0

Alternative Forums doesn’t create legal bar on High Court to exercise jurisdiction. : Patna High Court

The mere existence of alternate forums where the aggrieved party may secure relief does not create a legal bar on a High Court to exercise its writ jurisdiction. It is a factor to be taken into consideration by the High Court amongst several factors. Thus, the mere fact that the High Court at Madras is capable of grant- ing adequate relief to the appellant does not create a legal bar on the Bombay High Court exercising its writ jurisdiction in the present matter, was referred by Justice Ahsanuddin Amanullah of the Patna High Court in the matter of Saurav Kumar Sharma versus State of Bihar [Civil Writ Jurisdiction Case No. 10543 of 2021]

The following order was passed when the petitioner requested relief from RERA,Bihar (hereafter after authority), which took over part in the operating order of 29.04.2021, decided on the question of the title of the applicant’s land for which the family of the petitioner has had an exclusive title and peaceful uninterrupted possession from 1970. The video authority order dated 29/04/2021 directed that, although the builder/ developer had stated that the property belongs to the landowner and that the developer cannot interfere with the title of the land, the hotel should not be demolished and the possession transferred to the developer/builder.But, the Petitioner could not obtain certified copy of the impugned order as the authority is not functioning since 24.04.2021 and will not function till 16 May 2021 due to Covid-19 pandemic restrictions. 

A preliminary objection was raised by the learned RERA Counsel. He submitted that the Court of Appeal could not present the present written petition because the Bihar Real Estate Appeal Tribunal is functional and an appeal against the contested order lies. 

The learned petitioner counsel submitted that the Appellate Tribunal was not fully functional at the time the written petition was filed and that due to its urgency it preferred this written petition. However, the Appellate Tribunal has been submitted that the petitioner may be allowed to go before the Appellate Tribunal in view of the status of the learned RERA Counsel that now worked.

High Court of Appeal. — (1)A person aggrieved by an Appeals Tribunal decision or order may, within 60 days of the date of the Appellate Tribunal’s decision or order, appeal to the High Court on one or more of the grounds specified in Article 100 of the Code of Civil Proceedings, 1908 (5 of 1908.

(2) Any decision or order made with the agreement of the parties shall not be appealed by the Appellate Tribunal.

The reasoning in Lalit Narain Mithila University (supra) has been followed by this Court in Judgement dated 04.03.2021 in Sonalika Rani v The Central Board of Secondary Education, New Delhi & Ors., CWJC No. 8887 of 2020. That apart, Maharashtra Chess Association (supra) has been noticed in Lalit Narain Mithila University (supra).

The second respondent’s argument is misunderstood. The existence, adequate or not, of an alternative remedy does not change the fundamental, ally-discretionary nature of the jurisdiction of the High Court of Justice, and therefore does not create an absolute legal bar for a High Court to exercise its written jurisdiction. The High Court’s decision to examine the facts and circumstances of a specific case shall remain the decision whether or not to take the action of a person in his written jurisdiction.

After going through the arguments on both sides the court held that the written request is disposed to allow the petitioner the freedom to move the Appellate Tribunal under section 44 of the Act to take account of the position of the learned counsellor for RERA that the petitioner is acceptable. Learned petitioner counsel undertakes to do the same within a week of today. Then, within one week of the date of filing of the statutory appeal, the Appellate Tribunal takes up the matter and considers a petitioner’s prayer of interim protection, if brought forward. It is clear that the Court has not examined the merits of the case or examined it.

Click here to read the full judgement

Leave a Reply

Your email address will not be published. Required fields are marked *

Open chat