There exists a statutory remedy to file an appeal under Section 43(5) of the RERA Act against any direction or decision or order made by the Authority or an Adjudicating Officer by depositing 30% of the penalty or such higher percentage as may be determined by the Appellate Tribunal.
The petitioner has filed the Writ Petition under Article 226 of the Indian Constitution, with various requests, including the direction for respondent No. 1 to shield the petitioner from the Adjudicating Officer's order at the Haryana Real Estate Regulatory Authority, Gurugram. This order involves the issuance of arrest warrants against the Directors of the petitioner's company which were issued as a coercive method for implementation of the impugned order. The petitioner is also seeking the annulment of the contested order issued by the Haryana Real Estate Regulatory Authority, respondent No. 2, which compelled the petitioner to deliver a constructed unit within a specified timeframe and additionally imposed an interest payment due to the delay in handing over the said unit.
The said writ petitions have been filed by respective companies against the orders passed by the Haryana Real Estate Regulatory Authority. Learned counsel appearing on behalf of the respective developers submitted that the averments contained in the various writ petitions filed on behalf of the respective developers are identical to their lead cases and stand corroborated by learned counsel appearing for respondent. The counsel appearing for the petitioners in all the matters also submitted that they have not raised any challenge to the vires of statutory provision under Section 43(5) of the RERA Act and instead seek to invoke the indulgence of the Writ Court since the condition of pre-deposit is onerous. The extraordinary jurisdiction is being invoked to obviate the hardship faced by the petitioners.
The issue in this case revolves around the jurisdiction of the Authority to direct refund of the amount with/without interest and the power of High Court under Article 226 of the Constitution of India to relax the condition of pre-deposit under Section 43(5) of RERA Act, 2016.
The Hon’ble High Court observed that the agreement was signed blindly and without going through the terms of the said agreement. However, it was observed that both the parties mutually agreed that the due date for handing over the possession was 30.11.2015, thus, there was a delay of 02 years, 08 months and 23 days in delivery of the possession till the date of the passing of the impugned order, and the interest leviable upon the Petitioner was justified. The High Court noted that the Petitioner availed the statutory remedy to file an appeal under Section 43(5) and the said appeal was dismissed and the Petitioner did not challenge the order of dismissal of the appeal and even failed to showcase the illegality in the order. Therefore, there exists no grounds for setting aside the said order and even the warrants of arrest issued against the Directors of the Petitioner in the execution proceedings.
In the present case, the Hon’ble High Court held that the word ‘promoter’ has been deliberately used by the legislature in the proviso to sub-section (5) of Section 43 of RERA. Sub-section (5) provides a remedy of statutory appeal to any person aggrieved by the direction or decision of an authority to file an appeal before the Tribunal, but in case of a ‘promoter’, the mandatory deposit has to be made prior to the entertainment of the appeal by the Tribunal. The purpose of insertion of such provision is to safeguard the innocent home buyer who has deposited his hard-earned money with the developers/promoter and in case of failure of the project or the project getting delayed and on his complaint the authority directing for refund of the amount with interest, the promoter is obliged to deposit the same before his appeal is heard.