AI Drafter 
TaxTMI 
TaxTMI 
2020 (7) TMI 841
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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. 2. Direct the Opp. Party No.1 to establish the office of the Odisha Real Estate Appellate Tribunal, and appoint its Judicial and Administrative Members within a period of one month." W.P.(C) No. 11863 of 2019 has been filed by a private limited company, which is a builder and promoter of real estate, seeking following relief:- "It is therefore, prayed that this Hon'ble Court be pleased to admit the writ petition, issue notice to the Opp. Parties and after hearing the parties further be pleased to stay the Execution case No. 20/2019 pending before the Real Estate Regulatory Authority till admission of the appeal bearing No. 1 of 2019 pending before the Real Estate Appellate Tribunal Cuttack and for which act of kindness petitioner shall be as in duty bound every pray." Similarly, W.P.(C) No. 3029 of 2020 has been filed by a builder and promoter of real estate with the following relief:- "It is therefore humbly prayed that, this Hon'ble Court may kindly be g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unal and no effective order could be passed. Consequentially, the complainant filed Execution Case No. 20 of 2019 before the RERA for execution of the order passed by the very same authority. 2.3 So far as the fact in W.P.(C) No. 3029 of 2020 is concerned, the petitioner is a real estate company from whom the opposite parties no. 3 and 4 seek for allotment of flats. As the same could not be done, opposite parties no. 3 and 4 filed complaint case, being Complaint Case No. 163/2018, before the RERA, alleging non-compliance of the provisions of the Act, 2016 and consequentially claimed for allotment of flat and payment of interest for delay in completion of the project. On consideration of the same, the RERA allowed such complaint case, vide order dated 27.02.2019, against which though appeal lies to the appellate tribunal, but due to non-functioning of the same, the petitioner filed W.P.(C) No. 10139 of 2019, which was dismissed on 19.06.2019 on the ground that statutory remedy have been provided under the Act, 2016. Against the said order the petitioner filed W.A. No. 302 of 2019, which is pending. But in the meantime, the petitioner has already preferred statutory appeal before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ely. 6. This Court heard Mr. M. Agarwal, Mr. D. Nanda and Mr. S. Mohapatra, learned counsel appearing for the respective petitioners in the above noted three writ petitions; and Mr. P.K. Muduli, learned Addl. Government Advocate and Mr. A.K. Ray, learned counsel for the opposite parties; and perused the record. In view of the development taken place during pendency of the writ petition, instead of awaiting for counter affidavit to be filed by the opposite parties in each of the writ petitions, on the basis of the instructions submitted by learned counsel appearing for the State, as well as the affidavit and additional affidavit filed in W.P.(C) No. 11863 of 2019, and with the consent of the learned counsel for the parties, these writ petitions are being disposed of finally at the stage of admission. 7. Before adverting into the merits of the case, it is essential to have a glimpse over the provisions of law governing the field for establishment of the Real Estate Appellate Tribunal. Needless to mention, by an Act of Parliament to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or build....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thority designated, shall stand transferred to the Regulatory Authority so established and shall be heard from the stage such applications, complaints or cases are transferred. (2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. xxx xxx xxx 43. (1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the - (name of the State/Union territory) Real Estate Appellate Tribunal. (2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be. (3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative to Technical Member. (4) The appropriate Government of two or more States or Union territories....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and (c) in the case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government, or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government. (2) The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of High Court or his nominee. (3) The judicial Members and Technical or Administrative Members of the Appellate Tribunal shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nomine....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986, on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2) The application for adjudging compensation under sub-section (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application: Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period. (3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adj....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opriate government within a period of one year from the date of coming into force of the Act and to perform the functions assigned to it under the Act. Likewise, Section 2(f) deals with Appellate Tribunal, which is to be established by the appropriate government within a period of one year from the date of coming into force of the Act, in view of the provisions contained under sub- section (1) of Section 43 of the Act itself. As per the provisions contained under Section 45, the appellate tribunal shall consist of a Chairperson and not less than two whole time Members of which one shall be a judicial member and other shall be a Technical or Administrative Member to be appointed by the appropriate government. As per sub-section (1)(a) of Section 46, a person shall not be qualified for appointment as the Chairperson or a Member of the appellate tribunal, unless he is or has been a Judge of a High Court and in case of Judicial Member, he must have held a judicial office for at least fifteen years or must be a member of the Indian Legal Service and must have held the post of Additional Secretary of that service or any equivalent post, or must be an advocate for at least twenty years wi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter referred to "Rules, 2017"). Chapter-VII deals with Real Estate Appellate Tribunal. Rule-32 of the Rules, 2017 deals with categories of officers and employees of the appellate tribunal, which reads as follows:- "The nature and categories of officers and employees of the Tribunal shall be recommended by the Tribunal for consideration of the Government which shall be approved with or without modifications, as the case may be. Rule-35 of the Rules, 2017 reads as under:- "35. Administrative powers of the Chairperson of the Appellate Tribunal - (1) The Chairperson of the Appellate Tribunal shall exercise the following administrative powers namely:- (a) Officiating against sanctioned posts. (b) Authorization of tours to be undertaken by any Member, officer or employee within India. (c) Matters in relation to reimbursement of medical claims. (d) Matters in relation to grant or rejection of leaves. (e) Nominations for attending seminars, conferences and training courses in India. (f) Permission for invitation of guests to carry out training course. (g) Matters pertaining to staff welfare expenses. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mbers, the adjudicating officer and the administrative expenses including the salaries and allowances payable to the officers and other employees of the authority and the appellate tribunal and, as such, the said fund shall be administered by a committee of such members of the authority as may be determined by the Chairperson. But fact remains, since the Real Estate Appellate Tribunal is an independent body from that of Real Estate Regulatory Authority, it has to function independently with the statutory duties assigned to it, thereby, financial autonomy be given to both the independent authorities from out of the same fund, namely, Real Estate Regulatory Fund. From out of Real Estate Regulatory Fund, independent allocation of funds be made to two separate authorities, namely, RERA and Real Estate Appellate Tribunal to manage their respective institutions in proper perspective to achieve the objectives of the Act, 2016 and the Rules framed thereunder, as the employees of respective institutions are to be paid salaries, allowances and administrative expenses, as due admissible to them, by the respective controlling authority independently. Therefore, the manner in which the State Go....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Shaikh, (2003) 8 SCC 50 the apex Court held that the 'appeal' is a proceeding taken to rectify an erroneous decision of a Court by submitting the question to a higher Court. 18. In Bolin Chetia v. Jagdish Bhuyan, (2005) 6 SCC 81 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. 19. In Kamla Devi v. Kushal Kanwar, (2006) 13 SCC 295 the apex Court held, an 'appeal' is the right of entering a superior court invoking its aid and interposition to redress an error of the Court below. The central idea behind filing of an appeal revolves round the right as contra-distinguished from the procedure laid down therefore. 20. In James Joseph v. State of Kerala, (2010) 9 SCC 642 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....N. Mishra, learned Additional Standing Counsel by tomorrow (12th of July, 2019), who is directed to obtain instruction regarding nonfunctioning of the Appellate Authority under the Real Estate (Regulation and Development) Act, 2016 by Monday (15th of July, 2019). It is further directed that there shall be stay of further proceeding in Execution Case No.20/2019 till 16th of July, 2019. List this matter on Tuesday (16th of July, 2019)." On 16.07.2019 in W.P.(C) No. 11863 of 2019, this Court passed the following order:- "Put up this matter tomorrow (17.07.2019) on the request of the learned counsel for the petitioner. Interim order passed earlier shall continue till the next date." On 17.07.2019 in W.P.(C) No. 11863 of 2019, this Court passed the following order:- "Learned Addl. Standing Counsel by producing instruction from H & UD Department, Govt. of Orissa submits that for the disclosures therein, it may take some months time for functioning of the appellate forum and the appellate forum can only be made functional after the full infrastructures is provided to it. Shri Behera, learned Standing Counsel is unable to submit to the Court as to....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hera, learned counsel appearing for the State-opp. parties." On 29.07.2019 in W.P.(C) No. 11863 of 2019, this Court passed the following order:- "'VAKALATNAMA' filed on behalf of the opposite party no.1 in Court today be kept on record. Heard Shri D. Nanda, learned counsel for the petitioner, Shri A. Parija, learned Advocate General of Odisha being assisted by Shri B. Behera, learned Additional Standing Counsel for the State-opposite parties and Shri A.K. Roy, learned counsel for the opposite party no.1. Shri Parija, learned Advocate General by producing a communication along with the Office order before this Court submits that there is already appointment of the Secretary in the Odisha Real Estate Appellate Tribunal. Shri Parija, learned Advocate General further submitted that there is already appointment of Secretary and the Secretary has already started the Office and therefore, there is no difficulty in receiving the appeals through the Secretary of the Odisha Real Estate Appellate Tribunal. So far as the functioning of the appellate authority is concerned, Shri Parija, learned Advocate General submitted that it may take at least four to six weeks ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 3. That, it is humbly submitted that the Odisha Real Estate Appellate Tribunal (OREAT) has already been established vide Notification No.233/date 02.02.2019. The Government has appointed Hon,ble Shri Justice Subash Chandra Parija (Retired Judge), High Court of Orissa as Chairperson of OREAT vide Notification No.241/date 02.02.2019. In pursuance of such notification, Hon'ble Justice Sri Parija assumed office of the Chairperson on dated 06.02.2019. Subsequently, as per recommendation of the Selection Committee headed by Hon'ble Chief Justice of Orissa High Court, Government has appointed two Members of OREAT vide Notification No.1650 dated 05.09.2019. In pursuance of the above notification, Sri Malay Chatterjee assumed office of the Technical/Administrative Member of OREAT on 11.09.2019. Similarly Sri Ishan Kumar Das assumed the office of Judicial Member, OREAT on 12.09.2019. 4. That, it is humbly submitted that in order to make the Tribunal fully functional, Government has already sanctioned the support staffs and Home Department has been requested vide letter no.1704, 1706, 1708 date 12.09.2019, letter no.2018 date 23.10.2019 & UOI No.316 dated 25.10.2019 of H&UD Departme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....9 arising out of the order dated 27.02.2019 passed in C.C. No. 163 of 2018 pending before the Real State Regulatory Authority, Bhubaneswar shall remain stayed." On 20.02.2020 in W.P.(C) No. 3029 of 2020, this Court passed the following order:- "List this matter on 28.02.2020 along with the records of W.P.(C) N o. 11863 of 2019." On 28.02.2020 in W.P.(C) No. 3029 of 2020, this Court passed the following order:- "As requested by Mr. Rath, learned Additional Standing Counsel, list this matter on 3.3.2020 along with the connected records. In the meantime, Mr. Rath is directed to obtain instruction in the matter. Interim order passed earlier shall continue till the next date." This Court also passed the order on 28.02.2020 in W.P.(C) No. 11863 of 2019 to the following effect:- "List this matter on 03.03.2020. Interim order passed earlier shall continue till the next date." On 03.03.2020 this Court passed order in W.P.(C) No. 3029 of 2020 to the following effect:- "Mr. Parija, learned Advocate General appearing for the State prays for short adjournment to file an affidavit in the matter. List this matter ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2019, Letter no.2018 date 23.10.2019 & UOI No.316 dated 25.10.2019 of H&UD Department for posting of staff to OREAT. Home Department regretted appointment/deputation of staff vide their letter no.51322, date 20.11.2019 & 52033, date 25.11.2019 citing the ground of acute shortage of staff and requested H&UD Department to explore alternatives. Copies of the communications made with Home Department and their replies are enclosed herewith and marked as Annexure-B, C, D, E, F, G, H respectively for kind perusal of the Hon'ble Court. 6. That, it is humbly submitted that consequent upon the reply of Home Department, H&UD Department moved Finance Department on 22.12.2019 to allow to engage retired Government employees. Government in Finance Department concurred to such proposal on 23.12.2019. That, the approval was communicated to the learned Tribunal vide H&UD Department Letter no.1, date 01.01.2020 and request was made vide Letter no.4, date 01.01.2020, to initiate the process of engagement of staff to make the Tribunal functional. Copy of letters of H&UD Department communicated to OREAT is enclosed herewith and marked as Annexure-I &J respectively for kind perusal of the Hon'b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y submitted that incompliance of orders of this Hon'ble Court, a High level meeting under the Chairmanship of Chief Secretary was held on date 06.03.2020. The meeting was attended by Principal Secretary, Finance Department, Principal Secretary, Law Department, Principal Secretary, H&UD Department, Registrar, OREAT and other officials associated with the subject. The status of creation of post for Real Estate Appellate Tribunals of 3 states i.e. Tamil Nadu, Bihar & Madhya Pradesh were examined. It was found that government of Tamil Nadu has created 12 posts, Government of Bihar has created 18 posts and Government of Madhya Pradesh has created 49 posts for their respective Tribunals. After detailed deliberation on matters relating to operationalization of Odisha Real Estate Appellate Tribunal, it was decided that the Principal Secretary, Law Department shall co- ordinate with the Tribunal and shall suggest the requirement of creation of any other posts subject to a maximum of 37 posts. He will have the flexibility of interchanging the already approved posts with the posts which might be considered more relevant. He will also suggest the mode of their engagement. Accordingly, Finance ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elying on the additional affidavit which he has filed in Court today in W.P.(C) No.11863 of 2019 submits that the Orissa Real Estate Appellate Tribunal (OREAT) has already been established and the Chairman and other members have also been appointed. He further submits that the space measuring about 6626 sq.ft. has already been allocated at 7th Floor of Block A1, Toshali Bhawan, Bhubaneswar for establishment of permanent office of OREAT. However, for functioning of the Tribunal during the interim period i.e. till the work of the permanent office is completed by IDCO, space measuring about 6158 sq.ft. at 4th Floor in Fortune Towers, Bhubaneswar has also been provided. With regard to posting of the staff, he submits that in order to ensure immediate functioning of the Tribunal, Principal Secretary GA & PG Department shall place on deputation 15 employees of the erstwhile OAT to OREAT immediately. In this background, Mr. Parija prays for short adjournment of the matter. List this matter on 23.03.2020. The opposite party No.1-State is directed to expedite deputation of the staff for immediate functioning of the Tribunal. A free copy of this order be h....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 24. In the aforesaid premises, 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. Keeping all the above aspects in view, this Court deems it just and proper to issue following directions:- (1) 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 the....