Allowed

Larsen and Toubro Limited L and T House, N.M. Marg, Ballard Estate, Mumbai- 400001 v. Ms. Rekha Sinha

Bombay HC17 Oct 2019SA/699/2019

Case brief

AI extract

What is this about?

The Court allowed an appeal questioning the jurisdiction of a sole member of the Maharashtra Real Estate Appellate Tribunal. It held that a bench must consist of at least one Judicial and one Administrative/Technical member under Section 43(3), and Section 55 does not validate orders passed in violation of this mandatory composition.

What did the court decide?

The appeal was allowed. The impugned order dated 14/03/2019 passed by the Tribunal is set aside, and the matter is remitted for hearing afresh on merits.

Larsen and Toubro Limited L and T House, N.M. Marg… — Service and Employment | Bombay HC (2019)

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sast14061.19.doc

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Urmila Ingale

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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 SECOND APPEAL STAMP NO. 14061 OF 2019
WITH

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 CIVIL APPLICATION NO. 894 OF 2019

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Larsen and Toubro Limited .. Appellant
Vs.
Ms.Rekha Sinha .. Respondent

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Mr.Anand Pai a/w Mr.Nilesh Gala & Mr.Manish Gala i/b Law
Square, for the Appellant.
Ms.Samiksha Manek i/b PRA Law Offices, for the Respondent.

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CORAM : M.S.KARNIK, J.

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 DATE : 17th OCTOBER, 2019

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P.C.:

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.Heard learned Counsel for the appellant and the

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learned Counsel for the respondent.

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Admit on the following substantial question of law :-

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(a) Whether a sole member of the Maharashtra Real
Estate Appellate Tribunal can decide any appeal or
application for condonation of delay or any
application contemplated under the provisions of Real
Estate (Regulation and Development) Act, 2016 or the
same has to be heard and can be disposed of only by
the Bench comprising of two members including one
judicial member ?

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sast14061.19.doc

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2.The Appeal is heard finally by consent of the parties.
The issue involved in this Appeal is squarely covered by the
decision rendered by learned Single Judge of this Court in
Second Appeal Stamp No. 14845 of 2019 decided on
01/10/2019 in the case of Man Global Limited Vs. Bharat
Prakash Joukani. Learned Single Judge was of the opinion that
on plain reading of section 43(3) of the Real Estate (Regulation
and Development) Act, 2016 (for short ‘said Act’), the sole
member of the Tribunal does not have jurisdiction to dispose of
appeal or any application including even an application for
condonation of delay in filing appeal. Learned Single Judge
held that the order passed by the sole administrative member
sitting singly is without jurisdiction and therefore the same is set
aside.

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3.As the issue involved in the present Appeal centres
around section 43(3) of the said Act, it would be convenient to
reproduce the same which reads thus:

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“43(3) - Every bench of the Appellate Tribunal shall consist of atleast

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sast14061.19.doc

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one Judicial Member and one Administrative or Technical Member.”

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4. Learned Counsel for the respondent submitted that

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the view of the learned Single Judge may not be correct as the
issue is decided without considering the provisions of section 55
of the said Act. According to learned Counsel the order passed
by the Member of the Appellate Tribunal sitting singly would
stand validated by operation of section 55. Section 55 reads

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thus :

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“No act or proceeding of the Appellate Tribunal shall be invalid merely by reason of-

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(a) any vacancy in, or any defect in the constitution of, the Appellate Tribunal, or

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(b) any defect in the appointment of a person acting as a Member of the Appellate Tribunal; or

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(c) Any irregularity in the procedure of the Appellate
Tribunal not affecting the merits of the case.”

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5.I see no reason to defer with the view taken by

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learned Single Judge as in my opinion, conjoint reading of
section 43(3) and section 55 of the said Act will make it clear

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that orders passed by the Member of the Appellate Tribunal
sitting singly will not stand validated by virtue of section 55 as
this could violate the plain language of section 43(3) of the said

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sast14061.19.doc

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Act. The Apex Court in Gulzari Lal Agarwal Vs. Accounts Officer
reported in (1996) 10 Supreme Court Cases 590 held that every
provision in the Act needs to be construed harmoniously with a
view to promote the object and spirit of the Act but while doing
so, no violence would be done to the plain language used in the
section.

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6.The next contention of the learned Counsel for
respondent is that similar provision exists under the Consumer
Protection Act, 1986 and that the Apex Court in the case of
Gulzari Lal Agarwal (supra) by harmoniously construing the
object of Consumer Protection Act validated similar such orders
passed. In the present case, the issue that arises for
consideration is whether the order passed by the Member of the
Appellate Tribunal sitting singly is valid even though the
requirement of sub-section 3 of section 43 of the said Act is that
the bench of the Appellate Tribunal shall consist of at least one
Judicial Member and one Administrative or Technical Member.
Gulzari Lal Agarwal ’s case, in my opinion is not an authority for

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sast14061.19.doc

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the proposition that arises for consideration in the present case
and hence not applicable. The issue in Gulzari Lal
Agarwal’s casewas whether the absence of the President of the
Commission would render the Commission non-functional and
whether the order passed by the Commission in the absence of
the President is illegal and void. No doubt and as held by the
Apex Court in Gulzari Lal Agarwal’s case(supra) every provision
in the Act needs to be construed harmoniously with a view to
promote the object and spirit of the Act, however, Their
Lordships have held that while doing so, no violence would be
done to the plain language of the section.

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7.The next submission urged by learned Counsel for
the respondent is that the decision of the learned Single Judge
of this Court in the case of Man Global Limited will have no
application as the learned Single Judge was considering the fact
situation where an order was passed by the Administrative
Member alone whereas in the present case, the impugned order
is passed by the Judicial Member sitting singly. In my opinion,

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sast14061.19.doc

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this submission can only be stated to be rejected in view of the
language used in sub-section 3 of section 43 of the said Act
which does not make a distinction between a Judicial or
Administrative Member and that it is for the composition of the
Bench of the Appellate Tribunal the requirement of law is that it
shall consist of at least one Judicial Member and one
Administrative or Technical Member.

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8.I do not see any reason to disagree with the view
taken by learned Single Judge in Man Global Limited. The
present Appeal therefore succeeds and is accordingly allowed
with no order as to cost.

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9.The impugned order dated 14/03/2019 passed by
the Tribunal is set aside.

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10.Matter is remitted back to the Tribunal for hearing

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the same afresh on its own merits and in accordance with law.
All contentions on merits are kept open. The Tribunal is
requested to hear the Appeal as expeditiously as possible.

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sast14061.19.doc

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11.The parties to appear before the Appellate Tribunal
on 05/11/2019 at 11.00 a.m.

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12.In view of disposal of the Second Appeal, Civil
Application does not survive and the same stands disposed of
accordingly.

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Digitally signed Urmila by Urmila P. Ingle Date: 2019.10.18 P. Ingle 16:24:17 +0530

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Larsen and Toubro Limited L and T House, N.M. Marg, Ballard Estate, Mumbai- 400001 v. Ms. Rekha Sinha

Case brief

What is this about?

What did the court decide?

Larsen and Toubro Limited L and T House, N.M. Marg, Ballard Estate, Mumbai- 400001 v. Ms. Rekha Sinha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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Coram

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