Allahabad High Court
M/S. M.R. Proview Realtech (P) ... vs State Of U.P. And 5 Others on 6 May, 2022
Bench: Pritinker Diwaker, Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 29
Case :- WRIT - C No. - 31207 of 2019
Petitioner :- M/S. M.R. Proview Realtech (P) Ltd.
Respondent :- State Of U.P. And 5 Others
Counsel for Petitioner :- Ankita Singhal,S1283
Counsel for Respondent :- C.S.C.,Anil Tiwari, Ram Prakash Srivastava
Hon'ble Pritinker Diwaker,J.
Hon'ble Ashutosh Srivastava,J.
Shri Siddharth Singhal, learned counsel for the petitioner, Shri Wasim Masood, learned counsel appearing for the respondent No. 2 and learned Standing Counsel, who has accepted notice of the writ petition on behalf of the State-respondents. The notice of respondent Nos. 5 & 6 is dispensed with in view of the order being passed by us.
The writ petitioner is a company engaged in the business of real estate and has setup a residential township in the name of Shalimar City (Phase-II), situated at Delhi-Wazirabad Road, Ghaziabad. The project is registered with the Real Estate Regulatory Authority.
The challenge in the writ petition is to order dated 23.2.2018 as amended on 27.4.2019 passed by the U.P. Real Estate Regulatory Authority (RERA) whereby and whereunder the Complaint No. 220186548 filed by the respondent Nos.5 & 6 (Home Buyers) under Section- 31 of the Real Estate (Regulation and Development) Act, 2016 has been allowed and the petitioner has been directed to refund the entire amount along with interest @ MCLR + 1% from the date of deposit till the date of payment. The petitioner has further challenged the consequent recovery certificate dated 6.6.2019 issued by respondent No.2 and recovery citation dated 19.6.2019 issued by the respondent No. 4, directing the recovery of a sum of Rs.60,18,440.13 including the principal amount as well as interest thereon and also the order of attachment dated 31.8.2019 passed by the respondent No.4.
Shri Wasim Masood, learned counsel for the respondent No. 2 points out that the order dated 23.2.2018 as amended on 27.4.2019 is appealable under Section 43(5) of the Act, provided the statutory compliance of the pre-deposit being made under the proviso to Section 43(5) before the Appellate Tribunal constituted under the Act and the writ petition is not maintainable. The petitioner is liable to be relegated to avail the remedy of Appeal.
The challenge to the order dated 23.2.2018 as amended on 27.4.2019 and the consequent recovery proceedings is on the ground that the respondent No. 2 lacked the jurisdiction to pass the order of refund of the amount, as it has been passed by a Single Member of the Authority. Certain ancillary issues regarding the mode and manner of the recovery proceedings have also been raised in the writ petition.
We have heard the respective submissions of the parties and have perused the record. We find that the issues raised in the writ petition are no longer 'Res Integra' and stand decided by the Hon'ble Apex Court in its recent judgment in the case of M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P. & others (Civil Appeal No.(s) 6745-6749 of 2021 arising out of SLP (Civil ) No.(s) 3711-3715 of 2021. Consequently, the writ petition lacks merit and is, accordingly, dismissed.
However, we find that the petitioner had bypassed the remedy of Appeal before the Appellate Tribunal and had rushed to this Court without exhausting the remedy of the statutory Appeal under Section 43 (5) of the Act. If the petitioner intends to prefer an Appeal against the order impugned, it may be open for him to challenge the same within 30 days from today provided the petitioner complies with the condition of pre-deposit, as contemplate under the proviso to Section 43(5) of the Act. The Appellate Tribunal may proceed to decide the same on merit ignoring the aspect of limitation in accordance with law.
Order Date :- 6.5.2022
Vandana
(Ashutosh Srivastava,J.) (Pritinker Diwaker,J.)
