Gauhati High Court
Talukdar (Age 58 Years) (Manager- ... vs The Real Estate Regulatory Authority ... on 10 June, 2024
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/3
GAHC010014692024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RERA APPEAL/1/2024
RDB REALTY AND INFRASTRUCTURE LIMITED
(A COMPANY REGISTERED UNDER THE COMPANIES ACT OF 1956, REP. BY
ITS DIRECTOR NAMELY NEERA CHAKRAVARTY WHO VIDE BOARD
RESOLUTION DATED 11.08.2023 HAVE AUTHORIZED SRI BHASKAR
TALUKDAR (AGE 58 YEARS) (MANAGER- PROJECT REGENT PARADISE)
TO REPRESENT THE COMPANY AND FILE THE APPEAL.)
REGD. OFFICE- BIKANER BUILDING, 1ST FLOOR, ROOM NO. 11, 8/1, LAL
BAZAR STREET, KOLKATA- 700001.
BRANCH OFFICE- BISHNU RABHA PATH, GHORAMARA, BHETAPARA,
GUWAHATI- 781028.
VERSUS
THE REAL ESTATE REGULATORY AUTHORITY AND ANR.
ASSAM, JAWAHAR NAGAR, NH- 37, KHANAPARA, GUWAHATI- 781022.
2:REGENT PARADISE OWNERS WELFARE SOCIETY
A REGISTERED SOCIETY HAVING ITS REGISTERED OFFICE AT REGENT
PARADISE
BISHNU RABHA PATH
GHORAMARA
BHETAPARA
GUWAHATI- 781028
DIST.- KAMRUP (M)
ASSAM
Advocate for the Petitioner : MR. A SATTAR
Advocate for the Respondent : FOR CAVEATOR
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BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
ORDER
Date : 10.06.2024
Heard Mr. A Sattar, learned counsel for the appellant as well as Mr. P Goswami, learned
counsel for the respondent no. 1 as well as Mr. B D Deka, learned counsel for the respondent no.
2.
The appeal is admitted for hearing upon the following substantial questions of law:
" 1. Whether the learned RERA, Assam and the learned REAT, Assam were right in
holding that the project 'Regent Paradise' was an ongoing project on the date of coming
into force of Section 3 (1) of the RE (R&D) Act of 2016, whereas the GMDA after
processing the file vide their letter bearing Memo No. GMDA/BP/373/2007/261 dated
26.02.2021 had ultimately given approval to the proposal of the builder for occupancy
certificate submitted on 17.12.2016 on realization of regularization fee of Rs.
1,26,52,843/-, thereby signifying that the project had indeed been completed much prior
to coming into force of Section 3 (1) of the RE(E&D) Act of 2016 ?
2. Whether the learned REAT, Assam was right in holding that the ratio laid down
by the Hon'ble Supreme Court of India in the case of State of U.P. Vs. Hari Ram
reported in 2013 (2) S.C.R. 301 was irrelevant for the present case, whereas the said
judgment of the Hon'ble Supreme Court of India clearly provides that while interpreting a
provision in a statute creating a legal fiction/deeming provision, the court is to ascertain
for what purpose the fiction is created and after ascertaining the purpose, the court is to
assume all those facts and consequences which are incidental or inevitable corollaries
giving effect to the fiction, which in the instant case were the documents i.e. "List of
Allotees of Regent Paradise", Year wise possession" of flats by the GMC and its payment
of holding taxes thereof to the GMC in the year 2015-2016, which were indicative of the
fact that the project had been completed in the year 2016 itself ?
3. Whether the learned RERA, Assam and REAT, Assam were right in deciding the
matter by ignoring the ratio laid down in the case of Uttarakhand (SmtMeera Devi-
vs- IIIrd F.T. C./ Additional D.J. Haridwar&Anr.} reported in AIR 2016 (NOC)
146 wherein the Hon 'bleUttarakhandHigh Court in para No. 7 of its judgment had held
that a building would be deemed to have been completed on the date on which the
completion thereof is reported to or otherwise recorded by local authority having
jurisdiction and in case of building subject to assessment on the date on which such
assessment thereof comes to effect and where the dates are different, the earliest of the
said dates, and in the absence of any such report, record or assessment the date on
which it is actually occupied for the first time ?
4. Whether the inaction of the GMDA in not carrying out the inspection of the
project in question within the period of 21 days as stipulated in Section 11 (b) of the
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Guwahati Building Construction (Regulation) Act, 2010, in response to the proposal of the
builder for occupancy certificate on 17.12.2016 and the delay caused in processing the
file by the GMDA and the ultimate acceptance of the said proposal of the builder dated
17.12.2016 in the year 2021, would make the project incomplete as on the date of
coming into force of Section 3 (1) of RE(E&D) Act, 2016 and make the promoter/builder
liable to be penalized under the said RE(E&D) Act, 2016 ?
5. Whether the finding of the learned RERA, Assam and the learned REAT, Assam
to the effect that the project was not completed owing to the non-construction of
community hall and facility block (Phase II) is perverse and can be attributed to the fault
of the builder (appellant) when admittedly the GMDA had not issued the permission for
such construction owing to the objection raised by the society (respondent No.2)?"
Issue Notice.
No formal notice need be issued on the respondents as the learned counsel have
entered appearance on behalf of the said respondents. However, extra copies of the
memo of appeal shall be provided to him.
Leave is granted to the respondents to file additional affidavit.
List on 23.07.2024 for hearing.
JUDGE
Kkk
Comparing Assistant
