Madhya Pradesh High Court
Chugh Realty Through Partner Vivek vs Rajesh Kumar on 7 October, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:29048
1 MSA No. 67 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
MISCELLANEOUS SECOND APPEAL No. 67 of 2025
CHUGH REALTY THROUGH PARTNER VIVEK AND OTHERS
Versus
RAJESH KUMAR AND OTHERS
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Appearance:
Shri Arjun Pathak, learned counsel for the appellants.
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Reserved on : 22/09/2025
Pronounced on : 07/10/2025
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ORDER
Per: Justice Binod Kumar Dwivedi This Miscellaneous Second Appeal has been preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter for short referred as, 'Act of 2016') against the order dated 23/07/2025 passed in Appeal No.59/2022 by Madhya Pradesh Real Estate Appellate Authority, Bhopal (hereinafter for short referred as, 'Appellate Authority'), whereby dismissing the appeal, order dated 12/01/2022 passed in Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 2 MSA No. 67 of 2025 M-IND-20-0277 by Real Estate Regulatory and Development Authority, Madhya Pradesh (hereinafter for short referred as, 'Authority') has been affirmed.
2. It is undisputed that appellants have developed Grand Exotica Project bearing registration No.P-IND-17-660 situated at Khasra No.84/3/5ख at Bicholi Mardana, Indore comprising of eight blocks. It is also not in dispute that Rajesh Kumar Yadav, respondent No.1 before this Court has booked Flat No.602 of Meadows-1 Block of the respondent in the above project on 29/09/2014 and he has got possession thereof.
3. Brief facts of the case are that respondent No.1 herein has booked a flat No.602 in the Meadows-1 Block of the project and after completion of construction work of the same, possession has been granted him but the remaining project and other building relating works have not been completed. Despite the fact that majority of the units in the project having been completed by the appellants herein / non-applicants and despite repeated requests, the project allottees' have not handed over the maintenance of the common area to the Project's Allottees' Association, therefore, application was filed before the Authority for directing the appellants Chugh Reality to complete the construction of the project and its associated buildings and also to form an Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 3 MSA No. 67 of 2025 Allottees' Association for the entire project entrusting the maintenance of the project's common area to the Allottees' Association and also bear the expenses of the project and buildings' maintenance until the project is completed.
4. The appellants in response to the aforesaid application submitted that the Meadows-1 Block relevant to the Rajesh Kumar Yadav - respondent No.1's case as Block E has been approved by the Town and Country Planning Department and work of the same was completed in the year 2015 and completion certificate from Municipal Corporation, Indore has been issued on 09/10/2018. Possession of the apartment was handed over to the respondent No.1 on the date of execution of the sale deed. Due to an ongoing dispute among the residents of the Grand Exotica Project, the formation of the Project's Residents' Association has been delayed. Applications have been submitted for taking over the maintenance work and the process of forming a Residents' Association has been initiated, which will be completed within three months. In such a situation, the respondent No.1 is not entitle for any relief, therefore, prayed for dismissal of the same with cost of Rs.1 Lakh.
5. In counter reply by Rajesh Kumar Yadav - respondent No.1, it has been submitted that based on agreement for development of the project which was executed on 29/03/2011 by the landowners and the builders in his favour, wherein a joint declaration has been submitted under the provisions of the Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 4 MSA No. 67 of 2025 Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 2000 registered with Sub- Registrar, Indore on 20/09/2012. Despite receiving the substantial sums from the project residents for maintenance and other purposes, the appellants have not provided an account of the said funds to the Residents' Society, therefore, the appellants be directed to complete the project and provide the Residents' Association with information regarding the entire amount deposited for public amenities and maintenance along with its income and expenditures.
6. After hearing the parties and appreciating the evidence available on record, the Authority taking into considerations the provisions of Section 11(4)(e)(f)(g) and Section 17 of the Act of 2016 as well as Section 18 of the Madhya Pradesh Prakoshtha Swamitva Adhiniyam, 2000 (hereinafter for short referred as, 'Act of 2000') allowed the application filed on behalf respondent No.1 and directed the appellants to handover the maintenance work related to the blocks in the project, which have been completed and the accounts and all the documents related to the maintenance work in the light of the provisions of Section 17(2) of the Act of 2016 within two months from the date of order and also directed that the appellants will bear the entire expenditure of maintenance of the project till the maintenance work is handed over with further direction to the respondents to bear the cost of his own expenses an also the expenses by the respondent No.1 to the tune of Rs.6,000/-. Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 5 MSA No. 67 of 2025
7. The aforesaid order dated 12/01/2022 passed by the Authority was challenged in Appeal No.59/2022 before the Appellate Authority. After analyzing the assailed order of the Authority, the Appellate Authority came to the conclusion that there is no irregularity, illegality or impropriety is found in the aforesaid order. Hence, appeal was dismissed affirming the order passed by the Authority.
8. Learned counsel for the appellants submits that judgment of the Authority and the Appellate Authority are based on conjectures and surmises. Both the Authorities below have not appreciated the documentary evidence put forth by the appellants in right perspective. The findings recorded by the Authority are perverse, contrary to the facts and are not based on law. Similar grave error has been committed by the Appellate Authority also. A ground has also been taken as order of Appellate Tribunal suffers from coram non judice and for this Section 45 of the Act of 2016 has been referred, which provides that Tribunal shall consist of a Chairperson and not less than two whole time Members of which one shall be Judicial Member and the other shall be a Technical or Administrative Member. Impugned order has been passed by the Chairperson and a Judicial Member only, whereas third member has not signed it.
Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 6 MSA No. 67 of 2025
9. To buttress his submissions, learned counsel for the appellants has relied upon the judgment by the co-ordinate Bench of this Court in the case of M/s. G. S. Enterprises through Partner Vs. Yogesh Agrawal (Second Appeal No.1053/2021). Relevant para No.22 of the aforesaid order is extracted as under:
"22] Thus, it can be safely concluded that when it comes to composition of Appellate Tribunal, the presence of the Chairperson is necessary along with she two members as provided under Section 45 of the Act of 2016. In such circumstances, Section 55 which provides that vacancies or defect in the constitution of the Tribunal etc. not to invalidate the proceedings of the Appellate Tribunal, if read in isolation would frustrate the very purpose of Section 45 of the Act, which provides for composition of Appellate Tribunal with a Chairman and two members, and thus, it has to be held that the Appellate Tribunal must consist of one Chairman and two members, which is sine qua non for its constitution."
The appellants have also placed reliance upon Section 19(9) of the Act of 2016, which runs as under:
"(9) Every allottee of the apartment, plot or building as the case may be, shall participate towards the formation of an association or society or cooperative society of the allottees, or a federation of the same."
10. Learned counsel submits that the order passed by the Appellate Tribunal is coram non judice itself and the Appellate Authority had no jurisdiction to adjudicate the appeal. The Authority as well as Appellate Authority have failed to note that no single individual can be permitted to raise grievance for all the blocks or for entire project unless the application has been Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 7 MSA No. 67 of 2025 filed on behalf of the Association or group of people, duly delegating to anyone individual has authority for that, therefore, prayed for allowing the appeal on the proposed substantial questions of law.
11. Heard and considered the submission raised by learned counsel for the appellants and perused the available record.
12. Section 58 of the Act of 2016 provides for appeal against the order of Appellate Tribunal 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. This makes it amply clear that appeal can be admitted only on the substantial questions of law.
13. It has been contended on behalf of the appellant that impugned order passed by the Appellate Tribunal suffers from vide of coram non judice in light of Section 43(3) read with Section 45 of Act of 2016 alleging that Chairperson and one Judicial Member of the Appellate Tribunal has passed the impugned order despite the fact that Tribunal shall consist of a Chairperson and not less than two whole time Members, which shall be a Judicial Member and other shall be Technical or Administrative Member. It is not in dispute that Section 45 provides for composition of Appellate Tribunal consisting of a Chairperson and two whole time Members of which one should be Judicial Member and other Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 8 MSA No. 67 of 2025 should be Technical or Administrative Member but for composition of Benches of Tribunal provision is in Section 43 of the Act of 2016.
14. Section 43(3) of the Act of 2016 specifically mentions that every Bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. Purpose of the aforesaid section is clear that a Bench of the Appellate Tribunal should consist of at least two members, meaning thereby, Bench may consist of one Administrative or one Judicial Member in combination of Chairperson. It may be one Chairperson and a Judicial Member or Chairperson or Administrative Member or in absence of Chairperson, Administrative Member and Judicial Member may consist Bench. Section 45 of the Act of 2016 does not mandate that Bench of Appellate Tribunal will consist of Chairperson including both Judicial as well as Administrative Members.
15. It is also to be noted that Section 55(a) of the Act of 2016 saves validity of the proceedings of the Appellate Tribunal. It is apt to reproduce Section 55 of the Act of 2016, which runs as under:
"55. Vacancies, etc., not to invalidate proceeding of Appellate Tribunal.-- No act or proceeding of the Appellate Tribunal shall be invalid merely by reason of--
(a) any vacancy in, or any defect in the constitution of, the Appellate Tribunal; or Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 9 MSA No. 67 of 2025
(b) any defect in the appointment of a person acting as a Member of the Appellate Tribunal; or
(c) any irregularity in the procedure of the Appellate Tribunal not affecting the merits of the case."
From perusal of the aforesaid section, it is also apparent that the proceeding of the Appellate Tribunal will not be invalid or irregular, which is not affecting merits of the case.
16. In the instant case, though misconceived ground of coram non judice has been taken as a ground to assail the impugned order, but how the proceedings undertaken by Chairperson and one Judicial Member are invalid or irregular has not been proved. Apart this, in the teeth of provisions as contained in Section 43(3) of the Act of 2016, ground of coram non judice as taken in the proposed substantial question of law No.2 is misconceived and no such substantial question is made out on this ground.
17. Authority while passing the order dated 12/01/2022 on application of the respondent No.1 has taken into account the relevant provisions as contained in Section 11(4)(e)(f)(g) and Section 17 of the Act of 2016 and Section 18 of the Act of 2000. It has also taken note of Section 11(4)(d) of Act of 2016. Clauses 9 and 10 of the sale deed executed by the appellant in favour of the respondent No.1 has also been kept in view, wherein it has been specifically mention that the owners of all the blocks of the Grand Exotica Project will form a joint Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 10 MSA No. 67 of 2025 venture i.e. an Association of Allottees, which will look after the maintenance of the common areas belonging to all the blocks.
18. Clause 14 and 17 of the Declaration dated 20/09/2012 and Section 2 of the Act of 2000 have also been taken into account while passing the order. Further keeping in view the provisions of Section 37 of the Act of 2016, it has been found justified to direct the appellants to assign project maintenance work to the Grand Exotica Residents Cooperative Society Limited formed by the respondent and other project allottees on the instructions of the Authority and to bear the project maintenance expenses until the maintenance work is assigned. The Appellate Tribunal has also gone through the order passed by the Authority in detail and finding no irregularity, impropriety or invalidity in the order upheld the same by dismissing the appeal preferred by the appellant. The judgment relied upon by the appellants in the case of M/s. G. S. Enterprises (Supra) is of no help to the appellants as in the aforesaid judgment only composition of Appellate Tribunal has been discussed and not constitution of Benches, which is provided under Section 43(3) of the Act of 2016 and Section 43(3) specifically provides that a Bench of the Appellate Tribunal will consist of at least one Judicial Member and one Administrative or Technical Member.
19. In view of the aforesaid, we are of the considered view that Authority as well as Appellate Authority have passed well reasoned orders based on legal Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 10/8/2025 4:10:44 PM NEUTRAL CITATION NO. 2025:MPHC-IND:29048 11 MSA No. 67 of 2025 provisions and material available before them, therefore, no illegality or impropriety has been committed by them.
20. No substantial question of law as proposed by the appellants is found involved in the case. Appeal is devoid of any substance, fails and is hereby dismissed.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Tej
Signature Not Verified
Signed by: TEJPRAKASH
VYAS
Signing time: 10/8/2025
4:10:44 PM