Dismissed

Smt. Sharda Devi Agrawal v. the Chhattisgarh Real Estate Appellate Tribunal, Raipur

Chhattisgarh HC4 Dec 2023WPC/4404/2023

Case brief

AI extract

What is this about?

The Chhattisgarh High Court dismissed a writ petition filed to set aside an order of the Chhattisgarh Real Estate Appellate Tribunal. The Court held the petition not maintainable as the aggrieved party must file an appeal under Section 58 of the RERA Act, 2016, rather than approaching the High Court via a writ petition.

What did the court decide?

The writ petition is dismissed as not maintainable.

Smt. Sharda Devi Agrawal Vs the… — Constitutional and Fundamental Rights | Chhattisgarh HC (2023)

WPC No. 4404 of 2023

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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WPC No. 4404 of 2023

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Smt. Sharda Devi Agrawal W/o Santosh Kumar Agrawal Aged About 60 Years Through Power Of Attorney Holder Santosh Kumar Agrawal S/o Late Shri J.D. Agrawal, Aged About 65 Years

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Santosh Kumar Agrawal S/o Late Shri J.D. Agrawal, Aged About 65 Years Through Power Of Attorney Holder Santosh Kumar Agrawal S/o Late Shri J.D. Agrawal, Aged About 65 Years

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Both R/o Jai Bharat Rice Mill Parisar, Near Railway Station, Champa, District Janjgir Champa Chhattisgarh.

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---- Petitioners

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Versus

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1. The Chhattisgarh Real Estate Appellate Tribunal, Raipur Raipur, District Raipur Chhattisgarh Through Its Presiding Officer,

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2. President, Real Estate Regulatory Authority, Shastri Chowk, Raipur, Tahsil And District Raipur Chhattisgarh.

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3. R.C.P. Infratech Private Limited (Earlier Name R.C.P. Real Estate Private Limited), Through The Managing Director Mr. Rakesh Pandey S/o Late Mr. R.C. Pandey, Aged About 55 Years, R/o A-5 Anupam Nagar, Raipur Tahsil And District Raipur Chhattisgarh. ---- Respondents

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For Petitioners :- Mr. Amit Kumar, Advocate For Respondent No.3 :- Mr. Shikhar Sharma, Advocate along with Mr. Raghuraj Singh, Advocate

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Hon’ble Shri Justice Naresh Kumar Chandravanshi Order On Board

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04.12.2023

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Heard on admission.

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Petitioners have preferred this instant petition seeking following relief(s)-

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WPC No. 4404 of 2023

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“10.1 That, this Hon’ble Court may kindly be pleased to issue an appropriate writ/ order, thereby setting aside-quashing the impugned order dated 28.7.2023 (Annexure P/1).

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10.2 That, any other relief/ order which may deem fit and just in the facts and circumstances of the case including award of the costs of the petition may be given.”

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Learned counsel for the petitioners would submit that order under challenge wherein the Chhattisgarh Real Estate Tribunal, Raipur vide order dated 28.7.2023 has partly setaside the order dated 26.5.2020 passed in case No. M- PRO-2018-00049 and modified the order passed by the Chhattisgarh Real Estate Authority, Raipur is perverse, hence, the instant petition may be admitted for hearing.

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Per contra , learned counsel for respondent No. 3 would submit that as per provision under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short ‘the Act, 2016’) order passed by the Appellate Tribunal is appealable in the High Court, therefore, this writ petition is not maintainable.

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Considered the facts of the case and taken into consideration submission putforth by both the parties and perused the record with utmost circumspection.

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Sections 57 and 58 of the Act, 2016 read as under:-

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“ 57. Orders passed by Appellate Tribunal to be executable as a decree.- (1) Every order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court.

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(2) Notwithstanding anything contained in subsection (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court.

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58. Appeal to High Court .—(1) Any person aggrieved

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WPC No. 4404 of 2023

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by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908):

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Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

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Explanation.—The expression “High Court” means the High Court of a State or Union territory where the real estate project is situated.

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(2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.”

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Perusal of aforesaid Sections clearly show that any decision or order of the Appellate Tribunal is appealable to the High Court, but, learned counsel for the petitioners has directly filed the instant petition before this Court, instead thereof he should have filed appeal under Section 58 of the Act, 2016, hence, this petition is not maintainable.

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Accordingly, the instant writ petition is dismissed as not maintainable at the motion stage itself. However, liberty is left with the petitioners to avail appropriate remedy available to him under the aforesaid Act.

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Registry is directed to return the certified copy of the impugned order to the learned counsel for petitioners after retaining xerox copy of the same.

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No order as to cost(s).

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SD/-

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( Naresh Kumar Chandravanshi )

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Judge

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Ayushi

Smt. Sharda Devi Agrawal v. the Chhattisgarh Real Estate Appellate Tribunal, Raipur

Case brief

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Smt. Sharda Devi Agrawal v. the Chhattisgarh Real Estate Appellate Tribunal, Raipur

Case brief

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