The Karnataka High court has put aside an order under Justice M Nagaprasanna in M/S. Provident Housing Limited v. Karnataka Real Estate Regulatory Authority & ANR.(Writ Petition No. 18448 of 2021) where the Karnataka Regulatory Authority directed M/S. Provident Housing Limited to refund the amount of an apartment purchaser who seeked refund by filing a complaint to the authority after willingly withdrawing from the contract of sale and accepting the refund amount.

FACTS

The petitioner is a Company incorporated under the Companies Act, 1956 and is engaged in the business of real estate development. Shyama Shetty entered into an agreement with the company for purchase of flat on 10-09-2014 and a construction agreement on the same day comes into effect. The basis of this was a commencement certificate that was issued by the Bangalore Development Authority (‘BDA’ for short) in respect of the purchase in favour of the petitioner.

An application was submitted to BDA on 21.10.2015 for grant of partial occupancy certificate in respect of the project which was scrutinised and the same was granted by the BDA on 18.11.2015. The petitioner later makes another application on 28-03-2017 to the BDA for a second partial occupancy certificate. It is the averment in the petition that when things stood thus, negotiations and discussions were held between the petitioner and the 2nd respondent and later the petitioner gave its willingness to execute the sale deed and hand over possession of flat No.506 pursuant to the said partial occupancy certificate. On 14-05-2017, it appears, the 2nd respondent seeks to cancel the agreement that was entered into between him and the petitioner, on the ground that there was information to him that the land had not been legally acquired by the petitioner for construction of the Apartment complex. The petitioner acceded to the request of the 2nd respondent and cancelled the agreement and the allotment made in favour of the 2nd respondent and also refunded a sum of Rs.17,85,212/- on 04-12-2017 after deduction of cancellation charges and applicable taxes. Long after receipt of the said amount, the 2nd respondent (Shyama Shetty) knocks at the doors of the 1st respondent/Authority(KRERA) by registering a complaint seeking refund of an amount of Rs.6,84,494/- along with interest. the Authority passes the impugned order, on the complaint so made by the 2nd respondent, on 30-09-2020 directing refund of Rs.6,84,494/- to the 2nd respondent within 60 days from 30-09-2020, failing which, it would carry interest at 2% per month. It is this order that drives the petitioner to this Court in the subject petition.

JUDEGMENT

It was noted that The Real Estate (Regulation and Development Act, 2016 (‘the Act’ for short) comes into force on 01-05-2016 and the Rules thereunder were notified on 10-07-2017. Section 84 empowers appropriate Government to make Rules. “Among other things clause (v) of Rule 4 therein exempts rigour of the Act and the Rules where partial occupancy certificate is obtained to the extent of the portion for which occupancy certificate is issued, therefore, the Rule itself recognizes the situation of issuance of partial occupancy certificate on the exemption with the applicability of the Act and the Rules or the conditions stipulated therein. It is in the aforesaid statutory framework the issue in the list is to be considered.”

The court further said “In view of the preceding analysis, more particularly, with regard to the explanation of ‘ongoing project’ under the Rules which exempts application of the Act and the Rules since the project had commenced and partial occupancy certificate was issued prior to coming into force of the Act, the complaint itself was not maintainable before the Authority. Notwithstanding such exemption, the Adjudicating Authority appears to have been swayed by the grievance vented out by the 2nd respondent in entertaining the complaint.” Therefore, the authority lacked jurisdiction when it issued the order, making it legally invalid.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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The Karnataka High Court has said under Justice Krishna S Dixit in Suchitra Cinema and Cultural Academy v. The Commissioner Bangalore Development Authority & ANR.(Writ Petition No. 58854 of 2014) that if a statutory authority uses a wrong terminology while granting concessions, it cannot be used as a ground to revoke that concession if the party itself is not at fault.

FACTS

The difficulty which the petitioner is put to arose because of BDA’s employment of a wrong English word namely, ‘donation’ in a lease transaction and the same having been literally construed by the statutory auditing party, the concession given to the lessee was sought to be revoked.

The Petitioner, a private Trust registered under the provisions of Indian Trusts Act, 1882 is grieving before the Writ Court against the BDA’s Letter dated 19.11.2014 (Annexure-M) whereby it is asked to pay back a sum of Rs.50 Lakh on the ground that such a ‘donation’ could not have been made by the BDA – an authority constituted under the Bangalore Development Authority Act, 1976 whilst renewing lease of the sites in question.

FINDINGS

It was said that the concession was granted on the instructions of the Chief Minister under section 65 of the BDA Act. The BDA later claimed that it being the statutory authority has to function under the provisions of 1976 Act and therefore it cannot undertake any charitable activity like making donation that are not authorized by the statutory scheme. It was also pointed out that the audit objections to the concession granted to the petitioner-lessee in the matter of premium/rentals.

The Court said “The grant of said concession was acted upon by the Petitioner, is also not in dispute. It has been a settled position of law that where a person acts on that representation of another to his prejudice, whatever be the arguable prejudice, ordinarily it is not open to the representer to contend or conduct to the contrary, vide estoppel enacted in section 115 of the 1872 Act.”

JUDGEMENT

The Court clarified that “The BDA could have offered a proper explanation to the auditing party as to what it meant by the word ‘donation’ in the light of transaction in question. However, it did not choose to do that. The auditing party did not solicit explanation from the petitioner, either. Therefore, the contention of BDA Panel Counsel that his client being a statutory authority cannot give any donation to anyone since it has to act as the trustee of the public funds, does not impress the Court, even in the least.”

It was further said “Law abhors approbation & reprobation, in as much as the BDA being a statutory authority answers the description of State under Article 12 of the Constitution of India. The instrumentalities of the State have to conduct themselves with a measure of fairness and justice, in all their actions. However, impugned action falls short of reasonable fairness standards.”

Therefore the petitioner was released from their duty to pay the specified sum as demanded by BDA.

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JUDGEMENT REVIEWED BY VAISHNAVI SINGH

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Addressed plight of kith and kin of missing person; Instructions/guidelines to be adopted by the police officials in the State of Rajasthan laid down: Rajasthan High Court

The Rajasthan High Court passed a judgment on 30-07-2021 in the case of Urmila Devi vs. State of Rajasthan Civil Writ Petition No. 10364/2021. A Division Bench of Sandeep Mehta and Manoj Kumar, JJ., disposed of the petition, observing that the missing person Shri Prem Ratan expired, as a result of being hit by a locomotive on the railway tracks near Sadulpur/Rajgarh.

FACTS OF THE CASE:

The petitioner Urmila Devi has approached this court by way of his habeas corpus petition alleging inter alia that her husband Shri Prem Ratan aged about 72 years went missing on 04-09-2019 and since then, he has been untraceable. She has prayed for a direction to the respondent police authorities to trace out and produce the corpus in this court. Information was received that a dead body of an old man resembling Shri Prem Ratan had been found on the railway tracks by the officials of the GRP, Rajgarh/Sadulpur and an inquest report was registered on relation there to.

Counsel for the petitioner Mr. Gyan Jyoti Gupta, learned submitted that by no stretch of imagination can it be accepted that the man who died by the railway locomotive accident would be the husband of the petitioner herein and thus, the habeas corpus petition is justified.

Counsel for the State Mr. Farzand Ali, submitted that if a comparison of the photograph of the person, appended with the missing person report is made with the colored photographs of the dead body taken by the GRP officials, it would become apparent that the man who was run over by the train was none other than Prem Ratan.

JUDGEMENT:

The court observed that the deceased, whose photographs were taken by the officials of the GRP, Sadulpur was an old aged man with grey hair, a mustache and french beard. As per the photograph, Prem Ratan was having grey hair, a mustache and french beard. The uncanny resemblance of features between the two sets of photographs is too striking so as to be overlooked. The color of mane and facial hair is grey both in the picture annexed with the missing person report and pictures of the dead body. The shape of mustache and beard is identical in both photographs. The fact that Shri Prem Ratan left his house on 04-09-2019 and that the dead body was recovered from a little distance away on the railway tracks on the very next morning also gives rise to an imminent possibility of the dead body being that of Prem Ratan. Thus, we are duly satisfied that the dead body which was found near the railway tracks of Sadulpur was that of Shri Prem Ratan and no one else.

The Court directed “The Director-General of the police shall as far as possible, try to incorporate these principles in the police manual,”

The Court further directed “in all cases of recovery of unidentified dead bodies, the police officials concerned, be it the local police or the railway police officials, immediate efforts shall be made to contact the nearest Medical College/CMHO/Medical Jurist for the purpose of collecting viscera samples from such bodies so that, the same can be preserved for DNA comparison/analysis as and when required.”

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JUDGEMENT REVIEWED BY CHANDANA SHEKAR

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