The main legal point established in the judgment is the court's authority to reduce the pre-deposit condition for hearing an appeal under Section 43(5) of the RERA Act based on genuine hardships, as interpreted in previous court judgments and in light of the Supreme Court's order extending the limitation period.

JUDGMENT

Ritu Bahri, J. -

CM-1060-CWP-2021

Application is allowed and Annexures A-l to A-6 are taken on record.

CWP-17133-2020

2. The petitioner is seeking writ of mandamus directing respondent No.2 to entertain the appeal of the petitioner without pre-deposit as mandatory under Section 43(5) of the Real Estate Regulatory Authority Act, 2016 (hereinafter referred to as 'RERA Act').

3. The petitioner in the present case is a promoter who started real estate project in the Name and Style of Thakurji Estates at Village Muradpur & Nangli, Tehsil and District Amritsar in 11.35 Acres land. A certificate of registration bearing No. ACA/ADA/ASR/1778/R-17 dated 22.06.2011 was allotted to the petitioner which was valid upto 22.06.2016 (Annexure P-l). Thereafter license No. LDC/ADA/2011/8 dated 17.11.2011 was issued to the petitioner for setting up real estate Project Thakurji Estate. The said license was valid upto 16.11.2014 and the colony had to be developed within this period. Vide ex-parte order dated 11.07.2019 (Annexure P-4), respondent No. 1 imposed a penalty of Rs. 1.25 Crore on the petitioner for violating Section 3 of the RERA Act. The petitioner came to know about this order in the first week of November 2019 and immediately approached RERA, Punjab by way of filing review application on 21.11.2019. The review application was dismissed vide order dated 28.01.2020 (Annexure P-5).

4. Learned counsel for the petitioner has argued that as per Section 43(5) of the RERA Act, the Promoter has to pre-deposit atleast 30% of the amount of penalty imposed by the Authority, i.e. Rs. 38,00,000/- to get the appeal heard. He has referred to an order passed by this Court in the case of M/s. Lotus Realtech Pvt Ltd V/s. State of Haryana and others, CWP-15205-2020, decided on 23.09.2020 (Annexure P-6) in which the petitioner was challenging the constitutional validity of the proviso to Section 43(5) of RERA Act. The Division Bench of this Court held that High Court could examine the issue of pre-deposit keeping in view genuine hardship of an aggrieved person as per Hon'ble the Supreme Court judgment passed in M/s. Technimont Pvt Ltd. (formerly known as Technimont ICB Private Ltd) V/s. State of Punjab and others 2019 AIR SC 4489. He further argued that the Division Bench though in M/s. Lotus Realtech Pvt Ltd. case (supra) did not extend benefit of reduction in pre-deposit, however held that High Court could examine the issue of pre-deposit under Article 226 of the Constitution of India.

5. He has further referred to an order dated 04.04.2019 (Annexure P-7) passed by Maharashtra Real Estate Regulatory Authority, Mumbai whereby complaint was made that the respondent had not procured Occupation Certificate and there was violation of Section 3 of RERA Act. The complaint was disposed of by observing that on the date when the Act came into force, no construction was going on and the building had been occupied by the allottees since 2012-13. Hence, the project could not be treated as ongoing project and merely Occupation Certificate had not been procured, would not itself construe violation of Section 3 of the Act.

6. He has further argued that in the case of the petitioner, there were 128 plots in the entire colony and they were sold out and possession had been taken by the plot owners since 2014. The list issuing allotment of plots has been placed on record as Annexure P-3. He, while referring to list of allottees (Annexure P-3) has argued that before 16.11.2014 the entire colony was set up and the ex-parte order dated 11.07.2019 (Annexure P-4) has been wrongly passed for violation of Section 3 of the RERA Act. He, while referring to written statement filed by the respondents, has further argued that the judgment in the case of Experion Developers Pvt Ltd V/s. State of Haryana, CWP-38144-2018, decided on 16.10.2020 (Annexure R-3/1) was given by the Division Bench of this Court in which vires of Section 43 have been challenged. However the operation of this ju