Page No.# 1/7 GAHC010144072023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RERA APPEAL/1/2023 M/S ARYA ERECTORS INDIA PVT. LTD. A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT HOUSE NO. 123, ARYA SMART LIVING, ABHOYPUR, NORTH GUWAHATI, P.O.-COLLEGE NAGAR, P.S.-CHANGSARI, KAMRUP, 781030, REPRESENTED BY ITS MANAGING DIRECTOR - SRI ANIL KUMAR SARMA. VERSUS PADUM DEORI AND ANR S/O BRITISH DEORI, RESIDENT OF NIZARAPAR, PO JAGIROAD, DIST MORIGAON, ASSAM 782410 2:SMTI ARUNDHATI BARUAH W/O SHRI PADUM DEORI RESIDENT OF NIZARAPUR P.O - JAGIROAD DIST - MORIGAON 78241 Advocate for the Petitioner : MR. N DEKA, MR. M GOGOI Advocate for the Respondent : MR S DAS (FOR CAVEATOR), BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER Date : 10-02-2026 Heard Mr. N. Deka, learned counsel for the appellant and Mr. S. Das, learned counsel for the respondents. Page No.# 2/7 2. In this appeal, under Section 58 of the Real Estate (Regulation and Development) Act, 2016 read with Section 100 and Order XLI & XLII of the CPC, the appellant has challenged the judgment and order dated 26.07.2022, passed by the learned Assam Real Estate Appellate Tribunal at Guwahati (Tribunal hereinafter), in REAT/ASSAM/APPEAL No. 05/2022. 3. It is to be noted here that vide impugned judgment and order dated 26.07.2022, the learned Tribunal had dismissed the appeal filed by the appellant/defendant challenging the judgment dated 28.02.2022, passed by the Real Estate Regulatory Authority, (RERA herein after) Assam, in Case No. ASSAM/RERA/2017/323, and thereby affirmed the same. It is also to be noted here that the learned RERA, Assam vide judgment dated 28.02.2022, in Case No. ASSAM/RERA/2017/323, allowed the complaint so filed by the respondents herein. 4. Mr. Deka, learned counsel for the appellant submits that this second appeal is being preferred challenging the judgment and order dated 26.07.2022, passed by the learned Tribunal in REAT/ASSAM/APPEAL No. 05/2022. Taking this Court, through the paragraph No. 5 of the impugned judgment and order, dated 26.07.2022, Mr. Deka submits that the dispute between the appellant and the respondents/complainants, is regarding the actual built up area of the Villa No. D-84, wherein the appellant claims that the built up area is of 2350 square feet and the respondents/complainants argued that it is only of 1842 square feet and that the Tribunal had held that the resolution of the core dispute depends on ascertaining the actual measurement of the said Villa. 4.1. It is also being pointed out by Mr. Deka that while deciding the first appeal, the learned Tribunal had relied upon a report of the joint physical measurement of the Villa, dated 10.02.2022, which was carried out by Ms. K. Mahanta, Town Page No.# 3/7 Planner, RERA and based on which, the Tribunal had passed the order dated 23.06.2022, calling for the records of the complaint case from RERA. Mr. Deka also submits that the said inspection was carried out as per letter dated 29.01.2022, issued under the hand of the Member, RERA and the said report was submitted on 24.02.2022 and based on the said report, the learned Tribunal had disposed of the appeal without furnishing a copy of the same to the appellant herein and also without giving him an opportunity of being heard on the said report and as such, the appellant suffers serious prejudice. Under such circumstances, Mr. Deka submits that this is a fit case to remand to the Tribunal. Accordingly, Mr. Deka has contended to set aside the impugned judgment and order and to remand the case to the learned Tribunal for a fresh decision, after affording an opportunity of being heard to the appellant on the report so relied upon by it. 5. Per-contra, Mr. Das, learned counsel for the respondents submits that the said inspection was carried out in presence of both the parties. The measurement of the Villa was carried out in presence of both the parties and the calculation was also carried out in presence of both the parties. Mr. Das also submits that the report was furnished to the appellant and since the date of furnishing of the report, till passing of the impugned judgment and order, the appellant got sufficient opportunities to raise objection against the same. But, the appellant had failed to avail the same. And as such, the question of prejudice does not arise and under such circumstances, Mr. Das has contended to dismiss the appeal. 6. At this stage, Mr. Deka, learned counsel for the appellant submits that the appellant was very much present when the measurement was carried out on 10.02.2022, but while calculation was carried out by the Town Planner, some of Page No.# 4/7 the built up areas, of the said Villa, such as staircase and the roof top, were excluded and that the appellant has every right to know as to why the said areas of the Villa was excluded from the total built up area and he has also the right to contest the said report. Such an opportunity, having not been given to the appellant, he suffers serious prejudice as the principles of natural justice is violated. 7. In response, Mr. Das, learned counsel for the respondents submits that if the impugned judgment and order is set aside and matter is remanded to the learned Tribunal for giving an opportunity of being heard to the appellant upon the inspection report, he has no objection, however, the same should be confined only to the calculation, not to the measurement, as there is no dispute in respect of the same. 8. Having heard the submission of learned counsel for both the parties this Court has gone through the memo of appeal and the grounds mentioned therein and also gone through the impugned judgment and order, dated 26.07.2022, passed by the learned Tribunal in REAT/ASSAM/APPEAL No. 05/2022. Also gone through the judgment dated 28.02.2022, passed by the learned RERA, Assam in Case No. ASSAM/RERA/2017/323. 9. It appears that this appeal was admitted by a Co-ordinate Bench of this Court on 07.11.2022, on the following substantial questions of law:- “1. Whether the judgment passed by the Real Estate Appellate Tribunal is vitiated by acceptance of the inspection report on the site measurement carried on 10.02.2022, which was submitted on 22.04.2022, but not refer to in the judgment, however accepted as evidence by the Appellate Tribunal without granting an opportunity to the appellant to contest the inspection report? Page No.# 5/7 2. Whether the judgment of the learned Real Estate Appellate Tribunal and Real Estate Regulatory Authority is vitiated by proceeding on the basis on calculation made on account of carpet area and not “build up area” both parties entered into an agreement, more so when none of the parties to this agreement dated 09.02.2016 had not applied for rectification of their mutual agreement within the meaning of Section 26 of the Specific Relief Act and whether the judgment and order passed by both the Tribunal as well as the Authority is vitiated on that account. The learned senior counsel for the appellant is counted to raise any other ground of appeal.” 10. It appears that there is no dispute between the parties regarding the site measurement, which was carried out by the inspection team on 10.02.2022. Having carried out the measurement, the inspection team had submitted the report on 24.02.2022. It is the categorical contention of the appellant herein that while carrying out the calculation, in the report so prepared, some of the built up areas, of the said Villa, such as staircase and the roof top, were excluded by the Town Planner, and since the report so prepared was never furnished to him and since based upon such report his appeal was dismissed, the appellant deprived of the opportunity to raise his objection to the calculation so carried out in the report. Though, Mr. Though, Mr. Das submits that the report so prepared was furnished to the appellant yet he failed to demonstrate from the record that the report was ever furnished to the appellant. 11. It is well settled that right to be heard is a fundamental guiding principle. Before an adverse order, affecting the right of the parties, is being passed, there is a requirement of giving notice, fair hearing and opportunity to respond to Page No.# 6/7 them. 12. In the instant case it is demonstrated by the appellant that he had not been furnished with the copy of the inspection report, wherein calculation was made excluding some of the built up areas, of the said Villa, such as staircase and the roof top. The appellant has, thus, successfully demonstrated that prejudice is caused to him. 13. It is also agreed upon by Mr. Das, learned counsel for the respondents, in remanding the matter to the learned Tribunal for giving an opportunity of being heard to the appellant upon the report of the inspection, so prepared by the inspection team. 14. Accordingly, taking note of the submissions of learned counsel for both the parties and also considering the fact that the inspection report, submitted by the inspection team, was not furnished to the appellant and no opportunity was given to him to raise any objection in respect of some of the built-up area, which were excluded from the calculation, and as agreed upon by learned counsel for both the parties, the impugned judgment and order dated 26.07.2022, passed by the learned Tribunal is set aside and quashed. 15. Now, the matter stands remanded to the learned Tribunal, with a direction to afford the appellant an opportunity of being heard, after furnishing him a copy of the inspection report, dated 24.02.2022, and thereafter, to decide the matter a fresh. It is however, made clear that the opportunity should be confined only to the calculation, not to the measurement, as there is no dispute in respect of the same. 16. In terms of above, this appeal stands disposed of. The registry shall send down the record of the learned Tribunal forthwith, with a copy of this order. Page No.# 7/7 17. The parties have to bear their own cost. Both the parties shall appear before the learned Tribunal within a period of two weeks from today. JUDGE Comparing Assistant