2020 (7) TMI 841 - HC - Indian Laws

State Government ordered to provide financial autonomy to Real Estate Appellate Tribunal from regulatory fund

Bimalendu Pradhan Versus State of Odisha and another and Hi-Tech Estate & Promoters (P) Ltd. Versus Asis Panda and another

HC directed State Government to provide financial autonomy to Odisha Real Estate Appellate Tribunal by allocating funds from Real Estate Regulatory Fund ... Discharge of statutory functions under the Real Estate (Regulation and Development) Act, 2016 till the effective functioning of Odisha Real Estate Appellate Tribunal as per Section 45 of Real Estate (Regulation and Development Act, 2016 - alleged violations of several provisions of the Real Estate (Regulation and Development) Act, 2016 - grievance made by the petitioners is that due to non-functioning of the Real Estate Appellate Tribunal, they are facing difficulties, for which they have approached this Court by filing these writ applications - HELD THAT:- The legislature has enacted the Act, 2016 and Rules framed thereunder to allow Real Estate Regulatory Authority and Real Estate Appellate Tribunal to act independently in order to achieve the object but not to frustrate the purpose by any means. In view of the provisions contained under Section 44(1) of the Act itself, that the appropriate government or the competent authority or any person aggrieved by any direction or order or decision of the authority or the adjudicating officer may prefer an “appeal” to the appellate tribunal. As per sub- section (2) of Section 44, appeal should be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the authority or the adjudicating officer is received by the appropriate government or the competent authority or the aggrieved person along with accompanied fees. In Bolin Chetia v. Jagdish Bhuyan, [2005 (3) TMI 831 - SUPREME COURT] the apex Court held, in its natural and ordinary meaning the word ‘appeal’ means a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. In James Joseph v. State of Kerala, [2010 (8) TMI 959 - SUPREME COURT] the apex Court held, an ‘appeal’ is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. It is pertinent to mention here that a high level committee meeting was held on 06.03.2020 with regard to various requirements to be fulfilled to make the Real Estate Appellate Tribunal functional and for creation of different posts in the appellate tribunal on restructure and with regard to delay in taking steps for absorption of staff in the appellate tribunal from the erstwhile Odisha Administrative Tribunal - the proposal for giving financial autonomy to the Appellate Tribunal is pending with the government since 20.01.2020. Though reminder has already been issued on 05.05.2020, but no effective steps have been taken till date. It clearly indicates the apathetic attitude of the State Government in not allowing the statutory Appellate Tribunal to function in accordance with law, which itself amounts to causing obstruction in course of administration of justice. This Court is of the considered view that the grievance of the writ petitioners would be meted out in the event Real Estate Appellate Tribunal would be made full functional with the financial autonomy and heads of account by allocating funds from the Real Estate Regulatory Fund as per the budget independently. The State Government is directed to give financial autonomy to the Odisha Real Estate Appellate Tribunal by allocating funds from the Real Estate Regulatory Fund on every year by making suitable budgetary provision along with separate heads of account for smooth management of the said forum, so that it will not cause prejudice to any authority, as the RERA and Real Estate Appellate Tribunal are two separate independent bodies and discharging their duties as per the provisions contained under the Act, 2016 and Rules framed thereunder - Petition allowed. Issues Involved:1. Non-functioning of the Real Estate Appellate Tribunal.2. Financial autonomy and allocation of funds for the Tribunal.3. Absorption and deployment of staff for the Tribunal.4. Establishment and operationalization of the Tribunal's infrastructure.Detailed Analysis:1. Non-functioning of the Real Estate Appellate Tribunal:The core issue across the writ petitions is the non-functioning of the Real Estate Appellate Tribunal, which has resulted in significant difficulties for litigants. The Tribunal, established under the Real Estate (Regulation and Development) Act, 2016, is intended to hear appeals from the Real Estate Regulatory Authority. Despite the appointment of a Chairperson and Members, the Tribunal has not been operational due to various administrative and logistical challenges. The Court noted that the non-functioning of the Tribunal has left parties without a remedy, as appeals cannot be processed, leading to a backlog and hindrance in the administration of justice.2. Financial Autonomy and Allocation of Funds for the Tribunal:The judgment emphasizes the need for financial autonomy for the Real Estate Appellate Tribunal. The Court directed the State Government to allocate funds from the Real Estate Regulatory Fund, ensuring separate budgetary provisions and heads of account for the Tribunal. This financial independence is crucial for the Tribunal to manage its operations effectively and fulfill its statutory duties. The Court highlighted that both RERA and the Tribunal are independent entities and should be funded separately to maintain their autonomy and efficiency.3. Absorption and Deployment of Staff for the Tribunal:The judgment addresses the deployment of staff from the erstwhile Odisha Administrative Tribunal to the Real Estate Appellate Tribunal. The Court directed that these employees be absorbed into the Tribunal's cadre, with their salaries and benefits paid from the allocated funds. The establishment of permanent posts and restructuring of the staffing pattern were also discussed, with instructions to expedite these processes to ensure the Tribunal's smooth functioning.4. Establishment and Operationalization of the Tribunal's Infrastructure:The Court noted the need for adequate infrastructure to make the Tribunal operational. Temporary and permanent office spaces have been identified, with ongoing renovation work. The Court ordered the State Government to expedite the completion of these facilities, ensuring that the Tribunal can function effectively. The judgment stressed the importance of logistical support, including office supplies and maintenance services, to facilitate the Tribunal's operations.Conclusion:The Court issued several directives to the State Government to address the issues hindering the Tribunal's functionality. These include granting financial autonomy, absorbing staff, creating permanent posts, and expediting infrastructure development. The judgment underscores the importance of an operational Real Estate Appellate Tribunal in ensuring justice for litigants in the real estate sector. Failure to comply with these directives within the stipulated timeframe may result in contempt proceedings. The interim orders in related writ petitions will continue until the Tribunal is fully functional.