Only CPC Provisions Mentioned In RERA Act Apply To RERA Proceedings, Remaining Provisions Intentionally Excluded By Legislature: HP High Court
Addressing the extent to which the provisions of the Code of Civil Procedure, 1908 (CPC), apply to proceedings before the Real Estate Regulatory Authority (RERA), the Himachal Pradesh High Court has ruled that only those provisions of the CPC explicitly mentioned in the Real Estate (Regulation and Development) Act, 2016, apply to RERA proceedings, while other provisions were...
Addressing the extent to which the provisions of the Code of Civil Procedure, 1908 (CPC), apply to proceedings before the Real Estate Regulatory Authority (RERA), the Himachal Pradesh High Court has ruled that only those provisions of the CPC explicitly mentioned in the Real Estate (Regulation and Development) Act, 2016, apply to RERA proceedings, while other provisions were intentionally excluded by the Legislature.
Adjudicating a matter, Justice Tarlok Singh Chauhan observed, “The Legislature has expressly made only the aforementioned provisions of CPC applicable to the RERA and is, therefore, deemed to have intentionally excluded the other provisions of CPC from its applicability to the proceedings.”
This proposition, the court said, is based on the principle of “expressio unius”, which implies that the express inclusion of certain provisions naturally excludes others that are not mentioned.
The judgment drew support from the precedent set by the Supreme Court in Ethiopian Airlines vs. Ganesh Narain Saboo (2011), where it was held that when a statute expressly enumerates certain provisions of the CPC as applicable, it is inferred that the Legislature intended to exclude other provisions not listed.
Background
The case originated from a decree passed by RERA in favour of the respondents, which directed the petitioners to refund substantial sums along with interest. The petitioners, however, sought to frustrate the execution of the decree by repeatedly challenging the proceedings on various grounds, including the alleged non-compliance with certain provisions of the CPC by RERA.
The petitioners contended that RERA had failed to adhere to the procedural safeguards provided under the CPC, specifically citing non-compliance with the provisions of Order 21 Rules 11A, 37, 39, and 40.
It was argued that the orders passed by RERA, which included the issuance of arrest warrants, were vitiated by this non-compliance. The petitioners, therefore, sought the quashing of RERA's orders and requested that the matter be remanded back to RERA for reconsideration in compliance with the CPC.
The court, however, rejected the petitioners' contention that RERA had failed to adhere to the procedural safeguards provided under the CPC. The court clarified that only the provisions of the CPC explicitly mentioned in the Real Estate (Regulation and Development) Act, 2016, apply to RERA proceedings, and therefore, the petitioners' argument was unfounded.
Additionally, the court observed that the petitioners had been granted sufficient opportunities to comply with the decree and that their failure to do so was not due to any procedural lapses by RERA.
The court further noted that the respondents, including an octogenarian, had been waiting for more than a year to reap the benefits of the decree and were being unfairly deprived of their rightful dues by the petitioners' continuous challenges.
Highlighting the persistent challenges faced by decree-holders in executing their judgments, particularly obstructive tactics employed by judgment debtors, the judgment referenced several observations made by the Supreme Court.
The cases cited included Griesheim GMBH (Now Called AIR Liquide Deutschland GMBH) vs. Goyal MG Gases Private Limited (2022), Jini Dhanrajgir and another vs. Shibu Mathew and Anr., and Mumtaz Yarud Dowla Wakf vs. M/s Badam Balakrishna Hotel Pvt. Ltd. and others.
In these cases, the Supreme Court had echoed the concerns first raised by the Privy Council over a century ago, stating that “the difficulties of a litigant in India indeed begin when they have obtained a decree.” The Apex Court had also observed that even after more than a hundred years, “there has been no improvement and still the decree-holder faces the same problem what was being faced in the past.”
The Himachal Pradesh High Court observed that the petitioners, despite not having paid a single paisa towards the decree, continued to argue that the principles of natural justice had not been followed. This was despite their active participation in the RERA proceedings, their full awareness of the orders passed, and the dismissal of their appeals by the Appellate Authority.
Justice Chauhan stated, “The record reveals that the petitioner was granted sufficient time to file objections and his right to file objections was closed by the RERA only after due process was followed,” further emphasizing that the petitioners, despite participating in the proceedings had neither filed objections nor raised any concerns about the procedure adopted by RERA.
As a result, the court deemed the petition to be baseless, recognizing it as part of a broader strategy to evade the legal obligations imposed by the RERA decree. Concluding that the petitions amounted to a “gross abuse of the judicial process”, the court dismissed them with costs.
Case Title: Sumit Khanna and another Versus Kanchan Sunil Adani and others
Citation: 2024 LiveLaw (HP) 49