ORDER :

Amreshwar Pratap Sahi, J.

1. The petitioner, who is a Promoter of real estate, has come up questioning the validity of Sub-section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016, whereunder a right of appeal to a Promoter is 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 and it being heard by the Appellate Tribunal.

2. The challenge to the validity of the provision has been occasioned on account of an order passed by the Adjudicating Officer on 17.09.2019. The second respondent had paid a booking advance under a Memorandum of Agreement dated 06.06.2012 for purchase of a flat being constructed by the petitioner in a project named as 'January'. The total sale consideration settled between the parties was Rs. 48,47,400/- towards which the second respondent complainant advanced a sum of Rs. 28,33,440/-. The flat was to be delivered within thirty months with a grace period of 90 days. The complaint was filed claiming that the flat is not complete and the complainant was put to heavy losses on account of such delay of the project, therefore, a relief was prayed for, alleging violation of Section 18 of the Act by moving an application before the Competent Authority under Section 71 read with Section 72 of the said Act.

3. The Competent Authority is the Adjudicating Officer as defined under Section 2(a) of the Act, appointed by the Real Estates Regulatory Authority established under Sub-section (1) of Section 20, in consultation with the appropriate Government, who is or has been a District Judge as provided for in Section 71(1) of the 2016 Act.

4. The Adjudicating Officer has proceeded to hold that the complainant had availed of a loan facility and on account of non-delivery of the flat, she was entitled to the refund of the amount together with interest and on the delay having been occasioned by the petitioner, 9% of the amount paid was fixed towards compensation for mental agony and inconvenience together with litigation expenses of a sum of Rs. 25,000/-. The said order dated 17.09.2019 is not under challenge.

5. The limited challenge in this writ petition is to the validity of Sub-Section (5) of Section 43 on the ground that it is an onerous condition and the deposit of the total amount of compensation makes the right of appeal illusory, inasmuch as if a promoter is called upon to muster the resources for making payment of the total amount in the manner aforesaid, and if a number of complaints are entertained resulting in award of compensation, as has been done above, on complaints which are otherwise untenable in the eyes of law then a promoter will never be able to avail the remedy of appeal, as he would be burdened with payment of any amount being awarded as compensation, which can be absolutely disproportionate, an outcome of a perverse conclusion as in the present case or excessive or inflated amounts or for a host of other reasons that would ultimately render the right of appeal ineffective. For this, various submissions have been advanced with the aid of judgments at the bar.

6. Apart from the condition being an onerous one, it is urged that placing such a condition violates Article 14 of the Constitution of India and also violates the right of the petitioner to carry on his trade and profession thereby impinging upon his fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.

7. It is also submitted that the right of appeal in the present case under Section 71 is the first opportunity given to contest the matter on merits before an appropriate Tribunal, inasmuch as the Adjudicatory Officer only enjoys limited powers and even otherwise, has been appointed by the State Government, who does not perform essentially a judicial function and therefore, the forum of the Adjudicatory Officer is not the forum of first adjudicat