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2025 Supreme(Online)(J&K) 1640
HIGH COURT OF JAMMU AND KASHMIR
Moksha Khajuria Kazmi, J
SANDEEP KUMAR AND OTHERS – Appellant
Versus
ROYAL OMKAR NESTS PVT LTD. JAMMU AND ANOTHER – Respondent
MA 75 / 2025
For the Appellants/Petitioners: Navyug Sethi
For the Respondents: Amit Gupta, Vinay Chib, Sumit Moza
The requirement under Section 43(3) of the RERA Act that every Bench of the Appellate Tribunal shall consist of at least one Judicial member and one Administrative or Technical member, and a single Chairperson cannot exercise appellate jurisdiction.
Headnote:(A) Real Estate (Regulation and Development) Act, 2016 - Sections 58, 44(1), 43(3) - Jammu and Kashmir Special Tribunal Act, 1988 - Section 6 - Appeal against order of Chairperson of J&K Special Tribunal recalling interim order - Jurisdiction of Chairperson to hear appeal when Tribunal designated as Appellate Tribunal under RERA but not constituted with required bench - Petitioners sought withdrawal of appeal with liberty to file fresh appeal - Appeal disposed of - Limitation not to be considered.
Facts of the case:
The appellants filed an appeal under Section 58 of the RERA Act, 2016 against an order dated 04.12.2025 of the Chairperson, Bench-I, J&K Special Tribunal, which had recalled an interim order dated 22.09.2025 on the ground that it was passed without jurisdiction, as the Chairperson alone could not constitute a bench under Section 43(3) of the RERA Act. The Chairperson granted liberty to file a fresh appeal and maintained status quo. The appellants contended that the Chairperson had authority under Section 6 of the J&K Special Tribunal Act, 1988. The respondents argued that Section 43(3) requires at least one judicial member and one administrative or technical member. After arguments, the appellants sought withdrawal of the appeal with liberty to approach the Special Tribunal in terms of the order dated 04.12.2025.
Findings of Court:
The court allowed the withdrawal and disposed of the appeal, granting liberty to the appellants to file a fresh appeal within one week, with the direction that limitation shall not come in the way.
Issues: The main issue was whether the Chairperson of the J&K Special Tribunal had jurisdiction to pass the interim order in the appeal under the RERA Act, given the requirement of a bench under Section 43(3). However, the court did not decide this issue on merits.
Ratio Decidendi: The court did not lay down a ratio decidendi as the appeal was withdrawn. The order implicitly acknowledges that the proper course is to file a fresh appeal before a bench constituted in accordance with Section 43(3) of the RERA Act.
Result: Appeal disposed of as withdrawn with liberty.
Sr. No. 17
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
MA No.75/2025
CM No.8452/2025
c/w
Caveat No.2856/2025
Date of Pronouncement:27.12.2025
Uploaded on: .12.2025
Sandeep Kumar & Ors. .....Applicant(s)/Petitioner(s)
Through :- Mr. Navyug Sethi, Advocate.
v/s
Royal Omkar Nests Private Ltd. Jammu & .....Respondent(s)
Anr.
Through :- Mr. Amit Gupta, Sr. Advocate with
Mr. Vinay Chib, Advocate.
Mr. Sumit Moza, Advocate.
CORAM: HON’BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
Caveat No.28562/2025
With the appearance of Mr. Vinay Chib, Advocate, the caveat stands
discharged.
MA No.75/2025
01. By this appeal filed under Section 58 of the Real Estate (Regulation and
Development) Act, 2016 against the order dated 04.12.2025, passed by
the Chairperson, Bench-I, J&K Special Tribunal, Jammu in RERA
Appeal under Section 44(1) of the RERA Act, 2016 titled “Sandeep
Kunar and Ors. V. Royal Omkar Nests Private Limited & Anr.”, to the
extent interim order dated 22.09.2025, passed by Real Estate Appellate
Tribunal in appeal (Supra) has been recalled and reviewed on the
ground that the same has been passed without jurisdiction. However,
##PAGE2##2
liberty has been granted to the appellants to file fresh appeal, which as
per the petitioners is contrary to the provisions of law.
02. It is stated by learned counsel for the petitioners that Chairperson of the
J&K Special Tribunal had no authority to recall or review the interim
order dated 22.09.2025. Moreover, in terms of S.O. 637, Government
of J&K, Housing and Urban Development Department in exercise of
powers conferred by first proviso to sub-section (4) of Section 43 of the
Real Estate (Regulation and Development) Act, 2016 has designated
the Jammu and Kashmir Special Tribunal as Appellate Tribunal for
purposes of the Act, till a regular Tribunal is constituted in terms of
Section 43 of the Act.
03. It is stated by learned counsel for the petitioners that since the learned
Special Tribunal has been given the power in terms of S.O. 637, as
such, under Section 6 of the Jammu and Kashmir Special Tribunal Act,
1988, Chairperson is empowered to hear the appeal and to pass interim
orders.
04. Learned senior counsel for the respondents states that Section 43(3) of
the Real Estate (Regulation and Development) Act, 2016 provides that
“every Bench of the Appellate Tribunal shall consist of atleast one
Judicial member and one Administrative or Technical member”. As
such, Chairperson had no authority to consider the appeal filed by the
petitioners under Section 44(1) of the RERA Act.
05. In terms of the impugned order, learned Special Tribunal has recalled
the interim order, granted in favour of the petitioners dated 22.09.2025,
with a liberty to the petitioners to file fresh appeal, which shall be
assigned to the Bench constituted in terms of Section 43(3) of the Real
Estate (Regulation and Development) Act, 2016. Interim direction has
##PAGE3##3
been granted to the petitioners, thereby, granting status quo, which had
been directed to be maintained by respondent Nos.1 and 2 with respect
to the common area of the project till filing of fresh appeal by the
petitioners.
06. After arguing for a while, learned counsel for the petitioners seeks
withdrawal of the appeal with liberty to approach the learned Special
Tribunal within a period of one week from the date of passing of this
order strictly in terms of order dated 04.12.2025. However, limitation
for filing an appeal shall not come in the way of the petitioners.
07. Disposed of.
(Moksha Khajuria Kazmi)
Judge
JAMMU
27.12.2025
Eva
Whether the order is speaking or not? Yes
Whether the order is reportable or not? No
