Sri H Shyamashetty vs M/S Provident Housing Ltd
2023 Latest Caselaw 3447 Kant

                                        -1-
                                              NC: 2023:KHC:21118-DB
                                                     WA No. 180 of 2023




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 19TH DAY OF JUNE, 2023

                                      PRESENT
              THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
                                        AND
                        THE HON'BLE MR JUSTICE M.G.S. KAMAL
                       WRIT APPEAL NO. 180 OF 2023 (GM-RES)


              BETWEEN:

                    SRI H. SHYAMASHETTY
                    S/O LATE A.N. SHETTY
                    AGED ABOUT 63 YEARS
                    'PADMALEKHA', KODISASTAN ROAD
                    GUDNMI VILLAGE
                    UDUPI TALUK-576 226.

                                                           ...APPELLANT
              (BY SRI. HARISH KUMAR M S.,ADVOCATE)

              AND:
Digitally
signed by
SUMA B N      1.    M/S PROVIDENT HOUSING LTD.,
Location:           REPRESENTED BY ITS AUTHORIZED SIGNATORY
High Court of       HAVING REGISTERED OFFICE AT NO.8
Karnataka
                    ULSOOR ROAD
                    YELLAPPA CHITTY LAYOUT
                    BENGLAURU-560 042.

              2.    KARNATAKA REAL ESTATE REGULATION AUTHORITY
                    REPRESENTED BY ITS SECRETARY
                    2ND FLOOR, SILVER JUBILEE BLOCK
                    UNITY BUILDING
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                                  NC: 2023:KHC:21118-DB
                                        WA No. 180 of 2023




    CSI COMPOUND
    BENGLAURU-560 027.

                                            ...RESPONDENTS
(BY SRI. JOSEPH ANTHONY, ADVOCATE FOR C/R1)

     THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE ABOVE
WRIT APPEAL AND SET ASIDE THE ORDER DATED: 02/01/2023
IN WP NO.18448/2021 PASSED BY THE LEARNED SINGLE
JUDGE.

     THIS APPEAL COMING ON FOR PRELIMINARY HEARING,

THIS DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:


                        JUDGMENT

Present writ appeal is against the order dated

02.01.2023 passed in W.P.No.18448/2021(GM-RES) by

which the writ petition filed by the respondent no.1/writ

petitioner was allowed by learned Single Judge by setting

aside the order dated 30.9.2020 passed by the respondent

No.2-Karnataka Real Estate Regulation Authority.

2. The aforesaid writ petition was filed by the

respondent No.1/writ petitioner contending that it is in the

business of real estate development and the

NC: 2023:KHC:21118-DB WA No. 180 of 2023

appellant/respondent No.2 had filed an application for

allotment of an apartment in one of the projects of the

respondent no.1/writ petitioner and was allotted a flat

bearing No.SUN-II-5G-506 on the 5th floor of apartment

complex knows as "Provident Sunworth" constructed on

the land bearing Sy.No.1 to 26 of Venkatapura village,

Kengeri Hobli, Bengaluru. Agreements of sale and

construction both dated 10.09.2014 was entered into on

the basis of commencement certificate that was issued by

the Bangalore Development Authority. That the

construction building was completed and first partial

occupation certificate was issued by the Bangalore

Development Authority on 18.11.2015 and the second

partial occupation certificate was also issued. In the

meanwhile, the appellant /respondent No.2 sought

cancellation of the agreement on the ground that he had

learnt that land on which construction work was done, was

not acquired legally and that the respondent No.2/writ

petitioner had not obtained any communication from the

competent authority with respect to acquisition of land.

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The respondent No.1/writ petitioner acceded to the

request of the appellant/respondent No.2 for cancellation

of agreements and allotment made in his favour and

refunded a sum of Rs.17,85,212/- on 04.12.2017 after

deduction of cancellation of charges and applicable taxes.

3. Long after receipt of said amount,

appellant/respondent No.2 approached the respondent

No.1/Karnataka Real Estate Regulatory Authority (RERA)

seeking refund of an amount of Rs.6,84,494/- along with

interest. Though objections with regard to maintainability

of the said complaint before respondent No.1 was raised,

the respondent No.1/RERA passed the order dated

30.09.2020 directing the respondent No.1/writ petitioner

to refund a sum of Rs.6,84,494/- to the

appellant/respondent No.2 within 60 days from

30.09.2020 failing which it was directed said amount

would carry 2% interest per month. Aggrieved by the said

order, respondent No.1/writ petitioner approached this

Court by filing said writ petition.

NC: 2023:KHC:21118-DB WA No. 180 of 2023

4. Taking note of the undisputed fact of the matter

that project had commenced and partial occupation

certificates was issued in favour of the

appellant/respondent No.2 on 18.11.2015 and 27.04.2017

and that Real Estate (Regulation and Development) Act,

2016 (hereinafter referred to as 'RERA' for short) had

come into force on and from 01.05.2016 and Rules

thereunder were notified on 10.07.2017 and that by that

time the said Act was put in force, the project was

completed and it was not an "on-going project" within the

meaning of the Act and that the respondent No.1 lacked

jurisdiction of the matter, learned Single Judge allowed the

writ petition on the sole ground of respondent No.1 is not

having jurisdiction to entertain the matter. Aggrieved by

the same, appellant/respondent No.2 is before this Court.

5. Sri. Harish Kumar M.S, learned counsel for the

appellant/respondent No.2 reiterating the grounds urged

in the memorandum of appeal contended that originally he

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had approached to the District Consumer Court seeking

remedy of refund of money and on setting up of

respondent No.1 under the RERA Act, the said complaint

was returned to be presented before the respondent No.1.

Accordingly, appellant/respondent No.2 presented the

complaint before respondent No.1. That though the issue

of jurisdiction was raised, after hearing the parties,

respondent No.1 passed impugned order. Thus, he

submits that appellant/respondent No.2 would be left

remediless in view of the order passed by the learned

Single Judge warranting interference.

6. Sri. Joseph Anthony, learned counsel for the

respondent No.1/writ petitioner on the other hand,

justifying the order passed by the learned Single Judge

submitted that since the project was completed much prior

to promulgation of RERA Act and Rules, the project in

question could not have been considered as on-going

project and that the appellant/respondent No.2 being

completely aware of this factual and legal aspect of the

NC: 2023:KHC:21118-DB WA No. 180 of 2023

matter has drawn upon himself to the order impugned in

the writ petition, which has been rightly set aside.

7. Heard learned counsel for the parties and

perused the records.

8. It is not in dispute that the project in question

had been completed prior to coming into force of the Real

Estate (Regulation and Development) Act, 2016 and Rules.

As such, respondent No.2 lacked jurisdiction in the matter.

It is also not in dispute that upon the request of

appellant/respondent No.2 for cancellation of agreement

and allotment of flat, the respondent No.1/writ petitioner

had refunded a sum of Rs.17,85,212/- on 04.12.2017. It

is thereafter, the appellant/respondent No.2 approached

the District Consumer Court seeking redressal of the

grievance on the premise that he had paid Rs.24,71,208/-

and was still entitled for a balance amount of

Rs.6,84,494/-. That though the said complaint filed by the

appellant/respondent No.2 before consumer forum was

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returned to be presented before respondent No.1, it was

for the appellant/respondent No.2 to have ascertained

regarding factual and legal aspect of the matter, more so,

when the issue with regard to jurisdiction was raised

before the respondent No.1 by respondent No.2/writ

petitioner. Needless to state that appellant/respondent

No.2 who opted to prosecute and proceed with the matter

before respondent No.1 knowing this legal position, cannot

now be heard to say that he is left remediless. It is for the

appellant/respondent No.2 to seek such remedy as may be

available under law.

With the above observation since the appeal lacks

merit, the same is dismissed.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE RU