# M/s Proview Realtech Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2021) 2 ILRA 857
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-12
- **Case number:** Writ C No. 27147 of 2020
- **Bench:** Munishwar Nath Bhandari, Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-proview-realtech-pvt-ltd-v-state-of-u-p-ors-46828
- **Pages:** 8

## Headnote

A. Civil Law - Real Estate Regulation -
Real Estate (Regulation and Development)
Act, 2016- Sections 21, 29, 30, 40(1),
40(2), 43(5) - U.P. Real Estate (Regulation
and
Development)
(Agreement
for
Sale/Lease) Rules, 2018 - U.P. Real Estate
(Regulation
and
Development)
Rules,
2016 - Rules 23, 24 -

Real Estate (Regulation and Development)
Act, 2016 - Sections 21, 29, 30 - Whether
one member was competent to pass the
order - S. 30 of Act of 2016 is relevant and
address the issue raised in this petition. It
shows that in case of vacancy, or any defect in
the constitution of the Authority or any defect in
the appointment of a person acting as a
Member of the Authority, the proceeding of the
Authority would not be invalidated. It is not that
whatever composition given u/s 21 of the Act
alone can decide the complaint rather reference
of S. 29 has been given to indicate that
complaint can be heard even in absence of the
Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority,
the
proceeding
would
not
be
invalidated. (Para 8, 9, 13, 14)

Petitioner in the present case, kept silence on
the hearing of the complaint by one Member
and thereby he cannot now be allowed and to
seek invalidation of the proceeding going
contrary to S. 30 of the Act of 2016 and his
conduct.
The
first
argument
cannot
be
addressed simply by referring to S. 21 of the Act
of 2016 but has to be reference of other
provisions, more specifically, S. 30 of the Act of
2016, which was inserted by the legislature to
save the proceeding if the vacancy exist in the
Authority or other reason. It is otherwise a fact
that an order was issued to delegate the power
to a Member for hearing of the complaint, which
was considered by this Court in earlier
judgment. Thus the first ground raised by the
petitioner cannot be accepted. (Para 11, 15)

B. The second issue regarding rate of
interest is nothing but a challenge on the
merit of the order. Writ petition has been held
not to be maintainable as petitioner has remedy
858 INDIAN LAW REPORTS ALLAHABAD SERIES
of appeal. No interference has been caused in
the order but petitioner has been allowed to
take the aforesaid alternative remedy. (Para
16)

C. The purpose and object of S. 40(1) is to
allow recovery of the amount as arrears of
land revenue so as to expeditiously give
the relief to the consumer having suffered
in the hands of the Promoter. S. 40(2)
covers basically the case of an order of
injunction or mandatory injunction. (Para
17, 22)

In the instant case, the consumer had deposited
a sum of Rs. 25 lacs and odd, in instalments but
despite an agreement for giving possession of
the flat in the year 2017, it was not handed over
to the consumer. The direction for return of the
amount with interest has been given in those
circumstances. If a consumer is to seek
execution of the part of the order through the
Civil Court then the very purpose of the
enactment of Act of 2016 to provide speedy
dispute redressal mechanism would frustrate. If
the argument of the petitioner is accepted then
for recovery of a sum of Rs. 25 lacs and odd,
the non petitioner consumer is to be sent to
Civil Court while recovery of amount of interest
of Rs. 15 lacs can be made as arrears of land
revenue, as admitted by the counsel for the
petitioner himself.

If recovery of amount is to be sought by
dividing it in two parts and by different method,
it would be against the object of the Act of

## Text

2 All. M/s Proview Realtech Pvt. Ltd. Vs. State of U.P. & Ors.
857
129(3) of the Act. He simply rejected the
explanation furnished by the assessee
without
recording
any
reason
and
consequently imposed tax and penalty.

14. In view of the above, no useful
purpose would be served to remand the
proceeding now as that would amount to
giving the revenue a second inning to built
a fresh case that too after being aware of
the defense set out by the assessee in the
first leg of the proceedings. The order dated
3.12.2019 passed by the proper authority
under Section 129(3) of the Act is found to
be perverse and is set aside. Any amount
that may have been deposited by the
petitioner-assessee, may be returned to it,
in accordance

15. Accordingly, the present petition
is allowed.
----------
(2021)02ILR A857
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ C No. 27147 of 2020
&
Writ C No. 27104 of 2020
&
Writ C No. 27175 of 2020

M/s Proview Realtech Pvt. Ltd....Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Singhal, Sri Ankita Singhal

Counsel for the Respondents:
C.S.C., Sri Wasim Masood

A. Civil Law - Real Estate Regulation -
Real Estate (Regulation and Development)
Act, 2016- Sections 21, 29, 30, 40(1),
40(2), 43(5) - U.P. Real Estate (Regulation
and
Development)
(Agreement
for
Sale/Lease) Rules, 2018 - U.P. Real Estate
(Regulation
and
Development)
Rules,
2016 - Rules 23, 24 -

Real Estate (Regulation and Development)
Act, 2016 - Sections 21, 29, 30 - Whether
one member was competent to pass the
order - S. 30 of Act of 2016 is relevant and
address the issue raised in this petition. It
shows that in case of vacancy, or any defect in
the constitution of the Authority or any defect in
the appointment of a person acting as a
Member of the Authority, the proceeding of the
Authority would not be invalidated. It is not that
whatever composition given u/s 21 of the Act
alone can decide the complaint rather reference
of S. 29 has been given to indicate that
complaint can be heard even in absence of the
Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority,
the
proceeding
would
not
be
invalidated. (Para 8, 9, 13, 14)

Petitioner in the present case, kept silence on
the hearing of the complaint by one Member
and thereby he cannot now be allowed and to
seek invalidation of the proceeding going
contrary to S. 30 of the Act of 2016 and his
conduct.
The
first
argument
cannot
be
addressed simply by referring to S. 21 of the Act
of 2016 but has to be reference of other
provisions, more specifically, S. 30 of the Act of
2016, which was inserted by the legislature to
save the proceeding if the vacancy exist in the
Authority or other reason. It is otherwise a fact
that an order was issued to delegate the power
to a Member for hearing of the complaint, which
was considered by this Court in earlier
judgment. Thus the first ground raised by the
petitioner cannot be accepted. (Para 11, 15)

B. The second issue regarding rate of
interest is nothing but a challenge on the
merit of the order. Writ petition has been held
not to be maintainable as petitioner has remedy
858 INDIAN LAW REPORTS ALLAHABAD SERIES
of appeal. No interference has been caused in
the order but petitioner has been allowed to
take the aforesaid alternative remedy. (Para
16)

C. The purpose and object of S. 40(1) is to
allow recovery of the amount as arrears of
land revenue so as to expeditiously give
the relief to the consumer having suffered
in the hands of the Promoter. S. 40(2)
covers basically the case of an order of
injunction or mandatory injunction. (Para
17, 22)

In the instant case, the consumer had deposited
a sum of Rs. 25 lacs and odd, in instalments but
despite an agreement for giving possession of
the flat in the year 2017, it was not handed over
to the consumer. The direction for return of the
amount with interest has been given in those
circumstances. If a consumer is to seek
execution of the part of the order through the
Civil Court then the very purpose of the
enactment of Act of 2016 to provide speedy
dispute redressal mechanism would frustrate. If
the argument of the petitioner is accepted then
for recovery of a sum of Rs. 25 lacs and odd,
the non petitioner consumer is to be sent to
Civil Court while recovery of amount of interest
of Rs. 15 lacs can be made as arrears of land
revenue, as admitted by the counsel for the
petitioner himself.

If recovery of amount is to be sought by
dividing it in two parts and by different method,
it would be against the object of the Act of
2016. The object of speedy redressal would
frustrate if recovery of the amount is also
sought through the Civil Court. S. 40(1) has to
be given interpretation by reading down the
provision to make it purposeful and akin to the
object of the Act of 2016. S. 40(2) is for any
other direction either to act in a particular
manner or to restrain a party to do certain act
and execution of it can be made by the
Adjudicating Authority and in case of failure, by
the Civil Court. (Para 22)

Writ petitions dismissed.(E-3)

Precedent followed:

1. M/s K.D.P. Build Well Pvt. Ltd. Vs. St. of U.P.
& 4 ors., Writ-C No. 2248 of 2020, judgment
dated 04.02.2020 (Para 9)

2. Rudra Buildwell Construction Pvt. Vs. Poonam
Sood & anr., Writ-C No. 3289 of 2020, judgment
dated 06.02.2020 (Para 9)

Precedent distinguished:

1. Janta Land Promoters Pvt. Ltd. Vs U.O.I. &
ors., Civil Misc. Writ Petition No. 8548 of 2020,
judgment dated 16.10.2020 (Para 10, 14)

Present petitions challenge order dated
20.03.2020,
passed
by
Real
Estate
Regulatory Authority.

(Delivered by Hon'ble Munishwar Nath
Bhandari, J.
&
Hon'ble Rohit Ranjan Agarwal)

1. Heard learned counsel for the
petitioner, Sri Anit Tiwari, Senior Advocate
assisted by Sri Wasim Masood, learned
counsel for the respondent No.2 and
learned Standing Counsel for respondent
Nos.1, 3 and 4.

2. Since the question of law involved
in all the three writ petitions is similar, and
as agreed by the counsel for the parties,
they are heard together and decided by this
common judgment.

3. The writ petition No.27147 of
2020, which is taken to be leading case, has
been filed with the following prayers:

"(i) Issue a writ, order or
direction in the nature of Certiorari calling
for the records and quashing the recovery
certificate dated 27.10.2020 and citation
dated 07.11.2020 (Annexure No.1 to the
present writ petition)
2 All. M/s Proview Realtech Pvt. Ltd. Vs. State of U.P. & Ors.
859

(ii) Issue a writ, order or
direction in the nature of Certiorari calling
for the records and quashing the impugned
order
dated
20.03.2020
passed
by
respondent no.2 (Annexure-2 to the present
writ petition).

(iii) issue a writ, order or
direction in the nature of Certiorari calling
the
record
and
quashing
the
minutes/resolutions
dated
14.08.2018
alleged to have been passed by the
respondent no.2 (Annexure No.3 to the writ
petition).

(iv) Issue a writ, order or
direction in the nature of Certiorari calling
for
the
records
and
quashing
the
minutes/resolution
dated
05.12.2018
alleged to have been passed by respondent
no.2 (Annexure -4 to the writ petition).

(v) Issue an appropriate writ,
order or direction for striking down
Regulation 24(a) of the U.P. Real Estate
Regulatory Authority (General) Regulation,
2019."

4. The petitioner has challenged the
order passed by Real Estate Regulatory
Authority
(in
short
"RERA")
dated
20.03.2020 though an appeal against the
said order lies under Section 43(5) of Real
Estate (Regulation and Development) Act,
2016 (in short "Act of 2016").

5. It is a case where a complaint was
filed by the non-petitioner alleging that
despite payment towards unit No.08 in the
scheme introduced by the petitioner, the
possession of a unit has not been given.
The unit (flat) was booked on 28.01.2012
and was to be delivered in the year 2017.
The prayer was made for refund of the
amount of Rs.25,36,985/- with interest. The
Authority found that as per the agreement
entered between the parties, possession of
the flat in question should have been
delivered by 29.02.2017. The petitionerCompany failed to show delivery of
possession of the flat in question. Thus,
taking into consideration the default of the
Promoter (petitioner herein) and referring
to the judgment of Apex Court, an order
was passed by RERA on 20.0.2020 for
refund of the principal amount alongwith
interest. In pursuance thereof, order dated
27.10.2020 was issued for its execution.
The amount of Rs.25,36,985/- was shown
towards
the
principal
amount
while
component of interest was Rs.15,68.814/-.
The petitioner has filed this writ petition to
challenge
not only
the
order dated
20.03.2020 passed by RERA but the order
dated
27.10.2020
on
the
execution
application.

6. Learned counsel for the petitioner
submits that an appeal against the order
passed by RERA is maintainable but this
case has exceptional circumstances thus
even a writ petition would be maintainable.
One member of RERA has passed the order
going against the Act of 2016. Section 21
provides for formation of Authority consist
of Chairperson alongwith two whole time
Members. The impugned order is by one
Member alone going against the mandate
of Section 21 of the Act of 2016. In view of
the above, there is no need to prefer an
appeal as the order dated 20.03.2020 is
without jurisdiction.

7. It is also stated that the order to
award interest by the Authority is again
going contrary to the provisions. Rules for
award of interest was introduced in the year
2018. The amount deposited with the
Promotor has been ordered to be returned
with interest. The interest has been allowed
even for the period prior to introduction of
U.P.
Real
Estate
(Regulation
and
Development)(Agreement for Sale/Lease)
860 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2018 (in short "Rules of 2018"). It is
even ignoring the rate of interest agreed by
the parties. Challenge to the order has been
made on that ground also.

8. We are first taking challenge to the
order dated 20.03.2020, passed by the
Authority to find out as to whether one
member was competent to pass the order.

9. The issue has been raised in
reference to Section 21 but it is not open
for debate having been decided by this
Court in Writ -C No.2248 of 2020 (M/s
K.D.P. Build Well Pvt. Ltd. vs. State of
U.P. and 4 Others) vide judgment dated
04.02.2020 and in Writ- C No.3289 of
2020 (Rudra Buildwell Constructions
Pvt. Ltd. vs. Poonam Sood and Another)
vide judgment dated 06.02.2020 holding
order by one member to be legal. The issue
regarding composition of RERA was
considered in reference to Sections 21 and
81 of the Act of 2016. Section 81 provides
for delegation of power/function and taking
the aforesaid provision into consideration,
the argument was not accepted.

10. At this stage, learned counsel for the
petitioner has made a reference to the
judgment of Punjab and Haryana High Court
on the same issue in Civil Writ Petition
No.8548 of 2020 (Janta Land Promoters
Private Limited vs. Union of India and
others) vide judgment dated 16.10.2020. It is
stated that judgment of this Court has been
referred by Punjab and Haryana High Court
and has taken a different view.

11. What we find is binding effect of
the judgment rendered by this Court than to
follow the judgment of other High Court.
Accordingly, we are unable to accept the first
argument in reference to Section 21 of the
Act of 2016. It is more so when the petitioner
did not raise objection before the single
Member about his competence to adjudicate
the complaint. In absence of objection, the
Authority proceeded with the matter. If the
objection would have been taken and was
sustainable, the complaint could have been
decided by the Authority consisting of three
Members. The petitioner has challenged the
order in reference to the composition only
when he lost in the complaint.

12. It is further necessary to refer
Sections 21, 29 and 30 of the Act of 2016 to
discuss the issue independent to the earlier
judgments. The provisions aforesaid are
quoted hereunder :

"21. Composition of Authority.-
The Authority shall consist of a Chairperson
and not less than two whole time Members to
be
appointed
by
the
appropriate
Government."

29. Meeting of Authority.- (1) The
Authority shall meet at such places and times,
and shall follow such rules of procedure in
regard to the transaction of business at its
meetings,
(including
quorum
at
such
meetings), as may be specified by the
regulations made by the Authority.

(2) If the Chairperson for any
reason, is unable to attend a meeting of the
Authority, any other Member chosen by the
Members present amongst themselves at the
meeting, shall preside at the meeting.

(3) All questions which come up
before any meeting of the Authority shall be
decided by a majority of votes by the
Members present and voting, and in the event
of an equality of votes, the Chairperson or in
his absence, the person presiding shall have a
second or casting vote.

(4) The questions which come up
before the Authority shall be dealt with as
expeditiously as possible and the Authority
shall dispose of the same within a period of
2 All. M/s Proview Realtech Pvt. Ltd. Vs. State of U.P. & Ors.
861
sixty days from the date of receipt of the
application.

Provided that where any such
application could not be disposed of within
the said period of sixty days, the Authority
shall record its reasons in writing for not
disposing of the application within that
period.

30.
Vacancies,
etc.,
not
to
invalidate proceeding of Authority.- No act
or proceeding of the Authority shall be
invalid merely by reason of--

(a) any vacancy in, or any defect
in the constitution of, the Authority; or

(b) any defect in the appointment
of a person acting as a Member of the
Authority; or

(c)
any
irregularity
in
the
procedure of the Authority not affecting the
merits of the case."

13. Section 21 of Act of 2016
speaks
about
composition
of
the
Authority, which shall consist of a
Chairperson and not less than two whole
time Members to be appointed by the
appropriate Government. Section 29,
however, talks about the meeting of
Authority and perusal of sub-section (2)
thereof
shows
that
in
absence
of
Chairperson for any reason, the other
Member chosen by the Members present
amongst themselves at the meeting, shall
preside
thereby.
Sub-section
(2)
to
Section
29
permits
adjudication
of
complaint even in absence of Chairperson
so
appointed
by
the
appropriate
Government. Thus, it is not necessary
that the adjudication of the complaint has
to be made by the composition of
Authority, as given under Section 21 of
the Act of 2016 though as per Section 29
also, it should be by two Members in
absence of the Chairperson.

14. Section 30 of Act of 2016 is,
however, relevant and address the issue
raised in this petition. The vacancies, etc.
not to invalidate proceeding of the
Authority. It shows that in case of vacancy,
or any defect in the constitution of the
Authority or any defect in the appointment
of a person acting as a Member of the
Authority, the proceeding of the Authority
would not be invalidated. Section 30 of the
Act of 2016 give complete answer to the
objection raised by the petitioner regarding
composition of the Authority. It is not that
whatever composition given under Section
21 of the Act alone can decide the
complaint rather reference of Section 29
has been given to indicate that complaint
can be heard even in absence of the
Chairperson and, in any case, due to the
vacancy or any defect in the constitution of
Authority, the proceeding would not be
invalidated. This aspect was not brought to
the notice of Punjab and Haryana High
Court in the case of Janta Land
Promoters Private Limited (supra).

15. It is otherwise a fact that the
petitioner kept silence on the hearing of the
complaint by one Member and thereby he
cannot now be allowed and to seek
invalidation of the proceeding going
contrary to Section 30 of the Act of 2016
and his conduct. The first argument cannot
be addressed simply by referring to Section
21 of the Act of 2016 but has to be
reference
of
other
provisions,
more
specifically, Section 30 of the Act of 2016,
which was inserted by the legislature to
save the proceeding if the vacancy exist in
the Authority or other reason. It is
otherwise a fact that an order was issued to
delegate the power to a Member for hearing
of the complaint, which was considered by
this Court in earlier judgment. Thus the
862 INDIAN LAW REPORTS ALLAHABAD SERIES
first ground raised by the petitioner cannot
be accepted.

16. So far the second issue regarding
rate of interest is concerned, it is nothing
but a challenge on the merit of the order.
We hold writ petition for it to be not
maintainable as petitioner has remedy of
appeal.
Thus
we
are
not
causing
interference in the order on merit but
allowing the petitioner to take remedy of
appeal, if so desires. It is after taking note
of the fact that the order of RERA is not
otherwise onerous so as to maintain a writ
petition.

17. The other challenge in the writ
petition is to execution of the order made in
reference to Section 40(1) of the Act of
2016. The recovery of the amount is to be
made as arrears of land revenue. It is stated
that recovery of interest, penalty or
compensation alone can be made as arrears
of land revenue. In the instance case,
RERA has issued citation for return of the
amount so deposited with the Promoter
with interest. The refund of the principal
amount cannot be through the process of
execution given under Section 40(1) of the
Act of 2016 but can be as per Section 40(2)
of the Act of 2016.

18. To deal with the argument
aforesaid, we are quoting Section 40 of the
Act of 2016, hereunder :

"40 Recovery of interest or
penalty or compensation and enforcement
of order, etc.- (1) If a promoter or an
allottee or a real estate agent, as the case
may be, fails to pay any interest or penalty
or compensation imposed on him, by the
adjudicating officer or the Regulatory
Authority or the Appellate Authority, as the
case may be, under this Act or the rules and
regulations made thereunder, it shall be
recoverable from such promoter or allottee
or real estate agent, in such manner as may
be prescribed as an arrears of land
revenue.

(2) If any adjudicating officer or
the Regulatory Authority or the Appellate
Tribunal, as the case may be, issues any
order or directs any person to do any act,
or refrain from doing any act, which it is
empowered to do under this Act or the rules
or regulations made thereunder, then in
case of failure by any person to comply
with such order or direction, the same shall
be enforced, in such manner as may be
prescribed.

19. Before addressing the issue
further it would be necessary to go through
the object of the enactment i.e. as to why
the Parliament brought the Act of 2016.
The object of Act of 2016 is to protect the
interest of consumer in real estate sector
apart from others. The Bill was introduced
with the following object :

"An Act to establish the Real
Estate Regulatory Authority for regulation
and promotion of the real estate sector and
to ensure sale of plot, apartment or
building, as the case may be, or sale of real
estate
project,
in
an
efficient
and
transparent manner and to protect the
interest of consumers in the real estate
sector and to establish an adjudicating
mechanism for speedy dispute redressal
and also to establish the Appellate Tribunal
to hear appeals from the decisions,
directions or orders of the Real Estate
Regulatory Authority and the adjudicating
officer and for matters connected therewith
or incidental thereto.

20. A perusal of the object reveals that
the Act of 2016 has been enacted to save
2 All. M/s Proview Realtech Pvt. Ltd. Vs. State of U.P. & Ors.
863
interest of consumers apart from others and
thereby to regulate real estate in a proper
manner. It is even to give speedy dispute
redressal mechanism. Section 40(1) of Act
of 2016 no doubt provides for mechanism
for recovery of interest, penalty or
compensation. It cannot however be
ignored that recovery of the amount is
provided
under Section
40(1)
alone.
Section 40(2) is for execution of any other
order or direction to any person to do any
act, or refrain from doing any act, which is
not empowered to do under the Act of 2016
and in case of failure to comply, execution
can be enforced in the manner prescribed.
Sub-section (2) of Section 40 was to
enforce any direction of the nature of
restrain or injunction which cannot be
enforced as an arrears of land revenue.
After coming into the force of the rules
framed by the State of Uttar Pradesh, the
matter of execution can be taken by the
Adjudicating Authority. Sub-Section (2) of
Section 40 is not meant for recovery of the
amount but for any other direction either to
act in a particular manner or to refrain a
party in doing any act. Such order can be
enforced
firstly
by
the Adjudicating
Authority and in case of failure, through
the civil court. Rules 23 and 24 of Uttar
Pradesh Real Estate (Regulation and
Development) Rules, 2016 (in short "Rules
of 2016") were brought for that purpose
and provides the machanism for execution
of the order.

21. In the light of the aforesaid, we
are required to give proper interpretation to
Section 40 so that the object sought to be
achieved by enactment of Act of 2016 is
carried out.

22. In the instant case, the consumer
had deposited a sum of Rs.25 lacs and odd,
in instalments but despite an agreement for
giving possession of the flat in the year
2017, it was not handed over to the
consumer. The direction for return of the
amount with interest has been given in
those circumstances. If a consumer is to
seek execution of the part of the order
through the civil court then the very
purpose of the enactment of Act of 2016 to
provide
speedy
dispute
redressal
mechanism would frustrate. If the argument
of the petitioner is accepted then for
recovery of a sum of Rs.25 lacs and odd,
the non petitioner consumer is to be send to
civil court while recovery of amount of
interest of Rs.15 lacs can be made as
arrears of land revenue, as admitted by the
counsel for the petitioner himself. If
recovery of amount is to be sought by
dividing it in two parts and by different
method, it would be against the object of
the Act of 2016. The object of speedy
redressal would frustrate if recovery of the
amount is also sought through the civil
court. We thus hold that the purpose and
object of Section 40(1) is to allow recovery
of the amount as arrears of land revenue so
as to expeditiously give the relief to the
consumer having suffered in the hands of
the Promoter. Section 40(1) has to be given
interpretation
by
reading
down
the
provision to make it purposeful and akin to
the object of the Act of 2016. Section 40(2)
is for any other direction either to act in a
particular manner or to restrain a party to
do certain act and execution of it can be
made by the Adjudicating Authority and in
case of failure, by the civil court. Section
40(2) covers basically the case of an order
of injunction or mandatory injunction.

23. Accordingly, we are unable to
accept even the last argument raised by the
counsel for the petitioner. It would
otherwise frustrate the very object of the
Act of 2016 and would give rise to the
864 INDIAN LAW REPORTS ALLAHABAD SERIES
anarchy, existing earlier, in the hands of
Promoters.

24. Thus, for all the reasons, we are
unable to accept any of the arguments
raised by the counsel for the petitioner. All
the
writ
petitions
are
accordingly
dismissed, however, with the liberty to
avail the remedy of appeal if other than the
issue decided by us remains, which may
include the issue towards interest.
----------
(2021)02ILR A864
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.02.2021

BEFORE

THE HON'BLE ALOK MATHUR, J.

Bail No. 5883 of 2020

Sukumar Jain (Anticipatory Bail)
 ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant:
Amrendra Singh, Diwakar Singh

Counsel for the Opposite Party:
G.A., Anurag Singh

A. Criminal law - Code of Criminal
Procedure - Sections 82, 195 - Indian
Penal Code - Sections 201, 204, 409, 420,
467, 468, 471, 477(A) - Prevention of
Corruption Act - Sections 13(1)(c) & (d) -
Information
Technology
Act,
2000
-
Section 66 - Anticipatory bail - Normally a
person who has been declared as an
absconder/proclaimed
offender
is
not
entitled to be granted anticipatory bail.
Court has used the word "normally", meaning
thereby the Court itself was aware that there
are certain other factors which may be duly
considered
by
the
Courts
in
exercising
discretionary power for grant of bail, including
cases where process u/s 82 Cr.P.C. has been
initiated. (Para 11)

B.
The
bail
decision
is
made
after
considering
variety
of
circumstances
justifying the grant or refusal of bail. In
case proceedings u/s. 82 Cr.P.C. have been
initiated, declaring the applicant a proclaimed
offender, then it would be a relevant fact, while
considering the application for anticipatory bail,
but it is not necessary that the anticipatory bail
application ought to be rejected only on the
ground that a person has been declared
absconder/proclaimed offender. Even otherwise
learned counsel for the respondent could not
point out any bar provided in Section 82 or 435
Cr.P.C. where a person could be disentitled for
anticipatory bail where proceedings u/s 82
Cr.P.C. have commenced. (Para 14)

C. While considering the application for
anticipatory bail it is also relevant to
consider the stage at which it is sought.
(Para 15)

Considering the entire set of facts, specially that
the applicant is a retired Government servant,
aged about 65 years, he had participated in the
investigation, there are no chances of his fleeing
from justice and also that he has assailed his
prosecution
before
the
High
Court
in
proceedings u/s 482 Cr.P.C. on the ground of
want of sanction, are certain facts which have
persuaded this Court to favourably consider the
present anticipatory bail application filed by the
applicant. Hence without expressing any opinion
on the merits of the case and considering the
nature of accusations and antecedents of
applicant, the applicant may be enlarged on
anticipatory bail. (Para 16, 17)

Anticipatory bail application allowed. (E-3)

Precedent followed:

1. N.K. Ganguli Vs C.B.I., (2016) 2 SCC 143
(Para 6)

2. Siddharam Satlingappa Mhetre Vs St. of Mah.,
(2011) 1 SCC 694 (Para 10)

3. Lavesh Vs State (NCT of Delhi, (2012) 8 SCC
730 (Para 11)