# Shashank Gupta v. M/S Vatika Nirman Pvt. Ltd. Lko

- **Citation:** (2025) 8 ILRA 582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-18
- **Case number:** RERA Appeal No. 8 of 2024
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shashank-gupta-v-m-s-vatika-nirman-pvt-ltd-lko-53733
- **Pages:** 9

## Headnote

Gaurav Mehrotra, Gaurav Mehrotra, Tushar
Mittal

Issue for Consideration
Whether the non-inclusion of a Technical
Member in the impugned judgement would be a
valid exercise of appellate powers considering
the scope of Section 43(3), Section 45 and
Section 55 of the Act

Head Notes
The
Real
Estate
(Regulation
and
Development) Act, 2016- Sections 43(3),
45 & 55 - Impugned order not in
consonance with section 43(3) - Not stand
cured by invoking Section 55 of the Act -
Order passed by the Appellate Tribunal
being without jurisdiction is null and void
- Matter is relegated to the Appellate
Tribunal to decide the matter afresh with
all expedition - Appeals disposed of.

Held-Section 55(c) of the Act would also not
rectify the defect of constitution of a Bench as
prescribed under Section 43(3) of the Act as it
has been incorporated only to save any
irregularity in the procedure of the Appellate
Tribunal and cannot be read to mean to cure
the irregularities in the constitution of the Bench
- Order passed by the Appellate Tribunal, which
is not in consonance with the manner of
constitution of Benches as prescribed under
Section 43(3) of the Act is null and void and
would not stand cured by invoking Section 55 of
the Act - The order impugned is clearly beyond
the jurisdiction and cannot be sustained - The
order passed by the Appellate Tribunal being
without jurisdiction is null and void - Matter
relegated to the Appellate Tribunal to decide the
matter afresh with all expedition without
granting any unnecessary adjournment to any
of the parties. (Para 20, 24, 25, 26 & 27) (E15)

Case Law Cited
2020 SCC OnLine P&H 2030; Man Global Pvt.
Ltd. Vs. Bharat Prakash Joukani; Larsen and
Toubro Limited Vs. Ms. Rekha Sinha

List of Acts
The
Real
Estate
(Regulation
and
Development) Act, 2016

List of Keywords
Non-inclusion of Technical Member in the
impugned judgment; Section 55(c) would also
not rectify the defect of constitution of a Bench;
Defect in the constitution of the Appellate
Tribunal; Irregularity, cannot be accepted;
Technical Member demitted the office

Case Arising From
Judgment dated 14.05.2024 passed by the
RERA Appellate Tribunal in Appeal Nos.39 of
2024, 59 of 2024, 60 of 2024, 61 of 2024, 62 of
8 All. Shashank Gupta Vs. M/S Vatika Nirman Pvt. Ltd. Lko.
583
2024, 63 of 2024, 64 of 2024, 65 of 2024, 66 of
2024, 67 of 2024, 68 of 2024 and 69 of 2024.

Appearances for Parties
Counsel for Appellant :- Brijesh Kumar,Apoorva
Tewari,Kaustubh
Singh,
Utkarsh
Srivastava
Counsel
for
Respondent
:-
Gaurav
Mehrotra,Gaurav Mehrotra,Tushar Mittal

## Text

582 INDIAN LAW REPORTS ALLAHABAD SERIES
so that, the ground realities come to light
for taking corrective action,if any. The
defaulting
authorities
responsible
for
implementing the Scheme may also be
visited with action, if so warranted.
This
exercise
is
directed
to
be
undertaken at the earliest for which a
copy of the report submitted to the
Court
shall
be
forwarded
to
the
Ministry
of
Women
&
Child
Development
forthwith,
preferably
within a period of ten days from today.
----------
(2025) 8 ILRA 582
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.08.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

RERA Appeal No. 8 of 2024
&
Connected With Other Cases

Shashank Gupta ...Appellant
Versus
M/S Vatika Nirman Pvt. Ltd. Lko.
 ...Respondent

Counsel for the Appellant:
Brijesh Kumar , Apoorva Tewari, Kaustubh
Singh, Utkarsh Srivastava

Counsel for the Respondent:
Gaurav Mehrotra, Gaurav Mehrotra, Tushar
Mittal

Issue for Consideration
Whether the non-inclusion of a Technical
Member in the impugned judgement would be a
valid exercise of appellate powers considering
the scope of Section 43(3), Section 45 and
Section 55 of the Act

Head Notes
The
Real
Estate
(Regulation
and
Development) Act, 2016- Sections 43(3),
45 & 55 - Impugned order not in
consonance with section 43(3) - Not stand
cured by invoking Section 55 of the Act -
Order passed by the Appellate Tribunal
being without jurisdiction is null and void
- Matter is relegated to the Appellate
Tribunal to decide the matter afresh with
all expedition - Appeals disposed of.

Held-Section 55(c) of the Act would also not
rectify the defect of constitution of a Bench as
prescribed under Section 43(3) of the Act as it
has been incorporated only to save any
irregularity in the procedure of the Appellate
Tribunal and cannot be read to mean to cure
the irregularities in the constitution of the Bench
- Order passed by the Appellate Tribunal, which
is not in consonance with the manner of
constitution of Benches as prescribed under
Section 43(3) of the Act is null and void and
would not stand cured by invoking Section 55 of
the Act - The order impugned is clearly beyond
the jurisdiction and cannot be sustained - The
order passed by the Appellate Tribunal being
without jurisdiction is null and void - Matter
relegated to the Appellate Tribunal to decide the
matter afresh with all expedition without
granting any unnecessary adjournment to any
of the parties. (Para 20, 24, 25, 26 & 27) (E15)

Case Law Cited
2020 SCC OnLine P&H 2030; Man Global Pvt.
Ltd. Vs. Bharat Prakash Joukani; Larsen and
Toubro Limited Vs. Ms. Rekha Sinha

List of Acts
The
Real
Estate
(Regulation
and
Development) Act, 2016

List of Keywords
Non-inclusion of Technical Member in the
impugned judgment; Section 55(c) would also
not rectify the defect of constitution of a Bench;
Defect in the constitution of the Appellate
Tribunal; Irregularity, cannot be accepted;
Technical Member demitted the office

Case Arising From
Judgment dated 14.05.2024 passed by the
RERA Appellate Tribunal in Appeal Nos.39 of
2024, 59 of 2024, 60 of 2024, 61 of 2024, 62 of
8 All. Shashank Gupta Vs. M/S Vatika Nirman Pvt. Ltd. Lko.
583
2024, 63 of 2024, 64 of 2024, 65 of 2024, 66 of
2024, 67 of 2024, 68 of 2024 and 69 of 2024.

Appearances for Parties
Counsel for Appellant :- Brijesh Kumar,Apoorva
Tewari,Kaustubh
Singh,
Utkarsh
Srivastava
Counsel
for
Respondent
:-
Gaurav
Mehrotra,Gaurav Mehrotra,Tushar Mittal

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Shri Apoorva Tewari, learned
counsel for the appellant and Shri Gaurav
Mehrotra,
learned
counsel
for
the
respondent.

2. The appeal in question was admitted
vide order dated 22.04.2025, wherein the
following three questions of law were
framed by the Court while admitting the
appeals and the same is recorded hereinunder:

"(i) Whether the REAT (Real
Estate Appellate Tribunal) was justified in
holding that the complaint was premature,
and if so, then a finding on the issue of
cancellation could not have been decided
especially without any evidence and finding
on the point of any breach committed by
the appellant of the allotment order or its
term?

(ii) Whether the judgment passed
by the appellate tribunal suffers from vice
of being coram non judice in light of
Section 43(3) read with Section 45 of the
RERA Act, 2016.

(iii)Whether findings recorded by
the appellate tribunal can be sustained in
absence of material placed before the
RERA relating to the issue of consideration
paid towards the allotment of the units and
breach of the terms of allotment by the
appellant."

3. Learned counsel for the appellant
argues that question No.2 has been framed
with regard to the jurisdiction is a
contentious issue and can be decided. He,
however, suggests that even if, the Court
decides the question No.2 in favour of the
appellant and against the respondent, this
Court should still go into the other two
questions to avoid any multiplicity and
future course of litigation as the litigation is
old one and would bring unnecessary
misery on the parties in view of the
pendency.

4. Learned counsel for the respondent,
on the other hand, argues that issue No.2 is
of huge importance and can be decided and
should be decided against the appellant in
view of the submissions which are being
considered herein.

5. The appeal in question has been
filed challenging the judgement dated
14.05.2024 passed by the RERA Appellate
Tribunal in Appeal Nos.39 of 2024, 59 of
2024, 60 of 2024, 61 of 2024, 62 of 2024,
63 of 2024, 64 of 2024, 65 of 2024, 66 of
2024, 67 of 2024, 68 of 2024 and 69 of
2024. The appeal was barred by the
Appellate Tribunal. The Tribunal recorded
that the Technical Member demitted the
office on 26.09.2023 and as such, the
functioning of the Tribunal came to a stand
still w.e.f. 27.09.2023. It further records
that after the issuance of the notification
dated 28.11.2023, whereby a Judicial
Member was appointed. It was considered
in the interest of public at large to resume
the judicial function of the Tribunal with
the Chairman and the Bench comprising of
a
Judicial
Member
appointed
on
28.11.2023 and an office order was issued
to that effect. It further records in
pursuance of the office order that the
Appellate Tribunal was continuing with the
584 INDIAN LAW REPORTS ALLAHABAD SERIES
Chairman and one Judicial Member on
account of non-appointment of a Technical
Member.

6. In the backdrop of the said, the
Bench of Tribunal comprising of Chairman
and
Technical
Member
decided
the
appeals. While deciding the appeals, the
Tribunal held that the claim of the appellant
before
the
Tribunal
was
premature,
inasmuch as, the date of possession was yet
to arrive. As such, the appeals preferred by
the respondent herein were allowed.

7. My attention is drawn to the other
findings recorded, to argue that on the one
hand, the appellant has expressed that the
appeal was premature, however, it has
commented on the other issues, which is
wholly bad in law.

8. Considering the rival submissions,
I propose to decide the question No.2 as
framed by this Court as the first issue. It
is essential to notice that in one of the
appeals before this Court not connected
with the present case being RERA
Defective Appeal No.9 of 2024, a Single
Judge of this Court had set aside the
orders passed by the RERA Appellate
Tribunal, mainly on the ground that the
composition was not in accordance with
the
provisions
of
the
Real
Estate
(Regulation and Development) Act, 2016
(hereinafter referred to as the 'Act') and
the rules framed thereunder.

9. The Single Judge while passing the
said order had noticed the mandate of
Section 43(3) of the RERA Act, 2016 and
also the Regulation 6(5) of the U.P. Real
Estate
Appellate
Tribunal
Regulation,
2019. The Appellate Tribunal once again
suspended the working of the Tribunal
w.e.f. 15.05.2024.

10. A Division Bench of this Court
took suo motu cognizance of consequent
directions given by the Registrar, U.P.
RERA on 15.05.2024, which was a
notification
directing
that
the
entire
functioning of the Tribunal would be
suspended from 15.05.2024. The Division
Bench of this Court noticed the arguments
and prima facie formed a view, after
considering the scope of Section 55 of the
Act directed that the Tribunal shall resume
its hearings. The said interim order was
passed on 16.05.2024 by the Division
Bench of this Court. The order also records
that no final findings were given with
regard to the scope of Section 55 of the Act
and
the
issue
was
left
open
for
consideration. Paragraph 19 of the said
judgement is quoted herein-below:-

"(19) 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,
considering the larger public interest
involved and as it is not in the interest of
the citizens who are appellants before the
Appellate Tribunal that the functioning of
the UP Real Estate Appellate Tribunal
comes to a standstill on account of the
aforesaid reason, accordingly, we provide
as under:-

1. Let a Suo-motu Public Interest
Litigation be registered in this regard on
the basis of this order titled as "Suo-Motu
Inre: Appointment of members in the Real
Estate Appellate Tribunal at Lucknow and
the functioning of Tribunals in general
including filling up of the vacancies
therein" and the documents referred by us
be kept on its record.

2. Considering the provision of
Section 55 of the Act. 2016, we further
8 All. Shashank Gupta Vs. M/S Vatika Nirman Pvt. Ltd. Lko.
585
order that the functioning of the Tribunal,
as it was taking place prior to 15.05.2024.
shall stand resumed forthwith under
ourfilled up the vacancy of Administrative/
Technical member and the proceeding at
least as of now cannot be said to be invalid
merely on that count in view of the
statutory provision contained in Section 55
of the Act, 2016."

11. It is also essential to notice that the
Division Bench of this Court in the order
extracted above, was not appraised of the
judgement on the point and thus, as is
evident a prima facie view was taken. I am
not going into the question as to whether on
the basis of a prima facie view, jurisdiction
can be conferred upon the Tribunal and as
was done by the Division Bench. In the
present case as the order impugned was
passed prior to 16.05.2024 and even if it is
presumed
that
the
jurisdiction
was
conferred by virtue of an interim order
passed by the Division Bench, the same
would still not cure the lack of jurisdiction
of the Tribunal while passing the order
impugned.

12. It is now informed that the
Technical Member has been appointed and
the Appellate Tribunal is working in terms
of the mandate of the Act. In the light of
issue No.2, which has been proposed to be
decided as a preliminary issue and the
arguments advanced.

13. To decide the issue No.2, it is
essential to notice that the RERA Act was
enacted to regulate and promote the real
estate sector in addition thereto to protect
the interest of the consumers in the real
estate and to establish an adjudicating
mechanism. In terms of the mandate of the
Act, the requirement of registration was
made mandatory under Chapter-II. The
functions and duties of promoters were
prescribed in Chapter-III. The rights and
duties of the allottees were prescribed in
Chapter-IV.
Chapter-V
prescribed
for
setting up a regulatory authority and
Chapter-VII prescribed for establishment of
a Real Estate Appellate Tribunal.

14. It is essential to notice the mandate
of Section 43 of the Act, which prescribes
the manner in which, the Appellate
Tribunal shall be established. The same is
quoted herein-below:-

"43.
(1)
The
appropriate
Government shall, within a period of one
year from the date of coming into force of
this Act, by notification, establish an
Appellate Tribunal to be known as the -
(name of the State/Union territory) Real
Estate Appellate Tribunal.

(2) The appropriate Government
may, if it deems necessary, establish one or
more benches of the Appellate Tribunal, for
various jurisdictions, in the State or Union
territory, as the case may be.

(3) Every bench of the Appellate
Tribunal shall consist of at least one
Judicial Member and one Administrative to
Technical Member.

(4) The appropriate Government
of two or more Staes or Union territories
may, if it deems fit, establish one single
Appellate Tribunal: Provided that, until the
establishment of an Appellate Tribunal
under
this
section,
the
appropriate
Government shall designate, by order, any
Appellate Tribunal Functioning under any
law for the time being in force, to be the
Appellate Tribunal to hear appeals under
the Act: Provided further that after the
Appellate Tribunal under this section is
586 INDIAN LAW REPORTS ALLAHABAD SERIES
established, all matters pending with the
Appellate Tribunal designated to hear
appeals, shall stand transferred to the
Appellate Tribunal so established and shall
be heard from the stage such appeal is
transferred.

(5) Any person aggrieved by any
direction or decision or order made by the
Authority or by an adjudicating officer
under this Act may prefer an appeal before
the Appellate Tribunal having jurisdiction
over the matter:

Provided that where a promoter
files an appeal with the Appellate Tribunal,
it shall not be entertained, without the
promoter first having deposited with the
Appellate Tribunal at least thirty per cent.
of the penalty, or such higher percentage
as may be determined by the Appellate
Tribunal, or the total amount to be paid to
the
allottee
including
interest
and
compensation imposed on him, if any, or
with both, as the case may be, before the
said appeal is heard.

Explanation.-For the purpose of
this sub-section "person" shall include the
association of allottees or any voluntary
consumer association registered under any
law for the time being in force."

15. The composition of the Appellate
Tribunal is specified in Section 45 is
quoted herein-below:-

"45. The Appellate Tribunal shall
consist of a Chairperson and not less than
two whole time Members of which one shall
be a Judicial member and other shall be a
Technical or Administrative Member, to be
appointed by the appropriate Government.
Explanation.-For the purposes of this
Chapter,- (i) "Judicial Member" means a
Member
of
the
Appellate
Tribunal
appointed as such under clause (b) of subsection (1) of section 46;

(ii) "Technical or Administrative
Member" means a Member of the Appellate
Tribunal appointed as such under clause
(c) of sub-section (1) of section 46."

16. The qualification for appointment
of the Chairman and the Members of the
Appellate Tribunal is specified in Section
46 of the Act, which is quoted hereinbelow:-

"46. (1) A person shall not be
qualified
for
appointment
as
the
Chairperson or a Member of the Appellate
Tribunal unless he,-

(a) in the case of Chairperson, is
or has been a Judge of a High Court; and

(b) in the case of a Judicial
Member he has held a judicial office in the
territory of India for at least fifteen years
or has been a member of the Indian Legal
Service and has held the post of Additional
Secretary of that service or any equivalent
post, or has been an advocate for at least
twenty years with experience in dealing
with real estate matters; and

(c) in the case of a Technical or
Administrative Member, he is a person who
is well-versed in the field of urban
development,
housing,
real
estate
development, infrastructure, economics,
planning, law, commerce, accountancy,
industry, management, public affairs or
administration and possesses experience of
at least twenty years in the field or who has
held the post in the Central Government, or
a State Government equivalent to the post
of Additional Secretary to the Government
8 All. Shashank Gupta Vs. M/S Vatika Nirman Pvt. Ltd. Lko.
587
of India or an equivalent post in the
Central Government or an equivalent post
in the State Government.

(2) The Chairperson of the
Appellate Tribunal shall be appointed by
the
appropriate
Government
in
consultation with the Chief Justice of High
Court or his nominee.

(3) The judicial Members and
Technical or Administrative Members of
the Appellate Tribunal shall be appointed
by the appropriate Government on the
recommendations of a Selection Committee
consisting of the Chief Justice of the High
Court or his nominee, the Secretary of the
Department handling Housing and the Law
Secretary and in such manner as may be
prescribed."

17. Section 55 of the Act prescribes
that proceeding shall not be invalidated
only on account of vacancy arising. Section
55 of the Act, which is the statutory
section, based upon which both the
arguments
are
founding
that
their
arguments, is quoted herein-below:-

"55. No act or proceeding of the
Appellate Tribunal shall be invalid merely
by reason of-

(a) any vacancy in, or any defect
in the constitution of, the Appellate
Tribunal, or

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

(c)
Any
irregularity
in
the
procedure of the Appellate Tribunal not
affecting the merits of the case."

18. Thus, the sole consideration is
whether the non-inclusion of a Technical
Member in the impugned judgement would
be a valid exercise of appellate powers
considering the scope of Section 43(3),
Section 45 and Section 55 of the Act.

19. On a plain reading of the
prescriptions as extracted herein-above, it
is clear that there is a distinction between
the Appellate Tribunal, which has to be
established in terms of Chapter-VII and the
Bench which is to be established for
hearing in the Appellate Tribunal. The use
word 'Bench' in Section 43(3) of the Act,
clearly marks out a distinction between the
phrases used in Section 43(3) and Section
45 of the Act. Section 55 of the Act is an
enabling
provision,
which
has
been
incorporated to protect any orders, which
can be challenged in case any appointment
to the Appellate Tribunal or any defect
pertaining
to
the
Appellate
Tribunal
surfaces
subsequent
thereto.
Much
emphasis is placed on Section 55(c) of the
Act.

20. I am of the firm view that Section
55(c) of the Act would also not rectify the
defect of constitution of a Bench as
prescribed under Section 43(3) of the Act
as it has been incorporated only to save any
irregularity in the procedure of the
Appellate Tribunal and cannot be read to
mean to cure the irregularities in the
constitution of the Bench.

21. The view taken above, is fortified
by the Division Bench judgement of the
High Court of Punjab and Haryana reported
in 2020 SCC OnLine P&H 2030, wherein
amongst the several issues considered by
the Division Bench framed the following
issues for consideration:-
588 INDIAN LAW REPORTS ALLAHABAD SERIES

"47. The issues that arise for
consideration are:

(a) Can a Single Member of the
Authority
validly
pass
orders
on a
complaint under the Act? Are Regulations
7 and 8 of the Punjab RERA Procedure
Regulations ultra vires the Act?

(b) Can a Single Member of the
Appellate Tribunal validly pass orders in
the appeals before it?

(c) Should all the complaints
under the Act be entertained in the first
instance by the AO under Section 71 of the
Act and in that context is the Circular
dated 21st November, 2018 issued by the
Authority valid?

(d) Is the appointment of Mr.
Sanjiv Gupta as Member of the Authority
valid?

(e) Are the Appellate Tribunal's
orders declining to waive the requirement
of pre-deposit valid? Should this Court in
exercise of its jurisdiction under Article
226 of the Constitution direct the Appellate
Tribunal to entertain the appeals without
the pre-deposit? "

22. The said issue was answered in
respect of the constitution of the Appellate
Tribunal in the following manner:-

"64. The next issue is whether the
Appellate Tribunal can function as a Single
Member Bench? At the outset, it must be
noted that although this question arises
directly in the RERA appeals, it has not been
specifically raised as such in the grounds of
appeal. However, since it is a pure question
of law that goes to the root of the matter, it
can be permitted to be raised at any stage.

65. The relevant provision with
regard to the Appellate Tribunal is Section
43 of the Act. Under Section 43(1) of the
Act, the appropriate Government can
establish an Appellate Tribunal. Under
Section 43(2), the appropriate Government
could establish one or more Benches of the
Appellate Tribunal for various jurisdictions
in the State or Union Territory as the case
may be. Section 27 of 41 CWP No. 8548 of
2020 and other connected matters page 28
of 41 43 (3) is important for the purposes of
the question under consideration. It reads
as under:

"43. Establishment of Real Estate
Appellate Tribunal.

(3) Every bench of the Appellate
Tribunal shall consist of at least one
Judicial Member and one Administrative or
Technical Member."

66. Section 43(4) of the Act
envisages the setting up of an Appellate
Tribunal for two or more States or Union
Territory. The proviso thereto permits the
appropriate Government to designate any
Appellate Tribunal functioning under any
law for the time being in force, to be the
Appellate Tribunal to hear appeals under
the Act. Therefore, on a plain reading of
Section 43(3) of the Act, the Appellate
Tribunal is envisaged to sit in Benches.
Section 45 states that the Appellate
Tribunal shall consist of "a Chairperson
and two whole time members, one shall be
judicial
member
and
other
an
administrative or technical member".

67. Since Section 43(3) of the Act
itself provides the minimum quorum of the
Bench of the Appellate Tribunal to be two,
a harmonious construction of Section 43
(3) and 45 of the Act leads to the
8 All. Shashank Gupta Vs. M/S Vatika Nirman Pvt. Ltd. Lko.
589
conclusion that an Appellate Tribunal has
to have at least two members, one of which
has to be a judicial and other a technical or
administrative member. Unlike Section 21
of the Act, which simply states that the
Authority shall comprise of a Chairperson and not
less than two whole time members, a combination
of provisions, viz., Section 43(3) read with Section
45 of the Act envisages there being Benches of the
Appellate Tribunal subject however to the
mandatory requirement that each such Bench shall
have at least two members i.e. one judicial and
another administrative or the technical member.
There can, therefore, be no manner of doubt that
the judicial functions of the Appellate Tribunal in
the State of Punjab cannot be exercised by a Single
Member Bench. Any order passed by such Single
Member Bench of the Appellate Tribunal would
be null and void in law."

23. The Division Bench also referred
to a similar view taken by the Single Judge
of the Bombay High Court in Man Global
Pvt. Ltd. Vs. Bharat Prakash Joukani
and in the case of Larsen and Toubro
Limited Vs. Ms. Rekha Sinha. The
Division
Bench
also
approved
and
considered the scope of Section 55 of the
Act and recorded as under:-

"69. In this context, a reference
was made to Section 55 of the Act which
reads as under:

"55. Vacancies, etc., not to
invalidate
proceeding
of
Appellate
Tribunal.

No act or proceeding of the
Appellate Tribunal shall be invalid merely
by reason of-

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

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

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

70. As rightly held in Larsen and
Toubro Limited (supra), an order passed by
a Single Member of the Appellate Tribunal
would not stand validated by Section 55 as
that would violate the plain language of
Section 43(3) of the Act. Such an order
would be a nullity, an illegality and not a
mere irregularity. Reference in this context
may also be made to the decision in
Gulzari Lal Agarwal vs. The Accounts
Officer (1996) 10 SCC 590 which holds
that every provision of the Act needs to be
construed harmoniously with the view to
promoting the object and purpose of the
Act and that by doing so no violence should
be done to the plain language of the
Section. Therefore, the plea of Mr. Sanjay
Kaushal, with reference to Section 55 of the
Act, that a Single Member exercising
judicial functions of the Appellate Tribunal
was merely a defect in the constitution of
the Appellate Tribunal and, therefore, an
irregularity, cannot be accepted. This goes
to the very root of the jurisdiction of the
Appellate Tribunal and cannot be said to
be saved by reference to Section 55 of the
Act."

24. Thus, on a conjoint reading of the
said three provisions, I do not have any
hesitation in holding that the order passed
by the Appellate Tribunal, which is not in
consonance with the manner of constitution
of Benches as prescribed under Section
43(3) of the Act is null and void and would
not stand cured by invoking Section 55 of
the Act.
590 INDIAN LAW REPORTS ALLAHABAD SERIES

25. In view of the said findings, the
order impugned is clearly beyond the
jurisdiction and cannot be sustained on that
ground.

26. The issue No.2 as framed is
decided by holding that the order passed
by the Appellate Tribunal being without
jurisdiction is null and void. In view of
the finding on issue No.2, I do not see
any reason to decide the other two
issues.

27. Further as it is informed that the
Technical
Member
has
now
been
appointed, the matter is relegated to the
Appellate Tribunal to decide the matter
afresh with all expedition without granting
any unnecessary adjournment to any of the
parties, preferably within a period of 60
days from today. While doing so, the
Appellate Tribunal will consider the matter
afresh particularly the date of allotment,
which has not been done.

28. The appeals are disposed of in
terms of above.
----------
(2025) 8 ILRA 590
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.08.2025

BEFORE

THE HON'BLE IRSHAD ALI J.

Civil Misc. Review Application Defective No. 165
of 2024

C/M
Inter
College
Para
Hamidpur,
Pratapgarh, Thru. Manager ...Applicant
Versus
Km. Poonam Sharma ...Opposite Party

Counsel for the Applicant:
Anurag Kumar Singh
Counsel for the Opposite Party:
Sharad Pathak, Priya Singh, Ran Vijay
Singh

Issue for Consideration
The appointment of the petitioner has been
made under U.P. Recognised Basic Schools
(Junior
High
Schools)
(Recruitment
And
Conditions Of Service Of Teachers) Rules, 1978.
A junior high school when granted recognition
under Section 7-A(a) of U.P. Intermediate
Education Act, 1921 and upgraded to high
school, if any vacancy of Teacher arises in such
institution subsequently whether it would be
filled in following procedure laid down under
U.P. Basic Education Act, 1972 read with U.P.
Recognized Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of
Teachers) Rules, 1978 or for administrative and
other purposes the institution would be deemed
to
be
governed
by
provisions
of
U.P.
Intermediate
Education
Act,
1921
and
recruitment would be governed by provisions of
U.P. Secondary Education Services Selection
Board Act, 1982

Head Notes
The Uttar Pradesh Intermediate Education
Act, 1921- Section 7A (a), The Uttar
Pradesh Secondary Education Services
Selection Board Act, 1982 - A Basic School
or a Junior High School is different from a
High School or an Intermediate College -
Once a basic school or a Junior High
School being upgraded as a High School or
an Intermediate College the identity of
the institution known as basic school or
Junior High School is lost - Appointment of
the petitioner has been made as a
Headmistress in an institution, which has
been upgraded to intermediate college -
Petitioner
is
not
entitled
for
the
appointment made against the provisions
- petitioner is not entitled for issuance of
writ of mandamus, directing for payment
of salary to her. Petition dismissed.

Held-Once
an
institution
is
upgraded
or
recognition upto High School is granted under
Section 7-A(a), provisions of U.P. Intermediate
Education Act, 1921 would be attracted and in
such a case any vacancy of teaching staff