Delhi High Court
Sansadiya Adhikari Welfare Society … vs Utpal Kumar Tripathi & Ors on 30 July, 2025
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 23.07.2025
Judgment pronounced on: 30.07.2025
+ RERA APPEAL 5/2025, CM APPL. 43563/2025, CM APPL.
43564/2025, CM APPL. 43565/2025
SANSADIYA ADHIKARI WELFARE SOCIETY (SAWS)
THROUGH PRESIDENT .....Appellant
Through: Ms. Rekha Aggarwal, Ms.
Hiteshi Kakkar, Mr. Amrit
Singh K. and Mr. Aayush,
Advocates.
versus
UTPAL KUMAR TRIPATHI & ORS . .....Respondents
Through: Mr. Kunwar Chandresh, Ms.
Poonam Prasad, Mr. Munis
Nasir and Mr. Divyansh Singh,
Advocates.
CORAM:
HON'BLE MR. JUSTICE ANIL KSHETARPAL
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR
JUDGMENT
ANIL KSHETARPAL, J.
1. Through the present Appeal filed under Section 58 of the Real
Estate (Regulation & Development) Act, 2016 [hereinafter referred to
as “the Act”], the Appellant assails the correctness of order passed on
07.02.2025 by the Ld. Real Estate Regulatory Authority Appellate
Tribunal (RERA Appellate Tribunal), NCT of Delhi and UT of
Chandigarh, New Delhi whereby an Appeal on account of failure to
pre-deposit the decretal amount, as ordered by the Real Estate
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Regulatory Authority as mandated under Section 43(5) of the Act, was
dismissed.
2. The Constitutional validity of Section 43(5) of the Act has been
upheld by the Hon‟ble Supreme Court vide judgment dated
11.11.2021 passed in Civil Appeal Nos. 6745-6749 of 2021 captioned
as M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP
and Ors etc.
3. Learned counsel representing the Appellant while submitting
that the Appellant is not a „promoter‟ as defined in the Act, has made
the following submissions:
i. Appellant is a welfare society registered under the
Societies Registration Act, 1860; andii. Appellant has neither carved out the plots nor got the
buildings constructed.
4. Before analysing the arguments, it is necessary to note brief and
relevant facts. As per the case of the Appellant, the Society was
established to provide cost effective housing for Lok Sabha Secretariat
officials.
5. In 2013, the Respondent Nos. 1, 2 and 3 became members of
the Society by paying a fee of Rs. 5,000/- (Rupees Five Thousand
only). Subsequently, each of the Respondent paid Rs.12,40,250/-
(Rupees Twelve Lakh Forty Thousand Two Hundred and Fifty Only)
which was utilized by the Society to purchase land admeasuring 85
Bigha 3 Biswa in village Khera Kalan, located in P-1 Zone.
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6. Thereafter, on account of reduction of Floor Area Ratio (FAR),
under revised Land Pooling Policy, from 400 to 200 by the Delhi
Development Authority (DDA), the Society vide Circular No.
SAWS/2/2018 dated 16.11.2018 requested its members to provide
their inputs.
7. On 31.01.2019 vide Circular No. SAWS/1/2019, the Society
offered its members the option to withdraw.
8. Subsequently, the Society on 15.12.2021 expressed its interest
in participating in DDA‟s Land Pooling Policy, 2018 by submitting
details on the official portal, however, no progress was evident as the
houses/ apartments were never constructed.
9. The Respondents who are members of the Society filed a
complaint with Real Estate Regulatory Authority (RERA) seeking a
refund with 18% interest which was allowed on 21.11.2023 directing
the Society to refund Respondents‟ contribution with interest at the
rate of 10.75% p.a. (MCLR+2%) from the date of payment of each
sum until the date of its actual return.
10. In accordance with Memorandum of Association of the Society,
the aims and objective of the Society is to acquire land for
development and construction of residential houses/ flats for its
members at cost price which shall be shared by the members of the
Society.
11. The expression „promoter‟ has been defined in Section 2(zk) of
the Act, the same has been reproduced hereunder:
“promoter means–
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(i) a person who constructs or causes to be constructed an
independent building or a building consisting of apartments, or
converts an existing building or a part thereof into apartments, for the
purpose of selling all or some of the apartments to other persons and
includes his assignees; or
(ii) a person who develops land into a project, whether or not the
person also constructs structures on any of the plots, for the purpose
of selling to other persons all or some of the plots in the said project,
whether with or without structures thereon; or
(iii) any development authority or any other public body in respect of
allottees of–
(a) buildings or apartments, as the case may be,
constructed by such authority or body on lands owned by
them or placed at their disposal by the Government; or
(b) plots owned by such authority or body or placed at
their disposal by the Government, for the purpose of
selling all or some of the apartments or plots; or
(iv) an apex State level co-operative housing finance society and a
primary co-operative housing society which constructs apartments or
buildings for its Members or in respect of the allottees of such
apartments or buildings; or
(v) any other person who acts himself as a builder, coloniser,
contractor, developer, estate developer or by any other name or
claims to be acting as the holder of a power of attorney from the
owner of the land on which the building or apartment is constructed
or plot is developed for sale; or
(vi) such other person who constructs any building or apartment for
sale to the general public.
Explanation.–For the purposes of this clause, where the person who
constructs or converts a building into apartments or develops a plot
for sale and the person who sells apartments or plots are different
person, both of them shall be deemed to be the promoters and shall be
jointly liable as such for the functions and responsibilities specified,
under this Act or the rules and regulations made thereunder;”
12. It is evident that the definition of the expression „promoter‟ is
expansive and wide particularly, when as many as six different clauses
independently/separately include the various categories of person
including Companies, Cooperative Housing Society and such
authorities of the state.
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13. As per Section 2(zk)(i) of the Act, any person who constructs or
causes to be constructed an independent building or a building
consisting of apartments shall fall within the definition of the word
„promoter‟.
14. Section 2(zk)(iv) provides that Cooperative Housing Societies
which constructs buildings or apartments for its members also fall
within the definition of „promoter‟. However, the Appellant claims
that being a welfare society, it does not fall in the definition of
„promoter‟.
15. This Court is afraid that there is no substance in the first
submission because Cooperative Housing Societies which constructs
apartments/buildings for its members fall within definition of the word
„promoter‟.
16. In sub-clauses (i), (ii) and (v) of Section 2 (zk) of the Act, the
term „person‟ is added in a generic and inclusive context. The use of
word „person‟ is not limited to natural persons only, rather it goes to
the extent of including artificial or juristic persons as also envisaged
under Section 2 (zg) of the Act. The definition of the word „person‟ as
provided in Section 2 (zg) of the Act, is inclusive and not restrictive in
nature because it starts with the word includes which reads as under:-
“Person” includes,–
(i) an individual;
(ii) a Hindu undivided family;
(iii) a company;
(iv) a firm under the Indian Partnership Act, 1932 or the Limited
Liability Partnership Act, 2008, as the case may be;
(v) a competent authority;
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(vi) an association of persons or a body of individuals whether
incorporated or not;
(vii) a co-operative society registered under any law relating to co-
operative societies;
(viii) any such other entity as the appropriate Government may, by
notification, specify in this behalf;”
17. Under Section 2 (zg)(vi) an association of person or a body of
individuals whether incorporated or not is included in the expression
„person‟. Hence, it is amply clear that the word person used under
Section 2 (zk) includes not only the category of persons which are
enlisted therein, but also an association of persons or a body of
individuals as provided under Section 2 (zg). As such while reading
the word person under the Act, it shall be kept in mind that it includes
body corporates, companies and other legal entities that are capable of
bearing rights and duties independently in accordance with the
statutory law.
18. Consequently, within the scope of definition provided under the
Act, a welfare society is an association of persons, who have joined
their hands to provide housing to its member. Hence, the Appellant
would fall in the expression „promoter‟ used in the Act.
19. Registered Society is a “body corporate” as per Section 6 of the
Societies Registration Act, 1860. This section enables the Society to
sue or be sued in the name of its officials, thereby recognising the
inference that the Society operates as a juristic person.
20. Therefore, the Society is a body corporate because only under
such circumstances, the Society will be qualified to purchase any land/
property in its name and have the authority to assign or allot such
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land/ property further to its members. Once a Co-operative Society
has been included under the Act, then the legislative intent behind
such inclusion is that if the Society is a non-profit organisation, it will
be a „promoter‟ even if the apartments are being constructed or got
constructed exclusively for its members.
21. Similarly, profit making is not the exclusive criteria for a person
to fall within the definition of „promoter‟.
22. In a case of Government Development Authority or a
Cooperative Housing Society the element of profit may in a given
case be absent, however, that would not exclude the applicability of
the provisions of the Act, particularly when the object sought to be
achieved under the Act is laudable and to regulate construction of
buildings in a timely manner while preventing the abuse of gullible
home buyers.
23. With regard to the second submission, a perusal of
Memorandum of Association of the Society and Clause 4(i) of the
“Aims and Objects” thereof, makes it evident that the Society was
established for the purpose of acquiring land for development and
construction of residential flats for its members and in furtherance of
the same, purchased land.
24. Moreover, sub-clause (i) of Section 2(zk) of the Act provides
that an expression „promoter‟ includes a person who constructs or
causes the building(s) to be constructed. Even if the Society has not
constructed or got constructed a building, still it will fall within the
definition of „promoter‟ because the objective of acquisition of land
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by the Appellant was/is to construct/provide apartments for its
members.
25. Ld. Counsel further submitted that in a connected RERA
Appeal No. 13/2024 captioned as Sansadiya Adhikari Welfare
Society Through Secretary v Mayank Srivastav, the Co-ordinate
Bench of this Court, while issuing notice, vide its Order dated
06.11.2024, has stayed the operation of the Order by the Real Estate
Appellate Tribunal and its execution thereof. This Court has
considered the submission but finds no merit therein. Undoubtedly, a
notice of motion has been issued in the connected Appeal filed by the
Appellant. However, the interim order passed by the Co-ordinate
Bench of this Court does not hold any precedential value, particularly
since this Bench has opted to finally decide the matter, more precisely,
after a thorough examination of the subject issue.
26. In view of the foregoing discussions, the Appeal is dismissed in
limine.
ANIL KSHETARPAL, J.
HARISHVAIDYANATHANSHANKAR, J.
JULY 30, 2025/sg/hr
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