Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on th
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 12:56:44 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P(C) No. 13358 OF 2024 Pabitra Routray …. Petitioner Mr. Tigmanshu Patnaik, Advocate -versus- The Secretary, Odisha Real Estate Regulatory Authority, Bhubaneswar …. Opp. Party CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 27.06.2024 2. 1. This matter is taken up through hybrid mode. 2. Order dated 11th October, 2023 (Annexure-1) passed by the Odisha Real Estate Regulatory Authority (ORERA), Bhubaneswar in Suo Motu Complaint Case No.142 of 2023 is under challenge in this writ petition, whereby holding that the Petitioner is guilty of violation of Section 3 of the Real Estate (Regulation & Development) Act, 2016 (for brevity ‘the Act’), the ORERA imposed a penalty of Rs.20 lakh to be paid within a period of two months. 3. Mr. Patnaik, learned counsel for the Petitioner submits that alleging non-registration of the project, namely “Krishna Sea Sight Resort” at Balia Panda, Puri, a suo motu proceeding under Section 35 read with Section 59 of the Act was initiated against the Petitioner. It is his submission that completion certificate in respect of the project was issued on 8th May, 2015 and the Act came into force on 25th March, 2016. Thus, the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 12:56:44 provision under Section 3 of the Act is not applicable to the instant case. 4. It is his submission that although the Petitioner has an alternative remedy of appeal under the provisions of Act, but in view of ratio decided in the case of Godrej Sara Lee Ltd. –v- Excise and Taxation Officer-cum-Assessing Authority and others, reported in 2023 SCC OnLine SC 95, wherein the Hon’ble Supreme Court held as under: “6. At the end of the last century, this Court in paragraph 15 of the its decision reported in (1998) 8 SCC 1 (Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others) carved out the exceptions on the existence whereof a Writ Court would be justified in entertaining a writ petition despite the party approaching it not having availed the alternative remedy provided by the statute. The same read as under: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; (iii) where the order or the proceedings are wholly without jurisdiction; or (iv) where the vires of an Act is challenged. 7. Not too long ago, this Court in its decision reported in 2021 SCC OnLine SC 884 (Assistant Commissioner of State Tax vs. M/s. Commercial Steel Limited) has reiterated the same principles in paragraph-11.” 5. He, therefore, submits that this writ petition is maintainable as issue of jurisdiction of the ORERA to entertain and adjudicate the suo motu complaint case is under challenge. Although specific objection with regard to jurisdiction of the ORERA was raised, but the same was conveniently avoided to be adjudicated upon by the ORERA. He also drew attention to Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 12:56:44 the provision under Section 3(2)(b) of the Act, which reads as under: 3. Prior registration of real estate project with Real Estate Regulatory Authority. — 1) xxx xxx xxx (2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required— (a) xxx xxx xxx (b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act;” Since the Petitioner received the completion certificate in respect of the project prior to commencement of the Act from the competent authority, no registration of the project under Section 3 (1) of the Act is necessary. As such, the proceeding initiated by the ORERA is without jurisdiction and is vitiated. He, therefore, submits that the impugned order under Annexure- 1 is not sustainable and is liable to be set aside. 6. Taking note of the submission made by Mr. Patnaik, learned counsel for the Petitioner and on perusal of the record, it appears that the Petitioner received the completion certificate in respect of the project on 8th May, 2015 from the registered architect and submitted it to the Vice Chairman, PKDA after depositing requisite fees. The Act came into operation w.e.f. 25th March, 2016. Thus, it prima facie appears that no registration as required under Section 3(1) of the Act was necessary for the instant project. Although the said objection was specifically raised by the Petitioner before the ORERA, but it was not effectively dealt with. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 28-Jun-2024 12:56:44 7. Although it is observed by the ORERA in the impugned order under Annexure-1 that the project is an ongoing one and completion certificate has not been obtained, but the fact remains that the specific objection with regard to receipt of the completion certificate on 8th May, 2015 from the registered architect and submission of the same before the Vice Chairman, PKDA was not taken into consideration by the ORERA. 8. Since the Petitioner has raised issue with regard to jurisdiction of the ORERA to initiate and entertain the complaint, it should have been dealt with taking into consideration the objection raised by the Petitioner. That having not been done, the impugned order under Annexure-1 is not sustainable. 9. Accordingly, the impugned order under Annexure-1 is set aside and the matter is remitted to the Odisha Real Estate Regulatory Authority, Bhubaneswar for fresh adjudication of Suo Motu Complaint Case No.142 of 2023 specifically taking into consideration the objection with regard to receipt of completion certificate by the Petitioner in respect of the instant project on 8th May, 2015 from the registered architect and its submission before the Vice Chairman, PKDA in proper format and giving opportunity of hearing to the parties concerned. 10. With the aforesaid observation and direction, the writ petition is disposed of. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4