCDRC has espoused. We cannot countenance that view.

35. The flat purchasers invested hard earned money. It is only reasonable to presume that the next logical step is for the purchaser to perfect the title to the premises which have been allotted under the terms of the ABA. But the submission of the developer is that the purchaser forsakes the remedy before the consumer forum by seeking a Deed of Conveyance. To accept such a construction would lead to an absurd consequence of requiring the purchaser either to abandon a just claim as a condition for obtaining the conveyance or to indefinitely delay the execution of the Deed of Conveyance pending protracted consumer litigation.

36. It has been urged by the learned counsel of the developer that a consequence of the execution of the Deed of Conveyance in the present case is that the same ceases to be a transaction in the nature of "supply of services" covered under the CP Act 1986 and becomes a mere sale of immovable property which is not amenable to the jurisdiction of Consumer Fora. In Narne Construction (P) Ltd. v. Union of India, this Court distinguished between a simple transfer of a piece of immovable property and housing construction or building activity carried out by a private or statutory body falling in the category of "service" within the meaning of Section 2 (1) (o) of the CP Act 1986. This Court held that:

"8. Having regard to the nature of transaction between the appellant Company and its customers involved much more than a simple transfer of a piece of immovable property it is clear the same constitutes "service" within the meaning of the. It was not the case that the appellant Company was selling the given property with all its advantages and/or disadvantages on "as is where is" basis, as was the position in UT Chandigarh Admn v. Amarjeet Singh. It is a case where a clear-cut assurance was made to the purchasers as to the nature and extent of development that would be carried out by the appellant Company as a part of package under which a sale of fully developed plots with assured facilities was made in favour of the purchasers for valuable consideration. To the extent the transfer of site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant Company has indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent Consumer Forum at the instance of consumers like the respondents."

The developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make a claim for compensation for the delayed handing over of the flats."

14.5. In view of the aforesaid judgment of Hon'ble Supreme Court it can safely be said that a home buyer does not lose his right to claim compensation for the delay in possession even after execution of the conveyance deed and taking possession of the Unit/Apartment/Flat booked by him. The issue no. (5) is decided accordingly.

15. The issue no. (6) is as to whether there is any illegality or perversity in the impugned order dated 16.07.2021 of the Adjudicating Officer in granting interest as compensation to the respondent for delay in providing possession of the flat by the appellant

15.1. On examination of the scheme of the it is evident that jurisdiction of the Adjudicating Officer is to adjudge compensation under Sections 12, 14, 18 and 19 in accordance with the procedure laid down in Sections 71 and 72 of the. The powers, roles, domain and jurisdiction of the Adjudicating Officer has been clearly defined under the scheme of the. On thorough examination we found that 'compensation' has not been defined under the Act, 2016. However, 'compensation' has been defined in some other statutes like Workman Compensation Act and Land Acquisition Act. To settle the claim under the Motor Vehicle Act, the term 'compensation' is being used invariably and compensation is awarded accordingly. Compensation can be granted under the heads pecuniary and non-pecuniary losses. In the case of Mr. R.D. Hattangadi Vs. M/S Pest Control (India) Pvt. Ltd.,: AIR 1995 Supreme Court, page 755, the Hon'ble Supreme Court was pleased to observe as under:-

" Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money-, whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may, include expenses incurred by the claimant : (i) medical attendance; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future; (ii damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e. on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."

15.2. The Hon'ble Supreme Court while examining the issue of entitlement to compensation in H.U.D.A. and another versus Shakuntla Devi, (2017) 2 SCC 301 [LQ/SC/2016/1570] made some essential observations which are also rudimentary for awarding compensation and quantum of compensation in consumer protection cases concerning real estate matters. The observations of Hon'ble Supreme Court are summarized as under:--

(a) that the sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the consumer forum would have to decide the quantum of compensation to which consumer is entitled.

(b) that there cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the consumer forum to take into account all the relevant factors for arriving at the compensation to be paid.

(c) the calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application.

(d) that while awarding of compensation, a consumer forum has to take into account all the relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the consumer forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.

(e) that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way, that party is being compensated by increase in the value of the property, he is getting.

(f) that in cases where the consumer forum has directed delivery of possession, the party has to a certain extent already got a benefit. The cost of the land/flat would have come up in the meantime. Of course, even in such cases, where the delivery of possession has been directed there could be compensation for harassment/loss. But such compensation has to be worked out after looking to the facts of each case and after determining the amount of harassment/loss that has been caused to the consumer.

15.3. The Hon'ble Supreme Court in the case of Bangalore Development Authority versus Syndicate Bank (2007)6 SCC 711 [LQ/SC/2007/738] in the matter of self financing scheme while laying down principles for delay in the delivery of possession was pleased to observe that if some statute steps in and creates any statutory obligation on the part of development authority in the contractual field, the matter will be governed by the provisions of that statute. The relevant portions of paras 10, 10(a) and 10(b) are being extracted hereinbelow:-

"10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non-delivery and seeks redressal under the Consumer Protection Act, 1986 ('Act' for short) - [vide : Lucknow Development Authority vs. M.K. Gupta - 1994 (1) SCC 243, [LQ/SC/1993/978] Ghaziabad Development Authority vs. Balbir Singh - 2004 (5) SCC 65, [LQ/SC/2004/373] and Haryana Development Authority vs. Darsh Kumar -2005 (9) SCC 449, [LQ/SC/2004/794] as also Ghaziabad Development Authority vs. Union of India - 2000 (6) SCC 113] [LQ/SC/2000/979] :

(a) Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case.

(b) Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statute steps in and creates any statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statute.

...................................................."

15.4. Subsequently the Hon'ble Supreme Court in Civil Appeal No. 6051/2002 (Ghaziabad Development Authority Vs. Shakuntala Rohatgi), decided on 04.03.2009, placed reliance on the case of Bangalore development authority versus syndicate Bank (supra).

15.5. After promulgation of the of 2016, the issue of compensation is required to be examined and decided as per the provisions of section 71 and 72 of theof 2016 for non-compliance of any of the provisions specified in Sub-Section (1) of Section 71 i.e. Sections 12, 14, 18 and 19 of the Act, 2016.

15.6. The word "fail to comply with the provisions of any of the sections as specified in sub-section (1)" used in Sub-Section (3) of Section 71, means failure of the promoter to comply with the requirements mentioned in sections 12, 14, 18 and 19. The Adjudicating Officer after holding enquiry while adjudging the quantum of compensation or interest as the case may be, shall have due regard to the factors mentioned in Section 72. The compensation may be adjudged either as a quantitative or as compensatory interest.

15.7. The Adjudicating Officer, thus, has been conferred with power to direct for making payment of compensation or interest, as the case may be, "as he thinks fit" in accordance with the provisions of Sections 12, 14, 18 and 19 of theafter taking into consideration the factors enumerated in Section 72 of the.

15.8. On examination of the pleadings on record and submissions it is admitted position that the project of the appellant is delayed. The possession was delivered by the appellant to the respondent in the month of February 2022 with delay of about 7 years and 6 months and the Adjudicating Officer while examining the claim of the respondent for compensation, in his wisdom, granted interest for the delay period at the rate of MCLR+1%. Since the delay in delivery of possession of the allotted unit is admitted, even if the allottee/respondent fails to give any evidence towards the losses suffered, the allottee/respondent is at least entitled for interest for the delay period and the award of interest at the rate of MCLR+1% by the Adjudicating Officer, in our considered view, is just, fair and equitable.

15.9. The Hon'ble Supreme Court in Civil Appeal Nos. 4910-4941/2019 DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda etc.etc. with Civil Appeal Nos. 4942-4945/2019 DLF Homes Panchkula Pvt. Ltd. Vs. Sudesh Goel etc. decided on 10.05.2019 held in para 3 of the judgment as under:--

"...... We feel it appropriate that, considering that the subject units in question are dwelling units, in a residential housing project, the rate of interest for house building loan for the corresponding period in a scheduled nationalized bank (take, State Bank of India) would be appropriate and logical, and, if floating/varying/different rates of interest were/are prescribed, the higher rate of interest should be taken for this instant computation."

15.10. On due consideration, we do not find any illegality or perversity in the impugned order dated 16.07.2021 passed by the Adjudicating Officer of the Regulatory Authority awarding interest as compensation to the respondent for delay in possession of the flat by the appellant. Issue no. (6) is answered accordingly.

16. On the basis of the aforesaid analysis, we do not find any force in the submission and grounds pressed by the learned counsel for the appellant to challenge the impugned order. Accordingly, the appeal is dismissed.

17. Now the issue to be decided is as to what should be done of the pre-deposit made by the appellant/promoter in compliance of the provisions of Section 43(5) of the.

17.1. The aims and objects of the provide for regulation and promotion of the real estate sector in an efficient and transparent manner and to protect the interests of the consumers in real estate sector. Proviso to Section 43(5) of thespecifically provides that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained without the promoter first having deposited with the Appellate Tribunal at least 30% of the penalty, or such higher percentage as determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him before the said appeal is heard. The intent of the legislature is quite clear from the wording of proviso to Section 43(5) of thethat the interest of the consumers i.e. allottees/buyers be protected.

The intent of the legislature in laying down the provision of pre-deposit of the amount of penalty or any other amount payable to the allottee by the promoter before the appeal can be heard in the Appellate Tribunal, has been elucidated by the Hon'ble Apex Court in paragraph 127 of its judgment in the Civil Appeal Numbers 6745-6749 of 2021 M/s. Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP and others, the same reads as under:-

"127. It may further be noticed that 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/allottee 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."

The Hon'ble Apex Court has clearly held that the legislature in its wisdom 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 should not be difficult for the consumer/allottee to get the amount recovered which has been determined by the Authority. It is in order to avoid the consumer/allottee to go from pillar to post for recovery of the amount that has been determined by the Authority, that the legislature has in its wisdom laid the condition of pre-deposit by the promoter under Section 43(5) of the.

17.2. Section 40(1) of theof 2016 provides for a mechanism for recovery of interest or penalty or compensation and enforcement of orders etc. of the A.O. or the Regulatory Authority, or the Appellate Tribunal and the same shall be recoverable in such manner as may be prescribed as an arrears of land revenue. The Hon'ble Apex Court vide paragraph 140 in M/s. Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP (supra) was pleased to observe that:-

"140. It is settled principle of law that if the plain interpretation does not fulfill the mandate and object of the, 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 harmonizing the construction of the scheme of the with the right of recovery as mandated in Section 40(1) of thekeeping 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."

As can be seen from the above observations, Hon'ble Supreme Court has held that even the principal amount invested by the allottee can be recovered as arrears of land revenue under Section 40(1) of the. It is further clarified by Hon'ble Supreme Court that the intention of the legislature is to provide a mechanism for early recovery of the amount invested by the allottee along with the interest incurred thereon.

17.3. Rule 23 of the U.P. Real Estate (Regulation and Development) Rules, 2016 provides that subject to the provisions of Section 40(1), the recovery of the amounts due as arrears of land revenue shall be carried out in the manner provided in the local laws. As Rule 23 has been framed under the provisions of Section 40(1) of the Act, the observations of Hon'ble Supreme Court on Section 40(1) shall equally apply to Rule 23 of the Rules 2016.

17.4. Although Section 40(1) of theof 2016 gives powers to the Appellate Tribunal to enforce its decisions, but the Tribunal does not have adequate infrastructure and the required sufficient human resource to determine and certify the amount due from the appellant/promoter to be paid to the respondent/allottee.

It is our considered view that as per provisions of the and as per the observations made by the Hon'ble Apex Court, it is the duty of the Tribunal to arrange to transfer the pre-deposited money to the concerned allottee/consumer in case the promoter's appeal is dismissed. However, since the promoter might not have paid the full payable amount or there being a prospect of some amount having already been recovered from the promoter under execution proceedings at the level of the Authority or AO, it is just and lawful that the Tribunal transfers the amount to the Authority for transferring the same to the allottee/consumer after due diligence at its end and to recover any additional amount which could be due to be paid by the promoter; or return to the promoter any amount that could be in excess of the entitlement of the allottee/consumer.

The calculation of the exact amount due to be paid to the respondent/allottee normally is to be determined up to the date of actual payment. As the facts and figures are available with the Regulatory Authority, which is executing its or A.O.'s original order, therefore, due diligence is required while calculating the amount payable, interest thereon, as well as verification of the payments made by the allottee from time to time, etc.

17.5. In the instant case, this Tribunal while upholding the order of Regulatory Authority dated 16.07.2021, dismissed the appeal of the promoter, accordingly, we direct the Registry to transfer the entire amount deposited by the promoter under the provisions of Section 43(5) of theto the concerned account of the U.P. Real Estate Regulatory Authority (U.P. RERA). Further, we direct the Regulatory Authority/Adjudicating Officer to dispose of this amount during the execution proceedings in accordance with his order dated 16.07.2021 passed in Complaint Case No. ADJ/LKO 162/08/58824/2020 (Suyash Gupta Vs. Lucknow Vikas Pradhikaran).