Allahabad High Court
M/S K.D.P Build Well Pvt Ltd vs State Of U.P. And 4 Others on 13 October, 2020
Bench: Naheed Ara Moonis, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 46 Case :- WRIT - C No. - 2320 of 2020 Petitioner :- M/S K.D.P Build Well Pvt Ltd Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sanjeev Kumar Pandey,Rohit Nandan Pandey Counsel for Respondent :- C.S.C.,Anil Tiwari Hon'ble Naheed Ara Moonis,J.
Hon'ble Vivek Varma,J.
Heard Sri Rohit Nandan Pandey, learned counsel for the petitioner and Sri Anil Tiwari, learned Senior Counsel assisted by Sri Waseem Ahmad Khan, learned counsel for the respondent no. 2.
The present writ petition was entertained and another Bench of this court passed the following order on 25.2.2020;
"This writ petition has been filed, interalia, for the following reliefs:
"(i) Issue a writ or direction in the nature of certiorari calling for the records and quashing the order dated 23.04.2019 passed by U.P. Real Estate Regulatory Authority, Lucknow and recovery citation dated 16.12.2019 issued by Tehsildar, Dadri, District Gautam Budh Nagar.
(ii) Issue a writ or direction in the nature of prohibition restraining the respondents from taking any coercive measures pursuant to the order dated 23.04.2019."
Heard learned counsel for the parties and perused the material available on record.
Learned counsel for the petitioner has stated that the impugned order has been passed by the respondent- U.P. Real Estate Regulatory Authority (in short the "RERA authority") illegally and without jurisdiction. He further submitted that according to Section 21 of the Real Estate (Regulation and Development) Act, 2016, (in short the "RERA Act-2016") the Authority shall consist of a Chairperson and not less than two whole-time Members to be appointed by the appropriate Government whereas the impugned order has been passed by the Single Member of the Authority, as such, the same has been passed illegally and without jurisdiction. It is next submitted that impugned order has been passed without application of mind, therefore, the same is liable to be set aside.
Per contra, Mr. Waseem Ahmad Khan holding brief of Mr. Anil Tiwari, learned counsel for the respondent- U.P. Real Estate Regulatory Authority has supported the impugned order and has stated that the power of delegation has been provided under Section 81 of the RERA Act-2016, which reads as follows:-
"the Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under Section 85) as it may deem necessary."
He further produced the copy of the resolution dated 05.12.2018 passed by the RERA Authority delegating the functions of 3 Members Committee (Authority) to the Single Member to discharge the function of hearing the complaints during the month of December, 2018 and also thereafter if it is necessary.
The resolution dated 05.12.2018 passed by the RERA Authority delegating the functions by a Single Member reads as follows:-
^^mRrj izns'k Hkw lEink fofu;ked izkf/kdj.k dh nksukas ihB }kjk ekg fnlacj 2018 rFkk ckn esa Hkh vko';drk vuqlkj ,dy ihB ds #i esa Hkh dk;Z djrs gq, y[kuÅ] rFkk xkSrecq) uxj esa ,d gh fnol ij f'kdk;rksa dh lquokbZ ds lEcU/k esa^^ In reply to the contention so made by the learned Standing Counsel, learned counsel for the petitioner has stated that the powers conferred upon the RERA Authority under Section 81 of the RERA Act-2016 is being misused as according to the resolution dated 05.12.2018 passed by the RERA Authority, a Single Member will hear the matter and carry out the functions during the month of December, 2018 and subsequently if it is necessary. He further submitted that the powers conferred upon the RERA Authority, which consist of a Chairperson and not less than two whole-time Members to be appointed by the appropriate Government under Section 21 of the RERA Act-2016. It is only when some urgency or exigency arises or requires, then the matter may be heard by a Single Member instead of 3 members. However, the powers conferred under Section 81 of the RERA Act-2016 and the resolution dated 05.12.2018 passed by the RERA Authority are being misused to render the provisions contained in Section 21 of the RERA Act-2016 completely nugatory as the Single Member of the Authority alone is hearing and deciding the matter for last several months. No exigency has been shown as to why a Single Member of the Authority is continuously deciding the matter, whereas according to Section 21 of the RERA Act-2016, the Authority shall consist of a Chairperson and not less than two whole-time Members. Section 21 of the RERA Act-2016 is quoted herein below:-
"21. Composition of Authority:- The Authority shall consist of a Chairperson and not less than two whole time Members to be appointed by the appropriate Government.
Learned counsel appearing on behalf of the RERA Authority has sought time to explain the urgency and the circumstances on account of which a Single Member of the Authority is deciding the matter continuously.
Put up this matter as fresh on 6th April, 2020 to enable the learned Standing Counsel appearing on behalf of the RERA Authority to seek instructions in the matter.
The Chairman, U.P. Real Estate Regulatory Authority shall also file his personal affidavit on or before the date fixed explaining the circumstances necessitating the exercise of powers of the Authority by a Single Member."
We have considered the submissions advanced by the learned counsel for the parties.
The respondent no. 5 has moved a complaint against the petitioner directing the petitioner to refund the entire amount deposited by him along with interest.
From the pleadings it is not disputed that the respondent no.5 has booked a flat on 28.12.2012 but the petitioner has not delivered the possession hence the complaint was filed by the respondent no. 5 due to illegal and arbitrary action of the petitioner before the U.P. Real Estate Regulatory Authority, Gautam Budh Nagar according to the provisions of the Act, 2016. The Regulatory Authority passed the impugned order dated 23.4.2019 after considering the grievance of the respondent no.5 pursuant to which a recovery citation dated 16.12.2019 for a sum of Rs. 20,15,177.68 issued by the Tehsildar Dadari plus other charges. The consequential action taken by the Real Estate Regulatory Authority under Section 40 of the Real Estate Regulation Development Act, 2016 is being challenged on technical ground that the impugned order has been passed by the single Member of the Authority, hence the same is without jurisdiction as contemplated under section 21 of the Act. This contention of the petitioner is misconceived. The proposition of Section 21 is not that the complaint could not be decided by a single Member of the Authority whereas it could be decided by a single Member or by Two Members, which ever is best in the interest of justice as per availability of the Members.
Section 81 of the Act-2016 provides that the authority may, by general or special order in writing delegate to any member, officer of the authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under Section 85) as it may deem necessary.
Thus having regard to the provisions of Section 81 of the Real Estate Authority vide 5th meeting dated 5.12.2018 as per agenda the Authority had delegated the power to Single Member to decide the cases in both benches sitting at Lucknow and Gautam Budh Nagar.
The extract of the aforesaid meeting of the Regulatory Authority has been produced by the learned Senior Counsel Sri Anil Tiwari appearing on behalf of the respondent authority. He submits that the issue involved in the present writ petition has already been adjudicated by the another Coordinate Bench of this Court by order dated 4.2.2020 in Writ-C No. 2248 of 2020 as well as by order dated 6.2.2020 passed in Writ-C No. 3286 of 2020. These writ petitions have already been dismissed.
Since the question of jurisdiction is no longer res integra in view of the decision rendered by this court in similar petitions, which has also not been disputed by the learned counsel for the petitioner, the impugned order dated 23.4.2019 qua the recovery and recovery citation dated 16.12.2019 are neither non speaking nor cryptic, which may require any interference.
In view of the above, when the matter has already been adjudicated by this court, there is no justifiable reason for keeping the writ petition pending. The writ petition is accordingly dismissed.
No order as to cost.
Order Date :- 13.10.2020.
Shahnawaz