Madrasdated High Court · 2025
Case Details
Cited in this judgment
CRP No. 1788 of 2023PRAYER:- Civil Revision Petition filed under Art. 227 of Constitution of India, praying to o set aside the Docket order in Appeal SR.No. 371 of 2022 dated 26.04.2023 on the file of the Tamil Nadu Real Estate Appellate Tribunal, Chennai. For Petitioners:Mrs.V.SrimathiFor Respondents:Mr.S.Giritharan for R1 to R4ORDERChallenging the docket order passed by Tamil Nadu Real Estate Appellate Tribunal, Chennai in Appeal SR. No.371 of 2022 directing the petitioners to deposit the amount enshrined under Sec.43(5) of the Act, the petitioners/appellants have preferred this Civil Revision Petition. 2. According to the petitioners, they are merely the landowners of the property and they have not taken the cloak of the promoter nor they have dispensed any actions in the capacity of promoter nor they have not partaken in the marketing, registration sales, after sales, construction, procurement of raw materials or any other duty/obligation that is to be undertaken by a promoter as enshrined under Chapter III of the Act. But, the learned appellate authority has 2/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023failed to make a proper distinction on the status of the parties, thereby causing further disadvantage to the petitioners/owners by demanding them to make a pre-deposit to agitate their legitimate rights. Hence, they prayed to set aside the docket order passed in Appeal SR. No. 371 of 2022 dated 26.04.2023. 3. In support of their arguments, the learned counsel relied on the letter and spirit of Sec.43 (5) of RERA Act, which is extracted as hereunder :-“43 Establishment of Real Estate Appellate Tribunal :-..(5) Any person aggrieved by any direction or decision or order made by Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter :Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any or with both, as the case may be, before the said appeal is heard.” 3/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20234. The learned counsel for petitioners would argue that on a harmonious reading of sub-clause and the proviso, it is abundantly clear that the requirement to deposit the money under Sec.43(5) of the Act is to be deposited only by the promoter, but the learned tribunal failed to take cognizance of the same before passing the said order. Hence, he prayed to set aside the docket order. But, the fact reveals that the petitioners 1 to 5 are the landowners (First Parties) of registered landed property bearing Plot Nos.45 to 49, Patta No.971 & 970, Cadstre No.951(p), 949(p), 952(p), Resurvey No.200/1/E/3 and 200/1/E/2 in Ganapaty Nagar of Oulgaret Revenue Village, Puducherry having an area of 9252 sq.ft. or 859.85 sq.mts. So, they have entered into development agreement cum power of attorney on 07.07.2014 with one Srinivasan, Proprietor of M/s.Vishali Constructions (Second Party) and the terms of agreement is as follows :-i.The first parties are entitled to the 10/28 share of the built up are in respect of the permissible in the said land of 9252 sq.ft. and the first parties will be allotted 10 flats with 9 car parking;4/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023ii.The first parties hereby authorise the second party i.e. M/s.Vaishali Constructions to procure the customers for flats and other spaces and to enter into agreement of sale with such customers, collect advances and issue valid receipts to such purchasers of flats in respect of their share of 18/28.iii.The second party shall complete the construction of the 1028 of built up area pertaining to the share of first parties within 20 months from the date of obtaining sanctioned plan.iv.It is agreed by both the parties that till the project is completed and respective flats sold out both the parties will be in joint possession of the scheduled propertyv.The first parties hereby agreed to join as member of the society to be formed by all the flat owners of the building complex, and shall abide by the rules and bye-laws of the society in case the first parties retain anything out of their 10/28 share. 5. Furthermore, they have relied the ratio laid down by the Apex Court in the authorities reported in 2003 (6) SCC cases 675 in the case of Surya Dev Rai vs. Ram Chander Rai and others and reported in 2009 (5) SCC 616 in the case of Radhey Shyam and another vs. Chhabi Nath and others. 5/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20236. Now, the point is to be decided whether the landowners falls under the definition of “promoter” as per Sec.2(zk) of (Regulation and Development) Act, 2016, wherein the Promoter is defined as follows :-“Promoter means,----(i)a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structure thereon; or(iii) Any development authority or any other public body in respect of allottees of --(a) Buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or6/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023(b) Plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or(iv) An apex State level cooperative housing finance society and a primary cooperative housing society, which constructs apartments or buildings for its members or in respect of the allottes of such apartments or buildings; or(v)any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name of claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is development for sale; or(vi) Such other person who constructs any building or apartment for sale to the general public.Explanation : - for the purpose of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the person who sells apartments or plots are different person, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified under this Act or the rules and regulations made thereunder.”7/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20237. Furthermore, the petitioners have relied the proceedings issued by Rajasthan Real Estate Regulatory Authority in respect of categories of Promoters and the Role and Status of Landowner under RERA. In that proceedings, some of the situations narrated, in which landowner is narrated as Promoter and the same is extracted hereunder :-(xvii)While anyone can choose to be and act as a promoter of the project, those covered by the definition of promoter given in Section 2(zk) of the Act have to be necessarily named and treated as promoters. Therefore, if landowner is not always a promoter, the question arises as to what are the situations in which a landowner would stand covered by the definition of promoter given in the Act.(xviii) The two judgments of the Authority and two judgments of the Hon'ble Bombay High Court quoted hereinabove, in which landowner was not taken as a promoter, were based on the premise that, in the facts of the case, the landowner had no role in the construction, development, marketing or sales of the project. However, when, under the development agreement, the landowner himself has some role as a builder, coloniser, 8/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023contractor, developer or estate developer in construction or development of the project, by virtue of sub-clause (v) of clause (zk) of section 2 of the Act, he acts as one of the developer-promoter of the project and has, therefore, to be named and treated as a promoter. And, if the landowner's power of attorney holder acts as a builder, coloniser, contractor, developer or estate developer, in that case, such power of attorney holder becomes one of the developer-promoters of the project and has, therefore, to be named and treated as a promoter......... 8. It is also further revealed that under the Development Agreement, if the landowner himself has some role as a builder, coloniser, contractor, developer or estate developer in construction or development of the project, he acts as one of the developer-promoter of the project. Therefore, his name is to be treated as a promoter, thereby the landowner will be named and treated as a promoter, who will depend on the terms of Development Agreement executed between the builder and the landowner. 9. Considering that, the case in hand, the Development agreement-cum- power of attorney vide document No.233 of 2014 dated 7th July 2014 with 9/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023Srinivasan, Proprietor of M/s. Vaishali Constructions at clause 15 also covenants that “It is agreed by both parties that till the project is completed and respective flats sold out, both parties will be in joint possession of the scheduled property” From the above clause, it is evident that the owners are in possession of the property as the project is incomplete. The landowners also entitled to have 10 flats and 9 nos. belong to their spouses. So, as per clause 20 of the Development agreement, the landowners may either retain his flats or sell the flats at any time, which clearly establish the intention of marketing or selling atleast one of the apartment and other must be used for their own occupation. Therefore, in such circumstances, the landowners also come within the ambit of definition of promoter. Therefore, the Real Estate (Regulation and Development) has been made exhaustive, keeping in mind, the various ingenious methods adopted by owners, builders and promoters in promoting building for sale to third parties. It is a beneficial legislation and it has to be liberally interpreted only in favour of 10/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023the consumer, who is the complainant herein. So, it was the special enactment and it does not exempt the landowners from their liability to comply with the requirement of status. Therefore, if any grievance, the petitioners have to address before the Regulatory Authority under the Act and not before the civil court. So, they have to work out their remedy under the Regulatory Authority as per the provision of law. Moreover, the authorities relied on by the petitioners is not applicable to the facts of the present case. 10. Furthermore, on 26.04.2023 before the Tamil Nadu Real Estate Appellate Tribunal on behalf of these petitioners/respondents 1 to 5, the learned counsel appearing for them sought two weeks time for making pre-deposit as contemplated under Sec.43(5) of the Act. Accordingly, the time was granted to make the pre-deposit and the case was adjourned to 05.06.2023 for reporting compliance. Contrary to the submissions made before Appellate Tribunal, the petitioners have approached this court to set aside the said findings, as such is not maintainable and the Regulatory Authority under the said Act is empowered to take the matter. Hence, this Civil Revision Petition is not maintainable and 11/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023the same is liable to be dismissed. Accordingly, this Civil Revision Petition is dismissed as no merit. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 03.06.2025rppIndex:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/NoTo1. Tamil Nadu Real Estate Appellate Tribunal, Chennai. 2. Section Officer, VR Section, Madras High Court. 12/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023T.V.THAMILSELVI J.rppCRP No. 1788 of 2023AND CMP NO. 11587 OF 2023 03.06.202513/13
CRP No. 1788 of 2023PRAYER:- Civil Revision Petition filed under Art. 227 of Constitution of India, praying to o set aside the Docket order in Appeal SR.No. 371 of 2022 dated 26.04.2023 on the file of the Tamil Nadu Real Estate Appellate Tribunal, Chennai. For Petitioners:Mrs.V.SrimathiFor Respondents:Mr.S.Giritharan for R1 to R4ORDERChallenging the docket order passed by Tamil Nadu Real Estate Appellate Tribunal, Chennai in Appeal SR. No.371 of 2022 directing the petitioners to deposit the amount enshrined under Sec.43(5) of the Act, the petitioners/appellants have preferred this Civil Revision Petition. 2. According to the petitioners, they are merely the landowners of the property and they have not taken the cloak of the promoter nor they have dispensed any actions in the capacity of promoter nor they have not partaken in the marketing, registration sales, after sales, construction, procurement of raw materials or any other duty/obligation that is to be undertaken by a promoter as enshrined under Chapter III of the Act. But, the learned appellate authority has 2/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023failed to make a proper distinction on the status of the parties, thereby causing further disadvantage to the petitioners/owners by demanding them to make a pre-deposit to agitate their legitimate rights. Hence, they prayed to set aside the docket order passed in Appeal SR. No. 371 of 2022 dated 26.04.2023. 3. In support of their arguments, the learned counsel relied on the letter and spirit of Sec.43 (5) of RERA Act, which is extracted as hereunder :-“43 Establishment of Real Estate Appellate Tribunal :-..(5) Any person aggrieved by any direction or decision or order made by Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter :Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least thirty per cent of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any or with both, as the case may be, before the said appeal is heard.” 3/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20234. The learned counsel for petitioners would argue that on a harmonious reading of sub-clause and the proviso, it is abundantly clear that the requirement to deposit the money under Sec.43(5) of the Act is to be deposited only by the promoter, but the learned tribunal failed to take cognizance of the same before passing the said order. Hence, he prayed to set aside the docket order. But, the fact reveals that the petitioners 1 to 5 are the landowners (First Parties) of registered landed property bearing Plot Nos.45 to 49, Patta No.971 & 970, Cadstre No.951(p), 949(p), 952(p), Resurvey No.200/1/E/3 and 200/1/E/2 in Ganapaty Nagar of Oulgaret Revenue Village, Puducherry having an area of 9252 sq.ft. or 859.85 sq.mts. So, they have entered into development agreement cum power of attorney on 07.07.2014 with one Srinivasan, Proprietor of M/s.Vishali Constructions (Second Party) and the terms of agreement is as follows :-i.The first parties are entitled to the 10/28 share of the built up are in respect of the permissible in the said land of 9252 sq.ft. and the first parties will be allotted 10 flats with 9 car parking;4/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023ii.The first parties hereby authorise the second party i.e. M/s.Vaishali Constructions to procure the customers for flats and other spaces and to enter into agreement of sale with such customers, collect advances and issue valid receipts to such purchasers of flats in respect of their share of 18/28.iii.The second party shall complete the construction of the 1028 of built up area pertaining to the share of first parties within 20 months from the date of obtaining sanctioned plan.iv.It is agreed by both the parties that till the project is completed and respective flats sold out both the parties will be in joint possession of the scheduled propertyv.The first parties hereby agreed to join as member of the society to be formed by all the flat owners of the building complex, and shall abide by the rules and bye-laws of the society in case the first parties retain anything out of their 10/28 share. 5. Furthermore, they have relied the ratio laid down by the Apex Court in the authorities reported in 2003 (6) SCC cases 675 in the case of Surya Dev Rai vs. Ram Chander Rai and others and reported in 2009 (5) SCC 616 in the case of Radhey Shyam and another vs. Chhabi Nath and others. 5/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20236. Now, the point is to be decided whether the landowners falls under the definition of “promoter” as per Sec.2(zk) of (Regulation and Development) Act, 2016, wherein the Promoter is defined as follows :-“Promoter means,----(i)a person who constructs or causes to be constructed an independent building or a building consisting of apartments, or converts an existing building or a part thereof into apartments, for the purpose of selling all or some of the apartments to other persons and includes his assignees; or(ii) a person who develops land into a project, whether or not the person also constructs structures on any of the plots, for the purpose of selling to other persons all or some of the plots in the said project, whether with or without structure thereon; or(iii) Any development authority or any other public body in respect of allottees of --(a) Buildings or apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or6/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023(b) Plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or(iv) An apex State level cooperative housing finance society and a primary cooperative housing society, which constructs apartments or buildings for its members or in respect of the allottes of such apartments or buildings; or(v)any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name of claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is development for sale; or(vi) Such other person who constructs any building or apartment for sale to the general public.Explanation : - for the purpose of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the person who sells apartments or plots are different person, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified under this Act or the rules and regulations made thereunder.”7/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 20237. Furthermore, the petitioners have relied the proceedings issued by Rajasthan Real Estate Regulatory Authority in respect of categories of Promoters and the Role and Status of Landowner under RERA. In that proceedings, some of the situations narrated, in which landowner is narrated as Promoter and the same is extracted hereunder :-(xvii)While anyone can choose to be and act as a promoter of the project, those covered by the definition of promoter given in Section 2(zk) of the Act have to be necessarily named and treated as promoters. Therefore, if landowner is not always a promoter, the question arises as to what are the situations in which a landowner would stand covered by the definition of promoter given in the Act.(xviii) The two judgments of the Authority and two judgments of the Hon'ble Bombay High Court quoted hereinabove, in which landowner was not taken as a promoter, were based on the premise that, in the facts of the case, the landowner had no role in the construction, development, marketing or sales of the project. However, when, under the development agreement, the landowner himself has some role as a builder, coloniser, 8/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023contractor, developer or estate developer in construction or development of the project, by virtue of sub-clause (v) of clause (zk) of section 2 of the Act, he acts as one of the developer-promoter of the project and has, therefore, to be named and treated as a promoter. And, if the landowner's power of attorney holder acts as a builder, coloniser, contractor, developer or estate developer, in that case, such power of attorney holder becomes one of the developer-promoters of the project and has, therefore, to be named and treated as a promoter......... 8. It is also further revealed that under the Development Agreement, if the landowner himself has some role as a builder, coloniser, contractor, developer or estate developer in construction or development of the project, he acts as one of the developer-promoter of the project. Therefore, his name is to be treated as a promoter, thereby the landowner will be named and treated as a promoter, who will depend on the terms of Development Agreement executed between the builder and the landowner. 9. Considering that, the case in hand, the Development agreement-cum- power of attorney vide document No.233 of 2014 dated 7th July 2014 with 9/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023Srinivasan, Proprietor of M/s. Vaishali Constructions at clause 15 also covenants that “It is agreed by both parties that till the project is completed and respective flats sold out, both parties will be in joint possession of the scheduled property” From the above clause, it is evident that the owners are in possession of the property as the project is incomplete. The landowners also entitled to have 10 flats and 9 nos. belong to their spouses. So, as per clause 20 of the Development agreement, the landowners may either retain his flats or sell the flats at any time, which clearly establish the intention of marketing or selling atleast one of the apartment and other must be used for their own occupation. Therefore, in such circumstances, the landowners also come within the ambit of definition of promoter. Therefore, the Real Estate (Regulation and Development) has been made exhaustive, keeping in mind, the various ingenious methods adopted by owners, builders and promoters in promoting building for sale to third parties. It is a beneficial legislation and it has to be liberally interpreted only in favour of 10/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023the consumer, who is the complainant herein. So, it was the special enactment and it does not exempt the landowners from their liability to comply with the requirement of status. Therefore, if any grievance, the petitioners have to address before the Regulatory Authority under the Act and not before the civil court. So, they have to work out their remedy under the Regulatory Authority as per the provision of law. Moreover, the authorities relied on by the petitioners is not applicable to the facts of the present case. 10. Furthermore, on 26.04.2023 before the Tamil Nadu Real Estate Appellate Tribunal on behalf of these petitioners/respondents 1 to 5, the learned counsel appearing for them sought two weeks time for making pre-deposit as contemplated under Sec.43(5) of the Act. Accordingly, the time was granted to make the pre-deposit and the case was adjourned to 05.06.2023 for reporting compliance. Contrary to the submissions made before Appellate Tribunal, the petitioners have approached this court to set aside the said findings, as such is not maintainable and the Regulatory Authority under the said Act is empowered to take the matter. Hence, this Civil Revision Petition is not maintainable and 11/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023the same is liable to be dismissed. Accordingly, this Civil Revision Petition is dismissed as no merit. No costs. Consequently, connected Civil Miscellaneous Petition is closed. 03.06.2025rppIndex:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/NoTo1. Tamil Nadu Real Estate Appellate Tribunal, Chennai. 2. Section Officer, VR Section, Madras High Court. 12/13 https://www.mhc.tn.gov.in/judis CRP No. 1788 of 2023T.V.THAMILSELVI J.rppCRP No. 1788 of 2023AND CMP NO. 11587 OF 2023 03.06.202513/13