Rajasthan High Court

Avalon Projects vs Adjudicating Officer, Rajasthan ... on 24 August, 2021

Bench: Sangeet Lodha, Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

           (1) D.B. Special Appeal Writ No. 708/2021
                                      In
                S.B. Civil Writ Petition No. 8079/2019

Avalon Projects, a Unit of GRJ Distributors and Developers Pvt.
Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-
110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr.
Dharmvir Singh aged about 31 Years.
                                                                   ----Appellant
                                   Versus
1.    Adjudicating Officer, Rajasthan Real Estate Regulatory
      Authority, Rajasthan having its office at 2nd and 3rd
      Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-
      Scheme, Jaipur (Raj.)-302005
2.    Rajasthan Real Estate Regulatory Authority, Rajasthan
      having its office at 2nd and 3rd Floor, RSIC Building,
      Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)-
      302005 Through Chairman
3.    Registrar, Rajasthan Real Estate Regulatory Authority,
      Jaipur.
4.    Arti Jain wife of Amit Jain, aged about 41 Years, Resident
      of C-44, Ram Nagar, Shastri Nagar, Jaipur 302016
                                                                ----Respondents

(2) D.B. Special Appeal Writ No. 709/2021 In S.B. Civil Writ Petition No. 8063/2021

Avalon Projects, A Unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)- 110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-

Scheme, Jaipur (Raj.)-302005

(2 of 10) [SAW-708/2021]

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)- 302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur.

4. Deepika Mathur wife of Prashant Mathur, aged about 42 Years, Resident of J-102, Bestech Park View Spa Next, Sector-67, Gurugram, Haryana-122101

----Respondents

(3) D.B. Special Appeal Writ No. 714/2021 In S.B. Civil Writ Petition No.8087/2021

Avalon Projects, A unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)- 110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)- 302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur

4. Shashwati Ghosh wife of Saugata Ghosh, aged about 55 Years, Resident of House No.-103/gf Sushant Lok, Block D, Sector 57 Gurgoan, Haryana- 122011

----Respondents

(4) D.B. Special Appeal Writ No. 715/2021 In S.B. Civil Writ Petition No.8088/2021

(3 of 10) [SAW-708/2021]

Avalon Projects, A Unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)- 302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur

4. Indra Kumar Relan son of Knawar Bhan Relan, aged about 75 Years, Resident of Flat No. 204, Tower-2 Orchid Petals, Sohan Road Gurugram, Haryana.

----Respondents

(5) D.B. Special Appeal Writ No. 716/2021 In S.B. Civil Writ Petition No.8070/2021

Avalon Projects, A Unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme,

(4 of 10) [SAW-708/2021]

Jaipur (Raj.)-302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur.

4. Indra Kumar Relan son of Knawar Bhan Relan, aged about 75 Years, Resident of Flat No. 204, Tower-2 Orchid Petals, Sohan Road Gurugram, Haryana.

----Respondents

(6) D.B. Special Appeal Writ No. 717/2021 In S.B. Civil Writ Petition No.8066/2021

Avalon Projects, A Unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur.

4. Anand Sitaram Khendelwal son of Sitaram Khandelwal, aged about 42 Years, Resident of C-4, Rami Heritage, Opposite old RTO Office, Murtizapurr Road, Akola, Maharashtra- 44404

----Respondents

(7) D.B. Special Appeal Writ No. 718/2021 In S.B. Civil Writ Petition No.8072/2021

Avalon Projects, A Unit of Grj Distributors and Developers

(5 of 10) [SAW-708/2021]

Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh Aged About 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur

4. Amarjit Kaur wife of Jagdeep Singh, aged about 56 Years, Resident of House No. M-225, Guru Harikishan Nagar, New Delhi-110087.

----Respondents

(8) D.B. Special Appeal Writ No. 719/2021 In S.B. Civil Writ Petition No.8065/2021

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005 through Chairman.

3.    Registrar,     Rajasthan            Real      Estate       Regulatory



                                           (6 of 10)                     [SAW-708/2021]



           Authority, Jaipur

4. Nivedita Dasgupta wife of Aseem Dasgupta, aged about 50 Years, Resident of House No. 7/6, First Floor, Dlf Cty Phase-1, Gurgaon, Haryana-122002

----Respondents

(9) D.B. Special Appeal Writ No. 720/2021 In S.B. Civil Writ Petition No.8064/2021

Avalon Projects, A Unit of Grj Distributors and Developers Pvt. Ltd., 64, Scindia House, Connaught Place, New Delhi (India)-110001 through its Authorized Signatory Mr. Jasvir Singh S/o Mr. Dharmvir Singh aged about 31 Years.

----Appellant Versus

1. Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C-Scheme, Jaipur (Raj.)-302005

2. Rajasthan Real Estate Regulatory Authority, Rajasthan having its office at 2nd and 3rd Floor, RSIC Building, Udyog Bhavan, Tilak Marg, C- Scheme, Jaipur (Raj.)-302005 through Chairman.

3. Registrar, Rajasthan Real Estate Regulatory Authority, Jaipur

4. Sudhir Bhushan Son of Bharat Bhushan, aged about 59 Years, Resident of C-164, Belvedere Tower Dlf City, Phase-II, Gurgaon-122012

----Respondents

For Appellant(s) : Shri Harshal Tholia with Shri Rubal Tholia For Respondent(s) :

HON'BLE MR. JUSTICE SANGEET LODHA HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

(7 of 10) [SAW-708/2021]

24/08/2021

(PER HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL):

Since the issue in all these writ petition is common, they are

clubbed together and are being decided by this common order.

Assailing the order dated 2.8.2021 passed by the learned

Single Judge, unsuccessful petitioner has preferred these intra

court appeals.

The facts in brief are that the respondents no.4 filed their

respective complaints against the appellant before the

Adjudicating Officer, the Rajasthan Real Estate Regulatory

Rajasthan (for brevity-`the AO') under the provisions of Real

Estate (Regulation and Development) Act, 2016 (for brevity-`the

Act of 2016'). A preliminary objection as to jurisdiction of the AO

to entertain the complaints was raised by the appellant herein;

but, the AO directed the appellant to file its reply to the complaint.

The aforesaid direction was assailed by the appellant by way of

the writ petition which did not find favour with the learned Single

Judge.

Assailing the order passed by the learned Single Judge,

learned counsel for the appellant, drawing attention of this Court

towards various provisions contained in the Act of 2016, such as

Section 31, Section 71 and Rule 35 of the Rules of 2017,

submitted that the AO did not have jurisdiction to entertain the

complaint filed by the respondent no.4 inasmuch the scheme of

the Act and the Rules empowers the AO to award compensation

and interest only. He contended that the AO has no jurisdiction to

pass an order for refund of the amount in favour of a private

complainant, a power which rests with the regulating authority

only. Learned counsel relied upon the judgement of Hon'ble

(8 of 10) [SAW-708/2021]

Supreme Court in the case of Arun Agarwal vs. Nagreeka Exports

(P) Ltd. & Anr.-(2002) 10 SCC 101 and a division bench judgement

of Hon'ble Punjab and Haryana High Court at Chandigarh in the

case of Experion Developers Pvt. Ltd. vs. State of Haryana & Ors.,

CWP No.38144 of 2018 and other connected matters dated

16.10.2020 in support of his submissions.

Heard learned counsel for the petitioner and perused the

record.

A perusal of the order dated 7.7.2021 passed by the AO in

the complaints filed by the respondents no.4 reveals that the

appellant herein was directed to file reply to the complaints. There

has been no adjudication by the AO on the preliminary objection

raised by the appellant as to its jurisdiction. Therefore, the prayer

made by the appellant in the writ petition to restrain the AO to

entertain the complaints filed by the respondents no.4 has rightly

not been entertained by the learned Single Judge inasmuch as the

AO is yet to take a decision on the objection raised by the

appellant as to its jurisdiction. Direction of the AO to the appellant

to file reply to the complaints does not amount to assumption of

jurisdiction by the AO or rejection of the preliminary objection

raised by the appellant. It is well settled principle of law that a

Court or a Tribunal or an authority dealing with the inter se rights

of the parties to a lis has inherent jurisdiction to decide the

question of its own competence/jurisdiction to entertain the lis. A

division Bench of the Hon'ble Andhra Pradesh High Court has, in

the case of United Steel Allied Industries Pvt. Ltd. vs. Fairgrowth

Financial Services Ltd. & Ors.-MANU/AP/0109/1997, held as

under:

(9 of 10) [SAW-708/2021]

"10. One of the settled principles of law is that a court, tribunal or authority of limited jurisdiction can decide upon its own jurisdiction and in case it decides wrongly and assumes jurisdiction, the superior court, in exercise of its power of judicial review, can always examine the jurisdictional facts and decide whether the issue of limited jurisdiction has been properly determined by the court, tribunal or authority of limited jurisdiction, or not. This, according to us, should not detain us any further beyond observing that the petitioner, which has received notice from the special court in M.P. No. 68 of 1994, if so advised, can raise objection as to the jurisdiction of the Special Court and the Special Court, as we have noticed above, shall decide upon its own jurisdiction. Learned counsel for the petitioner has, however, stated that in case the issue as to the jurisdiction of the Special Court is not decided as a preliminary issue, there shall be inordinate delay and the petitioner shall suffer a protracted litigation in the Special Court. Ordinarily in matters which are referable to jurisdictional facts and which jurisdictional facts are found connected with the facts in issue otherwise in the proceeding before it, it does not decide the issue of jurisdiction separately and independently. All issues of facts and law in such matters are taken up together and the issue of jurisdiction is decided along with other issues. This, however, does not mean that in a proper case when such court, tribunal or authority is satisfied that the entire matter can be disposed of on the basis of the preliminary issue only, which issue involves a pure question of law, it cannot decide to take up such issue as a preliminary issue. The petitioner, on appearance in response to the notice, can seek hearing on the question of jurisdiction and it shall be for the Special Court to decide whether it shall take it up as a preliminary issue or as one of the issues in the proceeding."

(10 of 10) [SAW-708/2021]

This Court is in complete agreement with the aforesaid view.

Since the objection of the appellant as to lack of jurisdiction

is subjudice before the AO, this Court, in its intra court appellate

jurisdiction, refrains itself from expressing any opinion on the

issue.

The judgement of the Hon'ble Supreme Court in the case of

Arun Agarwal (supra) was rendered in the facts and circumstances

wherein the High Court, pending objection of the appellant as to

lack of jurisdiction, directed him to furnish security for a sum of

Rs.55 lacs by way of bank guarantee failing which there was to be

decree for the principal amount of Rs.55 lacks. Since, no such