Army Welfare Housing Organization (AWHO), rep. by its Managing Director, New Delhi vs Commander N. Koteeswar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Mad) 2913

IN THE HIGH COURT OF JUDICATURE AT MADRAS
T.S.SIVAGNANAM, R.N.MANJULA, JJ.
Army Welfare Housing Organization (AWHO), rep.by its Managing Director, New Delhi-110011 - Appellant
Vs.
Commander N. Koteeswar - Respondent
Civil Miscellaneous Second Appeal Nos.12 to 14 of 2020 and CMP.Nos.3327, 3343, 3379, 3377, 3393, 14208, 14214 and 14217 of 2020
Decided On : 21-01-2021

Advocates:
Advocate Appeared:
For the Appellant : Ms.Aparajitha Viswanath, Mr.R.Ramasubramaniam Raja
For the Respondent: Ms.Varalakshmi

Headnote:
Civil Procedure Code, 1908 - Section 100 - Real Estate (Regulation & Development) Act, 2016 - Section 3(1), 35, 58 - Tamil Nadu Real Estate (Regulation & Development) Rules, 2017 - Rule 4, 2(h)(iii) - Second appeals - Powers of RERA - Power to condone delay - Whether Real Estate Appellate Tribunal erred in deciding on powers of RERA - Whether conditions prescribed in Rule 2(h)(iii) of Tamil Nadu Real Estate (Regulation & Development) Rules, 2017 were satisfied - Whether Real Estate Regulatory Authority (RERA) has power to condone delay - Whether Limitation Act of 1963 is applicable to all special/general legislations unless expressly excluded – Held, court are satisfied that principles of natural justice have been violated, which had been rightly noted by Tribunal in common impugned order - Since Authority had not made any enquiry as required to be done under Section 35 of Act, respective first respondent/allottees/ purchasers have been put to great prejudice - Authority, being first Fact Finding Body, is required to make a thorough probe into matter especially when respective first respondent have taken a categorical stand that project cannot be brought under ambit of Rule 2(h)(iii) of Rules and admittedly, project was not published in list of projects, which are to be construed as not ongoing projects in terms of Rule 2(h)(iii) of Rules - Hence, this Court is of considered view that matter should be remanded to Authority for a fresh decision bearing in mind observations made by this Court in this common judgment - Before parting with case, court wish to observe that appellant is an organization formed by respondents and persons like respondents - Respondents are none other than ex-servicemen, who have served country - Appellant organization appears to have been established to implement projects PAN India for welfare of serving defence personnel as well as retired defence personnel, war widows, etc. As could be seen from letter written by appellant to Authority, they have got a promoter, which is a developer registered in Chennai - Manner, in which, appellant organization should deal with matter is slightly different from how a private promoter/developer would deal with such cases - Second appeals are partly allowed.

JUDGMENT :

T.S.SIVAGNANAM ,J.

These appeals have been filed by the Army Welfare Housing Organization (AWHO) under Section 58 of the Real Estate (Regulation & Development) Act, 2016 (for short, the Act) read with Section 100 of the Civil Procedure Code (CPC) challenging the common impugned order dated 31.10.2019 made respectively in Appeal Nos.56, 54 and 53 of 2019 on the file of the Tamil Nadu Real Estate Appellate Tribunal (Tamil Nadu, Puducherry, Andaman and Nicobar Island), Chennai [for short, the Tribunal] reversing the orders dated 21.5.2019 made respectively in complaint Nos.293, 294 and 291 of 2019 passed by the Tamil Nadu Real Estate Regulatory Authority (Tamil Nadu Andaman & Nicobar Islands), Egmore, Chennai [for brevity, the Authority].

2. By the common impugned order, the Tribunal reversed the orders dated 21.5.2019 passed by the Authority closing the complaints filed by the respective first respondent on the ground that the housing project developed by the appellant in Thazhambur Village, Kancheepuram District was structurally completed under Rule 2(h)(iii) of the Tamil Nadu Real Estate (Regulation & Development) Rules, 2017 (for short, the Rules) and thereby exempting from registration with the Authority and directed the appellant to register the project within 15 days from the date of receipt of the common impugned order dated 31.10.2019.

3. The appeals have been filed by raising the following substantial questions of law:

“i. Whether the Real Estate Appellate Tribunal erred in deciding on the powers of the RERA ?

ii. Whether the conditions prescribed in Rule 2(h)(iii) of the Tamil Nadu Real Estate (Regulation & Development) Rules, 2017 were satisfied?

iii. Whether the Real Estate Regulatory Authority (RERA) has the power to condone delay ? And

iv. Whether the Limitation Act of 1963 is applicable to all special/general legislations unless expressly excluded?”

4. We have heard Ms. Aparajitha Viswanath, learned counsel appearing for the appellant, Mr.R. Ramasubramaniam, Raja, learned counsel appearing for the respective first respondent in all the appeals and Ms.Varalakshmi, learned Standing Counsel for the Authority.

5. The respective first respondent in all these appeals, who are all ex-servicemen, are purchasers of apartments in the project developed by the appellant. They approached the Authority with the complaints stating that the project had to be registered under the provisions of the Act and sought for appropriate directions. The respective first respondent referred to a communication sent by the Principal Secretary to Government, Housing and Urban Development Department and Chairman of the Authority, Chennai to the appellant dated 13.12.2017 stating as follows :

“From

The Principal Secretary to Government, Housing & Urban Development & Chairman, Tamil Nadu Real Estate Regulatory Authority, (TNRERA), 1st Floor, Tower-II, 60 0119.

CMDA, No.1A, Gandhi Irwin Road, Egmore, Chennai-8

M/s.Army Welfare Housing Organization, No.31, Thazambur Village, Near DLF Garden City, Chemmanchery, Chennai

“From

The Principal Secretary to Government, Housing & Urban Development & Chairman, Tamil Nadu Real Estate Regulatory Authority, (TNRERA), 1st Floor, Tower-II, 60 0119.

CMDA, No.1A, Gandhi Irwin Road, Egmore, Chennai-8

M/s.Army Welfare Housing Organization, No.31, Thazambur Village, Near DLF Garden City, Chemmanchery, Chennai

Letter No.TNRERA/396/2017-150

dated 13.12.2017

Sir,

Sub : TNRERA – project registration with RERA – reg.

Ref : (i) Your project at Thazambur Village, Chengalpattu Taluk, Kancheepuram District S.Nos.172/1 and 173.

(ii) CTCP Lr.RoC.No.14084/2017/Spl.Cell dated 20.9.2017

2. The CTCP in the letter cited reported that on inspection, it is noticed that the building is partly completed/ not yet started. Accordingly, your project fall

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