At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE MANOJ KUMAR GUPTA & THE HONOURABLE DR. JUSTICE YOGENDRA KUMAR SRIVASTAVA
For the Petitioner: Vinayak Mithal, Advocate. For the Respondents: ------------
Heard Sri Vinayak Mithal, learned counsel for the petitioner, Ms. Anjali Upadhyay, learned counsel for respondent no.1, Sri Anil Tiwari, learned Senior Counsel assisted by Sri Wasim Masood Khan, learned counsel appearing on behalf of respondent no.2, learned Standing Counsel for respondent no.3 and Sri Bhuvan Raj, learned counsel for respondent no.5.
The petitioner, a private limited company, has filed the instant petition praying for a mandamus commanding U.P. Real Estate Appellate Tribunal, Lucknow, respondent no.4 to expeditiously decide the stay application as well as Appeal No.349/2019 and for quashing of orders passed by Secretary U.P. RERA, District Gautam Budh Nagar dated 06.06.2020 and 26.06.2020.
The petitioner is a company engaged in constructing group housing projects. One of its project in the name and style of Sampada Livia was registered under the Real Estate Regulation and Development Act, 2016 (hereinafter referred to as 'the Act').
When the project was not completed within the prescribed time frame, the Secretary U.P. RERA proceeded to pass an order dated 30.09.2020 revoking the registration of the project. Aggrieved thereby the petitioner company filed an appeal before the Appellate Tribunal being Appeal No.349/2019. According to the petitioner, a stay application was also filed before the Appellate Tribunal for staying the order impugned before it in appeal. However, it seems that neither the stay application nor the appeal could be heard and decided so far. A statement has been made at Bar by the learned counsel for the parties that today was the date fixed before the Tribunal and the Tribunal has now fixed 29.07.2020 as the next date. It has called for the original records from the Authority to facilitate disposal of the appeal on the next date. However, it is an admitted fact that no orders have been passed on the stay application so far.
In the meantime it seems that the Secretary U.P. RERA passed an order on 06.06.2020 approving the project report submitted by the Allottees Association of the project (respondent no.5) followed by order dated 26.06.2020 directing the petitioner company to handover the project to the Allottees Association within three days i.e. by 29.06.2020. A copy of the said order has been forwarded to the Police Commissioner, Gautam Budh Nagar with request to take appropriate action for enforcement of the order.
It is in the said background that the petitioner has approached this Court by way of instant petition. The main submission of the learned counsel for the petitioner is that during pendency of the statutory appeal, the respondent no.2 had acted in an illegal and arbitrary manner in passing various orders in an effort to implement the order which is under challenge in appeal. It is also urged that since the order impugned in appeal entails serious consequences, therefore, the appellate authority ought to have disposed of the stay application.
Learned counsel for respondent no.5 submitted with vehemence that the petitioner had delayed the completion of the project. He further submitted that there was cogent evidence before the Authority for de-registering the project and therefore no indulgence is liable to be shown to the petitioner company. He further submitted that since the appeal is pending, therefore, the instant petition is not maintainable.
Sri Anil Tiwari, learned Senior Counsel on instructions states that the original record of the authority would be transmitted to the appellate authority within a week to enable the appellate authority to decide the appeal pending before it. He, however, does not dispute that the stay application filed by the petitioner has not been disposed off so far.
After hearing the parties, we find that one thing which is not in dispute is that the appeal is still pending and so is the stay application. It is also not in dispute that the orders dated 06.06.2020 and 26.06.2020 are consequential to the main order de-registering the project. The main order, as noted above, is already under challenge in appeal and in respect of which a prayer for stay is pending consideration before the appellate tribunal. When the petitioner has availed the remedy of statutory appeal and has also applied for stay, in our considered opinion, the stay application ought to have been considered by the appellate tribunal particularly when the order impugned in appeal is sought to be implemented by passing various consequential orders having serious consequences.
In these circumstances, we direct the appellate authority to make all endeavour to decide the appeal on 29.07.2020 finally, the next date fixed in the matter.
If for some reason, the appeal could not be decided finally on the next date, we expect the appellate authority to at least dispose of the stay application.
Learned counsel for the petitioner has given an undertaking on behalf of the petitioner that the petitioner will not seek any adjournment on the next date
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fixed before the appellate authority. Having regard to the entire facts, we further direct that till the appeal is decided or the stay application is taken up for consideration by the appellate authority on the next date fixed i.e. 29.07.2020, status quo as of date, shall be maintained. It is clarified that the interim protection granted by this Court shall not influence the appellate tribunal in any manner in deciding the appeal on merit or while deciding the stay application. The writ petition is disposed of accordingly.