Gauhati High Court
Dipika Pathak vs Dhiraj Kumar Saikia And 2 Ors on 7 November, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
Page No.# 1/13
GAHC010220332022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP/113/2022
DIPIKA PATHAK
W/O LT. JATINDERA MOHAN PATHAK, R/O HOUSE NO. 18 KARBI NAGAR,
JYOTI NAGAR, P.O. BAMUNIMAIDAN, GUWAHATI-781021 DIST KAMRUP
(M) ASSAM
VERSUS
DHIRAJ KUMAR SAIKIA AND 2 ORS.
S/O LT. TARUN CHANDRA SAIKIA R/O HIMALAYA PRINTERS HOUSE NO. 4
CHANDMARI MILANPUR ROAD, P.S. CHANDMARI GUWAHATI-781021
DIST. KAMRUP (M) ASSAM
2:SUNITA SAIKIA
W/O DHIRAJ KUMAR SAIKIA
R/O HIMALAYA PRINTERS HOUSE NO. 4 CHANDMARI MILANPUR ROAD
P.S. CHANDMARI GUWAHATI-781021 DIST. KAMRUP (M) ASSAM
3:H.B. DEVELOPER
A DULY REGISTERED PARTNERSHIP FIRM
HAVING ITS REGISTERED OFFICE AT VIP ROAD
CHANDAN NAGAR
SIXMILE GUWAHATI-781022 DIST. KAMRUP (M) ASSAM REP. BY ITS
PARTNERS (I) MD. HASINUR RAHMAN
S/O ABDUR RAHMAN R/O PURAN BASTI
AZIZ NAGAR
PANJABAIR ROAD
GUWAHATI-22 DIST. KAMRUP (M) ASSAM
(II) SRI BIJAY KR. BARUAH S/O SRI SUDHAKAR KR. BARUAH R/O HOUSE
NO. 8 NEAR DIRECTOR O F AGRICULTURE OFFICE
KHANAPARA GUWAHATI-781022 DIST. KAMRUP (M) ASSA
Advocate for the Petitioner : MR. S KALITA
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Advocate for the Respondent :
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 07-11-2022 Heard Mr. S. Kalita, learned counsel for the petitioner.
2) This revision has been filed under Section 115 CPC to assail the order dated 31.08.2022, passed by the learned Civil Judge No.1, Kamrup (M), Guwahati in Misc. (J) Case No. 679/2022 arising out of T.S. No. 491/2019. By the said order, the petition filed by the petitioner under Order VII, Rule 11(d) CPC for rejection of plaint was dismissed.
3) The petitioner is the defendant no. 2 in the suit, which is filed by the respondent nos. 1 and 2 as plaintiffs. In brief, as per the plaint, the petitioner is the land-owner and she had entered into an agreement with the respondent no. 3 for development of land and for construction of multi-storied RCC building thereon vide registered deed no. 11696 dated 03.10.2015. The GMC issued a NOC dated 23.05.2016 for construction of basement floor, ground floor and two upper floors with a total of 6 units. Consequent to the said agreement dated 03.10.2015, vide registered General Power of Attorney bearing deed no. 3966 dated 03.10.2015, the petitioner had nominated, appointed and constituted the respondent no. 3 i.e. the developer as her attorney. Thereafter, vide registered deed no. 2953 dated 12.04.2017, the respondent no. 3 had entered into an agreement for sale of a flat with the respondent nos. 1 and 2 Page No.# 3/13 and the proposed flat is described in Schedule-B to the said registered agreement. Although the respondent nos. 1 and 2 had purportedly paid a sum of Rs.31,00,000/- to the respondent no. 3, the construction of the proposed flat was not completed and therefore, the suit was filed for specific performance of contract, and execution of the sale deed on receiving balance sale consideration and/or without any balance construction in the event construction is not completed, and for consequential reliefs of registration of sale deed by Court and alternative relief of refund of part consideration of Rs.31,00,000/- paid to the respondent no. 3.
4) The petitioner, i.e. the defendant no. 2 had contested the suit by filing her written statement, denying her liability and stating that the respondent no. 3 had abruptly stopped construction and it was also stated that there was no contract between the petitioner and the respondent nos. 1 and 2 and that she was a stranger to the agreement and that as the respondent no. 3 had raised incomplete construction, the land of the petitioner was blocked, for which the petitioner was suffering in terms of money and mental agony and that the petitioner was not at fault and that the respondent no. 3 had cheated the petitioner. Accordingly, it was prayed that the suit be dismissed.
5) It may also be mentioned that along with the suit an injunction petition was also filed by the respondent nos. 1 and 2, which was contested by the petitioner.
6) During the pendency of the suit, the petitioner had filed an application under Order VII, Rule 11(d) CPC, inter alia, on the ground that the Page No.# 4/13 suit was barred by the provision of Section 79 of the Real Estate (Regulation and Development) Act, 2016 (RERA Act for short), which creates absolute bar for the civil court to adjudicate the subject matter of the suit as the Real Estate Regulatory Authority and Real Estate Appellate Tribunal had the power to adjudicate the issues raised in the plaint. The said petition was registered as Misc. (J) Case No. 679/2022. The respondent nos. 1 and 2 had filed their written objection to the said petition. The learned Civil Judge No.1, Kamrup (M), Guwahati, by the impugned order dated 31.08.2022, had dismissed, being devoid of any merit.
7) The learned counsel for the petitioner, by referring to the grounds on which this revision has been presented, has submitted that the RERA Act was enacted for such eventualities, where the builders dupe the prospective flat buyers. It was submitted that the suit is pending for last 3 (three) years whereas, as per the RERA Act, the adjudication is expected to be completed within 6 (six) months and therefore, the respondent nos. 1 and 2 would get speedier justice. On the Court query that the project was not registered with RERA, it was submitted that although the project was not registered under RERA, yet the RERA had the power, jurisdiction and authority to adjudicate the dispute of prospective flat purchaser and the builder and in the said regard, it was submitted that a complaint can be lodged before RERA under Section 31 and under Section 32 of the RERA Act, the RERA can exercise jurisdiction. It was also submitted that when one can approach RERA, suit for specific performance against the land-owner, i.e. the petitioner would not lie. It was submitted that the learned court below had proceeded with a misconception of law that if the project is not registered, then the RERA would Page No.# 5/13 have no jurisdiction. Moreover, it was submitted that it was the duty of the Court to examine the plaint and as the respondent nos. 1 and 2 had alternative and efficacious remedy, the learned trial court ought to have relegated the parties to RERA. In course of submissions, several provisions of RERA Act were referred to. In support of his submissions, the learned counsel for the petitioners has cited the case of Patil Automation Private Limited & Ors. v. Rakheja Engineers Private Limited, 2022 Legal Eagle (SC) 896: AIR 2022 SC 3848.
8) It is seen that it is not disputed by the learned counsel for the petitioner that the project, which is the subject matter of the suit is not registered under RERA. In this regard, the provisions of Section 3, 31 and 32 of RERA Act, referred to by the learned counsel for the petitioners is extracted below:-
3. Prior registration of real estate project with Real Estate Regulatory Authority.- (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, in any planning area, without registering the real estate project with the Real Estate Regulatory Authority established under this Act:
Provided that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of this Act:
Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made there under, shall apply to such projects from that stage of registration.
(2) Notwithstanding anything contained in sub-section (1), no registration of the Page No.# 6/13 real estate project shall be required--
(a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases:
Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act;
(b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;
(c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project.
Explanation.--For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately.
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31. Filing of complaints with the Authority or the adjudicating officer. (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made there under against any promoter allottee or real estate agent, as the cae (sic. case) may be. Explanation.--For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.
(2) The form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations.
32. Functions of Authority for promotion of real estate sector.- The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of (sic. or) the competent authority, as the case may be, on,--
(a) protection of interest of the allottees, promoter and real estate agent;
(b) creation of a single window system for ensuring time bound project approvals Page No.# 7/13 and clearances for timely completion of the project;
(c) creation of a transparent and robust grievance redressal mechanism against acts of omission and commission of competent authorities and their officials;
(d) measures to encourage investment in the real estate sector including measures to increase financial assistance to affordable housing segment;
(e) measures to encourage construction of environmentally sustainable and affordable housing, promoting standardization and use of appropriate construction materials, fixtures, fittings and construction techniques;
(f) measures to encourage grading of projects on various parameters of development including grading of promoters;
(g) measures to facilitate amicable conciliation of disputes between the promoters and the allottees through dispute settlement forums set up by the consumer or promoter associations;
(h) measures to facilitate digitization of land records and system towards conclusive property titles with title guarantee;
(i) to render advice to the appropriate Government in matters relating to the development of real estate sector;
(j) any other issue that the Authority may think necessary for the promotion of the real estate sector.
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34. Functions of Authority.- The functions of the Authority shall include--
(a) to register and regulate real estate projects and real estate agents registered under this Act;
(b) to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted;
(c) to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalized under this Act, with reasons there for, for access to the general public;
(d) to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked;
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(e) to fix through regulations for each areas under its jurisdiction the standard fees to be levied on the allottees or the promoter or the real estate agent, as the case may be;
(f) to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made there under;
(g) to ensure compliance of its regulations or orders or directions made in exercise of its powers under this Act;
(h) to perform such other functions as may be entrusted to the Authority by the appropriate Government as may be necessary to carry out the provisions of this Act.
9) Having regard to the provision of Sub-Section (2) of Section 3 of the RERA Act, the learned counsel for the petitioner has not been able to successfully demonstrate that the present project exceeded an area of 500 square metres or that the proposed building envisaged 8 (eight) flats or more. The learned counsel for the petitioner has miserably failed to show that even if a project is not required to be RERA registered, the RERA and Real Estate Appellate Authority has been conferred with jurisdiction to exercise adjudicatory power over non- RERA registered projects.
10) Section 79 of the RERA Act creates a bar on the civil court to entertain matters over which RERA or Appellate Tribunal would have jurisdiction. The said provision is quoted below:-
"9. Bar of Jurisdiction.- No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act."
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11) Thus, on a perusal of the provision of Section 79 of RERA Act, it cannot be said that the RERA is empowered to confer upon itself a jurisdiction, which is not conferred upon it by the statute. It is too obvious, that if the RERA or the Real Estate Appellate Tribunal had been conferred with power to invoke its jurisdiction on any construction made by a real estate developer, there was no requirement of having the provision of Sub-Section (2) incorporated in Section 3 of the RERA Act.
12) The case of Patil Automation (supra) was cited it was the duty of the learned trial Court to examine the plaint and to relegate the parties to approach the RERA. We cannot subscribe to the said submissions. The said case was a commercial suit and is mandatorily required to be tried as per the mandate of the Commercial Courts Act, 2015 and in the said case, the Supreme Court of India had declared that pre-litigation mediation as envisaged under Section 12A of the said Act is mandatory. The said ratio cannot be applied to the facts of the present case. In cases tried under the CPC, the stage of first hearing of the suit is already prescribed, which is too well settled by a catena of case laws on the point. We would not expect the already over-burdened civil Courts to read the plaint, have deep insight of thousands of Acts, Rules, and Regulations, and proceed to suo motu determine whether or not the parties can be relegated to some authority under some law to have their suit adjudicated. The provision of Order VII, Rule 11 CPC is not for nothing.
13) In the aforesaid context, it would be appropriate to refer to the provision of Section 57 of the Evidence Act, 1872, which empowers a Court to Page No.# 10/13 refuse to take judicial notice of any law, unless a book is produced before such Court. The said provision is extracted below:-
57. Facts of which Court must take judicial notice.- The Court shall take judicial notice of the following facts:--
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force; (4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice : the seals of all the Courts in India, and all Courts out of India established by the authority of the Central Government or the Crown Representative: the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India; (7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette; (8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette; (10) The territories under the dominion of the Government of India; (11) The commencement, continuance, and termination of hostilities between the Government of India and any other State or body of persons; (12) The names of the members and officers of the Court and of their deputies and subordinate officers and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, Page No.# 11/13 pleaders and other persons authorized by law to appear or act before it; (13) The rule of the road, on land or at sea.
In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so, unless and until such person produces any such book of document as it may consider necessary to enable it to do so. (emphasis by Court).
14) Coming to the order impugned herein, it could not be shown that the impugned order is vitiated in any manner. The petitioner has not been able to show that the title over any part of the land in question had passed on to the respondent no. 3, therefore, we find nothing on record that the respondent no. 3 as a builder could have effectively sold and delivered title to the respondent nos. 1 and 2, when the respondent no. 3 did not have any iota of title. Thus, it has not been demonstrated that the steps taken by the respondent no. 3 was independent of the petitioner, because on a reading of clause (7) of the General Power of Attorney given by the petitioner, it is apparent that the petitioner has empowered the respondent no. 3 to enter into an agreement for sale of the flats (except flat reserved for herself) and to sell such flats.
15) The learned counsel for the petitioner could not demonstrate that the respondent nos. 1 and 2 could not maintain the suit against the petitioner. Assuming for the sake of argument that RERA or Real Estate Appellate Authority had jurisdiction in the matter, but in this case, the petitioner has not been able to show before the RERA, the claim of the respondent nos. 1 and 2 could be maintainable against the petitioner, although she was not a real Page No.# 12/13 estate developer and there was admittedly no agreement or contract between the petitioner and the respondent nos. 1 and 2. Therefore, in light of the provision of Section 9 of the CPC, read with Section 79 of the RERA Act, the Court is unable to find that the jurisdiction of the civil courts has been expressly barred (i) when the project is not registered with RERA, (ii) when admittedly, the petitioner is not a "promoter' as defined under Section 3 of the RERA Act.
16) Thus, prima facie the indelible view of the Court is that the learned Court below has not committed any perversity in holding that as the project in this case did not require registration under RERA and if there is no registration under RERA, then the question of applying the provision of RERA Act does not arise. This is not a case where the learned Court below had exercised jurisdiction not vested in it by law, or that it failed to exercise jurisdiction vested in it by law, or that it had acted in the exercise of its jurisdiction illegally or with material irregularity.
17) Before parting with the records, the Court is inclined to note the stand taken by the learned counsel for the petitioner, based on pleadings made in the written statement and the statement made in Misc. (J) Case No. 679/2022 to the effect that the petitioner, being the land-owner is a victim of the abrupt stoppage of construction by the respondent no. 3, that her land was blocked by incomplete construction, etc. However, it is surprising to note that the petitioner has not made any attempt to approach the RERA for agitating her own so called grievance, which leads credence to the approach of the learned trial Court to the effect that as the project in this case did not require registration under RERA and if there is no registration under RERA, then the Page No.# 13/13 question of applying the provision of RERA Act does not arise. Perhaps for the said precise reason, the petitioner has not approached the RERA.
18) Therefore, in light of the discussions above, this revision fails and the same is dismissed at the 'motion' stage without issuing notice to the respondents.
19) The Registry shall transmit a copy of this order to the Court of Civil Judge No.1, Kamrup (M), Guwahati to bring this order to the notice of the said learned Court.
JUDGE Comparing Assistant