Madhya Pradesh High Court
M/S Satya Infrastructure Ltd. Through ... vs Madhya Pradesh Real Estate Appellate ... on 19 July, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE JUSTICE SUSHRUT ARVIND
DHARMADHIKARI
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 19th OF JULY, 2024
WRIT PETITION No. 12772 of 2024
M/S SATYA INFRASTRUCTURE LTD. THROUGH AUTHORIZED
REPRESENTATIVE JITENDRA BAGARIA AND OTHERS
Versus
MADHYA PRADESH REAL ESTATE APPELLATE TRIBUNAL AND
OTHERS
Appearance:
Shri Vivek Dalal, learned counsel for the petitioner.
None for the respondents.
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Reserved on : 14.05.2024
Pronounced on : 19.07.2024
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ORDER
Per: Justice Sushrut Arvind Dharmadhikari This petition under Article 226 of the Constitution of India has been filed by the petitioners assailing the order dated 02.05.2024 passed by the respondent No.1/M.P.Real Estate Appellate Tribunal, Bhopal in Case No. A- 78/2023 whereby the interim application filed by the petitioners for grant of stay has been rejected.
2. Brief facts of the case are that the petitioner company is engaged in the business of development and construction of houses and a permission was sought for development of land situated in village Rahu Khedi Tehsil Sanwer, District Indore. After obtaining necessary license under the provisions of Madhya Pradesh Gram Panchayat (Registration of Colonizer Terms and Conditions) Rules, 1999, appellants constructed a township namely 'Malwa County'. Petitioner was granted completion certificate on dated 09.03.2010. The respondent No. 3 and 4 booked a residential unit bearing number N-346A admeasuring 1500 sq.ft. for the sale consideration of Rs. 6,37,500/-. Later, the respondents No. 3 and 4 filed a complaint case No. M-SWR-22-0288 dated 28.06.2022 before the respondent No.2/Authority for completion of the project and to execute the conveyance deeds along with possession of said unit in favour of the complainant as per Section 19 of the Real Estate (Regulatory and Development) Act, 2016 (hereinafter referred to as the RERA Act, 2016) and to impose penalty upon the petitioners herein. The petitioners also filed application under Order 7 Rule 11 of the CPC for dismissal of the complaint, however, the application was dismissed vide ex- parte order dated 25.07.2023.
3. Being aggrieved by the order dated 25.07.2023 passed by the respondent No.2, petitioners approached respondent No.1/Appellate Tribunal by way of Appeal No. A-78/2023 in terms of Section 44 of the RERA Act, 2016. The appellate Tribunal, vide impugned order dated 02.05.2024 dismissed the stay application filed by the petitioners on the ground that the Quorum, as contemplated under Section 45 of the RERA Act, 2016 is not complete. Hence, this petition.
4. Learned counsel for the petitioners contended that despite having appreciated the fact that the order dated 25.07.2023 passed by the respondent No.2 is illegal and erroneous on account of the fact that the completion certification has been issued in favour of the petitioners on 09.03.2010 prior to coming into force of RERA Act, the Tribunal has dismissed the stay application filed by the petitioners on frivolous grounds. The impugned order dated 02.05.2024 and the order dated 25.07.2023 passed by the respondent No.2/Authority are violative of the law laid down by the Apex Court in case of Newtech Promoters and Developers Pvt. Ltd. State of Uttar Pradesh & Ors., (2021) 18 SCC 1. Therefore, the order dated 02.05.2024 is liable to be set aside.
5. Heard learned counsel for the petitioners.
6. The preliminary question that arises for consideration is whether petition under Article 226 of the Constitution would be maintainable against an order passed by the Tribunal ?
7. Firstly, the principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, being a high prerogative writ, should not be issued on mere asking.
8. Secondly, the principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction.
9. The essential features of a writ of certiorari, including a brief history, have been very exhaustively explained in case of T.C.Basappa vs. T. Nagappa and Another, AIR 1954 SC 440. The Apex Court held that a writ in the nature of certiorari could be issued in 'all appropriate cases and in appropriate manner' so long as the broad and fundamental principles were kept in mind. Those principles were delineated as follows:
"7. ... In granting a writ of 'certiorari', the superior court does not exercise the powers of an appellate tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous, but does not substitute its own views for those of the inferior tribunal .....
8. The supervision of the superior court exercised through writs of certiorari goes on two points, as has been expressed by Lord Summer in King v. Nat Bell Liquors Limited [(1922) 2 AC 128, 156]. One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. ....
9. Certiorari may lie and is generally granted when a court has acted without or in excess of its jurisdiction."
10. The Apex Court in the case of Hari Vishnu Kamath vs. Ahmad Ishaque and Others, AIR 1955 SC 233, laid down the following propositions as well established:
"(1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
(2) Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous."
11. A court which has jurisdiction over a subject matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy if a superior court were to rehear the case on the evidence and substitute its own finding in certiorari.
12. In case of Syed Yakoob v. K.S.Radhakrishnan and Others, reported in AIR 1964 SC 477, the Apex Court held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals. The observations made in para 7 are worth taking note of:
"7. The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised....."
13. In case of Surya Dev Rai v. Ram Chandra Rai and Others, reported in 2003 (6) SCC 675, it was held that the certiorari jurisdiction though available, should not be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice had been occasioned. In exercising the certiorari jurisdiction, the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine, whether on the face of the record the inferior court has committed any of the errors as explained by this Court in Hari Vishnu Kamath (supra) occasioning failure of justice.
14. From the aforesaid, it could be said in terms of a jurisdictional error that want of jurisdiction may arise from the nature of the subject matter so that the inferior court or tribunal might not have the authority to enter on the inquiry. It may also arise from the absence of some essential preliminary or jurisdictional fact. Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for a writ of certiorari, the court may determine, whether or not that finding of fact is correct. The reason is that by wrongly deciding such a fact, the court or tribunal cannot give itself jurisdiction.
15. So far as the errors of law are concerned, a writ of certiorari could be issued if an error of law is apparent on the face of the record. To attract the writ of certiorari, a mere error of law is not sufficient. It must be one which is manifest or patent on the face of the record. Mere formal or technical errors, even of law, are not sufficient, so as to attract a writ of certiorari. As reminded time and again, this concept is indefinite and cannot be defined precisely or exhaustively and so it has to be determined judiciously on the facts of each case.
16. In the aforesaid context, in the case of Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union and Another, AIR 2000 SC 1508 the Apex Court has observed as under:
"... The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon such materials which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly undertaken. ..."
17. However, we may clarify that findings of fact based on 'no evidence' or purely on surmises and conjectures or which are perverse points could be challenged by way of a certiorari as such findings could be regarded as an error of law.
18. Thus, from the various decisions referred to above, we have no hesitation in reaching to the conclusion that a writ of certiorari is a high prerogative writ and should not be issued on mere asking. For the issue of a writ of certiorari, the party concerned has to make out a definite case for the same and is not a matter of course. To put it pithily, certiorari shall issue to correct errors of jurisdiction, that is to say, absence, excess or failure to exercise and also when in the exercise of undoubted jurisdiction, there has been illegality. It shall also issue to correct an error in the decision or determination itself, if it is an error manifest on the face of the proceedings. By its exercise, only a patent error can be corrected but not also a wrong decision. It should be well remembered at the cost of repetition that certiorari is not appellate but only supervisory.
19. A writ of certiorari, being a high prerogative writ, is issued by a superior court in respect of the exercise of judicial or quasi-judicial functions by another authority when the contention is that the exercising authority had no jurisdiction or exceeded the jurisdiction. It cannot be denied that the tribunals or the authorities concerned in this batch of appeals had the jurisdiction to deal with the matter. However, the argument would be that the tribunals had acted arbitrarily and illegally and that they had failed to give proper findings on the facts and circumstances of the case. We may only say that while adjudicating a writ-application for a writ of certiorari, the court is not sitting as a court of appeal against the order of the tribunals to test the legality thereof with a view to reach a different conclusion. If there is any evidence, the court will not examine whether the right conclusion is drawn from it or not. It is a well-established principle of law that a writ of certiorari will not lie where the order or decision of a tribunal or authority is wrong in matter of facts or on merits.
20. In the case of Ebrahim Aboobakar and Hawabai Aboobakar v. The Custodian General of Evacuee Property, New Delhi, (1952) 1 SCC 798, the Apex Court made the following observations :
"12. The remaining three questions canvassed before us, unless they are of such a nature as would make the decision of the respondent dated 13-5-1950, a nullity, cannot be the subject-matter of a writ of certiorari. It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it.But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right in as much as a court has jurisdiction to decide rightly as well as wrongly. The three questions agitated before us do not seem to be questions which bear upon the jurisdiction of the court of appeal, or its authority to entertain them.
13. It was contended that no court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit of its jurisdiction depends and that the questions involved in the appeal before the respondent were collateral to the merits of the case. As pointed out by Lord Esher, M.R., in R. v. CIT [R. v. CIT, (1888) LR 21 QBD 313 (CA)] , the formula enunciated above is quite plain but its application is often misleading. The learned Master of the Rolls classified the cases under two categories thus : (QBD pp. 319-20) "... When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, [and] on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases, I have mentioned it is erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."
14. The tribunal constituted to hear appeals under Section 24 has been constituted in these terms:
"Any person aggrieved by an order made under Section 7, Section 16, Section 19 or Section 38 may prefer an appeal in such manner and within such time as may be prescribed --
(a) to the Custodian, where the original order has been passed by a Deputy or Assistant Custodian;
(b) to the Custodian General, where the original order has been passed by the Custodian, an Additional Custodian or an authorised Deputy Custodian."
15. Like all courts of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate court in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, a court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within Class 2 of the classification of the Master of the Rolls [R. v. CIT, (1888) LR 21 QBD 313 (CA)]. In these circumstances, it seems to us that the order of the High Court of Punjab that a writ of certiorari could not be issued to the respondent quashing the order of 13-5-1950, was right. We are further of the opinion that none of the contentions raised has any merit whatsoever."
21. In case of Parry and Company Limited v. Commercial Employees' Association, Madras and Another (1952) 1 SCC 449, the Apex Court has held as under:
"14. The records of the case do not disclose any error apparent on the face of the proceeding or any irregularity in the procedure adopted by the Labour Commissioner which goes contrary to the principles of natural justice. Thus there was absolutely no grounds here which would justify a superior court in issuing a writ of certiorari for removal of an order or proceeding of an inferior tribunal vested with powers to exercise judicial or quasi-judicial functions. What the High Court has done really is to exercise the powers of an appellate court and correct what it considered to be an error in the decision of the Labour Commissioner. This obviously it cannot do. The position might have been different if the Labour Commissioner had omitted to decide a matter which he was bound to decide and in such cases a mandamus might legitimately issue commanding the authority to determine questions which it left undecided [Board of Education v. Rice, 1911 AC 179 (HL)] ; but no certiorari is available to quash a decision passed with jurisdiction by an inferior tribunal on the mere ground that such decision is erroneous. The judgment of the High Court, therefore, in our opinion, is plainly unsustainable.
(Emphasis supplied)
22. It is, therefore, clear that in all findings on matters of fact and interpretation of law except in cases of defective jurisdiction, the decision of the tribunal must be deemed to be final.
23. The position is authoritatively summed up in Halsbury's Laws of England Vol.IX in para 1493 where it is laid down thus:
"1493. Where the proceedings are regular upon their face and the magistrates had jurisdiction, the superior court will not grant the writ of certiorari on the ground that the Court below has misconceived a point of law. When the Court below has jurisdiction to decide a matter, it cannot be deemed to exceed or abuse its jurisdiction, merely because it incidentally misconstrues a statute, or admits illegal evidence, or rejects legal evidence, or misdirects itself as to the weight of the evidence, or convicts without evidence. Nor will certiorari be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong in matters of fact, and the Court will not hear evidence impeaching the decision on the facts. ...."
24. In case of Rai Brij Raj Krishna and Another v. Messrs S.K. Shaw and Brothers', AIR 1951 SC 115 it has been held that an error of law does not constitute an error of jurisdiction and that a wrong decision on facts or law cannot be questioned in a civil Court.
25. It being open to the tribunals to come to one or the other conclusion on the materials before them, it cannot by any means be said that the decisions are incorrect so as to attract the extraordinary jurisdiction for interference by a writ of certiorari.
26. The purpose of certiorari, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. The Apex Court in case of G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:
"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
27. As per the aforesaid pronouncement of law, it is settled principle that the writ of certiorari can only be granted against a judicial order passed by any Court of law or a Tribunal when the impugned order suffers from the vices of defective jurisdiction and only on this ground, the writ Court can interfere in the order. In the present case, the petitioner is challenging an order passed in an interim stay application and has not raised any ground with respect to the jurisdiction of the Tribunal.
28. Bare perusal of the order impugned reveals that the Tribunal while adverting to the application filed under Order 7 Rule 11 CPC has taking into consideration the fact that respondents have deposited 90% of the amount as consideration for purchase of residential unit No. N-3468 by 21.11.2007. However, to their utter surprise, respondent's allotment was cancelled by issuance of notice dated 11.04.2022 thereby violating RERA Act and respondent is still willing to pay the balance amount. Respondent has sworn in an affidavit mentioning all the details in support of the contents of the application which is not opposed by the other side and, therefore, the tribunal was of the opinion that the assertion made by the respondent are true and passed the order of status-quo while allowing the application.
29. In the considered opinion of this COurt, the Tribunal has not transgressed any of its jurisdictional limits while allowing the application and passing the order of status-quo. Moreso, the order impugned is interim in nature. Hence, the same does not warrant interference by this court at this stage.
30. In view of the aforesaid, this petition stands dismissed as not maintainable. However, the petitioners would be at liberty to take recourse in accordance with law.
(S. A. DHARMADHIKARI) (GAJENDRA SINGH)
JUDGE JUDGE
sv/sh
SEHAR
HASEEN
Digitally signed by SEHAR HASEEN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=BENCH AT INDORE,
2.5.4.20=900ec6fc757798eaeb3df7a32860bd3298415a4 d1c2d91436213f2568c8f27da, postalCode=452001, st=Madhya Pradesh, serialNumber=E7DBBA955B262C04B8413251CE7FB6F0 B7DBA610C57F1559C08BF6C6F5DD40D4, cn=SEHAR HASEEN Date: 2024.07.20 12:39:56 +05'30'