Rudra Infratech vs Smt. Shaila Sahu
2022 Latest Caselaw 102 Chatt

                                                                             NAFR

             HIGH COURT OF CHHATTISGARH, BILASPUR

                    Reserved for Orders on : 22/10/2021

                       Order Passed on :        07/01/2022

                           W.P.(227) No.110 of 2021

      Rudra Infratech Through Proprietor/partner And Director Ravishankar
       Soni, R/o Office No. 12, Rudra Infratech, Second Floor, Bajrang
       Complex, In Front Of Naresh Bazar, Telipara, Bilaspur, District- Bilaspur,
       Chhattisgarh

                                                                    ---- Petitioner

                                       Versus
   1. Smt. Shaila Sahu W/o Shri Ram Avatar Sahu R/o Quarter No. B-153,
       Ujjaval Nagar, N. T. P. C. Seepat, District- Bilaspur, Chhattisgarh

   2. Chhattisgarh Real Estate Regulation Authority (RERA), Raipur,
       Chhattisgarh, through Its Chairman, Ghadi Chowk, Raipur, Chhattisgarh

                                                                ---- Respondents

For Petitioner : Mr. Goutam Khetrapal, Advocate.

For respondent No.01 : Mr. Jameel Akhtar Lohani, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant CAV Order

07/01/2022

1. The present petition has been brought against the impugned order

dated 28.11.2020 (Annexure-P/9) passed by the respondent No.2

against the petitioner.

2. It is submitted by learned counsel for the petitioner that the respondent

No.1 had agreed to purchase the disputed property. An agreement was

executed on 07.01.2017 after making arrangement of sale price. The

sale deed was executed by Sachchi Shukla and Jaynand Adile in favour

of the respondent No.1 on 07.01.2017. It is submitted that the petitioner

is a private contractor, who was engaged by respondent No.1 through a

private contract for which the petitioner had received Rs.1,51,000/-

through cheque issued by respondent No.1 on 13.07.2017. The

petitioner again received a sum of Rs.1,00,000/- through cheque on

25.08.2017. Respondent No.1 obtained the permission for construction

from the authority vide Annexure-P/5. The petitioner started construction

work over the property of respondent No.1, however, because of some

dispute, the respondent No.1 preferred an application before respondent

No.2. The petitioner raised objections before the respondent No.2 but

the objections were rejected and the impugned order has been passed

against the petitioner directing him to make refund of the amount

received by him for the landed property and also make refund of the

other amount received by him from the respondent No.1.

3. It is submitted by the learned counsel for the petitioner that petitioner is

not a promoter as defined under Section 2 (zk) of the Real Estate

(Regulation and Development) Act, 2016 (hereinafter shall be referred to

as RERA Act, 2016). It is further submitted that Section 3(2) of the

RERA Act, 2016 provides that no registration of real estate Project shall

be required, where the area of land proposed to be developed does not

exceed 500 sq.m. or the number of the apartment proposed to be

developed does not exceed eight, inclusive of all phases. In the present

case, the area of the plot of respondent No.1 was working on was not

exceeding 500 sq.m. and also it was a case of construction of single

residential house. Hence, the dispute between the petitioner and the

respondent No.1 was not governed by the RERA Act, 2016. The

allegations made for the complaint before the respondent No.2 are totally false.

4. Relying on the judgment of Supreme Court in the case of M/s. Radha

Krishan Industries Vs. The State of Himachal Pradesh in Civil Appeal

No.1155 of 2021 delivered on 20th of April, 2021. It is submitted that it is

a case, in which there is requirement of exercise of supervisory

jurisdiction of this High Court as the order or the proceedings by

respondent No.2 is wholly without jurisdiction.

5. Reliance is also placed on the judgment of Supreme Court in the case

of Harbanslal Sahnia and Anr. Vs. Indian Oil Corporation Ltd. And Ors.

reported in (2003) 2 SCC 107.

6. Learned counsel for the respondent No.1 opposes the petition and

submissions made by learned counsel for the petitioner. It is submitted

by learned counsel for the respondent No.1 that the present petition is

not maintainable as there is a provision for appeal present in RERA Act,

2016. Section 44 of the RERA Act, 2016 provides for appeal against the

order of RERA before RERA Tribunal and Section 58 of the RERA Act,

2016 provides for appeal to the High Court against the decision or order

of the Appellate Tribunal. Therefore, the petitioner has remedy available

because of which the supervisory jurisdiction under Article 227

Constitution of India cannot be invoked.

7. It is submitted that the petitioner had been acting as a builder and

promoter, therefore, his action is clearly covered under the provisions of

the RERA Act, 2016. No error has been committed by the learned

authority that is respondent No.2 in passing the impugned order, hence,

the petition may be dismissed.

8. Considered on the submissions, the order passed by the respondent

No.2, the authority is subject to scrutiny in appeal by the appellate

Tribunal. It is informed that the appellate Tribunal though constituted

under Section 43 of the RERA Act, 2016, it has not started the

functioning. Section 44 of the RERA Act, 2016 very clearly provides that

any person aggrieved by any direction or order or decision of the

authority or the adjudicating officer may prefer an appeal to the

appellate Tribunal. The petitioner has the remedy available, which he

has not been able to avail so far because of the non-functioning of the

appellate Tribunal. Therefore, in view of the circumstances present and

the presence of statutory remedy against the impugned order, it does

not appear to be proper to exercise jurisdiction under Article 227 of

Constitution of India. Therefore, the petition is disposed off and the

petitioner is granted liberty to file appeal before the learned appellate

Tribunal within a period of 15 days, the Tribunal starts functioning and

he has also liberty to seek interim relief apart from the final relief, which

may be prayed for in the appeal. It is further ordered that the interim

order passed in the present case shall remain effective for a period of 60

days from the day, the Tribunal becomes functional.

9. With these observations, the petition stands disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Monika