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Avalon Projects, a Unit of GRJ Distributors & Developers Pvt. Ltd., through its Authorized Signatory Mr. Jasvir Singh, New Delhi v/s Adjudicating Officer, Rajasthan Real Estate Regulatory Authority, Jaipur & Others

    Special Appeal Writ Nos. 708, 709, 714, 715, 716, 717, 718, 719 & 720 of 2021 In Civil Writ Petition Nos. 8063, 8064, 8065, 8066, 8079, 8087, 8088, 8070 & 8072 of 2019

    Decided On, 24 August 2021

    At, High Court of Rajasthan Jaipur Bench

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA & THE HONOURABLE MR. JUSTICE MAHENDAR KUMAR GOYAL

    For the Appellants: Harshal Tholia, Rubal Tholia, Advocates. For the Respondents: ------



Judgment Text

Mahendar Kumar Goyal, J.

Since the issue in all these writ petition is common, they are clubbed together and are being decided by this common order.

Assailing the order dated 2.8.2021 passed by the learned Single Judge, unsuccessful petitioner has preferred these intra court appeals.

The facts in brief are that the respondents no.4 filed their respective complaints against the appellant before the Adjudicating Officer, the Rajasthan Real Estate Regulatory Rajasthan (for brevity-`the AO’) under the provisions of Real Estate (Regulation and Development) Act, 2016 (for brevity-`the Act of 2016’). A preliminary objection as to jurisdiction of the AO to entertain the complaints was raised by the appellant herein; but, the AO directed the appellant to file its reply to the complaint. The aforesaid direction was assailed by the appellant by way of the writ petition which did not find favour with the learned Single Judge.

Assailing the order passed by the learned Single Judge, learned counsel for the appellant, drawing attention of this Court towards various provisions contained in the Act of 2016, such as Section 31, Section 71 and Rule 35 of the Rules of 2017, submitted that the AO did not have jurisdiction to entertain the complaint filed by the respondent no.4 inasmuch the scheme of the Act and the Rules empowers the AO to award compensation and interest only. He contended that the AO has no jurisdiction to pass an order for refund of the amount in favour of a private complainant, a power which rests with the regulating authority only. Learned counsel relied upon the judgement of Hon’ble Supreme Court in the case of Arun Agarwal vs. Nagreeka Exports (P) Ltd. & Anr.-(2002) 10 SCC 101 and a division bench judgement of Hon’ble Punjab and Haryana High Court at Chandigarh in the case of Experion Developers Pvt. Ltd. vs. State of Haryana & Ors., CWP No.38144 of 2018 and other connected matters dated 16.10.2020 in support of his submissions.

Heard learned counsel for the petitioner and perused the record.

A perusal of the order dated 7.7.2021 passed by the AO in the complaints filed by the respondents no.4 reveals that the appellant herein was directed to file reply to the complaints. There has been no adjudication by the AO on the preliminary objection raised by the appellant as to its jurisdiction. Therefore, the prayer made by the appellant in the writ petition to restrain the AO to entertain the complaints filed by the respondents no.4 has rightly not been entertained by the learned Single Judge inasmuch as the AO is yet to take a decision on the objection raised by the appellant as to its jurisdiction. Direction of the AO to the appellant to file reply to the complaints does not amount to assumption of jurisdiction by the AO or rejection of the preliminary objection raised by the appellant. It is well settled principle of law that a Court or a Tribunal or an authority dealing with the inter se rights of the parties to a lis has inherent jurisdiction to decide the question of its own competence/jurisdiction to entertain the lis. A division Bench of the Hon’ble Andhra Pradesh High Court has, in the case of United Steel Allied Industries Pvt. Ltd. vs. Fairgrowth Financial Services Ltd. & Ors.-MANU/AP/0109/1997, held as under:

“10. One of the settled principles of law is that a court, tribunal or authority of limited jurisdiction can decide upon its own jurisdiction and in case it decides wrongly and assumes jurisdiction, the superior court, in exercise of its power of judicial review, can always examine the jurisdictional facts and decide whether the issue of limited jurisdiction has been properly determined by the court, tribunal or authority of limited jurisdiction, or not. This, according to us, should not detain us any further beyond observing that the petitioner, which has received notice from the special court in M.P. No. 68 of 1994, if so advised, can raise objection as to the jurisdiction of the Special Court and the Special Court, as we have noticed above, shall decide upon its own jurisdiction. Learned counsel for the petitioner has, however, stated that in case the issue as to the jurisdiction of the Special Court is not decided as a preliminary issue, there shall be inordinate delay and the petitioner shall suffer a protracted litigation in the Special Court. Ordinarily in matters which are referable to jurisdictional facts and which jurisdictional facts are found connected with the facts in issue otherwise in the proceeding before it, it does not decide the issue of jurisdiction separately and independently. All issues of facts and law in such matters are taken up together and the issue of jurisdiction is decided along with other issues. This, however, does not mean that in a proper case when such court, tribunal or authority is satisfied that the entire matter can be disposed of on the basis of the preliminary issue only, which issue involves a pure question of law, it cannot decide to take up such issue as a preliminary issue. The petitioner, on appearance in response to the notice, can seek hearing on the question of jurisdiction and it shall be for the Special Court to decide whether it shall take it up as a preliminary issue or as one of the issues in the proceeding.”

This Court is in complete agreement with the aforesaid view.

Since the objection of the appellant as to lack of jurisdiction is subjudice before the AO, this Court, in its intra court appellate jurisdiction, refrains itself from expressing any opinion on the issue.

The judgment of the Hon’ble Supreme Court in the case of Arun Agarwal (supra) was rendered in the facts and circumstances whe

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rein the High Court, pending objection of the appellant as to lack of jurisdiction, directed him to furnish security for a sum of Rs.55 lacs by way of bank guarantee failing which there was to be decree for the principal amount of Rs.55 lacks. Since, no such situation is obtaining herein, the same has no applicability in the present case. Similarly, in the case of Experion Developers Pvt. Ltd. (supra), the Division Bench of the Hon’ble Punjab and Haryana High Court was dealing with a concluded issue and hence has no application in the present cases. Resultantly, these appeal specials are dismissed devoid of merit.
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