# Anupma Sinha v. Real Estate

- **Citation:** (2023) 4 ILRA 64
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-04
- **Case number:** Matters U/A 227 No. 1396 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anupma-sinha-v-real-estate-49994
- **Pages:** 7

## Headnote

A. Real Estate Law - Maintainability - Real
Estate (Regulation and Development) Act,
2016 - Section 40 r/w Rule 23 of Rules,
2016 - A preliminary objection has been raised
in order dated 22.03.2023 w.r.t. maintainability
of petition u/Article 227 of the Constitution of
India that the Real Estate Regulatory Authority
is neither a Court nor a Tribunal.

RERA has been held to be a quasi judicial
authority by Hon'ble the Supreme Court
and has been held to be covered under the
connotation 'Tribunal' and as such petition
would be maintainable.

The
preliminary
aspect
whether
the
authority can be a Tribunal or not in terms of
Article 227 of the Constitution of India is that
it is a statutory authority which is
empowered under special enactment
and setup by the State to decide a lis
between contending parties in a judicial
manner but under exercise of quasijudicial
powers
since
it
has
been
invested with some function of judicial
powers of the State. (Para 10)

The authority (RERA) exercises quasi-judicial
powers and would thus come within the term of
tribunal as envisaged under Article 227 of the
Constitution of India due to which petition
against the said authority would be maintainable
under Article 227 of the Constitution of India.
(Para 13)

B. The petitioner had filed a complaint case
which has been decided on 22.03.2022
whereafter execution of the sale has been
required by filing of an application. It is
submitted
that
in
the
meantime
the
authority itself has framed standard
operating
procedure
on
02.09.2020
which is not being adhered to. As such,
it is submitted that execution order is
required to be made in terms thereof.
(Para 15)
RERA is directed to ensure execution of order
dated 22.03.2022 filed in Complaint No.
LKO162/08/57523/2020, passed by RERA in
terms of its standard operating procedure dated
02.09.2020 in case there is no other legal
impediment. (Para 16)

Writ petition disposed of. (E-4)

Precedent followed:

## Text

64 INDIAN LAW REPORTS ALLAHABAD SERIES
Vivan categorically stated that he intends to
reside with her maternal grandparents and her
mausi (aunt). He expressed his disinclination
to go or live with his father, who has filed the
present petition on their behalf. The second
corpus Divyansh could not identify his father
as he is too young and therefore his desire
could not be elicited. It is submitted on behalf
of private respondents, maternal grandparents
and mausi (aunt) of the corpuses that family
atmosphere of the deponent, father of the
corpuses, is not conducive to their health
growth and polluted. His own mother resides
separately
from
his
father.
Private
respondents
are
well
educated
and
resourceful person and are able to take proper
and due care of the children as they are lying
with them, to ensure over all development. In
counter affidavit, bona fide certificate has
been filed which is issued by the Principal of
Tapasthali Public School, Mainpuri which
bears dated 10.10.2022 in which it is stated
that Vivan s/o Vijay Vikram Singh is a
student of class-3 in his school. He was
admitted to the school by his maternal
grandfather on 6.7.2022. The maternal
grandfather of the child is also bearing all the
academic expenses of the child and they are
ready to carry on nurturing of both the
children of their deceased's daughter.

22. This Court in habeas corpus writ
petition no. 389 of 2020 (Master Aryan and
Another) decided on 1.3.2021 wherein it was
held that in that case the child appeared a bright
and intelligent on his protection before the
Court. He expressed his feelings of animosity
feelings for his mother who was facing a charge
about her husband's death in relation to which
she was subjected to trial and there was a
possibility, remote or not so remote, that she
might be convicted and sentenced on the charge
relating to her husband's (minors' father)
murder. If that were to happen while minors are
staying with her it would create trauma to the
minors, to know that their mother, with whom
they have bonded and are living, stands
convicted of the father's murder and on that
count, this Court dismissed habeas corpus
petition filed by the mother of the children who
were residing with their parental uncle and aunt
after death of their father.

23. Considering rival submissions of
learned counsel for the parties, facts and
attending circumstances of the case and the
judicial authorities of the Hon'ble Apex
Court as well as this Court cited above and
keeping in view the paramount interest of
the welfare of the children who are presently
lying
in
custody
of
their
maternal
grandparents and elder of them has
expressed his unequivocal desire to reside
with them and peculiar facts of the case that
father had sought custody of the child in
present habeas corpus petition who is facing
charge of abatement of commission of
suicide of his wife, the mother of the
children, this Court does not find good
ground to make the rule nisi absolute. It is
accordingly, discharged.

24. In the result, this petition fails and
stands dismissed.
----------
(2023) 4 ILRA 64
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matters U/A 227 No. 1396 of 2023

Anupma Sinha ...Petitioner
Versus
Real
Estate
Regulatory
Authority,
Rajya Niyojan Sansthan, Lko. U.P. &
Anr.
 ...Respondents
4 All. Anupma Sinha Vs. Real Estate Regulatory Authority, Rajya Niyojan Sansthan, Lko. U.P.
 & Anr.
65
Counsel for the Petitioner:
Kartikey Dubey

Counsel for the Respondents:
Shobhit Mohan Shukla

A. Real Estate Law - Maintainability - Real
Estate (Regulation and Development) Act,
2016 - Section 40 r/w Rule 23 of Rules,
2016 - A preliminary objection has been raised
in order dated 22.03.2023 w.r.t. maintainability
of petition u/Article 227 of the Constitution of
India that the Real Estate Regulatory Authority
is neither a Court nor a Tribunal.

RERA has been held to be a quasi judicial
authority by Hon'ble the Supreme Court
and has been held to be covered under the
connotation 'Tribunal' and as such petition
would be maintainable.

The
preliminary
aspect
whether
the
authority can be a Tribunal or not in terms of
Article 227 of the Constitution of India is that
it is a statutory authority which is
empowered under special enactment
and setup by the State to decide a lis
between contending parties in a judicial
manner but under exercise of quasijudicial
powers
since
it
has
been
invested with some function of judicial
powers of the State. (Para 10)

The authority (RERA) exercises quasi-judicial
powers and would thus come within the term of
tribunal as envisaged under Article 227 of the
Constitution of India due to which petition
against the said authority would be maintainable
under Article 227 of the Constitution of India.
(Para 13)

B. The petitioner had filed a complaint case
which has been decided on 22.03.2022
whereafter execution of the sale has been
required by filing of an application. It is
submitted
that
in
the
meantime
the
authority itself has framed standard
operating
procedure
on
02.09.2020
which is not being adhered to. As such,
it is submitted that execution order is
required to be made in terms thereof.
(Para 15)
RERA is directed to ensure execution of order
dated 22.03.2022 filed in Complaint No.
LKO162/08/57523/2020, passed by RERA in
terms of its standard operating procedure dated
02.09.2020 in case there is no other legal
impediment. (Para 16)

Writ petition disposed of. (E-4)

Precedent followed:

1. Newtech Promoters & Developers Pvt. Ltd. Vs
St. of U.P. & ors., 2021 SCC OnLine SC 1044
(Para 5)

2. Pan Realtors Pvt. Ltd. Vs St. of U.P. & ors.,
W.P. No. 27631 of 2021 (Para 5)

3. Associated Companies Ltd. Vs P.N. Sharma &
anr., AIR 1965 SC 1595 (Para 6)

4. All Party Hill Leaders Conference Vs Captain
W.A. Sangma, (1977) 4 SCC 161 (Para 7)

5. St. of Guj. Vs Gujarat Revenue Tribunal Bar
Association, (2012) 10 SCC 353 (Para 8)

Present petition u/Article 227 seeks a
direction to the RERA for taking necessary
steps to ensure execution of order dated
22.03.2022
passed
in
Complaint
No.
LKO162/08/57523/2020, Anupma Sinha
Versus
M/s
Ansal
Properties
and
Infrastructure Limited.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Kartikey Dubey, learned
counsel for petitioner and Mr. Shobhit
Mohan
Shukla,
learned
counsel
for
opposite party no.1.

2. In view of order being proposed to
be passed, notices to opposite party no.2
stand dispensed with.

3. Petition under Article 227 of the
Constitution of India has been filed seeking
a direction to the Real Estate Regulatory
Authority for taking necessary steps to
66 INDIAN LAW REPORTS ALLAHABAD SERIES
ensure execution of order dated 22.03.2022
passed
in
Complaint
No.LKO162/08/57523/2020,
Anupma
Sinha Versus M/s Ansal Properties and
Infrastructure Limited. Further relief for
issuance of Recovery Certificate under
Section 40 of the Real Estate (Regulation
and Development) Act, 2016 read with
Rule 23 of Rules, 2016 has also been
sought.

4. Initially as noticed in order dated
22.03.2023, a preliminary objection has
been raised with regard to maintainability
of petition under Article 227 of the
Constitution of India that the Real Estate
Regulatory Authority is neither a Court nor
a Tribunal.

5. Learned counsel for petitioner in
response to the preliminary objection has
placed reliance on judgement rendered by
Hon'ble the Supreme Court in the case of
Newtech Promoters and Developers Pvt.
Ltd. versus State of U.P. and others
reported in 2021 SCC OnLine SC 1044 as
well as judgment rendered by Coordinate
Bench of this Court in the case of Pan
Realtors Pvt. Ltd. versus State of U.P. and
others passed in W.P. No.27631 of 2021 to
submit that the aforesaid authority has been
held to be a quasi judicial authority by
Hon'ble the Supreme Court and has been
held to be covered under the connotation
'Tribunal' and as such petition would be
maintainable.

6. With regard to aforesaid preliminary
objection, it would be necessary to advert
to whether the Real Estate Regulatory
Authority can be construed to be either a
Court or a Tribunal. The aspect of when an
authority can be said to be a Court or a
Tribunal has been discussed by Hon'ble the
Supreme Court in the case of Associated
Cement Companies Ltd. V. P.N. Sharma
and another reported in AIR 1965 SC
1595:

"9. Tribunals which fall within
the purview of Article 136(1) occupy a
special position of their own under the
scheme of our Constitution. Special matters
and questions are entrusted to them for
their decision and in that sense, they share
with the courts one common characteristic;
both the courts and the tribunals are
"constituted by the State and are invested
with judicial as distinguished from purely
administrative or executive functions",
(vide Durga Shankar Mehta v. Thakur
Raghuraj Singh [(1955) 1 SCR 267 at p.
272] ). They are both adjudicating bodies
and they deal with and finally determine
disputes
between
parties
which
are
entrusted
to
their
jurisdiction.
The
procedure followed by the Courts is
regularly prescribed and in discharging
their functions and exercising their powers,
the Courts have to conform to that
procedure.
The procedure
which
the
tribunals have to follow may not always be
so strictly prescribed, but the approach
adopted by both the Courts and the
tribunals is substantially the same, and
there is no essential difference between the
functions that they discharge. As in the case
of Courts, so in the case of tribunals, it is
the State's inherent judicial power which
has been transferred and by virtue of the
said power, it is the State's inherent judicial
function which they discharge. Judicial
functions and judicial powers are one of
the essential attributes of a sovereign State,
and on considerations of policy, the State
transfers its judicial functions and powers
mainly to the Courts established by the
Constitution; but that does not affect the
competence of the State, by appropriate
measures, to transfer a part of its judicial
4 All. Anupma Sinha Vs. Real Estate Regulatory Authority, Rajya Niyojan Sansthan, Lko. U.P.
 & Anr.
67
powers and functions to tribunals by
entrusting to them the task of adjudicating
upon special matters and disputes between
parties. It is really not possible or even
expedient
to
attempt
to
describe
exhaustively
the
features
which
are
common to the tribunals and the Courts,
and features which are distinct and
separate. The basic and the fundamental
feature which is common to both the Courts
and the tribunals is that they discharge
judicial functions and exercise judicial
powers which inherently vest in a sovereign
State.

44. An authority other than a
Court may be vested by statute with judicial
power in widely different circumstances,
which it would be impossible and indeed
inadvisable
to
attempt
to
define
exhaustively. The proper thing is to
examine each case as it arises, and to
ascertain whether the powers vested in the
authority can be truly described as judicial
functions or judicial powers of the State.
For the purpose of this case, it is sufficient
to
say
that
any
outside
authority
empowered by the State to determine
conclusively the rights of two or more
contending parties with regard to any
matter
in
controversy
between
them
satisfies the test of an authority vested with
the judicial powers of the State and may be
regarded as a tribunal within the meaning
of
Article
136.
Such
a
power
of
adjudication implies that the authority must
act judicially and must determine the
dispute by ascertainment of the relevant
facts on the materials before it and by
application of the relevant law to those
facts. This test of a tribunal is not meant to
be exhaustive, and it may be that other
bodies not satisfying this test are also
tribunals. In order to be a tribunal, it is
essential that the power of adjudication
must be derived from a statute or a
statutory rule. An authority or body
deriving its power of adjudication from an
agreement of the parties, such as a private
arbitrator or a tribunal acting under
Section 10-A of the Industrial Disputes Act,
1947, does not satisfy the test of a tribunal
within Article 136. It matters little that such
a body or authority is vested with the
trappings of a Court. The Arbitration Act,
1940 vests an arbitrator with some of the
trappings of a Court, so also the Industrial
Disputes Act, 1947 vests an authority
acting under Section 10-A of the Act with
many of such trappings, and yet, such
bodies and authorities are not tribunals.

45. The word "tribunal" finds
place in Article 227 of the Constitution
also, and I think that there also the word
has the same meaning as in Article 136.

7. In another case of All Party Hill
Leaders Conference v. Captain W.A.
Sangma, reported in (1977) 4 SCC 161; it
has been held as follows:-

23. The earliest decision of this
Court as to the ambit of Article 136(1)
with reference to the order of a tribunal
came up for consideration in Bharat
Bank Ltd., Delhi v. Employees of the
Bharat Bank Ltd. [AIR 1950 SC 188 :
(1950) 1 SCR 459 : 950 Lab LJ 21] . The
question whether an Industrial Tribunal
constituted under the Industrial Disputes
Act, 1947, was a tribunal within the
scope of Article 136 was raised in that
case. By majority the Constitution Bench
of this Court held that the Industrial
Tribunal was a tribunal for the purpose
of Article 136. Having regard to the
scheme of Article 136, this Court was not
prepared to place a narrow interpretation
on the amplitude of Article 136. This
Court observed at p. 476/478 of the
Report as follows:
68 INDIAN LAW REPORTS ALLAHABAD SERIES

"As pointed out in picturesque
language by Lord Sankey, L.C. in Shell Co.
of Australia v. Federal Commissioner of
Taxation [1931 AC 275] , there are
tribunals with many of the trappings of a
Court which, nevertheless, are not Courts
in the strict sense of exercising judicial
power. It seems to me that such tribunals
though they are not full-fledged Courts, yet
exercise quasi-judicial functions and are
within the ambit of the word ''tribunal' in
Article 136 of the Constitution.

Tribunals which do not derive
authority from the sovereign power cannot
fall within the ambit of Article 136. The
condition precedent for bringing a tribunal
within the ambit of Article 136 is that it
should be constituted by the State. Again a
tribunal would be outside the ambit of
Article 136 if it is not invested with any
part of the judicial functions of the State
but discharges purely administrative or
executive duties. Tribunals, however, which
are found invested with certain functions of
a Court of justice and have some of its
trappings also would fall within the ambit
of Article 136 ....

25. From a conspectus of the
above decisions it will be seen that several
tests have been laid down by this Court to
determine whether a particular body or
authority is a tribunal within the ambit of
Article 136. The tests are not exhaustive in
all cases. It is also well-settled that all the
tests laid down may not be present in a
given case. While some tests may be
present others may be lacking. It is,
however, absolutely necessary that the
authority in order to come within the ambit
of Article 136(1) as tribunal must be
constituted by the State and invested with
some function of judicial power of the
State. This particular test is an unfailing
one while some of the other tests may or
may not be present at the same time.

8. In the case of State of Gujarat V.
Gujarat
Revenue
Tribunal
Bar
Association reported in (2012)10 SCC 353;
it has been held as follows:-

18. Tribunals have primarily been
constituted to deal with cases under special
laws and to hence provide for specialised
adjudication
alongside
the
courts.
Therefore, a particular Act/set of rules will
determine whether the functions of a
particular tribunal are akin to those of the
Courts, which provide for the basic
administration of justice. Where there is a
lis between two contesting parties and a
statutory authority is required to decide
such dispute between them, such an
authority may be called as a quasi-judicial
authority i.e. a situation where, (a) a
statutory authority is empowered under a
statute to do any act; (b) the order of such
authority
would
adversely
affect
the
subject; and (c) although there is no lis or
two contending parties, and the contest is
between the authority and the subject; and
(d) the statutory authority is required to act
judicially under the statute, the decision of
the said authority is a quasi-judicial
decision. An authority may be described as
a quasi-judicial authority when it possesses
certain attributes or trappings of a "Court",
but not all. In case certain powers under
CPC or CrPC have been conferred upon an
authority, but it has not been entrusted with
the judicial powers of State, it cannot be
held to be a Court. (See Bharat Bank Ltd. v.
Employees [AIR 1950 SC 188] , Virindar
Kumar Satyawadi v. State of Punjab [AIR
1956 SC 153 : 1956 Cri LJ 326] , Engg.
Mazdoor Sabha v. Hind Cycles Ltd. [AIR
1963
SC
874],
Associated
Cement
Companies Ltd. v. P.N. Sharma [AIR 1965
SC 1595] , Rama Rao v. Narayan [(1969) 1
SCC 167 : AIR 1969 SC 724] , State of H.P.
v. Mahendra Pal [(1999) 4 SCC 43 : AIR
4 All. Anupma Sinha Vs. Real Estate Regulatory Authority, Rajya Niyojan Sansthan, Lko. U.P.
 & Anr.
69
1999 SC 1786] , Keshab Narayan Banerjee
v. State of Bihar [(2000) 1 SCC 607 : 2000
SCC (Cri) 272] , Indian National Congress
(I) v. Institute of Social Welfare [(2002) 5
SCC 685 : AIR 2002 SC 2158] , K.
Shamrao v. Asstt. Charity Commr. [(2003)
3 SCC 563] , Trans Mediterranean Airways
v. Universal Exports [(2011) 10 SCC 316 :
(2012) 1 SCC (Civ) 148] , SCC p. 338,
para 53 and Namit Sharma v. Union of
India [(2013) 1 SCC 745] .)

9. A Coordinate Bench of this Court in
the case of Pan Realtors Pvt. Ltd. versus
State of U.P. and others passed in Writ
Petition No.27631 (M/s) of 2021 has also
considered when an authority can be said to
be Tribunal in the following manner:

"16. Considering the aforesaid
including
the
judgments
referred
hereinabove, this Court is of the view that
in this case for determining that as to
whether
an
"Authority"
i.e.
"State
Government" is a "Tribunal" or not, as in
this case the power of State Government
under Section 41(3) of the Act of 1973 is in
issue, which is as per above observations of
this Court is revisional power, the basic
test(s)/parameter(s) can be summarized as
under:

(a)
That
the
power
of
adjudication should be conferred on the
concerned 'Authority' by a statute.

(b) That such adjudicating power
is the part of State's inherent power
exercised
in
discharging
its
judicial
function.

(c) That the 'Authority' concerned
is under obligation to act judicially.

(d) That the decision of the
'Authority' on the 'lis' before it is binding
between the parties and final.

 In this case, the power of
adjudication is conferred upon 'State
Government' by the statute, the 'State
Government' is under obligation to act
judicially and is also required to follow
principle of natural justice, as appears
from the proviso to Sub Section 3 of Section
41 of the Act of 1973, the State Government
in this Sub Section decides the lis between
the
parties
and
decision
of
'State
Government', as per Sub Section 4 of
Section 41 is binding and final. Thus, all
test(s)/
parameter(s),
aforesaid,
are
satisfied and being so it is held that the
'State Government' under Section 41 Sub
Clause 3 of the Act of 1973, is a 'Tribunal'."

10. It is thus seen that the preliminary
aspect whether the authority can be a
Tribunal or not in terms of Article 227 of
the Constitution of India is that it is a
statutory authority which is empowered
under special enactment and setup by the
State to decide a lis between contending
parties in a judicial manner but under
exercise of quasi-judicial powers since it
has been invested with some function of
judicial powers of the State.

11. The aforesaid aspect has also been
considered by Hon'ble the Supreme Court
in the case of Newtech Promoters and
Developers Pvt. Ltd. versus State of U.P
and Ors. reported in 2021 SCC OnLine SC
1044; in the following manner:

"117. The further submission
made by learned Counsel for the Appellants
that Section 81 of the Act permits the
authority to delegate such powers and
functions to any member of the authority
which
are
mainly
administrative
or
clerical, and cannot possibly encompass
any of the core functions which are to be
discharged by the authority, the judicial
functions are non-delegable, as these are
the core functions of the authority. The
70 INDIAN LAW REPORTS ALLAHABAD SERIES
submission may not hold good for the
reason that the power to be exercised by the
authority in deciding complaints Under
Section 31 of the Act is quasi- judicial in
nature which is delegable provided there is
a provision in the statute. As already
observed, Section 81 of the Act empowers
the authority to delegate its power and
functions to any of its member, by general
or special order."

12. The authority as indicated in the
judgment has reference to Section 31 of
the
Real
Estate
(Regulation
and
Development) Act, 2016 regarding filing
of complaints with the authority or the
adjudication officer. The term 'authority'
has been defined under section 2(i) to
mean the Real Estate Regulatory Authority
Established under section 20(1) of the Act.

13. In view of aforesaid judgments,
particularly Newtech Promoters (supra) it
is evident that the authority therefore
exercises quasi-judicial powers and would
thus come within the term of tribunal as
envisaged under Article 227 of the
Constitution of India due to which petition
against the said authority would be
maintainable under Article 227 of the
Constitution of India.

14. In view of aforesaid fact,
preliminary objection raised is rejected.

15. Learned counsel for petitioner has
submitted that the petitioner had filed the
aforesaid complaint case which has been
decided
on
22.03.2022
whereafter
execution of the sale has been required by
filing of an application. It is submitted that
in the meantime the authority itself has
framed standard operating procedure on
02.09.2020 which is not being adhered to.
As such, it is submitted that execution
order is required to be made in terms
thereof.

16.
Upon
consideration
of
submissions
advanced
by
learned
counsel for petitioner, opposite party
no.1
i.e.
Real
Estate
Regulatory
Authority,
Rajya
Niyojan
Sansthan,
Naveen
Bhavan,
Kalakankar
House
Road, Old Hyderabad, Lucknow Uttar
Pradesh is directed to ensure execution
of order dated 22.03.2022 filed in
Complaint No.LKO162/08/57523/2020,
Anupma
Sinha
Versus
M/s
Ansal
Properties and Infrastructure Limited
passed
by
Real
Estate
Regulatory
Authority, Rajya Niyojan Sansthan in
terms of its standard operating procedure
dated 02.09.2020 in case there is no
other legal impediment.

17. Benefit of this order shall be
available
only
in
case
petitioner
cooperates in early conclusion of the
application/trial.

18. With the aforesaid direction, the
petition stands disposed of.
----------
(2023) 4 ILRA 70
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.03.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Criminal Misc. Application U/S 482 No. 10522 of
2023

Mohammad Talha & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Vijay Kumar Mishra