JUDGMENT :

Manish Kumar, J.

1. Shri Shobhit Mohan Shukla, Advocate appears for respondent No. 3.

Shri Manjive Shukla, Advocate appears for respondent Nos. 2 and 5.

Shri S.B. Pandey, learned A.S.G assisted by" Shri Mahendra Mishra appears for respondent No. 1.

2. By this writ petition, a challenge is made to Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 (for short 'Act of 2016').

3. The challenge is also made to order dated 25.7.2019 passed by the Real Estate Regulatory Authority (in short 'the authority') and also the recovery certificate dated 21.11.2019.

4. The writ petition has been pressed mainly to challenge to Section 43(5) of the Act of 2016. The order of Real Estate Regulatory Authority has also been challenged, though for which an appeal is maintainable before the Real Estate Appellate Tribunal.

5. Learned counsel submits that a complaint was filed against the petitioner before the Real Estate Regulatory Authority. An order in pursuance to it was passed on 25.7.2019 in ignorance of the jurisdiction under the Act of 2016. In pursuance to the order aforesaid, recovery certificate was issued on 21.11.2019. The petitioner is having a remedy of appeal against the order dated 25.7.2019 but as per Section 43 (5) of the Act of 2016, the condition of pre deposit needs to be satisfied. The condition under Section 43 (5) of Act of 2016 is hit by Article 14 and 19 of the Constitution of India being onerous making the provision to be illusory, thus be declared unconstitutional. To support the argument, learned counsel for the petitioner has referred the judgment of the Apex Court in the case of Mardia Chemicals Ltd. and others v. Union of India and others, (2004)4 SCC 311.

6. In the case of Mardia Chemicals Ltd. (supra), Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short 'Act of 2002') was challenged. The Apex Court declared aforesaid provision to be ultra vires to the Constitution finding it to be onerous for maintaining an appeal. Therein the condition was to deposit 70% of the demand for maintaining appeal. The condition aforesaid was taken to be not only onerous and oppressive but unreasonable and arbitrary. It was thus, declared to be ultra vires to Article 14 of the Constitution of India.

In the instant case also, Section 43 (5) of the Act of 2016 mandates deposition of at least 30% of the penalty or such higher percentage, as may be determined by the Tribunal or the total amount payable to the allottee including interests and compensation imposed on the promoter or both, before the appeal is heard. No discretion has been given to the appellate Tribunal to reduce the total amount payable to the allottee including interest and compensation. The discretion lies on the penalty, where also mandate is to deposit 30% amount. Thus, in view of the aforesaid, the present matter may be governed by the ratio propounded by the Apex Court in the case of Mardia Chemicals Ltd. (supra).

7. Learned counsel further submits that if an appeal is preferred by the complainant, condition of pre deposit has not been imposed on him, thus the provision under challenge is even discriminatory in nature offending Article 14 of the Constitution of India. Thus on the aforesaid ground also, Section 43 (5) deserves to be struck down.

8. Coming to the facts of the case, learned counsel for the petitioner submits that a complaint was maintained by the side opposite alleging that a flat under BHAROS A Scheme, Lucknow was booked with the payment of required amount but possession of the flat has not been given. The Real Estate Authority has directed to return a sum of Rs. 3,62,581/- with interest. In pursuance to which the recovery citation has been issued for a sum of Rs. 5,62,738.40 paisa. If the petitioner is subjected to deposition of the entire amount payable to the complainant, then it is nothing but imposition of onerous condition for hearing of the appeal. It is