Santosh T.N. v. Permanent Lok Adalat Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 WA NO. 1090 OF 2020** **WP(C) 14425/2019 OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** SANTHOSH T.N., AGED 53 YEARS S/O. T.K. NARAYANAN, COCHIN PORT EMPLOYEE, R/O. QUARTER NO. E2-139, NAVAL ROAD, WILLINGDON ISLAND, COCHIN-4. BY ADVS. G.KRISHNAKUMAR ANI JOSEPH K.A. ## **RESPONDENTS/RESPONDENTS:** 1 PERMANENT LOK ADALATH ERNAKULAM-682011, REP. BY ITS SECRETARY. 2 V. DEVASIKHAMONY, S/O. VAHNINATHAN, ADVOCATE, AGED 76, R/O. CC. DOOR NO. 6/1668, ANAVATHIL, MATTANCHERRY, KOCHI682 002 3 THRIVIKRAMAN NAMBEESAN, S/O. RAMUNNI NAMBEESAN, AGED 73, CONTRACTOR, R/O. H. NO. 8/1310, PALLIYARAKKAVU ROAD, MATTANCHERRY, KOCHI-682 002 BY ADV SRI.R.VENUGOPAL THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WA NO. 1090 OF 2020 ..2.. ## **'CR'** ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The short question that arises for consideration in this appeal is as to whether the jurisdiction of the Permanent Lok Adalat constituted under the Legal Services Authorities Act, 1987 is ousted by the advent of the Real Estate (Regulation and Development) Act, 2016 (in short, “RERA”) in dealing with matters relating to housing and real estate services. 2. The impugned judgment dated 08.07.2020 rendered by the learned Single Judge in WP(C) No.14425/2019 is the subject matter of challenge in this intra court appeal filed under Section 5(i) of the Kerala High Court Act, 1958. The appellant is the writ petitioner and the respondents are the respondents in the writ petition. 3. The appellant/petitioner has filed the WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** writ petition with the following prayers; “i) Issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exhibit P3 Order of the 1[st] respondent dismissing Exhibit P1 complaint. ii) Issue a writ of mandamus, directing the 1[st] respondent to proceed with Exhibit P1 complaint and to pass an award on merits after hearing the parties, within a time frame to be fixed by this Hon'ble Court.” 4. The facts of the case are as follows; The appellant/petitioner, who is an allottee of a real estate project launched by respondents 2 and 3, entered into an agreement dated 05.02.2015 with respondents 2 and 3 for purchase of 1/5[th] undivided right in the land measuring 2.48 ares comprised in Mattancherry Village for constructing a flat in the proposed apartment complex, having six flats. The total cost for the undivided share of the land and for construction of the flat agreed was Rs.35,50,000/-, out of which, the appellant/ petitioner paid an amount of Rs.14,00,000/- on the date of booking itself. As per the agreement, WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** rest of the amount was agreed to be paid on receipt of a communication expressing readiness to hand over the apartment to the appellant/petitioner. Since respondents 2 and 3 have failed to construct the apartment in terms of the agreement, the appellant/petitioner forced to withdraw from the agreement and a request was made to refund the amount with interest. As there was no response, the appellant/petitioner preferred Ext.P1 complaint as OP No.32/2018 before the first respondent – the Permanent Lok Adalat – under the Legal Services Authorities Act, 1987, (for short, “the Act”) since the disputes relating to “housing and real estate service” come within the purview of “public utility service” under Section 22A of the Act. After hearing the appellant/petitioner, the first respondent passed Ext.P3 order, holding that the first respondent has no jurisdiction to entertain Ext.P1 complaint since RERA came into WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** effect. Aggrieved by Ext.P3 order, the appellant/writ petitioner has approached this Court with the writ petition. The learned Single Judge, after adverting to the facts of the case and hearing the parties, dismissed the writ petition, holding that there is no glaring error of law or fact apparent on the face of record, which justifies an interference with Ext.P3. However, the legal question of concurrent jurisdiction of the Permanent Lok Adalat was left open. Challenging the said judgment of the learned Single Judge, the appellant/petitioner has approached this Court in appeal. 5. Heard Sri.G.Krishnakumar, the learned counsel for the appellant, and Sri.R.Venugopal, the learned counsel for respondents 2 & 3. 6. The learned counsel for the appellant submits that the original dispute relating to “housing and real estate service” was not included under Section 22A of the Act to cloth WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** with the jurisdiction to the first respondent. It is pointed out that as per notification, SO 495(E) published in the gazette dated 16.02.2016, “housing and real estate service” is included within the purview of “public utility service” under Section 22A of the Act. Section 25 of the Act prescribes that the Act is having overriding effect. Hence, the learned counsel for the appellant submits that the first respondent is not justified in dismissing Ext.P1 complaint by Ext.P3 order, stating that the first respondent has no jurisdiction to entertain Ext.P1 because of the coming into force of RERA. 7. To substantiate the submissions, the learned counsel for the appellant places reliance on the decisions of the apex court in **Pioneer Urban Land and Infrastructure Ltd. and another** v. **Union of India and Others** [2019 (8) SCC 416] and **Hamza P.** v. **Canara Bank, Shornur Branch** [2017 (5) KHC 713]. In **Pioneer Urban Land** ( _supra_ ), the apex WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** court considered the issue as to whether an allottee of flat/apartment can avail the remedies available in the Insolvency and Bankruptcy Code and whether it is ousted in view of RERA. It was held therein that under Section 88 of RERA, the provisions of RERA are in addition to and not in derogation of the provisions of any other law for the time being in force and under Section 89, RERA is to have effect notwithstanding anything inconsistent contained in any other law for the time being in force and that the remedies that given to the allottees of flats and apartments are, therefore, concurrent remedies and such allottees are in a position to avail of the remedies under RERA as well as the triggering of the Code. The apex court, therefore, held that such allottees can invoke the remedy under Section 88 of RERA. 8. The learned counsel for the appellant submits that Section 79 of RERA has two limbs, out of which, the first limb only ousts the WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** jurisdiction of civil courts and the second limb deals with the power of court or authority to grant injunction in respect of any action taken or to be taken under RERA. It is further pointed out that the first respondent constituted under Section 22B of the Act is not a civil court and hence, it will not come within the first limb of Section 79 of RERA. Therefore, according to the learned counsel, the first respondent can entertain Ext.P1 complaint. 9. The learned counsel for respondents 2 & 3 submits that the first respondent rejected Ext.P1 complaint on the finding that it has no jurisdiction to entertain the same since RERA came into force. The learned counsel places reliance on **Neelkamal Realtors Suburban Pvt. Ltd. & Another** v. **Union of India & Others** [2018 KHC 3034]. 10. In order to consider the issue in detail, it is relevant to extract Section 79 of RERA, WA NO. 1090 OF 2020 **==> picture [31 x 8] intentionally omitted <==** which reads as follows; 79. Bar of jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. On a reading of Section 79 of RERA, it is seen that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter, which the authority or the adjudicating officer or the appellate tribunal is empowered by or under this Act to determine, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under RERA. 11. Section 79 of RERA bars the jurisdiction of only civil courts. The first respondent, Permanent Lok Adalat constituted under Section 22B of the Act is not a civil court. The Act was WA NO. 1090 OF 2020 **==> picture [37 x 8] intentionally omitted <==** enacted by the Parliament to constitute Legal Services Authorities to provide free and competent legal services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by the reason of economic or other disabilities. It was later felt that the system of Lok Adalats provided in the Act sometimes results in delaying the dispensation of justice, where the parties do not arrive at any compromise or settlement in Lok Adalat. Accordingly, the amendment to the Act was felt necessary by the Parliament, which resulted in the passing of the Amendment Act, 2002 by amending Chapter VI and incorporating Chapter VIA (Section 22A to Section 22E) of the Act. “Public utility service” is defined in Section 22A of the Act, which did not include “housing and real estate service”. Thereafter, as per S.O.495(E) published in the Gazette dated 16.02.2016, the Central Government, in the public interest, WA NO. 1090 OF 2020 **==> picture [37 x 8] intentionally omitted <==** declared “housing and estate service” to be “public utility service” with effect from the date of the said notification. Thus, it is clear that any person having any dispute in relation to any public utility service mentioned in Section 22A of the Act can approach the first respondent with a complaint; and the first respondent has jurisdiction to entertain such complaint after hearing the parties and to arrive at a settlement, if both parties agree, and to pass award under Section 22C(7) of the Act. After passing the award as per Section 22(E)(5) of the Act, the first respondent may transmit the same to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court. 12. The jurisdiction of the first respondent was considered _in extenso_ by the apex court in **Bar Council of India** v. **Union of India** [2012 (3) KLT 557], wherein it was held that these WA NO. 1090 OF 2020 **==> picture [37 x 8] intentionally omitted <==** provisions are not unconstitutional and irrational and that the Permanent Lok Adalats are in addition to and not in derogation of fora provided under various statutes. It is true that RERA has come into force in order to deal with the matters relating to the real estate services. But, that does not oust the jurisdiction of the first respondent in dealing with the matters relating to “housing and real estate service”, since it is already included in the definition of “public utility service” mentioned in Section 22A, Chapter VIA of the Act. The jurisdiction of the Permanent Lok Adalat constituted under Chapter VI A of the Act is not ousted. 13. Section 25 of the Act reads as follows: 25. Act to have overriding effect.— The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of law other than this Act. 14. Section 88 of the RERA reads as follows: 88. Application of other laws not barred.— The WA NO. 1090 OF 2020 **==> picture [37 x 8] intentionally omitted <==** provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. Section 88 of RERA prescribes that the provisions of RERA shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Thus, it is clear that after declaring “housing and real estate service” to be “public utility service” under Section 22A of the Act, the first respondent has jurisdiction to entertain the complaints filed by the allottees of flat/apartment and even though there is RERA for dealing with such complaint, the jurisdiction of the first respondent is not ousted. 15. The upshot of the above discussion is that RERA does not exclude jurisdiction of the Permanent Lok Adalat to entertain and decide disputes relating to “housing and real estate service”. The first respondent, the Permanent Lok Adalat, has jurisdiction to entertain Ext.P1 WA NO. 1090 OF 2020 **==> picture [37 x 8] intentionally omitted <==** complaint filed by the appellant. Hence, the impugned judgment rendered by the learned Single Judge and Ext.P3 order are liable to be set aside. In the result, the writ appeal is allowed. The impugned judgment of the learned Single Judge and Ext.P3 order are hereby set aside. The matter is remanded to the first respondent for consideration afresh. Parties are directed to appear before the first respondent on 22.02.2023. The first respondent shall, thereafter, pass appropriate orders on Ext.P1 as expeditiously as possible. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** ## **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/-