Jugal Kishore Colonizers Pvt. Ltd. Lko. Thru. Authorised Signatory Shri Hemant Kumar Mukherjee v. Balbir Sahai Saxena

Allahabad HC12 Jul 2024RERA/28/2024

Case brief

AI extract

What is this about?

Appellant challenged an order of the Real Estate Appellate Tribunal, Uttar Pradesh, alleging violation of Section 43(3) of the RERA Act, 2016 due to the bench consisting of two Judicial Members instead of the mandated mix. Bench stayed the impugned order pending proceedings.

What did the court decide?

Stayed the operation of the impugned order from 07.05.2024.

Jugal Kishore Colonizers Pvt. Ltd. Lko. Thru… — Company and Corporate | Allahabad HC (2024)

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Court No. - 7

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Case :- RERA APPEAL No. - 28 of 2024

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Appellant :- Jugal Kishore Colonizers Pvt. Ltd. Lko. Thru. Authorised Signatory Shri Hemant Kumar Mukherjee Respondent :- Balbir Sahai Saxena Counsel for Appellant :- Azhar Ikram,Manish Singh

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Hon'ble Alok Mathur,J.

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Heard Shri ,Manish Singh, learned counsel for the appellant.

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By means of the present appeal, the appellant has challenged the order of the Real Estate Appellate Tribunal, Uttar Pradesh, Lucknow dated 07.05.2024.

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It has been submitted that the said impugned order has been passed by two Judicial Members of the Tribunal, which is contrary to the provisions contained in the Real Estate (Regulation & Development) Act, 2016 inasmuch as per the provisions contained in Section 43(3) :- Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. He submits that the phraseology used by the Parliament while enacting Section 43 of the Act, 2016 is very clear in its term and it has been provided that a Bench shall consist of at least one Judicial Member and one Administrative or Technical Member. He submits that accordingly, Bench of two Judicial Members is not envisaged and hence it is coram non judice and hence, the order is non-est, illegal and arbitrary. He further submits that even the powers contained in Section 55 of the Act, 2016 will not come to support the impugned order so as to validate the aforesaid proceedings. He submits that Section 55 would only prevent invalidation of orders which are passed merely because any defect in the constitution of, the Appellate Tribunal, or any defect in the appointment of a person acting as a Member of the Appellate Tribunal; or any irregularity in the procedure of the

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Appellate Tribunal not affecting the merits of the case. He submits that the very constitution of the Bench of two Judicial Members would be hit by Section 43 (3) of the Establishment of Real Estate Appellate Tribunal and only the matter which are protected under Section 55 would be akin to the fact where the appointment of one of the Members subsequently challenged and is held to be not qualified and consequently any order passed by such a member while discharging duties on a Bench of the Appellate Tribunal would validate and such orders would not be effective even if subsequently the appointment of such a Member is held to be invalid. He further submits that Section 55 Real Estate (Regulation and Development) Act, 2016 can not be resorted as a measure of constituting a Bench in violation of provisions of Section 43(3) of the Act and therefore, submits that the impugned order is illegal and arbitrary and deserves to be set aside.

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Hon'ble Supreme Court of India in the case of L. Chandra Kumar v. Union of India, (1997)3 SCC 261 while emphasizing on the importance of both judicial and administrative members in constitution of bench in Tribunals, has held:-

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"95. It must be remembered that the setting-up of these Tribunals is founded on the premise that specialist bodies comprising both trained administrators and those with judicial experience would, by virtue of their specialised knowledge, be better equipped to dispense speedy and efficient justice. It was expected that a judicious mix of judicial members and those with grassroot experience would best serve this purpose. To hold that the Tribunal should consist only of judicial members would attack the primary basis of the theory pursuant to which they have been constituted. Since the Selection Committee is now headed by a Judge of the Supreme Court, nominated by the Chief Justice of India, we have reason to believe that the Committee would take care to ensure that administrative members are chosen from amongst those who have some background to deal with such cases."

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Matter requires consideration.

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Issue notice to the respondent, returnable at an early date.

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Steps to be taken within ten days.

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List this case on 22.08.2024.

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Till the next date of listing, operation of the impugned order 07.05.2024 passed by Real Estate Appellate Tribunal, Uttar Pradesh, Lucknow shall remain stayed.

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Order Date :- 12.7.2024 KR

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(Alok Mathur,J.)

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Digitally signed by :- RABINDRA KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Jugal Kishore Colonizers Pvt. Ltd. Lko. Thru. Authorised Signatory Shri Hemant Kumar Mukherjee v. Balbir Sahai Saxena

Case brief

What is this about?

What did the court decide?

Jugal Kishore Colonizers Pvt. Ltd. Lko. Thru. Authorised Signatory Shri Hemant Kumar Mukherjee v. Balbir Sahai Saxena

Case brief

What is this about?

What did the court decide?

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