[Cites 19, Cited by 0]
Gauhati High Court
Page No.# 1/ vs Ms Sundaram Constructions on 9 March, 2026
Page No.# 1/10
GAHC010034552025
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RERA APPEAL/3/2025
PRASANTA KUMAR BHATTACHARYYA
S/O LATE PUSPADHAR BHATTACHARYYA, RESIDENT OF HORO GAURI
COMPLEX, TARAJAN, JORHAT, ASSAM 785001
2: TULSI NATH BHATTACHARYYA
S/O LATE PUSPADHAR BHATTACHARYYA
RESIDENT OF HORO GAURI COMPLEX
TARAJAN
JORHAT
ASSAM 78500
VERSUS
MS SUNDARAM CONSTRUCTIONS
THROUGH ITS PARTNERS REGISTERED OFFICE ADDRESS TARAJAN
SAMSHAN PATH PO PS AND DIST JORHAT ASSAM 785001
OFFICE AT 1ST FLOOR, BLOC A, HORO GAURI COMPLEX, TARAJAN,
JORHAT, ASSAM 785001
Advocate for the Petitioner : MR C GOGOI,
Advocate for the Respondent : ,
Linked Case : RERA APPEAL/7/2025
Appellant
PRASANTA KUMAR BHATTACHARYYA AND ANR
S/O. LT. PUSPADHAR BHATTACHARYYA
R/O. HORO GAURI COMPLEX
TARAJAN
JORHAT
Page No.# 2/10
ASSAM
PIN-785001. MOBILE NO. 9531114056
2: TULSI NATH BHATTACHARYYA
S/O. LT. PUSPADHAR BHATTACHARYYA
R/O. HORO GAURI COMPLEX
TARAJAN
JORHAT
ASSAM
PIN-785001. MOBILE NO. 9365062671
VERSUS
Respondent
M/S SUNDARAM CONSTRUCTIONS
THROUGH ITS PARTNERS
REGISTERED OFFICE ADDRESS TARAJAN SAMSHAN PATH
P.O. JORHAT.
P.S. JORHAT
DIST. JORHAT
ASSAM
PIN-785001. OFFICE ALSO AT SUNDARAM CONSTRUCTION OFFICE
1ST FLOOR
BLOC A
HORO GAURI COMPLEX
TARAJAN
JORHAT
PIN-785001. MOBILE NO. 9435095488
EMAIL ID. [email protected]
[email protected]
------------
Advocate for Appellant: MR C GOGOI
Advocate for Respondent: MR P BARUAH appearing for M/S SUNDARAM
CONSTRUCTIONS
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
09.03.2026
Heard Mr. K. Deka, learned counsel for the appellant.
2. These appeals, under Section 58 of the Real Estate (Regulation &
Development) Act, 2016 (RERA Act hereinafter), are directed against the
Page No.# 3/10
common judgment and order dated 19.12.2024, passed by the learned Assam
Real Estate Appellate Tribunal, Guwahati (Appellate Tribunal hereinafter) in
REAT/ASSAM/Appeal No. 22/2024 and also in REAT/ASSAM/Appeal No. 23/2024.
3. It is to be noted here that vide impugned judgment and order dated
19.12.2024, learned Appellate Tribunal had dismissed the aforementioned
appeals and thereby, upheld the judgment dated 23.04.2024, passed by the
learned Real Estate Regulatory Authority, Guwahati (RERA hereinafter), in
Complaint Case No. RERA/ASSAM/COM/2022/24.
4. Mr. Deka, learned counsel for the appellants, submits that the appellants are
land owners and the allottees of residential flats and commercial space in the
Horo Gauri Complex Projects, Jorhat. They had executed an agreement with the
respondent on 11.01.2016 for the development of the land mentioned as "the
Schedule Property" (the "land") and in view of the agreement, the respondent
was required to construct multi-storied buildings and commercial space etc. on
the said land. The respondent had entered into similar development agreements
with other landowners. All the constructions of the buildings, commercial space
etc. is part of the project named as the Horo Gauri Complex (the "Project"). As
per the terms of the agreement the appellants are entitled to flats, commercial
space and other amenities once the project is completed. Thereafter, the
respondent failed to complete the project as stipulated in the Development
Agreement and also deviated from the approved sanction plan and project
specifications set by the RERA. Thereafter, the appellants, through various
communications dated 23.08.2021 and 07.06.2022, intimated the respondents
about the incomplete status of the project and asked for a meeting so as to
discuss the issues with the respondent in the project. Then being aggrieved by
the conduct of the respondent, the appellants had filed a Complaint Case No.
Page No.# 4/10
RERA/ASSAM/COM/2022/24 (the "Complaint") under Section 31 of the Real
Estate (Regulation and Development) Act, 2016 (the "Act"). Then the RERA,
Assam was pleased to issue notice on the Complaint. The respondent had raised
the objection on the issue of maintainability of the Complaint. The RERA, Assam
by its Order dated 30.03.2023 had rejected the objections of the Respondent.
The RERA, Assam held that the Complaint is maintainable as the Appellants are
allottees. The RERA, Assam also held that the appellants are not having any
share in the profits earned by the respondent from selling of the flats. The
RERA, Assam further held that any aggrieved persons can file a Complaint under
the Act.
4.1. Then the respondent herein, being aggrieved by the Order dated
30.03.2023 passed by the RERA, Assam preferred an Appeal No. 6 of 2023,
before the learned Appellate Tribunal on the point of maintainability of the
Complaint before the RERA, Assam. Then the learned Appellate Tribunal by its
Order dated 12.06.2023 disposed of the Appeal No. 6 of 2023 and remanded
the matter to the RERA, Assam with a direction to decide first on the issue of
maintainability of the Complaint and to proceed on merits. Thereafter, the RERA,
Assam vide its Order dated 23.04.2024, in compliance with the directions of the
learned Appellate Tribunal's Order dated 12.06.2023 heard the issue of
maintainability of the Complaint. The RERA, ASSAM, held that the Appellants are
also allottees, under the Act. Further, it is observed that any aggrieved person
can file a Complaint under the Act. The RERA, ASSAM, after observing that the
Complaint is maintainable, proceeded further with the complaint and directed
the Executive Officer, Jorhat Municipality Board to submit a Status Report on the
status of the Project. Then the Executive Officer, Jorhat Municipality Board in
compliance with the Order dated 23.04.2024 has submitted the Status Report
Page No.# 5/10
dated 20.06.2024, citing various works as incomplete in the project. Moreover,
the status report also highlights that certain works carried out by the
respondent are in deviation of the sanction plans. Moreover, the status report
also mentions that the application for Completion-cum-Occupancy certificate by
the respondent is being rejected due to deviation and in-complete works in the
project. The RERA, ASSAM also by its Order dated 02.07.2024 directed the
respondent to hand-over the 168 sq. ft. area of the commercial space as per the
Development Agreement and the Allotment Agreement and to submit a
compliance report before the next date of hearing.
4.2. The respondent, being aggrieved by the Order dated 23.04.2024 of the
RERA, Assam filed an Appeal being REAT/ASSAM/APPEAL No. 22 of 2024 (the
"Appeal"), on the issue of maintainability and locus standi of the Appellants to
file the Complaint before the RERA, ASSAM. The respondent also being
aggrieved by the Order dated 02.07.2024 of the RERA, Assam had filed an
Appeal being REAT/ASSAM/APPEAL No. 23 of 2024 (the "Appeal"), on the issue
of maintainability and locus standi of the Appellants to file the complaint before
the RERA, ASSAM.
4.3. Then the learned Appellate Tribunal by the Common impugned Judgment
and Order dated 19.12.2024 has allowed the appeals and set-aside the Orders
dated 23.04.2024 and 02.07.2024 passed by the RERA, Assam. The learned
Appellate Tribunal by the impugned Order has also set aside the Complaint of
the Appellant on the ground of lack of locus standi to file the Complaint by
invoking the provision of sub-section (1) of Section 31 of the Act.
4.5. Mr. Deka also submits that being aggrieved the appellants have preferred
the present second appeal suggesting following substantial questions of law:
Page No.# 6/10
a) Whether the landowner, who executed an
agreement to effect constructions on his
property with the covenant to share the built-
up area is an 'allottee' under Section 2 (d)
of the Real Estate (Regulation and
Development) Act 2016?
b) Whether the Learned Appellate Tribunal failed
to appreciate that the reliefs as prayed for
by the Appellants in the Complaint regarding
the grant of an Occupancy Certificate and
Completion Certificate are squarely covered
under Section 11 (4) (b) of the Act?
c) Whether the Learned Appellate Tribunal failed
to consider the Status Report of the Project
submitted by Jorhat Municipality Board
highlighting the violations of Section 14,
Section 11 (4) (d), Section 11 (4) (f) read
with Section 17 of the Act?
d) Whether an Agreement for Sale as per Section 2
(c) of the Act is a mandatory provision and a
pre-condition to file a Complaint under
Section 31 of the Act?
4.6. Mr. Deka also submits that the learned Appellate Tribunal failed to
appreciate that the Appellants are land owners and also 'allottees' to whom the
flats and the commercial space are being transferred by the Respondent in
consideration of the land owned by the Appellants as per the Development
Agreement and the Allotment Agreement. He also submits that the Learned
Appellate Tribunal has failed to appreciate that the Appellants are consumers as
per the law laid down by the Hon'ble Supreme Court in Bunga Daniel Babu
vs. Sri Vasudeva Constructions and Others (2016) 8 SCC 429 and the
Page No.# 7/10
Act has been enacted to protect the interests of the "Consumers". He also
submits that the learned Appellate Tribunal has failed to appreciate that the
"Agreement for Sale" as provided under Section 2(c) of the Act is not a
mandatory provision or a pre-condition for filing a complaint under Section 31 of
the Act, and that the findings of the learned Appellate Tribunal that the
Appellants have failed to establish the violation of Section 14 of the Act are
perverse and erroneous and that the status report dated 20.06.2024 submitted
by the Executive Officer, Jorhat Municipality Board clearly establishes that there
is a violation of Section 14(1) of the Act. It is his further submission that the
learned Appellate Tribunal has failed to appreciate that the appellants have
sufficient pleadings and averments in the Complaint highlighting the non-
completion of the work and deviations of the work in the project by the
respondent. The Appellants have also pleaded that the Appellants have not
been issued the completion certificate and occupancy certificate by the
respondent. Further submission of Mr. Deka is that the findings of the learned
Appellate Tribunal that the appellants have failed to establish the violation of
Section 12 of the Act and also failed to establish the violation of Section 18 of
the Act on the basis that the Appellants do not have any "Agreement for Sale"
are perverse and erroneous. It is submitted that an Agreement for Sale is not a
mandatory provision or a pre-condition to filing a Complaint under Section 31 of
the Act. The other findings of the learned Appellate Tribunal are also perverse
and under such circumstances he has contended to admit the appeals and to
issue notice to the respondent and also to call for the records and thereafter to
dispose of the appeals after hearing both sides.
5. Having heard the submission of Mr. Deka, learned counsel for the appellant,
I have carefully gone through the memo of appeal as well as the grounds
Page No.# 8/10
mentioned therein and the suggested substantial questions of law and also
perused the decision referred to by learned counsel for the appellant.
6. The High Court of Kerala at Ernakulam, in MSA No. 32 of 2023 (M/s.
Cordial Foundation Private Limited and 3 Others. vs. Dr. Purushothama
Bharathi), while dealing with an appeal against the order in REFA 1/2023
dt.15.09.2023 of Kerala Real Estate Appellate Tribunal, Ernakulam, passed in
Complaint No.235/2022 dt.15.12.2022 of Kerala Real Estate Regulatory
Authority, Thiruvananthapuram while interpreting Section 2(d) of the Act held
that even though 30 cents of property in the project is the property owned by
the respondent of that case, his status is not that of a builder or a promoter and
being a person entitled to get built up area, shared as per Annexure-A
agreement, his status is as that of an allottee.
7. In holding so, the High Court of Kerala at Ernakulam had relied upon a
decision of the Hon'ble Supreme Court in the case of Faqir Chand Gulati
vs. Uppal Agencies (P) Limited & Another, reported in (2008) 10 SCC
345, wherein answering a question as to whether a landowner, who enters into
an agreement with a builder, for construction of an apartment building and for
sharing of the constructed area, is a "consumer" entitled to maintain a
complaint against the builder as a service provider under the Consumer
Protection Act, 1986, held that where the owner/holder of a land, who has
entrusted the construction of a house to a contractor, has a complaint of
deficiency of service with reference to the construction, a complaint under the
Consumer Protection Act will be maintainable.
7.1. The same proposition of law is reiterated in the case of Bunga Daniel
(supra)also.
Page No.# 9/10
8. In view of the discourse above and also taking note of the submission of Mr.
Deka, learned counsel for the appellant and also taking note of the facts and
circumstances on the record and the object behind enacting the Act, i.e. to
establish the Real Estate Regulatory Authority for regulation and promotion of
the real estate sector and to ensure sale of plots, apartments or buildings, as
the case may be, or the sale of a real estate project, in an efficient and
transparent manner and to protect the interests of consumers in the real estate
sector and to establish an adjudicating mechanism for speedy dispute redressal
and also to establish the Appellate Tribunal to hear appeals from the decisions,
directions or orders of the Real Estate Regulatory Authority and the adjudicating
officer and for matters connected therewith or incidental thereto, this appeal is
admitted on the following substantial questions of law:-
(i) Whether the land owners, who had executed an
agreement with the respondent to effect
constructions over their land and to share the
built-up area are an 'allottees' as defined in
Section 2(d) of the RERA Act?
(ii) Whether the learned Appellate Tribunal had
misinterpreted the provisions of Sections 2(d) and
31(1) of the RERA Act and thereby, arrived at an
erroneous finding to the effect that the complaint
lodged by the land owners is not maintainable
being not 'allottees' in terms of Section 2(d) of
the RERA Act?
(iii) Whether the learned Appellate Tribunal failed to
appreciate that the reliefs as prayed for by the
appellants in the Complaint regarding grant of
Occupancy Certificate and Completion Certificate
are squarely covered under Section 11 (4) (b) of
the Act?
Page No.# 10/10
(iv) Whether the learned Appellate Tribunal failed to
consider the Status Report of the Project
submitted by Jorhat Municipality Board
highlighting the violations of Section 14, Section
11 (4) (d), Section 11 (4) (f) read with Section
17 of the Act?
10. Let notice be issued to the respondents, within a week from today, by speed
post with A/D as well as by usual process, returnable in 4 weeks.
11. Registry shall call for the records from the learned RERA as well as from the
learned Appellate Tribunal.
12. List the matter after 4 (four) weeks.
JUDGE
Comparing Assistant
