The unqualified right of home buyers under the Real Estate Regulation and Development Act and the condition of pre-deposit as envisaged under Section 43(5) of the Act were central to the court's decision.

JUDGMENT

Amol Rattan Singh, J. (Oral) -

CM-7076-CWP-2022 in CWP No.17657 of 2020; CM-6979-CWP-2022 in CWP No.17663 of 2020; CM-7184-CWP-2022 in CWP No.4231 of 2021; CM-7045-CWP-2022 in CWP No.4235 of 2021; CM-7172-CWP-2022 in CWP No.4236 of 2021; CM-7915-CWP-2022 in CWP No.4230 of 2021; CM-7978-CWP-2022 in CWP No.4229 of 2021; CM-7979-CWP-2022 in CWP No.4232 of 2021; CM-8097-CWP-2022 in CWP No.4234 of 2021 ; CM-8306-CWP-2022 in CWP No.4228 of 2021; CM-8307-CWP-2022 in CWP No.4233 of 2021

1. Vide these applications, the petitioner in the accompanying petitions seeks to amend the petitions, with Mr. Bhandari, learned counsel appearing for the applicant, submitting that the essence of the amendment is that in case this court does not allow the accompanying petitions and the petitioner is to be relegated to the alternative remedy of an appeal before the Real Estate Appellate Tribunal, to challenge the orders impugned in these petitions, a reasonable time may be given to it to make a pre-deposit before the appeals are heard [in terms of Section 43(5) of the Real Estate (Regulation and Development) Act, 2016].

Notice in the applications.

2. Counsel for the non-applicant/respondent No.2 (in CWP-4236-2021), accepts notice, with Mr. Mittal learned counsel appearing for the respondent Real Estate Regulatory Authority, accepting notice in all the applications.

3. Very fairly, learned counsel for the respondents submit that as regards the amendment itself, they do not oppose the applications, but of course as regards the contents of the amended petitions, they would have their arguments to make on the merits thereof.

4. Consequently, the applications are allowed and the amended writ petitions are ordered to be taken on record to substitute the original petitions filed in each case.

Main Cases

5. Mr. Bhandari, learned counsel for the petitioner company (hereinafter referred to as the 'developer'), submits that the orders impugned in these petitions need to be treated to be void ab initio as they are against the basic principles of natural justice, inasmuch as the petitioner company was never heard in the matter, as would be obvious from the impugned orders themselves, with him further submitting that the complaints filed by the home buyers came up for hearing on different dates during the course of the ongoing pandemic; and consequently were adjourned from time to time without any actual hearing taking place, but on the date of passing of the impugned orders (i.e. 30.10.2020), the matters were taken up and decided in the absence of any representative or counsel for the petitioner company, with no advance intimation given to the effect that the matters would actually be taken up for hearing and would not be adjourned as they were being earlier due to the pandemic.

6. Whereas that argument is most definitely a tenable argument otherwise and on the principle audi alteram partem alone, we may otherwise have interfered in the matter, but Mr. Mittal learned counsel for the respondent RERA, firstly submits that the issue of waiving a pre-deposit to be made prior to an appeal being heard by the Tribunal, has been conclusively decided by the Supreme Court not just in the case of 'M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of U.P. and others', 2022(1) R.C.R. (Civil) 357, but in the case of the petitioner company itself also, i.e. in 'Sana Realtors Private Limited Vs. Union of India and others', SLP(C) No.13005 of 2020, the SLP has been dismissed in terms of the ratio of the judgment in Newtechs' case (supra); and consequently, with an alternative remedy of challenging the impugned orders on the merits/demerits thereof, available with the petitioner before the learned Real Estate Appellate Tribunal, this court would not exercise jurisdiction under Article 226 of the Constitution of India, to entertain these petitions. He specifically refers to paragraphs 78, 136 and 137 of the judgment in Newtechs' case (supra), which reads as follows:-

'78. This