Gujarat High Court
M/S Northway Spaces Limited Through ... vs Snehal Mukesh Modi on 29 September, 2020
Author: G.R.Udhwani
Bench: G.R.Udhwani
C/SCA/11831/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11831 of 2020
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M/S NORTHWAY SPACES LIMITED THROUGH AUTHORIZED
SIGNATORY SANGRAM JAIRAJ BAROT
Versus
SNEHAL MUKESH MODI
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Appearance:
MR VIRAT G POPAT(3710) for the Petitioner(s) No. 1
TIRTH N BHATT(8487) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE G.R.UDHWANI
Date : 29/09/2020
ORAL ORDER
Order dated 13/02/2019 rendered by Adjudicating Officer, Gujarat RERA, Gandhinagar in the proceedings of Gujarat/RERA/Online Application No.CMP/Vadodara/180930/00139 is sought to be assailed in this petition. The proceedings for recovery of the penalty pursuant to the above order is also sought to be assailed in this petition.
The principal contention raised by the learned Counsel for the petitioner is that the adjudicating authority has no jurisdiction to entertain the application; inasmuch as; the date of delivery of the possession of the property to the consumer was concededly 22/03/2019 which had not arrived when the complaint was filed under the Real Estate (Regulation and Development) Act, 2016, (for short RERA Act). It was submitted that despite noting the above fact, the authority was exercised by the adjudicating authority without jurisdiction. It is also submitted that though the appeal is preferred under Section 43 of the RERA Act, it being onerous remedy requiring the deposit of 30% or higher percentage of the penalty imposed by the adjudicating authority, the remedy is not efficacious and the writ petition would lie. Learned Counsel has also invited attention of this Court to the order dated 25/09/2019 rendered in Second Appeal No.202-203 of 2019 admitting the matter on the similar question and also granting the interim relief. He would submit that though it is the order passed in the second appeal, the same question has been raised by the petitioner in writ petition, the petition may be entertained.
On consideration of the submissions made by the learned Counsel for the Page 1 of 3 Downloaded on : Tue Sep 29 23:28:02 IST 2020 C/SCA/11831/2020 ORDER petitioner, this Court is of the opinion that the writ would not lie under Article 226/227 of the Constitution of India for the following reasons:
1. The scheme of the Act provides for a complete machinery for dealing with the cases arising under the Act (Sections 34, 35, 43, 58).
2. The order made by the adjudicating authority is appealable under Section 43 subject to the compliance of sub-section 5 of Section 43 contemplating the deposit of specified percentage of penalty for entertainment of the appeal. The approach of the Legislature in qualifying the right to appeal by imposition of condition of deposit has been observed in several statues providing for the appellate remedy. It is settled legal position that appeal is a creature of statute and the right to appeal if qualified can be consumed as conferred. It is also settled that such condition cannot be termed as onerous condition. Furthermore, the appeal against the order passed under Section 43 would lie only on substantial question of law to the High Court under section 58, and thus, the Act clearly further qualifies the right to appeal making the legislative intention clear that, except the substantial question of law, the lis must end at the first appellate stage. When such is the clear legislative intention, entertaining a writ petition would not be appropriate as that would amount to not only frustrating the legislative intent as above; but also relieving the appellant from the conditional right to appeal provided under Section 43 (5) (proviso thereto).
3. At the cost of repetition, it may be reiterated that the Act which is a special legislation contains a complete machinery and thus the remedy contemplated therein are the only remedies which can be resorted to and the exercise of writ jurisdiction would not be warranted.
4. The contention raised by the learned Counsel for the petitioner that the authority is exercised by the adjudicating authority without jurisdiction also can be raised in appeal under section 43. Therefore, in the opinion of this court, such ground would not be sufficient for entertaining a writ petition, more particularly, when the power under Section 58 has been circumscribed Page 2 of 3 Downloaded on : Tue Sep 29 23:28:02 IST 2020 C/SCA/11831/2020 ORDER as indicated above and entertaining a writ petition would result into indirectly substituting the said remedy by the remedy under Article 226 of the Constitution of India which is not permissible.
The petitioner has already preferred an appeal and it will be open for him to pursue appeal.
The attention of this Court has been drawn to Section 44 (5) of the Act contemplating expeditious hearing of the appeal. Needless to say that if the petitioner relies upon the said provision during the course of hearing of the appeal, the appellate tribunal would consider the same and make the endeavor contemplated therein.
With the aforesaid observations, the petition is not entertained; it is disposed of. Needless to say that appellate authority would consider the case strictly on merits.
(G.R.UDHWANI, J) MOHMMEDSHAHID / SYED / SOMPURA Page 3 of 3 Downloaded on : Tue Sep 29 23:28:02 IST 2020