‘Pre-deposit’ must for realtors’ appeals, rules Punjab and Haryana High Court

Saurabh Malik

Chandigarh, January 15

The Punjab and Haryana High Court has made it clear that appeals by promoters against orders passed by Real Estate Regulatory Authority could be entertained by the Real Estate Appellate Tribunal only after they had complied with the “pre-deposit” condition as the same was not “onerous”.

The Bench made it clear that the petitioner-promoters could not establish that the obligation of pre-depositing the amount was “onerous”. A mere inconvenience or hardship in diverting funds could not be construed as an onerous circumstance necessitating waiver/relaxation of a statutory mandate. “No such circumstance has been, prima facie, brought on record and the pleading falls short of demonstrating any difficulty in making a pre-deposit, leave apart the same being onerous for the petitioners to comply with,” the Bench of Justice Tejinder Singh Dhindsa and Justice Vinod S Bhardwaj asserted.

The ruling came on a bunch of over 70 petitions filed against the state of Haryana and other respondents by the promoters. The Bench was, among others, assisted by advocates Anurag Jain and Preeti Taneja, who appeared for the allottees. Additional Solicitor General of India Satya Pal Jain also appeared before the Bench. Taking up the matter, the Bench asserted the issues for adjudication were whether the authority had jurisdiction to direct return/refund of the amount and/or interest to the allottee under Real Estate (Regulatory and Development) Act; and whether the pre-deposit condition under Section 43(5) of the Act for entertaining an appeal could be waived/relaxed by the High Court for being onerous or “established hardship?”

Referring to Section 43, the Bench asserted the “proviso mandates the promoter to deposit at least 30 per cent of the penalty or such percentage as may be determined by the tribunal or the total amount of the refund to be paid to the allottee including interest and compensation imposed on him”.

The Bench added Section 43(5) did not override the powers of the High Court under Article 226 of the Constitution. “There was no prohibition against the High Court in exercising its jurisdiction in an appropriate case and to alter/modify/waive the requirement of mandatory pre-deposit,” the Bench observed, adding that the powers vested in it under Article 226 could be exercised to ensure complete justice. The statutory provision contained in the Act could not curtail the constitutional powers conferred upon the Writ Court.

The Bench added: “A petitioner seeking indulgence of Writ Court to seek exemption from statutory mandate must establish strong reasons and to establish deprivation of its statutory remedy of appeal by demonstrating to the satisfaction of court its inability to arrange for pre-deposit despite all reasonable efforts.

RERA can entertain refund plaint

The Bench asserted the Real Estate Regulatory Authority (RERA) would have the jurisdiction to entertain a complaint by an allottee seeking refund of the amount and interest on the refund amount as well as for payment of interest on delayed delivery of possession and/or penalty and interest thereon.