Chattisgarh High Court
Rudra Infratech vs Smt. Shaila Sahu on 7 January, 2022
Author: Rajendra Chandra Singh Samant
Bench: Rajendra Chandra Singh Samant
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Orders on : 22/10/2021
Order Passed on : 07/01/2022
W.P.(227) No.110 of 2021
Rudra Infratech Through Proprietor/partner And Director Ravishankar
Soni, R/o Office No. 12, Rudra Infratech, Second Floor, Bajrang
Complex, In Front Of Naresh Bazar, Telipara, Bilaspur, District- Bilaspur,
Chhattisgarh
---- Petitioner
Versus
1. Smt. Shaila Sahu W/o Shri Ram Avatar Sahu R/o Quarter No. B-153,
Ujjaval Nagar, N. T. P. C. Seepat, District- Bilaspur, Chhattisgarh
2. Chhattisgarh Real Estate Regulation Authority (RERA), Raipur,
Chhattisgarh, through Its Chairman, Ghadi Chowk, Raipur, Chhattisgarh
---- Respondents
For Petitioner : Mr. Goutam Khetrapal, Advocate. For respondent No.01 : Mr. Jameel Akhtar Lohani, Advocate.
Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order 07/01/2022
1. The present petition has been brought against the impugned order dated 28.11.2020 (Annexure-P/9) passed by the respondent No.2 against the petitioner.
2. It is submitted by learned counsel for the petitioner that the respondent No.1 had agreed to purchase the disputed property. An agreement was executed on 07.01.2017 after making arrangement of sale price. The -2- sale deed was executed by Sachchi Shukla and Jaynand Adile in favour of the respondent No.1 on 07.01.2017. It is submitted that the petitioner is a private contractor, who was engaged by respondent No.1 through a private contract for which the petitioner had received Rs.1,51,000/- through cheque issued by respondent No.1 on 13.07.2017. The petitioner again received a sum of Rs.1,00,000/- through cheque on 25.08.2017. Respondent No.1 obtained the permission for construction from the authority vide Annexure-P/5. The petitioner started construction work over the property of respondent No.1, however, because of some dispute, the respondent No.1 preferred an application before respondent No.2. The petitioner raised objections before the respondent No.2 but the objections were rejected and the impugned order has been passed against the petitioner directing him to make refund of the amount received by him for the landed property and also make refund of the other amount received by him from the respondent No.1.
3. It is submitted by the learned counsel for the petitioner that petitioner is not a promoter as defined under Section 2 (zk) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter shall be referred to as RERA Act, 2016). It is further submitted that Section 3(2) of the RERA Act, 2016 provides that no registration of real estate Project shall be required, where the area of land proposed to be developed does not exceed 500 sq.m. or the number of the apartment proposed to be developed does not exceed eight, inclusive of all phases. In the present case, the area of the plot of respondent No.1 was working on was not exceeding 500 sq.m. and also it was a case of construction of single residential house. Hence, the dispute between the petitioner and the respondent No.1 was not governed by the RERA Act, 2016. The allegations made for the complaint before the respondent No.2 are totally false.
4. Relying on the judgment of Supreme Court in the case of M/s. Radha Krishan Industries Vs. The State of Himachal Pradesh in Civil Appeal No.1155 of 2021 delivered on 20th of April, 2021. It is submitted that it is a case, in which there is requirement of exercise of supervisory jurisdiction of this High Court as the order or the proceedings by respondent No.2 is wholly without jurisdiction.
5. Reliance is also placed on the judgment of Supreme Court in the case of Harbanslal Sahnia and Anr. Vs. Indian Oil Corporation Ltd. And Ors. reported in (2003) 2 SCC 107.
6. Learned counsel for the respondent No.1 opposes the petition and submissions made by learned counsel for the petitioner. It is submitted by learned counsel for the respondent No.1 that the present petition is not maintainable as there is a provision for appeal present in RERA Act, 2016. Section 44 of the RERA Act, 2016 provides for appeal against the order of RERA before RERA Tribunal and Section 58 of the RERA Act, 2016 provides for appeal to the High Court against the decision or order of the Appellate Tribunal. Therefore, the petitioner has remedy available because of which the supervisory jurisdiction under Article 227 Constitution of India cannot be invoked.
7. It is submitted that the petitioner had been acting as a builder and promoter, therefore, his action is clearly covered under the provisions of the RERA Act, 2016. No error has been committed by the learned authority that is respondent No.2 in passing the impugned order, hence, the petition may be dismissed.
8. Considered on the submissions, the order passed by the respondent No.2, the authority is subject to scrutiny in appeal by the appellate -4- Tribunal. It is informed that the appellate Tribunal though constituted under Section 43 of the RERA Act, 2016, it has not started the functioning. Section 44 of the RERA Act, 2016 very clearly provides that any person aggrieved by any direction or order or decision of the authority or the adjudicating officer may prefer an appeal to the appellate Tribunal. The petitioner has the remedy available, which he has not been able to avail so far because of the non-functioning of the appellate Tribunal. Therefore, in view of the circumstances present and the presence of statutory remedy against the impugned order, it does not appear to be proper to exercise jurisdiction under Article 227 of Constitution of India. Therefore, the petition is disposed off and the petitioner is granted liberty to file appeal before the learned appellate Tribunal within a period of 15 days, the Tribunal starts functioning and he has also liberty to seek interim relief apart from the final relief, which may be prayed for in the appeal. It is further ordered that the interim order passed in the present case shall remain effective for a period of 60 days from the day, the Tribunal becomes functional.
9. With these observations, the petition stands disposed off.
Sd/-
(Rajendra Chandra Singh Samant) Judge Monika