Transfer Petition under Article 139 – A - S
SYNOPSIS
The Petitioner is preferring the present Transfer Petition under Article 139 – A of the Constitution of India for the transfer of the Civil Misc. Writ Petitions bearing W.P. No. 35691 of 2019 and W.P. No. 35695 of 2019 titled M/s. M.R. Mittals Infratech Pvt. Limited vs. State of U.P. & Ors, which are pending before the Hon’ble High Court of Judicature at Allahabad, to this Hon’ble Court.
The Petitioner is aggrieved by the orders dated 20.02.2019 and 03.04.2019 passed by the Respondent No. 2. Vide the said orders it has been held that the Petitioner is liable to pay the interest at the rate of MCLR+1% for delay in delivery of possession of the flat to the private Respondents herein.
The Petitioner Company entered into an agreement with the private Respondents with respect to a purchase of a property in their housing project. There was however, a delay in granting possession of the property to the said Respondent due to which they all filed applications before Respondent No. 2 seeking refund and compensation for such delay despite an agreement already in place between the Petitioner and the Homebuyers granting Rs. 5 per sq. ft. for delay of each month.
Thereafter, the Petitioner preferred two Writ Petitions against the aforesaid orders passed by Respondent No. 2 as Writ Petition bearing W.P. No. 35691 of 2019 and W.P. No. 35695 of 2019 titled M/s. M.R. Mittals Infratech Pvt. Limited vs. State of U.P. & Ors. which are currently pending before the Hon’ble High Court of Judicature at Allahabad.
The Regulatory Authority in exercise of powers conferred under Section 85 of the Act proceeded to frame Regulations which came to be notified on 27.02.2019. Regulation 24 provides for the adjudication proceeding and Clause (b) thereof provides for the appointment of the Adjudicating Officer by the Authority in consultation with the State Government for the purpose of adjudicating the matters of compensation admissible under the Act. Clause (c) of Regulation 24 unambiguously provides that while the Authority will decide all the question of breaches of Acts, Rules and Regulations, it will refer the question relating to the adjudication of compensation to one of the Adjudicating Officer on the panel of U.P. RERA who will decide the matter expeditiously and preferably within 60 days.
From the reading of the Act, Rules and the Regulations framed thereunder it does not remain in doubt that the nominated person in passing the impugned order has acted in total disregard to the mandate contained under the statute. Such officer has usurped the powers conferred upon the adjudicating officer with respect to the matters under Section 18 of the Act and has proceeded to consider and pass the impugned order himself which action is wholly arbitrary and without jurisdiction and is liable to be declared a nullity.
In so far as the government order dated 09.06.2017 is concerned the same is contrary to the provision of Section 20 of the Act of 2016 inasmuch as the powers conferred upon the State Government to designate the Secretary as the Regulatory Authority was only contemplated for the period of one year starting from 01.05.2016 during which the State Government was required to establish the Real Estate Regulatory Authority. Such period of one year having come to an end on 30.04.2017, there was no occasion for issuing of government order dated 03.05.2017 and 09.06.2017 designating the Respondent No. 1 as a Regulatory Authority in terms of the proviso to Section 20 of the Act of 2016. The effect and purport of the order dated 09.06.2017 would, therefore, be that the powers of the Regulatory Authority could not be deemed to have been conferred upon the Secretary by said government order as the same would be in the teeth of the provisions of the Act of 2016 and in the absence of any validly constituted Regulatory Authority as contemplated by Section 20 of the Act of 2016, the Respondent No.1 could not in exercise of the powers under Section 81 of the Act further delegate the powers of the Regulatory Authority.
In any view of the matter the orders dated 20.02.2019 and 03.04.2019 having been passed by the person who did not possess the requisite qualification and authority under the Act, the orders are required to be set aside being non est. It is a well settled principle of law that where the statute provides for the exercise of powers in a particular manner, such exercise of power could only be within the frame work as provided by the statute and in no other manner. Being a statutory body its jurisdiction shall be confined to the four corners of its parent Act as has been consistently held by the Hon’ble Supreme Court in a catena of decisions.
It is pertinent to note that a Special Leave Petition bearing SLP (C) No. 20585 of 2019 was filed before this Hon’ble Court titled as M/s M.R. Mittals Infratech Pvt. Ltd. v. State of Uttar Pradesh and Ors wherein similar issues relating to substantial questions of general importance has arisen before this Hon’ble Court.
It is submitted that in the Writ petitions in question as well as the Special Leave Petition, substantially common and identical questions of law are involved which pertains to the powers of Respondent No. 2, applicability of the RERA Act as well as the applicability of interest @MCLR+1%. It is respectfully submitted that it would be in the interest of Justice to transfer the Writ Petitions in question to the file of this Hon’ble Court.
Hence, the present Transfer Petition.