Gauhati High Court
Pinky Bhansali vs Dinesh Sharma on 30 July, 2025
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GAHC010104272025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RERA APPEAL/8/2025
PINKY BHANSALI
W/O SHRI MUKESH BHANSALI, R/O FLAT NO. 1-C,, FIRST FLOOR, SHARMA
COMPLEX, NEAR NAMGHAR PATH, PROFESSOR COLONY ROAD,
SANTIPUR, GUWAHATI, IN THE DIST. OF KAMRUP (M), ASSAM, PIN 781009
VERSUS
DINESH SHARMA
R/O SHARMA COMPLEX, NEAR NAMGHAR PATH, PROFESSOR COLONY
ROAD, SANTIPUR, GUWAHATI, IN THE DIST. OF KAMRUP(M), ASSAM, PIN
781009
Advocate for the Petitioner : MR. S BIKASH,
Advocate for the Respondent : ,
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
Date : 30.07.2025
Heard Mr. S. Bikash, learned counsel for the appellant.
2. This appeal, under Section 58 of the Real Estate (Regulation and
Development) Act, 2016, is directed against the judgment and order dated
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18.03.2025, passed by the learned Chairperson, Assam Real Estate Appellate
Tribunal (REAT) at Guwahati, in REAT/ASSAM/APPEAL No. 25 of 2024.
3. It is to be noted here that vide impugned judgment and order dated
18.03.2025, the learned Appellate Tribunal had partly allowed the appeal and
modified the order of Real Estate Regulatory Authority (RERA), Assam, dated
16.08.2024, and upheld the compensation under the first head for Rs.
1,50,000/- as well as the imposition of litigation cost of Rs. 30,000/-, and set
aside the directions of the RERA to make payment under the second and third
head i.e. for Rs. 1,00,000/- and Rs. 1,47,200/-, respectively.
4. Perused the memo of appeal and the grounds mentioned therein, and also
perused the impugned judgment and order dated 18.03.2025, and also the
order dated 16.08.2024, passed by the learned REAT and RERA, respectively.
5. This appeal is admitted on the following substantial questions of law:
1. Whether a Real Estate Appellate Tribunal, in
interpreting Section 72 of the Real Estate (Regulation and
Development) Act, 2016, is justified in not considering
unauthorized income or profit potentially derived by a
Promoter from illegally constructed structures (such as
living rooms) as constituting 'disproportionate gain' or
'unfair advantage,' particularly when such construction has
deprived an Allottee and breached the Promoter's contractual
obligations?
2. Whether an amount directed by the Adjudicating Officer
under the Real Estate (Regulation and Development) Act,
2016, to a Promoter for an Allottee, specifically labeled as
'amount for expenditure incurred for setting up a new water
system' due to the failure of the builder to provide a
functional water system as per the contract, ought to be
considered by the Real Estate Appellate Tribunal as
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'compensation' in place of a 'refund', particularly in light
of Section 72(b) of the Act, which provides that the
Adjudicating Officer shall, while determining the quantum of
compensation to be paid under this Act, have due regard to
the amount of loss caused to an allottee as a result of the
default of the Promoter?
4. Whether a narrow interpretation of "the amount of loss
caused as a result of the default" under Section 72(b) of
the RERA Act, which excludes necessary expenditure incurred
by the allottee to rectify the Promoter's failure to provide
essential amenities, such as, functional water-system, is
legally sustainable?
5. Whether the concept of "double benefit" is correctly
applied when setting aside compensation for disproportionate
gain or unfair advantage, without appreciating that such
compensation addresses a distinct legal wrong (unjust
enrichment) separate from compensation for mental agony and
litigation costs?
6. Let notice be issued to the respondent, returnable in four weeks.
7. Steps be taken upon the respondent, by way of registered post with A/D
as well as usual process within a week from today.
8. Registry shall call for the records from the learned Appellate Tribunal as
well as the RERA, Assam.
9. List the matter after four weeks.
JUDGE
Comparing Assistant
