Allahabad High Court
Attractive Nirman Ltd. Lko. Thru. ... vs U.P. Real Estate Regulatory Authority, ... on 12 July, 2023
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:44925 Court No. - 20 Case :- MATTERS UNDER ARTICLE 227 No. - 3417 of 2023 Petitioner :- Attractive Nirman Ltd. Lko. Thru. General Manager Administrative Shri Prem Nath Mehrotra Respondent :- U.P. Real Estate Regulatory Authority, Lko. Thru. Its Chairperson And 3 Others Counsel for Petitioner :- Sudeep Kumar,Anjali Singh,Avdhesh Kumar Pandey,Vasudev Dixit Counsel for Respondent :- Shobhit Mohan Shukla Hon'ble Manish Mathur,J.
1. Learned counsel for petitioner is granted liberty to amend prayer no.1 with regard to date of application for recall, during the course of day.
2. Heard Ms. Radhika Verma, learned counsel holding brief on behalf of Mr. Sudeep Kumar, learned counsel for petitioner and Mr. Praveen Kumar Tripathi, learned Advocate holding brief on behalf of Mr. Shobhit Mohan Shukla, learned counsel for opposite parties no.1 and 2.
3. In view of order being proposed to be passed, notices to opposite parties no.3 and 4 stand dispensed with.
4. Petition under Article 227 of the Constitution of India has been filed seeking a direction to opposite parties no.1 and 2 to consider and decide application for recall/ review dated 20.02.2023 for recalling of order dated 13.07.2019 passed by RERA and the recovery citation dated 16.09.2022. Further prayer seeking a direction not to recover the awarded amount till decision of recall application has also been made.
5. Learned counsel for petitioner submits that on a complaint filed by opposite party no.3 against the opposite party no.4 with the RERA, the order dated 13.07.2019 was passed in complaint case no.320188531; Mridul Garg versus M/S Aftek Developers Private Limited, Umrao Plaza, Bhootnath, Lucknow. It is submitted that in pursuance of the aforesaid order, recovery certificate bearing no.11144/U.P RERA/Recovery/2022-23 dated 16.09.2022 has also been issued against the petitioner.
6. It has been submitted that the petitioner who is the developer of the property concerned was never arrayed as a party in the aforesaid proceedings as would be evident from the order itself although in third paragraph of operative portion of order dated 13.07.2019,directions have been issued against the petitioner.
7. It is submitted that even though the petitioner was not a party to the proceedings but recovery citation has been issued to petitioner in view of operative portion of the order dated 13.07.2019 and upon coming to know of the said fact, the aforesaid recall application was filed on 20.02.2023, which however is not being taken on record only due to the fact that there is no provision for recall or review of orders passed by RERA.
8. However, learned counsel has drawn attention to recall application to indicate that the fact that order has been passed against petitioner who was not a party to the proceedings has been taken in the recall application, with the said fact being merely procedural in nature, the recall application without even in specific provision in the Act was maintainable as has been held by two Division Benches and a Coordinate Bench of this Court in the cases of M/S T.G.B. Realty Pvt. Ltd. versus State of U.P. & Ors. passed in Writ C No.32301 of 2019, Aadhar Infra Holding Limited & Anr. versus State of U.P. & Ors. passed in Writ C No.1462 of 2021 and Aashiyana Infrapromoters Pvt. Ltd. versus State of U.P. & Ors. passed in Writ Petition No.4133 (M/S) of 2021.
9. Learned counsel appearing on behalf of opposite parties no.1 and 2 has on the other hand submitted that since there is no provision under the Act for recall or review, the aforesaid recall application has rightly not been taken cognizance of. However he does not dispute the Division Bench judgment in the case of M/S T.G.B Realty Pvt. Ltd.
10. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, it is evident that Division Bench of this Court in the case of M/s T.G.B. Realty Pvt. Ltd. (supra) has already held that where recall of orders is being sought on the ground that notice was never served upon the applicant and it was denied an opportunity of hearing, such a recall application would fall within purview of procedural review rather than substantive review and therefore there would be an inherent right conferred upon every court/tribunal to exercise such power of procedural review and the same cannot be denied only for the reason that there is no specific provision to that effect in the statute. The aforesaid judgment has thereafter been followed by another Division Bench in the case of Aadhar infra Holding Limited (supra) and by Coordinate Bench of this Court in the case of Aashiyana Infrapromoters Pvt. Ltd. (supra).
11. In view of aforesaid, it is evident from the record itself that petitioner was never a party to the complaint case although directions were issued against it in the operative portion of the order and in pursuance of which recovery citation has been issued to the petitioner. The recall application clearly states the aforesaid facts while seeking recall of order dated 13.07.2019.
12. Upon applicability of aforesaid judgements, it is evident that the recall being sought by petitioner is merely procedural in nature and would therefore be maintainable before RERA as has been held in the judgments cited hereinabove.
13. Considering the aforesaid facts, opposite party no.2 i.e. Secretary, Uttar Pradesh Real Estate Regulatory Authority, Lucknow is directed to take on record the recall/review application preferred by petitioner dated 20.02.2023 in complaint case no.320188531 (Mridul Garg versus M/S Aftek Developers Private Limited) and to decide the same after giving opportunity of hearing to all concerned within a reasonable time period. It appears that in the recall application, prayer for recalling of recovery certificate dated 16.09.2022 has also been sought.
14. In view of aforesaid facts, prayer no.b made in the recall application may be decided at the earliest as a preliminary point. It is directed that till decision on prayer (b) in the recall application, the operation of recovery certificate dated 16.09.2022 numbered as no.11144/U.P RERA/Recovery/2022-23 shall not be given effect to.
15. This court is conscious of the fact that this order is being passed without issuance of notice to the complainant who has been arrayed as opposite party no.3 herein but notices have been dispensed with and this petition has been decided finally at the admission stage itself only owing to the fact that the dispute regarding maintainability of recall application has already been adjudicated upon by Division Benches and Coordinate Bench as indicated hereinabove and this Court has not entered into any disputed question of fact. The decision on the recall application would therefore fall upon the RERA to be taken since this Court has not entered into merits of the case.
16. With the aforesaid directions and observations, petition stands disposed of.
Order Date :- 12.7.2023 Subodh/-