Disposed

Kalpesh Mansukhbhai Riyani v. the Collector Vadodara

Gujarat HC11 Dec 2020SCA/10741/2020

Case brief

AI extract

What is this about?

Recovery of a RERA refund award through auction of a builder-partner's personal property was upheld. The auction challenge was dismissed with costs, and the buyer's enforcement petition was disposed of with directions to complete recovery within 30 days. The partner received 30 days to clear the liability and costs.

What did the court decide?

Authorities directed to conclude recovery within 30 days; the builder-partner granted 30 days to discharge the entire liability, including costs.

Kalpesh Mansukhbhai Riyani Vs the Collector Vadodara — Consumer Protection | Gujarat HC (2020)

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C/SCA/21766/2019 CAV JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 21766 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 10741 of 2020

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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AMEYA ANIL JOGLEKAR

Versus

STATE OF GUJARAT

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Appearance:

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AKASH A SINGH(8713) for the Petitioner(s) No. 1 MR MUKESH KUMAR SUDARSHAN(10268) for the Petitioner(s) No. 1 MS HETU M SUDARSHAN(10051) for the Petitioner(s) No. 1 NARENDRA K AMIN(9506) for the Petitioner(s) No. 1 MR BHARAT VYAS, AGP for the Respondent(s) No. 1,2 MR SP MAJMUDAR(3456) for the Respondent(s) No. 4 NOTICE SERVED BY DS(5) for the Respondent(s) No. 3

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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 11/12/2020

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COMMON CAV JUDGMENT

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[1] Pursuant to the order dated 25.09.2020, both the petitions are tagged, to be heard conjointly. Hence, with the request and consent of respective learned advocates appearing for the respective parties, the Court has taken up

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both the petitions together.

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[2] Special Civil Application No.21766 of 2019 is filed under Articles 226 and 227 of the Constitution of India for seeking following reliefs:

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“7. A. To allow this petition;

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B. To issue a writ of mandamus or any other appropriate writ, order or direction to respondent no.2 to furnish detail pertaining to the actions taken with regards to the order passed by respondent no.3 for collecting the arrears of land revenue and remitting the same with Respondent no.3.

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C. To issue a writ of mandamus or any other appropriate writ, order or direction to respondent no.2 and respondent no.3 to remit the amount Rs.28,27,973/- of recovery from one Kalpesh Raiyani to the petitioner.

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D. To issue a writ of mandamus any other appropriate writ, order or direction to respondent no.2 that if the recovery amount is not yet recovered, in such an instance to proceed with the immediate auctioning of the properties owned by one Kalpesh Raiyani and to immediately remit the proceeds to the petitioner via respondent no.3;

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E. To pass such other and further order/s as deemed fit, just and proper by this Hon'ble Court.”

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[3] This petition is based upon a broad premise that the

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petitioner filed a complaint before the Gujarat Real Estate Regulatory Authority Act, 2016 on 28.07.2018 against respondent No.4. Since the Flat, which was booked by the petitioner in Dove Deck Project floated by the contesting respondent herein has not been allotted physically though on 30.03.2016, the allotment letter also came to be issued. It is the case of the petitioner of this petition that on 24.01.2016, Flat No.H/404 in the aforesaid project came to be booked by paying Rs.1 lakh through cheque and later on total sum of Rs.20,84,000/- was paid which was acknowledged by the respondent herein and for this process, the registered agreement to sale came to be executed on 21.05.2016 alongwith construction agreement. Out of total amount of Rs.24,80,000/- related to Flat, the amount of Rs.20,84,000/- already paid but then since “H Block” construction was not over, it was conveyed that the petitioner would be given the Flat in “G Block” and then instead of 2017, possession thereof would now be given by August 2018 but even thereafter also, possession has never been given, as a result of which, the petitioner was constrained to lodge a complaint under the provisions of the Gujarat Real Estate (Regulation and Development) Act, 2016 (to be precise would be indicated as RERA). The said complaint was lodged before the Regulatory Authority set up under the Act and upon receipt of the complaint, the Authority namely the Adjudicating Authority has given more than adequate opportunities to the respondent but conveniently respondent No.4 has never appeared, which

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has ultimately constrained the authority to adjudicate the complaint and the same came to be allowed on 29.10.2018.

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[3.1] While allowing the said complaint of the petitioner, the Adjudicating Officer has directed respondent to refund back the amount of Rs.20,84,000/- with interest @ 8.45% + 2% with effect from 30.03.2016 under Section 18(1)(B) read with Rules 2017. Additionally, under Section 12(2)(P) of the Rules, an amount of Rs.20,000/- came to be awarded by way of mental torture and additional amount of Rs.10,000/awarded since possession has not been given and further amount of Rs.5,000/- by way of compensation is given and these amounts have been ordered to be paid within a period of 2 months from the date of order i.e. on 29.10.2018.

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[3.2] The grievance of the petitioner in this petition is that despite the fact that process of the complaint was served by the Authority to respondent No.4, he has never co-operated and in addition thereto though revenue recovery certificate is also issued by the Authority including notice which has been given on 26.04.2019 but till date the respondent No.4 has never complied with and just whiled away the time and therefore, the petitioner was constrained to approach the Authority but in reality so far no recovery has been effected and therefore, with a view to see that proper steps be taken by the statutory authorities who are otherwise under an obligation to carry out such process, the present petition is submitted for seeking relief, as stated hereinabove.

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[3.3] This petition was filed on 05.12.2019 in which the notice was issued on 11.12.2019 by the co-ordinate Bench of this Court which was directly served upon the respondent but has attained no fruitful result.

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[3.4] Simultaneously, it appears that the moment respondent No.4 came to be aware about the aforesaid facts and the process which has been carried against him for actual implementation of the order, he submitted petition only on 01.09.2020, which is Special Civil Application No.10741 of 2020. This petition is filed by respondent No.4 i.e. Kalpesh Mansukhbhai Riyani on the premise basically that instead of attaching the property in question, the authorities have made an attempt to attach the personal property of him and as such, this step is without the authority of law and as such invoked extraordinary jurisdiction of this Court by filing this subsequent petiton.

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[3.5] A fact deserves to be noted here that this petition is filed not for the purpose of challenging the basis order passed by the RERA and not for Revenue Recovery Certificate but for seeking quashment of auction proceedings undertaken by respondent No.2 and to stall the same. Following are the reliefs prayed for in the petition i.e. Special Civil Application No.10741 of 2020 :

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“24.A) That the Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing

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and setting aside the auction proceedings undertaken by the respondent no.2 as the same is without any authority of law;

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B) That pending the hearing and final of this petition, the Hon'ble Court be pleased to stay further proceedings of auction undertaken pursuant to the notice dated 23.08.2020 by the respondent no.2.

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C) For ad-interim reliefs in terms of prayer B) above;

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D) For such other and further reliefs as the Hon'ble Court may deem just and proper in the facts and circumstances of the case;”

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[3.6] The aforesaid petition is basically circling around the main contention that the recovery certificate issued by the Gujarat Real Estate Regulatory Authority dated 12.06.2019 with respect to the property consisting of Dove Deck Project, admeasuring 5280.38 Sq. Mtrs., situated in Revenue Survey No. - 11 paiki 1, Eastside, Subplot No.4/A, Moje– Sayajipura, Taluka and District Vadodara but authority has chosen to take action against personal property of the petitioner which is beyond jurisdiction of respondent No.2 and to precisely contend that the draft amendment has also been submitted on 23.10.2020. In this petition, the coordinate Bench of this Court was pleased to issue notice and in the meantime, by way of ad-interim relief in terms of paragraph 24(B) was granted ex-parte . But, from the assertion made in the petition, on oath, there appears to be

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no whisper about the earlier petition i.e. Special Civil Application No.21766 of 2019 processed which is already served.

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[3.7] With the aforesaid background of factual details, both the petitions when came up for consideration, a request was made by the learned advocates appearing for the respective parties to take up conjointly in view of the fact that basic grievance is against the very same parties, related to very same basic order and issues are interwoven. Hence, this Court has taken up hearing upon the request of learned advocates appearing for the respective parties.

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[3.8] Since one petition is for the purpose of enforcement essentially and another petition is for the purpose of questioning auction proceedings, Special Civil Application No.10741 of 2020 is treated as a lead matter.

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[4] Mr.Darshan M. Varandani, learned advocate appearing for the petitioner has vehemently contended that on the basis of basic ex-parte order, the auction proceedings have been initiated by the respondent-Authorities which are nothing but examples of arbitrariness against the petitioner. Mr. Varandani, learned advocate has contended that though the order dated 12.06.2019 i.e. the recovery certificate issued by the competent Authority is with respect to property consisting of Dove Deck Project and an attempt is made to attach the residential property of the petitioner and

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this action is without the authority of law. It has also been contended that agreement in question was signed by the petitioner not in his individual capacity but in the capacity as being a partner of the firm and therefore, his personal property cannot be attached or auctioned. Additionally, Mr. Varandani, learned advocate has submitted that Section 155 of the Gujarat Land Revenue Code empowers the Collector to initiate the proceedings and as such, Mamlatdar has no jurisdiction to auction the property and as such the relief prayed for in the petition deserves to be granted.

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[4.1] Mr. Varandani, learned advocate has further contended that upon request of respondent No.3 of the petition (lead matter), no doubt the payment is made by him but upon his request, he was allotted a different Flat from “H Tower” to “G Tower” and has further submitted that the respondent No.3 has never paid full amount and therefore, the petitioner of this petition was constrained to issue even a notice, and hence, the entire initiation of auction against the petitioner’s personal property is without the authority of law. Mr. Varandani, learned advocate has further contended that during the passage of time, the negotiations had taken place but attained no fruitful result and apart from this legal intricacy to put an end to this controversy, the petitioner i.e. Kalpesh Raiyani has personally filed an affidavit in the form of Undertaking tendered on record of the case that if five equal installments are being given, the entire amount mentioned in the revenue recovery certificate

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will be paid by March, 2021 and therefore, has requested to dispose of the petition by granting such relaxations. It has been further contended that the Flat which was booked by respondent No.3 i.e. H1-404 is available now for attachment but is presently under construction and another Flat being G2-1201 in this very project is available as a ready possession, is free from encumbrances and the same can be also attached instead of personal property of the petitioner and therefore, has tendered to this effect an Undertaking on 31.10.2020. By referring to the aforesaid Undertaking, the basic contention was reiterated by the learned advocate for the petitioner but has candidly submitted that the main basic order passed by the Authority under RERA is not questioned and what has been questioned is the auction proceedings initiated by respondent No.2 being without the authority of law and ultimately, has requested the Court to grant equal installments, as stated above. No further submissions have been canvased.

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[5] As against this, Mr.Narendra K. Amin, learned advocate appearing in Special Civil Application No.21766 of 2019, who has also instructions to appear in the lead petition i.e. Special Civil Application No.10741 of 2020 on behalf of the contesting respondent, has vehemently contended that this is nothing but a systematic design to shirk away from the liability. It has been submitted by Mr.Amin, learned advocate that here is the person who invokes extraordinary jurisdiction, has not come with clean

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hands and throughout has chosen not to co-operate with the proceedings either before the RERA or before the Revenue Officers. Time and again, notices have been given but the petitioner of lead petition has just chosen a path of evading liability and as such, no equitable considerations be given to him. Mr.Amin, learned advocate has pointed out that if the petitioner is allowed to keep himself away like this from the liability which crystallized against him, the very purpose and object of Act would be defeated and therefore, also the petition deserves to be dismissed.

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[5.1] Mr.Amin, learned advocate has further submitted that the contention which has been raised that no personal property can be attached of the petitioner of lead petition, has no legs to stand in view of a bare reading of Section 155 of the Gujarat Land Revenue Code and even from the recovery certificate itself. It has been submitted that the initial attempt appears to have been made of such nature but a specific report is reflecting that project has not been completed at all and some 15 Towers are still under construction, out of constructed portion, some 150 family members are actually residing and if the seal is to be applied to the project there will be problems with the persons who are residing. The panchkyas has also been executed in which it has been found that substantially construction is still not completed and as a result of this, since the revenue recovery certificate itself is providing a step to be taken against the residence of the petitioner of

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lead petition, the same was processed and as such there is no irregularity of any nature. A fact is to be mentioned according to Mr.Amin, learned advocate that the main order has not been challenged nor this revenue recovery certificate is questioned by the petitioner. It is only the notice dated 23.08.2020 issued by the respondent No.2 is basically under challenge mainly on the premise that personal property cannot be attached. Mr.Amin, learned advocate has vehemently contended that the petitioner has forgotten the responsibility of partner of a partnership firm. The partnership firm is nothing but a compendious name of persons and therefore, personal responsibility concept is interwoven and as such, it is not open for the petitioner to contend that his personal property cannot be attached. Undisputedly, he happened to be the partner of M/s Om Shiv Builders and he is the signatory to the registered agreement to sale who booked the Flat and it is also not in dispute that an amount of Rs.20,84,000/- is long back paid to the firm. On the contrary, according to Mr.Amin, learned advocate, a person who has paid a sizeable amount was expecting possession of January, 2017, who did not receive the possession and was dragged to the Court for taking back the amount which has been paid and even after this much period nothing is received by the petitioner.

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[5.2] On the contrary, Mr.Amin, learned advocate has drawn the attention of this Court in few circulars issued by the Revenue Department of State of Gujarat dated 11.12.2001,

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25.02.2005 and 02.06.2005 indicating the guidelines in which the revenue recovery is to be effected and additional reliance is placed on a decision delivered on 06.02.2006 in Special Civil Application No.10002 of 2001 and thereby contended that even after the lapse of this much period, the respondent revenue authorities have not auctioned the proceedings, not finalized the recovery certificate though issued way back on 12.06.2019. Mr.Amin, learned advocate has vehemently contended that revenue recovery is to be undertaken as per the scheme of the Act namely the Gujarat Land Revenue Code which is sufficiently investing powers on authority to speed up the recovery but unfortunately, the same has not been undertaken which has constrained his client to submit a petition being Special Civil Application No.21766 of 2019 and as such inaction on the part of the respondent authorities is also deserves to be considered by the Court while dismissing the petition.

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[5.3] Mr.Amin, learned advocate has further vehemently contended that the petitioner of lead petition as habit of evading the responsibility from the beginning not only in the complaint of respondent No.3, he did not remain present throughout but has shown such audacity in several complaints which are brought to the notice of this Court by way of attachment to the affidavit-in-reply from page 93 onwards and thereby has contended that this petitioner is having an incorrigible habit of not co-operating in any form. As a result of this, Mr.Amin, learned advocate has

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submitted that even if an undertaking is filed, the same is merely an eyewash and the said undertaking will not be fulfilled at any cost which attempt would be made by the petitioner and as such has requested the Court not to consider such request of five equal installments.

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[5.4] Mr.Amin, learned advocate has further submitted that the Gujarat Land Revenue Code is complete Code by itself and in view of the guidelines which are issued by various circulars, as stated above, such revenue recovery has to be completed within a specific time schedule and having not maintained the same, some directions are required to be issued so that effective recovery and implementation of certificate can be undertaken. Mr.Amin, learned advocate by pointing out these circumstances has submitted that here is the person whose conduct is self-explanatory and therefore, no equitable extraordinary jurisdiction be exercised in favour of petitioner. In fact, though according to Mr.Amin, learned advocate, the process of earlier petition i.e. Special Civil Application No.21766 of 2019 is already served, there appears to be no whisper about it in the present petition i.e. in the lead matter and has persuaded unilaterally on the basis of suppression of material fact to pass an interim order and therefore also, such conduct is not to be encouraged and petition be dismissed with heavy cost.

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[5.5] Mr.Amin, learned advocate has submitted that

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ultimately if the attempt of the petitioner of this nature is allowed to be operated, the very purpose of the Act would be defeated . Hence, in the absence of any equitable consideration of any nature in favour of the petitioner, the petition be dismissed and while dismissing lead matter, the reliefs prayed for in Special Civil Application No.21766 of 2019 be granted. With these submissions, learned advocate has left it to the discretion of the Court to pass suitable order in the interest of justice.

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[6] Before examining rival submissions first glance deserves to be at the enactment i.e. the Real Estate Regulation and Development Act, 2016 as the same is brought to the statute booked with a specific object. The underlying object of the Act of 2016 is with specific aim which is summarized hereunder:

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“The real estate sector plays a catalytic role in fulfilling the need and demand for housing and infrastructure in the country. While this sector has grown significantly in recent years, it has been largely unregulated, with absence of professionalism and standardisation and lack of adequate consumer protection. Though the Consumer Protection Act, 1986 is available as a forum to they buyers in the real estate market, the recourse in only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardisation has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasised in

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various forums.”

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[7] With the aforesaid object in mind, the relevant provisions are to be taken note of, Chapter II of the Act prescribed Registration of Real Estate Project and Registration of Real Estate Agents, Section 3 deals with prior registration of real estate project with Real Estate regulatory Authority, sub-Section 1 of Section 3 indicates that no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part thereof, without registering the real estate project with the Real Estate Regulatory Authority established set up under the Act. Section 4 deals with the process of application for registration of real estate projects and every promoter is under an obligation to make an application before authority for registration with attached the particulars which are stipulated in this provisions. Sub section 2 is indicating what are the particulars to be supplied by the promoters while seeking registration of the project alongwith all particulars one of the important particulars is the time period within which he undertakes to complete the project or face thereof and also the payment schedule in which he is supposed to maintain since the said particulars are specifically stipulated under the proviso, every promoters is excepted to comply the same. Chapter III deals with functions and duties of promoters, which also cast and obligation upon promoters to maintain the details.

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Sub-section 4 of Section 11 reads as under:

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“(4) The promoter shall--

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(a) be responsible for all obligations, responsibilities and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be:

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Provided that the responsibility of the promoter, with respect to the structural defect or any other defect for such period as is referred to in sub-section (3) of section 14, shall continue even after the conveyance deed of all the apartments, plots or buildings, as the case may be, to the allottees are executed.

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(b) be responsible to obtain the completion certificate or the occupancy certificate, or both, as applicable, from the relevant competent authority as per local laws or other laws for the time being in force and to make it available to the allottees individually or to the association of allottees, as the case may be;

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(c) be responsible to obtain the lease certificate, where the real estate project is developed on a leasehold land, specifying the period of lease, and certifying that all dues and charges in regard to the leasehold land has been paid, and to make the lease certificate available to

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the association of allottees;

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(d) be responsible for providing and maintaining the essential services, on reasonable charges, till the taking over of the maintenance of the project by the association of the allottees;

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(e) enable the formation of an association or society or co-operative society, as the case may be, of the allottees, or a federation of the same, under the laws applicable:

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Provided that in the absence of local laws, the association of allottees, by whatever name called, shall be formed within a period of three months of the majority of allottees having booked their plot or apartment or building, as the case may be, in the project;

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(f) execute a registered conveyance deed of the apartment, plot or building, as the case may be, in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees or competent authority, as the case may be, as provided under section 17 of this Act;

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(g) pay all outgoings until he transfers the physical possession of the real estate project to the allottee or the associations of allottees, as the case may be, which he has collected from the allottees, for the payment of outgoings (including land cost, ground rent, municipal or other local taxes, charges for water or electricity, maintenance charges, including mortgage loan and interest on mortgages or other encumbrances and such

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other liabilities payable to competent authorities, banks and financial institutions, which are related to the project):

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Provided that where any promoter fails to pay all or any of the outgoings collected by him from the allottees or any liability, mortgage loan and interest thereon before transferring the real estate project to such allottees, or the association of the allottees, as the case may be, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges, if any, to the authority or person to whom they are payable and be liable for the cost of any legal proceedings which may be taken therefor by such authority or person;

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(h) after he executes an agreement for sale for any apartment, plot or building, as the case may be, not mortgage or create a charge on such apartment, plot or building, as the case may be, and if any such mortgage or charge is made or created then notwithstanding anything contained in any other law for the time being in force, it shall not affect the right and interest of the allottee who has taken or agreed to take such apartment, plot or building, as the case may be;”

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[8] Section 13 of the Act indicates that no deposit and advance to be taken by promoter without first entering into agreement for sale whereas Section 14 is casting an obligation upon the promoter to adhere to sanction plan and project specifications for the project. Section 15 of the act

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deals with obligations of promoter in case of transfer of a real estate project to a third party whereas Section 16 imposes an obligation upon promoter regarding insurance of real estate project, Section 17 deals with transfer of title, which reads as under:

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“Section 17. Transfer of title.- (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws:

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Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occupancy certificate.

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(2) After obtaining the occupancy certificate and handing over physical possession to the allottees in terms of sub-section (1), it shall be the responsibility of the promoter to handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be,

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as per the local laws:

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Provided that, in the absence of any local law, the promoter shall handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be, within thirty days after obtaining the [completion] certificate.”

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Whereas Section 18 deals with the return of amount and compensation. Since the same is relevant to the issue, is reproduced hereunder:

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“Section 18. Return of amount and compensation.- (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,—

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(a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or

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(b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason,

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he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such

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rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:

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Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.

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(2) The promoter shall compensate the allottees in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under this Act, and the claim for compensation under this subsection shall not be barred by limitation provided under any law for the time being in force.

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(3) If the promoter fails to discharge any other obligations imposed on him under this Act or the rules or regulations made thereunder or in accordance with the terms and conditions of the agreement for sale, he shall be liable to pay such compensation to the allottees, in the manner as provided under this Act.”

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[9] Simultaneously, rights and duties are also prescribed of allottees under Chapter IV of the Act whereas Chapter V deals with the real estate regulatory authority in which Section 31 deals with filing of complaints with authority or adjudicating officer and Section 32 is prescribing the functions of authority for promotion of Real Estate Sector as well as Section 34 of the Act deals with functions of

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authority.

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[10] Section 36 of the Act deals with power to issue interim orders and Section 37 deals with powers of authority to issue directions. Further Section 38 deals with powers of authority whereas Section 40 deals with recovery of interest or penalty or compensation and enforcement of order etc. The other chapters being not relevant to the present controversy in question, the Court deem it not to over burden the present order by incorporating but Chapter VIII of the Act deals with offences, penalties and adjudication. Out of which, Section 59 is incorporating punishment for non-registration under Section 3 whereas Section 60 deals with penalty for contravention of Section 4 of the Act whereas Section 61 deals with the penalty for contravention of other provisions of the Act whereas Section 63 out of other Sections deals with penalty issue for failure to comply with orders of authority by promoter whereas relevant other Sections are indicating the major of penalty appropriately and as such conjoint reading of all these Chapters would indicate that this act is complete code itself.

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[11] One of the issues which has been raised about the personal property not to be attached, the one relevant definition clause deserves to be quoted hereunder. Section 2 (zg) defining “person” which includes even the partnership firm as well, the same reads as under:

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“(zg) “Person” includes,—

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(i) an individual;

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(ii) a Hindu undivided family;

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(iii) a company;

¶148

(iv) a firm under the Indian Partnership Act, 1932 (9 of 1932) or the Limited Liability Partnership Act, 2008 (6 of 2009), as the case may be;

¶149

(v) a competent authority;

¶150

(vi) an association of persons or a body of individuals whether incorporated or not;

¶151

(vii) a co-operative society registered under any law relating to co-operative societies;

¶152

(viii) any such other entity as the appropriate Government may, by notification, specify in this behalf;”

¶153

[12] Now in the background of aforesaid provisions of the act and the procedure prescribed therein if the facts on hand if to be looked into what is emerging is that undisputedly the petitioner of the lead petition is active partner of firm named as M/s Om Shiv Builders which has floated the project which is registered under the provisions of the Act. It is also not in disputed that the present petitioner has signed the registered agreement to sale in specific terms and from the background of fact it further emerges that the payment to the tune of Rs.20,84,000/- is accepted from respondent No.3 while booking the Flat and issuing allotment letter dated 30.03.2016. It is also not in dispute that the “Block H” has never been completed and as such the Flat of “Block G” was supposed to be allotted to respondent No.3 but possession thereof neither being given

¶154

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nor actually handed over physically even by January, 2017 or latested by August, 2018 as indicated in paragraph No.2 of the order reflecting on page 43 and this circumstance has constrained the respondent No.3 to approach the authority set up under RERA Act. Further indicates from the record that though opportunities have been given to defend or to face this complaint, the petitioner has chosen not to approach or co-operated and on the basis of actual analysis of documents in the form of agreement, in the form of receipt and in the form of further particulars, the authority came to a specific conclusion that the petitioner had failed measurably to handover possession of Flat in question and there is a clear attempt to grab the money. It has also been concluded by the adjudicating authority that there is an acknowledgement of Rs.20,84,000/- by the petitioner reflecting in a demand notice dated 22.11.2016 and therefore, upon overall consideration of the material on record, it seems that the adjudicating authority has passed a detail order on 29.10.2018.

¶157

[13] This order has not been projected to have been carried further it seems from the record that the Secretary of Gujarat Real State Regulatory Authority on 12.06.2019 issued a revenue recovery certificate under Section 3 subsection 1. This certificate is indicating that the same is issued with respect to Dove Deck Project and resident of S- 8, Prithvi Apartment, 46, Purushottam Nagar, BPC Road, Akota, Vadodara in view of the order passed by the

¶158

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Adjudicating Authority and as such it is clearly emerging that this revenue recovery certificate is not restricted to only Dove Deck Project property but also with respect to residential property, as indicated therein. This revenue recovery certificates have been sent for onward adjudication for process by chitnis to collector referring to Mamlatdar, Vadodara City within whose jurisdiction, the property is situated. Simultaneously, the Mamlatdar, Vadodara City (Eastern Zone) has also lodged an encumbrance in revenue record as a second note indicating the amount which has been crystallized against the petitioner. Subsequently, an attachment notice has been issued on 26.09.2019 of course indicating about land being /E/Vasi/4192422/2019 dated 09.07.2019 and simultaneously on the very same day, the said notice dated 26.09.2019 is forwarded to the promoter i.e. present petitioner at his residence. In furtherance of this process, on 17.12.2019, the Mamlatdar, Vadodara City (Eastern Zone) found that though the petitioner was served with a specific notice under Section 152 of the Gujarat Land Revenue Code instructing him to pay the amount as indicated but still neither represented nor submitted nor replied to the said notice as has been similarly done in the proceedings before the competent authority and therefore, when after that the petitioner personally approached the authority in which it was informed that other property would be processed for recovery and therefore, the petitioner would not aware about it but has conveniently chosen as it appears not to take any initiation in respect of compliance

¶161

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either of notice or the orders which have been passed. Since Mamlatdar, Vododara City found on the project on physical verification that as many as 15 Towers to be constructed in which 6 Towers are under construction and approximately 150 family members are in possession actually residing and therefore, project property is to be sealed there will be serious hindrance to the people who are residing and further when another property already indicated in the revenue recovery certificate, the same was in the process of being attached strictly in accordance with law and for that also, on 17.12.2019, the petitioner was given an indication that if any objection is there, he may approach the RERA Authority for seeking some relief but on record, there appears to be no such steps or initiation by the petitioner which appears to have led ultimately to finally issue notice dated 23.08.2020. First attempt was vide notice in Form No. U dated 21.08.2020 reflecting on page 20 and only thereafter as it appears that petitioner has awake himself as a last resort and approach this court by way of aforesaid petition which is treated as a lead matter.

¶164

[14] A fact further to be noted is that the petition which has been filed by respondent No.3 being original complainant, the Court issued notice way back on 11.12.2019 and pursuant to the Direct Service, the present petitioner is very much served and affidavit to that effect has also been filed which indicates that the petitioner was aware about the filing of petition by respondent No.3 right from 21.12.2019

¶165

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and it is only when the process has reached to its ultimate stage, the petitioner has invoked extraordinary jurisdiction of this Court by presenting this lead matter on 01.09.2020. From reading of aforesaid petition on oath, it appears that there is no whisper about the petition which has been filed by the respondent No.3 and further on oath, there is no declaration about it while first seeking an order ex-parte on 04.09.2020 and therefore, it appears that not only petitioner has not disclosed the factum of earlier writ which is already served upon him but has also not challenged the order of adjudicating authority in any form. There is no disclosure about what steps have been taken by the petitioner after the complaint having been allowed against him on 29.10.2018 and therefore, here is the petitioner who has thoroughly shown audacity to see that no process of law can reach him.

¶168

[15] Apart from this, it appears from the bare assertion on the body of petition that only substantial issue which has been raised is that the revenue recovery certificate is basically related to the Dove Deck Project and as such personal property cannot be processed and therefore, action of respondent No.2 is without jurisdiction but here also while presenting a draft amendment, the petitioner has not disclosed nor examined minutely that revenue recovery certificate did indicate the residence of the petitioner and as such the contention that the authority has no jurisdiction to deal with the personal property is out of place. On the contrary, the conduct on the part of petitioner in dragging

¶169

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the litigation for a pretty long period, not disclosing the material fact before the Court while seeking an ex-parte interim order and not complying the relevant provisions of the Act which are the circumstances not to be unnoticed by the Court and therefore, while exercising extraordinary jurisdiction, this Court is of the considered opinion that the conduct of the petitioner is not such where any equity to be shown.

¶172

[16] Additionally, the Court is also of the opinion that simply because the petitioner is a partner of partnership firm, his personal property cannot be attached is an illusory submission in view of the concept of responsibility of partner prescribed under the partnership Act. Partnership is nothing but a compendious name of the persons and therefore, the petitioner cannot shirk his responsibility from complying with the liability which crystallized against him way back in October, 2018 and therefore, in the absence of any challenge to the original order, in the absence of any valid submission, this Court is unable to accept the submissions of learned advocate Mr.Varandani in any form.

¶173

[17] In furtherance of aforesaid discussion, here not only the revenue recovery certificate which is undisputedly issued by the competent authority which indicates a residential property as well but apart from that under the provisions of the Gujarat Land Revenue Code, the revenue authorities are sufficiently caused with the powers and bare

¶174

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reading of Section 155 clearly indicates that the Collector may also cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrears is due to be sold. Therefore, when specific powers are there with revenue authority to deal with immovable property other than on which the arrears is due, it cannot be said that the authority is having any lack of jurisdiction. At this stage, the court is mindful of some of the observations made by the High Court in a decision in the case of Arvindkumar M. Choksi versus Sardar Vallabhbhai Sahakari Bank Ltd. And Ors. reported in 1998 1 GLR 154 in which while dealing with Sections 150 and 155 of the Bombay Land Revenue Code, the Court observed that the process of recovery has to be carried out in accordance with the Code itself and on the basis of material available on record, the notice for the purpose of recovery of demand cannot be held to be invalid on hypertechnical ground which has no basis because ultimately Court found that Section 155 does give powers to the Collector to cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrears is due to be sold. That does not mean that arrears which are sought to be recovered as arrears of land revenue will have to be recovered by the Collector and the Collector alone and therefore, based upon such observations, the hypertechnical stand which is tried to be taken has no legs to stand not only on the basis of aforesaid averment but on the basis of plain reading of statutory

¶177

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provisions and the revenue recovery certificate itself. That being the position, the court is of the opinion that no case is made out by the petitioner.

¶180

[18] Apart from this, coming to the alternative submissions of learned advocate Mr.Varandani to grant five equal installments to clear the amount by March, 2021 and for which the Undertaking is submitted on record but the Court is in this peculiar background of fact has much reservation in accepting the same precisely for the reason that right from October 2018 during the adjudicating process as well as till September 2020 no steps have been taken as if clutches of law may not reach to the petitioner. This tendency which has been adopted by the petitioner as is reflecting from the record if to be ignored, the same would defeat the very purpose for which the act is enacted and therefore, in no circumstance such offer having been resisted by the original complaint is possible to be accepted by this court. Additionally, this conduct is also visibly clear from the several documents which are attached to affidavitin-reply filed by respondent No.3 in which on page No.s 93, 99 and 106 are some of the orders in which also the petitioner has adopted a very same approach, has not remained present not cooperated with the process of adjudicating authority and ultimately has led to a situation that the original claimants are dragged for a considerable long time in litigation till to approach this Court for seeking justice. The Court cannot overlook this tendency and

¶181

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conduct of the petitioner while exercising extraordinary jurisdiction.

¶184

[19] And the last in the line is about the revenue recovery process guidelines issued by various circulars by Revenue Department of the State of Gujarat dated 11.12.2001, 25.02.2005 as well as 02.06.2005 which clearly indicate the time schedule in which the process is to be concluded and therefore, while going through the said circulars and in addition to one of the orders which has been pressed into service dated 06.02.2006 passed in Special Civil Application No. 10002 of 2001, the court is of the clear opinion that grievance raised by respondent No.3 in cognate petition being Special Civil Application No.21766 of 2019 is clearly justified and there appears to be a lethargy on the part of revenue officers as well not to complete the process in a time schedule manner. As a result of this, over all consideration of background of facts would lead to a situation that the petitioner of lead petition has miserably failed to convince the Court to grant any relief and to continue whatever relief granted at ex-parte stage in favour of him and therefore, the petition is devoid of merit, the same deserves to be dismissed.

¶185

[20] Simultaneously, the cognate petition which is submitted basically for enforcement of the action of recovering and collecting arrears of land revenue is to be allowed with a specific direction that respondent authorities

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shall be concluded the steps which have already been initiated as early as possible but not later than 30 days in any case and in the premise aforesaid and in view of the fact that meritless petition is brought before the Court on suppression of earlier petition filed by respondent No.3 though process is served and upon consisting conduct which has been reflecting from the record, this Court is of the opinion that this lead petition deserves to be dismissed with a cost of Rs. 1 Lakh, to be paid in addition to the aforesaid liability which has crystallized against the petitioner. While parting with the order, a word of caution is mentioned by this court upon revenue officers to see that whenever such kind of recovery process are to be undertaken they shall keep in mind the guidelines framed by various circulars by the very government to which they are under an obligation to observe such guidelines.

¶189

[21] At this stage, since the petitioner of lead petition has filed an Undertaking before this Court to pay up the amount, the Court in this present scenario and the pandemic situation is inclined to grant 30 days’ time to the petitioner to clear the entire liability which has been crystallized against him including the cost which has been imposed upon by this Court.

¶190

[22] With these observations and directions, present petition i.e. lead matter i.e. Special Civil Application No.10741 of 2020 stands dismissed and in view of the order

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passed in lead matter, Special Civil Application No.21766 of 2019 stands disposed of.

¶194

(ASHUTOSH J. SHASTRI, J)

¶195

DHARMENDRA.

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Page 33 of 33

Kalpesh Mansukhbhai Riyani v. the Collector Vadodara

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Kalpesh Mansukhbhai Riyani v. the Collector Vadodara

Case brief

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