1. Heard Sri Amit Yadav, learned counsel for the appellant and Sri Anurag Singh, counsel for the respondent.

2. The appellant is aggrieved by the order of Regulatory Authority dated 20.12.2021, whereby the Regulatory Authority on the request of respondent reviewed its order dated 19.01.2021 without there being any provision under the Act 2016.

3. On examination of the pleadings and record, it is evident that the appellant filed online complaint on 07.03.2020 seeking relief of refund on account of not offering the possession despite making full payment.

4. There is delay of about 36 months in offering the possession as admitted by the respondent. The complaint of the appellant was allowed vide order dated 19.01.2021 with direction to the respondent to refund the entire deposited amount within 45 days along with interest @ MCLR+ 1% from the date of deposit till its refund.

5. The respondent moved an application for recall of order dated 19.01.2021 and the Regulatory Authority by means of order reviewed its order.

6. The perusal of the 2nd para of the impugned order reveals that the Regulatory Authority while examining the application for recall of the order dated 19.01.2021 took note of the fact that the order has been passed in the absence of respondent, whereas on the date of final hearing on 11.11.2020, the objection/reply of the respondent through e-mail has been sent to the Regulatory Authority, which is evident from Para 3 of the first page of the order ( at page 27) and while cancelling the order of refund directed the respondent to provide possession of his unit by 31.01.2022 along with OC/CC and execute conveyance deed after taking necessary stamp fee. The respondent was also directed to pay interest @ MCLR+ 1% from 23.02.2017 to receipt of OC/CC or offer of possession, whichever is later.

7. Feeling aggrieved against the order dated 20.12.2021, the instant appeal has been filed by the appellant.

8. In sum and substance, the ground of challenge is that without there being any provision under the Act and Rules 2016, the impugned order has been passed by the Regulatory Authority.

9. Learned counsel for the appellant in support of his submissions has placed reliance on the following case laws:-

1. (2011)4 SCC,750, Assistant Commercial Taxes Officer Vs. Makkad Plastic Agency.

2. (2010) 9 SCC 437, [LQ/SC/2010/925] Kalabharati Advertising v. Hemant Vimalnath Nasrichania and others.

3. (1987) 4 SCC 525, [LQ/SC/1987/674] Dr (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others.

10. Learned counsel for appellant prayed that the impugned order 20.12.2021 be set aside and the original order dated 19.01.2021 be restored.

11. Sri Anurag Singh, learned counsel for the respondent submitted that the objection/reply of the respondent was sent to RERA through e-mail and that was not examined while passing the impugned order, but learned counsel for the respondent fairly accepted that there is no provision under the Act & Rules 2016 for recall/ review of its order by the Regulatory Authority. The learned counsel for the respondent further submitted that the Regulatory Authority ought to have examined the objection of the respondent while passing the order dated 19.01.2021.

12. We have examined the submissions of learned counsel for the parties.

13. Admittedly the order dated 19.01.2021 was passed on the complaint dated 07.03.2021 seeking refund of deposited amount along with interest on account of delay of about 36 months in offering possession. Under the Act 2016 and Rules framed thereunder there is no provision for review of the order passed by the Regulatory Authority. The Regulatory Authority under the provisions of Section 39 of the Act, 2016 can only rectify its order suo motu or on the application of either party within two years from the date of order. It can only rectify any mistake which is apparent from the record but the Regulatory Authority is not empowered to amend substantive part of its original order.

14. As far as sending of objection through e-mail to the RERA Authority is concerned, we are of the considered view that the objection/reply in a proceedings can be filed only in the folders of the case if filed on-line and sending the e-mail on the ID of RERA was not correct on the part of the respondent as it is the parties who have to present the case before the hearing Bench and also required to file their respective pleadings in the said proceedings. Even for argument’s sake it is admitted that the respondent has filed his objections, but the same has not been taken care of by the Regulatory Authority in its order dated 19.01.2021. The only option available to the respondent was to file an appeal before the Tribunal challenging the said order.

15. The issue of review in the absence of express statutory power was examined by Hon’ble Supreme Court in case of Dr (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and others (1987) 4 SCC 525 [LQ/SC/1987/674] and vide para 11 was pleased to observe as under:-

“ 11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a qausi-judicial authority. It is not disputed that the provisions of the U.P.State Universities Act, 1973 or of the statutes of the University do not confer any power of review on the Vice-Chancellor. In the circumstances, it must be held that on the Vice-Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice-Chancellor dated March 7, 1987 was a nullity.”

16. The Hon’ble Supreme Court in Kalabharati Advertising v. Hemant Vimalnath Nasrichania and others (2010) 9 SCC 437 [LQ/SC/2010/925] vide paras 12, 13, 14 was pleased to observe as under:-

”12 .It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction. (vide Patel Chunibhai Dajibha v. Narayanarao Khanderao Jambekar and Harbhajan Singh V. Karam Singh.)

13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Major Chandra Bhan Singh V. Latafat Ullah Khan, Kuntesh Gupta (Dr.)V.Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. Of Land Record and Settlement and Sunita Jain v. Pawan Kumar Jain this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.

14. Therefore, in view of the above, the law on the point can be summarized to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.

17. In the Act 2016 and rules framed thereunder, there is no provision for review of the order passed by the Regulatory Authority and the impugned order in a clear terms speaks of its intention to review its order dated 19.01.2021.

18. In our considered view it is the established proposition of law that review is a creature of statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/ correction is not permissible.

19. Accordingly, the appeal is allowed. The order dated 20.12.2021 is hereby set aside and the order dated 19.01.2021 is restored.