Allahabad High Court
Shashank Gupta vs M/S Vatika Nirman Private Limited Lko. ... on 18 August, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Neutral Citation No. - 2025:AHC-LKO:48238
Court No. - 6
Case :- RERA APPEAL No. - 8 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Limited Lko. Thru. Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Kaustubh Singh,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 5 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Lucknow Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Harsh Vardhan Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 6 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Lucknow Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Harsh Vardhan Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 9 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 10 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 11 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 12 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Ltd. Thru. Its Authorized Singnatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 13 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Limited Lko. U.P. Thru. Its Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 14 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Pvt. Ltd. Thru. Its Authorized Signatory
Counsel for Appellant :- Utkarsh Srivastava,Apoorva Tewari,Brijesh Kumar,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 15 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Pvt. Ltd. Thru. Its Authorized Signatory
Counsel for Appellant :- Utkarsh Srivastava,Apoorva Tewari,Brijesh Kumar,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 16 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Private Limited Thru. Authorized Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Suresh Kumar Srivastava,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
with
Case :- RERA APPEAL No. - 17 of 2024
Appellant :- Shashank Gupta
Respondent :- M/S Vatika Nirman Pvt. Ltd. Thru. Its Authorised Signatory
Counsel for Appellant :- Brijesh Kumar,Apoorva Tewari,Shreyash Agrawal,Utkarsh Srivastava
Counsel for Respondent :- Gaurav Mehrotra,Gaurav Mehrotra,Tushar Mittal
Hon'ble Pankaj Bhatia,J.
1. Heard Shri Apoorva Tewari, learned counsel for the appellant and Shri Gaurav Mehrotra, learned counsel for the respondent.
2. The appeal in question was admitted vide order dated 22.04.2025, wherein the following three questions of law were framed by the Court while admitting the appeals and the same is recorded herein-under:
"(i) Whether the REAT (Real Estate Appellate Tribunal) was justified in holding that the complaint was premature, and if so, then a finding on the issue of cancellation could not have been decided especially without any evidence and finding on the point of any breach committed by the appellant of the allotment order or its term?
(ii) Whether the judgment passed by the appellate tribunal suffers from vice of being coram non judice in light of Section 43(3) read with Section 45 of the RERA Act, 2016.
(iii) Whether findings recorded by the appellate tribunal can be sustained in absence of material placed before the RERA relating to the issue of consideration paid towards the allotment of the units and breach of the terms of allotment by the appellant."
3. Learned counsel for the appellant argues that question No.2 has been framed with regard to the jurisdiction is a contentious issue and can be decided. He, however, suggests that even if, the Court decides the question No.2 in favour of the appellant and against the respondent, this Court should still go into the other two questions to avoid any multiplicity and future course of litigation as the litigation is old one and would bring unnecessary misery on the parties in view of the pendency.
4. Learned counsel for the respondent, on the other hand, argues that issue No.2 is of huge importance and can be decided and should be decided against the appellant in view of the submissions which are being considered herein.
5. The appeal in question has been filed challenging the judgement dated 14.05.2024 passed by the RERA Appellate Tribunal in Appeal Nos.39 of 2024, 59 of 2024, 60 of 2024, 61 of 2024, 62 of 2024, 63 of 2024, 64 of 2024, 65 of 2024, 66 of 2024, 67 of 2024, 68 of 2024 and 69 of 2024. The appeal was barred by the Appellate Tribunal. The Tribunal recorded that the Technical Member demitted the office on 26.09.2023 and as such, the functioning of the Tribunal came to a stand still w.e.f. 27.09.2023. It further records that after the issuance of the notification dated 28.11.2023, whereby a Judicial Member was appointed. It was considered in the interest of public at large to resume the judicial function of the Tribunal with the Chairman and the Bench comprising of a Judicial Member appointed on 28.11.2023 and an office order was issued to that effect. It further records in pursuance of the office order that the Appellate Tribunal was continuing with the Chairman and one Judicial Member on account of non-appointment of a Technical Member.
6. In the backdrop of the said, the Bench of Tribunal comprising of Chairman and Technical Member decided the appeals. While deciding the appeals, the Tribunal held that the claim of the appellant before the Tribunal was premature, inasmuch as, the date of possession was yet to arrive. As such, the appeals preferred by the respondent herein were allowed.
7. My attention is drawn to the other findings recorded, to argue that on the one hand, the appellant has expressed that the appeal was premature, however, it has commented on the other issues, which is wholly bad in law.
8. Considering the rival submissions, I propose to decide the question No.2 as framed by this Court as the first issue. It is essential to notice that in one of the appeals before this Court not connected with the present case being RERA Defective Appeal No.9 of 2024, a Single Judge of this Court had set aside the orders passed by the RERA Appellate Tribunal, mainly on the ground that the composition was not in accordance with the provisions of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the 'Act') and the rules framed thereunder.
9. The Single Judge while passing the said order had noticed the mandate of Section 43(3) of the RERA Act, 2016 and also the Regulation 6(5) of the U.P. Real Estate Appellate Tribunal Regulation, 2019. The Appellate Tribunal once again suspended the working of the Tribunal w.e.f. 15.05.2024.
10. A Division Bench of this Court took suo motu cognizance of consequent directions given by the Registrar, U.P. RERA on 15.05.2024, which was a notification directing that the entire functioning of the Tribunal would be suspended from 15.05.2024. The Division Bench of this Court noticed the arguments and prima facie formed a view, after considering the scope of Section 55 of the Act directed that the Tribunal shall resume its hearings. The said interim order was passed on 16.05.2024 by the Division Bench of this Court. The order also records that no final findings were given with regard to the scope of Section 55 of the Act and the issue was left open for consideration. Paragraph 19 of the said judgement is quoted herein-below:-
"(19) Leaving the import, purport and meaning of the said provision read with other provisions of the Act, 2016, open for consideration on the next date, considering the larger public interest involved and as it is not in the interest of the citizens who are appellants before the Appellate Tribunal that the functioning of the UP Real Estate Appellate Tribunal comes to a standstill on account of the aforesaid reason, accordingly, we provide as under:-
1. Let a Suo-motu Public Interest Litigation be registered in this regard on the basis of this order titled as "Suo-Motu Inre: Appointment of members in the Real Estate Appellate Tribunal at Lucknow and the functioning of Tribunals in general including filling up of the vacancies therein" and the documents referred by us be kept on its record.
2. Considering the provision of Section 55 of the Act. 2016, we further order that the functioning of the Tribunal, as it was taking place prior to 15.05.2024. shall stand resumed forthwith under ourfilled up the vacancy of Administrative/ Technical member and the proceeding at least as of now cannot be said to be invalid merely on that count in view of the statutory provision contained in Section 55 of the Act, 2016."
11. It is also essential to notice that the Division Bench of this Court in the order extracted above, was not appraised of the judgement on the point and thus, as is evident a prima facie view was taken. I am not going into the question as to whether on the basis of a prima facie view, jurisdiction can be conferred upon the Tribunal and as was done by the Division Bench. In the present case as the order impugned was passed prior to 16.05.2024 and even if it is presumed that the jurisdiction was conferred by virtue of an interim order passed by the Division Bench, the same would still not cure the lack of jurisdiction of the Tribunal while passing the order impugned.
12. It is now informed that the Technical Member has been appointed and the Appellate Tribunal is working in terms of the mandate of the Act. In the light of issue No.2, which has been proposed to be decided as a preliminary issue and the arguments advanced.
13. To decide the issue No.2, it is essential to notice that the RERA Act was enacted to regulate and promote the real estate sector in addition thereto to protect the interest of the consumers in the real estate and to establish an adjudicating mechanism. In terms of the mandate of the Act, the requirement of registration was made mandatory under Chapter-II. The functions and duties of promoters were prescribed in Chapter-III. The rights and duties of the allottees were prescribed in Chapter-IV. Chapter-V prescribed for setting up a regulatory authority and Chapter-VII prescribed for establishment of a Real Estate Appellate Tribunal.
14. It is essential to notice the mandate of Section 43 of the Act, which prescribes the manner in which, the Appellate Tribunal shall be established. The same is quoted herein-below:-
"43. (1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the -- (name of the State/Union territory) Real Estate Appellate Tribunal.
(2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be.
(3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative to Technical Member.
(4) The appropriate Government of two or more Staes or Union territories may, if it deems fit, establish one single Appellate Tribunal: Provided that, until the establishment of an Appellate Tribunal under this section, the appropriate Government shall designate, by order, any Appellate Tribunal Functioning under any law for the time being in force, to be the Appellate Tribunal to hear appeals under the Act: Provided further that after the Appellate Tribunal under this section is established, all matters pending with the Appellate Tribunal designated to hear appeals, shall stand transferred to the Appellate Tribunal so established and shall be heard from the stage such appeal is transferred.
(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.
Explanation.--For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force."
15. The composition of the Appellate Tribunal is specified in Section 45 is quoted herein-below:-
"45. The Appellate Tribunal shall consist of a Chairperson and not less than two whole time Members of which one shall be a Judicial member and other shall be a Technical or Administrative Member, to be appointed by the appropriate Government. Explanation.--For the purposes of this Chapter,-- (i) "Judicial Member" means a Member of the Appellate Tribunal appointed as such under clause (b) of sub-section (1) of section 46;
(ii) "Technical or Administrative Member" means a Member of the Appellate Tribunal appointed as such under clause (c) of sub-section (1) of section 46."
16. The qualification for appointment of the Chairman and the Members of the Appellate Tribunal is specified in Section 46 of the Act, which is quoted herein-below:-
"46. (1) A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless he,--
(a) in the case of Chairperson, is or has been a Judge of a High Court; and
(b) in the case of a Judicial Member he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and
(c) in the case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government, or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government.
(2) The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of High Court or his nominee.
(3) The judicial Members and Technical or Administrative Members of the Appellate Tribunal shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary and in such manner as may be prescribed."
17. Section 55 of the Act prescribes that proceeding shall not be invalidated only on account of vacancy arising. Section 55 of the Act, which is the statutory section, based upon which both the arguments are founding that their arguments, is quoted herein-below:-
"55. 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
(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."
18. Thus, the sole consideration is whether the non-inclusion of a Technical Member in the impugned judgement would be a valid exercise of appellate powers considering the scope of Section 43(3), Section 45 and Section 55 of the Act.
19. On a plain reading of the prescriptions as extracted herein-above, it is clear that there is a distinction between the Appellate Tribunal, which has to be established in terms of Chapter-VII and the Bench which is to be established for hearing in the Appellate Tribunal. The use word 'Bench' in Section 43(3) of the Act, clearly marks out a distinction between the phrases used in Section 43(3) and Section 45 of the Act. Section 55 of the Act is an enabling provision, which has been incorporated to protect any orders, which can be challenged in case any appointment to the Appellate Tribunal or any defect pertaining to the Appellate Tribunal surfaces subsequent thereto. Much emphasis is placed on Section 55(c) of the Act.
20. I am of the firm view that Section 55(c) of the Act would also not rectify the defect of constitution of a Bench as prescribed under Section 43(3) of the Act as it has been incorporated only to save any irregularity in the procedure of the Appellate Tribunal and cannot be read to mean to cure the irregularities in the constitution of the Bench.
21. The view taken above, is fortified by the Division Bench judgement of the High Court of Punjab and Haryana reported in 2020 SCC OnLine P&H 2030, wherein amongst the several issues considered by the Division Bench framed the following issues for consideration:-
"47. The issues that arise for consideration are:
(a) Can a Single Member of the Authority validly pass orders on a complaint under the Act? Are Regulations 7 and 8 of the Punjab RERA Procedure Regulations ultra vires the Act?
(b) Can a Single Member of the Appellate Tribunal validly pass orders in the appeals before it?
(c) Should all the complaints under the Act be entertained in the first instance by the AO under Section 71 of the Act and in that context is the Circular dated 21st November, 2018 issued by the Authority valid?
(d) Is the appointment of Mr. Sanjiv Gupta as Member of the Authority valid?
(e) Are the Appellate Tribunal's orders declining to waive the requirement of pre-deposit valid? Should this Court in exercise of its jurisdiction under Article 226 of the Constitution direct the Appellate Tribunal to entertain the appeals without the pre-deposit? "
22. The said issue was answered in respect of the constitution of the Appellate Tribunal in the following manner:-
"64. The next issue is whether the Appellate Tribunal can function as a Single Member Bench? At the outset, it must be noted that although this question arises directly in the RERA appeals, it has not been specifically raised as such in the grounds of appeal. However, since it is a pure question of law that goes to the root of the matter, it can be permitted to be raised at any stage.
65. The relevant provision with regard to the Appellate Tribunal is Section 43 of the Act. Under Section 43(1) of the Act, the appropriate Government can establish an Appellate Tribunal. Under Section 43(2), the appropriate Government could establish one or more Benches of the Appellate Tribunal for various jurisdictions in the State or Union Territory as the case may be. Section 27 of 41 CWP No. 8548 of 2020 and other connected matters page 28 of 41 43 (3) is important for the purposes of the question under consideration. It reads as under:
"43. Establishment of Real Estate Appellate Tribunal.
(3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member."
66. Section 43(4) of the Act envisages the setting up of an Appellate Tribunal for two or more States or Union Territory. The proviso thereto permits the appropriate Government to designate any Appellate Tribunal functioning under any law for the time being in force, to be the Appellate Tribunal to hear appeals under the Act. Therefore, on a plain reading of Section 43(3) of the Act, the Appellate Tribunal is envisaged to sit in Benches. Section 45 states that the Appellate Tribunal shall consist of "a Chairperson and two whole time members, one shall be judicial member and other an administrative or technical member".
67. Since Section 43(3) of the Act itself provides the minimum quorum of the Bench of the Appellate Tribunal to be two, a harmonious construction of Section 43 (3) and 45 of the Act leads to the conclusion that an Appellate Tribunal has to have at least two members, one of which has to be a judicial and other a technical or administrative member. Unlike Section 21 of the Act, which simply states that the Authority shall comprise of a Chairperson and not less than two whole time members, a combination of provisions, viz., Section 43(3) read with Section 45 of the Act envisages there being Benches of the Appellate Tribunal subject however to the mandatory requirement that each such Bench shall have at least two members i.e. one judicial and another administrative or the technical member. There can, therefore, be no manner of doubt that the judicial functions of the Appellate Tribunal in the State of Punjab cannot be exercised by a Single Member Bench. Any order passed by such Single Member Bench of the Appellate Tribunal would be null and void in law."
23. The Division Bench also referred to a similar view taken by the Single Judge of the Bombay High Court in Man Global Pvt. Ltd. Vs. Bharat Prakash Joukani and in the case of Larsen and Toubro Limited Vs. Ms. Rekha Sinha. The Division Bench also approved and considered the scope of Section 55 of the Act and recorded as under:-
"69. In this context, a reference was made to Section 55 of the Act which reads 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
(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."
70. As rightly held in Larsen and Toubro Limited (supra), an order passed by a Single Member of the Appellate Tribunal would not stand validated by Section 55 as that would violate the plain language of Section 43(3) of the Act. Such an order would be a nullity, an illegality and not a mere irregularity. Reference in this context may also be made to the decision in Gulzari Lal Agarwal vs. The Accounts Officer (1996) 10 SCC 590 which holds that every provision of the Act needs to be construed harmoniously with the view to promoting the object and purpose of the Act and that by doing so no violence should be done to the plain language of the Section. Therefore, the plea of Mr. Sanjay Kaushal, with reference to Section 55 of the Act, that a Single Member exercising judicial functions of the Appellate Tribunal was merely a defect in the constitution of the Appellate Tribunal and, therefore, an irregularity, cannot be accepted. This goes to the very root of the jurisdiction of the Appellate Tribunal and cannot be said to be saved by reference to Section 55 of the Act."
24. Thus, on a conjoint reading of the said three provisions, I do not have any hesitation in holding that the order passed by the Appellate Tribunal, which is not in consonance with the manner of constitution of Benches as prescribed under Section 43(3) of the Act is null and void and would not stand cured by invoking Section 55 of the Act.
25. In view of the said findings, the order impugned is clearly beyond the jurisdiction and cannot be sustained on that ground.
26. The issue No.2 as framed is decided by holding that the order passed by the Appellate Tribunal being without jurisdiction is null and void. In view of the finding on issue No.2, I do not see any reason to decide the other two issues.
27. Further as it is informed that the Technical Member has now been appointed, the matter is relegated to the Appellate Tribunal to decide the matter afresh with all expedition without granting any unnecessary adjournment to any of the parties, preferably within a period of 60 days from today. While doing so, the Appellate Tribunal will consider the matter afresh particularly the date of allotment, which has not been done.
28. The appeals are disposed of in terms of above.
Order Date :- 18.8.2025
Ashutosh
