Calcutta High Court
Rajan Poddar vs Greentech It City on 22 September, 2025
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OD-36
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
IA. GA/1/2025
In
E.C. No. 54 of 2024
RAJAN PODDAR VERSUS GREENTECH IT CITY
PVT LTD
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 22nd September 2025
APPEARANCE
Mr. Mohit Gupta, Adv.
For the decree-holder
Mr. Ratul Das, Adv.
Mr. K. Hussain, Adv.
Mr. Sumit Biswas, Adv.
For the judgement-debtor
The Court: This is an application filed by the Judgment Debtor praying for the
following reliefs:
a) Direction for dismissed of the Execution proceeding for lack of jurisdiction.
b) Ad-interim order in terms of prayer above.
c) Stay of execution proceeding till disposal of the present petition.
d) Costs.
e) Such further and/or other order and/or orders as this Hon'ble Court may
deem fit and proper.
The contention of the applicant/Judgment Debtor may be summed up thus:
1. The instant execution application has been filed for execution of an order
dated 7th April 2021 passed by the West Bengal Housing Industry
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Regulatory Authority in Complaint No. COM-000353 (Rajan Poddar VS
Green Tech IT City Private Limited).
2. The Order being passed by the West Bengal Housing Industry Regulation
Authority which was constituted under the West Bengal Housing Industry
Regulation Act 2017 has been declared ultra-virus and/or repealed by the
Hon'ble Supreme Court reported at (2021) 8 SCC 599 (Forum for people's
Collective Efforts VS State of West Bengal). The order is not enforceable in
law. There has been no approval of the present proceedings under the
provisions of RERA ACT. It cannot be considered as transferred and/or
disposed of in accordance with law by the authority constituted under the
RERA Act.
3. There is no judgment and/or decree enforceable under law in relation to the
order dated 4th July 2021.
4. The present application has been filed under Section 26 of the West Bengal
Real-Estate (Regulation and Development) Rules 2021. Such Provision is
not applicable insofar as the present proceeding is not for implementation of
any order but for recovery of compensation and interest which is under Rule
25 of the West Bengal Real-Estate (Regulation and Development) Rules
2021.
5. Since the recovery proceeding is in exercise of Section 40(1) and is required
to be recovered under the provisions of Bengal Public Demand Recovery Act,
this Court does not have the jurisdiction to execute and/or enforce the
present proceedings.
The Decree holder has filed affidavit in opposition denying the allegations
made therein.
It is contended by the Decree holder that approval of the present proceedings is
not required under provisions of RERA. It is further contended that the Hon'ble
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Supreme Court by order dated 12th May 2021 passed in petition for Special Leave to
Appeal No. 16908 of 2022 has clarified that the orders passed under West Bengal
Housing Industries Regulation Act 2017 (WB-RERA) shall be executed in accordance
with the law as if they were issued under the RERA. Thus the Execution case is
enforceable. The Decree holder has also denied that the recovery proceeding under
Section 40(1) of the Real Estate (Regulation and Development) Act 2016 is required to
be done under the provisions of Bengal Public Demand Recovery Act 1930.
Heard Learned Advocate for the Judgment Debtor and Learned Advocate for
the Decree holder.
Learned Advocate for the Judgment Debtor submits that the present execution
case has been filed by the Decree-Holder for execution of an order dated 7th April
2021 passed by West Bengal Housing Industry Regulatory Authority in complaint No.
COM-003353. It is evident from the contents of the said order that directions have
been passed for recovery of compensation interest or penalty. In as much as the said
order is not for implementation of any order in respect of any real estate project but
prescribed to be recovered as arrears of Land revenue. Learned Advocate further
submits that the Decree Holder has inadvertently and by incorrect appreciation of
provision of the statute filed the said execution case under Rule 26(2) of the West
Bengal Real Estate (Regulation and Development) Rules 2021. Learned Advocate also
submits that no execution case is maintainable in law as amount is to be recovered
as arrears of land revenue.
Learned Advocate submits that Order dated 7th April 2021 directs payment of
compensation interest and penalty against the Judgment Debtor, and if such order is
to be executed the applicable provision would be Section 40 under the Real Estate
(Regulation and Development) Act 2016.
Learned Advocate further submits that the decree holder failed to appreciate
that the provisions under Section 40 of the said Act and Rule 26, of the WB - RERA
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Rules shall not be applicable without considering Rule 25 thereof. Learned Advocate
also submits that decision relied upon by Learned Advocate of the Decree holder is
not applicable to the facts of the case, as the issue in that case is proceedings filed by
other Decree Holder under the same provision before the Certificate Officer under the
Bengal Public Demand Recovery Act 1913.
Learned Advocate for the Decree holder submits that the decree holder has
filed the instant execution case being EC No. 54 of 2024 for execution of the order
dated 7th April 2021 passed by the West Bengal Housing Industry Regulatory
Authority in Complaint No. 000353 (Rajan Poddar VS Green Tech IT City Private
Limited). By the said order dated 7th April 2021, the judgment debtor has been
directed to refund the amount of Rs. 8,41,215/- to the decree holder with rate of
interest specified in the Agreement for sale from dates of payment till 31st May 2018
and from 1st June 2018 at the rate of SBI PLR + 2% till the date of payment. Learned
Advocate further submits that the said order is executable by this Hon'ble Court
under Rule 26(2) of the West Bengal Real Estate (Regulation And Development) Rules
2021 being principal Civil Court within whose jurisdiction the judgment debtor
carries on business.
Learned Advocate also submits that having declared the West Bengal Housing
Industry Regulation Act 2017 (WB-HIRA) to be ultra-virus by the judgment dated 4th
May 2021 reported in (2021) 3 SCC 599 the Hon'ble Supreme Court of India by order
dated 12th May 2023 passed in petition for special Leave to Appeal (c) No.
16988/2022 has held that all orders passed under WB-HIRA prior to 4th May 2021
shall be executed in accordance with law, as if they were issued under the Real
Estate (Regulation And Development) Act 2016 (RERA)-
Learned Advocate submits that Judgment of Ajit Ghosh and ors. VS The State
of West Bengal Housing Department and ors is not an authority to disentitle the
allottee to have recourse to Rule 26(2) of the West Bengal Estate Regulation And
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Development) Rules 2021 for recovery of refund with interest in terms of the
clarification issued by the Supreme Courts order dated 12th May 2023 which is
subsequent to the said judgment dated 25-01-2023 of the Learned Single Judge.
Upon considering the Execution Case it appears that the Order is passed by
West Bengal Housing Industry Regulatory Authority. It will further appear that the
direction was issued in exercise of power conferred under Section 38 of the West
Bengal Housing Industry Regulation Act 2017.
Section 40(1) of West Bengal Housing Industry Regulation Act 2017 provides
that if a promoter or an allottee as a real estate agent as the case may be fails to pay
any interest or penalty or compensation imposed on him by the Regulatory Authority
or the Appellate Authority as the case may be under this Act or the rules and
regulations made thereunder, it shall be recoverable from such promoter or allottee
or real estate agent, in such manner as may be prescribed as an arrears of Land
revenue.
Rule 27 of West Bengal Housing Industry Regulation Rules 2018 provides that
subject to the provisions of sub-section (1) of Section 40, the recovery of the amounts
due as arrears of land revenue shall be carried out in the manner provided in the
Bengal Public Demand Recovery Act 1913.
The argument of the Judgment Debtor is two fold.
Firstly the direction passed by the West Bengal Housing Industry Regulatory
Authority is a nullity in terms of the decision of the Hon'ble Supreme Court in the
case of Forum for People's Collective Efforts VS State of West Bengal. reported in
(2021) 8 SCC. P-599.
Secondly this Court cannot execute the Order passed by West Bengal Housing
Industry Regulatory Authority in view of the provision contained in Rule 25 of West
Bengal Real Estate (Regulation and Development) Rules 2021 which provides as
follows:
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Rule 25. Manner of recovery of interest penalty and compensation-Subject to
the provisions of sub-section(1) of Section 40 the amounts due shall be as arrear of
land revenue, and shall be recovered in the manner provided in the Bengal Public
demand Recovery Act 1913. (Bengal Act 3 of 1913).
Now with regard to the first submission that the order passed by the West
Bengal Housing Industry Regulation Authority is not enforceable in law in view of the
decision of the Hon'ble Supreme Court in the case of Forum for People's Collective
Efforts Supra, it will appear that in paragraph 185 of the Judgment of the Hon'ble
Supreme Court the Hon'ble Court observed as follows:
'185. Since its enforcement in the State of West Bengal the WB-HIRA would
have been applied to building projects and implemented by the authorities
constituted under the law in the state. In order to avoid uncertainty and disruption
in respect of actions taken in the past recourse to the jurisdiction of this Court under
Article 142 we direct that the striking down of WB-HIRA will not affect the
registrations sanctions and permissions previously granted under the legislation
prior to the date of this judgment.'
Further in the case of Saptaparna Ray VS District Magistrate and Collector
North 24 Parganas and ors. the Hon'ble Supreme Court clarified the order passed in
Forum for people's collective Efforts (supra) by observing as follows:
'In the present case, an order was passed on 18 December 2019 in favour of
the petitioner who is a home buyer under the WB-HIRA against the sixth respondent.
The petitioner instituted an applicatiojn for execution in 12th February 2020 in which a show cause notice was issued. An order dated 16th March 2021 was passed directing the refund due to be recovered as arrears of land revenue. The WB-HIRA Act was declared unconstitutional by this Court subsequently on 4th May 2021 as noted above. This Court observed that the 'striking down of WB-HIRA will not affect the registrations sanctions and permissions previously granted under the legislation 7 prior to the date of this judgment.' This principle shall also apply to orders which were passed whether in original or in the course of execution prior to the date of the judgment. All such orders shall be executed in accordance with Law as if they were issued under the RERA.
Moreover we clarify that all complaints which were filed before the erstwhile authority constituted under WB-HIRA shall stand transferred to and be disposed of in accordance with law by the authority which is constituted under the central Act. Any person aggrieved by an order passed under WB-HIRA will be at liberty to pursue the corresponding remedy which is available under the RERA.' Thus upon reading the observations of the Hon'ble Supreme Court in the case of Saptaparna Ray Supra it is clear that the Order passed by the West Bengal Housing Industry Regulatory Authority prior to 4th May 2021 is valid and can be enforceable as if it were issued under the RERA.' Although the Order passed by West Bengal Housing Industry Regulatory Authority is enforceable but the same cannot be enforced under Rule 27 of West Bengal Housing Industry Regulation Rules 2018, as the same has ceased to exist after the same being declared ultra-virus by the Hon'ble Supreme Court in the case of Forum For People's Collective Efforts (supra) and the same has to be enforced under the Rules made under The Real Estate (Regulation and Development) Act 2016.
Now with regard to the second submission made by the Judgment Debtor that the Execution of the Order Passed cannot be done by this Court under Rule 26 of West Bengal Real Estate (Regulation and Development) Rules 2021 and Rule 25 of the said Rules is applicable it would be proper to discuss both the provisions.
Rule-25. Manner of recovery of interest penalty and compensation-Subject to the provisions of sub-section 1 of Section 40 the amounts due shall be as arrears of land revenue and shall be recovered in the manner provided in the Bengal Public 8 Demands Recovery Act 1913.
Rule-26. Manner of implementation of Order, direction or decisions of the adjudicating officer, the Authority as the Appellate Tribunal. 1) Every order made by the Authority Adjudicating Officer or Appellate Tribunal shall be enforced by it in the same manner as if it were a decree of a Civil Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure, 1908 shall as far as may be applicable.
2) Any such order shall be executed by the Principal Civil Court of the district having jurisdiction to execute the same.
Thus in order to give harmonious construction to provisions of any rule we must consider the object of the Statute and the rules existing prior to rule in question. The object of the Real Estate (Regulation and Development Act 2016) is to establish the Real Estate Regulatory Authority for regulation and promotions of the real estate sector and to ensure sale of plot, apartment or building as the case may be, or sale of real estate project in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto.
Thus upon reading the object of the Act it will appear that the Act is to provide a mechanism for speedy dispute redressal.
Section 84(r) of the Act empowers the State Government to frame rules to provide the manner of recovery of interest penalty and compensation under sub- section (1) of Section 40 Rule 84(s) provides the power to the State Government to prescribe rules with regard to the manner of implementation of the order, direction or decisions of the adjudicating officer the Authority or the Appellate Tribunal under 9 Sub-Section (2) of Section 40.
In exercise of powers conferred under Section 84 of the Act the State Government has framed 'The West Bengal Real Estate (Regulation and Development) Rules 2021.' Rule 26 of the said Rules Provides general procedure in implementation of order, direction or decisions of the adjudicating officer the Authority or the Appellate Tribunal which by necessary implication includes order imposing interest, penalty or compensation. Rule 25 of the said Rule is specific in nature and it provides manner of recovery of interest, penalty and compensation.
In order to understand the intention of the State Government with regard to Rule 25 and Rule 26 further, it is necessary to consider the rules which existed prior to framing of the said rules.
Prior to framing of West Bengal Real Estate (Regulation and Development) Rules 2021 West Bengal Housing Industry Regulation Rules 2018 framed under The West Bengal Housing Industry Regulation Act 2017, existed till the said statute was declared ultra-virus by the Hon'ble Supreme Court.
Section 40 of the West Bengal Housing Industry Regulation which is similar to the Real Estate (Regulation and Development Act 2016) provided as follows:
Section-40- Recovery of interest or penalty or compensation and enforcement of order etc. - 1) If a promoter or an allottee or a real estate agent as the case may be defaults to pay any interest or penalty or compensation imposed on him by the Regulatory Authority as the case may be under this Act or the rules and regulations made thereunder it shall be recoverable from such promoter or allottee or real estate agent in such manner as may be prescribed as an arrear of land revenue.
2) If any Regulatory Authority or the Appellate Tribunal, as the case may be issues any order or directs any person to do any act or refrain from doing any act, which it is empowered to do under this Act or the rules or regulations made thereunder then in case of failure by any person to comply with such order or 10 direction the same shall be enforced in such manner as may be prescribed.
3) While adjudging the quantum of compensation or interest, as the case may be, the Authority shall have due regard to the following factors namely:-
a) The amount of disproportionate gain or unfair advantage wherever quantifiable made as a result of the default.
b) the amount of loss caused as a result of the default.
c) the repetitive nature of the default.
d) such other factors which the Authority considers necessary to the case in furtherance of justice.
In exercise of power conferred under Section 80 of the West Bengal Housing Industry Regulation Act 2017 West Bengal Housing Industry Regulation Rules 2018 was framed and Rule 27 and 28 of the said Rules Provided as follows:
Rule-27. Moreover of recovery of interest penalty and compensation.-Subject to the provisions of sub-Section 1 of Section 40, the recovery of the amounts due as arrears of land revenue shall be carried out in the manner as provided in the Bengal Public Demand Recovery Act 1913.
Rule-28. Manner of implementation of order, direction or decisions of the Authority or the Appellate Tribunal. For the purpose of sub-section(2) of section 40 every order passed by the Authority or Appellate Tribunal as the case may be, under the Act or the rules and regulations made thereunder, shall be enforced by the Authority or Appellate Tribunal in the same manner as if it were a decree or order made by the principal civil court in a suit pending therein and it shall be lawful for the Authority or Appellate Tribunal as the case may be in the event of its inability to execute the order send such order to the principal civil court to execute such order either within the local limits of whose jurisdiction the person against whom the order is being issued, actually and voluntarily resides or carries on business or personally works for gain.11
As West Bengal Housing Industry Regulation Act 2017 is struck down by the Hon'ble Supreme Court as Ultra Vires the West Bengal Housing Industry Regulation Rules 2018 ceased to exist. Thus The West Bengal Real Estate (Regulation and Development Rules 2021) is framed by the State Government in exercise of powers conferred by Section 84 of the Real Estate (Regulation and Development) Act 2016 Section 40 of the Real Estate (Regulation and Development) Act 2016 provides for recovery of interest or penalty or compensation and enforcement of order etc. Sub-Section 1 of Section 40 of the Act Provides that if a promoter or an allottee or a real estate agent as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority as the case may be under this Act or the rules and regulations made thereunder, it shall be recoverable from such promoter or allottee or real estate agent, in such manner as may be prescribed as an arrear of land revenue.
Sub-Section 2 of Section 40 of the Act provides that if any adjudicating officer or the Regulatory Authority or the Appellate Tribunal as the case may be issues any order or directs any person to do any act or refrain from doing any act which it is empowered to do under this Act or the rules or regulations made thereunder then in case of failure by any person to comply with such order or direction the same shall be enforced in such manner as may be prescribed.
The Rules framed under West Bengal Real Estate (Regulation and Development) Rules 2021 for recovery of interest penalty and compensation and for implementation of order, direction or decision is provided in Rule 25 and Rule 26 of the West Bengal Real Estate (Regulation and Development) Rules 2021. Thus Rule 25, and 26 of the said Rules are quoted once again at the cost of repetition.
Rule 25 provides as follows:
Rule-25- Manner of recovery of interest, penalty and compensation-subject to 12 the provisions of sub-section (1) of section 40, the amounts due shall be as arrears of land revenue and shall be recovered in the manner provided in the Bengal Public Demands Recovery Act 1913.
Rule 26, of the West Bengal Real Estate (Regulation and Development) Rules 2021 provides as follows:
Rule-26. - Manner of implementation of Order, direction or decisions of the adjudicating officer the Authority or the Appellate Tribunal-1) Every order made by the Authority, Adjudicating Officer or Appellate Tribunal shall be enforced by it in the same manner as if it were a decree of a Civil Court in a suit before it and the provisions of Order XXI of the First Schedule to the Code of Civil Procedure 1908 shall as far as may be applicable.
2) Any such order shall be executed by the principal Civil Court of the district having jurisdiction to execute the same.
As the object of framing rules is to give effect to the provisions of the main Act and Rules are framed for the benefit of the public, every endeavour should be made to give harmonious construction to the provisions of the rules.
Upon joint reading of Rule 25 and Rule 26 of West Bengal Estate (Regulation and Development) Rules 2021 it will appear that in Rule 26 the State Government has provided the manner how every order passed by the Authority, Adjudicating Officer, or Appellate Tribunal shall be enforced, by treating the same as a decree of Civil Court in a suit before it and the provisions of Order XXI of First Schedule shall as far as may be applicable.
By using the word 'Every Order' the intention of the State Government is to include directions imposing penalty, interest and award of compensation. The same can be enforced under Order XXI of the Code of Civil Procedure. However as Rule-25 of the West Bengal Real Estate (Regulation and Development) Rules 2021 provides special power to the adjudicating Officer or Authority or tribunal to recover amount 13 due under an order passed by the authority concerned in the manner provided in the Bengal Public Demand Recovery Act 1913, the said amount can be recovered upon considering the application made under Order XXI of the First schedule of the Code of Civil Procedure and invoking the power conferred under Rule 25 by making necessary Complaint to the 'certificate Officer' as defined under Section 2(3) of Bengal Public Demands Recovery Act 1913. Thus the adjudicating Officer or authority which passed the order for payment of compensation or interest may invoke Rule 25 of the Rules if it thinks fit. Thus the word shall used in 'Rule 25' has to be construed as 'may'.
Now in order to ascertain the power of Principal Civil Court of a District to execute order passed by the Authority or Adjudicating Officer or Appellate Tribunal as per Rule 26(2) of the West Bengal Real Estate (Regulation and Development) Rules 2021 the intention of the Rule making authority can be known by considering the earlier rule which existed and comparing the same with the present Rules.
Prior to framing of West Bengal Real Estate (Regulation and Development Rules) 2021 there existed West Bengal Housing Industry Regulation Rules 2018. As per Rule 28 of the said Rules it was provided that every order passed by the Authority would be enforced by the said Authority in the same manner as if it were a decree or order made by the principal civil court in a suit pending before it and it was lawful for the authority to send the matter to the principal Civil Court for execution if the Authority was unable to execute the order. Under the West Bengal Real Estate (Regulation and Development) Rules two separate Sub-Sections are incorporated in Rule-26. Sub-rule 1 being Power of Authority to enforce its own order and sub-rule 2 empowering principal Civil Court of the principal Civil Court of the District to execute the said order. By virtue of sub-rule-2 application may be made to principal Civil Court directly and the said Civil Court may if it thinks fit enforce the order or direct the aggrieved party to move the Authority which has passed the order assigning the 14 reasons. In this regard the word 'shall' in sub-rule 2 should be read as 'may.' Upon considering the power conferred under sub-rule 2 of Rule 26 of West Bengal Real Estate (Regulation and Development) Rules and considering the date of the order, pendency of this Execution case for one year, this court is of the view that in the interest of justice the Execution case should be heard and decided by this court.
Thus this application GA-1/2025 fails and the same is dismissed. This Execution case shall thus proceed. However before passing any order this Court is of the view that this matter may be settled by referring to mediation. Thus I refer the matter to mediation. Justice Subrata Talukder former Judge of this Court is appointed as the Learned Mediator. Learned Mediator is requested to see that the dispute is resolved amicably between the parties.
Fix 4/11/2025 for report of Learned Mediator.
Let a copy of this order be sent to Secretary High Court Mediation Committee.
(BISWAROOP CHOWDHURY, J.) A.Bhar(P.A)