Gujarat High Court
Jignesh Jayantilal Shah vs Gujarat Real Estate Appellate Tribunal on 1 May, 2025
NEUTRAL CITATION
C/SCA/6117/2025 ORDER DATED: 01/05/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6117 of 2025
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JIGNESH JAYANTILAL SHAH
Versus
GUJARAT REAL ESTATE APPELLATE TRIBUNAL & ORS.
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Appearance:
MR PRATEEK D BHATIA for MR BHAVESH B CHOKSHI(3109) for the
Petitioner(s) No. 1
MR DM DEVNANI(5880) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 01/05/2025
ORAL ORDER
1. The present Special Civil Application has been filed seeking a direction to the respondent No.1- Gujarat Real Estate Appellate Tribunal to accept the appeal filed by the petitioner without insisting for pre-deposit of the amount as ordered by the Gujarat Real Estate Regulatory Authority ('RERA') in Complaint No.CMP/A/Online/Surat/23052022/00004.
2. It is the case of the petitioner that the petitioner is a builder and had constructed a commercial building of 90 units, including showrooms, shops and offices. That the respondent No.2- the complainant booked a shop on the ground floor in the corner. The agreed sale consideration for the said shop was Rs.1,57,68,000/-. The respondent No.2- purchaser had paid Rs.85,70,000/- towards the sale consideration and remaining amount remained unpaid. That the petitioner obtained a letter from the allottees for revision/ modification of the sanctioned Page 1 of 7 Uploaded by OMKAR C. MAHAWAR(HC00201) on Tue May 06 2025 Downloaded on : Tue May 06 22:36:16 IST 2025 NEUTRAL CITATION C/SCA/6117/2025 ORDER DATED: 01/05/2025 undefined plan. The said revised plan came to be sanctioned by Surat Municipal Corporation. In the revised plan, a new shop came to be constructed after the shop purchased by the respondent No.2, which became the corner shop. The respondent No.2 thereafter, cancelled the booking and sought refund of the amount already paid. The petitioner agreed for refund by deducting 10% amount which was opposed by the respondent No.2- complainant. Accordingly, he has filed a complaint before the RERA seeking full refund of the amount paid to the petitioner. That during the complaint proceedings, the petitioner had shown willingness to offer a corner most shop to the complainant to redress his grievance. However, the petitioner did not receive any response from the respondent No.2 complainant. That vide order dated 23.6.2023, the RERA Authority was pleased to pass a final order in the complaint of the respondent No.2 directing the petitioner to refund Rs.85,70,000/- along with interest @ 10.70% per annum from 1.11.2018 till realization. The petitioner was also directed to pay Rs.5,000/- as cost to the complainant. Since the RERA Appellate Authority was not available at the relevant point of time, the petitioner had approached this Court challenging the said order, however the said petition came to be withdrawn after the learned Tribunal came to be constituted with a view to approach the Tribunal to file an appeal under Section 44 of the Real Estate (Regulatory and Development) Act, 2016 (for short, the RERA Act'). It is the case of the petitioner that the appeal came to be filed in January 2024, but was not registered since pre-
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deposit as mandated under Section 43(5) of the RERA Act was not made by the petitioner. That on 4.4.2024, the learned Adjudicating Officer was pleased to issue a recovery certificate in the execution proceedings. Based on the recovery certificate, the learned Mamlatdar, Surat issued notice under Section 152 of the Gujarat Land Revenue Code on 10/17.4.2025 seeking to recover the ordered amount. Aggrieved, the petitioner has filed the present Special Civil Application seeking waiver of the pre- deposit.
3. The learned counsel for the petitioner submits that the pre-deposit condition makes the statutory remedy under Section 44 of the Act onerous and prohibitive. He submits that the petitioner is facing acute financial crisis and, therefore, making pre-deposit is impossible for the petitioner. He submits that the petitioner will face immense hardship if he is made to pay the pre-deposit in the Registry of the respondent No.1- Tribunal. He submits that the petitioner has no means to collect such a huge amount and if he will have to make pre-deposit from the borrowed amount, then payment of interest on such borrowed amount would be very high. He submits that in the recent past, the real estate market has witnesses decrease in business and, therefore, the petitioner is not in a position to secure such huge amount to be deposited. He submits that the statutory remedy of appeal is taken away by the harsh condition of deposit. He submits that the dispute between the petitioner and the respondent No.2 can be resolved between the parties. He Page 3 of 7 Uploaded by OMKAR C. MAHAWAR(HC00201) on Tue May 06 2025 Downloaded on : Tue May 06 22:36:16 IST 2025 NEUTRAL CITATION C/SCA/6117/2025 ORDER DATED: 01/05/2025 undefined further submits that in absence of any provision or power with the respondent No.1 Tribunal, this Court may exercise the powers under Article 226 of the Constitution of India to waive or relax such condition. In support of his contention, the learned counsel for the petitioner relies upon the following judgments, i.e.:-
(1) Judgment in the case of M/s. Tecnimont Pvt. Ltd. (Formerly known as Tecnimont ICB Pvt. Ltd.) v. State of Punjab and others reported in (2021) 12 SCC 477;
(2) Judgment in the case of Newtech Promoters and Developers Pvt. Ltd. v. State of U.P. and Ors., rendered in Civil Appeal (C) Nos.6745-6749 of 2021;
(3) Judgment in the case of Experion Developers Pvt. Ltd. & Ors. v. State of Haryana and Ors., reported in 2020 (2) ILR P&H 532.
4. Heard the learned counsel for the petitioner, considered the submissions and perused the documents on record.
5. The RERA Authority has passed the final order on the complaint preferred by the respondent No.2 on 23.6.2023, directing the petitioner to refund Rs.85,70,000/- along with interest thereon @ 10.70% per annum from 1.11.2018 till realization. Thereafter, the record reveals that the petitioner has not taken any steps to challenge the said order by way of filing an appeal. It is only when the recovery certificate has been issued by the Adjudicating Authority on 4.4.2024 and thereafter based on the same, the learned Mamlatdar, Surat has issued notice dated 10/17.4.2025 under Section 152 of the Page 4 of 7 Uploaded by OMKAR C. MAHAWAR(HC00201) on Tue May 06 2025 Downloaded on : Tue May 06 22:36:16 IST 2025 NEUTRAL CITATION C/SCA/6117/2025 ORDER DATED: 01/05/2025 undefined Gujarat Land Revenue Code seeking to recover the said amount as land revenue by attaching the properties of the petitioner, that the petitioner has now preferred the present writ petition.
6. The petitioner is a builder and has constructed a commercial building with 90 units, including showrooms, shops and offices. The respondent No.2 had booked a shop in the scheme of the petitioner on 30.1.2018. after the revised plan came to be sanctioned, the petitioner lost his corner shop in the said revised plan, so he had sought for refund. For the reasons best known, the petitioner agreed to refund of amount after deducting 10%, which was not accepted by the complainant, who wanted complete refund of the amount paid for the shop. Thereafter, the respondent No.2 had to file RERA complaint and the said complaint came to be adjudicated in favour of the respondent No.2- complainant. The petitioner has not taken any steps in respect of filing and hearing of his appeal till the notice under Section 152 of the Gujarat Land Revenue Code came to be issued by the learned Mamlatdar to recover the said amount as arrears of land revenue by attaching the properties of the petitioner under Section 43(5) of the RERA Act.
7. It is the contention of the petitioner that the pre-deposit under Section 43(5) of the RERA Act is an onerous condition, more so since the amount ordered to be refunded was burdensome, which would cause a great hardship to the petitioner. The petitioner has stated that to make a such pre-
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deposit, he has to collect huge amount and borrow the amount from the market at high interest rate and further that the real estate market has witnessed the decrease in business.
8. It is trite law that in the cases where extreme hardship has been caused to the petitioner by the condition of pre-deposit, writ petition under Article 226 of the Constitution of India is maintainable and would be an appropriate remedy. The judgments relied by the learned counsel for the petitioner hold that the condition of pre-deposit does not over-ride the power of the High Court under Article 226 of the Constitution of India and that in appropriate cases, the High Court can exercise its jurisdiction to alter/ modify/ waive the requirement of mandatory pre-deposit.
9. In the present case, the reasons cited by the petitioner to show that the pre-deposit condition is onerous, are just bald assertions and the same are not substantiated by any documents on record. Further, it seems that the petitioner has filed the present writ petition only to avoid and prevent the attachment of his properties under the Gujarat Land Revenue Code in execution of the order of the RERA Authority since the recovery certificate is sought to be executed as arrears of land revenue. The final order by the RERA Authority was passed on 23.6.2023, i.e. about before two years. From the record, it reveals that the petitioner has neither taken any steps nor made any attempt to make the pre-deposit of any amount before the learned Tribunal Page 6 of 7 Uploaded by OMKAR C. MAHAWAR(HC00201) on Tue May 06 2025 Downloaded on : Tue May 06 22:36:16 IST 2025 NEUTRAL CITATION C/SCA/6117/2025 ORDER DATED: 01/05/2025 undefined nor any steps seem to have been taken by the petitioner to prosecute the appeal. It is further averred in the petition that the petitioner tried to settle the dispute with the complainant, but the same did not fructify. The facts stated in the present writ petition reveal that the petitioner is only trying to delay the proceedings to his advantage.
10. In view of the aforesaid observations and reasons, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India for waiver of the pre-deposit of the amount ordered along with interest and the costs as mandated in proviso to Section 43(5) of the RERA Act, 2016. The present writ petition is devoid of merits and is accordingly DISMISSED. No order as to costs.
Sd/-
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