Disposed

Prabhu Constructions, Rep. by Its Prop., Venkatesh Narayan Prabhu Moni v. Jitesh Jivaji Kamat and 4 Ors.

Bombay HC14 Jul 2021WP/4/2021

Case brief

AI extract

What is this about?

This court disposed of a writ petition seeking directions to RERA for inspection to verify rectification of building deficiencies. Since a Division Bench order on subsequent dates granted the relief, this petition was disposed of without adjudicating the substantive issue regarding RERA's powers.

What did the court decide?

The petition was disposed of; interim order vacated. The impugned order of RERA was not overruled but disposed of pendente lite as relief was granted in another writ.

Prabhu Constructions, Rep. by Its Prop., Venkatesh Narayan… — Property and Title | Bombay HC (2021)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.4 OF 2021

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WITH MISCELLANEOUS CIVIL APPLICATION NO.1386 OF 2021

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PRABHU CONSTRUCTIONS,
REP. BY ITS PROP., VENKATESH
NARAYAN PRABHU MONI

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... Petitioner.

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VS

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JITESH JIVAJI KAMAT AND 4 ORS.

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... Respondents.

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Mr. Shashikant Narayan Joshi with Ms. Archana Pai Bir, Advocates for
the Petitioner.

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Mr. Neelesh Takkekar, Advocate for Respondent No.1.

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Mr. Sandesh D. Padiyar, Advocate for Respondent No.2.

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Mr. Hanumant D. Naik, Advocate for Respondent No.3.

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Mr. Geetesh Ramesh Shetye, Advocate for Respondent No.5.

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Mr. Deep Shirodkar, Additional Government Advocate for the
Respondent No. 6.

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Coram:M.S. SONAK, J.
Date: 14th July 2021.

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P.C.:

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Heard Mr. S.N. Joshi who appears along with Ms. Archana Pai Bir
for the Petitioner, Mr. Neelesh Takkekar appears for Respondent No.1,
Mr. Sandesh Padiyar appears for Respondent No.2, Mr. Hanumant Naik
appears for Respondent No.3 and Mr. Deep Shirodkar, learned
Additional Government Advocate appears for the Real Estate Regulatory
Authority (RERA), Respondent No.6 herein.

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2.The Petitioner has instituted this petition seeking the following
substantive relief:-

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“a) Issue appropriate Directions to the Real Estate Regulatory
Authority to call for Status Reports from the Chief Officer, Mapusa
Municipal Council, North Goa Planning and Development
Authority, Directorate of Fire and Emergency Services and grant a
fresh opportunity of hearing to the Petitioners as regards the
compliance of the Final Order dated 12th September 2019 and
restoration of Occupancy to the first 4 Floors of the Building.”

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3.The records indicate that the Petitioner, who is a Respondent
before the RERA had applied to RERA to call for the status report
regarding the building in question, from (i) The Chief Officer, Mapusa
Municipal Council, (ii) Member Secretary, North Goa Planning and
Development Authority, Rua-de-Ourem, Panaji-Goa, (iii) Chief
Engineer, Electricity Department, 'Vidhyut Bhavan', Panaji-Goa, (iv)
Director, Directorate of Fire & Emergency Services, Campal, Panaji-Goa.
Mr. Joshi, the learned Counsel for the Petitioner submitted that these
authorities, had pointed out certain alleged deficiencies in the building
constructed by the Petitioner and on that basis, withheld or even revoked
certain permissions, certificates, etc. Mr. Joshi submits that the Petitioner
has rectified such deficiencies, but the authorities were not interested in
inspecting the building to determine whether such deficiencies were
indeed removed or not. Mr. Joshi submits that that is the reason why the
Petitioner applied to the RERA to seek a status report from such
authority, so that, the matter should be sorted out one way or the other.

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4. Now the impugned order dismisses Petitioner's application, primarily holding that the RERA does not have the power or authority to seek such status reports from the authorities. According to me, in a

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matter of this nature, the RERA ought not to have rushed to draw such a
conclusion. But rather than decide on the nature of powers vested in
RERE in this matter, by leaving open this issue for decision in an
appropriate case, this petition can be disposed of particularly because of
certain subsequent developments.

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5. The subsequent developments concern the order made by the Division Bench of this Court on 28.06.2021 in Writ Petition No. 1156 of 2021 (F) instituted by the Petitioner herein, seeking substantial similar reliefs, as were applied for before the RERA.

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6.The Division Bench of this Court on 28.06.2021 made the
following order, which has the effect of substantially granting the
Petitioner reliefs in terms of the application made by the Petitioner before
the RERA.

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7.The order dated 28.06.2021 made in Writ Petition No.1156 of
2021 (F) reads as follows:-

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“Heard Mr. S. N. Joshi with Ms. Snehal Rawool, learned
Advocates for the Petitioner, Mr. S.D. Padiyar, learned Advocate for
respondent No.1, Mr. H.D. Naik, learned Advocate for respondent
No.2, Mr. D. J. Pangam, learned Advocate General with Ms. Maria
Correia, learned Addl. Government Advocate for respondents No.3
& 4 and Mr. A.D. Bhobe, learned Advocate for Intervenors.

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2. This is not a case where the Statutory Authorities can be faulted
in any manner. However, Mr. Joshi, learned Counsel points out
several of the deficiencies pointed out by the Statutory Authorities
have been rectified by the petitioner. He points out that if there are
any further deficiencies, the petitioner is willing to rectify the same.
He, however, submits that for this purpose the Statutory Authorities

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are required to inspect the building and point out the petitioner
such deficiencies so that the same could be rectified.

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3. With respect to the aforesaid submission, we direct the Authorities of Mapusa Municipal Council, North Goa Planning and Development Authority and Directorate of Fire and Emergency Services to inspect the petitioner's site within a period of six weeks from today and certify whether there are any deficiencies in the construction put up by the petitioner comprising the Ground plus Five floors. The Authorities should then furnish the petitioner with the list of deficiencies, if any. Mr. Joshi, learned Counsel states that the petitioner will then rectify the deficiencies, if any and once again apply to the Authorities for fresh inspection to ascertain whether such deficiencies are indeed rectified.

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4. The Authorities to give notice of inspection to the petitioner, so that, the petitioner can remain present during the course of the inspection. However, the petitioner, should make it convenient to attend the inspection and not to seek any postponement.

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5. Further, it is clarified that this order has nothing to do with the right of the Municipal Council to hold independent inspection, in case, the Council is in receipt of any complaints regards the construction put up by the petitioner. Obviously, the petitioner cannot obstruct the Council's Officer from holding such inspection.

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6. With the aforesaid orders this petition is disposed of. All
contentions and rights of all the parties are expressly kept open since
we have not adjudicated the issues on merit.

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7. The Intervenors' application is also disposed of, since, even the Intervenors wanted that the Authorities should inspect the premises so that the petitioner is in position to hand over the possession of the premises which he has agreed to sell to them at the earliest.

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8. The Intervenors confirmed that they are not occupying the premises which are agreed to be sold by the petitioner. This statement on behalf of the Intervenors is accepted.

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9. The petition is disposed of in the aforesaid terms.”

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8.Since, the subsequent development as aforesaid has granted the
Petitioner the relief, which he had applied for before the RERA, there is
no need to let this petition remain pending any further. The legal
position concerning the powers vested in RERA to make orders to call for
status reports from authorities is not gone into in this petition and the
same is kept expressly open. According to me, the RERA, in a matter of
this nature, ought not to have rushed to the conclusion that is now
reflected in the order dated 04.01.2021. The contention could certainly
have been gone into in an appropriate case and after bestowing further
consideration, not only to the provisions of the Act, but also precedents
on the subject.

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9.Besides, it is pointed out that the impugned order dated
04.01.2021 has been made only by one of the members of the RERA
when in fact, in terms of section 21 of the said Act, the authority of the
RERA is to consist of a chairperson and not less than two whole term
members being kept by the appropriate authority. Mr. Takkekar pointed
out that regulations have been made, which envisage the delegation of
even adjudicatory powers by the chairperson to any member. He however
fairly pointed out that these regulations entered into force on 08.04.2021
and the order impugned in this case was made by only a single member
on 04.01.2021. Again, this larger issue need not be gone into in this
matter, but this is also yet another reason as to why the view taken in the
impugned order may not be taken as approved by this Court for the
present. The issue as to the nature of powers vested in the RERA is

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therefore kept open to be decided in an appropriate case by RERA itself
as also this Court.

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10.The petition is therefore disposed of. The interim order, if any, is
hereby vacated.

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11. No other issue arose in this petition and therefore, this petition is now disposed of in the aforesaid terms.

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12. Miscellaneous Civil Application No.1386 of 2021 (F) does not survive and hence the same is disposed of.

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13. All concerned to act based on authenticated copy of this order.

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 M.S. SONAK, J.

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jfd/-

Prabhu Constructions, Rep. by Its Prop., Venkatesh Narayan Prabhu Moni v. Jitesh Jivaji Kamat and 4 Ors.

Case brief

What is this about?

What did the court decide?

Prabhu Constructions, Rep. by Its Prop., Venkatesh Narayan Prabhu Moni v. Jitesh Jivaji Kamat and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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