Court No. - 29
Case :- WRIT - C No. - 28434 of 2021
Petitioner :- M/S Rudra Buildwell Infra Private Limited
Respondent :- State Of U.P. And 7 Others
Counsel for Petitioner :- Pratik Chandra
Counsel for Respondent :- C.S.C.,Wasim Masood
Hon'ble Pritinker Diwaker,J. Hon'ble Ashutosh Srivastava,J.
Heard Sri Pratik Chandra, learned counsel for the petitioner, Sri Wasim Masood, learned counsel appearing for the Respondents No.2, 3 & 4 and learned Standing Counsel, who has accepted notice of the writ petition on behalf of the Respondents No.1, 5 & 6. The notice of Respondents No.7 & 8 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 Rudra Buildwell Infra Private Limited" set up on 10-A, Ground Floor-40, M.I.G. Flats Nirman Vihar Delhi and H-56, Sector-63, Noida, District Gautam Budh Nagar. The project is registered with the Real Estate Regulatory Authority.
The challenge in the writ petition is to an order dated 06.01.2021 passed by the U.P. Real Estate Regulatory Authority (RERA) whereby and whereunder the Complaint No.NCR 144/11/1164/2019 filed by the Respondents No.7 & 8 (Home Buyers) 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 certificate dated 25.06.2021 issued by the Respondent No.2, directing the recovery of a sum of Rs.11,72,838.49 including the principal amount as well as interest thereon.
Sri Wasim Masood, learned counsel for the Respondent No.2, 3 & 4 points out that the order dated 06.01.2021 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 06.01.2021 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 :- 20.12.2021 pks