M/S. GEV PROJECTS V. UNION OF INDIA

WP/33573/2022

AI Insights

The case involves a writ petition filed by a partnership firm, the developer of a residential project, against a notice issued by the RERA authority based on a complaint about structural defects. The petitioner argued that the notice was without jurisdiction as similar complaints were already pending before the Municipal Corporation under the APMC Act. The court, however, held that the RERA authority was competent to issue the notice and that the petitioners could contest the jurisdiction and other objections during the proceedings before the authority.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 741031 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 18-10-2022
• Assessment Year: misc
• Other Referred Cases: K.Jayaram and others vs. Bangalore Development Authority and others
• Laws Referred To: Article 226 of the Constitution of India, Real Estate (Regulation and Development) Act, 2016, A.P Real Estate Regulation and Development Rules, 2017, Andhra Pradesh Municipal Corporation Act, 1965, Indian Partnership Act, 1932
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: T V P SAI VIHARI; B V KRISHNA REDDY
• Assessee Lawyers: V V RAVI PRASAD; AJAY KUMAR
• Keywords: False Declaration; Jurisdiction; Multiplicity of proceedings; Writ of prohibition; Structural Defect
• Section: 48; 11(4); 31; 441; 452(1)

Judgement Text

" THE HON’BLE SRI JUSTICE RAVI NATH TILHARI WRIT PETITION No.33573 of 2022 JUDGMENT:- 1. Heard Sri V.V.Ravi Prasad, learned Senior Advocate, assisted by Sri Ajay Kumar, learned counsel for the petitioners; Sri T.V.P.Sai Vihari, learned counsel for the respondent No.2 and Sri B.V.Krishna Reddy, learned counsel for the respondent No.3. 2. With the consent of the parties counsels, the writ petition is being disposed of finally at this stage. 3. This writ petition under Article 226 of the Constitution of India has been filed for the following relief:- “Therefore, it is prayed that this Hon’ble Court in the interests of justice be pleased to issue an appropriate writ or order or direction more particular in the nature of “Writ of Prohibition” against the 2nd Respondent prohibiting the said authority from proceeding to adjudicate the Complaint No.132/2022 under the provisions of Section 31 of Real Estate (Regulation and Development) Act, 2016 r/w Rule 48 of A.P Real Estate Regulation and Development Rules, 2017, which have been set in motion by issuing notice dated 09.09.2022 based on Complaint of the Respondent as the same is without jurisdiction and in violation of Articles 14, 19 and 21 of the Constitution of India and pass such other order or orders as this Hon’ble 2 Court may deem fit and proper in the circumstances of the case.” 4. Learned Senior Advocate submits that the petitioner No.1 is a registered partnership firm under the Indian Partnership Act, 1932 and is the developer of G.E.V. Radha Madhav Towers, (in short „the Project‟), situated at Pinnamaneni Poly Clinic Road, Vijayawada, which was constructed after obtaining building permission from the Vijayawada Municipal Corporation (for short, “the VMC”) on 25.04.2015 and after the completion of the construction of the project, the VMC issued Occupancy Certificate dated 03.09.2019. However, on the complaint of the respondent No.3, two show cause notices dated 09.07.2022 and 23.07.2022 under sections 452 (1) and 441 of the Andhra Pradesh Municipal Corporation Act, 1965 (in short “the APMC”), respectively were issued to which the petitioners submitted their reply and the matter is pending before the VMC. 5. He further submits that the respondent No.3 further filed complaint under Section 31 of the Real Estate (Regulation and Development) Act, 2016 (for short, “RERA”) read with Rule 48 of A.P. Real Estate (Regulation & Development) Rules, 2017, (in short, the Rules 2017), before the 2nd respondent-Authority, upon which the impugned notice dated 09.09.2022 has been issued to the petitioners in Complaint Case No.132/2022, to 3 answer the complaint. The petitioners have challenged the said notice. 6. Challenging the notice, Sri V.V.Ravi Prasad, learned Senior Advocate raised the following submissions:- i) the impugned notice is without jurisdiction as the respondent No.3 having already filed a complaint before the Municipal Corporation could not legally invoke the jurisdiction of the Authority under the RERA; ii) the multiple proceedings with respect to the same matter cannot be initiated and cannot proceed simultaneously; iii) the respondent No.3 suppressed the material fact of pendency of proceedings before the Municipal Corporation upon his complaint and made false declaration in Para 7 of the complaint before the Authority, that such matter was not pending before any Court of law or any other Authority or any other Tribunal; and iv) the respondent No.3 did not avail the remedy to approach the promoters/the petitioners with respect to the grievances in the complaint in terms of Section 11 (4) of the RERA and if he had so approached his grievances could have been attended but without availing that remedy the respondent No.3 filed the complaint directly before the Authority. 4 7. Learned Senior Advocate relied upon the case of K.Jayaram and others vs. Bangalore Development Authority and others 1 to contend that the multiplicity of proceedings cannot be allowed and his complaint deserved rejection, consequently the impugned notice deserves to be quashed. 8. Sri T.V.P.Sai Vihari, learned counsel for the respondent No.2, submits that on the complaint filed by respondent No.3, the Authority under RERA has only issued the notice, as per the procedure prescribed under Section 38 of the RERA on the facts as disclosed in the complaint. The petitioners have liberty to state their case and to raise all the above objections before the Authority, which shall be duly attended by the Authority in the pending proceedings. 9. Sri B.V.Krishna Reddy, learned counsel for the respondent No.3 submits that being aggrieved from the structural defect etc. the respondent No.3 filed the complaint under RERA, which is maintainable. He further submits that the filing of the complaint/representation before the Municipal Corporation under the A.P.M.C. Act is not a bar for filing a complaint under the RERA before the Authority. 1 2021 SCC online SC 1194 5 10. Having considered the submissions, this Court is of the view that as only notice has been issued to the petitioners by which they are being given opportunity to reply the complaint, and as all the pleas raised by the learned Senior Advocate, can be raised before the Authority under the RERA, it is not a fit case at this stage of the proceedings to invoke the extraordinary writ jurisdiction, particularly when any inherent lack of jurisdiction or any apparent error of jurisdiction in the Authority under RERA in issuing notice to the petitioners on the complaint filed by the respondent No.3 in which the plea inter alia of „structural defect‟, has been raised. 11. It could also not be submitted by the learned Senior Advocate that those pleas as are being raised here or any of them if raised before the Authority, the Authority is not competent to decide the same. 12. The non-disclosure of the proceedings under the Municipal Corporation Act on the complaint of the respondent No.3 and its effect on the complaint before the Authority or filing of false declaration can very well be seen and determined by the Authority itself. 13. There is no dispute on the proposition of law that if the proceedings before a Court or an Authority are without 6 jurisdiction the same may be quashed by this Court in the exercise of writ jurisdiction but such an exercise ordinarily is undertaken in cases where there is lack of inherent jurisdiction in the Authority or there is apparent jurisdictional error in entertaining a complaint in view of the statutory provisions or specific bar in law. 14. In K.Jayaram (supra), the Hon‟ble Apex Court held as under in Para Nos.15 and 16:- “15. In K.D. Sharma v. Steel Authority of India Limited and Others, it was held thus: “34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim. 35. The underlying object has been succinctly stated by Scrutton, L.J., in the leading case of R. v. Kensington Income Tax Commrs.- (1917) 1 KB 486 : 7 86 LJKB 257 : 116 LT 136 (CA) in the following words: (KB p. 514) “… it has been for many years the rule of the court, and one which it is of the greatest importance to maintain, that when an applicant comes to the court to obtain relief on an ex parte statement he should make a full and fair disclosure of all the material facts—it says facts, not law. He must not misstate the law if he can help it—the court is supposed to know the law. But it knows nothing about the facts, and the applicant must state fully and fairly the facts; and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement.” (emphasis supplied) 36. A prerogative remedy is not a matter of course. While exercising extraordinary power a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, “We will not listen to your application because of what you have done.” The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. 37. In Kensington Income Tax Commrs. (supra), Viscount Reading, C.J. observed: (KB pp. 495-96) 8 “… Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent an abuse of its process, to refuse to proceed any further with the examination of the merits. This is a power inherent in the Court, but one which should only be used in cases which bring conviction to the mind of the Court that it has been deceived. Before coming to this conclusion a careful examination will be made of the facts as they are and as they have been stated in the applicant’s affidavit, and everything will be heard that can be urged to influence the view of the Court when it reads the affidavit and knows the true facts. But if the result of this examination and hearing is to leave no doubt that the Court has been deceived, then it will refuse to hear anything further from the applicant in a proceeding which has only been set in motion by means of a misleading affidavit.” (emphasis supplied) 38. The above principles have been accepted in our legal system also. As per settled law, the party who invokes the extraordinary jurisdiction of this Court under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to 9 suppress (keep back) or not to disclose (conceal) other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete (correct) facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible. The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”. 39. If the primary object as highlighted in Kensington Income Tax Commrs.(supra) is kept in mind, an applicant who does not come with candid facts and “clean breast” cannot hold a writ of the court with “soiled hands”. Suppression or concealment of material facts is not an advocacy. It is a jugglery, manipulation, manoeuvring or misrepresentation, which has no place in equitable and prerogative jurisdiction. If the applicant does not disclose all the material facts fairly and truly but states them in a distorted manner and misleads the court, the court has inherent power in order to protect itself and to prevent an abuse of its process to discharge the rule nisi and refuse to proceed further with the examination of the case on merits. If the court does not reject the petition on that ground, the court would be failing in its duty. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” 16. It is necessary for us to state here that in order to check multiplicity of proceedings pertaining to the same subject-matter and more importantly to stop the menace of soliciting inconsistent orders through different judicial 10 forums by suppressing material facts either by remaining silent or by making misleading statements in the pleadings in order to escape the liability of making a false statement, we are of the view that the parties have to disclose the details of all legal proceedings and litigations either past or present concerning any part of the subject-matter of dispute which is within their knowledge. In case, according to the parties to the dispute, no legal proceedings or court litigations was or is pending, they have to mandatorily state so in their pleadings in order to resolve the dispute between the parties in accordance with law.” 15. There cannot be any dispute on the above settled proposition of law, but before applying that law what requires consideration is if both the proceedings, which are under different Act amount to multiplicity of legal proceedings or both can be taken simultaneously, in view the provisions of both the Acts. 16. The submission of the learned counsel for the petitioner is that the Authority has no jurisdiction because the Municipal Corporation is also seized of the matter. The pendency of proceedings before the Municipal Corporation would or would not be a bar to the exercise of jurisdiction by the Authority, is dependent on various factors eg. nature of both the complaints, the reliefs claimed therein and the power or jurisdiction of the Authority, under both the Acts to grant the relief etc; which at 11 the first instance the Authority has to determine, if such an objection is raised before it. At this stage, it cannot be said that the there is lack of inherent jurisdiction in the Authority to issue notice, as it could not be shown that the pendency of the proceedings before the Municipal Corporation creates a statutory bar in filing the complaint before the Authority under RERA and upon it the issuance of notice. 17. With respect to the submission advanced based on Section 11 (4) of the RERA, it could not be shown that the same is a condition precedent to file complaint before the Authority inter alia as regards the complaint of structural defects. Besides the said plea also be considered by the Authority, if so raised. 18. For the aforesaid, this Court is not inclined to entertain the writ petition against the impugned notice, under Article 226 of the Constitution of India which is being disposed of finally, granting liberty to the petitioners to file their response to the complaint, pursuant to the notice, before the Authority, raising inter alia all the pleas as raised in this writ petition, which shall be duly considered and decided by the Authority in accordance with law, with due opportunity to the concerned parties. The plea of lack of jurisdiction in the Authority, if so raised, shall also be considered and decided in accordance with law. No order as to costs. 12 As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed. __________________________ RAVI NATH TILHARI,J Date: 18.10.2022 Note:- Issue C.C in two (02) weeks B/o SCS FFFFFFFFFHGHHHHHHHHHHGGGGGGGFFFKKKKKKKKKK KKKKJJJJJKFDASDFKKKKLKKLHGGGFFFFFFFDSSSSSGG GGGGGGHHHHHGHFSDAFSDAHLFJHSDFJASD 13 THE HON’BLE SRI JUSTICE RAVI NATH TILHARI 302 WRIT PETITION No.33573 of 2022 Date: 18.10.2022 Scs "