THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL Nos.475 of 2023 and 476 of 2023
COMMON JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
This order will dispose of both Writ Appeal Nos.475 of
2023 and 476 of 2023.
2. While W.A.No.475 of 2023 arises out of
W.P.No.13898 of 2022, W.A.No.476 of 2023 arises out of
W.P.No.2694 of 2021.
3. Both the writ petitions were filed by respondent
No.1 Sri Boyenepally Sri Jayavardhan. In both the writ petitions, appellants were arrayed as respondents.
4. We have heard Mr. S.Ravi, learned Senior Counsel for the appellants and Mr. S.Rahul Reddy, learned counsel for respondent No.1/writ petitioner. Also heard Mr. Harender Pershad, learned Special Government Pleader attached to the office of learned Advocate General representing the State (respondent Nos.2 and 3).
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W.A.Nos.475 & 476 of 2023
5. Writ Petition No.2694 of 2021 was filed seeking the following relief:
"....to issue a Writ, Order or Direction particularly one in the nature of Writ of Mandamus declaring the impugned order vide G.O.Rt.No.2142, dated 19/08/2019 issued by Respondent No.2 and further proceedings of Respondent No.4 delegating quasi-judicial function of hearing the complaints received by the Authority to Respondent No.5 i.e. Secretary of Respondent No.3 Authority vide undated Spl.Order.No. 01/2021/TSRERA, dated /01/2021 as ultra-vires of the provisions of the Real Estate (Regulation and Development) Act, 2016, illegal, without jurisdiction and consequently set- aside the same and consequently prohibit Respondent No.4 and 5 from hearing and deciding the complaints filed before Respondent No.3 under Section 31 of the Real Estate (Regulation and Development) Act, 2016 and pass..."
6. On the other hand, Writ Petition No.13898 of 2022 was filed seeking the following relief:
"...to issue a Writ, Order or Direction particularly one in the nature of Writ of Mandamus declaring RERA Certificates Registration No. P02500001821, P02500001819, dated 20/03/2020 in the name of Vasavi S Lake City East and Vasavi S Lake City West, issued by unauthorized persons under the guise of the Act, in favour of respondent No.6 obtained by playing fraud and misrepresenting the details of land, land owners and allottees under an ongoing project, 3 HCJ & NTRJ W.A.Nos.475 & 476 of 2023 thereby denying the petitioner of his valuable rights over his property to an extent of 8000 Sq.Yards/3,57,200 Sq. Ft., of super built up area in Sy.No.105 to 109 and 111 to 114 in Hafeezpet Village, Serlingampally Mandal, RR District, now forming part of the project land under impugned RERA Certificate, dated 20/03/2020 as illegal, without jurisdiction, violative of Article 14 and 300-A of the Constitution of India and violation of principles of natural justice and revoke the same and further restrain respondent No.6 from proceeding with any construction in the real estate project and pass..."
7. Before we advert to the two orders impugned by the writ petitioner i.e., order dated 19.08.2019 and order dated 20.03.2020, we may mention that respondent No.1/writ petitioner had conferred development rights upon the appellants for development of his land along with other extents of lands. In this connection, development agreements were entered into between the parties. With the grievance that appellants as the developers have denied respondent No.1's rights over the property to an extent of 8000 square yards/3,57,200 square feet of super built up area, he had lodged a complaint before the Real Estate Development Authority of Telangana dated 05.08.2020.
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W.A.Nos.475 & 476 of 2023
8. By the order dated 19.08.2019 issued by the Chief Secretary to the Government of Telangana, transfer and posting of two officers were carried out. Insofar Sri Somesh Kumar, IAS, Special Chief Secretary to the Government, Revenue (CT and Excise) Department is concerned, he was posted as Special Chief Secretary to the Government, Revenue (CT, Excise, Revenue and RS) Department. Additionally, he was allotted to act as Chairman of Real Estate Regulatory Authority (briefly referred to hereinafter as 'RERA') amongst others. Order dated 20.03.2020 is a proceeding carried out by the Chairman of Telangana State Real Estate Regulatory Authority Sri Somesh Kumar. By the said order, the Chairman had authorized the Secretary to conduct hearing on the complaints received by RERA by following the provisions of the Real Estate (Regulation and Development) Act, 2016 read with Real Estate (Regulation and Development) Rules, 2017.
9. Prima facie such appointment of Chairman of RERA appears to be contrary to the Real Estate (Regulation and Development) Act, 2016. As a matter of fact, steps are 5 HCJ & NTRJ W.A.Nos.475 & 476 of 2023 now being taken for constitution of RERA as well as the appellate Tribunal under the Real Estate (Regulation and Development) Act, 2016. Supreme Court in Transfer Petition (Civil) Nos.1623-1624/2022 filed by respondent No.1 seeking transfer of his complaint from Telangana to Maharashtra RERA, Supreme Court has passed an order on 10.04.2023 granting one last opportunity to the State of Telangana to complete the process for constitution of RERA and appellate Tribunal on or before 05.05.2023 and to submit compliance report on 08.05.2023.
10. It is in the above backdrop, we may now examine the common order passed by the learned Single Judge dated 27.03.2023 disposing of both the writ petitions. Learned Single Judge disposed of the two writ petitions by directing as follows:
"After careful consideration of the matter and without expressing any opinion on the merits of the matter with regard to the development agreement or the terms and conditions mentioned therein and the entitlement of the petitioner to his share as claimed in the development agreement and also the rights and liabilities of respondent Nos.7 and 8, this Court 6 HCJ & NTRJ W.A.Nos.475 & 476 of 2023 deems it appropriate to dispose of the writ petitions directing the RERA authority to consider the pending applications within two(2) months in accordance with the provisions of the RERA Act and the rules made thereunder and till the disposal of the applications submitted by the petitioner, there shall not be any further transactions over the subject property in any manner.
With the above directions, these writ petitions are disposed of. There shall be no order as to costs."
11. Thus, learned Single Judge directed the RERA Authority to consider the pending complaint of respondent No.1 within a period of two (02) months in accordance with the Real Estate (Regulation and Development) Act, 2016 and the Rules framed thereunder, further directing that till the disposal of complaint submitted by respondent No.1, there should not be any further transactions over the subject property in any manner. In view of the direction of the Supreme Court, it is expected that both RERA as well as appellate Tribunal would be constituted on or before 05.05.2023. RERA so constituted shall thereafter take up the complaint of respondent No.1 dated 05.08.2020 and decide the same in accordance with law expeditiously. We direct that interim stay granted by the learned Single Judge shall 7 HCJ & NTRJ W.A.Nos.475 & 476 of 2023 continue till 31.05.2023 whereafter it would be entirely within the discretion of RERA to pass such order as it may deem fit and proper in the facts and circumstance of the case. We further make it clear that the embargo placed by learned Single Judge and continued by us pertains to only alienation of the property. There is no embargo on carrying out the construction or finalization thereof. We clarify that we have not expressed any opinion on merit. All contentions are kept open to be agitated before RERA.
12. Writ Appeals are accordingly disposed of. However, there shall be no order as to costs.
13. As a sequel, miscellaneous applications pending, if any, in the Writ Appeals, shall stand closed.
_______________________ UJJAL BHUYAN, CJ _______________________ N.TUKARAMJI, J Date: 25.04.2023 KL