Hon'ble Piyush Agrawal,J.
Heard Shri C.B. Yadav, learned Senior Counsel, assisted by Shri Nisheeth Yadav, learned counsel for the petitioners, learned Standing Counsel for the State - respondent no. 1, Shri Ramendra Pratap Singh, learned counsel respondent no. 2 and Shri Wasim Masood, learned counsel for respondent nos. 3 & 4.
By means of this writ petition, the petitioners are seeking quashing of the order dated 20.07.2020 passed by the respondent ? RERA in the complaint cases, leading case being LKO/08/0278/2019 (Jaswant Chaddha Vs. Aadhar Infra Holding Limited), by which the petitioner was directed to refund the amount by 31.10.2020 deposited by the complainants as well as the order dated 16.12.2020 passed by the respondent ? RERA, by which the petitioners' recall application has been rejected holding that there is no provision of recall/review in the Real Estate (Regulations & Development) Act, 2016 (hereinafter referred to as, 'the Act').
Shri Yadav, learned Senior Counsel for the petitioners submits that the petitioner received notice through e-mail to appear in connection with the complaint, but on account of pandemic (COVID - 19), petitioner was not able to appear on 02.07.2020 in person, but he tried to appear through video conferencing. It is submitted that one of the Directors of the petitioner made an attempt to appear through online mode by the video link mentioned in the e-mail, but same could not be established. Hence, petitioner sent an e-mail to the respondent - Authority on 06.07.2020 stating about the non-functioning of the video link and prayed for 15 days time to appear before the respondent - Authority, but without considering the prayer of the petitioner for granting time to appear through video conferencing, the impugned ex parte order dated 20.07.2020 has been passed. Thereafter, the petitioner moved a recall application on 14.12.2020 for recalling the said order, but the same has also been rejected holding that there is no provision of recall/review in the Act. Learned Senior Counsel has relied upon the order dated 17.10.2019 passed by this Court in Writ C No. 32301 of 2019 (M/s T.G.B. Realty Pvt. Limited Vs. State of U.P. & 7 Others).
Per contra, Shri Masood, learned counsel for the respondents - Authority, has opposed the submissions by submitting that the petitioners were afforded repeated opportunities to appear before the respondent - Authority on various dates, but they failed to appear. He further submitted that there is no provisions in the Act for recall of the order.
The Court has perused the records.
It is not in dispute that on the last date fixed, i.e., 06.04.2020, the petitioners could not appear in person on account of pandemic (COVID-19). In paragraph nos. 39 & 40 of the writ petition, the petitioners have categorically stated that one of the Directors could not appear through the video link due to technical problems and thereafter, ex parte impugned order was passed by the respondent - Authority.
Learned Senior Counsel further submitted that the second impugned order dated 16.12.2020 has been passed in teeth of the order passed by this Court in M/s T.G.B. Realty Pvt. Limited (supra), the relevant paras of which are quoted herein under:-
"The petitioner is not asking for review of any of the orders passed by the RERA rather it is asking for recall of the orders on the ground that the notice was never served upon him and that it was denied opportunity of hearing. A recall application of such a nature falls within the purview of the procedural review rather than a substantive review.
The power of substantive review alone can be exercised, if such a power is conferred under the relevant Act or the Statute but this not the position in regard to dealing with application (s) for the procedural review.
It is well recognized that every court/tribunal has an inherent power of procedural review and the same can not be denied to the petitioner merely for the reason that there is no provision to that effect in the Act/Statute.
In view of the aforesaid facts and circumstances, we dispose of the writ petition with liberty to the petitioner to apply for recall of the two orders impugned in this writ petition passed by the RERA. In case any such recall application/(s) are filed, the RERA would entertain the same and dispose them of in accordance with law most expeditiously, if possible, within a period of one month from the date of the filing of such application (s)."
In view of the aforesaid facts, this writ petition is disposed of with the direction to respondent no. 4 to consider and decide recall application of the petitioners dated 14.12.2020 afresh on merits, keeping in view observations made by this Court in M/s T.G.B. Realty Pvt. Limited (supra), by a reasoned speaking order, as expeditiously as possible, preferably, within six weeks from the date of production of copy of this order, in accordance with law.
Order Date :- 22.1.2021/Amit Mishra