Past RERA Orders on Virtual Spaces Are Still Enforceable — Here Is Why Promoters Cannot Escape Them

Devesh Saxena
May 31
9 min read

The UP Real Estate Appellate Tribunal (UPREAT) has recently held that complaints relating to virtual, unlockable, and non-demarcated spaces are not maintainable before UP RERA. Promoters have been swift to weaponise these rulings — not just to defend future complaints, but to attack and derail the execution of RERA orders that were passed years ago and never appealed. This article examines whether that strategy has any legal foundation, and concludes that it does not.

The UPREAT Rulings on Virtual Spaces: What They Actually Say

Over 2024–2025, the UP Real Estate Appellate Tribunal decided a series of appeals involving investment schemes built around "virtual," "unlockable," or "non-demarcated" office spaces in commercial projects — typically in the Greater Noida and Noida regions. These were arrangements where promoters collected money from investors under Memoranda of Understanding or application forms that expressly withheld physical, demarcated possession, characterising the space as "virtual" or "undivided."

In Anchal Garg v. WTC Noida Development Company Pvt. Ltd. (UPREAT Appeal No. 762/2022, decided 21.03.2025) and Bhim Kaur v. Imperia Structures Limited (UPREAT Appeal No. 697/2022), the Tribunal held that such arrangements fall outside the definitional and regulatory framework of the Real Estate (Regulation and Development) Act, 2016. The reasoning, broadly, was that the RERA Act's entire scheme — from the agreement for sale, to delivery of possession, to the rights of allottees under Sections 11, 13, 17, 18, and 19 — contemplates physical, demarcated units. A transaction that contractually excludes physical possession, it was held, does not engage the protective machinery of RERA.

These rulings are significant for pending and future complaints. But promoters have gone further — they are now filing applications in ongoing execution proceedings, armed with these Tribunal rulings, contending that prior RERA orders in virtual space complaints are nullities and therefore cannot be executed. This extrapolation is legally unsound, and this article explains why.

The Distinction That Promoters Are Ignoring: Pending Complaints vs. Final Orders

The single most important principle that promoters are eliding is the distinction between a live complaint that has not yet been decided and a final order that was passed, not appealed, and has attained finality.

The UPREAT rulings in Anchal Garg and Bhim Kaur operated in the appellate context — they reviewed RERA orders that were challenged within the statutory period under Section 44 of the RERA Act. An allottee filed a complaint, a RERA order was passed, and the promoter (or allottee) appealed within 60 days. The Tribunal then had the authority and jurisdiction to revisit the matter.

The situation is categorically different where:

A complaint was filed and heard by UP RERA;
The promoter participated fully in the proceedings on the merits, filed a detailed written reply, and never raised any jurisdictional objection;
UP RERA passed a final order directing refund with interest, or directing possession;
No appeal was filed under Section 44 of the RERA Act within the prescribed 60-day period;
The order accordingly attained complete finality between the parties; and
Years later — at the execution stage — the promoter files a dismissal application relying on the subsequent UPREAT rulings to contend that the RERA order is a nullity.

This sequence of events is precisely what is now being litigated in execution proceedings across UP RERA's benches. The law, on a principled and settled reading, does not permit the promoter's manoeuvre.

Principle I: A Final, Unappealed Order Cannot Be Reopened by a Subsequent Change in Law

The most fundamental objection to the promoter's strategy is rooted in the doctrine of finality of adjudication. Once a statutory appeal remedy is available and the prescribed period expires without an appeal being filed, the order attains finality and becomes binding on the parties as a matter of res judicata. This is not a procedural technicality — it is a substantive principle of law that protects the rights of parties who have obtained orders after prolonged litigation.

The Hon'ble High Court of Bombay, in a recent and directly apposite judgment — Marvel Landmarks Pvt. Ltd. v. State of Maharashtra and Ors. (2026:BHC-AS:16466, Writ Petition No. 12121 of 2024, decided 07.04.2026) — addressed an almost identical situation in the context of RERA. A promoter challenged a RERA refund order at the execution stage, relying on the Supreme Court's 2021 judgment in Newtech Promoters and Developers Pvt. Ltd. v. State of U.P. [(2021) 18 SCC 1] to contend that the original order was a jurisdictional nullity. The High Court dismissed the petition. It held that once a statutory appeal period expires, the order attains finality, and a subsequent judicial declaration of the law cannot be used to reopen matters that have already been conclusively settled between the parties.

The Bombay High Court also relied upon the settled position articulated by the Supreme Court in Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. [(2008) 14 SCC 171], which recognised that even where a subsequent judicial decision is retrospective in its operation — declaring the correct law as it always was — it does not disturb matters that are res judicata or where rights have been crystallised and settled in the meantime.

The application to virtual space orders is direct: a RERA order passed in 2021 or 2022 in a virtual space complaint, which was not appealed before UPREAT within 60 days, has attained finality. The UPREAT rulings of 2025 in Anchal Garg and Bhim Kaur — however significant they may be for ongoing and future matters — cannot reach back to nullify that 2022 order. The allottee's rights under that final order are crystallised.

Principle II: An Executing Forum Cannot Go Behind the Decree

The second principle operates specifically within the law of execution proceedings. It is one of the oldest and most consistently applied rules of procedural law in India: a court or tribunal executing a decree cannot go behind the decree.

The executing forum must take the order as it stands — it cannot sit as a court of appeal, revisit the correctness of the order, or entertain fresh challenges to its validity on merits. This rule is codified in the scheme of the RERA Act and has been repeatedly affirmed by courts across jurisdictions.

The related question — can a jurisdictional challenge be raised in execution even after finality? — was definitively answered by the Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. [AIR 1970 SC 1475 : (1970) 1 SCC 670]. The Court laid down the governing principle with clarity: a jurisdictional objection in execution is only maintainable where the lack of jurisdiction is apparent on the face of the record — i.e., where one need not investigate any facts to conclude that the original forum had no competence whatsoever. Where, on the other hand, determining whether the forum had jurisdiction requires investigation of facts — examination of documents, characterisation of the transaction, and interpretation of evidence — such an objection cannot be entertained in execution at all.

This principle is decisive against the promoter's strategy in virtual space execution proceedings. Whether a "virtual space" transaction falls within the definitional framework of the RERA Act is emphatically not a question apparent on the face of the RERA order. It requires:

Examination of the MOU and application form and the precise terms governing the transaction;
Consideration of the promoter's own communications to the allottee regarding the allotted space;
Characterisation of the rights actually conferred on the allottee;
Assessment of the registered status of the project under RERA; and
Evaluation of the promoter's own conduct in registering the project and issuing possession-related communications.

None of this appears on the face of the final order. Accordingly, the executing forum — whether the UP RERA Authority in execution proceedings under Section 40 of the RERA Act, has no jurisdiction to entertain the jurisdictional challenge at this stage.

Principle III: The Distinction Between Void and Voidable Orders

Promoters invoking the virtual space rulings to attack prior RERA orders frequently invoke the terminology of "nullity" — arguing that orders passed without jurisdiction are void ab initio and therefore executable by no one. This argument, while superficially appealing, misapplies the void/voidable distinction to the facts.

A void order — one that is truly a nullity — arises only where the forum that passed it lacked inherent, absolute jurisdiction over the entire subject matter, regardless of what the parties did or said. Classic examples from jurisprudence include: a civil court adjudicating on matters exclusively vested in a special tribunal by statute, or a decree passed against a party who was dead at the time.

UP RERA's position is entirely different. UP RERA is a creature of the RERA Act, 2016, and has plenary statutory jurisdiction to adjudicate disputes between allottees and promoters in relation to registered real estate projects in Uttar Pradesh. The projects at issue in most virtual space cases are RERA-registered projects. The promoter is a RERA-registered promoter. UP RERA unquestionably had the competence to receive and entertain a complaint filed in respect of such a project.

The question of whether a "virtual space" transaction within a RERA-registered project falls within the Act's definitional scope is a question of the correct application of the statute to the facts. Even if answered in the negative (as the UPREAT has done in the appellate context), it goes to the "exercise" of jurisdiction, not to the "existence" of jurisdiction. An error in the exercise of an existing jurisdiction makes an order voidable — correctable through the statutory appellate remedy — not void ab initio. A voidable order that was never challenged through the available appellate process has attained finality and remains fully enforceable.

Principle IV: Submission to Jurisdiction and Estoppel by Conduct

There is a further, independent bar to the promoter's strategy — one grounded in equity and fairness. Where a party has submitted to the jurisdiction of a forum by participating in proceedings on the merits, filing detailed replies, addressing arguments, and allowing a final order to be passed — all without raising any objection to the forum's jurisdiction — that party is estopped from challenging the jurisdiction at a later stage.

This is the doctrine of submission to jurisdiction, recognised across Indian jurisprudence. Its application is straightforward: a promoter that filed a detailed written reply before UP RERA on the merits of the complaint, never raised any ground challenging RERA's jurisdiction over the virtual space transaction at the complaint stage, and then allowed the order to pass without filing a Section 44 appeal, has by its own conduct submitted to the jurisdiction of UP RERA. It cannot now turn around at the execution stage and claim that the very Authority it submitted to had no jurisdiction at all.

Permitting such a manoeuvre would be an affront to the doctrine of approbation and reprobation — a party cannot take advantage of a proceeding when it suits it and simultaneously repudiate that proceeding when it does not.

What This Means in Practice: Guidance for Allottees

For allottees who hold final RERA orders in virtual space complaints — orders that were passed after full hearing and were never appealed by the promoter within 60 days — the legal position is as follows:

Your order is final and executable. The promoter's failure to file a Section 44 appeal within the prescribed period has allowed the order to attain finality. That finality cannot be disturbed by subsequent UPREAT rulings in other cases.
Any application filed in execution proceedings challenging the jurisdiction on the basis of UPREAT rulings is not maintainable. Such an application asks the executing forum to go behind the decree and revisit a question of jurisdiction that requires factual investigation — which the executing forum is categorically prohibited from doing under settled Supreme Court authority.
The UPREAT rulings in Anchal Garg and Bhim Kaur govern future and pending complaints. They do not operate as retrospective nullification of final orders in other cases between different parties where the promoter chose not to appeal.
Estoppel and submission to jurisdiction independently protect your rights. The promoter's conduct in participating in the complaint proceedings on merits, without raising any jurisdictional objection, creates an independent equitable bar against the dismissal application.

A Word of Caution: Get Expert Advice Early

The law in this area is evolving. UP RERA's benches are dealing with the similar questions at present, and the outcome in any individual case will depend significantly on the specific facts — the terms of the MOU, the nature of the promoter's conduct at the complaint stage, and the precise terms of the RERA order.

Allottees who hold final RERA orders in virtual space matters and are facing such applications in execution should seek expert legal advice without delay. A well-crafted strategy — anchored in the principles discussed above and supported by the latest judicial authority, including the Bombay High Court's April 2026 ruling — can protect the executability of a hard-won final order.

Conclusion

The UPREAT rulings on virtual and unlockable spaces represent an important and far-reaching development in RERA jurisprudence. They have settled the law prospectively: such complaints will not be entertained before UP RERA going forward, and pending appeals will likely be decided in the promoter's favour on the jurisdictional question.

But they do not — and cannot — erase the rights of allottees who obtained final RERA orders before these rulings, pursued those orders to finality, and are now entitled to execute them. The law on finality of adjudication, the executing forum's prohibition on going behind the decree, the void/voidable distinction, and the doctrine of submission to jurisdiction collectively form a robust legal shield around such final orders.

Promoters who seek to exploit the uncertainty created by the UPREAT rulings to derail execution proceedings in old, finally decided cases are pursuing a strategy that is not supported by the law — and courts and tribunals applying settled legal principles should reject it.