# Air Force Naval Housing Board Air Force Station, Race Course, New Delhi v. U.P. Real Estate Regulatory Authority Regional Office, G.B. Nagar & Ors

- **Citation:** (2021) 4 ILRA 109
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-09
- **Case number:** Rera Appeal Defective No. 6 of 2021
- **Bench:** Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/air-force-naval-housing-board-air-force-station-race-course-new-delhi-v-u-p-47027
- **Pages:** 10

## Headnote

(A) Civil Law - The Real Estate (Regulation
& Development) Act, 2016 - Section 44(2)
- Application for settlement of disputes
and appeals to Appellate Tribunal
-
Section 43(5) - Tribunal must form its
opinion on the facts and material before it
- why a higher percentage of the disputed
penalty be deposited by a 'promoter'-
appellant as a condition to entertain its
appeal - no discretion has been vested
with
the
Tribunal
to
waive
the
requirement to deposit of 30% of the
penalty amount as a pre-condition to
maintain an appeal against a penalty
order. (Para -19,20)

Appeal filed by appellant against the order of
the RERA - Tribunal dismissed appeal filed by
the appellant at the preliminary stage - not
entertained due to lack of payment of higher
amount of pre-deposit directed by the Tribunal
under Section 44(2) of the Real Estate Act,
2016 - penalty imposed on the appellant -
Tribunal required the appellant to deposit the
balance amount i.e. the entire amount of
penalty awarded by the RERA as a pre-condition
to maintain the appeal.

HELD:- The Tribunal has not recorded any
special reasons as were necessary and has thus
not 'determined' the amount to be deposited as
a pre-condition to maintain the appeal. Then,
the decisions of this Court relied upon by the
Tribunal
are
wholly
distinguishable.
The
minimum deposit to maintain an appeal against
the penalty, would be 30% of the penalty
amount. For deposit of any higher amount, a
determination would have to be made by the
Tribunal. Therefore, those amounts may have to
be deposited in entirety . Order passed by the
Tribunal dated 28.02.2020 is set aside. (Para -
26,30,32)

Appeal allowed. (E-6)

List of Cases cited:-

## Text

4 All. Air Force Naval Housing Board Air Force Station, Race Course, New Delhi Vs. U.P. Real
Estate Regulatory Authority Regional Office, G.B. Nagar & Ors.
109

"There are three classes of cases
in which a liability may be established
founded upon statute. . . . But there is a
third class, viz. where a liability not
existing at common law is created by a
statute which at the same time gives a
special and particular remedy for enforcing
it.... The remedy provided by the statute
must be followed, and it is not competent to
the party to pursue the course applicable to
cases of the second class. The form given
by the statute must be adopted and adhered
to."

The rule laid down in this
passage was approved by the House of
Lords in Neville v. London Express
Newspapers Ltd. (1919 AC 368) and has
been reaffirmed by the Privy Council in
Attorney-General of Trinidad and Tobago
v. Gordon Grant & Co. Ltd. (1935 AC 532)
and Secretary of State v. Mask & Co. (AIR
1940 PC 105). It has also been held to be
equally applicable to enforcement of rights,
and has been followed by this Court
throughout. The High Court was therefore
justified in dismissing the writ petitions in
limine." (emphasis supplied)"

(iii)
Impugned
order
of
provisional attachment has been passed by
competent authority and on this aspect, no
ground has been taken in writ petition.

34. In the subsequent decision in
Mafatlal Industries Ltd. & Ors. vs.
Union of India & ors. (1997) 5 SCC 536,
the Apex Court went on to observe that an
Act cannot bar and curtail remedy under
Article 226 or 32 of the Constitution. The
Court, however, added a word of caution
and expounded that the constitutional Court
would certainly take note of the legislative
intent manifested in the provisions of the
Act and would exercise its jurisdiction
consistent with the provisions of the
enactment. To put it differently, the fact
that the High Court has wide jurisdiction
under Article 226 of the Constitution, does
not mean that it can disregard the
substantive provisions of a statute and pas
orders which can be settled only through a
mechanism prescribed by the Statute.

35. For the foregoing reasons, including
that the multi-layered remedies are available
to the petitioner under the statute in which the
impugned order of provisional attachment
has been passed as also the judgments
referred hereinabove, we are not inclined to
entertain this writ petition challenging the
provisional attachment order no. 2 of 2021
dated 09.03.2021 under Section 5 of the
Prevention of Money Laundering Act, 2002.
Accordingly, the writ petition is dismissed
with no order as to costs.

36. However, the petitioner is at liberty
to avail the remedies available under the Act.
----------
(2021)04ILR A109
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.03.2021

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J.

Rera Appeal Defective No. 6 of 2021

Air Force Naval Housing Board Air Force
Station, Race Course, New Delhi
 ...Appellant
Versus
U.P. Real Estate Regulatory Authority
Regional Office, G.B. Nagar & Ors.
 ...Respondents
110 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Ashish Kumar Singh, Sri Ajay Kumar
Singh

Counsel for the Respondents:
Sri Wasim Masood

(A) Civil Law - The Real Estate (Regulation
& Development) Act, 2016 - Section 44(2)
- Application for settlement of disputes
and appeals to Appellate Tribunal
-
Section 43(5) - Tribunal must form its
opinion on the facts and material before it
- why a higher percentage of the disputed
penalty be deposited by a 'promoter'-
appellant as a condition to entertain its
appeal - no discretion has been vested
with
the
Tribunal
to
waive
the
requirement to deposit of 30% of the
penalty amount as a pre-condition to
maintain an appeal against a penalty
order. (Para -19,20)

Appeal filed by appellant against the order of
the RERA - Tribunal dismissed appeal filed by
the appellant at the preliminary stage - not
entertained due to lack of payment of higher
amount of pre-deposit directed by the Tribunal
under Section 44(2) of the Real Estate Act,
2016 - penalty imposed on the appellant -
Tribunal required the appellant to deposit the
balance amount i.e. the entire amount of
penalty awarded by the RERA as a pre-condition
to maintain the appeal.

HELD:- The Tribunal has not recorded any
special reasons as were necessary and has thus
not 'determined' the amount to be deposited as
a pre-condition to maintain the appeal. Then,
the decisions of this Court relied upon by the
Tribunal
are
wholly
distinguishable.
The
minimum deposit to maintain an appeal against
the penalty, would be 30% of the penalty
amount. For deposit of any higher amount, a
determination would have to be made by the
Tribunal. Therefore, those amounts may have to
be deposited in entirety . Order passed by the
Tribunal dated 28.02.2020 is set aside. (Para -
26,30,32)

Appeal allowed. (E-6)

List of Cases cited:-

1. Radicon Infrastructure & Housing Pvt. Ltd. Vs
Karan Dhyani , Second Appeal No.364 of 2018

2. Radicon Infrastructure & Housing Pvt. Ltd.
Vs Dhaneshwari Devi Dhyani , Second Appeal
No. 367 of 2018

3. Garikapatti Veeraya Vs N. Subbiah Choudhury
, AIR 1957 SC 540

4. Nahar Industrial Enterprises Ltd. Vs Hong
Kong &Shanghai Banking Corp., (2009) 8 SCC
646

5. Raj Kumar Shivhare Vs Directorate of
Enforcement, (2010) 4 SCC 772

6. Ashok Leland Ltd. Vs St. of T.N. & ors. (2004)
3 SCC 1

(Delivered by Hon'ble Saumitra Dayal
Singh, J)

 1. Heard Sri Ashish Kumar Singh,
learned counsel for the appellant and Sri
Wasim Masood, learned counsel for the
Uttar Pradesh Real Estate Regulatory
Authority (RERA in short).

2. The present appeal has been filed
against the order passed by the Real Estate
Appellate Tribunal (Tribunal in short) in
Appeal/Misc. Case No.360 of 2019 dated
28.02.2020 whereby the Tribunal has
dismissed that appeal filed by the appellant,
under Section 44(2) of the Real Estate
(Regulation & Development) Act, 2016
(hereinafter referred to as the 'Act'). Since
the appellant's appeal before the Tribunal
had been dismissed at the preliminary
stage, it was not entertained due to lack of
payment of higher amount of pre-deposit
directed by the Tribunal. Principally, that
issue appears to be an issue between the
appellant and the Tribunal, affecting the
right of appeal of the appellant without
4 All. Air Force Naval Housing Board Air Force Station, Race Course, New Delhi Vs. U.P. Real
Estate Regulatory Authority Regional Office, G.B. Nagar & Ors.
111
examination on merits. Hence, the present
appeal has been heard and decided at the
fresh stage itself, without notice to the
claimant respondent.

3. Undisputedly, the above-described
appeal came to be filed by the appellant
against the order of the RERA, dated
10.04.2019 whereby penalty @ MCLR +
1% w.e.f. 01.07.2012 was imposed on the
appellant. It may also not be disputed that,
at the time of filing the aforesaid appeal,
the appellant furnished a demand draft for
an amount of Rs.6,33,000/- towards 30% of
the penalty amount awarded by the RERA.
Further, it appears that there is no dispute
to the computation of 30% of the disputed
demand of penalty. By an order dated
28.01.2020, the Tribunal required the
appellant to deposit the balance amount i.e.
the entire amount of penalty awarded by
the RERA as a pre-condition to maintain
the appeal. For convenience, the relevant
part of the order dated 28.01.2020 is quoted
below:

"From perusal of the order
sheet, it is clear that the Applicant has
not complied with the provisions of
Section 43(5) of the Act in legal sense.

Applicant is directed to deposit
the balance amount, if any, towards
Section 43(5) of the Act, in the light of
observation laid down by Hon'ble High
court Lucknow Bench, "in Second Appeal
No. 364 & 367 of 2018 (Radicon
Infrastructure & Housing Private Limited
vs.
Karan
Dhyani),
decided
on
26.7.2019." by the date fixed.

Put
up
on
28.02.2020
for
compliance of Section 43(5) of the Act."

4. Thereafter the matter was listed
before
the
Tribunal
on
28.02.2020
whereupon the Tribunal passed the below
quoted order:

"From the perusal of order sheet,
it is quite clear that on the last date
applicant was directed to deposit the
balance amount towards Section 43(5) of
the Act, in the light of observation laid
down by the Hon'ble Allahabad High
Court, Lucknow bench, "in Second Appeal
No. 364 & 367 of 2018 (Radicon
Infrastructure & Housing Private Limited
vs. Karan Dhyani), decided on 26.7.2019,
but today counsel for the applicant stated
that applicant is not in a position to deposit
the balance amount in the light of order
dated 28.01.2020, hence the instant case is
dismissed due to non compliance of
Tribunal's order dated 28.01.2020.

From the perusal of order sheet,
it also transpires that cost amount Rs.
1,000/- has been imposed on 03.01.2020
and the same has not been deposited so far
in the Tribunal's fund.

Applicant's counsel assured that
he will deposit the cost amount during the
course of day. After deposit the cost
amount the file shall be put up before me
today at 4:00 p.m."

5. The Tribunal has relied on the
observations made by the Lucknow Bench
of this Court in Second Appeal No.364 of
2018
(Radicon
Infrastructure
And
Housing Private Limited Vs. Karan
Dhyani) and Second Appeal No. 367 of
2018
(Radicon
Infrastructure
And
Housing Private Limited Vs. Dhaneshwari
Devi Dhyani), decided on 26.07.2019, to
112 INDIAN LAW REPORTS ALLAHABAD SERIES
require the appellant to deposit the entire
amount of disputed penalty as a condition
to maintain the appeal.

6. The present appeal has been
pressed on the following question of law:

"Whether
deposit
of
entire
disputed demand of penalty is a condition
precedent to maintain the appeal against
penalty, under Section 44(2) of the Real
Estate (Regulation & Development) Act,
2016?"

7. Learned counsel for the appellant
would submit, undisputedly, the appellant
is a zero-profit organization, registered as a
society of retired personnel of the Indian
Air Force and the Indian Navy. It exists and
operates only for the purpose of providing
affordable housing to the members of the
Indian Air Force and the Indian Navy and
the widows of such personnel.

8. In the context of the order impugned
in the present appeal, it has been submitted,
Section 43(5) of the Act does not mandate
pre-deposit of the entire disputed demand of
penalty as a pre-condition to maintain an
appeal under Section 44(2) of the Act. Also,
the decision of this Court in Second Appeal
Nos.364 of 2018 and 367 of 2018 does not
lay down as a proposition of law that the
entire disputed demand of penalty must be
deposited before an appeal is entertained or
maintained under Section 44 of the Act.

9. Thus, learned counsel for the
appellant would submit that the Tribunal
has completely misread the law and/or misapplied itself to reach a very harsh
conclusion that the appeal filed by the
appellant was not maintainable because the
appellant did not deposit the entire disputed
demand of penalty.

10. Learned counsel for the RERA
would submit that the right of appeal
granted under Section 34 of the Act is
circumscribed and conditioned by Section
43(5) of the Act. According to him, there is
no right vested in the appellant to maintain
its appeal by depositing 30% of the
disputed penalty. The Tribunal could
determine a higher amount and, as has been
done in the present case. The right of
appeal would arise only upon deposit of
that higher amount. Since the appellant did
not make the necessary deposit, the
Tribunal has rightly dismissed its appeal.

11. Having heard learned counsel for
the parties and having perused the record, it
appears that the controversy revolves
around the interpretation to be given to
Section 43 (5) of the Act. That provision of
law reads as below:

"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 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.

Explanation.--For the purpose of
this sub-section "person" shall include the
4 All. Air Force Naval Housing Board Air Force Station, Race Course, New Delhi Vs. U.P. Real
Estate Regulatory Authority Regional Office, G.B. Nagar & Ors.
113
association of allottees or any voluntary
consumer association registered under any
law for the time being in force."

12. In Garikapatti Veeraya v. N.
Subbiah Choudhury AIR 1957 SC 540
the Supreme Court considered the nature
and extent of the right of appeal and held:

"23. From the decisions cited
above the following principle clearly
emerge:

(i) That the legal pursuit of a
remedy, suit, appeal and second appeal are
really but steps in a series of proceedings
all connected by an intrinsic unity and are
to be regarded as one legal proceeding.

(ii) The right of appeal is not a
mere matter of procedure but is a
substantive right.

(iii) The institution of the suit
carries with it the implication that all rights
of appeal then in force are preserved to the
parties thereto till the rest of the career of
the suit.

(iv) The right of appeal is a vested
right and such a right to enter the superior
court accrues to the litigant and exists as on
and from the date the lis commences and
although it may be actually exercised when
the adverse judgment is pronounced such
right is to be governed by the law prevailing
at the date of the institution of the suit or
proceeding and not by the law that prevails
at the date of its decision or at the date of the
filing of the appeal.

(v) This vested right of appeal
can be taken away only by a subsequent
enactment, if it so provides expressly or by
necessary intendment and not otherwise."

13.
Then,
in
Nahar
Industrial
Enterprises Ltd. v. Hong Kong and
Shanghai Banking Corp., (2009) 8 SCC
646, while dealing with the issue pertaining
to the provisions of the Recovery of Debts
Due to Banks and Financial Institutions
Act, 1993, it has been reiterated and
elaborated as below:

"Vested right of appeal

125.Another aspect of the matter
also cannot be lost sight of. A plaintiff of a
suit will have a vested right of appeal. The
said right would be determined keeping in
view the date of filing of the suit. Such a right
of appeal must expressly be taken away. An
appeal is the "right of entering a superior
court, and invoking its aid and interposition
to redress the error of the court below" and
"though procedure does surround an appeal
the central idea is a right".

126.The right of appeal has been
recognised by judicial decisions as a right
which vests in a suitor at the time of
institution of original proceedings. The
Privy Council in Colonial Sugar Refining
Co.v.Irving[1905 AC 369 : (1904-07) All
ER Rep Ext 1620 (PC)] noted that: (AC p.
372)

"... To deprive a suitor in a
pending action of an appeal to a superior
tribunal which belonged to him as of right
is a very different thing from regulating
procedure."

127.When a person files a civil
suit his right to prosecute the same in terms
114 INDIAN LAW REPORTS ALLAHABAD SERIES
of the provisions of the Code as also his
right of appeal by way of first appeal,
second appeal, etc. are preserved. Such
rights cannot be curtailed, far less taken
away except by reason of an express
provision contained in the statute. Such a
provision in the statute must be express or
must
be
found
out
by
necessary
implication". (emphasis supplied)

14. Relevant to the issue of deposit of
the disputed demand as a pre-condition to
maintain an appeal under the FEMA, in Raj
Kumar
Shivhare
v.
Directorate
of
Enforcement, (2010) 4 SCC 772, the
Supreme Court considered the effect of
statutory restrictions placed on the right to
appeal and observed as under:

"19.The word "any" in this context
would mean "all". We are of this opinion in
view of the fact that this section confers a
right of appeal on any person aggrieved. A
right of appeal, it is well settled, is a creature
of statute. It is never an inherent right, like
that of filing a suit. A right of filing a suit,
unless it is barred by statute, as it is barred
here under Section 34 of FEMA, is an
inherent right (see Section 9 of the Civil
Procedure Code) but a right of appeal is
always conferred by a statute. While
conferring such right a statute may impose
restrictions, like limitation or pre-deposit of
penalty or it may limit the area of appeal to
questions of law or sometime to substantial
questions of law. Whenever such limitations
are imposed, they are to be strictly followed.
But in a case where there is no limitation on
the nature of order or decision to be
appealed against, as in this case, the right of
appeal cannot be further curtailed by this
Court on the basis of an interpretative
exercise".

.....

.....

.....

29.By referring to the aforesaid
schemes under different statutes, this Court
wants to underline that the right of appeal,
being always a creature of a statute, its
nature, ambit and width has to be
determined from the statute itself. When the
language of the statute regarding the
nature of the order from which right of
appeal has been conferred is clear, no
statutory interpretation is warranted either
to widen or restrict the same."

15. Reading Section 43 (5) of the Act
strictly, the first conclusion that may be
safely drawn is, no appeal may be filed by
a 'promoter' against the order of the RERA
imposing penalty unless a minimum of
30% of the demand of penalty is predeposited by such 'promoter'. There is
absolutely no discretion vested in the
Tribunal to reduce that amount below the
statutorily defined minimum of 30% of the
penalty imposed by the RERA. That
condition is absolute. It has also been met,
in the facts of this case.

16. Second, a discretion is vested in
the Tribunal to determine an amount more
than 30% of the penalty - to be deposited as
a condition to maintain such appeal by a
'promoter'. The legislature has referred to
the same as such higher percentage "as may
be determined by the Appellate Tribunal."

17. Thus, in the first place, in the
event of an appeal being filed by a
'promoter' against an order of the RERA,
imposing penalty, such appellant must
necessarily deposit 30% of the penalty
imposed as a pre-condition to maintain that
appeal. There can be no exception to the
4 All. Air Force Naval Housing Board Air Force Station, Race Course, New Delhi Vs. U.P. Real
Estate Regulatory Authority Regional Office, G.B. Nagar & Ors.
115
same. Neither that percentage or amount
can be reduced by the Tribunal nor an
appeal filed without deposit of that amount
be entertained by the Tribunal.

18. If the Tribunal were to require a
particular 'promoter'-appellant to deposit an
amount that be more than 30% of the
penalty amount imposed by the RERA in
the order impugned before the Tribunal, as
a pre-condition to maintain its appeal, it
would have to first determine the same.
The word 'determine' is not defined under
the Act. In Ashok Leland Ltd. v. State of
Tamil Nadu And Another, (2004) 3 SCC 1,
while considering the meaning to be given
to the word 'determination' appearing in
paragraph nos.94, 95 & 96, the Supreme
Court observed as under:

"94.The word "determination"
must also be given its full effect, which
presupposes application of mind and
expression of the conclusion. It connotes
the official determination and not a mere
opinion of (sicor) finding.

95.In Aiyar, P. Ramanatha:Law
Lexicon, 2nd Edn., it is stated:

"Determination or order.--The
expression 'determination' signifies an
effective expression of opinion which ends
a controversy or a dispute by some
authority to whom it is submitted under a
valid law for disposal. The expression
'order' must have also a similar meaning,
except that it need not operate to end the
dispute. Determination or order must be
judicial or quasi-judicial.Jaswant Sugar
Mills Ltd.v.Lakshmi Chand[AIR 1963 SC
677, 680] (Constitution of India, Article
136)."

96.In Black's Law Dictionary, 6th
Edn., it is stated:

"A 'determination' is a 'final
judgment' for purposes of appeal when the
trial court has completed its adjudication
of the rights of the parties in the
action.Thomas Van Dyken Joint Venture v.
Van Dyken[90 Wis 236, 279 NW 2d 459,
463] ."

19. In the context of Section 43(5) of
the Act, the Tribunal must form its opinion
on the facts and material before it - why a
higher percentage of the disputed penalty
be deposited by a 'promoter'-appellant as a
condition
to
entertain
its
appeal.
Undoubtedly, this would involve exercise
of judicial discretion. In comparable
situations arising under fiscal statutes, the
concept of pre-deposit, pre-exists. There,
(as enabled by the statute), discretion is
often
bestowed
on
the
appeal
authority/Tribunal to waive, either in part
or in whole, the condition of pre-deposit. In
those
situations,
the
Courts
have
consistently opined in favour of such
discretion being exercised on brief reasons
being disclosed while exercising such a
discretionary power - as to existence or
otherwise of prima-facie case, financial
hardship, and irreparable injury.

20. However, as noted above, under
section 43(5) of the Act, no discretion has
been vested with the Tribunal to waive the
requirement to deposit of 30% of the
penalty amount as a pre-condition to
maintain an appeal against a penalty order.
In fact, a discretion has been vested in the
Tribunal to be exercised against the
appellant before it, that too at the
first/preliminary stage of entertainment of
116 INDIAN LAW REPORTS ALLAHABAD SERIES
the appeal. When exercised, it would place
an extra restriction on the right of appeal
being
exercised
by
an
aggrieved
'promoter'/appellant before the Tribunal.

21. If exercised routinely and not in
exceedingly
rare
and
demanding
circumstances, that discretion exercised
may lead to denial to an aggrieved
'promoter'/appellant, its statutory right of
appeal or it may render it completely
illusory. Plainly, in the context of the Act,
the appeal before the Tribunal is the first
and the only appeal on facts. The further
appeal to this Court is an appeal on
substantial question/s of law. Thus, the
Tribunal may never place a condition so
onerous or burdensome, on the appellant
before it, as may shut out the only remedy
of appeal on fact, available under the Act.

22. The judicial discretion thus vested
on the Tribunal must be exercised with
extreme care and it must not appear to have
been exercised on whims or fancies. It may
be exercised only in extreme cases. Only
by way of illustration, that discretion may
be exercised where it appears to the
Tribunal, even on a prima facie basis, that
the penalty imposed by RERA is too
less/insignificant to the infraction found or
that the appellant before it is a repeat or
habitual or wilful offender or the facts
appear to involve large scale infractions of
the law, by way of an organised activity. In
such and other cases, for which judicially
sound reasons may be recorded as may
compel or commend to the Tribunal to
require a particular appellant to deposit an
amount higher than the statutory predefined limit of 30% of the penalty.

23. Unless careful application of mind
is first made by the Tribunal to the facts of
the individual case and unless the Tribunal
records specific reasons to determine the
higher amount required to be deposited by
the 'promoter'-appellant, to maintain its
appeal against the order imposing penalty
passed by the RERA, the entire exercise
made by the Tribunal may be questioned as
arbitrary or unreasoned. That would be
wholly undesirable and an avoidable course
in the context of the quasi-judicial power
exercised by the Tribunal.

24. In exercising its power, the
Tribunal may always remain cognizant of
the real purpose for which it exists being to
deliver justice by adjudicating the appeals
brought before it, on merits. Normally, the
legislature provides a right of appeal
without
a
condition
of
pre-deposit.
However, in financial matters, the modern
legislative trend has been to provide for a
minimum deposit as a pre-condition to
maintain the appeal. Unless the orders of
the Tribunal requiring pre-deposit at higher
rates (30% of penalty) are informed with
reasons, such practice, if allowed, would
amount to taking away the right of appeal
before the Tribunal, by an order passed by
the Tribunal that has been vested with the
jurisdiction to decide such appeals on
merits. It would be a uniquely odd process
and result, factually and jurisprudentially.
The appellant in that situation may end up
being pre-judged by the Tribunal.

25. Therefore, in addition to the
above, in each case where it proposes to
enhance the pre-deposit amount, the
Tribunal would also be obliged to consider
the prima facie merits, the financial
hardship (of the 'promoter'-appellant) and
the question of irreparable loss or hardship
that may be claimed by such 'promoter'-
appellant, if it were to be compelled to
deposit any amount higher than 30% of the
penalty awarded by the RERA, as a
4 All. Air Force Naval Housing Board Air Force Station, Race Course, New Delhi Vs. U.P. Real
Estate Regulatory Authority Regional Office, G.B. Nagar & Ors.
117
condition to maintain its appeal against the
penalty order.

26. Consequently, the power of the
Tribunal to direct pre-deposit in excess of
30% of the penalty, under section 43(5) of
the Act is found to be purely discretionary,
to be exercised with extreme caution, in
rare cases, by way of an exception and not
routinely.

27. Coming to the facts of this case,
the Tribunal has not recorded any special
reasons as were necessary and has thus not
'determined' the amount to be deposited as
a pre-condition to maintain the appeal.
Then, the decisions of this Court relied
upon
by
the
Tribunal
are
wholly
distinguishable. In Second Appeal No. 367
of 2018, Radicon Infrastructure (supra), the
following questions of law had been
framed:

"(1) Whether in the light of
Section 43(1) read with proviso to said
Section, the Designated Appellate Tribunal
can continue to function even after the
period of one year from the date of coming
into force the Real Estate (Regulation and
Development) Act, 2016 ?

(2) Whether the appointment of
the Chairperson and three whole time
members of the Appellate Tribunal under
Section 45 of the Real Estate (Regulation
and Development) Act 2016 have the effect
of establishment of an Appellate Tribunal
under Section 43(1) of the Real Estate
(Regulation and Development) Act, 2016 ?

(3) Whether order passed by the
Designated Appellate Tribunal as provided
under proviso to Section 43(5) of the Real
Estate (Regulation and Development) Act,
2016 could have been passed even after it
became coram non judis ?

28. Those questions had been
answered by the learned Single Judge, vide
judgment dated 26.7.2019 and the appeal
dismissed. Inasmuch as, it is plainly
apparent that the question of law framed in
that appeal were different, the decision of
the same has no bearing on the question
involved in the present case. Insofar as
Second Appeal No. 364 of 2018, Radicon
Infrastructure (supra) is concerned, an
additional question of law was framed by
the Court, to the following effect :

"Whether the appellate tribunal
while passing an order in terms of the
proviso to sub-section 5 of Section 43 has
any discretion to allow the deposit of a
lesser portion of the total amount to be
paid to the allottee including interest and
compensation imposed on him or the entire
amount, as such has to be deposited
without any discretion in this regard with
the appellate tribunal to reduce the same
and whether in view of the use of the word
determined by the appellate tribunal in the
first part of the proviso is indicative of
requirement of application of mind by the
appellate tribunal ?"

29. That additional question was
answered in the negative. Specific to the
issue of penalty to pre-deposit viz-a-viz
penalty imposed, it was observed as under :

"With regard to the penalty the
appellate tribunal has to ''determine'
whether 30% of the penalty imposed or
such a higher percentage as it may
determine is to be deposited, but when it
118 INDIAN LAW REPORTS ALLAHABAD SERIES
comes to the deposit of the total amount to
be paid to the allottee including interest
and compensation under the orders of the
regulatory
authority
or
adjudicating
officer, no such discretion based on a
'determination' appears to have been vested
in
the
Appellate
Tribunal
by
the
legislature."

30. Thus, the view taken by this Court
in the aforesaid decision is only to the
effect that the minimum deposit to maintain
an appeal against the penalty, would be
30% of the penalty amount. For deposit of
any higher amount, a determination would
have to be made by the Tribunal. The Court
made
a
distinction
in
the
statutory
conditions requiring pre deposit to be made
with respect to the disputed demand of
penalty (where a minimum 30% was
required to be deposited and a higher
deposit
required
if
the
Tribunal
so
determined) and other amounts that may be
awarded by the RERA where no such
discretion exists. Therefore, those amounts
may have to be deposited in entirety.

31. Therefore, even in that earlier
decision of this Court, it was not laid down
by way of a rule that the appellant deposits
the entire amount of penalty as a precondition to maintain its appeal. The
Tribunal has clearly misconstrued, both the
statutory provision as well as the decisions
of this Court passed in Second Appeal Nos.
364 of 2018 and 367 of 2018. Accordingly,
the question of law is answered in the
negative i.e. in favour of the appellant.

32. Consequently, the order dated
passed by the Tribunal dated 28.02.2020 is
set aside. Normally, the matter would have
been remanded to decide the application
under section 43(5) of the Act, afresh,
however, since it has already been
observed, that no special circumstance had
been recorded or noted by the Tribunal and
the appellant had already deposited 30% of
the disputed demand of penalty, in the facts
of the present case, since the status of the
appellant is also claimed to be that of a
zero-profit society existing solely for the
object of providing affordable housing to
the personnel of the Indian Air Force and
Indian Navy and the widows of such
personnel, it appears just that the appeal be
heard and decided by the Tribunal on its
own merits, against the deposit of 30% of
the disputed demand of penalty.

33. According the appeal is allowed.
----------
(2021)04ILR A118
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2021

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

S.C.C. Revision Defective No.- 02 of 2021

Uday Bhan Tiwari ...Revisionist
Versus
Pashupati Colonizers Pvt. Ltd. & Ors.
 ...Respondents

Counsel for the Revisionist:
Sri Kamlesh Kumar Mishra

Counsel for the Respondents:
-----

(A) Practice & Procedure - Necessary &
Proper
Party
-
Code
of
Civil
Procedure,1908 - Order 1 Rule 10(2)

It is a settled proposition of law that on death of
a tenant, his heirs inherits the tenancy jointly
and decree passed against one or some of the
tenant is binding on non impleaded tenant also.
The revision-applicant who is claiming to be the