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TMI Blog2020 (7) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... tself, that the appropriate government or the competent authority or any person aggrieved by any direction or order or decision of the authority or the adjudicating officer may prefer an appeal to the appellate tribunal. As per sub- section (2) of Section 44, appeal should be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the authority or the adjudicating officer is received by the appropriate government or the competent authority or the aggrieved person along with accompanied fees. In Bolin Chetia v. Jagdish Bhuyan, [ 2005 (3) TMI 831 - SUPREME COURT ] the apex Court held, in its natural and ordinary meaning the word appeal means a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. In James Joseph v. State of Kerala, [ 2010 (8) TMI 959 - SUPREME COURT ] the apex Court held, an appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal Estate Regulatory Authority, Bhubaneswar, has filed W.P.(C) No. 8158 of 2019 seeking following relief:- 1. Direct the Opposite Party No.2-Odisha Sales Tax Tribunal to discharge its statutory functions under the Real Estate (Regulation and Development) Act, 2016 till the effective functioning of Odisha Real Estate Appellate Tribunal as per Section 45 of Real Estate (Regulation and Development Act, 2016. 2. Direct the Opp. Party No.1 to establish the office of the Odisha Real Estate Appellate Tribunal, and appoint its Judicial and Administrative Members within a period of one month. W.P.(C) No. 11863 of 2019 has been filed by a private limited company, which is a builder and promoter of real estate, seeking following relief:- It is therefore, prayed that this Hon ble Court be pleased to admit the writ petition, issue notice to the Opp. Parties and after hearing the parties further be pleased to stay the Execution case No. 20/2019 pending before the Real Estate Regulatory Authority till admission of the appeal bearing No. 1 of 2019 pending before the Real Estate Appellate Tribunal Cuttack and for which act of kindness petitioner shall be as in duty bound every pray. Similarly, W.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before the Real Estate Appellate Tribunal, which has been registered as Appeal No. 01/2019, but the same could not be taken up because of non-functional of the tribunal and no effective order could be passed. Consequentially, the complainant filed Execution Case No. 20 of 2019 before the RERA for execution of the order passed by the very same authority. 2.3 So far as the fact in W.P.(C) No. 3029 of 2020 is concerned, the petitioner is a real estate company from whom the opposite parties no. 3 and 4 seek for allotment of flats. As the same could not be done, opposite parties no. 3 and 4 filed complaint case, being Complaint Case No. 163/2018, before the RERA, alleging non-compliance of the provisions of the Act, 2016 and consequentially claimed for allotment of flat and payment of interest for delay in completion of the project. On consideration of the same, the RERA allowed such complaint case, vide order dated 27.02.2019, against which though appeal lies to the appellate tribunal, but due to non-functioning of the same, the petitioner filed W.P.(C) No. 10139 of 2019, which was dismissed on 19.06.2019 on the ground that statutory remedy have been provided under the Act, 2016. Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is some delay in implementation thereof. Therefore, some time may be granted to make all endeavor to see that the appellate tribunal can function effectively. 6. This Court heard Mr. M. Agarwal, Mr. D. Nanda and Mr. S. Mohapatra, learned counsel appearing for the respective petitioners in the above noted three writ petitions; and Mr. P.K. Muduli, learned Addl. Government Advocate and Mr. A.K. Ray, learned counsel for the opposite parties; and perused the record. In view of the development taken place during pendency of the writ petition, instead of awaiting for counter affidavit to be filed by the opposite parties in each of the writ petitions, on the basis of the instructions submitted by learned counsel appearing for the State, as well as the affidavit and additional affidavit filed in W.P.(C) No. 11863 of 2019, and with the consent of the learned counsel for the parties, these writ petitions are being disposed of finally at the stage of admission. 7. Before adverting into the merits of the case, it is essential to have a glimpse over the provisions of law governing the field for establishment of the Real Estate Appellate Tribunal. Needless to mention, by an Act of Parliament to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority designated, shall stand transferred to the Regulatory Authority so established and shall be heard from the stage such applications, complaints or cases are transferred. (2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. xxx xxx xxx 43. (1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the (name of the State/Union territory) Real Estate Appellate Tribunal. (2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be. (3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative to Technical Member. (4) The appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) in the case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government, or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government. (2) The Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of High Court or his nominee. (3) The judicial Members and Technical or Administrative Members of the Appellate Tribunal shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department handling Housing and the Law Secretary and in such manner as may be prescribed. 47. (1) The Chairperson of the Appellate Tribunal or a Member of the Appellate Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act. (2) The application for adjudging compensation under sub-section (1), shall be dealt with by the adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days from the date of receipt of the application: Provided that where any such application could not be disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing for not disposing of the application within that period. (3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the attendance of any person acquainted with the facts and circumstances of the case to give evidence or to produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply with the provisions of any of the sections specified in sub-section (1), he may direct to pay such compensation or interest, as the case any be, as he thinks fit in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained under Section 45, the appellate tribunal shall consist of a Chairperson and not less than two whole time Members of which one shall be a judicial member and other shall be a Technical or Administrative Member to be appointed by the appropriate government. As per sub-section (1)(a) of Section 46, a person shall not be qualified for appointment as the Chairperson or a Member of the appellate tribunal, unless he is or has been a Judge of a High Court and in case of Judicial Member, he must have held a judicial office for at least fifteen years or must be a member of the Indian Legal Service and must have held the post of Additional Secretary of that service or any equivalent post, or must be an advocate for at least twenty years with experience in dealing with real estate matters. So far as Technical or Administrative Member is concerned, he must be a person well-versed in the field of urban development, housing, real estate and development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or must have held the post in the Central Government, or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under:- 35. Administrative powers of the Chairperson of the Appellate Tribunal (1) The Chairperson of the Appellate Tribunal shall exercise the following administrative powers namely:- (a) Officiating against sanctioned posts. (b) Authorization of tours to be undertaken by any Member, officer or employee within India. (c) Matters in relation to reimbursement of medical claims. (d) Matters in relation to grant or rejection of leaves. (e) Nominations for attending seminars, conferences and training courses in India. (f) Permission for invitation of guests to carry out training course. (g) Matters pertaining to staff welfare expenses. (h) Sanction or scrapping or write-off of capital assets which due to normal wear and tear have become unserviceable or are considered beyond economical repairs. (i) All matters relating to disciplinary action against any Member, officer or employee. 2. The Chairperson of the Appellate Tribunal shall also exercise such other powers that may be required for the efficient functioning of the Appellate Tribunal and enforcement of the provisions of the Act and the rules and regulations made thereunder. 11. Needless to say that in order to give effect to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authorities from out of the same fund, namely, Real Estate Regulatory Fund. From out of Real Estate Regulatory Fund, independent allocation of funds be made to two separate authorities, namely, RERA and Real Estate Appellate Tribunal to manage their respective institutions in proper perspective to achieve the objectives of the Act, 2016 and the Rules framed thereunder, as the employees of respective institutions are to be paid salaries, allowances and administrative expenses, as due admissible to them, by the respective controlling authority independently. Therefore, the manner in which the State Government proposed to proceed, that is to say, that the funds allocated to Real Estate Regulatory Authority will manage the affairs of the Real Estate Appellate Tribunal cannot have any justification to that extent. Because of constitution of both the forums under the provisions of the Act, 2016, as the appeal lies to the Real Estate Appellate Tribunal against the order passed by the Adjudicating Officer and RERA, both are subordinate to Real Estate Appellate Tribunal. As such, budgetary provisions be made from out of the Real Estate Regulatory Fund and the same be allocated in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt invoking its aid and interposition to redress an error of the Court below. The central idea behind filing of an appeal revolves round the right as contra-distinguished from the procedure laid down therefore. 20. In James Joseph v. State of Kerala, (2010) 9 SCC 642 the apex Court held, an appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. 21. Therefore, if any order passed by the adjudicating officer or by the authority, the same is appealable before Real Estate Appellate Tribunal, which has got right to see its correctness and validity and make a judicial examination of the same and if necessary rectify any possible error in the order under appeal. This being the requirement of law to be discharged by the Real Estate Appellate Tribunal in appeal, it can be said that the RERA and Real Estate Appellate Tribunal are two separate and independent authorities to function independently in accordance with law. Therefore, in view of such position, the financial auton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date. On 17.07.2019 in W.P.(C) No. 11863 of 2019, this Court passed the following order:- Learned Addl. Standing Counsel by producing instruction from H UD Department, Govt. of Orissa submits that for the disclosures therein, it may take some months time for functioning of the appellate forum and the appellate forum can only be made functional after the full infrastructures is provided to it. Shri Behera, learned Standing Counsel is unable to submit to the Court as to what time is required for providing the full infrastructures along with detailed manpower for actual functioning of the appellate forum. He wants some time to obtain such instruction. Matter stands adjourned to 18.7.2019. Instruction in the light of observation be obtained specifically as to what much time will be required to make the appellate forum operational. This Court since finds the appellate forum remains non-functional, for State Govt. not making available the appellate forum to undertake its actual exercise and for the parties suffer on account of closure of the proceeding before the Original authority, in preferring appeal and stay, this Court observes, the parties may file appeal by sending the appeal memo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of Secretary and the Secretary has already started the Office and therefore, there is no difficulty in receiving the appeals through the Secretary of the Odisha Real Estate Appellate Tribunal. So far as the functioning of the appellate authority is concerned, Shri Parija, learned Advocate General submitted that it may take at least four to six weeks time at the minimum for constitution of the Appellate authority and thus requested this Court for granting at least six weeks time for making the appellate authority functional. Considering the submission of Shri Parija, learned Advocate General and going through the Office order, this Court observes, since the Secretary Odisha Real Estate Appellate Tribunal is already appointed and started it s Office, it will be open to the parties to submit Appeal before the Secretary, Odisha Real Estate Appellate Tribunal. For the direction to the parties to file appeal before the Secretary, Odisha Real Estate Appellate Tribunal henceforth, the interim direction by this Court for submitting the appeal before the Joint Secretary, H UD Department, Government of Odisha stands modified accordingly. The interim order passed by this Court earlier s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the Tribunal fully functional, Government has already sanctioned the support staffs and Home Department has been requested vide letter no.1704, 1706, 1708 date 12.09.2019, letter no.2018 date 23.10.2019 UOI No.316 dated 25.10.2019 of H UD Department for posting of staff to OREAT. It is humbly submitted that Home Department is taking necessary steps to appoint the staffs at the earliest. 5. That, it is humbly submitted that a space measuring 6626 sq.ft. has been allotted by General Administration Public Grievance Department at Seventh Floor of A1 Block of Toshali Bhawan, Satya Nagar, Bhubaneswar for establishment of the permanent office of OREAT. It is humbly submitted that Infrastructure Development Corporation of Odisha (IDCO) has been engaged to take up the interior work at Toshali Bhawan. Subsequently, IDCO has submitted a detailed plan and estimate for the renovation and internal work for an amount of Rs. 6,09,46,500/-. It is humbly8 submitted that the work may take some more time to complete. 6. That, it is humbly submitted that in compliance of the orders of the Hon ble High Court of Orissa, Secretary of Odisha Real Estate Regulatory Authority (ORERA) has been designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State prays for short adjournment to file an affidavit in the matter. List this matter on 13.03.2020. Interim order granted earlier will continue till the next date. On 03.03.2020 this Court also passed order in W.P.(C) No. 11863 of 2019 to the following effect:- List this matter on 13.03.2020. Interim order passed earlier shall continue till the next date. On 12.03.2020 this Court passed order in W.P.(C) No. 8158 of 2019 to the following effect:- Heard learned counsel for the parties. List this matter tomorrow(13.03.2020). On 12.03.2020 an additional affidavit has been filed by Sri Sushanta Kumar Mishra, who was working as Joint Secretary to Government, Housing and Urban Development Department, which reads as follows:- 2. That, earlier a status report was filed by way of an affidavit dtd.04.11.2019 as per the direction of this Hon ble Court and the present status report, by way of an affidavit, is being filed to supplement the earlier affidavit filed on behalf of the Principal Secretary, H U.D Department. 3. That, it is humbly submitted that the Odisha Real Estate Appellate Tribunal (OREAT) has already been established vide Notification No.233/date 02.02.2019. The Government has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 7. That, it is humbly submitted that the learned Tribunal further requested H UD Department to move to Government for creation of 8 more posts in three different categories for smooth functioning of the learned Tribunal. Proposal of the learned Tribunal was submitted to Finance Department on 01.01.2020 and Finance Department accorded their concurrence on 20.01.2020 for creation of 5 posts and allowed OREAT to engage 3 Date Entry Operators (DEO) through outsourcing. That, the matter of creation of additional posts was communicated to the learned Tribunal vide Letter no.150, dtd. 24.01.2020 with a request to engage the support staff as per admissibility. Copy of Letter no.150 of H UD Department communicated to OREAT is enclosed wherewith and marked as Annexure-K for kind perusal of the Hon ble Court. 8. That, it is humbly submitted that Government has created 22 posts for the learned Tribunal and allowed them to engage 10 retired group-D employees and 3 DEOs on outsourcing basis. This has brought the total no. of all categories of staff created for the Tribunal to 35. 9. That, it is humbly submitted that when the matter stood thus, the learned Tribunal submitted a proposal for crea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be submitted by the learned Tribunal. Further, in order to ensure immediate functioning of the Tribunal, Principal Secretary, GA PG Department shall place on deputation, 15 employees of the erstwhile OAT to OREAT immediately. The proposal of the Tribunal shall be submitted to Finance Department immediately after its receipt. Copy of the proceedings of the meeting is enclosed herewith and marked as Annexure-N for kind perusal of the Hon ble Court. 12. That, it is humbly submitted that a space, measuring 6626 sq.ft. has been allotted by General Administration Public Grievance Department at Seventh Floor of A1 Block of Toshali Bhawan, Satya Nagar, Bhubaneswar for establishment of the permanent office of OREAT. Infrastructure Development Corporation of Odisha (IDCO) has been engaged in consultation with Chairperson, OREAT to take up the interior work at Toshali Bhawan. Subsequently, IDCO submitted a detailed plan and estimate for the renovation and internal work for an amount of Rs. 6,09,46,500/-. Government had given the Administrative approval to the estimate submitted by IDCO on 29.11.2019. Subsequently, IDCO submitted a revised estimate amounting to Rs. 4,59,68,500/- on 07.01.2020, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing effect:- Additional affidavit filed in Court today is taken on record. Heard learned counsel for the petitioner and Mr. A.K. Parija, learned Advocate General representing the State. In view of the above additional affidavit, list this matter on 23.03.2020 along with W.P.(C) No. 8158 of 2019. Interim order granted earlier will continue till the next date. This Court on 13.03.2020 passed order in W.P.(C) No. 3029 of 2019 to the following effect:- Heard learned counsel for the parties including Mr. A.K. Parija, learned Advocate General. List this matter on 23.03.2020. Interim order granted earlier will continue till the next date. 23. In the meantime, three months have lapsed, but the Real Estate Appellate Tribunal has not functioned, which is causing immense difficulties to the litigants. It is pertinent to mention here that a high level committee meeting was held on 06.03.2020 with regard to various requirements to be fulfilled to make the Real Estate Appellate Tribunal functional and for creation of different posts in the appellate tribunal on restructure and with regard to delay in taking steps for absorption of staff in the appellate tribunal from the erstwhile Odisha Adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re as and when the proposal will be submitted by the Tribunal and their salary and financial benefits should be paid from the funds to be allocated in favour of the Real Estate Appellate Tribunal with separate heads of account. (3) As per the discussions held on 06.03.2020 in the high level committee meeting that there will be creation of different permanent posts in the Real Estate Appellate Tribunal on restructuring of staffing pattern, as agreed, be done. (4) The temporary site allotted in favour of Real Estate Appellate Tribunal to be made ready pending finalization of renovation of the work at the permanent site. (5) The renovation work in permanent site should be expedited and completed within a reasonable time The State-opposite party shall make all endeavour to ensure compliance of each of the directions given above within a period of fifteen days from the date of communication/production of authenticated/certified copy of this judgment so as to enable Real Estate Appellate Tribunal to function smoothly as early as possible in the interest of litigants, as its Chairperson and Members have been appointed long since, failing which it will be construed as contempt of this Cour ..... 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