Orissa High Court
2023 vs In W.P.(C) No.9136 Of 2024 on 11 July, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 9136 of 2024 and Batch
In W.P.(C) No.9136 of 2024, W.P.(C) Nos.9337, 10681, 11942,
12705, 12707, 12933, 12935, 12937, 13111, 13113, 13116, 13517,
13524, 13566 & 34190 of 2022, W.P.(C) Nos.17528 & 19558 of
2023.
Rajdhani Systems and Estates Pvt. Ltd., Bhubaneswar District-
Khurda, represented by its Executive Director Mr. Tirupati Choudhury,
S/o- Late Kunja Bihari Choudhury, Plot No: A/103, Sahid Nagar,
Bhubaneswar, P.O/P.S- Sahid Nagar, District- Khurda Pin- 751007.
...Petitioner
-Versus-
In W.P.(C) No.9136 of 2024
1. Reena Mishra, D/o- P.N. Mishra, resident of Plot No. C-89/F2,
Ramprastha, District- Ghaziabad, Uttar Pradesh- 201011.
2. The Secretary, Odisha Real Estate Regulatory Authority,
Bhubaneswar, Office at: Block-A1, 3rd Floor, Toshali Bhawan, Satya
Nagar, Bhubaneswar, District- Khurda, Odisha.
3. The Competent Authority-cum-Additional District
Magistrate, Office at Collectorate compound P.O:- Chandnichowk,
P.S:- Lalbagh, Town & District- Cuttack
In W.P.(C) No.9337 of 2022
1. Debabrata Panda, S/o- D.C. Panda, At/PO/PS- BJB Nagar,
District- Khurda.
W.P.(C) No.9136 of 2024 & Batch Page 1 of 20
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, District- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.10681 of 2022
1. Subash Chandra Mishra, resident of Qr. No.W/350, Bolani,
P.S:- Bolani, District- Keonjhar, at present C/o A. Mishra Advocate
Phase-2, HIG-19, Sailashree Vihar, Bhubaneswar, 751021.
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.11942 of 2022
1. Saswat Mohanty, S/o Uttam Kumar Mohanty, at present
quarters N. IVB 2/2, Unit-1, Bhubaneswar District-Khurda.
W.P.(C) No.9136 of 2024 & Batch Page 2 of 20
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.12705 of 2022
1. Balakrishna Mishra, S/o- S.P. Mishra, Plot No- 371, Sastri
Nagar, Near Anandana Marg School, Unit-4, P.S.- Kharvel Nagar,
Bhubaneswar, Dist- Khurda.
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.12707 of 2022
1. Sadhana Panda, Wife of- Debabrata Panda, At- D/2, 4th Floor,
Nirmalya, BJB Nagar, P.S- Badagada, Bhubaneswar, District-Khurda
W.P.(C) No.9136 of 2024 & Batch Page 3 of 20
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.12933 of 2022
1. Hakim Khan, S/o- Late A. Khan, At/PO/PS- Gop, Dist-Puri.
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.12935 of 2022
1. Pranita Mohanty, D/o- Uttam Kumar Mohanty, At- Qrs.
No.IVB, 2/2, Unit-1, Bhubaneswar- 751009, District-Khurda
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
W.P.(C) No.9136 of 2024 & Batch Page 4 of 20
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.12937 of 2022
1. Reena Mishra, D/o- P.N. Mishra, At- C-89/F2, Ramprastha,
District-Ghaziabad, Uttar Pradesh- 201011
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, District- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.13111 of 2022
1. Bedabati Chainy, D/o- Late N.B. Chainy, Plot No- A/172,
Sahid Nagar, Bhubaneswar, Dist- Khurda, PIN- 751007
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
W.P.(C) No.9136 of 2024 & Batch Page 5 of 20
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.13113 of 2022
1. Saswat Mohanty, S/o- Uttam Kumar Mohanty, At- Qrs.
No.IVB, 2/2, Unit-1, Bhubaneswar- 751009, Dist- Khurda
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.13116 of 2022
1. Bharati Chainy, D/o- Late N.B. Chainy, Plot No- A/172, Sahid
Nagar, Bhubaneswar, Dist- Khurda, PIN- 751007
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
W.P.(C) No.9136 of 2024 & Batch Page 6 of 20
In W.P.(C) No.13517 of 2022
1. Minakshi Devi @ Dash, W/o- Dr. Pravakar Dash, At/PO-
Nachuni, P.S- Banpur, Dist-Khurda
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.13524 of 2022
1. Suprava Rath, W/o- S.C. Rath, Plot No- 36, Budha Nagar, P.O-
Budheswari, Bhubaneswar, Dist- Khurda
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.13566 of 2022
1. Purnamasi Dash, W/o- Late N.B. Chainy, Plot No- A/172,
Sahid Nagar, Bhubaneswar, District- Khurda, PIN- 751007
W.P.(C) No.9136 of 2024 & Batch Page 7 of 20
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.34190 of 2022
1. Nityananda Prusty, S/o- Late Bhagaban Prusty, resident of At:-
Jeevan Ranga Lane, Dagarapada, P.S:- Lalbagh, PO- Chandnichowk,
Cuttack- 753002, District- Cuttack
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, District- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.17528 of 2023
1. Manjushree Ray, aged about 63 years, W/o- Soumendra Ray,
At/PO- Bhanragarh, Dist- Khordha, At present Plot No. BJ 42, BJB
Nagar, PO- BJB Nagar, PS- Badagada, Bhubaneswar- 751014,
District- Khordha
W.P.(C) No.9136 of 2024 & Batch Page 8 of 20
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001.
In W.P.(C) No.19558 of 2023
1. Prasanta Kumar Mahapatra, S/o- Harihar Mahapatra, At:-
Plot No.195(B), P.O:- Sarakantara, (back side of Primary School),
VIA- Dumuduma, P.S:- Khandagiri, Bhubaneswar- 751019, District-
Khurda, Odisha.
2. Registrar, ORERA, Bhubaneswar, Office at: Block-A1, 3rd
Floor, Toshali Bhawan, Satya Nagar, Bhubaneswar, Dist- Khurda,
Odisha.
3. Secretary, Home Department, Govt. of Odisha, Bhubaneswar.
4. Secretary, Finance Department, Govt. of Odisha,
Bhubaneswar.
5. Superintendent of Police, Crime Branch (EOW), Keshari
Nagar, Bhubaneswar- 751001, Dist- Khurda.
...Opposite Parties
Advocates appeared in these cases:
For Petitioner: Mr. Debasish Nanda, Advocate
For Opposite Parties: Mr. Debakanta Mohanty, AGA
W.P.(C) No.9136 of 2024 & Batch Page 9 of 20
Mr. Bibekananda Bhuyan, Advocate
Mr. Rajesh Ranjan Sahoo, Advocate
Ms. Deepali Mohapatra, Advocate
Mr. Pratap Kumar Mohanty, Advocate
Mr. Sudeep Kumar Sarangi, Advocate
Ms. Chitra Padhy, Advocate
Mr. Prasanta Kumar Nanda, Advocate
Mr. Biswajit Nayak, Advocate
Mr. Manas Das Burma, Advocate
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MISS JUSTICE SAVITRI RATHO
ORDER
Order No. 11.07.2024
05. Chakradhari Sharan Singh, CJ.
A batch of the present writ petitions have been filed by the same company viz., M/s. Rajdhani Systems and Estates Pvt. Ltd. and since the foundational facts have been found to be almost identical, they have been heard together and are being disposed of by the present common order.
2. The petitioner is a registered private limited company and engaged in the business of acquiring land and thereafter converting them into suitable housing plots under its housing schemes. It has been asserted in the writ petition that the petitioner-company had floated certain schemes under different nomenclatures such as Kalyan Vihar, Kalyan Vihar Phase-II, Bhagya Nagar, Puspanjali Enclave and Kunja Vihar Project. The projects were advertised inviting public to avail the W.P.(C) No.9136 of 2024 & Batch Page 10 of 20 benefit of the schemes by booking the plots on payment, either of the full amount or in suitable installments. The petitioner further asserts that it faced various hurdles in acquisition of lands, developing them as per the lay out plans, providing roads, sewerage and electricity connection, drainage etc., which caused some delay in completing the projects and handing over the possession of the plots to the customers, who had booked the plots. As pressure was being mounted by the customers for handing over possession of the plots, and the petitioner- company was under financial stress, it took recourse to borrowing from financial institutions, family, friends etc..
3. It is the further case of the company that alleging acts of the petitioner-company and its Directors, fraudulent criminal cases were filed including EOW Bhubaneswar PS Case No.11 of 2012 registered for the commission of offences punishable under Sections 120-B, 420, 506 read with 34 of IPC. Three of the Directors of the company were arrested and later the Police Crime Branch raided the business offices of the company, who took away all the relevant books of records of registration; accounts ledger, both audited and unaudited accounts, which were awaiting completion of the financial year for audit; hard disks containing all materials pertaining to land details etc. The applications filed by the Directors for their release on bail were rejected by this Court. Finally, they were granted bail by an order dated 21.02.2014 passed by the Supreme Court in Special Leave to Appeal (Crl.) Nos.6749-6751; 6961-6963; 6942-6944; 6983-6985 and 6986- 6988 of 2013, which reads thus:
W.P.(C) No.9136 of 2024 & Batch Page 11 of 20"Since the petitioners have already deposited a sum of Rs.10 Crores before the Registry of this Court and further undertakes to deposit a sum of Rs.53,55,49,227/- before this Court within a period of three months, we are of the opinion that the petitioners who are in custody from 25.12.2012, be released on bail subject to petitioners' furnishing two sureties of Rs.5 lakhs each and subject to following conditions:
a) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority.
b) The petitioners shall remain present before the court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the Court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and request that they may be permitted to be present through the counsel.
c) The petitioners will not dispute their identity as the accused in the case.
d) The petitioners shall surrender their passport, if any (if not already surrendered), and in case, they are not holder of the same, they shall swear to an affidavit. If they have already surrendered their passport before the learned Additional Sessions Judge, Khurda, Bhubaneswar that fact should also be supported by an affidavit.
In case the petitioners fail to deposit a sum of Rs.53,55,49,227/- within the time granted by this Court, the respondents are at liberty to make an appropriate application for cancellation of the bail granted by us.
Insofar as the request of the petitioners for permission to effect sale of flats in projects of Hi-tech Plaza, Kalyan Plaza Annex, Hi-tech Plaza Annex and Hi-tech Heaven is concerned we are not prepared to W.P.(C) No.9136 of 2024 & Batch Page 12 of 20 pass any order at this stage. However, we permit the petitioners to make an appropriate application(s) in this regard before the Additional Sessions Judge, Khurda, Bhubaneswar in connection with FIR. No. 11 of 2012, 4 of 2013, 1 of 2013, 12 of 2012 and 2(2) of 2013.
If and when such an application is filed we direct the Learned Additional Sessions Judge to consider the same in accordance of law without being influenced by any one of the observations made by us in the course of this Order.
The special leave petitions are disposed of accordingly."
4. The petitioner has filed these writ petitions challenging the actions taken by the Odisha Real Estate Regulatory Authority (ORERA), Bhubaneswar under the Real Estate (Regulation and Development) Act, 2016 ("the Act of 2016", in short") on the plea that no legal action under the said provisions are sustainable as the entire amount of Rs.53,55,49,227/- which the petitioner had taken from the investors had been deposited under the Supreme Court's order.
5. W.P.(C) No.9337 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.01 of 2022 (arising out of CC No.39 of 2021); W.P.(C) No.10681 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.42 of 2022 (arising out of C.C. No.278 of 2019); W.P.(C) No.11942 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.3 of 2022 (arising out of C.C. No.110 of 2020); W.P.(C) No.12705 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal W.P.(C) No.9136 of 2024 & Batch Page 13 of 20 No.19 of 2022 (arising out of C.C. No.52 of 2021); W.P.(C) No.12707 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.10 of 2022 (arising out of C.C. No.41 of 2021); W.P.(C) No.12933 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.71 of 2021 (arising out of C.C. No.145 of 2020); W.P.(C) No.12935 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.26 of 2022 (arising out of C.C. No.112 of 2020); W.P.(C) No.12937 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.27 of 2022 (arising out of C.C. No.125 of 2020); W.P.(C) No.13111 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.11 of 2022 (arising out of C.C. No.42 of 2021); W.P.(C) No.13113 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.38 of 2022 (arising out of C.C. No.111 of 2020); W.P.(C) No.13116 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.05 of 2022 (arising out of C.C. No.38 of 2021); W.P.(C) No.13517 of 2022 has been filed challenging an order dated 18.04.2022 passed in OREAT Appeal No.37 of 2022 (arising out of C.C. No.282 of 2019); W.P.(C) No.13524 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.08 of 2022 (arising out of C.C. No.40 of 2021); W.P.(C) No.13566 of 2022 has been filed challenging an order dated 07.03.2022 passed in OREAT Appeal No.06 of 2022 (arising out of C.C. No.43 of 2021); W.P.(C) No.34190 of 2022 has been filed challenging an order dated 26.09.2022 passed in C.C. Case No.22 of 2022; W.P.(C) No.17528 of 2023 has been filed W.P.(C) No.9136 of 2024 & Batch Page 14 of 20 challenging an order dated 28.03.2023 passed in C.C. No.143 of 2022 and W.P.(C) No.19558 of 2023 has been filed challenging an order dated 12.04.2023 passed in C.C. No.235 of 2022for non-compliance of statutory provision contained in the Act of 2016 despite the fact that for the same cause of action, criminal proceedings under the OPID Act and other provisions of the IPC are pending before the Designated Court under the OPID Act. Further, the competent authority under Section 3 of the OPID Act is already holding the deposits made by the depositors for disbursement under the orders of the Supreme Court.
6. W.P.(C) No.9136 of 2024 has been filed seeking quashing of an order dated 01.12.2023 passed in Suo Motu Complaint Case No.65 of 2022 by the ORERA, Bhubaneswar initiated under Section 63 of the Act of 2016 alleging violation of the order dated 08.11.2021 passed in Complaint Case No.125 of 2020.
7. Assailing the impugned actions in these writ petitions, the common submission that has been made by learned counsel appearing on behalf of the petitioner in all the cases is that since the Designated Court under the OPID Act is already holding the deposits made by the depositors for disbursement of the amount under the orders of the Supreme Court, the authorities under the provisions of the Act of 2016 cannot maintain separate proceedings. It has emphatically been submitted that the company has no liability over and above the amount which has been deposited based on which the Directors of the company have been allowed bail under the orders of the Supreme Court. In such circumstance, the Odisha Real Estate Appellate Tribunal, Bhubaneswar W.P.(C) No.9136 of 2024 & Batch Page 15 of 20 ("the Tribunal", in short) ought not to have taken action under the provisions of the Act of 2016.
8. In our opinion, the said submission advanced by learned counsel appearing on behalf of the petitioner is wholly unsustainable. It is apparent from the order of the Supreme Court as noted above that the Supreme Court directed for release of the Directors of the company on two grounds. Firstly, they had remained in custody for substantial period of time and secondly, they had deposited and consented to deposit certain amount as noted in the order of the Supreme Court. The act of the petitioner in depositing the said amount does not absolve him of other statutory liabilities including those under the provisions of the Act of 2016.
9. The Act of 2016 has been enacted in the interest of effective consumer protection, uniformity and standardization of business practices and transactions in real estate sector. The said Act provides for establishment of Real Estate Regulatory Authority for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of the consumers in real estate sector and establish Real Estate Appellate Tribunal to hear appeals from the direction or order of the authority. The Act of 2016 also provides, inter alia, for grant of registration of real estate projects. It further provides for revocation of registration on receipt of complaint or suo motu on a recommendation of the competent authority when the promoter makes default in doing anything required under the Act or the Rules or the W.P.(C) No.9136 of 2024 & Batch Page 16 of 20 Regulations made thereunder. Chapter-III of the Act of 2016 lays down the functions and duties of a promoter. Section 18 of the Act of 2016 stipulates not only return of the amount to an allottee, but also to compensate the allottees in case of any loss caused to him. Section 18 of the Act of 2016 reads as under:
18. Return of amount and compensation:(1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,--
(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or
(b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason,he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:
Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.
(2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force. (3) If the promoter fails to discharge any other obligations imposed on him under this Act or the W.P.(C) No.9136 of 2024 & Batch Page 17 of 20 rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.
10. Section 19 (4) of the Act of 2016 provides that an allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of the Act or the rules or regulations made thereunder. On a plain reading of the provisions under Sections 18 and 19 of the Act of 2016, it can be easily inferred that the petitioner cannot claim by way of right, immunity from the rigors of the statutory provisions only on the ground of having deposited certain amount as a condition for release of the Directors on bail.
11. Notably, Section 31 of the Act of 2016 provides a remedy for an aggrieved person by filing a complaint with the authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of the Act or the rules and regulations made thereunder against any promoter, allottee or real estate agent.
W.P.(C) No.9136 of 2024 & Batch Page 18 of 2012. Section 43 of the Act of 2016 provides for establishment of Real Estate Appellate Tribunal, Sub-Section 5 of which reads thus:
43. Establishment of Real Estate Appellate Tribunal:
xxx xxx xxx (5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.
13. Taking into account the scheme of the Act of 2016, impugned actions taken by the ORERA or the appellate authority under the Act of 2016 need no interference. The sole ground that the petitioner has deposited certain amount which is lying with the Designated Court under the OPID Act, is not at all tenable, in the given facts and circumstances.
14. We do not find any merit in these writ petitions, which are accordingly dismissed.
W.P.(C) No.9136 of 2024 & Batch Page 19 of 2015. We make it clear that we have not gone into the merits of the cases pending before the ORERA or the appellate authority, and therefore, any observation made in the present order should not be construed as the Court's opinion on the merits of the case. The petitioner shall be at liberty to take such plea before the authorities, as may be legally permissible to him.
(Chakradhari Sharan Singh) Chief Justice (Savitri Ratho) Judge S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Designation: Personal Assistant Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Jul-2024 10:42:47 W.P.(C) No.9136 of 2024 & Batch Page 20 of 20