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2020 (3) TMI 1260 - HC - Indian LawsValidity of Sub-section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 - right of appeal to a Promoter - pre-conditioned by the deposit of total amount to be paid to an allottee of an apartment as may have been determined by the Authority/Adjudicating Officer under the Act, before entertaining the appeal - HELD THAT:- The argument of the learned counsel for the petitioner that the appeal under Section 43(5) of the 2016 Act is the forum of first Adjudication Officer does not appeal to us, inasmuch as the Adjudicatory Officer has been given limited powers, but while adjudicating the same, he is guided by Section 72. The Adjudicatory Officer is of the rank of a District Judge. The argument that the Regulatory Authority does not consist of persons having a judicial background is of no avail, inasmuch as at the first instance itself the Adjudicatory Officer being of the rank of a judicial officer has ample powers before whom the promoters while contesting the complaint have all the opportunity to establish their claim either way with full opportunity to the parties to rely on whatever evidence is permissible. Thus, the appeal provision is the second stage of adjudication, which, therefore, cannot be a stage where violation of fundamental rights can be urged - In the instant case, there is a further right of appeal before the High Court, after the decision of the Appellate Tribunal, in terms of Section 58 of the 2016 Act. This, however, is in terms of Section 100 of the Code of Civil Procedure, 1908, namely, giving rise to a substantial question of law. The words “it shall not be entertained” occurring in the proviso to Sub-Section (5) of Section 43 of the 2016 Act, is a preliminary injunction. This prevents even the presentation of an appeal. The Clause “before the said appeal is heard” ultimately is a final injunction to the process of appellate exercise of jurisdiction. Conjointly, to our mind, this clearly shuts out even the presentation or physical filing of an appeal before the Appellate Authority, as the total amount to be deposited as against compensation is a sine qua non. The justification for the same by the respondents is to prevent any form of exploitation, as the promoter or the builder is in a far more dominant position financially or otherwise and the allottee being pitted against such dominants require protection of his life time savings in such investments. It is in order to protect the interest of an allottee that such stringent conditions were necessarily required after it was experienced that promoters and builders had been enriched themselves at the cost of individuals who were made to run to Courts and fight long drawn litigations to recover their priced investments. The promoter or a builder, even if required to pay any lesser percentage, can very well raise the same argument that any amount fixed would still be either excessive or perverse. This, therefore, cannot be a ground to declare a provision ultra vires. A deposit being heavy by itself in the present case cannot be a ground to declare the provision onerous inasmuch as, as already indicated above, it is the own investment of the allottee which is sought to be secured with certain amount of compensation - There are no pleadings in the present writ petition to assume that any prejudice has been caused to the petitioner on account of any financial crisis being faced by him nor is there any material to assume that the petitioner is experiencing any indigency so as to meet this contingency of deposit. It will be open to the petitioner to plead this in appropriate proceedings, but the same is not a ground for us in the absence of any material to strike down the provision as onerous. The provision is held to be intra vires - also it is declared that the appellate forum is not illusory nor can the condition of pre-deposit be termed as onerous - petition disposed off.
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