Madhya Pradesh High Court
Ujjain Development Authority vs Real Estate Regulatory Authority on 10 July, 2018
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
W.P.No.85/2018
(Ujjain Development Authority Vs. Real Estate Regulatory
Authority & Another)
Indore, Dated: 10.07.2018
Shri Arpit Singh, learned counsel for the petitioner.
Shri Praveen Pal, learned counsel for the respondent
No.1.
The petitioner has filed the present petition being
aggrieved by the order dated 13.10.2017 passed by the
respondent No.1 Real Estate Regulatory Authority
(RERA).
Facts of the case are as under:
The petitioner is Ujjain Development Authority constituted under the provisions of Madhya Pradesh Town and Country Planning Act, 1973. The main function of the petitioner is to acquire the land and prepare the development plan under the Town Planning Scheme in order to provide the residential & commercial accommodation. The petitioner was given land admeasuring 38.860 hectares vide award dated 23.04.1996 for development of Scheme called Shipra Vihar Colony. The petitioner issued an advertisement dated 24.03.2006 inviting applications for purchasing the plots on lease under the aforesaid scheme. The respondent No.2 submitted an application dated 26.04.2006 for allotment of one plot. A lease deed pertaining to Plot No.B-9/11 was executed between petitioner and respondent No.2 on 2 18.07.2014. He was delivered the possession of the said plot. Thereafter, lease deed dated 18.07.2014 was also executed.
In the year 2015, the said land came into the dispute with MP Wakf Board. The petitioner challenged the dispute by way of W.P.No.6775/2015 before this Court and the said writ petition is still pending before this Court. Meanwhile, the Real Estate (Regulation and Development Act) 2016 came into force w.e.f 01.05.2016. For implementation of provision of the Act of 2016 the respondent No.1/Authority has been constituted. The aim and object of respondent No.1 is to protect the interest of bona-fide purchaser from the clutches of Real Estate Industry. The State Government has also passed Madhya Pradesh Real Estate Regulation Development Rules, 2016 which came into force w.e.f 24.05.2017.
The respondent No.2 filed a complaint before the RERA on 09.09.2017 alleging that despite allotment in the year 2006 and execution of lease deed in 2014, the possession has not been given to him and he is not in a position to construct the house for himself. The notices were issued to the present petitioner and the reply was filed on 04.10.2017.
By order dated 13.10.2017 the RERA has directed the petitioner to give alternate Plot to the respondent No.2 in some other scheme. Being aggrieved by the aforesaid order the petitioner has filed the present petition before 3 this Court on the ground that the respondent No.1 has travelled beyond jurisdiction conferred under the RERA Act by giving direction to give alternate plot to respondent No.2. In para 3 of the writ petition a declaration has been made that the petitioner is not having alternate remedy as the Real Estate appellate Tribunal as provided under Section 43 of the RERA Act 2016 has not been constituted so far.
On the basis of such declaration this Court has entertained the writ petition by issuing notice to the respondent and also stayed the operation of the impugned order.
After notice, the respondent No.1 has filed reply by submitting that the RERA Act is piece of welfare legislation has come up with the act to protect the interest of bona-fide buyers from the hands of the real estate agencies. The respondent No.2 has filed an application seeking dismissal of the writ petition on account of alternate remedy of appeal.
Learned counsel for the petitioner submits that the authorities has travelled beyond its jurisdiction and passed the impugned order without authority hence the writ petition is maintainable and the petitioner cannot be relegated to the appellate forum.
In support of his contention, he has placed reliance over the judgement passed by the Apex Court in case of State of U.P. vs. Mohammad Nooh, reported in AIR 1958 4 SC 86, Whirlpool Corporation Vs. Registrar of Trade Marks, reported in (1998) 8 SCC 1 & Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parish Now Zila Parishad, Muzaffarnagar, reported in AIR(1969) SC 556.
The petitioner gave a declaration in para 3 of the writ petition that Section 43 of the RERA Act provides the remedy of appeal against the order to Tribunal but the same has not been yet established, therefore, the petitioner is not having any efficacious alternate remedy. Para 3 is reproduced below:
"(3) On receipt of an appeal under sub-section (1) the appellate Tribunal may after giving the parties an opportunity of being heard pass such orders, including interim orders, as it thinks fit."
Undisputedly the remedy of appeal is always a efficacious remedy. The orders passed by the original authority are liable to be challenged before the appellate authority for the simple reason that the appellate authority is also expert in the same field. The appellate authority exercise its supervisory jurisdiction over the original authority. It can also check from the impugned orders as to whether the original is acting within the four corners of the law and under the provisions of the Act. All the grounds raised in this petition can be entertained by the appellate authority also.
The appellate authority can also set aside the impugned order on the ground raised in this petition, 5 therefore, the petitioner cannot be permitted to bypass the alternate efficacious remedy of appeal.
Now the Tribunal has been constituted and same is functional, therefore, the petition is dismissed, for want of alternate efficacious remedy. The petitioner is having interim order in his favour, same shall continue for one month from today.
(VIVEK RUSIA) Judge jasleen Digitally signed by Jasleen Singh Saluja Date: 2018.07.13 15:50:27 +05'30'