Supreme Court in the said decision upheld the delegation of power to decide the complaints by single members in terms of Section 81 of the Act.

 The decision of Allahabad High Court in the case of M/s Newtech Promoters and Developers Pvt. Ltd. (supra) was challenged before the Supreme Court in the case of M/s Newtech Promoters and Developers Pvt. Ltd. Vs. State of UP and Ors. (Civil Appeal No(s).6745-6749/2021) decided on 11.11.2021.. Several questions were raised and answered. One of the questions was whether Section 81 of the Act authorizes the authority to delegate its power to single member to hear complaints instituted under Section 31. After referring to the statutory provisions and relying upon several decisions of the Supreme Court, the Supreme Court in the said decision upheld the delegation of power to decide the complaints by single members in terms of Section 81 of the Act.

The conclusion of the Supreme Court in this respect can be noted as under:-

“120. In view of the remedial mechanism

provided under the scheme of the Act 2016, in our considered view, the power of delegation under Section 81 of the Act by the authority to one of its member for deciding applications/complaints under Section 31 of the Act is not only well defined but expressly permissible and that cannot be said to be dehors

the mandate of law.”

Allahabad High Court - Every court/tribunal has an inherent power of procedural review and the same can not be denied to the petitioner merely for the reason that there is no provision to that effect in the Act/Statute.

 In the Matter of M/S T.G.B. Realty Pvt. Ltd. Complaint no. WRIT - C No. - 32301 of 2019 decided on 17.10.2019  before Allahabad High Court

Fact of the Case.

• The petitioner is a builder and its project Neel Gagan, Siddhartha Vihar, Ghaziabad is registered under the Real Estate Regulatory Authority

• The petitioner by means of this writ petition has made a prayer for quashing of the orders dated 10.4.2018 dated 27.4.2019 passed by the RERA in complaint case no. 1120173596 Prakash Chandra Agrawal Vs.M/s. TGB Reality Private Limited and for quashing of the recovery certificate dated 17.8.1999 and the recovery citation dated 12.9.2019 issued in pursuance to the aforesaid orders.

Argument by the Applicant

• both the above orders have been passed without any notice and opportunity of hearing to the petitioner.

• The complainant has given the wrong address of the petitioner in the complaint and the notice was sent on the wrong address which was never served upon the petitioner. 

• it was denied opportunity of hearing

• If the petitioner has not been served with any notice or given opportunity of hearing, the remedy is by way of an application for recall of the impugned orders before the RERA.

Argument by the Defendant

• RERA is not entertaining the recall application for the reason that there is no provision under the Act for the said purpose.

Final Order

• It is well recognized that every court/tribunal has an inherent power of procedural review and the same can not be denied to the petitioner merely for the reason that there is no provision to that effect in the Act/Statute.

• we dispose of the writ petition with liberty to the petitioner to apply for recall of the two orders impugned in this writ petition passed by the RERA. In case any such recall application/(s) are filed, the RERA would entertain the same and dispose them of in accordance with law most expeditiously, if possible, within a period of one month from the date of the filing of such application (s).

Allahabad High Court - Section 43(5) mandates pre deposit of 30% of Penalty amount or higher at the discretion of tribunal, the tribunal must form its opinion on the facts and material before it as the appeal before the Tribunal is the first and the only appeal on facts.The Increase in pre deposit may be exercised only in extreme cases

 In the Matter of Air Force Naval Housing Board Air Force Station Versus U.P. Real Estate Regulatory Authority And Another Complaint no. RERA APPEAL DEFECTIVE No. - 6 of 2021 decided on 16.03.2021 before Allahabad High court

Fact of the Case

• The present appeal was filed against the order passed by the Real Estate Appellate Tribunal (Tribunal in short) in Appeal/Misc. Case No.360 of 2019 dated 28.02.2020 whereby the Tribunal has dismissed that appeal filed by the appellant, under Section 44(2) of the Real Estate (Regulation & Development) Act, 2016. Undisputedly, the above-described appeal came to be filed by the appellant against the order of the RERA, dated 10.04.2019 whereby penalty @ MCLR + 1% w.e.f. 01.07.2012 was imposed on the appellant.

•  at the time of filing the aforesaid appeal to the Tribunal, the appellant furnished a demand draft for an amount of Rs.6,33,000/- towards 30% of the penalty amount awarded by the RERA.

• By an order dated 28.01.2020, the Tribunal required the appellant to deposit the balance amount i.e. the entire amount of penalty awarded by the RERA as a pre-condition to maintain the appeal.

• Thereafter the matter was listed before the Tribunal on 28.02.2020 .the instant case was dismissed due to non compliance of Tribunal's order dated 28.01.2020.

• The Tribunal has relied on the observations made by the Lucknow Bench of this Court in Second Appeal No.364 of 2018 (Radicon Infrastructure And Housing Private Limited Vs. Karan Dhyani) and Second Appeal No. 367 of 2018 (Radicon Infrastructure And Housing Private Limited Vs. Dhaneshwari Devi Dhyani), decided on 26.07.2019, to require the appellant to deposit the entire amount of disputed penalty as a condition to maintain the appeal.

Question of Law

1. Whether deposit of the entire disputed demand of penalty is a condition precedent to maintain the appeal against penalty, under Section 44(2) of the Real Estate (Regulation & Development) Act, 2016?"

Argument from Appellant

• The appellant is a zero-profit organization, registered as a society of retired personnel of the Indian Air Force and the Indian Navy. It exists and operates only for the purpose of providing affordable housing to the members of the Indian Air Force and the Indian Navy and the widows of such personnel.

• Learned counsel for the appellant would submit that the Tribunal has completely misread the law and/or mis-applied itself to reach a very harsh conclusion that the appeal filed by the appellant was not maintainable because the appellant did not deposit the entire disputed demand of penalty.

• it has been submitted, Section 43(5) of the Act does not mandate pre-deposit of the entire disputed demand of penalty as a pre-condition to maintain an appeal under Section 44(2) of the Act.

• Also, the decision of this Court in Second Appeal Nos.364 of 2018 and 367 of 2018 (Radicon Infrastructure And ... vs Karan Dhyani ) does not lay down as a proposition of law that the entire disputed demand of penalty must be deposited before an appeal is entertained or maintained under Section 44 of the Act.

Argument by defendant

• Right of appeal granted under Section 34 of the Act is circumscribed and conditioned by Section 43(5) of the Act.

• According to him, there is no right vested in the appellant to maintain its appeal by depositing 30% of the disputed penalty. The Tribunal could determine a higher amount and, as has been done in the present case. The right of appeal would arise only upon deposit of that higher amount. Since the appellant did not make the necessary deposit, the Tribunal has rightly dismissed its appeal.

Decision of Court

• the first conclusion that may be safely drawn is Reading Section 43 (5) of the Act strictly, no appeal may be filed by a 'promoter' against the order of the RERA imposing penalty unless a minimum of 30% of the demand of penalty is pre-deposited by such 'promoter'. There is absolutely no discretion vested in the Tribunal to reduce that amount below the statutorily defined minimum of 30% of the penalty imposed by the RERA. That condition is absolute. It has also been met, in the facts of this case. Neither that percentage or amount can be reduced by the Tribunal nor an appeal filed without deposit of that amount be entertained by the Tribunal.

• Second, a discretion is vested in the Tribunal to determine an amount more than 30% of the penalty - to be deposited as a condition to maintain such appeal by a 'promoter'. The legislature has referred to the same as such higher percentage "as may be determined by the Appellate Tribunal.

• If the Tribunal were to require a particular 'promoter'-appellant to deposit an amount that be more than 30% of the penalty amount imposed by the RERA in the order impugned before the Tribunal, as a pre-condition to maintain its appeal, it would have to first determine the same.

• In the context of Section 43(5) of the Act, the Tribunal must form its opinion on the facts and material before it - why a higher percentage of the disputed penalty be deposited by a 'promoter'-appellant as a condition to entertain its appeal.this would involve exercise of judicial discretion.

•  the appeal before the Tribunal is the first and the only appeal on facts. The further appeal to this Court is an appeal on substantial question/s of law. Thus, the Tribunal may never place a condition so onerous or burdensome, on the appellant before it, as may shut out the only remedy of appeal on fact, available under the Act.

• The judicial discretion thus vested on the Tribunal must be exercised with extreme care and it must not appear to have been exercised on whims or fancies. It may be exercised only in extreme cases. Only by way of illustration, that discretion may be exercised where it appears to the Tribunal, even on a prima facie basis, that the penalty imposed by RERA is too less/insignificant to the infraction found or that the appellant before it is a repeat or habitual or wilful offender or the facts appear to involve large scale infractions of the law, by way of an organised activity. In such and other cases, for which judicially sound reasons may be recorded as may compel or commend to the Tribunal to require a particular appellant to deposit an amount higher than the statutory pre-defined limit of 30% of the penalty.

• Unless careful application of mind is first made by the Tribunal to the facts of the individual case and unless the Tribunal records specific reasons to determine the higher amount required to be deposited by the 'promoter'-appellant, to maintain its appeal against the order imposing penalty passed by the RERA, the entire exercise made by the Tribunal may be questioned as arbitrary or unreasoned. That would be wholly undesirable and an avoidable course in the context of the quasi-judicial power exercised by the Tribunal.

• Normally, the legislature provides a right of appeal without a condition of pre-deposit. However, in financial matters, the modern legislative trend has been to provide for a minimum deposit as a pre-condition to maintain the appeal. Unless the orders of the Tribunal requiring pre-deposit at higher rates (30% of penalty) are informed with reasons, such practice, if allowed, would amount to taking away the right of appeal before the Tribunal, by an order passed by the Tribunal that has been vested with the jurisdiction to decide such appeals on merits. It would be a uniquely odd process and result, factually and juris prudentially. The appellant in that situation may end up being pre-judged by the Tribunal.

• Consequently, the order dated passed by the Tribunal dated 28.02.2020 is set aside.

The Allahabad High Court - A single member of RERA can also adjudicate the complaints of home buyer.

 The Allahabad High Court  in the Matter of M/S K.D.P. Build Well Pvt Ltd vs State Of U.P. And 4 Others WRIT - C No. - 2248 of 2020 Decided on 4 February, 2020 has held that a single member of RERA can also adjudicate the complaints of home buyer.

It was pleaded that one member of RERA has passed the order in violation of the provisions of the Act of 2016. Section 21 provides for formation of Authority consist of Chairperson along with two whole time Members. The impugned order is by one Member alone going against the mandate of Section 21 of the Act of 2016.

The Court refused to accept the submission of Petitioner Counsel that the Punjab and Haryana High Court has taken a different view. Further the court observed that the Petitioner did not raised any objection before the single Member about his competence to adjudicate the complaint. In absence of objection, the Authority proceeded with the matter. If the objection would have been taken and was sustainable, the complaint could have been decided by the Authority consisting of three Members. The petitioner has challenged the order in reference to the composition only when he lost in the complaint

Referring to Section 21, 29 and 30 of the Act observed that it is not necessary that the adjudication of the complaint has to be made by the composition of Authority, as given under Section 21 of the Act of 2016 though as per Section 29 also, it should be by two Members in absence of the Chairperson. Further Section 30 protects proceedings from invalidation due to any vacancy. 

it was held that 

"We are further not inclined to interfere in the impugned orders on the ground taken by the learned counsel for the petitioner that the order passed by a single member is without jurisdiction as contemplated under Section 21 of the Act and has not been passed in accordance with the provisions of Section 21 of the Act. The arguments of the learned counsel for the petitioner appears us to be misconceived. The proposition of Section 21 is not that the complaint could not be decided by a single member of the Authority, whereas it could be decided by a single member or by two members, whichever is better in the interest of justice as per availability of the members and we further observed that Section 81 of the Real Estate (Regulation and Development) Act, 2016 provides "delegation", which says that "The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act ( except the power to make regulations under section 85), as it may deem necessary" and having regard to the provision of Section 81 of the Real Estate ( Regulation and Development) Act, 2016, the authority vide their 5th meeting dated 5.12.2018 as per Agenda 1 delegated the power to a single member to decide the cases in both the Benches sitting at Lucknow and Gautam Budh Nagar, the delegation of power of the 5th meeting dated 5.12.2018 of U.P. Real Estate Regulatory Authority is quoted as under:"

Designated Tribunal under Section 43 of RERA ACT will function till such time a regular Tribunal is established

  In a judgment dated 17.09.2018 passed in Writ-C No. 31085 of 2018; Gardenia Aims Developers Pvt. Ltd. v. State of U.P., wherein The Honorable Allahabad High Court  has held that

 Section 43 of the Act prescribes a time of one year for establishment of the Tribunal but the proviso to the said Section says that till such time regular Tribunal is established the State Government will have power to designate any other existing Tribunal to hear the appeals. 

The Court held that in the said case the State Government by an order dated 24.01.2018 had designated the U.P. State Transport Appellate Tribunal as the Tribunal to hear the appeals and the proviso does not prescribe any time limit for functioning of the designated Tribunal, which says that the said designated Tribunal will function till such time a regular Tribunal is established and as the regular Tribunal had not been established till 17.09.2018, the designated Tribunal had jurisdiction. 

Section 43(5) i.e pre deposit of sum by Promoter filing Appeal against the impugned order

In a Landmark Judgement passed by Allahabad HC in the matter of Radicon Infrastructure and Housing Pivate Limited vs. Karan Dhyani (Second Appeal No. - 364 of 2018). passed on 26th July, 2019.

The Hon'ble High Court in para 26 has interpreted section 43(5) i.e pre deposit of sum by Promoter filing Appeal against the impugned order is required to deposit

•  30 % or such higher sum as may be determined by Tribunal with respect to penalty imposed upon promoter.

• 100 % of amount determined to be payable being refund of principal/ interest.

This judgment will come as a relief for lakhs of homebuyers across the country who after spending several years before RERA authority and managing to secure a favourable order were then made to suffer by the developer who then used to prefer Appeal and further delay the proceedings.
The Complete Judgement can be found at the Following link.

https://media-exp1.licdn.com/dms/document/C4D1FAQGOdR4_m4LTEw/feedshare-document-pdf-analyzed/0/1617626541425?e=1617728400&v=beta&t=z-Hd96USUusVgjXeXSQqrxs_HvABg2w1VpWdnFBIM_k
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