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2018 DIGILAW 948 (KAR)

Vishwas Bawa Builders, Represented by Its Managing Partner v. State of Karnataka

2018-09-05

B.V.NAGARATHNA

body2018
ORDER : Though this writ petition is listed to consider I.A.Nos.2/2018 and 3/2018, with the consent of learned counsel appearing on both sides, it is heard finally. 2. Petitioner has assailed order dated 29/03/2018 bearing Project No.PR/KN/171230/002602 (Annexure “F”), issued by respondent No.2 - Interim Real Estate Regulatory Authority. By the said order, respondent No.2 - Authority has imposed penalty of 2% of the estimated cost of the project being Rs.18,76,100/as penalty on the petitioner liable to be paid within seven days from the date of communication of the order, if not, application filed by the petitioner seeking registration of its Project “Vishwas Supreme” bearing No. PR/KN/171230/002602, is liable to be rejected automatically from the date of expiry of seven days. Thereafter, action under Section 59(2) of the Real Estate (Regulation and Development) Act, 2016 hereinafter, referred to as “the Act”, for the sake of brevity, shall be initiated. Being aggrieved by the said order, petitioner has preferred this writ petition. 3. Learned counsel for petitioner has made a two fold submission: firstly, he contended that pursuant to the notice issued by respondent - Authority, petitioner appeared before the said authority and the case was posted on 17/02/2018 on which date, petitioner was not present, but the case was thereafter, posted to 26/02/2018 at 3.00 p.m., on which date, a representative of the petitioner appeared and the matter was adjourned to 12/03/2018 and on that day also, there was representation of the petitioner seeking dropping of the penalty proceedings. On 12/03/2018, the matter was reserved for orders. He contended that even prior to that i.e., on 28/03/2018, to be precise, petitioner made an application under Section 151 of CPC, seeking permission to produce additional documents and further, seeking reopening of the said proceeding. The said application was filed in the office of the respondent - Authority. But the same was not put up before the respondent - Authority and on 29/03/2018, which was on a holiday, on account of “Mahaveera Jayanthi”, the impugned order has been passed. On 31/03/2018, when the petitioner sought to enquire about his application, he was informed that no order had been passed in the matter, but on 03/04/2018, petitioner was informed that the order had been passed on 29/03/2018. On 31/03/2018, when the petitioner sought to enquire about his application, he was informed that no order had been passed in the matter, but on 03/04/2018, petitioner was informed that the order had been passed on 29/03/2018. Therefore, the second contention of learned counsel for petitioner is that on 29/03/2018, the impugned order could not have been passed when on 31/03/2018 he was informed that no order had been passed as yet. 4. In the circumstances, petitioner’s counsel submitted that the impugned order may be quashed and an opportunity may be given to the petitioner to make his submission before the respondent - Authority with regard to levy of penalty as against the petitioner. In this regard, he contended that though 31/07/2017 was the last date for submission of application for registration of the project under the provisions of the Act, the said application was made on 27/11/2017 and on 30/12/2017, petitioner’s project has been registered. That a short delay in making the said application has resulted in a huge penalty being levied on the petitioner without giving an opportunity of hearing to the petitioner. Therefore, petitioner has sought for the aforesaid reliefs. 5. Per contra, learned counsel for respondent No.2 - Authority and learned H.C.G.P. appearing for respondent No.1 - State supported the impugned order and contended that levy of penalty on the petitioner is just and proper, as admittedly, there was a delay on the part of the petitioner in making an application seeking registration under Section 3 of the Act. He therefore submitted that there is no merit in the writ petition and the writ petition may be dismissed. 6. The detailed narration of facts and contentions above would not call for reiteration except highlighting the fact that pursuant to notice issued by respondent No.2 - Authority, petitioner appeared before the said Authority on 26/02/2018 and therefore, the case was adjourned to 12/03/2018 on which date the case was reserved for orders. 7. Learned counsel for petitioner submits that there was no effective hearing on 26/02/2018 and that the petitioner intended to submit certain documents and therefore, they filed an application on 28/03/2018. Petitioner expected that the said application would be put up before the authority and an opportunity will be given to the petitioner to make its submission on the additional documents produced by the petitioner. Petitioner expected that the said application would be put up before the authority and an opportunity will be given to the petitioner to make its submission on the additional documents produced by the petitioner. Representative of the petitioner was informed on 31/03/2018 that no order had been passed in the matter and possibly on that premise petitioner was under the impression that a date would be issued for consideration of the applications filed by the petitioner. Petitioner, however, was informed on 03/04/2018 that impugned order had already been passed on 29/03/2018. 8. The point here is with regard to non-consideration of the application filed by the petitioner seeking to produce certain relevant documents before respondent No.2 - Authority in the matter of imposition of penalty on the petitioner. The fact remains that the petitioner had no opportunity to submit on the said application or relevant documents sought to be produced by the petitioner. 9. In the circumstances, petitioner has also contended that levy of penalty to an extent of 2% on the estimated cost of the project is exorbitant as the petitioner’s project has been registered under Section 3(1) of the Act on 30/12/2018. Therefore, petitioner has sought an opportunity for reconsideration of the case in the matter of imposition of penalty on the petitioner. Since he has filed an application seeking reopening of the case on 28/03/2018 and thereafter, on next two dates i.e., 29/04/2018 and 30/04/2018 being public holidays, naturally, petitioner approached office of respondent No.2 - Authority in the matter of consideration of his application filed on 28/03/2018. Had such an opportunity being given to the petitioner possibly, the impugned order would not have been passed. That apart, the impugned order bears date 29/03/2018, which was a public/Government holiday and respondent No.2 - Authority would not have functioned on that date. Further, according to petitioner, on 31/03/2018, he was informed that no such order had been passed and therefore, impugned order could not have been passed on 29/03/2018. 10. For all the aforesaid reasons, impugned order is liable to be quashed and is quashed on the ground that there has been violation of the principles of natural justice in passing the impugned order and the matter is remanded for fresh consideration. 11. 10. For all the aforesaid reasons, impugned order is liable to be quashed and is quashed on the ground that there has been violation of the principles of natural justice in passing the impugned order and the matter is remanded for fresh consideration. 11. Since petitioner and respondent No.2 are represented by their respective counsel, they are directed to appear before the respondent No.2 Authority on 26-09-2018, without expecting any separate notice from the said authority. Respondent No.2 - Authority shall consider the case of the petitioner in accordance with law and pass a speaking order. Writ petition is disposed off in the aforesaid terms. In view of disposal of the writ petition, I.A.Nos.2/2018 and 3/2018 also stand disposed.