The Chairman vs Shri Sanjay Negi
2022 Latest Caselaw 1981 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL

                      RERA Appeal No. 8 of 2021
The Chairman, Air Force Naval Housing Board
Air Force Station                       .....Appellant
                         Versus
Shri Sanjay Negi                                   .... Respondent
                                       With
                      RERA Appeal No. 9 of 2021

The Chairman, Air Force Naval Housing Board
Air Force Station                       .....Appellant
                         Versus
Smt. Poonam Negi                                   .... Respondent

Present :
Mr. Alok Mahra, Advocate, for the appellant.
Mr. Shashank Saun, Advocate, for the respondent.


                               JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

Heard learned counsel for the parties.

2. These RERA Appeals have been preferred under Section 58 of the Real Estate (Regulation and Development) Act, 2016, (hereinafter to be called as "Act of 2016"), by the appellant, which is an Airforce Naval Housing Board, whose Appeal has been dismissed, as a consequence of the rejection of a Miscellaneous Application No. 14 of 2021, which was filed by the appellant, by the impugned order dated 28th June, 2021, thereby, declining the appellant to deposit the minimum prescribed 30% of the amount, as contemplated under the proviso to Sub-Section (5) of Section 43 of the Act of 2016.

3. If the impugned order is taken into consideration, in fact, the factual aspect, which has been considered by the Court, particularly, in the context of the observation made in para 5, would be the implication, which has been drawn from the effect of the proviso to Sub-Section (5) of Section 43 of the Act of 2016, and the logic, which has been assigned by the Court, is that as referred to and observed in para 11 of the judgement, where the yardstick for determining the amount to be deposited by the appellant has been taken as to be 50% on the factual consideration of the fact, that the appellant has deposited 50% of the amount in other Appeals.

4. The deposit of 50% of the amount in other Appeals is not an aspect, which is subject to the proviso to Sub-section (5) of Section 43 of the Act. Even take for granted, if it is presumed that the appellant has deposited 50% of the amount in other Appeals, that may not create an exemplar or a yardstick that the appellant invariably in all the Appeals, which had been preferred by them, has had to mandatorily deposit 50% of the amount, because each Appeal has had to be independently considered in the light of the facts and provisions contained under Chapter 7 of the Act of 2016.

5. The basic implications of the proviso to Sub- Section (5) of Section 43 of the Act of 2016, is taken into consideration, which is extracted hereunder:-

"43. Establishment of Real Estate Appellate Tribunal.-

(1) .....

(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, is shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent 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 said appeal is heard. "

In fact, an exemption, which has been carved out by law was to enable the Appellate Tribunal, to impose a condition for depositing an amount higher than, what has been prescribed under the proviso, i.e. 30%, the exception of the exercise of direction to deposit an amount higher than the minimum prescribed amount provided under proviso to Sub-Section (5) of Section 43 of the Act of 2016, is only when the Appellate Tribunal applies its mind and assigns its reasons for its determination for fixation of amount higher than prescribed minimum amount of 30%, as contemplated under the proviso to Sub-Section (5) of Section 43 of the Act of 2016.

6. The legislature had specifically used the word that the appellant would have to deposit "at least 30%" i.e. that was the minimum cut off necessity of law, but if the appellate authority, considers that in a given set of factual circumstances of an Appeal, an amount higher than 30% is

required to be deposited, in that eventuality, the Appellate Tribunal will have to "determine".

7. Use of the word "determination" herein, as per the opinion of this Court, would mean that when the appellate Tribunal, if it takes a view or directs the appellant to deposit a higher amount, than what has been prescribed under the proviso, there has had to be a rationality to be attached in the decision of the Appellate Authority for the purposes of direction to deposit an amount more than that as prescribed, minimum amount under the proviso to Sub-Section (5) of Section 43 of the Act of 2016.

8. If the impugned order is taken into consideration, in fact, para 11 is only a narration of fact of the appellant of that having deposited 50% of the amount in the prior pending five Appeals. A narration of fact, of an act of appellant, cannot be read as to be an act of determination by the appellate authority, to carve out an exception to the proviso to Sub-Section (5) of Section 43 of the Act of 2016. Even if the logic, which has been assigned in para 13 and 14 of the impugned judgement under challenge, before this Court, this Court is of the view, that the logic given therein for rejecting the appellants' application for enabling him to deposit 30% of the minimum amount prescribed therein, under the proviso to Sub-Section (5) of Section 43 of the Act of 2016, will not fall to be within ambit of a rational and logical determination because, if the expression given in para 13 and 14 are taken into consideration, this Court is of the view, that when a judicial discretion is preceded by the word

"determination", in that eventuality, the judicial discretion cannot be exercised arbitrarily without a prior determination explicitly reflecting application of mind and with logic and in the absence of there being a prior determination, which is not reflected from the impugned order, the exercise of judicial discretion of rejecting the application under the proviso to Sub-Section (5) of Section 43 of the Act of 2016, would be without any logic and reasoning.

9. In support of his contention, the learned counsel for the appellant had made reference to the judgement rendered by this Court on 12th October, 2020 in RERA Appeal No. 8 of 2020, Resizone Buildwill Pvt. Ltd. Vs. Santan Singh, and another connected RERA Appeal, where almost a similar issue was under consideration and decided by this Court by the judgement of 12th October, 2020, its' a judgment which has attained finality.

10. In that view of the matter, the RERA Appeals are allowed and the impugned order of 28th June, 2021, rejecting the appellant's application under the proviso to Sub-Section (5) of Section 43 of the Act of 2016, for enabling the appellant to deposit 30% of the amount, as contemplated therein, which is the minimum cut off prescribed under law, since it has been rejected without assigning any reason or logic and in the absence of there being any determination, as such made by the appellate Court as such, the impugned order cannot be sustained and the same is quashed.

11. The matter is remitted back to the Appellate Court to re-decide the application of the appellant, for seeking exemption from deposit under the proviso to Sub-Section (5) of Section 43 of the Act of 2016, in the light of the judgement rendered in RERA Appeal No. 8 of 2020, Resizone Buildwill Pvt. Ltd. Vs. Santan Singh, as decided by this Court on 12th October, 2020.

12. Accordingly, the RERA Appeals for the aforesaid reasons stand allowed.

(Sharad Kumar Sharma, J.) 05.07.2022 Shiv