Allahabad High Court
Air Force Naval Housing Board vs Mohit Anand on 12 September, 2019
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 8 Case :- SECOND APPEAL DEFECTIVE No. - 237 of 2019 Appellant :- Air Force Naval Housing Board Respondent :- Mohit Anand Counsel for Appellant :- Prashant Kumar,Kushagra Dikshit,Tahseen Naz Hon'ble Dinesh Kumar Singh,J.
1. Vide separate order passed today on the application for condonation of delay, the said application has been rejected.
2. Despite rejecting the application for condonation of delay, it would be appropriate to deal with the second appeal on merit as well.
3. The Air Force Naval Housing Board (hereinafter referred to as the 'Board') is a welfare society registered under the Societies Registration Act, 1860. The objective of the Board is to provide residential houses to the serving Air Force and Naval Personnel and widows of these services on 'no profit no loss' basis under self-financed housing scheme. The Board launched the housing project at Meerut in 2008 for 365 dwelling units in five towers.
4. The respondent applied for allotment of flat in the aforesaid project of the Board in the year 2011. The respondent was allotted a flat Type-'A-I' with Registration No.MRE0077. Vide allotment letter dated 21.10.2011, the respondent was directed to deposit four installments amounting to Rs.6 lakhs each in addition to Rs.1.01 lakhs as registration amount, which was the amount that was already paid by other allottees. In order to bring the respondent at par with the existing allottees, he was also directed to pay equalization charges as under :-
"(a)@10% per annum on all amounts already called up. If paid within 60 days of issue of allotment letter.
(b) @ 12% p.a. if paid within 30 days.
(c) @ 13% p.a. if paid after 30 days."
5. It was also said that equalization charges on the outstanding amounts would be calculated from the initial closing date of the respective scheme. It was further said that the time given for making payment was only to enable the respondent to arrange the funds. The super area (tentative) was 1630 Sq.Ft. and the tentative cost of the flat was Rs.27.98 lakhs. The tentative accommodation was 1 Drawing/Dining, 3 Bedrooms, 3 Toilets, Kitchen & Balconies. With the allotment letter, schedule of payment was also given. The respondent against the initial estimated cost (tentative) has already paid Rs.34,44,672/-.
6. The respondent filed a compliant before the Real Estate Regulatory Authority. As per the builder agreement, the date of completion of the project was 30.06.2013 and, the possession was to be handed over by the said date. It was also said that despite the delay of five years, the project was nowhere near completion.
7. The cost had already been increased. A notice was issued by the nominated authority i.e. Vice-President of the Agra Development Authority to the Board. The Board submitted its reply stating therein that the Board functions on 'no profit no loss' basis and, the Board is a welfare society under the Societies Registration Act with objective of providing residential houses to the serving Air Force and Naval Personnel and widows of these services. It was further said that only tentative cost was mentioned in the allotment letter and, final cost was to be determined by costing committee, which included independent serving officers from Air Force, Navy and representatives of the members of the particular scheme/project in addition to two independent auditors. After the final costing, excess/unspent amount, if any collected from the allottees, was to be returned back to the allottees and in case the cost was increased, then the increased amount would be collected from each allottee in proportionate share based on the size of dwelling units.
8. In respect of delay, it was said that the project was launched in 2008. The contract for work was allotted on 16.6.2010. The Board selected the reputed builder, but the delay was caused by the contractor which lead to escalation of the cost. During the progress of project, a letter dated 18.12.2013 was sent to all the allottees intimating them about the increase in cost and the reasons thereof. Due to slow down in real estate market, the contractor of Meerut project of the Board suffered major setbacks resulting in many of their real estate projects getting stalled. This resulted in a severe financial crisis of the contractor, which lead to total stoppage of work of the Meerut project for two years i.e. from 2013-2015.
9. In view thereof, keeping the interest of the allottees of the project of Meerut, a decision of entering into supplementary agreement with the contractors for providing financial support to the contractor against bank guarantees was taken. The work of the Meerut project was recommenced in 2015, but due to poor financial state and reluctant behaviour of the contractor, the supplementary agreement could not be enforced in its entirety. When the contractor did not show his willingness to complete the project, the Board decided to terminate the contract vide letter dated 24.10.2017. The Board has registered its Meerut project under RERA in August, 2017 and a fresh date of completion of project at RERA website was recorded as July, 2018. After termination of the contract with the previous contractor, the balance work was allotted to the new contractor. It was further said that the project was in advance stage and was likely to be completed by November, 2018. However, it is admitted case that till date the project has not been completed.
10. In view of the aforesaid facts, the Prescribed Authority passed the order dated 14.8.2018 on the complaint of the respondent freezing the cost and directing the Board to complete the flat in question within a period of ninety days and give possession and registration of the same. It was further directed that till the registration of the flat complete in all respects, no additional amount would be payable by the allottee. It was further said that in case of failure to comply aforesaid direction and order, it would be punishable under Section 63 of the Act, 2016.
11. Aggrieved by the aforesaid order dated 14.8.2018, the Board filed an appeal before the Designated Appellate Tribunal. The Tribunal vide interim order dated 16.1.2019 directed the Board to deposit the entire deposited amount of the allottee/respondent with the Tribunal as per the provisions of Section 43(5) of the Act, 2016. However, the Board did not deposit the amount nor handed over the possession of flat in question and, therefore, the Tribunal vide impugned order dated 18.2.2019 has dismissed the appeal filed by the Board.
12. Heard Ms. Kusharga Dikshit, learned counsel for the appellant.
13. Under Section 58 of the Act, 2016 any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908. For ready reference, Section 58 of the Act, 2016 is extracted herein-below :-
"58. Appeal to High Court.--(1) Any person aggrieved by any decision or order of the Appellate tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908):
Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
x x x x"
14. Under Section 100 of Code of Civil Procedure, second appeal to the High Court lies only on substantial question of law. Thus, this Court can entertain an appeal against the order of the Appellate Tribunal under the Act, 2016 as constituted under Section 43 of the Act, 2016 only on substantial question of law.
15. Section 43(5) of the Act, 2016 provides per-condition for entertaining the appeal by the Appellate Tribunal against the order passed by the Prescribed Authority.
Sub-section (5) of Section 43 of the Act, 2016 reads as under :-
"43 (5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter.
Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without first having deposited with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard."
16. Section 44 of the Act, 2016 provides for application for settlement of disputes and appeals to Appellate Tribunal, which reads as under :-
"44. Application for settlement of disputes and appeals to Appellate Tribunal-- (1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal.
(2) Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filling it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit.
(4) The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer, as the case may be.
(5) The appeal preferred under sub-section (1), shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within a period of sixty days from the date of receipt of appeal:
Provided that where any such appeal could not be disposed of within the said period of sixty days, the Appellate Tribunal shall record its reasons in writing for not disposing of the appeal within that period.
(6) The Appellate Tribunal may, for the purpose of examining the legality or propriety or correctness of any order or decision of the Authority or the adjudicating officer, on its own motion or otherwise, call for the records relevant to deposing of such appeal and make such orders as it thinks fit."
17. Thus, from reading of sub-section (5) of Section 43 of the Act, 2016, it is evident that the condition for entertaining the appeal by the Appellate tribunal is prescribed under Section 43(5) of the Act, whereas the manner in which the appeal has to be dealt with, has been provided in Section 44 of the Act, 2016. Thus, an appeal under Section 44 of the Act, 2016 can be entertained only if the condition precedent as prescribed under Section 43(5) of the Act, 2016 has been complied with and not otherwise.
18. In the present case, the Designate Appellate Tribunal vide interim order dated 16.1.2019 passed under Section 43(5) of the Act, directed the appellant-Board to deposit the entire amount as deposited by the allottee/respondents inasmuch as it has failed to deliver the possession as directed by the prescribed authority, but the Board has not been able to deposit the amount and thus, vide impugned order dated 18.2.2019 the appeal has been dismissed.
19. The State Government has notified the constitution of the Appellate Tribunal vide notification dated 22.9.2018, but it did not start functioning till the impugned order was passed by the Designated Appellate Tribunal.
20. There was no order by this Court staying the proceedings before the Designated Appellate Tribunal. Therefore, there is no substance in the argument of the learned counsel for the appellant that in view of the order passed by this Court on 6.2.2019 in Second Appeal No.364 of 2018, the appeal should be entertained. By the aforesaid order dated 6.2.2019, further proceedings in Appeal No.364 of 2018 before the Designated Appellate Tribunal were stayed. However, there was no such interim order in the present case.
21. In view thereof, I do not find any substantial question of law on which this second appeal can be entertained and thus, this appeal also being without any merit and substance, is dismissed on merit as well.
( Dinesh Kumar Singh ,J. ) Order Date :12.9.2019 Rao/-
Hon'ble Dinesh Kumar Singh,J.
Order on C.M. Application No.105302 of 2019 (Application for condonatin of delay ) The present second appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short' the Act, 2016') has been filed against the order dated 18.2.2019 passed by the learned Designated Appellate Tribunal in Appeal No.103 of 2018 with delay of 140 days.
In support of the application for condonation of delay, an affidavit of authorised representative of the appellant has been filed. It has been said in the affidavit that after the Designated Appellate Tribunal dismissed the appeal vide impugned order dated 18.2.2019, various meetings were held with the higher authorities of the Board and, it was decided to file second appeal before this Court. It has been further said that the authorised person was transferred in the meantime and, therefore, the present second appeal could not be filed within time. The appellant appointed the new person as authorised officer and, thereafter, the appellant approached the counsel for filing the instant second appeal. The application for obtaining the certified copy of the impugned order was given on 27.8.2019 and 7.8.2019, which have been furnished only on 2.9.2019 and 9.8.2019. In view of the aforesaid facts, it has been stated that the delay in filing the instant appeal is unintentional and not deliberate and, therefore, a prayer has been made for condoning the delay and deciding the appeal on merit.
I have considered the averments carefully.
The very purpose and object of the Act, 2016 is to establish adjudicatory mechanism for speedy dispute redressal. The delay of 140 days in filing the present second appeal has not been satisfactorily explained and, I do not find any good ground to condone the delay and, therefore, this application is liable to be rejected. Thus, it is rejected.
( Dinesh Kumr Singh, J.) Order Date :12.9.2019 Rao/-