Karnataka High Court
Asha Jhunjunwala vs The Principal Secretary on 31 May, 2023
Author: Krishna S Dixit
Bench: Krishna S Dixit
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WP No. 20153 of 2021
C/W WP No. 3337 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF MAY, 2023
BEFORE
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
WRIT PETITION NO. 20153 OF 2021 (GM-RES)
C/W
WRIT PETITION NO. 3337 OF 2022 (GM-RES)
IN WP NO.20153/2021:
BETWEEN:
1. M/S TRISHUL DEVELOPERS
(A PARTNERSHIP FIRM REGISTERED UNDER
THE PARTNERSHIP ACT, 1932)
HAVING ITS OFFICE AT MITTAL TOWERS,
NO.109, B WING FIRST FLOOR,
NO.6, M.G. ROAD, BANGALORE-560 001.
REPRESENTED BY MR. NIRAJ MITTAL
2. MR. O.P. MITTAL
S/O MR. MANGILAL MITTAL
MAJOR
Digitally signed
3. MR. NIRAJ MITAL
by SHARADA
VANI B S/O MR. O.P. MITTAL
Location: HIGH AGED ABOUT 41 YEARS
COURT OF
KARNATAKA 4. MRS. UMA MITTAL
W/O MR. O.P. MITTAL
MAJOR
5. MRS. JYOTI MITTAL
W/O MR. NIRAJ MITTAL
MAJOR
NOS. 2, 4 AND 5 ARE REPRESENTED BY THE
PETITIONER NO.3, MR. NIRAJ MITTAL
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WP No. 20153 of 2021
C/W WP No. 3337 of 2022
ALL RESIDING AT NO.94-D, 9TH CROSS ROAD,
RMV EXTENSION, BENGALURU-560 080.
...PETITIONERS
(BY SRI. D.V.JOSHI, SR. COUNSEL A/W
SRI. VACHAN, ADVOCATE)
AND:
1. MR. BALAN PARAVANTAVIDA
S/O LATE KANARAN PARAVANTAVIDA
AGED ABOUT 65 YEARS,
2. MRS. SANGEETA BALAN
W/O MR. BALAN PARAVANTAVIDA
AGED ABOUT 56 YEARS,
BOTH RESIDING AT NO.28
SRI RANGA, 4TH TEMPLE STREET
MALELSHWARAM,
BENGALURU-560 003.
...RESPONDENTS
(BY SRI. AMIT ANAND.,ADVOCATE)
THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED JUDGEMENT DTD.11.10.2021 PASSED BY THE
HON'BLE KARNATAKA REAL ESTATE REGULATORY AUTHORITY
BENGALURU IN CMP 210119/0007420 AT ANNEXURE-A AND
ETC.
IN WP NO.3337/2022:
BETWEEN:
1. SHRI R. NARAYANASWAMY
S/O LATE SRI. RAMAIAH
AGED ABOUT 68 YEARS,
2. SHRI R. BASAVARAJU
S/O LATE SRI. RAMAIAH
AGED ABOUT 63 YEARS,
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WP No. 20153 of 2021
C/W WP No. 3337 of 2022
3. SHRI R. ADINARAYANA
S/O LATE SRI. RAMAIAH
AGED ABOUT 58 YEARS,
4. SHRI R. NAGARAJ
S/O LATE SRI. RAMAIAH
AGED ABOUT 56 YEARS
ALL ARE R/AT NO.117
BASAVESHWARA NILAYA
MUNESHWARA TEMPLE ROAD
JAKKUR VILLAGE YELAHANKA HOBLI
BANGALORE NORTH, BANGALORE -560064
REPRESENTED BY THEIR GPA HOLDER
MR. NIRAJ MITTAL
5. TRISHUL DEVELOPERS
A PARTNERSHIP FIRM REGISTERED UNDER THE
INDIAN PARTNERSHIP ACT, 1932,
HAVING ITS REGISTERED ADDRESS
AT NO.111B, MITTAL TOWERS NO.6 M G ROAD
BANGALORE -560 001.
REPRESENTED BY ONE OF ITS PARTNER
MR. NIRAJ MITTAL
...PETITIONERS
(BY SRI. SRI. D.V.JOSHI, SR. COUNSEL A/W
SRI. VACHAN, ADVOCATE)
AND:
1. THE KARNATAKA REAL ESTATE REGULATORY
AUTHORITY
2ND FLOOR SILVER JUBILEE BLOCK UNITY BUILDING
CSI COMPOUND, 3RD CROSS, MISSION ROAD
BANGALORE-560 027.
REPRESENTED BY ITS CHAIRMAN
KISHORE CHANDRA H.C
2. THE ADJUDICATING OFFICER
THE KARNATAKA REAL ESTATE REGULATORY
AUTHORITY
2ND FLOOR SILVER JUBILEE PARK UNITY BUILDING
CSI COMPOUND 3RD CROSS MISSION ROAD
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WP No. 20153 of 2021
C/W WP No. 3337 of 2022
BANGALORE-560 027
REPRESENTED BY K PALAKSHAPPA
3. THE DISTRICT COMMISSIONER
BANGALORE URBAN DISTRICT
BANGALORE-560
4. SPECIAL TAHSILDHAR
YELAHANKA TALUK
OPPOSITE YELAHANKA POLICE STATION
BANGALORE-560064.
5. SHRI NIKHIL NARAYANAN
SON OF SRI VP BALAGANGADHARAN
AGED ABOUT 31 YEARS
R/AT FLAT NO.402, 'GANGOTRI RESIDENCY'
1ST MAIN ROAD G M PALYA
NEW THIPPASANDRA POST
BANGALORE-560075.
...RESPONDENTS
(BY SRI. GOWTHAMDEV C ULLAL., ADVOCATE FOR R1 & R2;
SRI. AMIT ANAND, ADVOCATE FOR R5;
SRI. B.V. KRISHNA, AGA FOR R4)
THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE
RECOVERY CERTIFICATE, DTD. 19.09.2019 (ANNX-A HEREIN),
ISSUED BY THE R-1 PURSUANT TO THE ORDER, ANNEXURE-K
DTD. 29.03.2019, PASSED BY THE R-2 ON THE COMPLAINT
FILED BY THE R-5 BEFORE THE R-1.QUASH THE NOTICE DTD.
10.01.2022 (ANNX-B HEREIN) ISSUED BY THE R-4 FOR
ENFORCEMENT OF THE RECOVERY CERTIFICATE DTD.
19.09.2019.
THESE PETITIONS COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No. 20153 of 2021
C/W WP No. 3337 of 2022
ORDER
These Writ Petitions lay a challenge to the orders of the Karnataka Real Estate Regulatory Authority, Bangalore, whereby the complaints of the private Respondents having been favoured, a direction has been issued for the refund of amount paid, of course, with interest.
2. Learned Senior Advocate appearing for the Petitioner placing reliance on NEWTECH PROMOTERS AND DEVELOPERS PVT. LTD VS. STATE OF UP AND OTHERS, 2021 SCC OnLine SC 1044 submits that the Authority lacks the authority to pass orders of the kind and therefore, the impugned orders are liable to be voided.
3. After service of notice, the Respondents have entered appearance through their Advocates. Learned counsel appearing for the private Respondents based upon some observations at paragraph 83 in the same decision contends that the impugned orders have been passed with jurisdiction; that the Petitioners have got an alternate & equally efficacious alternate remedy and therefore, they -6- WP No. 20153 of 2021 C/W WP No. 3337 of 2022 will be relegated to the appellate forum. Learned Panel Counsel appearing for RERA in all fairness agrees with the position of law as put forth by the Petitioners in the light of Apex Court decision cited supra.
4. Having heard the learned counsel for the parties and having perused the Petition papers, this Court is broadly in agreement with the submission of learned Senior Advocate appearing for the Petitioner inasmuch as, it is supported by the following observations at paragraph 86 in the said decision:
"From the scheme of the Act of which a detailed reference has been made and taking note of power of adjudication delineated with the regulatory authority and adjudicating officer, what finally culls out is that although the Act indicates the distinct expressions like 'refund', 'interest', 'penalty' and 'compensation', a conjoint reading of Sections 18 and 19 clearly manifests that when it comes to refund of the amount, and the interest on the refund amount, or directing payment of interest for delayed delivery of possession, or penalty and interest thereon, it is the regulatory authority which has the power to examine and determine the outcome of a complaint. At the same time, when it comes to a question of seeking the relief of adjudging compensation and interest thereon under Sections 12, 14, 18 and 19, the -7- WP No. 20153 of 2021 C/W WP No. 3337 of 2022 adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act. If the adjudication under Sections 12, 14, 18 and 19 other than compensation as envisaged, if extended to the adjudicating officer as prayed that, in our view, may intend to expand the ambit and scope of the powers and functions of the adjudicating officer under Section 71 and that would be against the mandate of the Act 2016."
5. The reliance on para 83 of the decision supra by the learned Senior Advocate appearing for the private Respondents does not come to his aid inasmuch as the rule of last antecedent comes in his way, in the sense where there is an arguable conflict between two paragraphs in a decision, what is mentioned in the latter is relevant. This Court hastens to add that there is no such conflict at all, law being as crystally made clear as can be in paragraph 86.
6. The vehement submission of learned counsel appearing for the private Respondents that there being an alternate & equally efficacious remedy, the petition should not be entertained is bit difficult to countenance. Rule of -8- WP No. 20153 of 2021 C/W WP No. 3337 of 2022 alternate remedy ordinarily does not apply ton the cases wherein the impugned orders are made without jurisdiction. Sending the party to the alternate forum in such a circumstances would be an exercise in futility, to say the least. Constitutional Courts cannot turn away a worthy cause from its portals by quoting some theories that are irrelevant to the interest of injured litigants.
In view of the above, these Writ Petitions are favoured; a Writ of Certiorari issues quashing the impugned orders. Matters are remitted to RERA Authority for adjudication afresh, all contentions of the parties having been kept open. The RERA Authority is requested to accomplish the hearing & disposal of remand within an outer limit of eight weeks.
Costs made easy.
Sd/-
JUDGE DS List No.: 1 Sl No.: 45