Kerala High Court
C.J S Haritha Homes vs Sri.C.R.Subash on 24 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 24TH DAY OF MARCH 2022 / 3RD CHAITHRA, 1944
WP(C) NO. 5870 OF 2020
PETITIONERS:
1 C.J S HARITHA HOMES,
SQUARE CENTRE, ATHIRAMPUZHA PO., PADINJATTUMBHAGAM
KARA, ATHIRAMPUZHA VILLAGE, KOTTAYAM-686562.
2 KUMAR.D.,
MANAGING PARTNER, M/S.C.JS HARITHA HOMES, SQUARE
CENTRE, ATHIRAMPUZHA PO., PADINJATTUMBHAGAM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM-686562.
3 SHEEJA.S.KUMAR,
PARTNER, M/S.C.JS HARITHA HOMES, SQUARE CENTRE,
ATHIRAMPUZHA PO., PADINJATTUMBHAGAM KARA,
ATHIRAMPUZHA VILLAGE, KOTTAYAM-686562.
BY ADVS.
MATHEW JOHN (K)
MATHEW DEVASSI
ABY J AUGUSTINE
RESPONDENTS:
1 SRI.C.R.SUBASH,
S/O.RAGHAVAN, CHIRAYIL HOUSE, KOTTAYAM.P.O.,
PANAYAKAZHIPPU KARA, MUTTAMBALAM VILLAGE,
KOTTAYAM-686001.
2 THE KERALA REAL ESTATE REGULATORY AUTHORITY,
THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY
(LEGAL), SWARAJ BHAVAN, 5TH FLOOR, NANDANCODE,
KOWDIYAR.P.O., THIRUVANANTHAPURAM-695003.
BY ADVS.SRI.C.S.MANILAL
C.M.NAZAR
SRI.S.NIDHEESH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C).No.5870/2020
2
P.V.KUNHIKRISHNAN, J.
--------------------------------
W.P.(C).No.5870 of 2020
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Dated this the 24th day of March, 2022
JUDGMENT
This writ petition is filed challenging Ext.P6 order passed
by the Kerala Real Estate Regulatory Authority,
Thiruvananthapuram in Complaint No.2/2019 on 05.02.2020.
2. Admittedly there is an alternative remedy to the
petitioner against Ext.P6 order. This Court originally disposed
of this writ petition allowing the petitioner to avail the
alternative remedy. Thereafter a review petition was filed.
The ground mentioned in the review petition is that when the
petitioner approached the appellate authority with an appeal,
it is understood that there is a precondition to file an appeal to
the effect that the petitioner should deposit the entire amount
ordered by the authority. It is also submitted in the review
petition that the learned counsel was also not aware of the
pre-deposit and that is why he conceded for such an order.
This Court allowed the review petition and heard the writ
petition again.
W.P.(C).No.5870/2020
3. The learned counsel for the petitioner submitted
that this is a case in which Ext.P2 notice was issued by the
Regulatory Authority to appear on 05.02.2020 and on the
same date, Ext.P6 order is passed. According to the learned
counsel, proper opportunity of hearing is not given to the
petitioner in accordance to Rule 36(2)(d) and 36(2)(e) of the
Kerala Real Estate (Regulation and Development) Rules, 2018
(for short, the Rules). Therefore the learned counsel
submitted that even if there is an alternative remedy, since it
is a case in which there is violation of natural justice, this
Court may interfere invoking the power under Article 226 of
the Constitution of India. On the other hand, the learned
counsel appearing for the respondents submitted that a
reading of Rule 36(2)(d) and 36(2)(e) will show that it is the
discretion of the authority to adjourn the matter for
production of documents and adduce evidence. The learned
counsel who appeared for the authority takes me through the
preample of the Act itself and submitted that a speedy
resolution is the intention of the Legislature and Ext.P6 order
is passed in accordance to law.
4. This court considered the contentions of the
W.P.(C).No.5870/2020
petitioner and the respondents. The short point raised by the
petitioner is that since there is violation of natural justice, this
Court may kindly interfere with Ext.P6 order. It is also
submitted that there is violation of statutory Rules. For the
purpose of deciding the case, it will be better to extract Rule
36(2)(d) and 36(2)(e) of the Rules:
"36. Manner of filing a complaint with the Authority
and the manner of holding an inquiry by the
Authority.
(1) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(2) The Authority shall for the purposes of deciding
any complaint as specified under sub-rule (1), follow
summary procedure for inquiry in the following
manner:
(a) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(b) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(c) xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx
(d) in case the Authority is satisfied on the basis of
the submissions made that the complaint does not
require any further inquiry and it may dismiss the
complaint;
(e) in case the Authority is satisfied on the basis of
W.P.(C).No.5870/2020
the submissions made that the there is need for
further hearing into the complaint it may order
production of documents or other evidence on a date
and time fixed by it."
5. A reading of Rule 36(2)(d) will show that in the first
instance, if the Authority is satisfied on the basis of
submissions made that the complaint does not require any
further inquiry, it may dismiss the complaint. That Clause is
not applicable to this case because the petition is not
dismissed. Rule 36(2)(e) says that in case the Authority is
satisfied on the basis of the submissions made that there is
need for further hearing into the complaint, it may order
production of documents or other evidence on a date and time
fixed by it. On a reading of the Rule, it is clear that it is the
discretion of the Authority to decide whether any further
hearing into the complaint is necessary. Here is a case where
admittedly the petitioner submitted his objection with a
petition to condone the delay. A reading of Ext.P6 will show
that the contentions of the petitioner in the counter is dealt by
the authority. In such circumstances, when the authority
decided to dispose the matter on the same day, this Court
cannot say that there is violation of natural justice or there is
W.P.(C).No.5870/2020
any violation of Rule 36(2)(d) and Rule 36(2)(e). In such
circumstances, according to me, this Court need not entertain
this writ petition challenging Ext.P6. The petitioner is free to
challenge Ext.P6 in accordance to law, if he is advised so. The
learned counsel for the petitioner seeks some time to avail the
alternative remedy.
Therefore, this writ petition is disposed of in the
following manner:
1. The petitioner is free to file an appeal before the
appellate authority against Ext.P6, within three
weeks from the date of receipt of a copy of this
judgment.
2. If such an appeal is filed, the appellate authority
will consider the same and pass appropriate
orders in accordance to law on merit.
3. The petitioner is free to file a stay petition along
with the appeal and if such a stay petition is filed,
the appellate authority will pass appropriate
orders in it.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
W.P.(C).No.5870/2020
APPENDIX OF WP(C) 5870/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE COMPLAINT DATED
5.9.2019 FILED BEFORE THE REAL ESTATE
REGULATORY OFFICE AT
THIRUVANANTHAPURAM.
EXHIBIT P2 TRUE COPY OF THE NOTICE ISSUED TO
C.J'S HARITHA HOMES BY THE 2ND
RESPONDENT UNDER RULE 36(2) (A) & (B).
EXHIBIT P3 TRUE COPY OF THE COUNTER AFFIDAVIT
FILED BY THE PETITIONERS TOGETHER WITH
THE SUPPORTING DOCUMENTS (ANNEXURES. A
TO D).
EXHIBIT P4 TRUE COPY OF THE LETTER OF
AUTHORIZATION DATED 4.2.2020 SUBMITTED
BY THE 1ST PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE AGREEMENT DATED
18.1.2019 ENTERED INTO BETWEEN THE
PETITIONERS AND THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE ORDER DATED 5.2.2020
IN COMPLAINT NO.2/2019 PASSED BY 2ND
RESPONDENT.
RESPONDENTS EXHIBITS
EXHIBIT R1(A) COPY OF THE RECEIPT DATED 23.7.2014
ISSUED BY THE PETITIONER
EXHIBIT R1(B) COPY OF THE RECEIPT DATED 23.7.2014
ISSUED BY THE PETITIONER
