RERA Refund Orders: Finality Bars Belated Writ Challenges; Newtech Does Not Nullify Adjudicating Officer Refunds Where Section 81 Delegation Is Possible
1) Introduction
The petition arose from a Real Estate Regulatory Authority (RERA) adjudication in which an Adjudicating Officer, by order dated
17 December 2019, directed Marvel Landmarks Pvt. Ltd. (the promoter) to refund
Rs. 1,35,99,246/- with interest @ 10.20% p.a. to the allottee, Mr. Siddharth Mohan Palesha (Respondent No. 5).
Marvel did not file the statutory appeal under Section 44 within time. A further recovery step followed: on 08 October 2021 a
recovery warrant was issued (to be executed as arrears of land revenue).
After the Supreme Court’s decision in Newtech Promoters and Developers Pvt. Ltd. v. State of UP - (2021) 18 SCC 1
(11 November 2021), Marvel contended that an Adjudicating Officer can adjudicate only compensation and that a refund
order by such officer is jurisdictionally void. On that footing, Marvel sought to quash both the 2019 refund order and the 2021 recovery
order by filing the present writ petition on 26 August 2024.
The central tension was between (i) the doctrinal proposition that “jurisdictional defects render orders nullities” and can be raised at any
stage, and (ii) the writ court’s discretion, particularly where statutory remedies were not pursued and the matter had long attained finality.
2) Summary of the Judgment
The Bombay High Court dismissed the writ petition, refusing to interfere with the refund order and the recovery order.
The Court held, in substance, that:
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Newtech does not operate as a binding precedent to declare that an Adjudicating Officer can never direct a refund;
the Supreme Court was addressing a different question (whether a Whole Time Member could order refund), and its observations must be read
in context.
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A proper reading of the RERA Act’s scheme—especially Section 81 (delegation)—supports the proposition that
RERA may delegate certain functions (such as summary refund determinations) to “any officer”, and an Adjudicating Officer is an officer
of RERA; what is non-delegable is the Adjudicating Officer’s exclusive role in adjudging compensation under Section 71.
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Even apart from merits, the Court declined to exercise writ discretion due to inordinate delay, the availability and non-invocation
of the statutory appeal, the finality of the 2019 order, and the attempt to reopen crystallised rights years later by relying on a subsequent
Supreme Court decision.
3) Analysis
3.1 Precedents Cited (and Their Influence)
Marvel’s case hinged on paragraph 85 of Newtech, reading it as holding that the Adjudicating Officer’s domain is confined to
compensation, and therefore a refund order by such officer is without jurisdiction and void.
The High Court’s treatment of Newtech is the fulcrum of the judgment. It drew two key distinctions:
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What Newtech decided: It principally resolved whether a Whole Time Member could order refund, rejecting
the promoter’s contention that only an Adjudicating Officer could do so.
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What Newtech did not decide: It did not decide whether, via Section 81, RERA can delegate
refund-related functions to an Adjudicating Officer. Indeed, Newtech separately upheld the breadth of delegation under Section 81
(with the limited exception of regulation-making under Section 85), and stated that improper delegations could be judicially reviewed case-by-case.
Consequently, Newtech could not be deployed as an automatic “nullifier” of an Adjudicating Officer’s earlier refund order.
The Court also drew from Newtech the conceptual difference between: (i) compensation adjudication (trial-like inquiry), and
(ii) refund determination (summary, documentary, minimal discretion)—to support the plausibility of assigning refund work to an Adjudicating Officer.
This authority was used to reinforce methodological discipline: judgments are not to be read like statutes; a precedent binds for the
specific issue raised and decided; and sentences cannot be lifted out of context. This underpinned the Court’s conclusion that Marvel’s
reading of Newtech overstated its ratio and converted contextual observations into a broad invalidation rule.
Marvel relied on Marveledge (and similar follow-on orders) where a Division Bench had granted relief on a reading of Newtech
favourable to promoters. The Single Judge acknowledged judicial discipline and the need to respect Division Bench approach, but
found distinguishing features:
- Marveledge was filed closer in time to Newtech, whereas Marvel approached the Court nearly three years later.
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Critically, the present judgment notes that the Section 81 delegation dimension addressed in Newtech did not
appear to have been placed before the Division Bench in Marveledge. The Single Judge therefore treated the present case as
distinguishable in both timing (delay/laches) and legal framing (delegation under Section 81).
d) Kiran Singh & Ors v. Chaman Paswan & Ors. - (1954) 1 SCC 710
Marvel invoked Kiran Singh for the proposition that a decree passed without jurisdiction is a nullity and can be challenged at
execution or collateral stages. The High Court did not reject this as a statement of law; instead, it effectively held that Marvel’s
premise—i.e., that the Adjudicating Officer was inherently without jurisdiction—was not established once the statutory scheme
(especially Section 81) and the contextual reading of Newtech were correctly applied. Without the foundational finding of
inherent lack of jurisdiction, the “nullity” doctrine could not do the work Marvel wanted it to do.
The Flat Purchaser relied on this to contend that while judicial decisions are retrospective, they do not unsettle
res judicata or settled accounts. The High Court’s conclusion aligns with that principle: a later articulation of law
cannot be used as a lever to reopen matters long finalised, particularly where statutory appeal windows were allowed to lapse.
These were cited to emphasize that similarly situated persons who sleep on rights and approach courts belatedly may be denied relief,
even if others obtained relief earlier on the same legal footing. The High Court used this as a direct analogue to the promoter’s attempt
to “follow suit” after favourable rulings while ignoring timeliness and statutory remedies.
This supported the proposition that Article 226 relief is discretionary and not meant to supplant ordinary remedies; unreasonable delay
generally warrants refusal of extraordinary relief. The High Court’s decision not to exercise discretion rests heavily on this line of authority.
h) B. K. Srinivasan & Ors. v. State of Karnataka - (1987) 1 SCC 658
The Flat Purchaser invoked B.K. Srinivasan to analogise Section 30(c) of the RERA Act to a “Ganga clause” (a validating provision
that cures procedural irregularities not affecting merits). The High Court, however, held that this line of argument did not apply on the
facts because Marvel’s case was pitched as an inherent lack of jurisdiction, not a curable procedural irregularity in constitution
or procedure of the authority.
3.2 Legal Reasoning
a) Statutory Architecture: Sections 18, 21, 25, 28, 71, and 81
The Court mapped RERA’s design as a regulator with distinct roles:
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Section 18 creates substantive allottee rights (refund with interest; interest for delay; compensation in certain cases).
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Sections 21 & 25 establish the Authority’s composition and Chairperson’s administrative control.
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Sections 28 & 71 show Adjudicating Officers as judicial officers appointed for adjudging compensation
in specified situations; this function is insulated and non-delegable.
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Section 81 is pivotal: it authorises delegation by the Authority of “such of its powers and functions”
(except regulation-making under Section 85) to “any member, officer of the Authority or any other person”.
From this, the Court derived the key interpretive move: Section 71 is an exclusivity grant for compensation adjudication;
it is not a general “ceiling” on all work an Adjudicating Officer may perform if RERA delegates other functions under Section 81.
Thus, even if refund jurisdiction does not “originate” in the Adjudicating Officer under Section 71, it may still be performed
by that officer as a delegatee under Section 81.
b) Contextualising Newtech: Ratio vs. Over-reading
The Court held that Marvel’s reliance on paragraph 85 of Newtech missed the procedural posture and the question presented.
Newtech rejected the promoter’s claim that refund lies exclusively with the Adjudicating Officer; it did not adjudicate the
legality of delegating refund work to an Adjudicating Officer.
Moreover, Newtech contains a developed Section 81 discussion upholding delegation (subject to judicial review). This, for the
High Court, made it untenable to treat Newtech as having laid down a categorical rule that an Adjudicating Officer’s involvement
in refund matters is always ultra vires.
c) Writ Discretion, Finality, and Delay
Even assuming a jurisdictional argument could be raised later, the Court emphasized that:
- Marvel had a statutory appeal and did not pursue it, allowing the 2019 order to attain finality.
- Marvel approached the writ court nearly five years after the impugned order and nearly three years after Newtech.
- Closed matters should not be reopened merely because a subsequent judgment is said to clarify or alter legal understanding.
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Parallel proceedings existed: the allottee had filed Writ Petition No.2271 of 2024 to compel recovery action, and that Division Bench
was already seized of issues; the present writ was seen as fostering multiplicity and as a tactical “chance” attempt.
d) The Court’s Practical Holding
The Court made two practically significant moves:
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It declined to make a sweeping declaration that the Adjudicating Officer’s refund order was non est, given the statutory delegation
framework and the contextual reading of Newtech.
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It held that any jurisdictional contention, if at all, could be raised before the executing/recovery machinery; but the writ court would
not exercise extraordinary jurisdiction to reopen a long-final order.
3.3 Impact
a) On RERA litigation strategy (promoters and allottees)
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Promoters: The decision is a caution against using later Supreme Court pronouncements as a basis to revive time-barred
challenges to RERA orders, especially where statutory appeals were not filed. It also signals that “jurisdiction” arguments will not
automatically override delay and finality in writ discretion.
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Allottees: The judgment strengthens enforcement certainty: refund orders that have attained finality are less vulnerable to
belated collateral attacks.
b) On interpretation of Newtech in Maharashtra
The judgment narrows the tendency to treat Newtech as a universal invalidation rule against refund orders passed by Adjudicating Officers.
It insists on issue-specific reading and on considering Section 81 delegation, thereby potentially recalibrating how
Newtech-based challenges are framed and evaluated.
c) On public law discretion and “finality” doctrine
The decision reiterates a strong public-law message: Article 226 is not an appellate substitute; where legislature provides an appeal and
a limitation structure, writ courts will be reluctant to resurrect stale disputes, particularly when third-party rights have crystallised.
4) Complex Concepts Simplified
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“Non est” / “Nullity”: Treated as legally non-existent. Courts recognise nullity where an authority acted without jurisdiction.
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“Coram non judice”: Literally, “before a person not a judge”; used to describe proceedings before a forum lacking jurisdiction.
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“Obiter dicta” vs “Ratio decidendi”: Ratio is the binding legal principle necessary to decide the case; obiter are incidental
observations. This judgment stresses contextual reading to avoid elevating obiter into a broad rule.
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Delay and laches: Equitable doctrine in writ jurisdiction—unexplained delay can defeat relief even where a legal point exists.
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Delegation (Section 81): RERA can authorise members/officers/others to perform its functions (except making regulations).
The Court treats this as the statutory basis to permit an Adjudicating Officer to perform tasks beyond compensation adjudication,
so long as the scheme is not violated.
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Recovery as arrears of land revenue: A strong enforcement mechanism where amounts can be recovered via revenue machinery
(Collector/Tehsildar) akin to land revenue dues.
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“Ganga clause”: A validating provision that cures certain procedural defects. The Court held Section 30(c) is not the right
tool to answer an “inherent lack of jurisdiction” claim.
5) Conclusion
The Bombay High Court refused to undo a long-final RERA refund order on the strength of a later Supreme Court decision. The judgment
lays down a pragmatic and structurally grounded approach:
(i) read Newtech for what it actually decided; (ii) recognise that Section 81 enables delegation of RERA functions (other than
regulation-making), and that Section 71’s exclusivity is about protecting compensation adjudication, not restricting all tasks an
Adjudicating Officer may perform as a delegatee; and (iii) treat delay, finality, and statutory appellate discipline as decisive factors
against extraordinary writ intervention.
In effect, the decision strengthens enforcement stability under RERA and signals that jurisdictional rhetoric will not, by itself,
overcome the combined barriers of limitation-by-design, finality, and writ discretion.