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Allahabad High Court

M/S Singh Brothers , Kanpur Nagar Thru. ... vs U.P. Real Estate Regulatory Authority ... on 2 April, 2024

Author: Sangeeta Chandra

Bench: Sangeeta Chandra





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:27000-DB
 
Court No. - 3
 

 
Case :- WRIT - C No. - 2928 of 2024
 

 
Petitioner :- M/S Singh Brothers , Kanpur Nagar Thru. Partner Namely Amarpreet Singh And 7 Others
 
Respondent :- U.P. Real Estate Regulatory Authority Lko. Thru. Secy. And 3 Others
 
Counsel for Petitioner :- Prashant Kumar,Devika Singh,Fuhar Gupta,Shailaja Mishra
 
Counsel for Respondent :- Shobhit Mohan Shukla,C.S.C. 
 
Hon'ble Mrs. Sangeeta Chandra,J.

Hon'ble Brij Raj Singh,J.

1. Heard Sri Prashant Kumar, learned counsel for the petitioners, learned Standing Counsel appearing for opposite party no.2 and Sri Sushanshu Chauhan, learned counsel appearing for opposite party no.1.

2. This writ petition has been filed with the following main prayers:-

"(a) To issue a writ, order or direction in the nature of Certiorari to quash the recovery certificate dated 25.11.2023 bearing No.14229/UPRERA/Vasooli/2023-24 (Contained as Annexure No.1) issued by respondent no.1 (Uttar Pradesh Real Estate Regulatory Authority, Lucknow at Naveen Bhavan, Raj Niyojan Sansthan, Kalakar House, Old Hyderabad, Lucknow-226007 through its Secretary) to respondent no.2 (District Magistrate, Kanpur Nagar) in respect of the petitioners.
(b) To issue a writ, order or direction in the nature of certiorari to quash the letter no.14230/UPRERA/Anu-Vasooli/2022-23 dated 25.11.2023 (contained as Annexure No.2) issued by respondent no.1 (Uttar Pradesh Real Estate Regulatory Authority, Lucknow at Naveen Bhavan, Raj Niyojan Sansthan, Kalakar House, Old Hyderabad, Lucknow-226007 through its Secretary) to respondent no.2 (District Magistrate, Kanpur Nagar) in respect of the petitioners.
(c) To issue a writ, order or direction in the nature of Mandamus directing respondent no.1 (Uttar Pradesh Real Estate Regulatory Authority, Lucknow at Naveen Bhavan, Raj Niyojan Sansthan, Kalakar House, Old Hyderabad, Lucknow-226007 through its Secretary) and respondent no.2 (District Magistrate, Kanpur Nagar) not to take any coercive actin against the petitioners on the basis of the impugned recovery certificate dated 25.11.2023 (contained as Annexure No.)."

3. It has been submitted by the learned counsel for the petitioners that petitioner no.1 is a registered partnership firm and a contract deed was entered into between the petitioners, three individuals, and opposite party no.3, M/s College Group Infrastructure Private Limited, a building company of New Delhi for the development of the land belonging to the petitioners on 30.07.2008. The petitioners being the owners and are in legal possession and control of Plot No.1-A, Block-M, Govind Nagar, Kanpur City, U.P. admeasuring 4863 Sq. Yards were to be given certain benefits as per the builder agreement. Opposite party no.3, the builder company, was to take over the expenses for construction of multiplex. A General Power of Attorney was executed by the petitioners on 30.07.2008 in favour of opposite party no.3 for smooth working of the contract/builder agreement.

4. Opposite party no.3 launched a project namely, Viva City Square, on Plot No.543/9, Block-K, Plan No.2 situated at Kidwai Nagar, Kanpur, U.P. and registered itself as proprietor of the said project at UPRERA portal bearing Promoter Registration No.UPRERAPRM9901 as well as UPRERA Registration No.UPRERAPRJ6667. The petitioners were not registered as co-promoters. Certain persons, who were the allottees, raised a complaint before the UPRERA regarding the conduct of the builder company i.e. opposite party no.3. After the complaint was registered and adjudicated, a recovery certificate was issued. Such recovery certificate is now been tried to be executed against the petitioners, who are not the proprietors of the said project.

5. Sri Sudhanshu Chauhan, learned counsel appearing for opposite party no.1 has placed before this Court a copy of the order dated 18.03.2024 passed by a coordinate Bench of this Court in Writ-C No.2557 of 2024, Lalit Kumar Singh Vs. State of U.P. and others, wherein a direction has been issued by the Court to the District Magistrate, Kanpur to execute the recovery certificate dated 25.11.2023 within a period of three months from the date a certified copy of the order dated 18.03.2024 is furnished in his office.

6. It has been submitted by the learned counsel appearing for opposite party no.1 that the petitioners could have approached the Division Bench praying for review of its order dated 18.03.2024. The opposite parties are only complied with the directions issued by a coordinate Bench of this Court.

7. Learned counsel for the petitioners has placed reliance on the judgement of the Hon'ble Supreme Court passed in Civil Appeal No.5121 of 2021, The Assistant Commissioner of State Tax and others Vs. M/s Commercial Steel Limited, decided on 03.09.2021 to say that the availability of alternative remedy, cannot be a bar to entertain a writ petition.

8. We have gone through the judgement of the Supreme Court passed in the case of the Assistant Commissioner of State Tax (supra) carefully and we find that the Supreme Court has observed in paragraph 11 of the judgement that existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution and the writ petition can be entertained in exceptional circumstances where there is (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation.

9. This Court is of the opinion that the petitioners' case does not fall in any of the existences as mentioned in paragraph 11 of the judgement rendered by the Hon'ble Supreme Court in the case of The Assistant Commissioner of State Tax (supra).

10. Learned counsel for the petitioners has stated that the petitioners being not mentioned as proprietors, cannot be proceeded with in pursuance of the recovery certificate dared 25.11.2023. The Complaint No.LKO157/07/55720/2020, Lalit Kumar Singh Vs. M/s College Group Infrastructure Private Limited, was not against the petitioners and the petitioners were not heard when the order was passed by the UPRERA on 01.04.2021.

11. This Court is of the opinion that the petitioners being aggrieved by the order dated 01.04.2021, which is the basis of the recovery certificate dated 25.11.2023, can also approach the appellate Tribunal under Section 43(5) of the Act.

12. With the aforesaid observations, the present writ petition stands disposed of.

.

(Brij Raj Singh, J.) (Sangeeta Chandra, J.) Order Date :- 2.4.2024 Rao/-