Court No. - 40
Case :- WRIT - C No. - 36102 of 2018 Petitioner :- Srb Promoters Pvt. Ltd. Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Alok Tiwari Counsel for Respondent :- C.S.C.
Hon'ble Amreshwar Pratap Sahi,J. Hon'ble Ajit Kumar,J.
The petitioner has assailed rectification order dated 17th July, 2018 on the ground that the same is perverse and amounts to a substantive alteration of the order passed on 13th June, 2018, which is impermissible in terms of Section 39 of the Real Estate (Regulation and Development) Act, 2016.
The contention of the learned counsel is that imposition and realization of such amount with retrospective effect as per the circular dated 19th June, 2018 is even otherwise illegal and the same could not have been done by way of suo motu rectification, rather an appropriate order had to be passed after putting the petitioner to notice. This issue does require consideration keeping in view the language used in Section 39 of 2016 Act, which is extracted hereunder:
"39. Rectification of orders: -The Authority may, at any time within a period of two years from the date of the order made under this Act, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act: Provided further that the Authority shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act."
However, learned counsel for the State has taken an objection that such an order can also be challenged under Section 43 of the 2016 Act, before the Appellate Tribunal and, therefore, the petitioner should be relegated to that remedy.
Keeping in view of the nature of the issue raised, we find that the matter can be adjudicated by the Appellate Tribunal in terms of Section 43 of 2016 Act, but the petitioner apprehends the nature of deposit which has to be made while filing of such appeal according to the proviso to Sub- section 5 of Section 43 of the Act, 2016.
Having considered the submissions raised, we permit the petitioner to file an appeal before the Appellate Tribunal and the same shall be entertained provided the petitioner deposits 30 per cent of the liability as fixed under the impugned order. The Appellate Tribunal shall then proceed to consider the appeal on merits and pass appropriate orders in accordance with law. The appeal may be preferred within 15 days and the same may be decided expeditiously.
Disposed of.
Order Date: 30.10.2018
Sanjeev