Order On Board

Per Goutam Bhaduri, J

07.02.2023

1. Heard.

2. The appellant herein is the Builder/ Colonizer/ Developer. The private respondent who purchased the plot filed a complaint before the Real Estate Regulatory Authority (for short “RERA”). According to the private respondent, he purchased plot in a project known as Anandam World City, Kachna on 28.01.2014. It was alleged that while he wanted to construct the house, it was objected by the builders and a demand was made for infrastructure developments fees. Apart from that, the development work in the Colony i.e. Walkway, Fire-station, Open Area, Temple, Development of Pond, Garden, Other amenities of the Retail & Business Shops, Hospital, Amphitheater, Supermarket, Multiplex, ATM, Library, Doctor, Kids' Play Area was not provided. The boundary wall also remained incomplete and the roads were without street lights. Whereas in the brochure and the advertisement, all the amenities were promised to be provided. On such different count, the petition was filed wherein a joint order was passed by the RERA on 10.02.2020 and all the applications filed by the private respondents/ beneficiaries were dismissed.

3. Being aggrieved by such order, an appeal was preferred before the Appellate Tribunal. The Appellate Tribunal by its order dated 08.12.2020 remanded the case with certain directions and RERA was directed to get the area inspected by an Architect to evaluate whether development work was carried out or not and further direction was given that issue about payment of development/user charges in absence of agreement non- execution of the agreement be referred to the adjudicating authority and the grievances of the private home-buyer were directed to be decided afresh.

4. Being aggrieved by the said order of the Appellate Tribunal, this appeal has been filed.

5. After hearing learned counsel for the parties, the following substantial questions of law are framed:

(a) “Whether the order dated 08-12-2020 passed by the learned Real Estate Appellate Tribunal was without jurisdiction since it was passed by a single member?

(b) “Whether the learned Real Estate Appellate Tribunal was justified in law in remanding the case to the adjudicating officer constituted under Section 71 of Real Estate(Regulatory and Development) Act,2016 (for short “RERA”) to adjudicate on various complaints other than issue of compensation in view of limited jurisdiction conferred on the adjudicating officer under Section 71 of the RERA Act, 2016”

6. Mr. Ashish Surana & Mr. Chetan Singh Chouhan, learned counsel for the appellant would submit that the private respondent has filed a complaint with the authority i.e. RERA, which is defined under section 2(i) which defines the Real Estate Regulatory Authority established under sub-section (1) of section 20 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as “Act of 2016”). It is stated whereas the “adjudicating officer” is defined under section 2(a) who is appointed under sub-section (1) of section 71. He would submit that the establishment of the Real Estate Appellant Tribunal is under section 43 of the Act of 2016, which mandates that the Government within one year from the date of coming into force of this Act of 2016, by notification, shall established the Appellate Tribunal and as per sub-section (3) of section 43, the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. He further submits that section 45 of the Act of 2016 further postulates the Composition of the Appellate Tribunal and therefore section 43 & 45 of the Act of 2016 would be relevant to answer the first question of law.

7. He would submit that initially the Real Estate Appellate Tribunal was constituted by a notification on 29.04.2017, it was non functional and as such it was withdrawn by subsequent notification dated 23.10.2019. He would submit that on 31.10.2019, the power to exercise the power of Appellate Tribuna