Madras High Court
Colonel C.M.Unnithan vs Government Of India on 4 January, 2022
W.P.No.19480 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.01.2022
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
W.P.No.19480 of 2020
Colonel C.M.Unnithan .. Petitioner
vs
1. Government of India,
Through Secretary, Ministry of Housing
and Urban Affairs, Nirman Bhawan,
'C' Wing, Dr.Maulana Azad Road,
New Delhi 110 011.
2. Government of Tamil Nadu,
Through Secretary, Housing and Urban
Development Department,
Secretariat, Chennai 600 009. .. Respondents
Prayer: Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Declaration Declaring that Rule 2 (h) of Tamil
nadu Real Estate (Regulation and Development ) rules 2017 G.O.Ms.
No. 112 Housing and Urban Development UD1(2) 22nd June 2017
issued by the 2nd respondent is inter alia ultra virus inconsistent non
conformity to the Real Estate (Regulation and Development Act 2016
and the same is liable to be quashed.
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W.P.No.19480 of 2020
For the Petitioner : Mr.R.Ramasubramaniam
Raja
For the Respondents : Mr.T.V.Krishnamachari
Stdg. Counsel for R-1
: Mr.C.Harsharaj,
Addl. G.P. for R-2
*****
ORDER
(Order of the Court was made by
the Hon'ble Acting Chief Justice)
The learned counsel for the petitioner submits that in view of
the judgment in the case of Subashini Thulasiram vs SPR & RG
Constructions Pvt. Ltd. reported in 2020 SCC Online Mad 20120,
the petitioner is not required to press the writ petition for challenge
to the validity of Rule 2(h) of the Tamil Nadu Real Estate (Regulation
and Development) Rules, 2017. It is especially in the light of the
finding recorded by the Division Bench in the case supra.
2. A reference of para 30 of the said judgment has been given
with the prayer that the petition may be governed by it and if the
direction aforesaid is given, the petitioner is not required to press the
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W.P.No.19480 of 2020
prayer made in the writ petition for challenge to the constitutional
validity of Rule 2(h)(ii) of the Rules of 2017.
3. The learned Government Pleader has no objection to it. It is,
however, stated that the issue is already considered by the RERA in
favour of the petitioner after taking note of Rule 2(h)(ii) of the RERA
Rules and Section 3 of the RERA Act. It may be true that the
challenge before the High Court against the order passed by the
RERA authority sustain, but it was not on the merit of the case but in
view of the violation of principle of natural justice. The petitioner did
not implead promoter as party respondent. The Tribunal otherwise
did not accept the view expressed by the Regulatory Authority for
exemption from registration. The RERA has already decided the issue
in favour of the petitioner on the subject requiring registration of the
project.
4. We have considered the submissions made by the parties
and find that in the light of the finding recorded by this Court in para
30 in the case of Subashini Thulasiram (supra), the learned counsel
for the petitioner is not pressing the writ petition for challenge to the
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W.P.No.19480 of 2020
constitutional validity of Rule 2(h) of the Rules of 2017.
However, we dispose of the writ petition by governing it by the
observation made in para 30 of the judgment supra and otherwise the
matter is pending consideration in regard to the issue of requirement
of registration, it would be decided by the authority after considering
the facts of the case and judgment in the case supra. No costs.
(M.N.B., ACJ.) (P.D.A., J.)
04.01.2022
Index : Yes/No
sra
To:
1. The Secretary,
Government of India,
Ministry of Housing and Urban Affairs,
Nirman Bhawan, 'C' Wing,
Dr.Maulana Azad Road,
New Delhi 110 011.
2. The Secretary,
Government of Tamil Nadu,
Housing and Urban Development Department,
Secretariat, Chennai 600 009.
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W.P.No.19480 of 2020
M.N.BHANDARI, ACJ.
AND
P.D.AUDIKESAVALU, J.
(sra)
W.P.No.19480 of 2020
04.01.2022
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