CWP 34244 2019 16 10 2020 Final Order

CWP No.
38144 of 2018 and other connected matters page 1 of 68
IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH
Date of Decision: 16th October, 2020
1. CWP No. 38144 of 2018
Experion Developers Pvt. Ltd.

.......Petitioner
Versus
State of Haryana and others

......Respondents
2. CWP No. 9216 of 2019
M/s Jasmine Buildmart Private Limited

.......Petitioner
Versus
Union of India and others

......Respondents
3. CWP No. 34244 of 2019
Wg. Cdr. Sukhbir Kaur Minhas

.......Petitioner
Versus

......Respondents
4. CWP Nos.23669 & 35219 of 2019
SS Group Private Limited

.......Petitioner
Versus

......Respondents
5. CWP No.37671 of 2019
Bestech India Pvt. Ltd.

.......Petitioner
Versus

......Respondents
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CWP No. 38144 of 2018 and other connected matters page 2 of 68
6. CWP Nos.30068, 30069, 30070, 30071, 30072, 30793, 30812,

34320, 34342 & 34347 of 2019
M/s. Ansal Housing Limited

.......Petitioner
Versus

......Respondents
7. CWP No.32215 of 2019
Parsvnath Developers Limited and another

.......Petitioners
Versus
Union of India and others ......Respondents
8. CWP No.37502 of 2019
Parsvnath Hessa Developers Private Limited

.......Petitioners
Versus
Union of India and Ors

......Respondents
9. CWP No.37549 of 2019
Parsvnath Developers Pvt. Ltd. and another
.......Petitioners
Versus

......Respondents
10. CWP No.37552 of 2019
Parsvnath Hessa Developers Private Limited
.......Petitioner
Versus

......Respondents
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11. CWP Nos. 3921 and 3975 of 2020
Parsvnath Hessa Developers Private Limited and another
.......Petitioners
Versus

......Respondents
12. CWP Nos. 34449, 34622, 34656 & 35209 of 2019
M/s. Pioneer Urban Land and Infrastructure Ltd.

.......Petitioner
Versus

......Respondents
13. CWP Nos. 32110, 32272, 32274, 32275, 35623, 35683, 35735
37163, 37164, 37232, 37241, 37365, 37477, 37594 & 37601 of
2019
Athena Infrastructure Ltd.

.......Petitioner
Versus

......Respondents
14. CWP Nos. 33125, 33404 ,33406, 33417, 33495, 33687, 33702,
34017, 34020, 34021, 35599, 35600, 35618, 35636, 35653 &
35679 of 2019
Athena Infrastructure Ltd.

.......Petitioner
Versus

......Respondents
15. CWP Nos. 32276 and 33140 of 2019
Varali Properties Ltd.

.......Petitioner
Versus

......Respondents
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16. CWP No. 35836 of 2019
Varali Properties Ltd.

.......Petitioner
Versus
State of Haryana
......Respondent
17. CWP Nos. 36172 & 36417 of 2019
Selene Construction Ltd.

.......Petitioner
Versus

......Respondents
18. CWP Nos. 4329, 5402, 5403, 5405, 5406, 5407, 5439, 5441, 5445,
5574, 5576, 5577, 5584 to 5586, 5608, 5609, 5618 & 5753 of 2020
M/s. Ferrous Infrastructure Pvt. Ltd.

.......Petitioner
Versus

......Respondents
19. CWP Nos. 37497 & 37596 of 2019 and

CWP Nos. 66 & 3093 of 2020,
M/s. Ferrous Infrastructure Pvt. Ltd.

.......Petitioner
Versus

......Respondents
20. CWP Nos. 35769, 35777, 36475, 36493, 36526, 36593, 36684,
36696, 36699, 36756 & 37157 of 2019
M/s. Shree Vardhman Infra Home Pvt. Ltd.

.......Petitioner
Versus

......Respondents
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21. CWP No. 9664 of 2020
M/s Imperia Wishfield Private Limited

.......Petitioner
Versus

......Respondents
22. CWP No. 9689, 9692, 9703, 9705, 9706, 9726, 9727, 9730 & 9737
of 2020
M/s. Imperia Wishfield Pvt. Ltd.

.......Petitioner
Versus

......Respondents
23. CWP No. 729 of 2020
M/s. Spaze Tower Private Limited and another

.......Petitioners
Versus

......Respondents
24. CWP No. 36433 of 2019 and CWP Nos. 1090, 1091, 1092, 1129,
3569, 3570, 3600, 3601, 3602, 3603, 3604, 3605, 3606, 3609, 3615,
3616 & 3617 of 2020
Emaar MGF Land Pvt. Limited

.......Petitioner
Versus

......Respondents
25. CWP Nos. 2286 and 2345 of 2020
Saera Auto India Pvt. Ltd. .......Petitioner

Versus

......Respondents
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26. CWP No. 32999 of 2019
Sweta Estates Private Limited

.......Petitioner
Versus
State of Haryana and others ......Respondents
27. CWP No. 14752, 14759, 14766, 14776, 14797, 14805, 14806,
14815, 14827, 14829 14842 & 14860 of 2020
M/s. Apex Buildwell Pvt. Ltd.

.......Petitioner
Versus

......Respondents
28. CWP Nos.9206 & 9313 of 2020
M/s. Almond Infrabuild Pvt. Ltd.

.......Petitioner
Versus

......Respondents
29. CWP No.6027 of 2020
M/s. Splendor Landbase Ltd.

.......Petitioner
Versus

......Respondents
30. CWP Nos.4455 & 4463 of 2020
M/s. VSR Infratech Private Limited

.......Petitioner
Versus

......Respondents
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31. CWP Nos.10019, 10060 & 10066 of 2020
M/s. ALM Infotech City Pvt. Ltd.

.......Petitioner
Versus

......Respondents
32. CWP No.10063 of 2020
The CMD (Mr. Alumuddin Rafi Ahmed),

M/s. International Land Developer (ILD)
.......Petitioner
Versus

......Respondents
33. CWP No.10023, 10038 & 10110 of 2020
M/s. ILD Millennium Pvt. Ltd.

.......Petitioner
Versus

......Respondents
34. CWP No.9658 of 2020
M/s Supertech Ltd.

.......Petitioner
Versus

......Respondents
35. CWP No.37039 of 2019
M/s BPTP Ltd.

.......Petitioner
Versus

......Respondents
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36. CWP No.12237 of 2019
M/s Countrywide Promoters Pvt. Ltd. and others

.......Petitioners
Versus

......Respondents
37. CWP No.10704 of 2020
M/s BPTP Ltd. and others

.......Petitioners
Versus
......Respondents
38. CWP No.15647 of 2019
M/s TDI Infrastructure Ltd.

.......Petitioner
Versus

......Respondents
39. CWP No.1554 of 2020
M/s Mapsko Builders Pvt. Ltd.

.......Petitioner
Versus

......Respondents
40. CWP No.3059 of 2020
M/s ATS Meadows Pvt. Ltd.

.......Petitioner
Versus

......Respondents
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41. CWP Nos.9121, 9391 & 13426 of 2020
CHD Developers Ltd.

.......Petitioner
Versus

......Respondents
42. CWP No.33867 of 2019
Dimple Cineplex
.......Petitioner
Versus

......Respondents
43. CWP No.35937 of 2019
Ashiana Landcraft Realty Private Limited

.......Petitioner
Versus

......Respondents
44. CWP No.34271 of 2019
M/s Sana Realtors Pvt. Ltd.

.......Petitioner
Versus

......Respondents
CORAM: JUSTICE S.MURALIDHAR

JUSTICE AVNEESH JHINGAN
Present: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Alok Kumar Jain,
Advocate for the petitioner in CWP No.2345 of 2020.
Mr. Ashish Chopra, Advocate

for the petitioner(s) in CWP Nos. 9216, 23669, 35219 & 37671 of
2019.
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Mr. Chetan Mittal, Sr. Advocate with Mr. Alok Kumar Jain,
Advocate for the petitioner in CWP No.2286 of 2020.
Mr. Puneet Bali, Sr. Advocate with Mr. Gunjan Rishi, Advocate
for the petitioner(s) in CWP Nos.30068 to 30072 of 2019, CWP-
30812-2019, CWP-32215-2019, CWP-30793-2019, CWP-34320-
2019, CWP-34342-2019, CWP-34347-2019, CWP-37502-2019,
CWP-37549-2019, CWP-37552-2019, CWP-3921-2020 & CWP-
3975-2020.
Mr. Amit Jhanji, Advocate
for the petitioner (s) in CWP Nos. 34449, 34656, 34622 & 35209
of 2019.
Mr. Ajiteshwar Singh, Advocate

for the petitioner(s) in CWP Nos. 32110, 32272, 32274 to 32276,
33125, 33140, 33404, 33406, 33417, 33495, 33687, 33702, 34017,
34020, 34021, 35599, 35600, 35618, 35636, 35653, 35679, 35836,
36172 & 36417 of 2019.
Mr. Gaurav Chopra, Advocate with Mr. Reshabh Bajaj, Advocate,

for the petitioner(s) in CWP Nos. 66, 3093, 4329, 5402, 5403,
5405, 5406, 5407, 5439, 5441, 5445, 5574, 5576, 5577, 5584 to
5586, 5608, 5609, 5618, 5753 of 2020 & CWP Nos. 37497 &
37596 of 2019.
Mr. Anurag Jain, Advocate with

Mr. Shalabh Singhal & Ms. Preeti Taneja, Advocates,
for the petitioner(s) in CWP Nos.35769, 35777, 36475, 36493,
36526, 36593, 36684, 36696, 36699, 36756 & 37157 of 2019.
Mr. Sehajbir Singh, Advocate with

Mr. Chandandeep Singh, Advocate,
for the petitioner(s) in CWP Nos.9664, 9689, 9692, 9703, 9705,
9706, 9726, 9727, 9730 and 9737 of 2020.
Mr. Rajeev Anand, Advocate

37164, 37232, 37241, 37365, 37477, 37594, 37601 of 2019 and
CWP No.729 of 2020.
Mr. R.S. Rai, Sr. Advocate with Mr. Alok Mittal, Advocate,
for the petitioner(s) in CWP No.36433 of 2019, CWP Nos.3569,
3570, 3600 to 3606, 3609, 3615 to 3617 of 2020.
Mr. Rana Gurtej Singh, Advocate

for the petitioner in CWP No.34244 of 2019.
Mr. V.S. Bhardwaj, Advocate

for the petitioner(s) in CWP No.32999 of 2019 and 38144 of 2018.
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Mr. Rahul Rampal, Advocate with Mr. Sandeep Choudhary,

Advocate, for the petitioner(s) in CWP Nos. 14752, 14759, 14766,
14776, 14797, 14805, 14806, 14815, 14827, 14829, 14842 &
14860 of 2020.
Mr. Harsh Bunger, Advocate with Mr. Paritosh Vaid, Advocate

for the petitioner(s) in CWP Nos. 9206 & 9313 of 2020.
Mr. Shubhnit Hans, Advocate

for the petitioner(s) in CWP Nos.6027, 4455 & 4463 of 2020.
Mr. Navdeep Kalair, Advocate with Mr. Venkat Rao, Advocate,

10063, 10066 & 10110 of 2020.
Mr. Hemant Saini, Advocate with

Mr. Pragyan Pradip Sharma, Advocate
for the petitioner in CWP No.12237 & 37039 of 2019.
Mr. Pragyan Pradip Sharma, Advocate

Mr. Rajnish Singh, Advocate

for the petitioner in CWP No. 15647 of 2019.
Mr. Himanshu Raj, Advocate

Mr. Vivek Sethi, Advocate

Mr. Alok Mittal, Advocate

for the petitioner in CWP Nos. 1090, 1091, 1092 & 1129 of 2020.
Mr. Shubankar Baweja, Advocate

for the petitioner in CWP Nos. 9121, 9391 & 13426 of 2020.
Mr. Gunjan Rishi, Advocate

for the petitioner in CWP Nos. 33867 & 35937 of 2019.
Mr. Manu K. Bhandari, Advocate

Mr. Amit Jain, Advocate

Mr. S.P. Jain, Additional Solicitor General of India with

Mr. Shobit Phutela, Mr. Ajay Kalra, Mr. Tanvir Jain, Mr. Rajiv
Sharma and Mr. Brijeshwar Singh Kanwar, Advocates,
for Union of India.
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Mr. Ankur Mittal, Additional A.G., Haryana.

Mr. Ankur Mittal, Advocate with
Mr. Kushaldeep K. Manchanda, Advocates for HRERA.
Mr. Aftab Singh Khara, Advocate for the Respondent Nos. 5 and 6
in CWP No. 9658 of 2020.
****
Dr. S. Muralidhar, J.
Introduction
1. These writ petitions under Article 226 of the Constitution raise several
important questions of law concerning the interpretation of the provisions of the
Real Estate (Regulation and Development) Act, 2016 (hereinafter ‘the Act’) as
well as the Haryana Real Estate (Regulation and Development) Rules, 2017
(hereinafter ‘the Haryana Rules’).
2. In some of these petitions, a challenge has been raised to the constitutional

validity of the proviso to Section 43 (5) of the Act and correspondingly the
orders passed by the Real Estate Appellate Tribunal (hereinafter ‘Appellate
Tribunal’) rejecting the prayer of the Petitioners for waiver of the pre-deposit
for entertaining the appeal against an order of either the Real Estate Regulatory
Authority (‘Authority’) or the Adjudicating Officer (‘AO’), as the case may be.
The Appellate Tribunal has, while rejecting such prayer, extended the time for
making the pre-deposit. The further prayer in these petitions is that given the
undue hardship faced by the Petitioners, the aforesaid orders of the Appellate
Tribunal should be interfered with by this Court, in exercise of its jurisdiction
under Article 226 of the Constitution of India, and the Appellate Tribunal be
directed to entertain the Petitioners’ appeals without insisting on the pre-
deposit.
3. In some of the petitions, a challenge has been laid to Rules 28 and 29 of the
Haryana Rules as well as to forms CRA and CAO as amended by the Haryana
Real Estate (Regulation and Development) Amendment Rules, 2019 notified on
12th September, 2019 (‘Haryana Amendment Rules 2019’) as being ultra vires
the Act. The further issue urged in these petitions concerns the scope and
jurisdiction of the Authority and the AO respectively in relation to complaints
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under the Act. In these petitions there is a corresponding prayer for quashing
the orders passed by the Authority as being without jurisdiction.
4. Lastly, an issue is raised as regards to the applicability of the Act

retroactively to ‘ongoing’ projects. It is sought to be contended by some of the
Petitioners that the relevant provisions of the Act insofar as they seek to apply
retroactively to ‘ongoing’ projects are bad in law.
Challenge to the proviso to Section 43 (5) of the Act

5. The Court first proposes to address the challenge to the proviso to Section 43
(5) of the Act which mandates the making of a pre-deposit, in the circumstances
outlined therein, for the Appellate Tribunal to entertain an appeal against the
order of either the Authority or the AO. Section 43 (5) reads thus:
“43 (5) Any person aggrieved by any direction or decision or order

made by the Authority or by an adjudicating officer under this Act
may prefer an appeal before the Appellate Tribunal having
jurisdiction over the matter:
Provided that where a promoter files an appeal with the Appellate

Tribunal, it shall not be entertained, without the promoter first
having deposited with the Appellate Tribunal at least thirty percent
of the penalty, or such higher percentage as may be determined by
the Appellate Tribunal, or the total amount to be paid to the
allottee including interest and compensation imposed on him, if
any, or with both, as the case may be, before the appeal is heard.
Explanation.—For the purpose of this sub-section "person" shall

include the association of allottees or any voluntary consumer
association registered under any law for the time being in force.
6. It must be noticed straightway that while Section 43 (5) of the Act envisages
the filing of an appeal before the Appellate Tribunal, against the order of the
Authority or the AO, by any “person”, the Explanation appended thereto
clarifies that for the purpose of Section 43 (5), ‘person’ shall include an
association of allottees or any voluntary consumer association registered under
any law for the time being in force”. The proviso to Section 43 (5) of the Act
applies only where the “promoter” intends to appeal against an order of the
Authority or the AO. The word “promoter” has been further defined under
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Section 2 (zk) of the Act as under:

“2.
Definitions—In this Act, unless the context otherwise
requires—
……………
(zk) “promoter” means—
(i) a person who constructs or causes to be constructed an

independent building or a building consisting of apartments,
or converts an existing building or a part thereof into
apartments, for the purpose of selling all or some of the
apartments to other persons and includes his assignees; or
(ii) a person who develops land into a project, whether or

not the person also constructs structures on any of the plots,
for the purpose of selling to other persons all or some of the
plots in the said project, whether with or without structures
thereon; or
(iii) any development authority or any other public body in

respect of allottees of—
(a) buildings or apartments, as the case may be,

constructed by such authority or body on lands owned
by them or placed at their disposal by the Government;
or
(b) plots owned by such authority or body or placed at

their disposal by the Government, for the purpose of
selling all or some of the apartments or plots; or
(iv) an apex State level co-operative housing finance society

and a primary co-operative housing society which constructs
apartments or buildings for its Members or in respect of the
allottees of such apartments or buildings; or
(v) any other person who acts himself as a builder, coloniser,

contractor, developer, estate developer or by any other name
or claims to be acting as the holder of a power of attorney
from the owner of the land on which the building or
apartment is constructed or plot is developed for sale; or
(vi) such other person who constructs any building or

apartment for sale to the general public.
Explanation.—For the purposes of this clause, where the

person who constructs or converts a building into apartments
or develops a plot for sale and the person who sells
apartments or plots are different person, both of them shall
be deemed to be the promoters and shall be jointly liable as
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such for the functions and responsibilities specified under

this Act or the rules and regulations made thereunder”
7. It is further seen that where the order appealed against imposes a penalty,
the promoter has to deposit at least 30% of the penalty amount or such higher
amount as may be directed by the Appellate Tribunal. Where the appeal is
against any other order which involves the payment of an amount to the
allottee, then what has to be deposited with the Appellate Tribunal is “the total
amount to be paid to the allottee” by such promoter/appellant “including
interest and compensation imposed on him, if any, or with both, as the case may
be.” Further, such amount has to be deposited “before the appeal is heard.”
8. As regards the challenge to the constitutional validity of the proviso to

Section 43 (5) of the Act, it is seen that by a decision dated 23rd September
2020, a co-ordinate Division Bench (‘DB’) of this Court has in CWP No. 15205
of 2020 (O&M) (M/s. Lotus Realtech Pvt. Ltd. v. State of Haryana) negatived
a similar challenge.
9. This Court has perused the decision in M/s. Lotus Realtech Pvt. Ltd. (supra),
and finds that it has set out the relevant portions of the recent decision of the
Supreme Court in M/s. Technimont Pvt. Ltd. v. State of Punjab AIR 2019 SC
4489, and has held as under:
“14. The law laid down by the Supreme Court in the aforesaid
decisions is that the right of appeal is the creature of a statute and
therefore, is and can be made conditional upon fulfilling certain
conditions by the statute itself and therefore, any requirement of
fulfillment of a condition imposed by the statute itself before a
person can avail the remedy of appeal is a valid piece of
legislation. It has further been held that the Appellate Authority
does not have the inherent powers to waive the limitation or
precondition prescribed by the statute for filing an appeal as the
inherent incidental or implied powers vested in the Appellate
Authority cannot be invoked to render a statutory provision
nugatory or meaningless. The Supreme Court has also held that in
genuine cases of hardship, an aggrieved person can take recourse
to the remedy of filing a writ petition under Article 226 of the
Constitution of India. However, even in such genuine cases of
hardship, no relief of waiver of pre-deposit can be granted by the
Appellate Authority. The challenge to the impugned provision of
Section 43(5) proviso of the Act of 2016 on this ground, being
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meritless, is therefore, rejected.”
10.The DB in M/s. Lotus Realtech Pvt. Ltd. (supra) also negatived the plea that
requiring only the promoters who are in appeal to make the pre-deposit as a
condition to entertaining their appeals by the Appellate Tribunal, was
discriminatory. Specific to this contention, the DB observed that the treatment
of promoters as a class different from other appellants satisfied the test of
reasonableness laid down by several judgments of the Supreme Court
explaining Article 14 of the Constitution of India. In this regard, it was
observed by the DB in M/s. Lotus Realtech Pvt. Ltd. (supra) as under:
“18. A perusal of the provisions of the Act make it clear that
while limited and few rights and duties are prescribed for allottees
under Section 19 of the Act of 2016, several onerous duties and
obligations have been imposed on the promoters, namely,
registration, duties of promoters, obligations of promoters
adherence to the sanctioned plans, insurance of real estate,
payment of penalty, interest and compensation etc., under Chapter
III and VIII of the Act of 2016. This classification between
consumers and promoters is based upon intelligible differentia
between the rights, duties and obligations of the
allottees/consumers and the promoters and is in furtherance of the
very object and purpose of the Act to protect the interest of the
consumers viz.-a-viz. promoters in the real estate sector. It is for
this reason that the duties, liabilities, obligations and penalties
imposed on the promoters are much more onerous as against those
imposed upon the allottees. A perusal of the provisions of the Act
of 2016 makes it apparent that promoters and the allottees form
two distinctly identifiable separate class of persons and have also
been differently and separately dealt with under the various
provisions of the Act of 2016, therefore, the question of
discrimination between the promoters and the allottees as alleged
by the petitioner does not arise as they fall under two distinct and
different categories/classes.
19. From the object and purpose of the Act of 2016, it is further
evident that the Act seeks to reduce fraud and delays resorted to by
the promoters. For this purpose, adjudication through an authority
established under the Act has been provided and thereafter with a
view to deter promoters from protracting the dispute by involving
the allottees/consumers in lengthy litigation and with a view to
discourage them to file frivolous appeals only with an intention of
delaying the delivery of possession to the allottees, the onerous
condition of pre-deposit has been imposed upon the promoters in
case they file appeals before the Appellate Tribunal against the
orders passed by the authorities. Evidently, the condition of pre-
deposit imposed upon the promoters is inconsonance with and in
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furtherance of the object and purpose of the Act which seeks to

eradicate fraud and delays and ensure prompt delivery of the real
estate to the allottees within the time frame prescribed.
20. We are of the considered opinion that as the promoters form a

distinct and separate class and as the prescription of the condition
of pre-deposit upon the promoters is in furtherance of the object of
the legislation, therefore, the imposition of the condition of pre-
deposit upon the promoters satisfies the test of Article 14 of the
Constitution of India.”
11.Yet another DB of this Court has in a judgment dated 6th October, 2020 in
CWP Nos. 14623 and 14689 of 2020 (M/s. Landmark Apartments Pvt. Ltd. v.
Union of India), come to the same conclusion viz., that it cannot be held that
the condition of pre-deposit, as set out in the proviso to Section 43 (5) of the
Act, is either illegal or onerous, thereby rendering the appeal illusory. The DB
has also rejected the further contention that where the ground of appeal was that
the order of the Authority lacked jurisdiction since the complaint would lie only
before the AO, the condition of pre-deposit would not apply. The Court in this
regard has affirmed the view expressed by the learned Single Judge of this
Court in Janta Land Promoters Pvt. Ltd. v. Abhimanyu Singh Vinayak, 2020
(1) RCR (Civil) 160, holding that even in a case where “the Appellate Authority
proceeds to decide the appeal on the ground of maintainability of the
proceeding before the RERA Authority, that will also amount to hearing and
taking a decision in the appeal” and that “the promoter would be liable to
deposit the pre-requisite amount as per proviso to the Section 43 (5) of the
Act”.
12. Having carefully perused the judgments of the DBs of this Court in M/s
Lotus Realtech Pvt. Ltd. (supra) and M/s Landmark Apartments Pvt. Ltd.
(supra), this Bench finds no reason to take a different view in the matter. As
observed by the Court in the aforesaid judgments, the requirement of pre-
deposit of the amount, as set out in the proviso to Section 43 (5) of the Act,
cannot be held to be unreasonable or arbitrary in light of the legal position
explained in several decisions of the Supreme Court, including M/s
Technimont Pvt. Ltd. v. State of Punjab (supra). It is plain, therefore, that the
challenge to the proviso to Section 43 (5) of the Act must fail. The prayer in
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that regard is hereby rejected.
13. Incidental to this issue is the challenge to the orders of the Appellate
Tribunal rejecting the plea of the Petitioners for waiver of pre-deposit or for
grant of further time, beyond what was already granted by the Appellate
Tribunal, to make the pre-deposit. It was urged that there exists a distinction
between ‘entertaining’ an appeal in terms of the proviso to Section 43 (5) of the
Act and passing orders by the Appellate Tribunal after ‘receipt of an appeal’
under Section 44 (1) of the Act. The specific contention is that Section 44 (3) of
the Act obliges the Appellate Tribunal to pass orders in the appeal after it is
filed, notwithstanding the failure of the promoter, where the promoter is the
Appellant, to make the mandatory pre-deposit before the Appellate Tribunal, as
required by the proviso to Section 43 (5) of the Act.
14. The Court is unable to agree with the above submission. Sections 43 and 44
of the Act are to be read harmoniously. On such reading, the Court finds there
to be no inconsistency in the wording of Section 43 (5) and Section 44 of the
Act. Both envisage the filing of appeals by any person and this would include
the promoter. However, when it comes to an appeal filed by the promoter, the
requirement under the proviso to Section 43 (5) of the Act, will have to be
mandatorily fulfilled, even for the purposes of the Appellate Tribunal having to
pass orders in terms of Section 44 of the Act. The proviso to Section 43 (5) of
the Act clearly states that the pre-deposit is required to be made “before the said
appeal is heard.” In other words, the Appellate Tribunal is not obliged to
proceed to ‘entertain’ or hear an appeal that has been filed before it, if the
promoter, who has filed such appeal, fails to comply with the direction for
making the pre-deposit in terms of the proviso to Section 43 (5) of the Act.
15. Typically, where the Appellate Tribunal rejects the plea of the Appellant for
waiver of pre-deposit, then it grants one more opportunity to the Appellant to
make the pre-deposit within a reasonable time failing which it will proceed to
dismiss the appeal on the following date that is has fixed for the hearing of the
appeal. This is what has happened in each of the cases here. There cannot be an
indefinite postponement of the date by which the pre-deposit has to be made as
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that would defeat the very object of the Act providing a mechanism for
expeditious redressal of the disputes. As explained by the Supreme Court in
M/s. Technimont Pvt. Ltd. (supra), the Appellate Tribunal has no power to
waive the requirement of the making of a pre-deposit as mandated by the
proviso to Section 43 (5) of the Act. This Court has held likewise in Neo
Developers Pvt. Ltd. v. Union of India (decision dated 19th August 2020 in
CWP No. 12154 of 2020) and Shri Mohan Singh v. Haryana Real Estate
Regulatory Authority (decision dated 6th March 2020 in RERA Appeal No. 6 of
2020). Further, as explained by the Supreme Court in Union Bank of India v.
Rajat Infrastructure Pvt. Ltd. (decision dated 2nd March 2020 in CA No. 1902
of 2020), even the High Court cannot issue any direction in that regard contrary
to the Act, since it does not have the powers vested in the Supreme Court under
Article 142 of the Constitution of India. In other words, if the Appellant fails to
make the pre-deposit within the time granted for that purpose once by the
Appellate Tribunal, the Appellate Tribunal would be justified in proceeding to
dismiss the appeal for failure to make the pre-deposit.
16. Therefore, the challenge in these writ petitions on the abovementioned

ground, to all such orders of the Appellate Tribunal, rejecting the request of
Petitioners to be granted further time beyond the date as stipulated by the
Appellate Tribunal or where the appeals have been rejected on account of the
Petitioners’ failure to make the pre-deposit as directed, is hereby rejected.
Exercise of the discretionary jurisdiction under Article 226

17. On the second issue whether in exercise of its jurisdiction under Article 226
of the Constitution, this Court should, in the facts and circumstances of the
individual cases, waive the requirement of pre-deposit, this Court notes that
even in M/s Technimont Pvt. Ltd. (supra), the Supreme Court had noted that
the power of a High Court under Article 226 of the Constitution, in rare cases
of genuine hardship, to waive the requirement of pre-deposit either wholly or in
part, continued. It was held that while there is no discretion conferred by the
statute in question upon the Appellate Authority to grant a waiver of pre-
deposit, as explained in Shyam Kishore v. Municipal Corporation of Delhi
(1993) 1 SCC 22, in cases of extreme hardship, the High Court could, in
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exercise of its power under Article 226 of the Constitution, grant appropriate
relief in that regard. This legal position that in genuine cases of hardship a writ
petition could be a remedy was reiterated in the subsequent decisions of the
Supreme Court in Government of Andhra Pradesh v. P. Laxmi Devi (2008) 4
SCC 720 and Har Devi Asnani v. State of Rajasthan, (2011) 14 SCC 160.
18. It was argued on behalf of the Petitioners, that a distinction had to be drawn
between an order of the Authority which was wholly without jurisdiction i.e.
exercising a jurisdiction not vested in it in law viz., ‘an error of jurisdiction’
and an order which could be viewed as an ‘error in jurisdiction’ viz., the order
is erroneous on grounds other than lack of jurisdiction. The argument,
particularly on the strength of the Supreme Court decision in Embassy Property
Developments Pvt. Ltd. v. State of Karnataka 2019 SCC OnLine SC 1542, was
that while in the latter instance, this Court may decline to exercise its
discretionary writ jurisdiction to judicially review the order, it could not decline
to do so in the former instance. In other words, it was sought to be urged that
since the orders of the Authority challenged in some of these writ petitions was
an ‘error of jurisdiction’ since the complaint had to be dealt with only by the
AO and not the Authority, the existence of an alternative remedy of an appeal
against such order before the Appellate Tribunal would not be a bar to the
entertaining by this Court of a writ petition under Article 226 of the
Constitution seeking judicial review of such order.
19. The above submissions, though attractive, are not impressive. In each of the
individual writ petitions before this Court, where the order of the Appellate
Tribunal declining to waive the requirement of pre-deposit has been challenged,
this Court finds that in the facts and circumstances of the individual cases, no
grounds have been made out to persuade this Court to exercise its writ
jurisdiction under Article 226 of the Constitution to grant any relief in respect
thereof. In none of the cases is the Court satisfied that a case of ‘genuine
hardship’ has been made out.
20. Further, on the interpretation of the provisions of the Act, and the
conclusions drawn by this Court in this judgment on the scope of jurisdiction of
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the Authority and the AO respectively, and given the prayers in the individual
complaints from which these writ petitions arise, none of the impugned orders
of the Authority can be said to be without jurisdiction. In other words, the
Authority cannot be held to have exercised a jurisdiction that it totally lacked.
Whether on the facts of the individual cases the Authority ought to have
decided the complaints differently is a matter of challenge on merits for which a
remedy is in any event available by way of an appeal before the Appellate
Tribunal.
21. It must be noted at this stage that against any order of the Appellate
Tribunal there is a second appeal to the High Court provided for under Section
58 of the Act, which reads as under:
“58. Appeal to High Court—
(1) Any person aggrieved by any decision or order of the

Appellate Tribunal, may, file an appeal to the High Court,
within a period of sixty days from the date of communication
of the decision or order of the Appellate Tribunal, to him, on
any one or more of the grounds specified in section 100 of the
Code of Civil Procedure, 1908 (5 of 1908):
Provided that the High Court may entertain the appeal after the
expiry of the said period of sixty days, if it is satisfied that the
appellant was prevented by sufficient cause from preferring the
appeal in time.
Explanation.—The expression "High Court" means the High

Court of a State or Union territory where the real estate project
is situated.
(2) No appeal shall lie against any decision or order made by

the Appellate Tribunal with the consent of the parties.
22. It is clear that an appeal can be filed in this Court “against any order of the
Appellate Tribunal”. Therefore, an order declining the prayer for waiver of pre-
deposit and the consequential order of dismissal of the appeal itself by the
Appellate Tribunal can also be appealed against before this Court. It is only a
consent order passed by the Appellate Tribunal that cannot be appealed against
as per Section 58 (2) of the Act. However, it is reiterated that in view of the
legal position explained hereinbefore, the Appellate Tribunal has no power, in
terms of the proviso to Section 43 (5) read with Section 44 of the Act, to waive
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the pre-deposit requirement.
23. Even where according to the party aggrieved the Authority lacked
jurisdiction to decide the complaint, it would be for the Appellate Tribunal to
decide that issue in light of the legal position explained in this judgment on the
respective adjudicatory powers of the Authority and the AO. In such event, in
view of the decision of this Court in M/s Landmark Apartments Pvt. Ltd.
(supra), and which is further affirmed by this judgment, for the purposes of the
appeal before the Appellate Tribunal the making of the pre-deposit in terms of
the Act would be mandatory. In any event, in all the appeals before it, the
Appellate Tribunal would order the placing of the pre-deposit amount in a fixed
deposit pending the final decision in the appeal. If it were to order release of the
whole or part of the amount to the allottee, that would have to be upon the
furnishing of adequate security. This would be necessary as in the event of the
appellant succeeding, the amount pre-deposited would be required to be
refunded. Therefore, it cannot be said that great prejudice is going to be caused
to the Petitioners on that score.
24. The Court notices that in some of these petitions, where the Appellate
Tribunal had granted an extension of time to make the pre-deposit, the
Petitioners did not make such pre-deposit, even within the extended time. While
in some cases, the Appellate Tribunal proceeded to pass the consequential order
dismissing the appeal, it had not done so in some others. In many of the writ
petitions arising from such cases, an interim order was passed by this Court
restraining the Appellate Tribunal from dismissing the appeal on the ground of
failure to make the pre-deposit. This Court hereby vacates all such interim
orders. Yet in some cases the registry of the Appellate Tribunal did not process
the appeals for failure to make the pre-deposit. In all these petitions, as a one-
time measure this Court grants time to the Petitioners to make the pre-deposit in
the manner indicated in paras 94 and 95 of this judgment.
25. For all the aforementioned reasons, the contentions in these writ petitions
concerning the constitutional validity of the proviso to Section 43 (5) of the
Act, the orders of the Appellate Tribunal declining to waive the pre-deposit
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requirement or to grant further time to make the pre-deposit and, seeking to

persuade this Court to exercise its jurisdiction under Article 226 of the
Constitution to interfere with such orders of the Authority or the Appellate
Tribunal, as the case may be, are rejected.
Challenge to Rules 28 and 29 of the Haryana Rules, as amended

26. The Court next turns to the issue regarding the respective powers of the
Authority and the AO in regard to adjudication of the complaints made under
the Act, and in that context to the challenge laid to the validity of Rules 28 and
29 of the Haryana Rules, 2017 as well as the amendments made thereto and to
forms CRA and CAO by the Haryana Amendment Rules, 2019 notified on 12th
September, 2019.
27. In this context it requires to be noticed that one of the writ petitions in this
batch was CWP No. 34244 of 2019 (Wing Commander Sukhbir Kaur Minhas v.
State of Haryana and others) which had challenged the amendments to Rules
28 and 29 and forms CRA and CAO vide notification dated 12th September,
2019.
28. It requires to be noticed here that the Haryana Amendment Rules 2019
made several other amendments to the Haryana Rules apart from the
amendments to Rules 28 and 29 and forms CRA and CAO. Nevertheless, when
CWP No. 34244 of 2019 was taken up first for hearing on 25th November,
2019, while issuing notice of motion, the entire notification dated 12th
September, 2019 was directed by this Court to be stayed. The State of Haryana
then filed CM-901 of 2020 seeking a vacation of the stay by pointing out that
the challenge in the writ petition was to a limited extent and that, therefore,
there was no necessity for the entire notification to be stayed. However, by the
time any order could be passed in this application, similar interim orders were
passed in a large number of petitions in this batch staying the entire
notification. It was only on 11th September, 2020 that this Court vacated the
said interim order dated 12th September 2019 in CWP No. 3244 of 2019. This
Court noted that the Petitioner in that case was contending that her complaint
seeking the relief against the promoter for refund and compensation ought not
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to be entertained by the Authority but only by the AO. This Court clarified in
its order dated 11th September, 2020 that no final order would be passed by the
AO on the Petitioner’s complaint.
29. Certain facts leading up to the aforementioned amendments to Rules 28 and

29 of the Haryana Rules may now be adverted to. The Act was enacted in 2016.
The Statements of Objects and Reasons set out in the Bill preceding the Act
read thus:
“Statement of Objects and Reasons. - The real estate sector plays
a catalytic role in fulfilling the need and demand for housing and
infrastructure in the country. While this sector has grown
significantly in recent years, it has been largely unregulated, with
absence of professionalism and standardization and lack of
adequate consumer protection. Though the Consumer Protection
Act, 1986 is available as a forum to the buyers in the real estate
market, the recourse is only curative and is not adequate to address
all the concerns of buyers and promoters in that sector. The lack of
standardization has been a constraint to the healthy and orderly
growth of industry. Therefore, the need for regulating the sector
has been emphasised in various forums. 2. In view of the above, it
becomes necessary to have a Central legislation, namely, the Real
Estate (Regulation and Development) Bill, 2013 in the interests of
effective consumer protection, uniformity and standardization of
business practices and transactions in the real estate sector. The
proposed Bill provides for the establishment of the Real Estate
Regulatory Authority (the Authority) for regulation and promotion
of real estate sector and to ensure sale of plot, apartment or
building, as the case may be, in an efficient and transparent manner
and to protect the interest of consumers in real estate sector and
establish the Real Estate Appellate Tribunal to hear appeals from
the decisions, directions or orders of the Authority. 3. The
proposed Bill will ensure greater accountability towards
consumers, and significantly reduce frauds and delays as also the
current high transaction costs. It attempts to balance the interests of
consumers and promoters by imposing certain responsibilities on
both. It seeks to establish symmetry of information between the
promoter and purchaser, transparency of contractual conditions, set
minimum standards of accountability and a fast-track dispute
resolution mechanism. The proposed Bill will induct
professionalism and standardization in the sector, thus paving the
way for accelerated growth and investments in the long run."
30. The Act envisages adjudication by both the Authority in exercise of the
powers under Chapter V of the Act and in particular Sections 31, 32, 34, 35 and
40 of the Act and the AO in terms of the powers under Chapter VIII of the Act
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and in particular Sections 71 and 72 thereof. Appeals against the orders passed
by the Authority and the AO are maintainable before the Appellate Tribunal
constituted under Section 43 of the Act. Against the orders of the Appellate
Tribunal, an appeal is provided to the High Court under Section 58 of the Act.
This then completes the hierarchical arrangement of the adjudicatory
mechanisms under the Act.
31. The Act spells out the obligations of the promoter of a real estate project
and the consequence of the promoter failing to fulfil those obligations. Some of
those obligations are spelt out in Section 11, 12 to 18 of the Act. Section 18 of
the Act talks of the consequence of the failure by the promoter to complete or to
be unable to give possession of an apartment, plot or building either in terms of
the agreement for sale or failure to complete the project by the date specified
therein or on account of discontinuance of his business either on account of
suspension or revocation of the registration under the Act or for any other
reason. In the event of either of the above contingencies under Section 18 (1)
(a) of the Act, the promoter is made liable on the demand of the allottee:
(i) in the event that the allottee wishes to withdraw from the project,
without prejudice to any other remedy available, to return the
amount received by the promoter in respect of that apartment, plot,
building, as the case may be, together with interest at such rate as
may be prescribed “including compensation in the manner as
provided under this Act”;
(ii) Where an allottee does not intend to withdraw from the project the
promoter shall pay him for every month’s delay in the handing
over of the possession, interest at such rate as may be prescribed.
32. Section 18 (2) of the Act mandates that in case loss is caused to allottee due
to the defective title of the land, on which the project is being developed or has
been developed, the promoter shall compensate the allottee and that such claim
for compensation under Section 18 (2) shall not be barred by limitation
provided under any law for the time being in force.
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33. Section 18 (3) of the Act states that where the promoter fails to discharge
any other obligations under the Act or the Rules or Regulations made there
under or in accordance with the terms and conditions of the agreement for sale,
the promoter shall be liable to pay “such compensation” to the allottees, in the
manner as provided under the Act.
34. It appears on a reading of Section 18 of the Act as a whole that upon the
contingencies spelt out therein, (i) the allottee can either seek refund of the
amount by withdrawing from the project; (ii) such refund could be together
with interest as may be prescribed; (iii) the above amounts would be
independent of the compensation payable to an allottee either in terms of
Sections 18 (2) or 18 (3) of the Act read with other provisions; (iv) the allottee
who does not intend to withdraw from the project will be required to be paid by
the promoter interest for every month’s delay of handing over possession.
35. Correspondingly, Section 19 of the Act spells out “Rights and duties of
allottees”. Section 19 (3) states that the allottee shall be entitled to claim the
possession of the apartment, plot or building, as the case may be, and the
association of allottees shall be entitled to claim the possession of the common
areas, in terms of the declaration by the promoter under Section 4 (2) (i) (C) of
Act. Section 19 (4) of the Act states that in the event of a promoter failing to
comply or being unable to give possession of the apartment, plot or building in
accordance with the terms of agreement for sale or due to discontinuance of his
business as a developer on account of suspension or revocation of his
registration under the provisions of this Act or the rules or regulations made
thereunder, the allottee shall be entitled: (a) to claim refund of the amount paid
along with interest at such rate as has been prescribed; and (b) the
compensation in the manner provided under the Act. To that extent Section 19
(4) of the Act can be said to be a ‘mirror provision’ of Section 18 (1) to (3) of
the Act. Both these provisions recognize a right of an allottee to distinct
remedies, viz., refund of the amount together with interest, interest for delayed
handing over of possession and compensation.
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36. When one turns to the powers of the Authority, it is seen that under Section
31 the complaints can be filed either with the Authority or the AO for violation
or contravention of the provisions of the Act or the Rules and Regulations.
Such complaint can be filed against “any promoter, allottee or real estate
agent”, as the case may be. Such complaint can be filed by “any aggrieved
person”. The Explanation to Section 31 (1) of the Act states that for the
purposes of said sub-section “person” shall include an association of allottees or
any voluntary consumer association registered under any law for the time being
in force. Section 31 (2) states that the form, manner and fees for filing a
complaint under sub-section (1) shall be such as may be prescribed.
37. Section 32 spells out the functions of Authority for promotion of the real
estate sector. Section 34 (f) of the Act states that the functions of the Authority
shall include ensuring “compliance of its regulations cast upon the promoters,
the allottees and the real estate agents under this Act and the rules and
regulations made thereunder”. Under Section 35 of the Act the Authority can,
either on a complaint or suo moto by an order, call upon any promoter or
allottee or real estate agent to furnish in writing such information or explanation
relating to its affairs as the Authority may require.
38. Under Section 35 (1) of the Act the Authority can appoint one or more
persons to make an inquiry into the affairs of any promoter or allottee or the
real estate agent, as the case maybe. Under Section 35 (2) of the Act, the
Authority is given all the powers vested in a civil court under the Code of Civil
Procedure, 1908 (CPC) while trying a suit and this includes the discovery and
production of books of account and other documents; summoning and
enforcing the attendance of persons and examining them; issuing commissions
for the examination of witnesses or documents and “any other matter which
may be prescribed.”
39. Section 36 of the Act recognizes the power of the authority during an
inquiry, to make interim orders restraining any promoter, allottee or real estate
agent from carrying on any act in contravention of the Act, until the conclusion
of such inquiry and without giving notice to such party, where the Authority
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deems it necessary. Section 37 of the Act is widely worded and states that the
Authority may, for the purpose of discharging its functions under the Act or
Rules or Regulations “issue such directions from time to time, to the promoters
or allottees or real estate agents, as the case may be, as it may consider
necessary” and such directions shall be binding on all concerned.
40. Section 38 talks about the power of the Authority to impose penalty or
interest, in regard to any contravention of obligations cast upon the promoters,
the allottees and the real estate agents. Under Section 39, the Authority can
within a period of two years from the date of an order passed by it, make
amendments to such orders for rectifying any mistake apparent from record.
41. Section 40 of the Act is a provision that enables enforcement of orders. It

states that if a promoter or an allottee or a real estate agent, fails to pay any
interest or penalty or compensation imposed on him by the AO or the Authority
or the Appellate Tribunal, as the case may be, it is recoverable from such
person as arrears of land revenue in the manner prescribed. Section 40 (2) of the
Act is another enforcement provision.
42. Chapter VIII of the Act talks about offences, penalties and ‘adjudication’.
Various kinds of penalties are set out in Sections 59 to 68. Each of these
provisions clearly states that the penalty thereunder is required to be determined
by the Authority.
43. Section 71 of the Act titled ‘Power to adjudicate’ is specific to the AO. Sub-
section (1) of Section 71 once opens with the words “For the purpose of
adjudging compensation under Sections 12, 14, 18 and Section 19”. It states
that the Authority shall appoint one or more judicial officers to be an AO for
holding an inquiry in the manner prescribed.” Section 71 (2) of the Act states
that such application for compensation under Section 71 (1) shall be dealt with
by the AO as expeditiously as possible, and the application should be disposed
of within a period of 60 days from the date of its receipt. Under Section 71 (3)
of the Act, while holding an inquiry the AO shall have the power to summon
and enforce the attendance of persons acquainted with the facts and
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circumstances of the case to give evidence or to produce any document which

in the opinion of the adjudicating officer, may be useful for or relevant to the
subject matter of the inquiry. Section 71 (3) of the Act further states that where
upon an inquiry, the AO is satisfied that the person has failed to comply with
Sections 12, 14, 18 and Section 19 of the Act, then the AO may direct such
person to pay compensation or interest, as the case may be, in accordance with
any of those provisions. Section 72 of the Act lists out the factors that have to
be taken into account by the AO while determining the quantum of
compensation or interest, as the case may be, under Section 71 of the Act.
44. Rule 21 (4) of the Haryana Rules is relatable to the adjudicatory powers of
the AO and it reads as under:
“For the purpose of adjudging the compensation under Section 12,
14, 18 and 19, the Authority shall in consultation with Government
appoint one or more officers, who shall not be below the rank of
Class-1 Officer/Additional District Judge who have sufficient
expertise and experience for holding judicial/quasi-judicial
court/enquiry. The adjudicating officer shall give a reasonable
opportunity of hearing to the parties before determining the
compensation.”
45. Rules 28 and 29 of the Haryana Rules deal with the procedure for filing of
complaints before the Authority and the AO respectively. In a decision dated
2nd May 2019 in a batch of appeals, the lead case of which was Appeal No.6 of
2018 (Sameer Mahawar v. MG Housing Private Ltd.), the Appellate Tribunal
held that the compensation payable for the violations of the Act in terms of
Section 12, 14 and 18 of the Act was “within the exclusive competence” of the
AO. According to the Appellate Tribunal, the Authority had specific powers to
levy penalties and set aside an order cancelling the allotment but not to grant
any relief enumerated under Sections 12, 14, 18 and 19 of the Act. It was held
that the mere fact that multiple reliefs may arise and awarded in relation to the
same cause of action could not be a valid ground to justify the filing of
complaints in two different fora. According to the Appellate Tribunal, “the
segregation of the violations and causes of action on the basis of relief is not
legally permissible.” The Appellate Tribunal noted that in terms of the proviso
to Section 71(1) of the Act, a person whose complaint in respect of matters
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covered under Sections 12, 14, 18 and 19 of the Act was pending before any of
the dispute redressal fora under the Consumer Protection Act, 1986 (‘CPA’) on
or before commencement of the Act, may with the permission of such forum
withdraw the complaint and file an application before the AO under the Act.
The Appellate Tribunal concluded that the Authority had no jurisdiction to
adjudicate upon the issue regarding the refund and directed that the complaints
filed by the allottees should stand transferred to the AO for adjudication.
46. Thereafter, the Haryana Amendment Rules 2019 were notified on 12th
September, 2019 whereby inter alia amendments were made to Rules 28 and 29
of the Haryana Rules. The unamended and amended Rules 28 and 29 read as
under:
Rule 28 Rule 28
(Pre-Amendment) (Post-Amendment)
Filing of complaint with the Filing of complaint with Authority

Authority Section 31 (Section 31) and inquiry into
allegations of contravention or
violations (Section 35) and disposal of
complaint (Section 36, Section 37 and
Section 38
28. (1) Any aggrieved person may 28. (1) Any aggrieved person may file a
file a complaint with the Authority complaint with the Authority for any
for any violation of the provisions of violation or contravention of the
the Act or the rules and regulations provisions of the Act or the rules and
made thereunder, save as those regulations made thereunder, against
provided to be adjudicated by the any promoter, allottee or real estate
adjudicating officer, in Form ‘CRA’, agent as the case may be in Form
in triplicate, which shall be ‘CRA’, or in the form specified in the
accompanied by a fees as prescribed regulations, which shall be
in Schedule III in the form of a accompanied by a fees as prescribed in
demand draft or a bankers cheque Schedule III in the form of a demand
drawn on a Scheduled bank in favour draft or a bankers cheque drawn on a
of “Haryana Real Estate Regulatory Scheduled bank or online payment in
Authority”. favour of “Haryana Real Estate
Regulatory Authority”.
(a) Complaint under section 31

may be filed by any aggrieved
person, in case of violation or
contravention of the provisions of
the Act by the promoter, allottee
or the real estate agent, as the
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case may be, and such violation

or contravention has been
established after an inquiry made
by the Authority under section
35.
(b) In case, in the complaint, only

an allegation has been made
regarding contravention or
violation of the provisions of the
Act or the rules or regulations
made thereunder, then the
Authority shall conduct an
inquiry in relation to the affairs of
the promoter or the allottee or the
real estate agent, as the case may
be, for establishing the veracity of
the allegations of the
contravention/violation of the
provisions of the Act or the rules
or regulations made thereunder.
(c) If after an inquiry it is not

established that
or regulation made thereunder
had been committed by the
promoter or the allottee or the
be, then the Authority shall drop
the allegations of
Act.
(d) In case, it is established that

contravention or violation of the
or regulations has been
committed by the promoter or the
allottee or the real estate agent, as
the case may be, the Authority
shall pass such orders or issue
directions or grant relief as per
provisions of the Act.
(e) Where the allottee is the

aggrieved person and the
promoter has violated the
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or the regulations made

thereunder as established on
inquiry by the Authority under
section 35 and in the complaint
compensation has been sought by
the allottee, the complaint for
adjudging quantum of
compensation as contained in
sections 12, 14, 18 and 19, shall
be referred to the adjudicating
officer by the Authority and the
adjudicating officer shall conduct
an inquiry to adjudge the
quantum of compensation as per
the provisions mentioned in sub
section (3) of section 71 by taking
into consideration the factors
mentioned in section 72, in the
manner as prescribed in rule 29.
(2) The Authority shall for the (2) The Authority shall for the purposes
purposes of deciding any complaint of deciding any complaint as specified
as specified under sub-rule (1), under sub-rule (1), shall follow
follow summary procedure for summary procedure for inquiry in the
inquiry in the following manner, following manner, namely: —
namely:-
(a) upon receipt of the (a) upon receipt of the complaint,

complaint, the Authority shall the Authority shall issue a notice
issue a notice along with along with particulars of the
particulars of the alleged alleged violation or contravention
contravention and the relevant and the relevant documents to the
documents to the respondent respondent specifying date and
specifying date and time of time of hearing and by order in
hearing; writing and recording reasons
thereof call upon the respondent
to furnish in writing such
information or explanation
relating to its affairs as the
Authority may require; [section
35(1)]
(b) the respondent against (b) the respondent against whom

whom such notice is issued such notice is issued under clause
under clause (a) of subrule (2), (a), shall file his reply in respect
shall file his reply in respect of of the complaint along with
the complaint within the information or explanation
period as specified in the relating to its affairs within the
notice; period as specified in the notice;
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(c) the notice shall specify a (c) the notice shall specify a date
date and time for further and time for further hearing and
hearing and the date and time the date and time for the hearing
for the hearing shall also be shall also be communicated to the
communicated to the complainant;
complainant;
(d) on the date so fixed, the (d) on the date so fixed, the
Authority shall explain to the Authority shall explain to the
respondent about the respondent about the
contravention alleged to have contravention alleged to have
been committed in relation to been committed in relation to any
any of the provisions of the of the provisions of the Act or the
Act or the rules and rules and regulations made
regulations made thereunder thereunder and if the respondent:
and if the respondent. —
(i) pleads guilty, the (i) pleads guilty, the

Authority shall record Authority shall record the
the plea, and pass such plea, and pass such orders
orders including as it thinks fit in
imposition of penalty as accordance with the
it deems fit in provisions of the Act or the
accordance with the rules and regulations, made
provisions of the Act or thereunder;
the rules and
regulations, made
thereunder;
(ii) does not plead guilty (ii) does not plead guilty
and contests the and contests the complaint,
complaint, the Authority the Authority shall demand
shall demand an an explanation from the
explanation from the respondent;
respondent;
(e) in case the Authority is (e) in case the Authority is

satisfied on the basis of the satisfied on the basis of the
submissions made that the information and explanation and
complaint does not require any other submissions made that the
further inquiry, it may dismiss complaint does not require any
the complaint with reasons to further inquiry, it may dismiss the
be recorded in writing; complaint with reasons to be
recorded in writing;
(f) in case the Authority is (f) in case the Authority is

satisfied on the basis of the satisfied on the basis of the
submissions made that there is information, explanation and
a need for further hearing into other submissions made that there
the complaint, it may order is need for further hearing into
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production of documents or the complaint or matter taken up

other evidence(s) on a date and suo-motu, it may order production
time fixed by it; of documents or other evidence
on a date and time fixed by it;
(g) the Authority shall have (g) the authority shall have the
the power to carry out an power to carry out an inquiry into
inquiry into the complaint on the complaint on the basis of
the basis of documents and documents and submissions, the
submissions; Authority may appoint any person
or expert agency to make an
inquiry in relation to the affairs
of any promoter or allottee or the
be;
(h) the Authority shall have (h) the Authority for making
the power to summon and inquiry shall have the same
enforce the attendance of any powers as are vested in a civil
person acquainted with the court under the Code of Civil
facts and circumstances of the Procedure, 1908 (Central Act 5 of
case to give evidence or to 1908) while trying a suit, in
produce any documents which respect of matters mentioned in
in the opinion of the sub-section (2) of section 35;
adjudicating officer, may be
useful for or relevant to the
subject matter of the inquiry,
and in taking such evidence,
the Authority shall not be
bound to observe the
provisions of the Indian
Evidence Act, 1872 (11 of
1872);
(i) on the date so fixed, the (i) on the date so fixed, the
Authority upon consideration Authority upon consideration of
of the evidence produced the evidence produced before it
before it and other records and and other records and
submissions, is satisfied that, submissions is satisfied that, —
(i) the respondent is in (i) the respondent is in

contravention of the contravention of the
provisions of the Act or provisions of the Act or the
the rules and regulations rules and regulations made
made thereunder, it shall thereunder, it shall record its
pass such orders findings accordingly;
including imposition of
penalty as it thinks fit in
accordance with the
provisions of the Act or
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the rules and regulations

made thereunder;
(ii) the respondent is not (ii) the respondent is not in

in contravention of the contravention of the
provisions of the Act or provisions of the Act or the
the rules and regulations rules and regulations made
made thereunder, the thereunder, the Authority
Authority may, by order may, by order in writing,
in writing, dismiss the dismiss the complaint, with
complaint, with reasons reasons to be recorded in
to be recorded in writing;
writing;
(j) if any person fails, neglects (j) having come to the conclusion
or refuses to appear, or present that the respondent has
himself as required before the committed contravention of the
Authority, the Authority shall provisions of the Act or the rules
have the power to proceed or the regulations made there-
with the inquiry in the absence under or the provisions of the
of such person or persons after agreement for sale, it shall pass
recording the reasons for such orders and directions for the
doing so. purpose of discharging its
functions under the provisions of
this Act or rules or regulations
made thereunder to the
respondent as it may consider
necessary and such directions
shall be binding to all concerned.
In addition, the Authority may
order relief as deemed fit keeping
in view the provisions of the Act
or the rules or regulations made
thereunder or the terms of the
agreement and also keeping in
view the principles of natural
justice.
(k) the Authority may provide

relief in such form as deemed
appropriate including return of
the amount to the allottee
received by the promoter along
with interest at the rate as
prescribed in rule 15.
(l) if the complaint in form

‘CRA’ filed before the authority
for interim orders, directions for
compliance of obligations, relief
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and initiating penalty proceedings

the complaint shall be admissible
from the stage of concluding
inquiry by the Authority that
respondent has violated or
contravened provisions of the Act
or the rules or regulations made
thereunder warranting penalty
proceedings under the provisions
of the Act. The Authority may
initiate penal proceedings
exercising its powers under sub-
section (1) of section 38 to
impose penalty or interest, in
regard to any contravention of
obligations cast upon the
promoters, the allottees and the
real estate agents, under this Act
or the rules and the regulations
made thereunder and Authority
shall be guided by the principle of
natural justice and shall have
power to regulate its procedure.
(i) the Authority shall issue

a notice to the respondent
mentioning the section
under which it intends to
initiate penal proceedings
alongwith a show cause as
why penalty as
contemplated by the
Authority shall not be
imposed upon the violator
respondent;
(ii) on the date so fixed, the

Authority upon
consideration of the reply
to the show cause notice,
may order the respondent
liable to pay penalty as
deem fit subject to
provisions of the Act:
Provided that penalty

may be expressed in lump
sum amount or interest
imposed by the Authority
upon the respondent
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violator and it shall be

credited to the account of
the State Government of
Haryana in accordance
with the provisions of
subsection (2) of section
76;
(iii) if allottee is violator

for any delay in payment
towards any amount or
charges to be paid by him
as per provisions of the Act
or rules or regulations or
agreement for sale, the
Authority may order that
the allottee shall be liable
to pay interest at such rate
as prescribed in rule 15 to
the promoter.
(m) If the complaint in form

‘CAO’ filed before the
adjudicating officer for adjudging
quantum of compensation, the
complaint shall be admissible
from the stage of concluding
inquiry by the Authority that
respondent being promoter has
violated or contravened
or regulations made thereunder
warranting liability of the
promoter to pay compensation to
the allottee under the provisions
of the Act or the rules or
regulations made thereunder. The
Authority may refer the matter to
the adjudicating officer for
adjudging the quantum of
compensation payable to the
complainant allottee, and direct
both the parties to appear before
the adjudicating officer on the
appointed day. The quantum of
compensation payable to the
complainant may be expressed by
the adjudicating officer in the
form of lump sum amount or in
the form of percentage of interest
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on the amount paid by the

complainant to the respondent
promoter (compensation
expressed in terms of interest i.e.
compensatory interest)
(n) if any person fails, neglects or

refuses to appear, or present
himself as required before the
Authority, the Authority shall
have the power to proceed with
the inquiry in the absence of such
person or persons after recording
the reasons for doing so.
(3) The procedure for day to day (3) The procedure for day to day
functioning of the Authority, which functioning of the Authority, which
have not been provided by the Act or have not been provided by the Act or
the rules made thereunder, shall be as the rules made thereunder, shall be as
specified by regulations made by the specified by regulations made by the
Authority. Authority.
(4) Where a party to the complaint is (4) Where a party to the complaint is
represented by an authorised person, represented by an authorised person, as
as provided under section 56, a copy provided under section 56, a copy of the
of the authorisation to act as such authorisation to act as such and the
and the written consent thereto by written consent thereto by such
such authorised person, both in authorised person, both in original, shall
original, shall be appended to the be appended to the complaint or the
complaint or the reply to the notice reply to the notice of the complaint, as
of the complaint, as the case may be. the case may be.”
Rule 29 Rule 29
(Pre-Amendment) (Post-Amendment)
Filing of complaint and inquiry by Filing of complaint/ application for

Adjudicating officer. Sections 12, 14, inquiry to adjudge quantum of
18 and 19. compensation by adjudicating officer,
in respect of compensation under
sections 12, 14, 18 and 19
29. (1) 29. (1)

Any aggrieved person may file a (a) Any aggrieved person may file an
complaint with the adjudicating officer application/ complaint with the
for interest and compensation as adjudicating officer for adjudging
provided under sections 12, 14, 18 and quantum of compensation as provided
19 in Form ‘CAO’, in triplicate, which under sections 12, 14, 18 and 19,
shall be accompanied by a fee as where violation by the promoter has
mentioned in Schedule III in the form been established by the Authority in an
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of a demand draft or a bankers cheque inquiry under section 35, in Form

drawn on a Scheduled bank in favour ‘CAO’or in such form as specified in
of “Haryana Real Estate Regulatory the regulations, which shall be
Authority” and payable at the branch accompanied by a fee as mentioned in
of that bank at the station where the Schedule III in the form of a demand
seat of the said Authority is situated. draft or a bankers cheque drawn on a
Scheduled bank or online payment in
favour of “Haryana Real Estate
Regulatory Authority” and payable at
the branch of that bank at the station
where the seat of the said Authority is
situated.
(2) The adjudicating officer shall for (2) The adjudicating officer shall for
the purposes of adjudging interest and the purposes of adjudging
compensation follow summary compensation follow summary
procedure for inquiry in the following procedure for inquiry in the following
manner, namely:-- manner, namely: —
(a) upon receipt of the (a) upon receipt of the

complaint, the adjudicating complaint, the adjudicating
officer shall issue a notice along officer shall issue a notice to the
with particulars of the alleged respondent promoter along with
contravention and the relevant particulars of the contravention
documents to the respondent; and the copy of the complaint
seeking compensation and
supporting relevant documents
regarding compensation
demanded by the allottee
(aggrieved person) to be paid by
the respondent promoter;
(b) the respondent against (b) the respondent against

whom such notice is issued whom such notice is issued
under clause (a) of sub rule (2) under clause (a) may file his
may file his reply in respect of reply in respect of admissibility
the complaint within the period of the compensation and
as specified in the notice; quantum of compensation
within the period as specified in
the notice;
(c) the notice may specify a date (c) the notice shall specify a
and time for further hearing and date and time for further hearing
the date and time for the hearing and the date and time for the
shall also be communicated to hearing shall also be
the complainant; communicated to the
complainant;
(d) on the date so fixed, the (d) the adjudicating officer shall
adjudicating officer shall have the power to summon and
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explain to the respondent about enforce the attendance of any

the contravention alleged to person acquainted with the facts
have been committed in relation and circumstances of the case to
to any of the provisions of the give evidence or to produce any
Act or the rules and regulations documents which in the opinion
made thereunder and if the of the adjudicating officer, may
respondent, be useful for or relevant to the
subject matter of the inquiry i.e.
(i) pleads guilty, the adjudging quantum of
adjudicating officer shall compensation. [section 71(3)]
record the plea, and by
order in writing, order
payment of interest as
specified in rule 15 and
such compensation as he
deems fit, as the case may
be, in accordance with the
provisions of the Act or
the rules and regulations,
made thereunder;
(ii) does not plead guilty

and contests the
complaint, the
adjudicating officer shall
demand and explanation
from the respondent;
(e) in case the adjudicating (e) while holding inquiry for

officer is satisfied on the basis adjudging the quantum of
of the submissions made that compensation or interest
the complaint does not require (compensation expressed in
any further inquiry, he may term of interest i.e.
dismiss the complaint; compensatory interest) as the
case may be, the adjudicating
officer shall have due regard to
the following factors, -
(i) the amount of

disproportionate gain or
unfair advantage,
wherever quantifiable,
made as a result of the
default;
(ii) the amount of loss

caused as a result of the
default;
(iii) the repetitive nature
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of the default;
(iv) such other factors

which the adjudicating
officer considers
necessary to the case in
furtherance of justice.
(f) in case the adjudicating (f) before announcing his

officer is satisfied on the basis award, a show cause notice shall
of the submissions made that be issued to the promoter
the there is a need for further respondent opposite party;
hearing into the complaint, he specifying therein the quantum
may order production of of compensation proposed to be
documents or other evidence on paid along with reasons thereof.
a date and time fixed by him; After considering the reply of
the promoter (respondent),
evidences and documents all
facts and circumstances and
taking into account of the
factors mentioned in section 72.
The adjudicating officer shall
announce his final award
regarding quantum of
compensation.
(g) the adjudicating officer shall (g) the quantum of

have the power to carry out an compensation to be paid to the
inquiry into the complaint on allottee (complainant) by the
the basis of documents and promoter (violator respondent)
submissions; may be expressed in the form of
lump sum amount to be paid to
the allottee (complainant) or in
percentage of interest on the
amount paid by the allottee
(complainant) to the promoter
(respondent).
(h) the adjudicating officer shall (h) any compensation payable

have the power to summon and by the promoter to the allottee
enforce the attendance of any in terms of the Act or the rules
person acquainted with the facts and regulation made there under
and circumstances of the case to shall be payable by the
give evidence or to produce any promoter to the allottee within a
documents which in the opinion period of ninety days from the
of the adjudicating officer, may date on which compensation has
be useful for or relevant to the been adjudged by the
subject matter of the inquiry, adjudicating officer.
and in taking such evidence.
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(i) on the date so fixed, the

adjudicating officer upon
consideration of the evidence
produced before him and other
records and submissions is
satisfied that the respondent is,-
(i) liable to pay interest
and compensation, as the
case may be, the
adjudicating officer may,
by order in writing, order
payment of
interest as specified in
rule 14 and such
compensation as he
deems
fit.
(ii) not liable to any

interest or compensation,
as the case may be, the
adjudicating officer may,
by order in writing,
dismiss the complaint,
with reasons to be
recorded in writing;
(j) if any person fails, neglects

or refuses to appear, or present
himself as required before the
adjudicating officer, the
adjudicating officer shall have
the power to proceed with the
inquiry in the absence of such
person or persons after
recording the reasons for doing
so.
(3) The procedure for day to day (3) The procedure for day to day
functioning of the adjudicating officer, functioning of the adjudicating officer,
which have not been provided by the which have not been provided by the
Act or the rules made thereunder, shall Act or the rules made thereunder, shall
be as specified by regulations made by be as specified by regulations made by
the Authority. the Authority.
(4) Where a party to the complaint is (4) Where a party to the complaint is
represented by an authorised person, a represented by an authorised person, a
copy of the authorisation to act as such copy of the authorisation to act as such
and the written consent thereto by and the written consent thereto by
such authorised person, both in such authorised person, both in
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original, shall be appended to the original, shall be appended to the

complaint or the reply to the notice of complaint or the reply to the notice of
the complaint, as the case may be. the complaint, as the case may be.
47. Corresponding amendments were made to Forms CRA and CAO. A perusal
of the unamended and amended Rules 28 and 29 of the Haryana Rules, as
juxtaposed, would reveal that the two distinct set of adjudicatory processes, one
before the Authority and the other before the AO, stand explicitly recognized.
Under the amended Rule 28, any aggrieved person can file a complaint with the
Authority against any promoter, allottee or real estate agent inform CRA. If in
that complaint only an allegation has been made regarding contravention or
violation of the provisions of the Act, then the Authority itself is to conduct an
inquiry for establishing the veracity of the allegations. If the allegation is
established, the Authority can pass such orders in accordance with the Act.
Under the amended Rule 28 (e) when the allottee is the aggrieved person and
the promoter has violated the provisions of the Act, and in the complaint
compensation has been sought, then the complaint will be referred by the
Authority to the AO for adjudging ‘quantum of compensation’ as per Section
71(3) of the Act taking into consideration the factors mentioned in Section 72
and in a manner prescribed under amended Rule 29.
48. Rule 28 (2) of the Haryana Rules as amended delineates the procedure that
the Authority will follow in making the inquiry into the allegation of violation
of the provisions of the Act, Rules or regulations. It is further provided under
Rule 28 (3) as amended that the procedure for the day-to-day functioning of the
authority, which has not been provided by Act of the rules, shall be specified by
the regulations made by the authority.
49. Rule 29 of the Haryana Rules as amended talks of filing of complaint/

application for inquiry for adjudging by the AO of the quantum of
compensation under Sections 12,14, 18 & 19. The amended Rule 29 (2) sets out
the summary procedure for inquiry by the AO. Correspondingly, Form CRA
now stands amended with the heading ‘complaint to the authority’ and with the
caption ‘claim for relief, directions/ orders and penalty proceedings under
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Section 31 read with Sections 35, 36, 37 & 38’. The corresponding from CAO
which pertains to complaints before the AO has also been amended where the
word ‘claim’ has been substituted by “claim for compensation or interest, as the
case may be”.
50. The principal arguments of counsel for the Petitioners, assailing the above
amendments, are as follows:
(i) The scheme of the Act and the provisions pertaining to exercise of
adjudicatory functions reveals that the legislative intent was not to have a
bifurcation of the adjudicatory powers between the Authority on the one
hand and the AO on the other. In other words, the legislative intent was
to create only one adjudicating authority for deciding the issues between
the parties.
(ii) If two separate orders are passed by the Authority and the AO on the
issues of determination of violation and quantum of compensation or
interest, two appeals would lie before the Appellate Tribunal with there
being no finality of the determination of the violation. Thus, it would
lead to only multiplicity of litigation.
(iii) In case a complaint is filed before the authority claiming

compensation which was not granted by the Authority since it is not
authorized to deal with that issue, it would amount to denial of
compensation. In such a case, can the complaint for compensation be
refiled before the AO?
(iv) That even for the sake of arguments, if it can be said that the
Authority has power to grant refund of money and interest, then also the
Authority will have jurisdiction to grant interest only under the
agreement between parties. In case the complainant demands interest as
per the Act, Rules and regulations, it will be treated as compensation, and
thus will be within the purview of the AO. Similarly, if the rate of
interest demanded is more than the rate of interest mentioned in the
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agreement, the same will be counted for compensation. Therefore,

wherever anything other than refund and interest as provided in
agreement is claimed by a party, the Authority will not have jurisdiction
to adjudge the same. Where the complainant claims relief of
compensation/ damages, the Authority will act only as a post office and
send the complaint to AO.
(vi) The jurisdiction of a plaint/ complaint depends on the claims made

by the plaintiff/ complainant and not on the relief granted by the
Authority or AO. The question of jurisdiction and maintainability arises
on the presentation of the complaint and not upon its decision. Therefore,
the Authority would not have jurisdiction to determine compensation or
interest. The cause of action being a bundle of rights, cannot be
bifurcated to be agitated in part before one authority and the remaining
before another.
(vii) Interest granted to an allottee in the shape of compensation would be

within the exclusive jurisdiction of the AO. The expression
‘compensation or interest’ in Section 71 (3) cannot be interpreted as
interest on the compensation. It is inconceivable that the interest alone,
without determination of compensation, can be granted.
51. Almost all counsel appearing for the Petitioners have emphasised on the
requisite qualifications for being appointed as an AO and compared it with the
qualifications for being the member of the Authority to argue that it is only the
AO who is intended to undertake the adjudicatory functions of determining
violations of the Act, Rules and regulations and to grant reliefs as a
consequence. Relying on a number of decisions of the Supreme Court and the
High Courts, including Union of India v. R. Gandhi, President, Madras Bar
Association (2010) 11 SCC 1 and State of Gujarat v. Utility Users Welfare
Association (2018) 6 SCC 21 it is argued that only a person, with the requisite
educational qualifications and possessing adequate experience as a judicial
officer can undertake such exercise, failing which the provisions of the Act that
are interpreted to expand the adjudicatory powers of the Authority, would be
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unconstitutional. It is pointed out that disputes under the Act would involve
determining if the clauses of an agreement of sale have been complied with and
that such a ‘lis’ can be adjudged only by the AO. The refrain of the Petitioners
is that the Authority comes in only to determine penalties and consequent
interest on the penalty and nothing more. In other words, according to the
Petitioners, Section 38 of the Act exhausts all of the adjudicatory powers of the
Authority. It is urged that since it is not mandatory for the Authority to have as
its member a judicially trained person, it is not equipped to undertake any
adjudicatory exercise.
52.The stand of the State of Haryana as well as the Authority on the other hand
is that any existing ambiguity in interpretation of provisions of the Act, vis-à-
vis the powers of the Authority and the AO now stands clarified with the
amendment to Rules 28 and 29 of the Haryana Rules and the corresponding
forms CRA and CAO. It is submitted that the limited scope of the powers of the
AO is to adjudge the quantum of compensation or interest by way of
compensation and for all other reliefs, it is the Authority which has the
jurisdiction. It is further submitted that the word ‘interest’ used in Section 71
(3) of the Act is different from the interest payable under Section 18 (1) of the
Act, which is at such rate as may be prescribed. The latter is pre-decided
interest for which no adjudication as such required. The rate is fixed by the
State Government in terms of the Rules. However, for adjudging the quantum
of compensation or quantum of interest by way of compensation, the AO is
required to have due regard to the factors in Section 72 of the Act. Thus the
interest to be determined by the AO is not a pre-fixed rate of interest. This is
separate from the interest payable under Section 18 (1) of the Act. It is
submitted that there is no warrant to restrict the powers of the Authority.
Merely because the qualifications for being appointed as an AO and as a
member of the Authority may be different, cannot lead to the conclusion that it
is only the AO, who has the powers of adjudication and not the Authority.
Reliance has been placed on the decision of the Bombay High Court in
Neelkamal Realtors Suburban Pvt. Ltd v. Union of India, 2018 (1) RCR
(Civil) 298.
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53. The Court now proceeds to consider the above submissions. As already
noted, the Act envisages a three-tier structure of adjudication. The adjudication
in the first instance is to be undertaken by two fora, viz., the Authority and the
AO. In the second tier there is the Appellate Tribunal, which entertains appeals
against the orders of the Authority and the AO. The third tier is the High Court.
Under Section 58 of the Act, an appeal from any order of the Appellate
Tribunal is maintainable before the High Court.
54. Under Section 22 of the Act, while the qualification for being appointed as
Chairperson of the Authority is a person having adequate knowledge and
professional experience of at least 20 years in diverse disciplines/fields
mentioned therein, it is 15 years in the case of Members. The disciplines/fields
mentioned are urban development, housing, real estate development,
infrastructure, economics, and technical experts from relevant fields, planning
law, commerce, accountancy, industry, management, social service, public
affairs or administration. It is, therefore, not mandatory for either the
Chairperson or the member to have professional experience in law. It is
significant, however, that the Chairperson/Members of the Authority are to be
appointed by the appropriate government on the recommendation of a Selection
Committee consisting of the Chief Justice of the High Court or his nominee, the
Secretary of the Department dealing with Housing and the Law Secretary. As
far as the AO is concerned, under Section 71 (1) of the Act, it is the Authority
which appoints the AO in consultation with the appropriate government. The
AO has to necessarily be a serving or retired district judge.
55. From the overall scheme of the Act, and in particular the provisions referred
to, it is evident that no powers of a High Court are sought to be entrusted to the
Authority. The orders of the Authority are appealable before the Appellate
Tribunal, which in terms of Section 46 (1) of the Act is presided over by a
Chairperson who ‘is or has been a Judge of a High Court’. This has to further
be seen in the context of the orders of the Appellate Tribunal itself being
appealable in the High Court. Therefore, even the Appellate Tribunal is
subordinate to the High Court in the hierarchy of judicial authorities under the
Act. This is, therefore, very different from the scheme of the Companies Act
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and the amendments thereto which were under challenge in the Madras Bar
Association case (supra). There the powers of the High Court were entrusted to
the National Company Law Tribunal. It is in that context the decision was
rendered mandating that since the NCLT takes over the functions of the High
Court “the members should as nearly as possible have the same position and
status as High Court Judges”.
56. For the same reason, the reliance by the Petitioners on the decision of
Utility Users Welfare Association (supra) is also misplaced. There the Supreme
Court was dealing with the adjudicatory mechanisms under the Electricity Act,
2003 in which a two-tier structure is contemplated. There are the Central and
State Regulatory Commissions, and adjudication officers at one level and at the
appellate level, there is the Electricity Appellate Tribunal (APTEL). The
APTEL comprises a Chairperson who has been a Judge of the Supreme Court
or Chief Justice of a High Court, one Judicial Member who has been or
qualified to be a judge of a High Court, two Technical Members who are
electricity sector experts and one Technical Member who is an expert from
petroleum and natural gas sector. Each bench of the APTEL has at least one
Judicial Member and one Technical Member. A second appeal lies to the
Supreme Court, from the orders of the APTEL, only on substantial questions of
law. Under the Act in question however, there is an appeal provided to the High
Court from the orders of the Appellate Tribunal. Therefore, it would not be
appropriate to compare the Electricity Commissions under the Electricity Act
with the Authority/AO under the Act or the APTEL with the Appellate
Tribunal. The Court is, therefore, not able to accept the plea of the Petitioners
that in the absence of Chairperson and Members of the Authority not
mandatorily being required to have legal/judicial background but from variety
of other fields, no adjudicatory function can be entrusted to the Authority
whatsoever. Given the two levels of appeals provided under the Act itself, first
to the Appellate Tribunal which has a serving or retired High Court judge as
Chairperson, and then to the High Court, such submission appears to be
misconceived.
57. The judgment of the Bombay High Court in Neelkamal Realtors Suburban
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Pvt. Ltd. (supra) to the extent it holds that there is no mandatory requirement
for the Authority to have a judicial member who has the qualifications of
judicial officer, is consistent with the conclusion of this Court. Indeed, as
explained by the Bombay High Court in Neelkamal Realtors Suburban Pvt.
Ltd. (supra), the context in which the observations were made by the Supreme
Court in Madras Bar Association (supra) was different from the context of the
multi-tiered adjudication process under the present Act.
58. Reliance was placed by counsel for the Petitioners on the following
observations in the report of the Parliamentary Standing Committee on the Real
Estate Bill 2013 to urge that the intention was to entrust the AO alone with
adjudicatory powers:
“8.19. The Committee observe that under sub clause (2) of Clause
61, the application for adjudging compensation under sub-section
(1), shall be dealt with by the adjudicating officer as expeditiously
as possible and dispose of the same within a period of ninety days
from the date of receipt of such application. The Committee are in
agreement with the opinion of RBI that the Adjudicating Officer
needs to have more powers to pass interim orders in the nature of
directing the promoter to deposit at least a portion of the amount of
compensation even before the final disposal if the Adjudicating
Officer is satisfied that there is a prima facie case in favour of the
allottee or to direct the promoter to provide alternative
accommodation to the allottee where there is delay. The
Committee desire the Ministry to incorporate suitable provision in
the Bill.”
59. The above passage no doubt concerns entrusting adjudicatory powers to the
AO but by no means is intended to expand the scope of the powers and
functions of the AO under Section 71 of the Act. The opening words of Section
71 (1) of the Act make it clear that the scope and functions of the AO are only
for ‘adjudging compensation under Sections 12, 14, 18 and 19 of the Act’. If
the legislative intent was to expand the scope of the powers of the AO, then the
wording of Section 71 (1) ought to have been different. On the contrary, even
the opening words of Section 71 (2) of the Act make it clear that an application
before the AO is only for ‘adjudging compensation’. Even in Section 71 (3) of
the Act, it is reiterated that the AO may direct ‘to pay such compensation or
interest as the case may be as he thinks fit’ in accordance with provisions of
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Sections 12, 14, 18 and 19 of the Act. This has to be seen together with the
opening words of Section 72 of the Act, which read “while adjudging the
quantum of compensation or interest, as the case may be, under Section 71, the
adjudicating officer shall have due regard to the following factors,
namely,…………….”
60. On a collective reading of Sections 71 and 72 of the Act, the legislative

intent becomes explicit. This is to limit the scope of the adjudicatory powers of
the AO to determining compensation or interest in the event of violation of
Sections 12, 14, 18 and 19 of the Act. To recapitulate, the question of
compensation arises only in relation to the failure of the promoter to discharge
his obligations. Therefore, in a complaint for compensation or interest in terms
of Section 71 of the Act, the complainant would be the allottee and the
Respondent would be the promoter. However, the powers of the Authority to
inquire into complaints are wider in scope. As is plain from Section 31 of the
Act, a complaint before the Authority can be against “any promoter/allottee,
real estate agent, as the case may be.” It is, therefore, not correct to equate the
adjudicatory powers of the Authority with that of the AO as they operate in
different spheres. Even vis-à-vis the promoter, complaints seeking reliefs other
than compensation or interest in terms of Section 71 read with Section 72 of the
Act, the powers of adjudication are vested only with the Authority and not with
the AO. The submission that since disputes under the Act would involve
determining if the clauses of an agreement of sale have been complied with by
either party and that such a ‘lis’ can be adjudged only by the AO, is also not
acceptable. There is no reason why the Authority cannot examine such a
question if it were to arise for determination in a complaint before it. In any
event, the Authority’s decisions are amenable to judicial review in two further
appeals, once by the Appellate Tribunal and, thereafter, by the High Court.
61. Consequently, the plea of the Petitioners that the power and scope of the
functions of the Authority are limited to determining penalty or interest under
Section 38 of the Act is rejected as it overlooks the wide range of powers of the
Authority on a collective reading of Sections 31, 34 (f), Sections 35, 36 and 37.
In fact, the power to issue interim orders under Section 36 of the Act and the
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power to issue directions under Section 37 of the Act are not made available to
the AO under Section 71 of the Act.
62. The powers of the Authority under Section 35 of the Act are also of a wide
nature. While discharging those functions, it will be open to the Authority to
even require the AO to conduct the inquiry. Section 35 (2) of the Act also
makes its plain that the Authority will have the same powers as a civil Court.
The legislative intent is, therefore, not to diminish the adjudicatory functions of
the Authority but rather to provide it with all the trappings of a quasi-
judicial/judicial authority while inquiring into the complaints and issuing
directions.
63. Although, the Act does use distinct expressions like ‘refund’, ‘interest’,
‘penalty’ and ‘compensation’, a collective reading of the provisions makes it
apparent that when it comes to refund of the amount, and interest on the refund
amount, or directing payment of interest for delayed delivery of possession, or
penalty and interest thereon, it is the Authority which has the power to examine
and determine the outcome of a complaint. This Court finds merit in the
contention on behalf of the Respondents that the expression ‘interest’ as used in
Section 18 of the Act is a pre-determined rate, as may be fixed by the
government, and is distinct from the interest by way of compensation that has
to be computed by the AO in terms of Section 71 (3) keeping in view the
factors outlined in Section 72 of the Act. When it comes to the question of
seeking the relief of compensation or interest by way of compensation, the AO
alone has the power to determine it on a collective reading of Sections 71 and
72 of the Act.
64. The submission on behalf of the Petitioners that the word ‘quantum’ is not
used in Section 71 of the Act and, therefore, the AO has the powers beyond
adjudging compensation, is again based on an improper understanding of the
scope of those powers. If Sections 71 and 72 of the Act are read together, it is
plain that the AO has to adjudge the ‘quantum of compensation’.
65. As far as the proviso to Section 71 (1) of the Act is concerned, it is an
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enabling provision. It enables a person whose complaint is pending in the

consumer fora under the CPA to opt to withdraw such complaints to go before
the AO. However, this has to be read along with Section 88 of the Act, which
clearly states that “the provisions of this Act shall be in addition to, and not in
derogation of, the provisions of any other law for the time being in force.” It is,
therefore, not mandatory for a person, who has a complaint before the
consumer fora to have his complaint transferred to the AO. He can pursue both
the remedies simultaneously on the strength of Section 88 of the Act. If,
however, such person opts to withdraw his complaint before the consumer fora
to come to the AO, the scope of the relief he seeks would be limited to the
compensation or interest. He will, therefore, have to take a conscious decision.
If the relief he is seeking in the complaint before the consumer fora is in
addition to seeking compensation or interest in the form of compensation, for
instance refund of the amount and interest thereon, then he will have to take a
conscious decision on restricting his relief before the AO to one of
compensation or interest by way of compensation. For the remaining reliefs, he
will have to go before the Authority.
66. It was repeatedly urged by the counsel for the Petitioners that the Authority
and the AO can come to different conclusions on the same question, viz.,
whether there has been a violation of provisions of Sections 12, 14, 18 and 19
of the Act by the promoter. This again appears to the Court to be based on an
erroneous understanding of the scheme of the Act. If a complainant is seeking
only compensation or interest by way of compensation simpliciter with no other
relief, then obviously the complainant would straightway file a complaint
before the AO. The complaint will be filed in form CAO and will be referrable
to Rule 29 of the Haryana Rules. The AO in such instance would proceed to
determine whether there is a violation of Sections 12, 14, 18 and 19 of the Act.
Therefore, the question of any inconsistent order being passed by the Authority
in such instance would not arise.
67. The second scenario is that a single complaint is filed seeking a

combination of reliefs with one of the reliefs being relief of compensation and
payment of interest. In such instance, the complaint will first be examined by
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the Authority which will determine if there is a violation of the provisions of

the Act. If such complaint is by the allottee and against the promoter and if the
Authority comes to an affirmative conclusion regarding the violations it will
then, for the limited purpose of adjudging the quantum of compensation or
interest by way of compensation, refer the complaint for that limited purpose to
the AO. With the Authority already having found in favour of the complainant
as regards violation by the promoter of Sections 12, 14, 18 and 19 of the Act,
clearly the AO will not further examine that question. The AO will only
proceed to determine the quantum of compensation or interest keeping in view
the factors outlined in Section 72 of the Act. In other words, the AO will act on
the finding of the Authority on the question of violation of those provisions and
not undertake a fresh exercise in that regard. This way the powers of the
Authority under Section 31 read with Sections 35 to 37 of the Act will not
overlap the functions of the AO under Section 71 of the Act. Both sets of
provisions are, therefore, capable of being harmonized.
68.1 The settled legal position on the doctrine of ‘harmonious construction’

may be noticed at this stage. It was explained by the Supreme Court in
Venkataramana Devaru v. State of Mysore AIR 1958 895 that:
“The rule of construction is well settled that when an enactment
there are in an enactment two provisions which cannot be
reconciled with each other, they should be so interpreted that, if
possible, effect should be given to both. This is what is known as
the rule of harmonious construction.”
68.2 In State of Rajasthan v. Gopi Kishan Sen AIR 1992 SC 1754, it was held:
“the rule of harmonious construction of apparently conflicting
statutory provisions is well established for upholding and giving
effect to all the provisions as far as it may be possible, and for
avoiding the interpretation which may render any of them
ineffective.”
68.3 In CIT v. Hindustan Bulk Carriers (2003) 3 SCC 57, the Supreme Court
reminded that:
“The provisions of one section of the statute cannot be used to
defeat those of another unless it is impossible to effect
reconciliation between them. Thus a construction that reduces one
of the provisions to a "useless lumber' or 'dead letter' is not a
harmonised construction. To harmonise is not to destroy.”
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68.4 In the same decision it was held:

“The Courts will have to reject that construction which will defeat
the plain intention of the legislature even though there may be
some in exactitude in the language used. [See Salmon v. Duncombe
(1886) 11 AC 627 p.634 (PC), Curtis v. Stovin (1889) 22 CBD
513) referred to in Commissioner of Income Tax v. S. Teja Singh
AIR 1959 SC 352].
If the choice is between two interpretations, the narrower of which

would fail to achieve the manifest purpose of the legislation we
should avoid a construction which would reduce the legislation to
futility, and should rather accept the bolder construction, based on
the view that Parliament would legislate only for the purpose of
bringing about an effective result. [See Nokes vs. Doncaster
Amalgamated Collieries (1940) 3 All E.R. 549 (CL) referred to in
Pye vs. Minister for Lands for NSW (1954) 3 All ER 514 (PC)].
The principles indicated in the said cases were reiterated by this
Court in Mohan Kumar Singhania v. Union of India AIR 1992 SC
1. The statute must be read as a whole and one provision of the Act
should be construed with reference to other provisions in the same
Act so as to make a consistent enactment of the whole statute.”
69. In light of the settled legal position, this Court rejects the submission
advanced by the counsel for the Petitioners that the provisions of the Act
concerning the respective adjudicatory powers of the Authority and the AO, as
they presently stand, are irreconcilable and that it is the AO alone that can
exercise those powers to the exclusion of the Authority. Rules 28 and 29 of the
Haryana Rules as amended seek to give effect to the harmonized construction
of the provisions of the Act concerning the powers of the Authority and of the
AO. The amended Rule 28 (1) of the Rules, in so far as it requires the Authority
to first determine violations of the Act and then if it finds the existence of such
violations to refer the matter to the AO only where there is prayer for
compensation and interest by way of compensation, is consistent with above
interpretation. It is in other words based on the correct understanding of the
clear delineation of the powers of the Authority on one hand and the AO on the
other. Rule 29 of the Rules is also consistent with this clear delineation of the
adjudicatory powers of the Authority and the AO respectively. Therefore, the
Court does not find the amended Rules 28 and 29 of the Rules, or the
amendments to Forms CRA and CAO to be ultra vires the Act.
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70. The decision of the Appellate Tribunal rendered on 2nd May, 2019 in
Sameer Mahawar (supra) to the effect that the Authority lacks the power to
examine a complaint seeking refund or the interest can no longer hold good,
particularly since it was rendered prior to the notification of the amended Rules
28 and 29 of the Haryana Rules.
71. The further issue that arises is regarding the prospective application of the
amended Rules 28 and 29 of the Haryana Rules. Here, the settled legal
proposition is that a change of forum would be ‘procedural’. It was explained
by the Supreme Court in Securities and Exchange Board of India v. Classic
Credit Limited (2018) 13 SCC 1, as under:
“34……In our considered view, the legal position expounded by
this Court in a large number of judgments including New India
Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840; Securities
and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765;
and Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 4
SCC 696, is clear and unambiguous, namely, that procedural
amendments are presumed to be retrospective in nature, unless the
amending statute expressly or impliedly provides otherwise.
And also, that generally change of ‘forum’ of trial is procedural,

and normally following the above proposition, it is presumed to be
retrospective in nature, unless the amending statute provides
otherwise.
….
35. We have also no doubt, that alteration of ‘forum’ has been
considered to be procedural, and that, we have no hesitation in
accepting the contention advanced on behalf of the SEBI, that
change of ‘forum’ being procedural, the amendment of the ‘forum’
would operate retrospectively, irrespective of whether the offence
allegedly committed by the accused, was committed prior to the
amendment.”
72. In view of the settled legal position, the position that emerges is this. As
long as the complaint is yet to be decided as on the date of the notification
publishing the Haryana Amendment Rules 2019, that will now be decided
consistent with the procedure outlined under the amended Rules 28 and 29 of
the Haryana Rules. In other words, if the pending or future complaint seeks
only compensation or interest by way of compensation, and no other relief, it
will be examined only by the AO. If the pending or future complaint seeks
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other reliefs i.e. other than compensation or interest by way of compensation,

the complaint will have to be examined by the Authority and not the AO. If the
pending or future complaint seeks a combination of reliefs, the complaint will
have to be examined first by the Authority. If the Authority finds there to be a
violation of Sections 12, 14, 18 and 19 of the Act by the promoter, and the
complaint is by the allottee, then for determining the quantum of compensation
such complaint will be referred by the Authority to the AO in terms of the
amended Rule 28 of the Haryana Rules. A complaint that has already been
adjudicated prior to the coming into force of the amended Rules 28 and 29 of
the Haryana, and the decision has attained finality, will not stand reopened.
Retroactive application of the Act to ‘ongoing projects’

73. The last issue concerns the retroactivity of the provisions of the Act
particularly with reference to ‘ongoing’ projects. The expression “Real Estate
Project” is defined in Section 2 (zn) of the Act to mean:
“the development of a building or a building consisting or
apartments, or converting an existing building or a part thereof into
apartments, or the development of land into plots or apartments, as
the case may be, for the purpose of selling all or some of the said
apartments or plots or building, as the case may be, and includes
the common areas, the development works, all improvements and
structures thereon, and all easement, rights and appurtenances
belonging thereto.”
74. The Act is intended to apply even to ‘ongoing’ Real Estate Projects. The
expression ‘ongoing project’ has not been defined under the Act but under Rule
2 (o) of the Haryana Rules which reads as under:
“ongoing project” means a project for which a license was issued
for the development under the Haryana Development and
Regulation of Urban Area Act, 1975 on or before the 1st May,
2017 and where development works were yet to be completed on
the said date, but does not include:
(i) any project for which after completion of development

works, an application under Rule 16 of the Haryana
Development and Regulation of Urban Area Rules, 1976 or
under sub code 4.10 of the Haryana Building Code 2017, as the
case may be, is made to the Competent Authority on or before
publication of these rules and
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(ii) that part of any project for which part

completion/completion, occupation certificate or part thereof
has been granted on or before publication of these rules.”
75. The expression ‘Completion Certificate’ has been defined under Section 2
(q) of the Act as under:
“completion certificate” means the completion certificate, or such
other certificate, by whatever name called, issued by the competent
authority certifying that the real estate project has been developed
according to the sanctioned plan, layout plan and specifications, as
approved by the competent authority under the local laws.”
76. This has to be read along with the expression ‘occupancy certificate’ which
is defined under Section 2 (zf) of the Act as under:
“occupancy certificate” means the occupancy certificate, or such
other certificate by whatever name called, issued by the competent
authority permitting occupation of any building, as provided under
local laws, which has provision for civic infrastructure such as
water, sanitation and electricity.”
77. Rule 3 of the Haryana Rules talks of application for registration and Rule 4
of ‘additional disclosure by Promoters of ongoing projects.’ Therefore, all
‘ongoing projects’ i.e. those that commenced prior to the Act, and in respect of
which no completion certificate is yet issued, are covered under the Act. It is
plain that the legislative intent was to make the Act applicable to not only to the
projects which were to commence after the Act became operational but also to
ongoing projects. The issue that arises is whether this is permissible in law?
78. The decision of the Bombay High Court in Neelkamal Realtors Suburban
Pvt. Ltd. (supra) has dealt with this issue quite extensively. The conclusion of
the Bombay High Court that this retroactive application of the Act, as
distinguished from retrospective effect, in relation to ongoing project is
consistent with the legal position in this regard. A very conscious decision was
taken that the Act should apply not only to new projects but to existing projects
as well.
79. The following observations of the Bombay High Court in Neelkamal

Realtors Suburban Pvt. Ltd. (supra) are relevant in this context:
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“86. On behalf of the Petitioners it was submitted that registration

of ongoing project under RERA would be contrary to the
contractual rights established between the promoter and allottee
under the agreement for sale executed prior to registration under
RERA. In that sense, the provisions have retrospective or
retroactive application. After assessing, we find that the projects
already completed are not in any way affected and, therefore, no
vested or accrued rights are getting affected by RERA. The RERA
will apply after getting the project registered. In that sense, the
application of RERA is prospective in nature. What the provisions
envisage is that a promoter of a project which is not complete/sans
completion certificate shall get the project registered under RERA,
but, while getting project registered, promoter is entitled to
prescribe a fresh time limit for getting the remaining development
work completed. From the scheme of RERA and the subject case
laws cited above, we do not find that first proviso to Section 3(1) is
violative of Article 14 or Article 19(1)(g) of the Constitution of
India. The Parliament is competent to enact a law affecting the
antecedent events. In the case of State of Bombay v. Vishnu
Ramchandra AIR 1961 SC 307, the Apex Court observed that the
fact that part of the requisites for operation of the statute were
drawn from a time antecedent to its passing did not make the
statute retrospective so long as the action was taken after the Act
came into force. The consequences for breach of such obligations
under RERA are prospective in operation. In case ongoing
projects, of which completion certificates were not obtained, were
not to be covered under RERA, then there was likelihood of
classifications in respect of undeveloped ongoing project and the
new project to be commenced. In view of the material collected by
the Standing Committee and the Select Committee and as
discussed on the floor of the Parliament, it was thought fit that
ongoing project shall also be made to be registered under RERA.
The Parliament felt the need because it was noticed that all over
the country in large number of projects the allottees did not get
possession for years together. Huge sums of money of the allottees
is locked in. Sizable section of allottees had invested their hard
earned money, life savings, borrowed money, money obtained
through loan from various financial institutions with a hope that
sooner or later they would get possession of their
apartment/flat/unit. There was no law regulating the real estate
sector, development work/obligations of promoter and the allottee.
Therefore, the Parliament considered it to pass a central law on the
subject. During the course of hearing, it was brought to notice that
in the State of Maharashtra a law i.e. MOFA on the subject has
been in operation. But MOFA provisions are not akin to regulatory
provisions of RERA.
87. The important provisions like Sections 3 to 19, 40, 59 to 70 and

79 to 80 were notified for operation from 1/5/2017. RERA law was
enacted in the year 2016. The Central Government did not make
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any haste to implement these provisions at one and the same time,
but the provisions were made applicable thoughtfully and phase-
wise. Considering the scheme of RERA, object and purpose for
which it is enacted in the larger public interest, we do not find that
challenge on the ground that it violates rights of the Petitioners
under Articles 14 and 19(1)(g) stand to reason. Merely because
sale and purchase agreement was entered into by the promoter
prior to coming into force of RERA does not make the application
of enactment retrospective in nature. The RERA was passed
because it was felt that several promoters had defaulted and such
defaults had taken place prior to coming into force of RERA. In
the affidavit-in reply, the UOI had stated that in the State of
Maharashtra 12608 ongoing projects have been registered, while
806 new projects have been registered. This figure itself would
justify the registration of ongoing projects for regulating the
development work of such projects.
88. On behalf of the Petitioners it was submitted that Parliament

lacks power to make retrospective laws. Series of judgments cited
above would indicate a settled principle that a legislature could
enact law having retrospective/retroactive operation. It cannot be
countenance that merely because an enactment is made
retrospective in its operation, it would be contrary to Article 14 and
Article 19(1)(g). We find substance in the submissions advanced
by the learned counsel appearing for the respondents that
Parliament not only has power to legislate retrospectively but even
modify pre-existing contract between private parties in the larger
public interest. No enactment can be struck down merely by saying
that it is arbitrary and unreasonable unless constitutional infirmity
has been established. It is settled position that with the
development of law, it is desirable that courts should apply the
latest tools of interpretation to arrive at a more meaningful and
definite conclusion. A balance has to be struck between the
restrictions imposed and the social control envisaged by Article
19(6). The application of the principles will vary from case to case
as also with regard to changing conditions, values of human life,
social philosophy of the Constitution, prevailing conditions and the
surrounding circumstances.
89. Legislative power to make law with retrospective effect is well

recognized. In the facts, it would not be permissible for the
Petitioners to say that they have vested right in dealing with the
completion of the project by leaving the proposed allottees in
helpless and miserable condition. In a country like ours, when
millions are in search of homes and had to put entire life earnings
to purchase a residential house for them, it was compelling
obligation on the Government to look into the issues in the larger
public interest and if required, make stringent laws regulating such
sectors. We cannot foresee a situation where helpless allottees had
to approach various forums in search of some reliefs here and there
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and wait for the outcome of the same for indefinite period. The
public interest at large is one of the relevant consideration in
determining the constitutional validity of retrospective legislation.”
80. This Court concurs with the above conclusions. No order of the Supreme
Court either entertaining a Special Leave Petition against the above decision in
Neelkamal Realtors Suburban Pvt. Ltd. (supra) or staying its operation has
been shown to this Court. In any event, the Court is of the view that there is
nothing unreasonable and arbitrary in making the provisions of the Act
applicable to all ongoing projects. There is a clear indication in the Act read
with the Haryana Rules of what can be considered to be an ongoing project. If
it is the case of the promoter that the completion certificate has been
deliberately delayed, that would be examined by the AO, the Authority or the
Appellate Tribunal, as the case may be, and the decision on that issue shall be
taken into account while deciding the case. The mere fact that there may be an
instance where there has been deliberate delay in issuing the completion
certificate will not render the retroactivity of the provisions unreasonable or
arbitrary. Consequently, this Court rejects the challenge to Sections 13, 18 (1)
and 19 (4) of the Act and Rules 3 to 16 of the Haryana Rules as regards their
retroactive applicability to ‘ongoing projects’.
81. One issue that has been raised in CWP-15647-2019 (M/s TDI Infrastructure
Ltd v. Union of India and others), concerning the retroactive application of
Section 13, 18 (1) and 19 (4) of the Act and Rules 8 and 15 of the Haryana
Rules, is in respect of Space Buyers Agreements that were executed prior to the
coming into force the Act and the Haryana Rules. The submission is that in
terms of the Explanation to Section 3, the project undertaken by the Petitioner
M/s. TDI Infrastructure Limited (hereafter ‘TDI’) cannot be considered to be an
‘ongoing’ project. The contention is that TDI had completed “major portion of
development of their project’ and had obtained a part completion certificate
(CC) and had applied for an occupancy certificate (OC) prior to the coming into
force of the Act, despite which their projects were treated as ‘ongoing’.
According to TDI, on a collective reading of Sections 2 (o) with 2 (zn) of the
Act as interpreted by the Bombay High Court in Neelkamal Realtors Suburban
Pvt. Ltd v. Union of India (supra), the provisions of the specific agreements
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entered into between TDI and their customers prior to coming into force of the
Act and Haryana Rules are sacrosanct and cannot be sought to be overridden by
retrospectively applying the Act and the Rules. It is sought to the contended
that as long as the part CC was obtained and the OC had been applied for and
was pending on the date of the coming into force of the Act, it would not fall
within the definition of ‘ongoing’ project and such projects do not require
registration. The grievance is that despite the above position, a notice dated 17th
January, 2019 was issued by the Authority to TDI under Section 35 of the Act,
taking a contrary view and seeking to apply the Act and Rules to TDI.
82. It is sought to be contended that directions issued by the Authority to TDI

requiring it to get its project registered would contradict the decision of
Supreme Court in K. Kapen Chako v. The Provident Investment Company (P)
Ltd. (1977) 1 SCC 593 which holds that an Act cannot be applied
retrospectively to override the effect of an existing instrument/contract.
Reliance has also been placed in this context on the decisions in Suhas H.
Pophale v. Oriental Insurance Co. Ltd. (2014) 4 SCC 657 and Purbanchal
Cables and Conductors Pvt. Ltd. v. Assam State Electricity Board (2012) 7
SCC 462. In the last mentioned judgment, the Court was considering the award
of interest in terms of new statute and had held that such award of interest could
only be for transactions/contracts executed after the date of enactment and
cannot be retrospective. It is contended that in all the agreements executed by
TDI prior to the enactment of the Act, the buyers were agreed for compensation
for delayed possession in the form of ‘liquidated damages’ payable in terms of
the agreement. There was a contractual cap on the amount of damages that may
be relieved in terms of space buyer agreements. It is contended that all of this
cannot be overridden by applying the provisions of the Act. Reliance is placed
on the statement made by the Minister of Urban Development while dealing
with the Bill in which, inter-alia, it was stated as under:
“Regarding the consequences of including the ongoing projects
under the Bill, I discussed the issue with my officials. This shall
have a bearing on the projects and consumers. In fact, the Select
Committee of Rajya Sabha too in its wisdom supported and
retained the need for regulating existing projects. But at the same
time, project which is almost at the far end of completion and all,
what they require is they need to give only information. We are not
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going to harass them. Because there is so much concern among the

industries circle as to what will happen to the ongoing projects, on
ongoing projects whatever agreement you have entered earlier
stands. You have to fulfill the obligation which you yourself have
agreed upon through an agreement. And whatever conditions that
were stipulated in our agreement, they have to be implemented in
toto. All of what I am proposing will apply for the future projects
along with the projects which have got stuck now. It is necessary
for me to clarify that upon passage of the Bill, ongoing projects
would not come to a standstill. Let me make it very clear in the
premises of the Parliament. They will not come to a standstill they
will continue.
The Bill does not provide that the existing project should stop all
operations until complied with the provisions of the Bill. The Bill
does not say that. The Bill only provides upon the formation of the
authorities, all promoters of existing projects coming within the
ambit of the Bill would need to register and provide and upload all
project details on the website of the Authority. This is mandatory.
A window of three months from the date of the commencement of
the said clauses, sections have been given to the promoters for
registration also.
Reasonable time has been given. All that developers need to do is

to specify the project details of such apartments so that,
prospective buyers will make informed choice, project status is
known to all, and ensure that the projects are completed on time.
That is the need of the hour.”
83. It is, accordingly, contended that Sections 13, 18 (1) and 19 (4) of the Act
and Rules 8 and 15 of the Haryana Rules to the extent they are applied
retrospectively, are violative of Articles 14, 20 and 19 (1) (g) of the
Constitution of India.
84. The above submissions have been considered. The Statement of Objects and
Reasons preceding the enactment have already been referred to. The relevant
passages of the judgment of Bombay High Court in Neelkamal Realtors
Suburban Pvt. Ltd. (supra) have also been referred to. The very concept of
‘ongoing project’ is unique to the Act. The legislature was conscious of the
impact that the Act would have on such ‘ongoing projects’. A collective reading
of Section 3 with Section 2 (o) and 2 (zn) indicates that care was taken to
specify which of the projects would stand exempted. Section 3 (2) (b) of the
Act is categorical that no registration of the project would be required where
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“the promoter has received completion certificate for real estate project prior to
the commencement of this Act.” It cannot thus be argued that without satisfying
the above requirement or the other two contingencies in Sections 2 (a) and 2 (c)
of the Act, a promoter can avoid registering an ‘ongoing’ project under the Act.
85. Whether on the facts of a particular case, a promoter satisfies the above
requirement and therefore, is not required to obtain registration, is for the
Authority to determine in the first instance. If TDI is aggrieved by the decision
of the Authority, then TDI would have other remedies already set out in the
Act. The mere possibility that the Authority may commit an error in concluding
whether TDI satisfies the conditions spelt out in the Act for exempting them
from registration, would not be reason to strike down the provisions
themselves. The Court is of the considered view that Section 13, 18 (1) and 19
(4) of the Act and Rules 8 and 15 of the Haryana Rules do not fall foul of
Articles 14 and 19 (1) (g) of the Constitution on account of the their retroactive
applicability to ‘ongoing’ projects.
86. The Act was consciously made applicable to ‘ongoing projects’ i.e. those
for which a CC has yet not been received by the promoter. There is also no
question of any violation of settled law regarding overriding of the agreements
of sale entered into prior to the date of Act coming into force and Haryana
Rules. Those agreements of sale would obviously be subject to the new legal
dispensation put in place by the Act and the Rules. In light of the object and
purpose of the Act, no comparison can be drawn with the other enactments
which were subject matter of the decisions of Supreme Court relied upon by
TDI.
87. TDI also appears to be making a mistake in treating the penalty imposed
under the Act as a ‘punishment for an offence’ and erroneously contending that
there is a violation of Article 20 of the Constitution of India. The penalty
envisaged under the Act is not in the nature of a punishment for an offence but
the consequence of failure to comply with various obligations specified in the
Act.
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88. For the above mentioned reasons, the Court finds no ground to accept the
prayer of the Petitioner for a declaration that Sections 13, 18 (1) and 19 (4) of
the Act and Rules 8 and 15 of Haryana Rules, to the extent of their retroactive
operation i.e. to ‘ongoing projects’ should be struck down. The Court leaves it
open to TDI to raise all the other contentions regarding the grant or non-grant
of the CC or OC and the applicability to its projects of the Act in its case before
the Authority.
Summary of conclusions
89. To summarise the conclusions:
(i) The challenge to the constitutional validity of the proviso to Section

43 (5) of the Act is rejected.
(ii) The orders of the Appellate Tribunal declining to grant the Petitioners
further time to make the pre-deposit beyond the date as stipulated by the
Appellate Tribunal or where the appeals have been rejected on account of
the Petitioners’ failure to make the pre-deposit as directed, are hereby
affirmed. Nevertheless, this Court has in paragraphs 94 and 95 hereafter
issued directions giving one last opportunity to the Petitioners to make
the pre-deposit in a time-bound manner.
(iii) In the facts and circumstances of the individual cases, no grounds

have been made out to persuade this Court to exercise its writ jurisdiction
under Article 226 of the Constitution to grant any relief in respect of
waiver of pre-deposit. In none of the cases is the Court satisfied that a
case of ‘genuine hardship’ has been made out.
(iv) On the interpretation of the provisions of the Act, the conclusions in

this judgment on the scope of jurisdiction of the Authority and the AO
respectively, and given the prayers in the individual complaints from
which these writ petitions arise, in none of the cases the Authority can be
held to have exercised a jurisdiction that it lacked and its orders cannot be
said to be without jurisdiction. No interference under Article 226 is
warranted on that score.
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(v) As regards the merits of the order of the Authority the remedy of an
appeal before the Appellate Tribunal is in any event available. Even
where according to the party aggrieved the Authority lacked jurisdiction
to decide the complaint, it would be for the Appellate Tribunal to decide
that issue in light of the legal position explained in this judgment on the
respective adjudicatory powers of the Authority and the AO. In such
instance too the pre-deposit would be mandatory.
(vi) A collective reading of provisions makes it apparent that when it

comes to refund of the amount, and interest on the refund amount, or
directing payment of interest for delayed delivery of possession, or
penalty and interest thereon, it is the Authority which has the power to
examine and determine the outcome of a complaint. When it comes to
question of seeking the relief of compensation or interest by way of
compensation, the AO alone has the power to determine it on a collective
reading of Sections 71 and 72 of the Act.
(vii) Rules 28 and 29 of the Haryana Rules as amended seek to give effect
to the harmonized construction of the provisions of the Act concerning the
powers of the Authority and of the AO. They are not ultra vires the Act.
The Court rejects the challenge to the validity of the amended Rules 28
and 29 of the Rules and the amendments to Forms CRA and CAO.
(viii) A complaint yet to be decided as on the date of the notification of

the Haryana Amendment Rules 2019, will now be decided consistent with
the procedure outlined under the amended Rules 28 and 29 of the Haryana
Rules.
(ix) The challenge to Sections 13, 18 (1) and 19 (4) of the Act and Rules 8
and 15 of the Haryana Rules as regards their retroactive applicability to
‘ongoing projects’ is hereby rejected.
90. It is clarified that the above summary of the conclusions have to be read
with the main text of the judgment in the preceding paragraphs. All the interim
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orders in the petitions stand vacated. The proceedings in the pending appeals
before the Appellate Tribunal will now continue in accordance with law.
Orders in the individual writ petitions

91. As far as CWP No. 34244 of 2019 is concerned, the only prayer therein is
for quashing the amended Rules 28 and 29 of the Haryana Rules. In view of the
present judgment of this Court, that prayer is rejected. Further, it may be noted
that by interim order dated 11th September 2020, this Court had vacated the
interim order passed by it on 25th November, 2019 and directed that the AO
before whom the complaint of Petitioner was pending, will proceed with the
hearing but not pass any final order. In view of the present judgment of this
Court, it is now directed that the said complaint, since it seeks refund together
with interest, be placed before the Authority on 23rd November, 2020 for
directions and for the Authority to then proceed to dispose of the said complaint
in accordance with law. The AO will arrange to transmit the record of the said
complaint to the Authority well before the aforementioned date. The writ
petition is dismissed in the above terms.
92. As regards the remaining petitions, many of the prayers are common and
some others are relevant to some of the writ petitions. However, the complete
list of prayers as is evident from examining the prayer clauses in the individual
writ petitions include the following:
(i) That the proviso to Section 43 (5) of the Act be declared

unconstitutional;
(ii) That the amended Rules 28 and 29 forms CRA and CAO of the
Haryana Rules be declared ultra vires of the Act.
(iii) That the order of the Authority be quashed as being without

jurisdiction.
(iv) That the order of the Appellate Tribunal dismissing the application
for waiver of pre-deposit be quashed.
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(v) That the order of the Appellate Tribunal dismissing the appeal for
failure to make the pre-deposit be quashed.
(vi) A direction be issued by this Court in exercise of its powers under

Article 226 of the Constitution, to the Appellate Tribunal to entertain the
Petitioner’s appeal without insisting on any pre-deposit.
(vii) That the retrospective application of Sections 14, 18 and 19 of the

Act and Rules 8 and 15 of the Haryana Rules be declared invalid.
93. For the reasons set out in this judgment each of the above prayers wherever
occurring in the writ petitions is rejected. It is clarified that this Court is
desisting from discussing the merits of the orders of the Authority in the
individual petitions as that would have to be examined by the Appellate
Tribunal wherever appeals have been or are to be filed.
Directions
94. Since these writ petitions have been pending for some time and interim
orders have also been passed in many of them, as a one-time measure
permission is granted to the Petitioners to make the pre-deposit in terms of the
proviso to Section 43 (5) of the Act before the Appellate Tribunal, wherever
appeals have already been filed and are pending, not later than 16th November,
2020. This will also be available to those Petitioners in whose cases the registry
of the Appellate Tribunal did not process the appeals for failure to make the
pre-deposit. Upon the making of such pre-deposit within the time granted by
this Court, the Appellate Tribunal, where the appeal is still pending, will then
proceed to hear the appeal on merits, which would include a challenge to the
validity of the order of the Authority. On failure of the Petitioners to make the
pre-deposit even within the extended time as granted by this Court, the
Appellate Tribunal will proceed to pass appropriate consequential orders in the
appeal.
95. Where the Petitioner’s appeal already stands dismissed by the Appellate
Tribunal for a failure to make the pre-deposit as directed, and that order is
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challenged in the writ petition, this Court as a one-time measure, permits the
Petitioner to make the pre-deposit in terms of the proviso to Section 43 (5) of
the Act before the Appellate Tribunal not later than 16th November, 2020. Upon
making of the pre-deposit within the time granted by this Court, the Appellate
Tribunal will recall its order dismissing the appeal, restore the appeal to file and
proceed to dispose of the appeal on merits, which will include examining the
validity of the order of the Authority. On failure of the Petitioners to make the
pre-deposit with the time as granted by this Court, the order of the Appellate
Tribunal dismissing the appeal will stand affirmed without any further recourse
to this Court.
96. Where no appeal has yet been filed before the Appellate Tribunal, it is open
to the Petitioner to challenge the order of the Authority before the Appellate
Tribunal in accordance with law. The fact of pendency of present petitions will
be taken into account by the Appellate Tribunal while examining the question
of condoning the delay in filing the appeal.
97. With all of the above directions, the writ petitions are dismissed but no
order as to costs. All the interim orders in the individual petitions stand vacated.
98. A copy of this judgment be placed in the connected petitions.
(S. MURALIDHAR)
JUDGE
(AVNEESH JHINGAN)
JUDGE
16th October, 2020
jk/satyawan
Whether speaking/reasoned: Yes/No

Whether Reportable: Yes/No
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CWP 34244 2019 16 10 2020 Final Order

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CWP No.

38144 of 2018 and other connected matters page 1 of 68

IN THE HIGH COURT OF PUNJAB AND HARYANA

Date of Decision: 16th October, 2020

1. CWP No. 38144 of 2018

Experion Developers Pvt. Ltd.

State of Haryana and others

2. CWP No. 9216 of 2019

M/s Jasmine Buildmart Private Limited

Union of India and others

Wg. Cdr. Sukhbir Kaur Minhas

State of Haryana and others

SS Group Private Limited

State of Haryana and others

5. CWP No.37671 of 2019

Bestech India Pvt. Ltd.

Union of India and others

6. CWP Nos.30068, 30069, 30070, 30071, 30072, 30793, 30812,

M/s. Ansal Housing Limited

Union of India and others

Parsvnath Developers Limited and another

Union of India and others ......Respondents

8. CWP No.37502 of 2019

Parsvnath Hessa Developers Private Limited

Union of India and Ors

9. CWP No.37549 of 2019

Parsvnath Developers Pvt. Ltd. and another

Union of India and others

10. CWP No.37552 of 2019

Parsvnath Hessa Developers Private Limited

Union of India and others

11. CWP Nos. 3921 and 3975 of 2020

Parsvnath Hessa Developers Private Limited and another

Union of India and others

12. CWP Nos. 34449, 34622, 34656 & 35209 of 2019

M/s. Pioneer Urban Land and Infrastructure Ltd.

Union of India and others

Athena Infrastructure Ltd.

Union of India and others

Athena Infrastructure Ltd.

State of Haryana and others

15. CWP Nos. 32276 and 33140 of 2019

Varali Properties Ltd.

Union of India and others

16. CWP No. 35836 of 2019

Varali Properties Ltd.

Selene Construction Ltd.

State of Haryana and others

M/s. Ferrous Infrastructure Pvt. Ltd.

Union of India and others

19. CWP Nos. 37497 & 37596 of 2019 and

M/s. Ferrous Infrastructure Pvt. Ltd.

State of Haryana and others

M/s. Shree Vardhman Infra Home Pvt. Ltd.

State of Haryana and others

21. CWP No. 9664 of 2020

M/s Imperia Wishfield Private Limited

Union of India and others

M/s. Imperia Wishfield Pvt. Ltd.

Union of India and others

23. CWP No. 729 of 2020

M/s. Spaze Tower Private Limited and another