The main legal point established is that the Tribunal does not have the power to waive the pre-deposit of penalty as required by the Real Estate (Regulation and Development) Act, 2016, and that the issues of the appellant's status and the Act's applicability should be determined during the appeal.

JUDGMENT :

Amol Rattan Singh, J.

By this appeal, the appellant challenges the order passed by the Haryana Real Estate Appellate Tribunal, Chandigarh (in short “the Tribunal”), dated 03.01.2020, also seeking that this court may pass any other order that it may deem fit, necessary and just.

The aforesaid order of the learned Tribunal, dated 03.01.2020, had been passed on an application filed by the appellant, seeking “dispensation with the condition of pre-deposit of the penalty imposed by the Haryana Real Estate Regulatory Authority”, (in short “the Authority”), vide its order dated 19.06.2019, that order having been challenged before the learned Tribunal by the present appellant.

2. The waiver of the pre-deposit was in fact a waiver in respect of what is stipulated in the proviso to sub-section (5) of Section 43 of the Real Estate (Regulation and Development) Act, 2016 (in short “the Act”), the provision itself, i.e. Section 43, providing for the establishment of the Real Estate Appellate Tribunal, before which an appeal may be preferred against the order of the Authority/Adjudicating Officer.

Sub-Section (5) of Section 43 of the Act, along with the proviso thereto, reads as follows:-

“(5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter:

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 thirty per cent of the penalty or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

Explanation:- For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.”

3. The Tribunal, after considering the application, first observed that as per the said provision, unless at least 30 % of the penalty imposed upon the appellant is deposited (or any such higher percentage as may be determined by the Tribunal), an appeal cannot be heard.

It is also seen that the contention raised by the learned counsel for the appellant before that forum, was that the appellant was dealing with plots below an area of 500 sq. mtrs. and consequently, the provisions of the Act were not applicable, with the appellant also not being either a real estate agent or a promoter.

However, the application was dismissed on the ground that whether the appellant was a real estate agent or a promoter was a question touching on the merits of the case, and if those issues were adjudicated upon at the stage of the application itself, seeking a waiver of the pre-deposit amount, it would virtually amount to entertainment of the appeal, which was not permissible in terms of the aforesaid proviso.

Having said that, the Tribunal went on to further hold that the appellant had described himself as a developer, and had admitted to being a builder, and therefore, in the prima facie view of the Tribunal, the admissions so made would imply that the appellant was covered by the definition of a 'promoter', and consequently would be liable to comply with the condition imposed by the proviso.

A judgment of the Supreme Court in Tecnimont Pvt. Ltd. v. State of Punjb and others, (Civil Appeal no.7358 of 2019, arising out of SLP (Civil) no.27072 of 2016), was also referred to by the Tribunal, to hold that an appellate Tribunal had no jurisdiction to waive off the condition of a pre-deposit, in the absence of any specific provision of waiver in the Act. Still further, it was observed that the only discretion given to the Tribunal, as per the said provision, was as to whether the pre-deposit amount should be to the exte