Case Note & Summary
The writ petition came before the Bombay High Court raising the issue whether an order passed by the RERA Adjudicating Officer directing refund of Rs. 1,35,99,246 with interest was rendered non est by the Supreme Court's subsequent interpretation of the RERA Act in Newtech Promoters and Developers Pvt. Ltd. v. State of UP (2021) 18 SCC 1. The petitioner-developer had not challenged the order within the statutory appeal period and a recovery order was later issued. The core contention was that the Adjudicating Officer had no jurisdiction to order refund; only compensation could be ordered under Section 71 of the RERA Act. The petitioner relied on the nullity principle, arguing that a decree without jurisdiction is void and can be challenged at any stage. The flat purchaser-respondent contended that the order was valid when made, had attained finality, and the subsequent change in law did not affect it. The matter involved interpretation of Sections 71, 30(c), 43(5), and 44 of the RERA Act, and the precedent in Kiran Singh v. Chaman Paswan. The court heard detailed arguments from both sides but the available excerpt of the judgment ends before the court’s analysis and decision.
Issue of Consideration
Whether the law declared in Newtech Promoters and Developers Pvt. Ltd. v. State of UP (2021) 18 SCC 1 renders the RERA Adjudicating Officer's refund order dated December 17, 2019 non est and entitles the petitioner to immunity from compliance despite not having filed a statutory appeal against it.
Law Points
- A decree passed without jurisdiction is a nullity and can be challenged at any stage
- under Section 71 of the RERA Act
- an Adjudicating Officer has jurisdiction only to order compensation
- not refund
- subsequent interpretation of law by the Supreme Court may render pre-existing orders without jurisdiction non est
- finality of an unappealed order does not cure a fundamental jurisdictional defect
Case Details
2026 LawText (BOM) (04) 7
Writ Petition No. 12121 of 2024
Somashekhar Sundaresan, J.
Amit Gharat, Abhishek Kothari, Monish Jain, Gaurav Nashikkar, R.S. Pawar
Marvel Landmarks Pvt. Ltd.
The State of Maharashtra & Ors.
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Nature of Litigation
Writ Petition under Article 226 of the Constitution of India challenging orders of the Real Estate Regulatory Authority (RERA) Adjudicating Officer as void for want of jurisdiction.
Remedy Sought
The petitioner seeks quashing and setting aside of the Impugned Order dated December 17, 2019 and the Recovery Order dated October 8, 2021, and a declaration that they are non est.
Filing Reason
The petitioner contends that the Supreme Court's decision in Newtech Promoters and Developers Pvt. Ltd. v. State of UP (2021) 18 SCC 1 interprets the RERA Act to mean that an Adjudicating Officer can only order compensation and not refund, thus the earlier refund order is without jurisdiction and void.
Previous Decisions
The Impugned Order was passed on December 17, 2019 and not appealed; a Recovery Order was passed on October 8, 2021; the Supreme Court's Newtech judgment was delivered on November 11, 2021; earlier writ petition (No.10088 of 2024) by same petitioner was disposed of by settlement but stay was granted on similar orders.
Issues
Whether the Impugned Order dated December 17, 2019 passed by the RERA Adjudicating Officer directing refund is rendered non est by the subsequent declaration of law in Newtech Promoters and Developers Pvt. Ltd. v. State of UP (2021) 18 SCC 1, and if so, whether the petitioner is entitled to relief despite not having filed a statutory appeal.
Submissions/Arguments
Petitioner argues that under Section 71 of the RERA Act, the Adjudicating Officer has jurisdiction only to impose penalty or compensation, not to order refund; the Impugned Order is therefore passed without jurisdiction and is a nullity. The Supreme Court's decision in Newtech clarifies the law and renders the order void, and this nullity can be challenged at any stage as held in Kiran Singh v. Chaman Paswan. The petitioner relies on decisions of this Court in Marveledge Realtors and earlier proceedings where stay was granted.
Respondent argues that when the Impugned Order was passed, the Adjudicating Officer was validly exercising authority delegated by RERA, and any irregularity is cured by Section 30(c). The order was appealable under Section 43(5) but the petitioner chose not to appeal, so it has attained finality and crystallised the rights of the flat purchaser. The subsequent judgment cannot retrospectively invalidate a final order.
Judgment Excerpts
The Writ Petition raises an interesting question as to whether an order dated December 17, 2019 (“Impugned Order”) passed by the Learned Adjudicating Officer of the Real Estate Regulatory Authority (“Authority”), is rendered non est by reason of the law declared by the Supreme Court in 2021, interpreting the provisions of the Real Estate (Regulation and Development) Act, 2016 (“RERA Act”).
It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.
Procedural History
The flat purchaser filed a complaint before RERA seeking refund. On December 17, 2019, the Adjudicating Officer passed an order directing the developer to refund Rs. 1,35,99,246 with interest at 10.20% p.a. The order was not appealed within the statutory period. Due to non-compliance, a recovery order was issued on October 8, 2021. On November 11, 2021, the Supreme Court delivered its judgment in Newtech Promoters and Developers Pvt. Ltd. v. State of UP, interpreting the RERA Act. The developer filed Writ Petition No. 10088 of 2024 before this Court, obtained a stay on similar orders, but the matter was later settled and withdrawn. The present writ petition was filed subsequently.
Acts & Sections
- Real Estate (Regulation and Development) Act, 2016 (RERA Act): 71, 44, 30(c), 43(5)
- Maharashtra Land Revenue Code, 1966:
- Suits Valuation Act, 1887: 11
