JUDGMENT :

Ravi Shankar Jha, J.

1. With the consent of learned counsel for the parties, the matter is being taken up and heard via video conferencing.

2. This petition has been filed by the petitioner, assailing the constitutional validity of the proviso to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'the Act of 2016') which stipulates and lays 'down that any appeal filed by a promoter before the appellate authority against the order of the authority or adjudicating officer, shall not be entertained without the promoter first having deposited at least 30% of the penalty or such higher percentage as may be determined by the appellate authority, 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.

3. Brief facts leading to the filing of the present petition are that the petitioner, which is a company incorporated under the provisions of the Companies Act, 1956 and is involved in developing a group housing complex, had entered into an agreement with the private respondent on 04.10.2013 in respect of a flat admeasuring 1450 sq. feet for a total consideration of Rs. 55,23,950/- to be paid as per the construction linked payment plan incorporated in the agreement.

4. As the flat has not been delivered to the respondent, therefore, the respondent filed a complaint before the Haryana Real Estate Regulatory Authority (HRERA) alleging that he had already paid a sum of Rs. 44,84,346/- out of the total sale consideration as per the construction linked payment plan and the due date of delivery has lapsed, which was four years from the date of start of construction or execution of the agreement, whichever was later, as incorporated in clause 3.1 of the agreement and therefore, HRERA should direct the petitioner to pay interest for every months delay at the prescribed rate from the due date of delivery of possession till the date of handing over the possession of the same to the respondent and to further direct the petitioner to complete the construction and hand over the possession of the flat to the respondent.

5. The authority by order dated 04.02.2020, allowed the complaint and held that the complainant-respondent is entitled to the delayed possession charges at the prescribed rate of interest of 10.20% per annum w.e.f. 04.10.2017, which was the due date for delivery of possession, till the date of offer of possession and the said arrears of interest accrued till the date of passing of the order by the authority shall be paid to the complainant respondent within 90 days and thereafter monthly payment of interest shall be made to the respondent by the 10th of each month till the date of offer of possession.

6. The petitioner being aggrieved by the order dated 04.02.2020 passed by the HRERA filed an appeal before the Real Estate Appellate Tribunal, Haryana, on 28.06.2020. If is submitted by the petitioner that in accordance with the proviso to Section 43(5) of the Act of 2016, the petitioner is required to make certain pie-deposits for entertain ability of the appeal before the Appellate Tribunal. It is submitted that the Appellate Tribunal by an order dated 03.05.2019 passed in appeal No. 60/2019 Ansal Housing Ltd. v. Sushil Kumar Batra waived the condition of pre-deposit contained in the proviso to Section 43(5) of the Act of 2016 relying upon the decisions of this High Court rendered in the cases of Punjab State Power Corporation Ltd. v. State of Punjab and others, 2016 (2) RCR (C) 559, Maruti Suzuki India Ltd. v. Union of India and others CWP No. 2922 of 2014 decided on 27.10.2016 and M/s. Mahesh Kumar Singla and others v. Union of India and others CWP No. 23368 of 2015 decided on 27.03.2017. However, subsequently, the Appellate Tribunal vide order dated 29.07.2019 passed in appeal No. 74 of 2018 Ramprastha Promoters and Developers Pvt. Ltd. v. Ishwar Chand Garg and 94 connected matters, vide order da