The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 21953 of 2023 M/s. Green India Infrastructure and Developers Pvt. Ltd., Bhubaneswar ….. Vs. Petitioner Mr. T. Mishra, Advocate Pragnyabati Lenka & Anr. ….. Opposite Parties CORAM: ACTING CHIEF JUSTICE DR. B.R. SARANGI MR. JUSTICE MURAHARI SRI RAMAN
Decision
ORDER 01.11.2023 Order No. 2 This matter is taken up through hybrid mode. 2. Heard Mr. T. Mishra, learned counsel appearing for the petitioner. 3. The petitioner has filed this writ petition seeking to quash the order dated 03.04.2023 in OREAT Appeal No.59 of 2022 under Annexure-7, by which the Odisha Real Estate Appellate Tribunal, while dismissing the said appeal by confirming the order dated 25.03.2022 passed by the Odisha Real Estate Regulatory Authority, Bhubaneswar, has directed to return Rs.1,43,803/-, out of the statutory amount deposited by the petitioner, to opposite party no.1 and the interest amount accrued thereon in favour of the petitioner on proper identification. 4. Mr. T. Mishra, learned counsel appearing for the petitioner contended that the document, basing upon which the impugned order Page 1 of 5 dated 03.04.2023 has been passed by the Tribunal in OREAT Appeal No.59 of 2022, is not genuine one. Though the petitioner raised objection, the Tribunal did not consider the same Therefore, the said order cannot be sustained in the eye of law. 5. In course of hearing, this Court called upon learned counsel for the petitioner to show the document on the basis of which the Tribunal has passed the impugned order and in which paragraph the petitioner has pleaded its objection in the appeal memo filed before the appellate authority, he failed to do so and on the other hand, he relied upon paragraph-8 of the writ petition, wherein it has been urged that due to personal enmity false cases are being filed. Opposite party no.1 is not a member of the association nor has filed the case on behalf of the association, nor has invested a single pie for repair work of the apartment. The petitioner has done all necessary work as per the requirement and the members also granted receipt as regard to their satisfaction. The said contentions raised in paragraph-8 of the writ petition cannot suffice the purpose. 6. As it appears, the petitioner, being the promoter, filed the appeal against opposite party no.1/allottee with a prayer to set aside the order dated 25.03.2022 passed in Complaint Case No.09 of 2020, by which the Odisha Real Estate Regulatory Authority, Bhubaneswar had directed the petitioner to transfer electric connection in favour of the association of allottees within a period of three months; to obtain ‘OC’ from the competent authority within a period of three months and to hand over a copy of the same to the association of allottees; to handover the documents of title of the land on which the apartment has been built and plan and other documents obtained from the competent authority to the association of allottees within a period of Page 2 of 5 three months; to pay a sum of Rs.1,43,803/- to opposite party no.1 and comply with the order within a period of two months failing which the order shall be enforced as per law. 7. It was argued by the learned counsel appearing for the petitioner before the Tribunal that the petitioner was taking all necessary steps to comply with the order dated 25.03.2022 excepting the direction to pay a sum of Rs.1,43,803/- to opposite party no.1. Therefore, it was argued that such a direction of the Odisha Real Estate Regulatory authority, Bhubaneswar is without any legal foundation and the same should be set aside. 8. As it appears from the record that the complainant/allottee filed the complaint before the Odisha Real Estate Regulatory Authority, Bhubaneswar with a prayer that the promoter although transferred the flat in favour of the complainant and other allottees, but there were number of defects in the construction and drainage system for which there was seepage of water from the roof. Further, the bore well installed in the project was not| functioning properly due to defective submersible motor. There was complete failure of drainage system for which the entire project area was unfit for habitation. Although the matter was repeatedly intimated to the promoter to take steps for repair of the work, it did not pay any heed. Hence, the complainant out of her own fund spent huge amount for repairing the roof of the building along with the system for water and drinking drainage system. Accordingly, she claimed Rs.79,00,000/- from the petitioner towards the expenses incurred by her to take up the repairing work in the project. Accordingly, the matter was heard by the Authority and was disposed of vide order dated 15.02.2021. The Authority did not incline to pass any order directing the promoter to pay any amount, as Page 3 of 5 claimed by the complainant, as no such document was filed before the Authority as evidence. Oral evidence was also not adduced by the complainant in support of such contention. The Tribunal, while hearing the matter in OREAT Appeal No. 17/2021, remitted the matter back to the Authority vide order dated 06.12.2021 to consider the same afresh giving liberty to the parties to produce relevant documents and to adduce evidence in support of their case. The Authority was also directed to pass appropriate order after hearing the matter in full. 9. After remand, the parties produced their respective documents before the authority and argued the case. Learned counsel appearing for the petitioner submitted that opposite party no.1/allottee has failed substantively to establish that she spent such amount of Rs.1,43,803/- in the project towards purchase of materials which was to be considered in the appellate forum. 10. The Tribunal considered the facts of the case and the observation made by the Odisha Real Estate Regulatory Authority, Bhubaneswar in the order dated 25.03.2022 passed in Complaint Case No.09 of 2020 and found that the authority after thorough scrutiny of number of purchase vouchers and other documents, accepted some of the documents to the amount of Rs.1,43,803/- while rejecting the others. On perusal of complaint petition, it is noticed that although the complainant claimed Rs.79 lakhs from the promoter, opposite party no.1 had given calculation that she had spent only Rs.9,29,671/- for the repair work in the project. Thus, the Tribunal did not find any inconsistency or illegality with the order dated 25.03.2022 passed by the Odisha Real Estate Regulatory Authority, Bhubaneswar in Complaint Case No.09 of 2020 and held that the claim of the Page 4 of 5 petitioner to that extent is not acceptable. Thereby, the Tribunal, vide order dated 03.04.2023 dismissed OREAT Appeal No.59 of 2022 with an observation that out of the statutory amount deposited by the petitioner, Rs.1,43,803/- be returned in favour of opposite party no.1 and the interest amount accrued thereon be returned in favour of the petitioner on proper identification. 11. In the above view of the matter, this Court does not find any error in the order dated 03.04.2023 passed by the Odisha Real Estate Appellate Tribunal, Bhubaneswar in OREAT Appeal No.59 of 2022 so as to cause interference at this stage. 12. Accordingly, the writ petition merits no consideration and the same is dismissed. Alok (DR. B.R. SARANGI) ACTING CHIEF JUSTICE (M.S. RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: ALOK RANJAN SETHY Designation: Secretary Reason: Authentication Location: ORISSA HIGH COURT Date: 02-Nov-2023 13:35:49 Page 5 of 5