Court No. - 29
Case :- WRIT - C No. - 34393 of 2021
Petitioner :- M/S Mist Avenue Pvt. Ltd.
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vinod Kumar Agarwal,Anshul Kumar Singhal
Counsel for Respondent :- C.S.C.,Wasim Masood
Hon'ble Pritinker Diwaker,J. Hon'ble Ashutosh Srivastava,J.
Shri Vinod Kumar Agarwal, 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 respondent No.1 and 3. The notice of respondent No. 4 is dispensed with in view of the order being passed by us.
The writ petitioner is a promoter of a Group Housing Project in the name and style of "M/s Mist Avenue Pvt. Ltd." having its office at 28, Raja Garden, New Delhi-110015. The project is registered with the Real Estate Regulatory Authority.
The challenge in the writ petition is to an order dated 22.12.2020 passed by the U.P. Real Estate Regulatory Authority (RERA) whereby and whereunder the Complaint No. NCR144/02/50148/2020 filed by the respondent No. 4 (Home Buyer) under Section 18 read with 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 the order. The petitioner has also challenged the consequent recovery citation dated 23.6.2021 issued by the Secretary, RERA, directing the recovery of a sum of Rs.14,58,592.57 including the principal amount as well as interest thereon.
Shri Wasim Masood, learned counsel for the respondent No. 2 points out that the order dated 22.12.2020 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 22.12.2020 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 :- 23.12.2021 Ravi Prakash