ARGUMENTS ADVANCED

1. WHETHER THE WRIT PETITION FILED BY KAZA PORYO IS MAINTAINABLE?

[¶1] It is humbly contended that the instant writ petition is not maintainable. The Respondent seeks
to establish that; (A) The petitioner does not have a locus standi, (B) There has been no violation of
Fundamental Right,(C) The petitioner is required to exhaust existed alternative remedy and (D) The
Hon’ble court would not be justified in interfering with a policy decision.

(A) The petitioner does not have a locus standi

[¶2] Locus standi means signifies the right to bring an action and to be heard. 1In State of Punjab v.
Devans Modern Breweries Ltd.2 and Prathyasa Mental Health Counselling Forum v. State of
Kerala,3 the Kerala High Court rejected PIL by unregistered body after referring various decisions of
SC vis-à-vis wit petition, like GuruvayoorDevaswom Managing Committee v. C.K.Rajan 4; Akhil
BharatiyaSoshitKaramchari Sangh (Railway) v. Union of India 5; S.P. Gupta v. Union of
India6 and D.S. Nakara &Others. v. Union of India7 observed that no action lies in the SC under Art.
32 unless there is an infringement of a Fundamental Right, 8 as SC has previously emphasized that
“The violation of Fundamental Right is sine qua non of exercise of right conferred by Art. 32.” 9 In
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors.,10 SC held that only
a person aggrieved can impugn any given piece of legislation under Art. 32. It is submitted that, per
curiamSachidanand Pandey v. State of West Bengal,11 courts must restrict free flow of case under
article 32.

[¶3] Where there is no infringement of Fundamental Right or scope for enforcement of any
Fundamental Right, the writ petition is not maintainable on the fragile ground. 12 Where writ petition
is challenging the Constitutional validity of any provision, then the petitioner should file writ petition

1
Aiyar Ramanatha, P., Concise Law Dictionary, LexisNexis Buttersworth Wadhwa Nagpur, 2009.
2
State of Punjab v. Devans Modern Breweries Ltd., 11 S.C.C. 26 (2004).
3
Prathyasa Mental Health Counselling Forum v. State of Kerala, S.C.C. 2314 (Ker. 2020).
4
GuruvayoorDevaswom Managing Committee v. C.K.Rajan, 7 S.C.C. 546 (2003).
5
Akhil BharatiyaSoshitKaramchari Sangh (Railway) v. Union of India, 1 S.C.C. 246 (1981).
6
S.P. Gupta v. Union of India, Supp S.C.C. 87 (1981).
7
D.S. Nakara & Others. v. Union of India, A.I.R. 130 (S.C. 1983).
8
Andhra Industrial Works v. Chief Controller of Imports, A.I.R. 1539 (S.C. 1974).
9
Fertilizer Corp. Kamgar Union v. Union of India , A.I.R. 344 (S.C. 1981); Gopal Das v. Union of India, A.I.R. 1 (S.C.
1955).
10
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors., A.I.R. 367 (S.C. 1955)
11
Sachidanand Pandey v. State of West Bengal, 2 S.C.C. 295 (1987).
12
Federation of Bar Association in Karnataka v. Union of India, 6 S.C.C. 715 (2000); Coffee Bd. v. Joint C.T.O., A.I.R.
870 (S.C. 1971).

Page 1 of 24
before High Court under Art. 226 of the Constitution. 13 Mere apprehension that the petitioner would
be deprived of his Fundamental Right is not enough to invoke the jurisdiction of the Court under Art.
32.14 Unless satisfactory reasons are India in this regard, filing of petition in such matters directly
under Art. 32 of the Constitution is to be discouraged. 15 It has been held that if a person who comes
to the Court with a writ with vested interests, improper motion or actuated by a desire to win
notoriety or cheap popularity are not entitled to file writ petition. 16It is further submitted that, in the
case of Rabindranath Bose v. Union of India,17 it was observed that no relief can be given to
petitioners who, without any reasonable explanation, approach Supreme Court under Article 32 of
the Constitution.

(B) There has been no violation of Fundamental Right

[¶4] When a person acquires a locus standi, he has to have a personal or individual right which was
violated or threatened to be violated. 18 In BALCO Employees’ Union (Regd.) v. Union of India,19 the
Court held that the only ground on which a person can maintain a writ is where there has been an
element of violation of Article 14 and Article 21 on human rights. There cannot be any such thing as
absolute or uncontrolled liberty wholly freed from restraint.20

(C) The petitioner is required to exhaust existed alternative remedy

[¶5] It has been held that since Art. 32 confers “extraordinary” jurisdiction which shall be brought
into use where there is no alternate efficacious remedy is available. 21 The reason for this is: first, to
reduce increasing pendency of cases22 and second, to inspire faith in hierarchy of Courts and the
institution as a whole. The power to grant writs under Article 32 is a discretionary power vested in
the hands on this Hon'ble Court.23 This Hon’ble Court has itself imposed a self-restraint in its own
wisdom on the exercise of jurisdiction under Art. 32 where the party invoking jurisdiction has an

13
State of West Bengal v. Ratnagiri Engineering Private Limited , 4 S.C.C. 453 (2010).
14
Magan Bhai v. Union of India, 3 S.C.C. 400 (1970).
15
Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003).
16
Ashok Kumar Pandey v. State of West Bengal, A.I.R. 1923 (S.C. 2004).
17
Rabindranath Bose v. Union of India, 1 S.C.C. 84 (1970).
18
Calcutta Gas Co. Ltd. v. State of West Bengal, A.I.R. 1044 (S.C. 1962).
19
BALCO Employees’ Union (Regd.) v. Union of India, 3 S.C.C. 333 (2002).
20
Ram Jethmalani &Ors. v. Union of India &Ors., 8 S.C.C. 1 (2011).
21
Secretary, Govt. of India v. Alka Shubhash Gadia , 3 S.C.R, Supl. 583 (1990); Avinash Chand Gupta v. State of Uttar
Pradesh, 2 S.C.C. 726 (2004); Union of India v. Paul Manickam, A.I.R. 4622 (S.C. 2003).
22
PN Kumar v. Municipal Corp of Delhi, 1 S.C.R 1 732 (1988).
23
K.D. Sharma v. SAIL, 12 S.C.C. 481 (2008); Dalip Singh v. State of Uttar Pradesh, 2 S.C.C. 114 (2010); Sunil Poddar
v. Union Bank of India, 2 S.C.C. 326 (2008).

Page 2 of 24
effective adequate alternative remedy in form of Art. 226, although this Rule is a Rule of
convenience and discretion rather than a Rule of law.24

[¶6] It is a well settled proposition of law that existence of an alternative adequate remedy is a factor
taken into consideration in a writ petition. 25In Kanubhai Brahmbhatt v. State of Gujarat,26 the
Supreme Court held that a petitioner claiming of infraction of his fundamental right should approach
High Court rather Supreme Court in first instance as High Court under Art. 226 has much wider than
powers of the Supreme Court under Art. 32.27

(D) The Hon’ble court would not be justified in interfering with a policy decision

[¶7] The respondent most humbly submits that the Supreme Court has long held that interference
into policy actions is not within the its jurisdiction 28 as reiterated in the recent Iodine Salt Case. 29 It
has been held that a writ petition cannot be maintainable if its sole purpose is to question a policy
decision of the Government.30In the Constitution Bench decision of this Court in Subramanian
Swami v. Director, CBI and Ors.,31this Court held that a legislation does not become unconstitutional
merely because there is another view or because another method may be considered to be as good or
even more effective, like any issue of social, or even economic policy. The list is truly extensive, 32 as
the underlying principle is sound in law.

Hence, it is humbly submitted before this Hon’ble Court that the instant Writ Petition is not
maintainable.

2. WHETHER THE WORD ALLOTTEES IS VIOLATIVE OF ARTICLE 14, 19, 21 AND

300-A OF CONSTITUTION OF INDIA?

[¶8] It is humbly contended that the word Allottees is in consonance with Article 14, 19, 21 and 300-
A of the Constitution. The Respondent seeks to establish that; (A) It passes the test of Art. 14, (B) It
is not Arbitrary and Unreasonable as (i) It is not Discriminatory, (C) There is a presumption in
favours of the validity of the statute as (i) It is not Ultravires, (D) It is in consonance with Article 19
24
Mohammed Ishaq v. S. Kazam Pasha, 12 S.C.C. 748 (2009).
25
Rashid Ahmed v. Municipal Board, Kairana, A.I.R. 163 (S.C. 1950).
26
Kanubhai Brahmbhatt v. State of Gujarat, A.I.R. 1159(S.C. 1987).
27
PN Kumar v. Municipal Corp of Delhi , 1S.C.R 732 (1988); Confederation of All Nagaland State Services Employees'
Assn. v. State of Nagaland, (2006) 1 S.C.C. 496 (2006).
28
Directorate of Film Festivals v. Gaurav Ashwin Jain &Ors., 4 S.C.C. 737 (2007).
29
Academy of Nutrition Improvement v. Union of India, 8 S.C.C. 274 (2011).
30
Association of Drugs and Pharmaceuticals, Manufacturers, A.P. v. A.P. Health, Medical, Housing and Infrastructure
Development Corporation, Hyd. and Anr., 2 A.L.D. 609 (2002).
31
Subramanian Swami v. Director, CBI and Ors., 8 S.C.C. 682 (2014).
32
SC Cooper v. Union of India, 3 S.C.R. 530 (1970).

Page 3 of 24
as (i) Restriction under Article 19(6) is Reasonable, (E) It is in consonance with Article 21 of the
Constitution as (i) Right to Life enshrined under Art. 21 is not absolute and (ii) It qualifies test of
substantive due process and procedure established by law and (F) It is in consonance with Article
300-A.

(A) It passes the test of Art. 14

[¶9] In Indira Sawhney v. Union of India,33it was held that “Equality is one of the magnificentcorner-
stones of Indian Democracy”. Any inequality in order to be unconstitutional must be actually and
palpably unreasonable and arbitrary.34 A 5-judge bench of this Hon’ble Court in R. C. Poudyal v.
Union of India35has held that:“Para 130. In State of M.P. v. Bhopal Sugar Industries Ltd.,36 this
Court said: “The Legislature has always power to make special laws to attain particular objects and
for that purpose has authority to select or classify persons, objects or transactions upon which law is
intended to operate.37 In this context, test of 'direct impact' in A.K. Gopalan v. State of Madras,38 has
been subsequently widened in Rustom Cavasjee Cooper v. Union of India,39 wherein test of 'direct
and inevitable consequence' was propounded.In Casu, the NCLAT in Nikhil Mehta and Sons (HUF)
v. AMR Infrastructure Ltd.,40 held that amounts raised by developers under assured return schemes
had the "commercial effect of a borrowing", which became clear from the developer's annual returns
in which the amount raised was shown as "commitment charges" under the head "financial costs". As
a result, such allottees were held to be "financial creditors" within the meaning of Section 5(7) of the
Code.

[¶10] In several cases, this Court has invoked Chief Justice Patanjali Sastri’s words that Art. 14 does
not require that classification brought about by legislation be “scientifically perfect or logically
complete”.41 What was required in such cases, he wrote, was that classification must be “based on an
intelligible principle having a reasonable relation to object which legislature seeks to attain.” 42 It is
not obnoxious and is not open to charge of denial of equal protection on ground that it has no
33
Indira Sawhney v. Union of India, A.I.R. 477 (S.C. 1993); Re special Reference Number 1, 10 S.C.C. 1 (2012).
34
Chiranjit Lal Chwodhury v. UOI, A.I.R. 41 (S.C. 1951); T Devadasan v. Union of India, A.I.R. 179 (S.C. 1964)
35
R. C. Poudyal v. Union of India, 1 Supp S.C.C. 324 (1994) at page 386.
36
State of M.P. v. Bhopal Sugar Industries Ltd., 6 S.C.R. 846, 850 (1964); See also, In Re the Special Courts Bill, 1
S.C.C. 380 (1979).
37
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 91 (S.C. 1953); Babulal Ahmtalal Mehta v. Collector of Customs,
Calcutta, A.I.R. 877 (S.C. 1957); Gopi Chand v. Delhi Administration, A.I.R. 609 (S.C. 1959); H.P. Gupta v. Union of
India, 10 S.C.C. 658 (2002); Ankul Chandra Pradhan v. Union of India, 6 S.C.C. 1 (1997).
38
A.K. Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950).
39
Rustom Cavasjee Cooper v. Union of India, 1 S.C.C. 248 (1970).
40
Nikhil Mehta & Sons v. AMR Infrastructures Ltd., S.C.C. OnLine 377 (N.C.L.A.T 2017).
41
Kedar Nath Bajoria v. State of West Bengal , A.I.R. 404 (S.C. 1953). See, e.g., Welfare Association v. Ranjit P. Gohil, 9
S.C.C. 358 (2003) paragraph 60; Dharam Dutt v. Union of India, 1 S.C.C. 712 (2004) paragraph 56.
42
P.P. Enterprises v. Union of India, 4 S.C.C. 409 (1998).

Page 4 of 24
application to other persons.43 It is humbly submitted that Art. 14 denies equal protection only when
there is no reasonable basis for differentiation.44 In State of Kerala v. Aravind Ramakant
Modawdakar and Ors.,45 the Court though noted, that both the inter-state operators and intra-state
operators were, in a generic sense, state carriage operators, there was a distinction between the two.

[¶11] The Court held that it difficult to hold that this classification is either unreasonable or it lacks a
nexus to object or is violative of Article 14 as in instant case. In Arguendo, the first distinguishing
characteristic identified by the Court related to the nature of the transaction between real-estate
developers and apartment buyers. The consideration for time value of money was the second
distinguishing characteristic identified by the Court.46 The third distinguishing factor identified by
the Supreme Court is that, unlike most operational creditors, allottees are vitally concerned with the
financial health of the real-estate developer given that the completion of the project will be
jeopardized if they are not financially viable. 47 In S. Sundaram Pillai v. V.R. Pattabiraman,48 this
Court held that an explanation cannot enlarge the scope of the original provision. In Casu, even if
allottees are not permitted to trigger the Code, they may still be protected by making suitable
amendments for their inclusion in the Committee of Creditors, so that they may have a voice in the
future of the corporate debtor, which will impact the flats/apartments to be given to them or refunds
to be made, as the case may be.

(B) It is not Arbitrary and Unreasonable

[¶12] A Five Judge bench of Hon’ble Court in E.P. Royappa v. State of T.N.49has explained term
arbitrary as verysimply the lack of any reasoning which was reiterated by 5-judge bench of thisCourt
in Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors.50 No enactment can be struck
down by just saying that it is arbitrary or unreasonable. 51 The Principle of classification under Art. 14
has been subject of deliberation in a catena of cases.52 No action of State should be of arbitrary and

43
State of Bombay v. F.N. Balsara,A.I.R. 318 (S.C. 1951).
44
Ameeroonisa Begum v. Mehboob Begum, A.I.R. 91 (S.C. 1953); Babulal Ahmtalal Mehta v. Collector of Customs,
Calcutta, A.I.R. 877(S.C. 1957); Ashoka Smokeless Coal India (P.) Ltd v. UOI, 2 S.C.C. 640, 697 (2007).
45
State of Kerala v. Aravind Ramakant Modawdakar and Ors., 7 S.C.C. 400 (1999).
46
Pioneer Urban Land and Infrastructure Ltd., 8 S.C.C. 416 (2019), ¶ 42.
47
Pioneer Urban Land and Infrastructure Ltd., 8 S.C.C. 416 (2019), ¶ 42.
48
S. Sundaram Pillai v. V.R. Pattabiraman, 1 S.C.C. 591 (1985).
49
E.P. Royappa v. State of T.N. , 4 S.C.C. 3 (1974); See also, Sharma Transport v. Government of Andhra Pradesh, 2
S.C.C. 188 (2002).
50
Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors., 1 S.C.C. 1 (2019).
51
State of A.P. v. McDowell & Co., 3 S.C.C. 709 (1996); State of A.P. v. McDowell & Co., 3 S.C.C. 709 (1996); Ashok
Kumar Thakur v Union of India, 6 S.C.C. 1 (2008); State of Uttar Pradesh v. Kaushailiya and Ors., A.I.R. 416 (S.C.
1964).
52
Budhan Choudhary &Ors. v. The State of Bihar, A.I.R. 191 (S.C. 1955).

Page 5 of 24
irrational nature which distinguishes among Individuals. 53 Bhagwati J in Bachchan Singh v State of
Punjab54, A person cannot be deprived of his liberty by law which is nebulous and uncertain in its
definition and application.55 An ordinary legislation cannot be challenged in a Court of Law on
grounds of violation of basic structure.56

[¶13] The restriction imposed was not unreasonable as mere fact that some hardship or injustice is
caused to someone is no ground to strike down the rule as unconstitutional. 57 Further Supreme Court
has observed recently in K. Thimmappa v. Chairman, Central Board of Directors, 58 that mere
differentiation does not per se amount to discrimination and to attract operation of equal protection
clause, it is necessary to show that the selection is unreasonable or arbitrary and for that existing
circumstances at time of taking decision had to be examined. 59In Casu, Supreme Court held that an
economic legislation does not violate Article 14 only because it does not contain or make a perfect
classification while giving effect to a policy.60 In Swiss Ribbons v. Union of India,61 the SC
tenaciously upheld the difference between operational and financial creditors and declared this
classification constitutionally valid. Nikhil Mehta & Sons v. AMR Infrastructures Ltd.62 is significant
because it was first to case to recognize apartment buyers as financial creditors and allow them to
trigger the IBC against the corporate debtor (real estate developer). The SC allowed the appeal and
ordered for the fresh constitution of CoC, which would enforce the status of the allottees as financial
creditors.63

[¶14] A statute upon a similar subject deriving its authority from another source can be referred to, if
its provisions have been held to be unreasonable, or have stood test of time, only for purpose of
indicating what may be said to be reasonable in the context, 64 and extent to which it is not
unconstitutional.65 A case of arbitrariness is not made out where two views are possible and view

53
Om Kumar v. Union of India, 2 S.C.C. 386 (2001).
54
Bachan Singh v. State of Punjab, A.I.R. 1336 (S.C. 1982).
55
A.K. Roy v. Union of India, 1 S.C.C. 271 (1982).
56
Kuldip Nayar v. Union of India, A.I.R. 3127 (S.C. 2006).
57
AP Cooperative Oil Seeds Federation Limited v. D Achyuta Rao, 13 S.C.C. 320 (2007).
58
K. Thimmappa v. Chairman, Central Board of Directors, A.I.R. 467 (S.C. 2001); Union of India v. M.V. Valliappan, 6
S.C.C. 259 (1996).
59
ChabungamIbohal Singh v. Union of India, 2 S.C.C. 83 (1995).
60
Ram Krishna Dalmia v. S.R. Tendolkar , S.C.R. 279 (1959); State of Gujarat v. Shri Ambica Mills Ltd., 4 S.C.C. 656
(1974).
61
Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019).
62
Nikhil Mehta & Sons v. AMR Infrastructures Ltd., S.C.C.OnLine 377 (N.C.L.A.T 2017).
63
Chitra Sharma v. Union of India, Writ Petition (Civil) [No. 744 of 2017], decided on 9 August 2018.
64
State of Madhya Pradesh v. Mandavar , A.I.R. 493 (S.C. 1955); Bar Council, Uttar Pradesh v. State of Uttar Pradesh,
A.I.R. 231 (S.C. 1973); Sant Lal Bharti v. State of Punjab,A.I.R. 485 (S.C. 1988); State of Tamil Nadu v. Ananthi
Ammal, A.I.R. 2114 (S.C. 1995).
65
Javed v. State of Haryana,A.I.R. 3057 (S.C. 2003).

Page 6 of 24
taken by government cannot be challenged on ground that other view is a better one. 66 Mere fact that
some hardship or injustice is caused to someone is no ground to strike down rule altogether if
otherwise rule appears to be just, fair and reasonable and not unconstitutional. 67 This Hon’ble Court,
in State of Madras v. V.G. Row,68 held that “no abstract standard or general pattern, of reasonableness
can be laid down as applicable to all cases”.

(i) It is not Discriminatory

[¶15] The courts have evolved the principle that if the law in question is based on rational
classification it is not regarded as discriminatory. 69 It has been held in the case of Deepak Sibal v
Punjab University70, that ‘[A] classification need not be made with “mathematical precision”. It has
also been held in the case of Pannalal Binjraj v Union of India71that, ‘[T]he courts start with a
presumption that the administration has not acted in a discriminatory manner; they would not easily
assume abuse of power when discretion is vested in high officials. There is a presumption that every
factor which is relevant or material has been taken into account in formulating the classification. 72
Evils in the same field may be of different dimensions and proportions requiring different remedies
or so the legislature may think.73

[¶16] In State of West Bengal and Ors. v. Rash Bihari Sarkar and Ors.,74 exemption was granted
under Bengal Amusements Act, 1922 as amended in 1981 from Entertainment Tax for theatre groups
which were bonafide and which performed not for monetary gain which tax exemption was not given
to theatre groups which performed for monetary gains. Both were theatre groups. State action must
be fair and not arbitrary if it is to be pass muster in a court of law. 75It falls foul of Article 14 if it is
found to be vague.76 It is also important to remember that the Code is not meant to be a debt
recovery mechanism.77 What is essential is that they have the same interest. Interpreting the words
66
Onkar Lal Bajaj v. Union of India,A.I.R. 2562 (S.C. 2003).
67
A. P. Coop. Oil Seeds Growers Federation Ltd. v. D. Achyuta Rao, 13 S.C.C. 320 (2007).
68
State of Madras v. V.G. Row, A.I.R. 196 (S.C. 1952).
69
Ashutosh Gupta v. State of Rajasthan, 4 S.C.C. 34 (2002).
70
Deepak Sibal v. Punjab University, A.I.R. 903 (S.C. 1989); Dharam Dutt v. Union of India, A.I.R. 1295 (S.C. 2004).
71
Pannalal Binjraj v. Union of India, A.I.R. 397, 408 (S.C. 1957).
72
State of U.P. v. Kartar Singh , A.I.R. 1135 (S.C. 1964); G.D. Kelkar v. Chief Controller of Imports and Exports, A.I.R.
839 (S.C. 1967).
73
Tigner v. Texas, 310 U.S. 14 (S.C. 1940).
74
State of West Bengal and Ors. v. Rash Bihari Sarkar and Ors., 1 S.C.C. 479 (1993).
75
Shayara Bano v. Union of India, 9 S.C.C. 1 (2017); Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, 1
S.C.C. 641 (1985); Navtej Singh Johar and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2018); Joseph Shine v. Union of
India, 3 S.C.C. 39 (2019); Justice K.S. Puttuswamy and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2017); Hindustan
Construction Co. Ltd. and Ors. v. Union of India and Ors., A.I.R. 122 (S.C. 2020).
76
Shreya Singhal v. Union of India, 5 S.C.C. 1 (2015); K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr., 1 S.C.C.
523 (1985); State of Himachal Pradesh v. Narain Singh, 13 S.C.C. 165 (2009)
77
Swiss Ribbons Swiss Ribbons (P) Ltd. v. Union of India, 4 S.C.C. 17 (2019), Para 28.

Page 7 of 24
"same interest", it is still further true that this Court, in Chairman, Tamil Nadu Housing Board v.
T.N. Ganapathy,78 has held that what is required is only community of interest. It is clear that any
alleged discrimination has to meet the tests laid down in Ram Krishna Dalmia case.79

(C) There is a presumption in favors of the validity of the statute

[¶17] The Hon’ble Supreme Court in the case of Ashutosh Gupta v. State of Rajasthan80 held that,
‘[T]here is always a presumption in favor of the constitutionality of enactment 81 and the burden is
upon him who attacks it to show that there has been a clear transgression of the constitutional
principles.82 The Courts of law have to presume that the particular law is intra vires and not ultra
vires.83 Furthermore, it was held in the case of People’s Union for Civil Liberties v. Union of India 84
that, ‘[A] statute carries with it a presumption of Constitutionality. In Hanif Qureshi (Mhd) v State of
Bihar85 held that, ‘in order to sustain the presumption of constitutionality the Court may take into
consider matters of common knowledge, matters of common report, the history of the times and may
assume every state of facts which can be conceived existing at legislation.’ It is equally presumed
that legislature is aware of general principles of law and didn’t intent to overthrow fundamental legal
principle, in absence of a contrary intention in unmistakable terms.86

(i) It is not Ultravires

78
Chairman, Tamil Nadu Housing Board v. T.N. Ganapathy, 1 S.C.C. 608 (1990).
79
Ram Krishna Dalmia v. S.R. Tendolkar, A.I.R. 538 (S.C. 1958); See also, V.C. Shukla v. State (Delhi Admn.),Supp
S.C.C. 249 (1980); State of Gujarat v. Shri Ambica Mills Ltd., 4 S.C.C. 656 (1974); Venkateshwara Theatre v. State of
A.P., 3 S.C.C. 677 (1993); Mardia Chemicals Ltd. v. Union of India, 4 S.C.C. 311 (2004); State of Bihar v. Shree
Baidyanath Ayurved Bhawan (P) Ltd., 2 S.C.C. 762 (2005); Karnataka Live Band Restaurants Assn. v. State of
Karnataka, 4 S.C.C. 372 (2018).
80
Ashutosh Gupta v. State of Rajasthan, A.I.R. 1533 (S.C. 2002).
81
Narsing Das v.Chogemull,A.I.R. 435 (Cal. 1939); Batterfield v.Stranaham, 192 US 70 (1906); Gopal Krishnayya v.
State of Andhra Pradesh,A.I.R. 292 (A.P. 1959); Express Newspapers Ltd v. Union of India,A.I.R. 578 (S.C. 1958), p
623;Jalan Trading Co Pvt Ltd v. Mill Mazdoor Sabha,A.I.R. 691 (S.C. 1967); Lucknow Officials Co-op Hsg Societies v.
Registrar of Co-op Societies,A.I.R. 305 (All. 1967); Behampur Tapti Mills Ltd v. State of Madhya Pradesh,A.I.R. 255
(M.P. 1962); Waverly Jute Mills Co Ltd v. Raymond & Co (I) Pvt Ltd,A.I.R. 90 (S.C. 1963); Ram Krishna Dalmia v. SR
Tendolkar,A.I.R. 538 (S.C. 1958); KavalapparaKottarathilKochuni and Ors. v. State of Madras and Ors., A.I.R. 1080
(S.C. 1960); G.K. Krishnan v. State of Tamil Nadu, A.I.R. 583 (S.C. 1975); Ashutosh Gupta v. State of Rajasthan, A.I.R.
1533 (S.C. 2002); R.K.Garg v. Union of India, 4 S.C.C. 675 (1981); Marida Chemicals Ltd., etc. v. Union of India and
Ors., 4 S.C.C. 311 (2004); K. B. Nagpur, M.D. (Ayurvedic) v. Union of India, 9 S.C.C. 212 (2012).
82
Charanjit Lal v. Union of India,A.I.R. 41 (S.C. 1951); Mohd Hanif Qureshi v. State of Bihar,A.I.R. 731 (S.C. 1958);
Abdul Karim Thakur v. State, Kash L.J. 296 (1983); Udayan Narayanan Namboodri v. State of Kerala, 2 Ker L.T. 928
(1988); Amrit Banaspati Co. Ltd. vs. Union of India and Ors., 3 S.C.C. 335 (1995).
83
Gopal Narain v. State of Madhya Pradesh, Jab L.J. 682 (1979).
84
People’s Union for Civil Liberties v. Union of India, A.I.R. 1442 (S.C. 2004).
85
Hanif Qureshi (Mhd) v. State of Bihar , A.I.R. 731 (S.C. 1958); Re: Kerala Education Bill,A.I.R. 956 (S.C. 1958);
Express Newspapers Ltd v. Union of India,A.I.R. 578 (S.C. 1958); Gopala Krishnaya v. State of Andhra Pradesh,A.I.R.
292 (A.P. 1959), p 299; Moti Das v. Sahi,A.I.R. 942 (S.C. 1959), p 947; Ramkrishna Dalmia v.Tendolkar,S.C.R. 274
(1959), p 297; Sukhdev Singh v Union Territory of Chandigarh,A.I.R. 5 (P&H 1987).
86
Graham v. Van Wyck, 14 Barb 53 (1852); Glanrock Estate (P) Ltd. v. State of T.N., 10 S.C.C. 96 (2010).

Page 8 of 24
[¶18]In P. Janardhan v. Union of India87 the Court said that “The term ultra vires simply means
beyond the power or lack of power. If any Act is introduced in interest of general public, it shall not
be held as ultra vires unless contrary is proved.88 Mr. Justice Stone of the Supreme Court of the
United States has delineated these limitations in United States v. Butler,89 that Courts are concerned
only with the power to enact statutes, not with their wisdom and the only check upon our exercise of
power is our own sense of self-restraint. In Delhi Transport Corporation. v. D.T.C. Mazdoor
Congress,90 this Court held that if intention of provision is clear, it is not permissible either to mend
or bend it even if such recasting is in accord with good reason and conscience.

(D) It is in consonance with Article 19

[¶19] A law within the meaning of Article 19 of the Constitution would remain valid qua a non-
citizen.91 It is submitted that Art. 19 of the Constitution is not absolute, 92 and reasonable restrictions
can be placed93 in interest of general public.94 The reasonableness of the restraint would have to be
judged by the magnitude of the evil it seeks to restrain, curb or eliminate. 95 The nature of the right
alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and the
urgency of the evil sought to be remedied thereby, the disproportion of the imposition and prevailing
conditions at the time, should all enter into judicial verdict. 96It is necessary to see whether a class
which comes into contact with such knowledge suffer in their moral outlook or might have impure or
lecherous thoughts aroused in their minds. 97 There cannot be any liberty absolute in nature and
uncontrolled in operation so as to confer a right wholly free from any restraint. 98 ‘Public interest’
means a subject matter in which the rights of the public or section of the public is interested, a
concern which is advantageous to people as a whole. 99 ‘Interest of general public’ is a comprehensive

87
P. Janardhan v. Union of India , A.I.R. 171 (Mysore 1970); State v. Nanga and Ors., A.I.R. 25 (Raj. 1951); Madhvan
Pillai v. State of Kerala, A.I.R. 214 (Ker. 1966); Anand Prakash v. Asst. Registrar, A.I.R. 22 (All. 1968).
88
Bharat Sevashram Sangh and Ors. v. State of Gujarat and Ors., 4 S.C.C. 51 (1986).
89
United States v. Butler, 297 US 1 (1936).
90
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1 Suppl. S.C.C. 600 (1991).
91
The State of Gujarat and Ors. v. Shri Ambica Mills Ltd., Ahmedabad and Ors. , 4 S.C.C. 656 (1974).
92
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2017).
93
State of Kerala v. Peoples Union for Civil Liberties, C.D.J. 831 (S.C. 2014).
94
Indian Const. art. 19, cl. 5.
95
Collector of Customs v. SampathuChettty, A.I.R. 316 (S.C. 1963)
96
Harakchand v. UOI, A.I.R. 1453 (S.C. 1970); Chintamani Rao v. State of M.P., A.I.R. 118 (S.C. 1951).
97
Chandrakant KalyandasKakodkar v. State of Maharashtra, A.I.R. 1970 S.C. 1390 (S.C. 1970).
98
Ramlila Maidan Incident v. Home Secretary,S.C.C. 1 (2012).
99
T.M.A. Pai Foundation v. State of Karnataka , 8 S.C.C. 481 (2002); Virendra v. State of Punjab, A.I.R. 869 (S.C. 1957);
Ramji Lal Modi v. State of U.P, A.I.R. 620 (S.C. 1957).

Page 9 of 24
expression intended to achieve socio-economic justice for the people by the State. 100 Govt. policy in
the public interest would override the business interests of an individual person.101

(i) Restriction under Article 19(6) is Reasonable

[¶20] Perhaps the best exposition of what the expression "reasonable restriction" connotes was laid
down in Chintamanrao v. State of M.P.,102 as follows: The word "reasonable" implies intelligent care
and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or
excessively invades the right cannot be said to contain the quality of reasonableness and unless it
strikes a proper balance freedom guaranteed in article 19(1)(g) and social control permitted by clause
(6) of article 19, it must be held to be wanting in that quality." Arts. 19(1) (g), 19(6) and 14 of the
Constitution in Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai, 103 a
Constitution Bench of this Court, while rejecting challenge, held as under: (SCC pp.30 & 31-33,
paras 17 & 19-24) "17. Cl. (6) of Art. 19 protects a law which imposes ininterest of general public
reasonable restrictions on theexercise of the right conferred by sub-cl. (g) of cl. (1) ofArt. 19. What
the court has to do is to consider whether restrictions imposed are reasonable in interest of general
public.

[¶21] In Cellular Operators Association of India and Ors. v. Telecom Regulatory Authority of India
and Ors.,104 the SC held that: A proper balance between the freedom guaranteed and the social
control permitted by Article 19(6) must be struck in all cases. We find that RERA strikes balance
between rights and obligations of promoter and allottees.In Ajoy Kumar Banerjee and Ors. v. Union
of India and Ors.,105 this Court, inter-alia, held, while dealing with the challenge to a scheme, as
amended by employees of Insurance Companies, on the grounds that it violated the fundamental
rights of Article 14, 19 (1)(g) and 31. This Court held: Whether the same results or better results
could have been achieved and better basis of differentiation evolved is within domain of legislature
and must be left to the wisdom of legislature. Applying the test of Shayara Bano v. Union of India,106
it cannot be said that a square peg has been forcibly fixed into a round hole so as to render Section
5(8)(f) manifestly arbitrary i.e., excessive, disproportionate or without adequate determining
principle. For the same reason, it cannot be said that Article 19(1)(g) has been infracted and not
100
Kharak Singh v. The State of U. P. & Others , A.I.R. 1295 (S.C. 1963); Bachan Singh v. State of Punjab, A.I.R. 898
(S.C. 1980); Waman Rao v. Union of India, 2 S.C.C. 362 (1981); Court on its own motion v. Union of India, 12 S.C.C
307 (2012); Sneha Mandal Co-Operative v. Union of India, A.I.R. 121 (Bom. 2000).
101
State of Orissa v. Radheyshyam Meher, A.I.R. 855 (S.C. 1995).
102
Chintamanrao v. State of M.P., S.C.R. 759 (1950).
103
Municipal Corpn. of the City of Ahmedabad v. Jan Mohammed Usmanbhai, 3 S.C.C. 20 (1986).
104
Cellular Operators Association of India and Ors. v. TRAI and Ors., 5 S.C.C 220 (2001).
105
Ajoy Kumar Banerjee and Ors. v. Union of India and Ors., 3 S.C.C. 127 (1984).
106
Shayara Bano v. Union of India, 9 S.C.C. 1 (2017).

Page 10 of 24
saved by Article 19(6) as Amendment Act is made in public interest, and it cannot be said to be an
unreasonable restriction on the Petitioner's fundamental right Under Article 19(1)(g). There is no
infraction of Article 300-A as no person is deprived of its property without authority of a
constitutionally valid law.”

(E) It is in consonance with Article 21 of the Constitution

[¶22] The Court has implied a whole bundle of human rights out of Article 21 by interpreting it
along with the DPSP,107 and international charters on Human Rights.108 Right to life includes right to
dignified life109, right to healthy life110, right to livelihood111, right to food, water and decent
environment,112 shelter,113 right to social security and protection of family114etc. State can regulate
exercise of fundamental rights to save public from substantive evil.115 If law protects greater social
interests, then such law will wholesome and beneficent. 116 If economic situation demands
government discretion to adopt a different policy or alter its policy to serve public interest, such
policy must be free from arbitrariness, irrationality, bias and malice.117

(i) Right to Life enshrined under Art. 21 is not absolute

[¶23] No right in Part III of the Constitution is absolute, 118 and reasonable restrictions can be
placed.119 The Supreme Court was of the view that though the right to personal liberty has been read
into article 21, it cannot be treated as an absolute right.120 Anyone can be deprived of his right to life
and liberty by a procedure established by law provided it is fair and reasonable. 121 In the case of

107
Minerva Mills Limited v. Union of India, 2 S.C.C. 59 (1980).
108
Peoples' Union of Civil Liberties v. Union of India, A.I.R. 1997 S.C. 568 (S.C. 1997).
109
Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978); Francis Coralie v. Administrator, Union Territory of Delhi,
1 S.C.C. 608 (1981).
110
State of Punjab v. M.S. Chawla, A.I.R. 1225 (S.C. 1997); Vincent v. Union of India, A.I.R. 990 (S.C. 1987).
111
Board of Trustees of the Port of Bombay v. Dilip kumarRaghavendranathNandkarni , A.I.R. 109 (S.C. 1983); Olga
Tellis v. Bombay Municipal Corporation, A.I.R. 180 (S.C. 1986).
112
Chameli Singh v. State of Uttar Pradesh, 2 S.C.C. 549 (1996).
113
Shantisar Builders v. Narayan KhimlalTotame, A.I.R. 630 (S.C. 1990).
114
Calcutta Electricity Supply Corporation. Ltd. v. Subhash Chandra Bose, 1 L.L.N. 353 (1992).
115
Chebrolu Leela Prasad Rao and Ors v. State of A.P and Ors., A.I.R. 384 (S.C. 2020).
116
AK Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950); Indrajit Barua v. The State of Assam and Ors., A.I.R. 513 (Del.
1983).
117
Shimnit Utsch India Pvt Ltd. and Anr. v. West Bengal Transport Infrastructure Development Corporation Ltd. and
Ors., 6 S.C.C. 303 (2010); Essar Steel Ltd. v. Union of India and Ors., 11 S.C.C. 1 (2016).
118
Justice K. S. Puttuswamy and Ors. v. Union of India and Ors., 10 S.C.C. 1 (2017).
119
Kuttisankaran Nair v. State of Kerala, A.I.R. 161 (Ker. 1965).
120
Sarda v. Dharmpal, A.I.R. 3450 (S.C. 2003)
121
Maneka Gandhi v. Union of India, A.I.R. 597 (S.C. 1978); See also, IssacIsangha Musumba v. State of Maharashtra,
15 S.C.C. 357 (2014); N.H.R.C. v. State of Arunachal Pradesh, A.I.R. 1234 (S.C. 1996).

Page 11 of 24
Louis De Raedt v. Union of India, the court held that the fundamental rights to life, liberty, dignity
are available to non-citizens of India.122

(ii) It qualifies test of substantive due process and procedure established by law

[¶24] Article 21 provides that the right to life and liberty is subject to procedure prescribed by law. 123
The Constitution is a living organ,124 and so is the law of society. 125 Human societies keep changing
and their needs emerge.126The requirement is it should not be arbitrary. 127 The requirement of
substantive due process read into Constitution through a combined reading of Art. 14, 21 and 19 and
as test required to be satisfied while judging constitutionality of a statute. 128 No uniform test can be
culled out to classify acts as “carnal intercourse against the order of nature” 129 and yet a reasonable,
just and fair procedure has been established.

(F) It is in consonance with Article 300-A

[¶25] In the case of K. T. Plantation Private Limited and Anr. vs. State of Karnataka,130 in para 120,
the Supreme Court observed thus: - “120. Shri Andhyarujina, learned senior counsel submitted that
Art.300A and the statute framed should satisfy the twin principles of public purpose and adequate
compensation. As mandated by Article 300A, a person can be deprived of his property but in a just,
fair and reasonable manner.

[¶26] The facts as they exist on the date of the action" must be held in the context in which they were
made.131 The 'Pioneer Judgment' in Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of
India and Ors.,132 the Court held that the amendment by which the explanation was inserted in
Section 5(8) was clarificatory in nature and allottees/home buyers were included in the main
provision, i.e., Section 5(8)(f) from the inception of the Code and the amending Act did not infringe
Articles 14, 19(1)(g) read with Article 19(6) or 300A of the Constitution of India. The Hon’ble
Supreme Court upheld the 2018 Amendment, which granted status of "Financial Creditors" to the
homebuyers and gave them the right to be represented in the committee of creditors by authorized

122
Louis De Raedt v. Union of India, A.I.R. 1886 (S.C. 1991).
123
A.K. Gopalan v. State of Madras, A.I.R. 27 (S.C. 1950).
124
Union of India v. Naveen Jindal, 2 S.C.C. 510 (2004).
125
Sanjeev Kapoor v. Chandana Kapoor and Others, A.I.R. 1064 (S.C. 2020).
126
Kesavananda Bharati v. State of Kerala, 4 S.C.C. 225 (1973).
127
Soma Chakravorthy v. C.B.I., 5 S.C.C. 403, 411 (2007).
128
Suresh Kumar Koushal v. Naz Foundation, 1 S.C.C. 1 (2014).
129
Mihir alias Bhikari Charan Sahu v. State, Cri LJ 488 (2005).
130
K. T. Plantation Private Limited and Anr. vs. State of Karnataka, 9 S.C.C. 146 (2011).
131
Rameshwar and Ors. v. Jot Ram and Anr., 1 S.C.C. 194 (1976).
132
Pioneer Urban Land and Infrastructure Ltd. and Anr. v. Union of India and Ors., 8 S.C.C. 416 (2019).

Page 12 of 24
representative. The 2018 Amendment was based on the Insolvency Law Committee’s Report of
March 2018 (ILC report) which highlighted how real-estate projects in India were often delayed and
that this was a sector-wide concern.133

Hence, it is humbly submitted before this Hon’ble Court that the word Allottees is in consonance
with Article 14, 19, 21 and 300-A of the Constitution of India.

3. WHETHER THE RERA AND CONSUMER PROTECTION ACT ARE IN CONFLICT?

[¶27] It is humbly contended that RERA Act, 2016 and CP Act, 2019 are not in conflict with each
other. The respondent seeks to establish that; (A) Remedies available in RERA and CP Act are
concurrent remedies, (B) Both the acts are in addition and not in derogation with each other as (i)
Allottees are consumer under the CP Act and (ii) It provides option to complainant to seek alternate
remedy and (C) RERA should be read harmoniously with CP Act.

(A) Remedies available in RERA and CP Act are concurrent remedies

[¶28] It is submitted that remedy available under CP Act is in addition to the remedies available
under other statutes and the availability of alternative remedies is not a bar to the entertaining of a
complaint filed under the Act.134 The SC comes as a boon to homebuyers / allottees of projects as it
recognises and confirms the additional remedy available to them to pursue their grievances. While
this position has been upheld consistently,present decision provides that remedies available to
homebuyers under Consumer Protection Act vis a vis the RERA.135

[¶29] As a matter of fact, any attempt to exclude the allottees from the ambit of the CP Act by
implication will make that Act vulnerable to an attack of unconstitutionality on the ground of
discrimination and there is no reason why the provisions of the CP Act should be so interpreted. 136 It
has been held that “which is that sufficient play in the joints must be given to the legislature when it
comes to economic legislation, and every experiment that the legislature bona fide undertakes
should not be interfered with by the Court.”137In arguendo, such right of an allottee is specifically
made "without prejudice to any other remedy available to him" under section 18 of the RERA.138 The
133
MINISTRY OF CORPORATE AFFAIRS, REPORT OF THE INSOLVENCY LAW COMMITTEE (March 2018) at
16.
134
National Seeds Corporation Case, 2 S.C.C. 506 (2012);FairAir Engineers (P) Ltd. v. N.K. Modi, 6 S.C.C. 385
(1996);Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha, 1 S.C.C. 305 (2004);Skypak Couriers Ltd. v. Tata
Chemicals Ltd., 5 S.C.C. 294 (2000);Trans Mediterranean Airways v. Universal Exports, 10 S.C.C. 316 (2011).
135
Forum for People's Collective Efforts and Ors. v. The State of West Bengal and Ors., 9 S.C.C. 232 (2021).
136
National Seeds Corporation Limited v. M. Madhusudhan Reddy and Anr., 2 S.C.C. 506 (2012).
137
Swiss Ribbons v. Union of India, 4 S.C.C. 17 (2019).
138
RERA Act, S. 18.

Page 13 of 24
RERA Act thus definitely provides a remedy to an allottee who wishes to withdraw from the project
or claim return on his investment.

(B) Both the acts are in addition and not in derogation with each other

[¶30] It is submitted that RERA under section 88 and CP Act under section 100 are in addition and
not in derogation of any other law, and to that effect, submissions are made that (i) allottees are
consumer under CP Act, (ii) it provides an option to complainant to seek alternate remedy.

(i) Allottees are consumer under the CP Act

[¶31] Before we consider whether the provisions of the RERA Act have made any change in the
legal position of CP Act, it is held that an allottee placed in circumstances similar to that of the
Complainants, could have initiated following proceedings before the RERA Act came into force if he
satisfied requirements of being a "consumer" under CP Act, he could have initiated proceedings
under the CP Act in addition to normal civil remedies. However, if he did not fulfil requirements of
being a "consumer", he could initiate and avail only normal civil remedies.139

[¶32] In casu, on plain reading of Section 79 of the RERA Act, an allottee would stand barred from
invoking the jurisdiction of a Civil Court. 140 However, as regards the allottees who can be called
"consumers" within the meaning of the CP Act. The proceedings before the National Commission
are although judicial proceedings, but at the same time it is not a civil court within the meaning of
the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet
it cannot be called a civil court.141 On the strength of the law so declared, Section 79 of the RERA
Act does not in any way bar the Commission or Forum under the provisions of the CP Act to
entertain any complaint so it makes clear that the remedies under RERA to allottees were intended to
be additional and not exclusive remedies.

(ii) It provides an option to complainant to seek alternate remedy.

[¶33] The objects and reasons and scheme of 1986 Act is to provide for better protection of the
interest of the consumer and for that purpose to provide for better redressal, mechanism through
which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve
purpose, quasi-judicial forums are set up at district, State and national level with wide range of
powers vested in them.These quasi-judicial forums, observing the principles of natural justice, are
139
Emaar MGF Ltd. and Anr. v. Aftab Singh, 12 S.C.C. 751 (2019).
140
RERA Act, S. 79.
141
Malay Kumar Ganguli v. Dr. Sukumar Mukherjee , 9 S.C.C. 221 (2009);Bharat Bank Ltd. v. Employees,S.C.R. 459
(1950); Nahar Industrial Enterprises Ltd. v. Hong Kong & Shanghai Banking Corp., 6 S.C.C. 635 (2009).

Page 14 of 24
empowered to give relief of a specific nature and to award, wherever appropriate, compensation to
the consumers and to impose penalties for noncompliance with their orders.142

[¶34] As per Section 3 of Act provisions shall be in addition to and not in derogation of any other
provisions of any other law for time being in force. Scheme and purpose of Act sought to protect
interest of consumers better, provisions are to be interpreted broadly, positively and purposefully in
context of present case to give meaning to extended jurisdiction, particularly when Section 3 seeks to
provide remedy under the Act in addition to other remedies provided under other Acts unless there is
clear bar.143In Pioneer Urban Land and Infrastructure Limited vs. Union of India 144, the bench has
said that RERA is not in derogation to any statute. Because of the presence of a Section like Section
88 of RERA contained in the Recovery Act, which makes it clear that the Act is meant to be in
addition to and not in derogation of other statutes.145

(C) The act RERA should be read harmoniously with the CP Act.

[¶35] Section 100 of CP Act is enacted with intent to secure remedies under 2019 Act dealing with
146
protection of interests of Consumers, even after RERA Act was brought into force. It is duty of
Judicial Department if two laws conflict, Courts must decide on operation of each. 147RERA is to be
read harmoniously with the Code remedies that are given to allottees of are therefore concurrent
remedies, such allottees of being in a position to avail of remedies under the CP Act, 1986, RERA as
well as the triggering of the Insolvency and Bankruptcy Code.148

[¶36] The intention of the Legislature must be found by reading the statute as a whole. 149Every
clause of a statute should be construed with reference to the context and other clauses of the Act, so
as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating
to the subject-matter”.150

[¶37] Also, proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated
proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings
under CP Act with permission of the Forum or Commission and file an appropriate application
before adjudicating officer under the RERA Act.
142
Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Ors. , 1 S.C.C. 305 (2004).
143
Ireo Grace RealtechPvt. Ltd. v. Abhishek Khanna and Ors., S.C.C. 14 (2021).
144
Pioneer Urban Land and Infrastructure Limited v. Union of India, 8 S.C.C. 416 (2019).
145
KSL & Industries Case, B.C. 500 (2005).
146
Imperia Structures Ltd. v. Anil Patni and Ors., S.C.C. 3590(2020).
147
Marbury v. Madison, 2 L Ed 60: 5 US(1) Crunch 137 (1803).
148
Pioneer Urban Land and Infrastructure Limited and Anr. v. Union of India and Anr., 8 S.C.C. 416 (2019).
149
Philips India Ltd. v. Labour Court, 3 S.C.C. 103 (1985).
150
Canada Sugar Refining Co. v. R., A.C. 735 (1898).

Page 15 of 24
[¶38] The proviso thus gives a right or option to concerned complainant but does not statutorily force
him to withdraw such complaint nor do the provisions of the RERA Act create any mechanism for
transfer of such pending proceedings to authorities under RERA Act.151In Ajay Nagpal vs. Today
Homes & Infrastructure Pvt Ltd"152 National Consumer Disputes Redressal Commission held that
RERA Act does not bar filing of complaint under CP Act 1986 against a builder/developer.

[¶39]It is necessary that legislature should be able to cure inadvertent defects in statutes or their
administration by making what has been aptly called 'small repairs'. 153Hence, the interplay of the
Consumer Protection Act, the provisions of the Real Estate Regulation Act, the balancing of the
interests of the allottees in the sense of the optimal securing of the stake of the allottees in the
continuance of the real estate project itself would only strengthen the classification further in regard
to allottees.

Hence, it is submitted that the Remedies available in RERA and CP Act are concurrent remedies and
are in addition and not in derogation with each other so, it must be declared that they are not in
conflict with each other.

4.WHETHER THE WORD ALLOTTEES IS ARBITRARY WHICH IS MADE IN RERA?

[¶40] It is humbly contended that the word ‘allottees’ enshrined under RERA is not arbitrary. The
Respondent seeks to establish that; (A) Under Inclusiveness and Over Inclusiveness, (B) It is in
accordance with Intention of Legislature and (C) Classification is Justifiable as (i) There is an
intelligible differentia in the classification, (ii) There is a reasonable nexus to the object, (iii) State
needs to act in accordance to social need of hour as it fulfils doctrine of necessity and (iv)
Classification is not Disproportionate.

(A) Under Inclusiveness and Over Inclusiveness

[¶41] Definition of 'allottee' suffers from over inclusiveness and under inclusiveness needs to be
considered.154 Under inclusiveness and over inclusiveness are aspects of the guarantee Under Article
14. Unequals must not be treated equally.155 In State of Gujarat and Anr. v. Shree Ambica Mills
Ltd.,156 this Court has laid down certain principles relating to under inclusive and over inclusive

151
Imperia Structures Ltd. v. Anil Patni and Ors., S.C.C. 3590 (2020).
152
Ajay Nagpal Vs. Today Homes & Infrastructure Pvt Ltd
153
Vol. 73, Harvard Law Review, p. 692.
154
Mudassar Builders and Developers v. Union of India and Ors., 2 S.C.C. 232 (2017).
155
Vijay Lakshmi vs Punjab University and Others, 1 S.C.C. 817 (2003).
156
State of Gujarat and Anr. v. Shree Ambica Mills Ltd., 4 S.C.C. 656 (1974).

Page 16 of 24
classification. The definition of word 'allottee' 157 appears to be split up into three categories broadly,
they are-plot, apartment and buildings. Allottees can present application in section 7 158 on either of
grounds. In Competition Commission of India v. Bharti Airtel Limited and Ors.,159 All these
arguments were really made based on thepresumption that some allottees who may now want to back
out of thetransaction and get a return of their money owing to factors which maybe endemic to them,
would then be able to trigger the Code mala fide, and areading down of these provisions would,
therefore, obviate suchproblem.

[¶42] Here the word ‘whichever’ has been used. That is to say in the context of one-tenth of the
allottees, the greater the number of total numbers of allottees, the greater will be the number of one-
tenth. In other words, if the total number of allottees is less, then, one-tenth of the total number will
be less, and if in such circumstances, it is lesser than hundred, such number of allottees can make
application Under Section 7 under the impugned provisos. Therefore, in calculating the total number
of allottees in one sense is a double-edged sword as the more is the numerator, the more will be the
resultant figure required under the proviso. Additionally, this hon’ble Court in Rajahmundry Electric
Supply Corporation Ltd. v. A. Nageshwara Rao and Ors., 160 clearly stated that no application could
be made by any member, in the case of a company having a share capital unless the member has
obtained consent, in writing, of not less than one hundred in number of the members of the company
or not less than one-tenth in number of the members, whichever is less and is not violating of Art.14.

(B) It is in accordance with Intention of Legislature

[¶43] The intention of the Legislature must be found by reading the statute as a whole. 161 In State of
Bihar v. Kameshwar Singh,162 this Court held that: "52.......The legislature is the best judge of what is
good for the community, by whose suffrage it comes into existence". This rule is referred to as an
“elementary rule” by Viscount Simonds,; a “compelling rule” by Lord Somervell in the case of AG
v. HRH Prince Ernest Augustus,163 and a “settled rule” by B.K. Mukherjee, J. in the case of
Poppatlal Shah v. State of Madras,164In the case ofO.P. Singla v. Union of India,165hon’ble

157
RERA Act, S. 2(d).
158
IBC Act, S. 7.
159
Competition Commission of India v. Bharti Airtel Limited and Ors. , 2 S.C.C. 521 (2019).
160
Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao and Ors.,A.I.R. 213 (S.C. 1956).
161
Philips India Ltd. v. Labour Court, 3 S.C.C. 103 (1985); See also., Canada Sugar Refining Co. v. R, A.C. 735
(1898);Queen v. Eduljee Byramjee, 3 MIA 468 (1846);Newspapers Ltd. v. Industrial Tribunal, U.P.,A.I.R. 1957 S.C. 532
(S.C. 1957);State of W.B. v. Union of India, A.I.R. 1241 (S.C. 1963);Punjab Beverages Pvt. Ltd. v. Suresh Chand, 2
S.C.C. 144 (1978);Nathi Devi v. Radha Devi Gupta, A.I.R. 648 (S.C. 2005).
162
State of Bihar v. Kameshwar Singh, A.I.R. 252 (S.C. 1952).
163
AG v. HRH Prince Ernest Augustus,1 ALL ER 49 (1957).
164
Poppatlal Shah v. State of Madras,A.I.R. 274 (S.C. 1953).
165
O.P. Singla v. Union of India,4 S.C.C. 450 (1984).

Page 17 of 24
Chandrachud, C.J.I., as his Lordship then was, observed that: “one must have regard to the scheme of
the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or
more of them.

[¶44] An isolated consideration of a provision leads to the risk of some other interrelated provision
becoming otiose or devoid of meaning. In the case of Prakash and Ors. v. Phulavati and ors.,166 in
para 19, the Apex Court observed thus: - “19. Interpretation of a provision depends on text and
context. It is a rule now firmly established that the intention of the Legislature must be found by
reading the statute as a whole i.e., “ex visceribus actus”.167 It must compare the clause with the other
parts.168

[¶45] The doctrine of reading down or of recasting the statute can be applied in limited situations. It
is essentially used, firstly, for saving a statute from being struck down on account of its
unconstitutionality. It is an extension of the principle that when two interpretations are possible--one
rendering it constitutional and the other making it unconstitutional, the former should be preferred. 169
In the case of Collector of Customs v. NathellaSampathu Chetty, 170 this hon’ble court clearly stated
that the intent of Parliament shall not be defeated merely for the reason that it may operate a bit
harshly on a small Section of public where it may be necessary to make such provisions of achieving
the desired objectives.

[¶46] Allottees, being individual financial creditors like debenture holders and fixed deposit holders
and classified as such, show that they within the larger class of financial creditors, there being no
infraction of Article 14 on this score.171 Furthermore, in the case of Bharat Raichand Shah and Ors.
v. Runwal Constructions and Ors.172, this hon’ble court stated that the RERA has been framed in
larger public interest after a thorough study and discussion made at highest level by Standing
Committee and Select Committee, which submitted its detailed reports.

(C) Classification is justifiable

[¶47] The classification must satisfy two conditions, (i) it is founded on an intelligible differentia
which distinguishes those that are grouped together from others; and (ii) the differentia must have a

166
Prakash and Ors. v. Phulavati and ors., 1 S.C.C. 549 (2016)
167
Poppatlal Shah v. State of Madras, A.I.R. 274 (S.C. 1953).
168
State of W.B. v. Union of India, A.I.R. 1241 (S.C. 1963); Queen v. Eduljee Byramjee, 3 MIA 468 (1846); Re, Bidie
(deceased), 2 ALL ER 995 (1948).
169
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress,1 Suppl. S.C.C. 600 (1991).
170
Collector of Customs v. NathellaSampathu Chetty,3 S.C.R. 786 (1962), pp. 829-30.
171
Collector of Customs v. NathellaSampathu Chetty, A.I.R. 316 (S.C. 1962).
172
Bharat Raichand Shah and Ors. v. Runwal Constructions and Ors., S.C.C. 232 (2018)

Page 18 of 24
rational relation to object sought to be achieved. 173 If there is equality and uniformity within each
group, the law will not be condemned as discriminative, though due to some fortuitous circumstance
arising out of a peculiar situation some included in a class get an advantage over others, so long as
they are not singled out for special treatment.174

(i) There is an intelligible differentia in the classification

[¶48] Intelligible differentia encompasses whether classification is rational and is capable of being
understood175 and basis of classification for judging validity of law can be gathered from surrounding
circumstances.176 Classification should base on intelligible differentia, some real and substantial
distinction, which distinguishes persons or things grouped together in class from others left out of
it.177Equal treatment of unequal’s is not liable to struck down discriminatory unless there is
simultaneous absence of rational relation to object.178

[¶49] This Court has gone on to hold that only such allottee who has completely lost faith in
management would come Under Section 7 in hope that some other developer will take over and
complete project.179Requirement would ensure that there is no needless multiplicity and no single
allottee would be able to achieve admission and its consequences without having a certain minimum
number of compatriots on board. Even vested right can be taken away by the Legislature. 180 A
minimum threshold, authenticity and weightage to claim in a class action.181

[¶50] Amendment can be inferred to have brought in principally to cure two ills. First, all the
allottees of same project can be clubbed before-hand for efficiency in hearings before Tribunal and
resolution process. Second, the legislature intends to bar applications by individual allottees who
with the provided liberty and access to the Tribunal, could single-handedly topple down the
existence of the real estate developer maliciously, despite, the entity being a going-concern and in the
hands of good management. This would consequentially revive and also keep the real estate industry
alive to the market needs.182 It is reasonable and logical to place the threshold. The minimum

173
Re, Special Courts Bill,2 S.C.R. 476 (1979), p. 534-36.
174
Khandige Sham Bhat v. Agricultural I.T.O.,A.I.R. 591 (S.C. 1963).
175
K. R. Lakshman v. Karnataka Electricity Board , 1 S.C.C. 442 (2001); State of Kerela v. N.M. Thomas, 2 S.C.C. 310
(1976).
176
Hanif Quareshi v. State of Bihar, A.I.R. 731 (S.C. 1958).
177
Laxmi Khandsari v. State of Uttar Pradesh, A.I.R. 873 (S.C. 1981).
178
Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., 1 S.C.C. 642 (1996).
179
Manish Kumar vs. Union of India (UOI) and Ors., 2 S.C.C. 398 (2018).
180
GarikapattiVeeraya v. N. Subbiah Choudhary, S.C.R. 488 (1957).
181
J.P. Srivastava & Sons (P) Ltd. and Ors. v. Gwalior Sugar Co. Ltd. and Ors ., 1 S.C.C. 172 (2005); Anjum Hussain and
Ors. v. Intellicity Business Park Private Limited and Ors., 6 S.C.C. 519 (2019).
182
Pioneer Urban Land and Infrastructure Ltd. v. Union of India, 8 S.C.C. 416 (2019), para 56.

Page 19 of 24
threshold is a minimum requirement. The threshold is kept low and reasonable. This Court has
upheld sub-classification provided there is a rational basis.183

(ii) There is a reasonable nexus to the object

[¶51] In Budhan Choudhry and Ors. v. The State of Bihar184, it has been held by a 7-judge bench of
Hon’ble Court that Art. 14 prohibits class legislation butpermits reasonable classification. The same
was held in Kumari Chitra Ghosh v. Union of India185where 5 judge benches of this Court have held
that: “Para 9. ….. If the sources are properly classified whether on territorial, geographical or other
reasonable basis it is not for courts to interfere with manner and method of making classification.”
Classification must not be arbitrary but scientific, and rest upon real and substantial distinction 186
between those covered and those left out. 187 The reasonableness of the restrictions is tested on basis
that they must not be arbitrary or of an excessive nature so as to go beyond requirement of interest of
general public.188 Classification is promotive of equality if its object is to bring those who share a
common characteristic under a class for differential treatment for sufficient and justifiable reasons. 189
In the case of Chitra Sharma and Ors. v. Union of India and Ors., 190 it was observed that section 12
of CP Act also captures and embodies principle of Order 1 Rule 8 ensures the protection of class
interest and also protect class interest without putting stiff barriers as threshold limits.

(iii) State needs to act in accordance to social need of hour as it fulfils doctrine of necessity

[¶52] Court should understand need of society, which legislature tries to satisfy, and the judicial
review of such legislation should be dynamic, pragmatic and elastic, examining whether it satisfies
need prevailing in society.191Doctrine of necessity is founded on principle: “necessitas non

183
Indra Sawhney and Ors. v. Union of India and Ors. , 3 Supp. S.C.C. 217 (1992); Lord Krishna Sugar Mills Limited and
Anr. v. Union of India and Anr., 1 S.C.R. 39 (1960); State of Kerala and Anr. v. N.M. Thomas and Ors., 2 S.C.C. 310
(1976); State of West Bengal and Anr. v. Rash Behari Sarkar and Anr., 1 S.C.C. 479 (1993); State of Kerala v. Aravind
Ramakant Modawdakar and Ors., 7 S.C.C. 400 (1999).
184
Budhan Choudhry and Ors. v. The State of Bihar , A.I.R. 191 (S.C. 1955); See also, Binoy Viswam vs. Union of India
(UOI) and Ors., A.I.R. 2967 (S.C. 2017); D.S. Nakara v. Union of India, 1 S.C.C. 305 (1983).
185
Kumari Chitra Ghosh v. Union of India, 2 S.C.C. 228 (1969).
186
Anuj Garg v. Hotel Association of India, 3 S.C.C. 1 (2008).
187
Kartar Singh v. State of Punjab, 3 S.C.C. 569 (1994).
188
M. R. F. Limited v. Inspector Kerala Govt. and Ors., 8 S.C.C. 227 (1998).
189
All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway , 2 S.C.R.
311 (1960); S.G. Jaisinghani v. Union of India and State of J & K. v. Triloki Nath Khosa, 1 S.C.R. 771 (1974);Indira
Sawney v. Union of India,3 Supp S.C.C. 217 (1992)
190
Chitra Sharma and Ors. v. UOI and Ors ., 18 S.C.C. 575 (2018); See also., Ram Krishna Dalmia v. Justice S.R.
Tendolkar, A.I.R. 1958 S.C. 538;Budhan Chodhry v. State of Bihar, A.I.R. 191 (S.C. 1955).
191
Papnasam Labour Union v. Madura Coats Ltd., A.I.R. 2200 (S.C. 1995).

Page 20 of 24
habetlegem” necessity knows no law which are found to be constitutional even if such action would
normally be deemed in contravention to established norms or conventions.192

(iv) Classification is not Disproportionate

[¶53]The classical definition of proportionality has been given by Lord Diplock when his Lordship
rather ponderously stated “you must not use a steam hammer to crack a nut if a nut cracker would
do”.193 M. Jaganatha Rao J. rightly points out, the court may still look into whether the choice made,
infringes the rights excessively or not.194 Traditionally the Indian Supreme Court has applied a single
standard of review – reasonableness – to examine violations of Article 14. A similar attempt towards
mere semantic change can be seen in Om Kumar v. Union of India.195 Thus proportionality broadly
requires that government action must be no more intrusive than is necessary to meet an important
public purpose.196

Hence, it is humbly submitted that word ‘allottees’ enshrined under RERA is not arbitrary.

5. WHETHER KAZA PORYO IS LIABLE TO REFUND THE AMOUNT INVESTED BY

MR. ASHOK?

[¶54]It is humbly contended that Kaza Poryo is liable to refund the amount invested by Mr. Ashok.
The respondent seeks to establish that; (A) Mr. Ashok is duly authorised to take the refund under the
enumerated provision of RERA Act, (B) The promoter is obliged to refund the principal amount after
deducting the interest, (C) There was vitiation of contract.

(A) Mr. Ashok is duly authorised to take the refund under the enumerated provision of RERA
Act

[¶55]Real Estate (Regulation and Development) Act clearly empowers a homebuyer to take legal
action or seek redressal in scenario of the builder/promoter/agent has presented false information to
the regulator or contravenes any provisions of the Act or the builder/promoter fails to deliver the
project within the scheduled timeline.197RERA also specifies that if a buyer wishes to cancel the
booking, the developer will have to refund the amount, along with interest, within 90 days. This
provision safeguards buyers from inordinate delays in refunding process.

192
Ambica Construction v. Union of India, 13 S.C.C. 475 (2007).
193
R v. Goldsmith, 1 WLR 151, 155 (1983).
194
Mardia Chemicals Ltd. v. Union of India, 4 S.C.C. 311,354 (2004).
195
Om Kumar v. Union of India, 2 S.C.C. 386 (2001).
196
Coimbatore District Central Coop. Bank v. Employees Assn, 4 S.C.C. 669 (2007).
197
Suresh v. Swamy v. L&T Limited, 4 A.D.J. 406 (2018).

Page 21 of 24
[¶56]Certain provision such as section 19(4)of the act explicitly states that “The allottee shall be
entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and
compensation in the manner as provided under this Act, from the promoter, if the promoter fails to
comply or is unable to give possession of the apartment, plot or building, as the case may be, in
accordance with the terms of agreement for sale or due to discontinuance of his business as a
developer on account of suspension or revocation of his registration under the provisions of this Act
or the rules or regulations made there under.”Additionally, section 7 of the act talks about the
revocation of registration by the authority particularly on the ground of false representation or
fraudulent practice by the promoter. In the instant case promoter demanded higher amount for the
apartment as compare to the actual one or initially agreed.198

(B) The promoter is obliged to refund the principal amount after deducting the interest

[¶57]A homebuyer may withdraw from purchase agreement for varied reasons. Provisions of the Act
thus have to be construed in favour of consumer to achieve purpose of enactment as it is social
benefit-oriented legislation. The primary duty of court while construing the provisions of such an Act
is to adopt a constructive approach subject to that it should not do violence to the language of the
provisions and is not contrary to the attempted objective of the enactment. 199Earnest money is part of
the purchase price when the transaction goes forward; it is forfeited when the transaction falls
through, by reason of the fault or failure of the vendee.200

[¶58]It is forfeited when the transaction falls through by reason of the default or failure of the
purchaser.201 Furthermore, as per section 13(1) of RERA Act which states that “A promoter shall not
accept a sum more than ten per cent of the cost of the apartment, plot, or building as the case may be,
as an advance payment or an application fee, from a person without first entering into a written
agreement for sale with such person and register the said agreement for sale, under any law for the
time being in force.”In Casu, in the instant case KAZA PORYO has accepted more than ten per cent
of the cost of the apartment as advance payment i.e., Rs 50,000,000 that amounts to fifty per cent of
total amount.202

(C) There was vitiation of contract

198
¶9, Moot Proposition.
199
Ireo Grace RealtechPvt. Ltd. v. Abhishek Khanna and Ors., S.C.C. 14 (2021).
200
Maula Bux v. Union of India, 2 S.C.C. 554 (1969); Kunwar Chiranjit Singh v. Har Swarup, A.I.R. 1 (P.C. 1926).
201
Vol. II, Borrows, in Words & Phrases.
202
¶8, Moot Proposition.

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[¶59]The party whose consent was so caused, if they think fit, have the option to vitiate the contract
due to the virtue of it becoming voidable.203 It is contended that the Contract has been vitiated
because important information was withheld which amounts to fraud under the ICA. 204It is submitted
that fraud is a collateral act which even vitiates most solemn proceedings of courts of justice. 205 It has
already been established that where a contract is vitiated as being contrary to public policy, the party
adversely affected by it can sue to have it declared void.206

[¶60]A contract which is entered into a result of fraud is voidable. Party so deceived has right to
revoke same and recover damages from other party. Freedom of contract is reasonable social ideal
only to extent that equality of bargaining power between contracting parties can assumed and no
injury is done to economic interest of community at large." 207 Doctrine of frustration of contract is
really aspect of law of discharge of contract by reason of supervening impossibility or illegality of
the act agreed to be done and comes Section 56 of ICA which lays down a rule of positive law and
does not leave matter to be determined according to intention of parties.208

[¶62]If the performance of a contract becomes impracticable or useless having regard to the object
and purpose the parties had in view then it must be held that the performance of the contract has
become impossible. But the supervening events should take away the basis of the contract and it
should be of such a character that it strikes at the root of the contract. 209 The performance of the
contract becomes physically impossible because of the disappearance of the subject-matter. But the
principle is not confined to physical impossibilities. It extends also to cases where the performance
of the contract is physically impossible, but the object the parties had in mind has failed to
materialize.210 

[¶63]If an untoward event or change of circumstances totally upsets the very foundation upon which
the parties rested their bargain, it can very well be said that the promisor finds it impossible to do the
act which he promises to do.211 It is clear that if there is entirely unanticipated change of
circumstances question will have to be considered whether this change of circumstances has affected
performance of contract to such an extent as to make it virtually impossible or extremely difficult or
hazardous. If that be case, change of circumstances not having been brought about by fault of either
203
The Indian Contract Act, Ss. 64 and 2(j).
204
The Indian Contract Act, S. 17(2).
205
R v. Duchess of Kingston 2 smith, 1 Leach 146 (1776).
206
Assistant General Manager and Ors. vs. Radhey Shyam Pandey, 1 S.C.C. 252 (2020).
207
Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., 1 Supp S.C.C. 600 (1991).
208
Sri Ram Builders v. State of M.P. and Ors., 9 S.C.C. 211 (2014).
209
Satyabrata Ghose v. MugneeramBangur and Co., S.C.R. 310 (1954).
210
Taylor v. Caldwell, 3 B&S 826 (1863).
211
Satyabrata Ghose v. MugneeramBangur& Co, krell v. Henry, 2 K.B. 740 (C.A. 1903).

Page 23 of 24
party, courts will not enforce contract. 212 When this occurs, parties are released from their obligation
to performcontract automatically.

[¶64]If further fulfilment of the contract is brought to an abrupt stop by some irresistible and
extraneous cause for which neither party is responsible, the contract shall terminate forthwith and the
parties be discharged.213In arguendo, The allottee shall have the right to cancel/withdraw his
allotment in the project as provided in the Act: provided that where the allottee proposes to
cancel/withdraw from the project without any fault of the promoter, the promoter herein is entitled to
forfeit the booking amount paid for the allotment. Balance amount of money paid by allottee shall be
returned by promoter to allottee after such cancellation.”

Hence, it is humbly submitted that Kaza Poryo is liable to refund the amount invested by Mr. Ashok
as promoter is obliged to refund the principal amount and Ashok is duly empowered to take refund
under provision of RERA and Contract Act.

212
Pameshwari Das Mehra v. Ram Chand Om Prakash, 5 S.C.C. 417 (2014).
213
Dhruv Dev Chand v. Harmohinder Singh and Ors., 3 S.C.R. 339 (1968).

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