Allahabad HC Initiates Suo Moto PIL Over Vacancies In UPREAT Following 'Suspension' Of Tribunal's Functioning

The Allahabad High Court's decision has been prompted by the Real Estate Appellate Tribunal's recent move (May 15) to suspend its judicial functioning.

This decision of the UP REAT was made due to the lack of an Administrative/Technical member, raising concerns about the administration of justice in matters related to real estate disputes in the state.

Stressing that the Tribunal's functioning cannot be stalled merely because the State has not filled the vacancy of Administrative/ Technical member, a bench of Justice Rajan Roy and Justice Om Prakash Shukla directed for the resumption of the Tribunal functioning.

“Considering the provision of Section 55 of the Act, 2016, we further order that the functioning of the Tribunal, as it was taking place prior to 15.05.2024, shall stand resumed forthwith under our orders, uninfluenced by any observation made in RERA Appeal Defective No. 9 of 2024, until further orders…,” the Court directed.

The matter was brought to HC's notice by a practicing lawyer of the Court, who highlighted that the tribunal's operations, as established under Section 43 of the Real Estate (Regulation and Development) Act, 2016, have effectively been halted.

It was further submitted that suspending judicial functioning has resulted in significant inconvenience, hardship, and prejudice to appellants who have filed appeals with the tribunal, contesting orders issued by the Real Estate Regulatory Authority and the Adjudicating Officer.

It was strongly contended that the Notice of the UP REAT would result in absolute chaos, and hence, it was prayed that the division bench would take cognisance of the same in the larger public interest.

For context, the notice of the UP REAT in question was issued on account of an order passed by Bench no. 1 of the Appellate Tribunal (dated May 15) wherein an order of the High Court (dated May 10) was referred to wherein it was observed that every Bench of the Real Estate Appellate Tribunal (REAT) must include at least 1 judicial member and 1 administrative or technical.

The single judge had made this observation while considering the mandate of Section 43(3) of the RER Act 2016, which provides that 'every Bench of the Appellate Tribunal shall consist of at least one judicial member and one administrative or technical member' statutory requirement.

In view of this pronouncement of the Single Judge of the HC, a Bench of the RERA Appellate Tribunal headed by its chairman issued an office order, effectively suspending the tribunal's functioning. The same reads thus:

“As per the observation/order of the Hon'ble High Court, at present the Tribunal cannot constitute the Bench on account of non- availability of Technical or Administrative Member. Hence, in reverence to the order of the Hon'ble High Court and inability to constitute the Bench, we are left with no option but to suspend the judicial functioning of the Tribunal till the appointment of the Technical/Administrative Member by the State Government.”

Taking suo moto notice of the suspension of the Tribunal's judicial functioning, the Division bench took into account Section 55 of the 2016 Act, which provides that no act or proceeding of the Appellate Tribunal shall be invalid merely by reason of, inter alia, any vacancy in or defect in the constitution of the Appellate Tribunal.

However, leaving the import, purport and meaning of the said provision read with other provisions of the Act, 2016, open for consideration on the next date, the division bench, considering the larger public interest involved in the Court, initiated the suo moto PIL.

“If we do not interfere, then this will result in grave hardship and prejudice to the litigants before Appellate Tribunal. (21) We will also consider the import and meaning of Section 43 and other provisions of the Act, 2016 in this regard on the next date,” the Court observed.

The Court also directed Additional Advocate General Kuldio Tripathi to seek instructions from the Department of Urban Housing and Planning, Govt of UP, as to why the appointment of an Administrative/ Technical member is not being made for the Appellate Tribunal

“The State should be conscious and aware of the problems of the litigants appearing before the Appellate Tribunal, as also the avowed object, which the Act, 2016 seeks to achieve and take immediate steps for appointment of a member so that the functioning of the appellate Tribunal is not stalled,” the Court said.

The matter will now be heard on May 27.