1]

Heard finally, with the consent of the parties.

2]

This civil second appeal has been filed under Section 58 of

the Real Estate (Regulation and Development) Act, 2016 (in short

'the Act of 2016') and under Section 100 of the Code of Civil

Procedure, 1908 against the judgement dated 07.06.2021, passed by

Member, Madhya Pradesh Real Estate Appellate Tribunal at Bhopal

in Appeal No.A-135/2019, thereby reversing the order dated

10.06.2019, passed by the M.P. Real Estate Regulatory Authority

(in short, RERA) in Case No.M-IND-17-0761 of 2017.

3]

This appeal was admitted by this Court vide order dated

05.10.2021, on the following substantial question of law:-

“1) Whether the impugned judgment can be sustained in

the eyes of law, as it has been passed by one Member

(Judicial) of the Appellate Tribunal, despite the fact

that, as per Section 45 of the M.P. Real Estate

(Regulatory Authority) Act, 2016 the Appellate

Tribunal shall consist of a Chairperson and not less

than two whole time Members of which one shall be

Judicial Member and the other shall be a Technical

or Administrative Member.”

4]

Counsel for the appellants has filed an application I. A. No.

3758 of 2023 under proviso to Section 100 (5) of C.P.C. Raising

additional substantial questions of law, which read as under:-

“(2)

Whether the chairman is empowered

under Section 25 of the Real Estate (Regulation

3

and Development) Act, 2016 to interfere in the

judicial process of a bench of Appellate Tribunal

while having administrative authority?

(3) Whether the impugned order passed by single

member of the bench, be said to be an order passed

by appellate tribunal under section 43(3) of the

Real Estate (Regulation and Development) Act,

2016?”

5]

The aforesaid application is allowed, and the aforesaid

substantial questions of law are also here by framed. Since a copy

this application was already served to the Sr. counsel for the

respondent, who has also advanced his submissions on the said

substantial questions of law as well.

6]

In brief, the facts of the case are that the appellants are a

registered partnership firm and are engaged in the business of

construction and development of Real Estate Projects, whereas the

respondent is the practicing Chartered Accountant in Indore, who

had paid a sum of Rs.3,70,000/- on 16.04.2016, to the appellants as

a part payment towards its booking for unit No.414 to the

forthcoming project of the appellants, namely, “Sky Corporate Park”

to be developed on plot No.25, Scheme No.78-II, A.B. road, Indore.

7]

The dispute between the parties was that according to the

respondent, the cost of the unit was Rs.37 lakhs, whereas according

to the appellants, it was Rs.42, 65,000/-, and other charges. Thus, a

complaint was filed by the respondent before the Madhya Pradesh

Real Estate Regulatory Authority (hereinafter referred to as 'RERA')

in which a reply was also filed by the appellants. The RERA has

decided the complaint vide its order dated 16.04.2018, in favour of

the respondent, and being aggrieved of the same, the Appeal

4

No.34/2018 was preferred by the appellants before the Madhya

Pradesh Real Estate Appellate Tribunal at Bhopal (hereinafter

referred to as 'Appellate Tribunal'), who vide its judgement dated

23.01.2019, remanded the matter back to RERA to decide afresh on

merits of the case. After it was remanded back, the RERA has

passed the order on 10.06.2019, now, in favour of the appellants.

The aforesaid order was again challenged by the respondent in an

appeal before the Appellate Tribunal, which has been allowed by

the Tribunal vide its impugned order dated 07.06.2021, and being

aggrieved of the same, the present appeal has been filed under

Section 58 of the Act of 2016.

8]

Counsel for the appellants has submitted that the impugned

order suffers from the apparent errors which go to the root of the

matter for the reason that the impugned orde