The main legal point established in the judgment is the mandatory nature of establishing the Real Estate Appellate Tribunal within one year, while also emphasizing the discretion of the Appellate Tribunal in requiring the deposit of penalties and total amounts.

JUDGMENT :

Rajan Roy, J.

This second appeal under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ''the Act, 2016') was admitted by this Court vide order dated 06.02.2019 on the following substantial questions of law:-

"(1) Whether in the light of Section 43(1) read with proviso to said Section, the Designated Appellate Tribunal can continue to function even after the period of one year from the date of coming into force the Real Estate (Regulation and Development) Act, 2016 ?

(2) Whether the appointment of the Chairperson and three whole time members of the Appellate Tribunal under Section 45 of the Real Estate (Regulation and Development) Act 2016 have the effect of establishment of an Appellate Tribunal under Section 43(1) of the Real Estate (Regulation and Development) Act, 2016 ?

(3) Whether order passed by the Designated Appellate Tribunal as provided under proviso to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 could have been passed even after it became coram non judis ?

2. By the same order the designated Appellate Tribunal was restrained from proceeding with the appeal in question.

3. Heard Shri Siddharth Nandwani, learned counsel for the appellant and Dr. Azhar Ikram, learned counsel for the respondent no. 1.

4. The facts of the case in brief are that the respondent no. 1-Karan Dhyani had booked a flat with the appellant- promoter/builder way back on 15.03.2012 and was allotted a flat bearing No. 1707 in Tower- A in the project, namely, ''Vedanta' located at Plot No. 1B, Sector- 16C, Greator Noida, U.P. On account of a dispute having arisen in this regard a complaint was preferred by the respondent no. 1 before the U.P. Real Estate Regulatory Authority on 04.03.2018, inter alia, praying for waiver of inappropriate late payment, interest penalty, possession charge and flat transfer charge levied by the Builder and delay possession penalty @ 24% per annum. The Regulatory Authority decided the matter on 25.06.2018 and ordered that the amount deposited in respect of Flat No. A-1707 be returned by the Appellant herein, who was the defendant in the said proceedings before the Regulatory Authority, with 24% monthly interest thereon with effect from the date of deposit of the amount till the date of actual return/payment. This amount was to be deposited by the appellant within a period of 45 days. As regard compensation the complainant was given liberty to initiate proceedings under Section 71 of the Act, 2016. It was also provided that if the amount as aforesaid is not deposited it would be a punishable offence under Section 63 of the Act, 2016 and that the due amount would be liable to the recovered under + 40(1). Being aggrieved the appellant herein preferred a First Appeal before the Appellate Tribunal. Now, in this context it is relevant to mention that under the Act, 2016 the Real Estate Appellate Tribunal is to be constituted under Section 43(1) of the Act, 2016. Section 44(1) contains a provision for preferring an appeal to the Appellate Tribunal against an order or decision of the Authority or Adjudicating Officer under the Act, which would include the Regulatory Authority, within a period of 60 days from the date on which a copy of such order or decision is received, although, such appeal can also be entertained after 60 days if the Appellate Tribunal is satisfied that there was sufficient cause for not filing it within that period.

5. In this case a Notification was issued on 22.09.2018 appointing the Chairman and three Members of the Appellate Tribunal purportedly under Section 46 of the Act, 2016, although, by then no notification had been issued for establishment of the Appellate Tribunal known as the ''Real Estate Appellate Tribunal' under Section 43(1), therefore, the Chairman and Members did not function as such. Prior to it, that is, on 24.01.2018, the appropriate Government issued a Notification under the proviso to Section 43(4) designati