JUDGMENT :

GS Patel, J.

1. The matter pertains to the assignment of a Single Judge. However, by an order of 29th November 2021, a learned Single Judge of this Court while considering these two Petitions, expressed doubts about the correctness of an earlier decision of another learned Single Judge, i.e., a bench of co-ordinate strength in Nirman Realtors and Developers Ltd v Danish Ansari, 2018 SCC OnLine Bom 16498. There being this difference of opinion, the matter came to be referred to a larger Bench by the Hon’ble Chief Justice in exercise of his administrative powers. The matter was then assigned to this Bench. We will not, of course, be deciding the Writ Petition itself but only the point that is referred to for a decision.

2. We have heard Mr Khandeparkar for the Petitioner, Man Global Ltd and Mr Dave for the Respondents in both Petitions.

3. The issue turns on an interpretation of Section 58 of the Real Estate (Regulation and Development) Act 2016 (“RERA”). The Section reads as follows:

“58. Appeal to High Court:

(1) Any person aggrieved by any decision or order of the Appellate Tribunal, may file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908:

Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

Explanation: The expression “High Court” means the High Court of a State or Union territory where the real estate project is situated.

(2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.” (Emphasis added)

4. The learned Single Judge in Nirman Realtors was dealing with a set of First Appeals filed before the RERA Appellate Tribunal. The Appellate Authority had, in exercise of powers under Section 43(5), directed the appellants-promoters to deposit 40% of the total amount involved including interest and compensation by a given date. The first appellant filed appeals under Section 58.

5. In Nirman Realtors, the learned Single Judge held in paragraph 3 to 10 as follows:

“3. The builder-developer preferred First Appeals before the Appellate Tribunal under the Real Estate (Regulation and Development) Act, 2016 and by order dated 07.08.2018, the Appellate Authority under Section 43(5) proviso directed Appellants-Promoters to deposit 40% of the total amount including interest and compensation as per order dated 26.04.2018 to be deposited before 03.09.2018. The aggrieved first appellants have preferred these Appeals under Section 58.

4. The learned Counsel for the Appellants argued that Section 58 provided right of Appeal to the High Court against any decision or order passed on merits by the First Appellate Tribunal. It need not be in the form of Decree. The words used ‘or any one or more of the grounds specify in Section 100 of Code of Civil Procedure’ should be understood only as to the necessity of substantial question of law and it need not be understood to be Appeal from decree.

5. In case complaint under RERA Act, the Authority or Adjudicating Officer passes some orders on merits disposing the complaint before him, there can be first Appeal before the Appellate Tribunal under Section 43. If the Appellate Tribunal disposes of the First Appeal, then Second Appeal would lie as per Section 58 and the same would come before this Bench which has assignment of all Second Appeals. In the present case, admittedly, all the first appeals are pending and are not disposed of. The orders are passed under Section 43(5) proviso which reads as under:

“43(5) .…

provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained without the promoter first having deposited with the appellate tribunal at least th