Gujarat High Court
Pacifica Developers Pvt. Limited vs Adjudicating Officer on 9 September, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1056/2025 ORDER DATED: 09/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1056 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 20527 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/LETTERS PATENT APPEAL NO. 1056 of 2025
With
R/LETTERS PATENT APPEAL NO. 1057 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 20527 of 2022
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025 In
R/LETTERS PATENT APPEAL NO. 1057 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 20527 of 2022
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PACIFICA DEVELOPERS PVT. LIMITED & ORS.
Versus
ADJUDICATING OFFICER & ORS.
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Appearance:
MR SHALIN MEHTA, SR. ADVOCATE assisted by MS. J N
DEKAVADIYA(7792) for the Appellant(s) No. 1,2,3,4,5
MR PERCY KAVINA, SR. ADVOCATE assisted by MR.VISHAL J
DAVE, MR. MAHADEV BIRLA, MR. RAHUL S. BHAVSAR for the
Respondent(s) no. 4
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 09/09/2025
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. Having heard the learned Senior counsels appearing for
the parties and perused the record, we may note that these
intra court appeals are directed against the judgment and
order dated 25.07.2025 whereby the learned Single Judge
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while dismissing the Misc. Civil Application No. 2 of 2024 filed
by the appellants herein for withdrawal and disbursement of
the amount deposited under the interim order dated
07.10.2022 in Special Civil Application No. 20527 of 2022, has
allowed the Misc. Civil Application No. 3 of 2024 filed by the
respondent no.4 herein for vacating the interim relief.
2. Two Misc Civil Application No. 2 of 2024 and Misc. Civil
Application No. 3 of 2024 have been decided by the common
order (impugned) in Special Civil Application No. 20527 of
2022, out of which the present set of appeals have arisen.
Pertinent is to note that the Special Civil Application No.
20527 of 2022 was presented on 05.10.2022 with the reliefs
as under :-
"A. This Hon'ble Court may be pleased to admit and
allow this petition.
B. This Hon'ble Court may be pleased to issue writ of
mandamus or any other appropriate writ, order or
direction or writ in the nature of certiorari, quashing and
setting aside impugned order dated 04.10.2022 at
Annexure 1.
C. Pending admission, hearing and final disposal of this
petition, this Hon'ble Court may be pleased to direct by
way of an ad-interim relief to stay the execution,
implementation, and operation of the order dated
04.10.2022 (Annexure 1) by the Respondent(s).
D. Alternatively, pending admission, hearing and final
disposal of this petition, and allowance of the ad-interim
relief at 'C' to stay the execution, implementation and/or
operation of the impugned order dated 04.10.2022 by
the Respondent No. 1 as the most urgent ad-interim
relief, the status quo shall be maintained, by suspending
the operation, implementation and execution of the
Annexure No. 1, and all further proceedings shall be
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suspended including non-coercive actions against the
present petitioner(s).
E. This Hon'ble Court may be pleased to grant any other
and further reliefs, as the nature and circumstances of
the present case may require."
3. It is further pertinent to note that the order dated
04.10.2022, which was subject matter of challenge before the
writ court was passed by Real Estate Regulatory Authority
(RERA), namely the 'Adjudicating Officer' in the execution
proceedings, viz. Execution Petition No.25/2020. The specific
statement of the petitioners in the writ petition was that RERA
appellate tribunal was not in existence and since the tribunal
had not been constituted, the writ court had jurisdiction to
admit and entertain the writ petition under Article 226 of the
Constitution of India.
4. It seems that on the presentation of the writ petition, an
interim order dated 07.10.2022 has been passed in the
following manner :-
"1. Heard learned Senior Advocate Mr. Jal Unwalla
appearing with learned advocate Ms. J. N. Dekavadiya
for the petitioner, learned advocate Mr. M. V. Dhotare
appearing for the respondent no. 3 and learned Senior
Advocate Mr. Percy Kavina appearing with learned
advocate Mr. Vishal J. Dave for the respondent no. 4.
2. Learned advocate Mr. Vishal J. Dave is appearing on
behalf of the respondent no. 4 on Caveat whereas
learned advocate Mr. Dhotare is appearing for the
respondent no. 3 as his petition in respect of the very
order which is impugned in this petition and listed today
at Serial No. 3 being Special Civil Application No. 20504
of 2022 and therefore, as he is present in the Court, he
is appearing for the respondent no. 3.
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3. At this juncture, learned Senior Advocate Mr. Unwalla
appearing for the petitioner submitted before this Court
that without entering into the merits of the matter, the
petitioner is ready and willing to settle the dispute with
the respondent no. 4 in cooperation with the respondent
no. 3. Ultimately, at this stage, it is agreed upon
between the parties that keeping all the rights and
contentions of all the parties open, the petitioner is
permitted to deposit a sum of Rs.24,00,000/- before this
Court in addition to any amount which the petitioner has
already deposited in the account of respondent no.4.
4. Learned Senior Advocate Mr. Unwalla states the
aforesaid amount of Rs. 24,00,000/- shall be deposited
before this Court by the next date of hearing with an
undertaking that the amount is not a final amount and
the petitioner is ready to negotiate with the respondent
no. 4 and respondent no. 3 shall be taken into confidence
in respect of this proposed settlement. Learned Senior
Advocate Mr. Unwalla states that the petitioner will be
filing an affidavit in line of submissions of learned
advocate Mr. Unwalla before the next date of hearing.
5. In view of that, the Registry is directed to accept an
amount of Rs. 24,00,000/- to be paid by the petitioner
which shall be paid on or before the next date of hearing
i.e. 19.10.2022. The petitioner is also directed to file an
affidavit in support of his proposal.
6. It is clarified that the deposit of the aforesaid amount
is just to test the bonafide of the petitioner and it shall
not bind any of the parties and rights and contentions of
all the parties to address of this Court on merits are kept
open.
7. In view of above, NOTICE returnable on 19.10.2022.
Learned advocate Mr. Dhotare waives service of notice
for and on behalf of the respondent no. 3 and learned
advocate Mr. Vishal Dave waives service of notice for
and on behalf of the respondent no. 4. For rest of the
respondent, direct service is permitted.
8. In the meantime, there shall be ad-interim relief in
terms of paragraph no. 12 (C)."
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5. A bare reading of the order dated 07.10.2022 indicates
that the interim protection granted to the petitioners in the
nature of relief sought in paragraph 12 (C) of the writ petition
was subject to the deposit of a sum of Rs. 24 Lakhs before this
Court, on or before the next date of hearing, i.e. 19.10.2022.
The petitioners have enjoyed the interim order dated
07.10.2022 till 15.02.2024 when a request was made on
behalf of the petitioners seeking permission to withdraw the
writ petition to avail the statutory remedy of filing an appeal
before the RERA appellate tribunal. While permitting the
petitioners to withdraw the appeal, it was noted by the writ
court in the order dated 15.02.2024 as under :-
1. Mr. Jal Unwalla, learned Senior Counsel appearing
with Mr. J.N. Dekavadiya, learned advocate appearing
for the petitioners, seeks permission to withdraw the
present petition in light of the fact that the petitioners
have availed the remedy by filing a statutory appeal
before the RERA Tribunal.
2. Permission, as sought for, is granted. The present
petition stands disposed of as withdrawn accordingly.
The connected civil application also stands disposed of
accordingly. Notice stands discharged.
3. Considering the fact that the present petition was
filed at the time when the RERA Tribunal was not in
force, in peculiar facts of the present case, the interim
relief which was granted by this Court vide order dated
07.10.2022 to continue till the appeal is taken up for
hearing by the RERA Tribunal.
4. This Court has otherwise not gone into the merits of
the matter. The Tribunal to decide the appeal
independently and in accordance with law. Liberty is
reserved qua the respective parties to take all the
contentions in the appeal proceedings."
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6. A bare reading of the order dated 15.02.2024 indicates
that the petitioners gave an impression to the writ court
through their counsel that they have already availed the
remedy by filing a statutory appeal before the RERA appellate
Tribunal. It seems that it is for this reason, while permitting
the writ petition to be withdrawn, this Court has also directed
that the interim protection granted to the petitioners vide
order dated 07.02.2022, shall continue to operate till the
appeal is taken up for hearing by the RERA appellate tribunal.
7. It is pointed out by Mr. Percy Kavina, the learned Senior
counsel appearing for the respondent no.4 herein that in
Misc. Civil Application No. 2 of 2024, the petitioners had
made a request to withdraw the writ petition on the premise
that the RERA appellate tribunal has been constituted and the
petitioners shall file an appeal in the matter by availing the
appropriate statutory remedy. The attention of the Court is
invited to paragraph '3' of the Misc. Civil Application No. 2 of
2024, which reads as under :-
"3. The petitioner had requested to withdraw the
petition from the Hon'ble High Court, since the
Appellate Tribunal RERA has now been constituted and
that the petitioner shall file an appeal in the matter and
approach the right forum for seeking remedy. By this
application, the Petitioner requires the Hon'ble bench to
release the funds deposited with the Hon'ble High Court
registry so that the same may be re-deposited in the
Hon'ble RERA Appellate Tribunal. Therefore, permission
may be granted to withdraw the amount."
8. The submission, thus, is that no appeal was filed and due
to the misrepresentation on the part of the petitioners, interim
order was further extended by the writ court.
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9. Mr. Shalin Mehta, learned Senior counsel appearing for
the appellants would submit that an appeal under Section
43(5) of the Real Estate (Regulation and Development) Act,
2016 (in short as the "RERA Act") had been presented before
the Tribunal on 06.10.2022. An entry to that aspect was made
in the inward register. It is, however, admitted that though
the appeal was inwarded before the tribunal on 06.10.2022
vide Inward no. 369/2022, but it had not been registered for
want of fulfillment of the pre-condition of deposit for
maintaining the appeal under Section 43(5) of the RERA Act.
The submission, however, is that since there was a
requirement of making pre-deposits and an amount of Rs. 24
Lakhs was deposited before this Court pursuant to the interim
order dated 07.10.2022 to establish the bonafide of the
petitioners, the petitioners made a request in Misc. Civil
Application No. 2 of 2024 to seek withdrawal of the said
amount before this Court, so as to make the necessary
deposits for maintaining the appeal before the RERA appellate
tribunal in accordance with the provisions of Section 43(5) of
the RERA Act.
10. The contention is that the learned Single Judge has
erred in rejecting the prayer for withdrawal of the amount of
Rs. 24 Lakhs, deposited pursuant to the interim order dated
07.10.2022, on the premise that the petitioners had made a
wrong statement of filing of appeal under Section 43(5) of the
RERA Act and, thus, pursuing this Court to extend the interim
order till the appeal is taken up for hearing by the RERA
appellate tribunal. The submission is that the petitioners had
never made any incorrect statement before the learned Single
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judge and the plea of the petitioners for withdrawal of the
deposited amount was bonafide and justified.
11. Mr. Percy Kavina, learned senior counsel appearing for
the respondent no.4, in rebuttal, would submit that there was
no valid appeal for two reasons, viz. the inward register entry
is about a memo of RERA appeal having been presented on
06.10.2022, which was not directed against the order dated
04.10.2022 passed by the executing court, subject matter of
challenge before the writ court. The petitioners have
misguided the writ Court in passing the order dated
15.02.2024 for extension of the interim relief dated
07.10.2022 by making a wrong statement that the RERA
appeal was already instituted, challenging the order dated
04.10.2022 passed in the execution case. The second
submission is that on account of non-making of the requisite
pre-deposits in accordance with Section 43(5) of the RERA
Act, even the Inward entry No.369/2022 of an alleged appeal
presented before the tribunal on 06.10.2022, would be of no
consequence.
12. The submission is that the petitioners have misled the
writ Court with their mischievous statement of filing an
appeal before the Tribunal only a day after the presentation of
the writ petition challenging the order dated 04.10.2022 and,
thus, succeeded in getting an interim order initially on
07.10.2022 on the premise of the non-availability of the
appellate tribunal and further in getting extension of the said
interim relief even after withdrawal of the writ petition.
13. It was vehemently argued by the learned Senior counsel
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appearing for the respondent that since the very date of
presentation of the writ petition on 05.10.2022 till disposal
thereof vide order dated 15.02.2024, the petitioners have
succeeded in misleading the writ Court by making false
statements about filing of a statutory appeal against the order
dated 04.10.2022 passed in the execution case and getting
interim protection on the premise that the RERA appellate
tribunal was unavailable.
14. Taking note of the above, pertinent is to record that the
interim order dated 07.10.2022 was passed by the writ court
subject to the condition of deposit of a sum of Rs.24 Lakhs,
which according to the petitioners, was duly deposited before
the Registrar General of the High Court in compliance of the
said order. Once the writ petition was withdrawn, the interim
order dated 07.10.2022 ought to have been discharged, but
for the stand of the petitioners that a statutory appeal has
already been filed and the same was pending consideration
before the RERA appellate tribunal. This statement made on
behalf of the petitioners by the learned advocate appearing
for the petitioners before the writ court has led to the passing
of the order dated 15.02.2024, whereby interim protection
granted vide order dated 07.10.2022 has been continued even
after withdrawal of the writ petition, till the statutory appeal
is taken up by the tribunal.
15. In absence of any pre-requisite deposits as per the
provisions of Section 43(5) of the RERA Act, there was no
question of maintaining appeal by the tribunal. It is, thus,
evident that as on 15.02.2024, there was no valid appeal
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instituted and pending before the RERA appellate tribunal.
The result is that the petitioners have succeeded in enjoying
the interim order by making a misstatement despite the
withdrawal of the writ petition.
16. As the interim order dated 07.10.2022 could not have
continued once the withdrawal was permitted, the learned
Single Judge cannot be said to have committed any error in
rejecting the Misc. Civil Application No. 3 of 2024 noticing
that the misstatement made by the petitioner before the writ
court has resulted in passing of the order dated 15.02.2024 to
continue with the interim relief dated 07.10.2022.
17. We further find that the prayer made in the Misc. Civil
Application No. 2 of 2024 for withdrawal of the deposits made
before this Court under the interim order dated 07.10.2022 is
a misconceived prayer. On the one hand, the petitioners
made a prayer for continuance of the interim order which was
a conditional order subject to the deposits and, on the other,
he seeks withdrawal of the deposits on the premise that the
deposits were made only to establish bona fide and now with
the withdrawal of the writ petition, he is entitled to withdraw
the deposits as well. The plea of the said deposits required
for maintaining a valid appeal before the tribunal is
misleading. The petitioner cannot continue to enjoy the
conditional interim order dated 07.10.2022 and seek
withdrawal of the deposits, simultaneously.
18. Having noted the above, we find that the petitioners in
a mischievous manner, have misled their counsel in making a
statement before the writ court, recorded in the order dated
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15.02.2024, to continue to enjoy the interim protection
granted on 07.10.2022, in perpetuity. As even today no valid
appeal has been instituted before the tribunal, the petitioner
is guilty of perjury for making misstatement and
misrepresentation before this court with a view to get undue
advantage. We, however, desist from issuing direction to
draw any further proceeding against the petitioners in view of
the directions contained in the order of the writ Court.
19. With the above, both the appeals challenging the
judgment and order dated 25.07.2024 are hereby dismissed.
It is open for the petitioners to pursue the statutory remedy
available to them before the appellate tribunal in accordance
with the RERA Act.
20. Lastly, for any issue related to maintaining a valid
statutory appeal in accordance with the provisions of the
RERA Act, 2016, we only provide that none of the
observations made by the learned Single Judge in the
judgment impugned or the observations made hereinbefore
will not come in the way of the petitioners.
21. Dismissed, accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
BIJOY B. PILLAI
