RERA ACT- Inconvenience In Making Pre-Deposits Not An Onerous Circumstance Warranting Relaxation Of A Statutory Mandate: Punjab And Haryana High Court

Mere hardship in making pre-deposits which include diverting funds is not an arduous circumstance in any manner and does not necessitate waiver of a statutory mandate, the Punjab and Haryana High Court has held. In a case about a batch of petitions filed by several real estate developers against orders passed by the Haryana Real Estate Regulatory Authority involving common questions of law regarding S.43(5) of RERA Act, 2016, which sought to get a relaxation from High Court under A.22, in making pre-deposits, Justice Vinod S. Bhardwaj has observed that "A Petitioner seeking the indulgence of Writ Court to seek exemption from statutory mandate must establish strong reasons and to establish a deprivation of its statutory remedy of appeal by demonstrating to the satisfaction of Court, it's inability to arrange for pre-deposit despite all reasonable efforts." The facts of the case are as follows: Several petitions have been filed before the High Court invoking its extraordinary jurisdiction to obviate the hardship caused to the petitioners, because of the condition of pre-deposit mandated under S.43(5) of RERA Act and the orders passed by the Haryana Real Estate Regulatory Authority in that regard. In most of the petitions, the allottees were allotted apartments by petitioner companies and allottees had committed default in the payments and when a complaint was filed before the Real Estate Regulatory Authority, the authority decided the complaint against the petitioner companies without paying any heed to allottee defaults. In one project the construction of the project and subsequent handover of the allotted Unit was delayed because of NGT orders restricting construction works in NCR and in this case also, the allottee's complaint was allowed without any consideration to reasons behind the delay as well as the contractual agreement between the parties. None of the petitioners had disputed the factual aspects noted by the authority. Arguments advanced by Petitioners Learned counsels for petitioners respectfully submitted that the impugned orders passed by RERA were illegal, arbitrary and opposed to the principles of natural justice, equity and fair play because they were passed without any prayer for the relief awarded. Learned counsel for the petitioner further argued that although RERA 2016 provides for the remedy of appeal, S.43(5) of the same Act warrants a pre-deposit to be made before such an appeal by the Promoter can be heard, which the counsel argued was onerous and caused extreme hardship to petitioners and also rendered the appeal meaningless and the petitioners remediless. It was also stated that any complaint by the respondents under S.12, S.14, S.18 and S.19 of 2016 Act for relief and interest were to lie only before an adjudicating officer and not before the Authority and thus, the order passed by RERA was devoid of jurisdiction and void ab initio and the Authority had acted by usurping the jurisdiction of Adjudicating officers which itself had rendered the order perverse and illegal. And thus, they had prayed that the High Court should waive the condition of pre-deposit by exercising its powers under A.226 of the Constitution of India, in further of interest of justice. Another argument raised was that some of the petitioners were already suffering from financial hardship and thus, diversion of funds to make the pre-deposits would be detrimental to other allottees as the petitioner in question would not be able to complete one of its projects. Learned counsel for another petitioner had submitted that the petitioner's company had already invoked liquidation proceedings and any such deposit would double their hardship. Arguments advanced by Respondent Learned counsel for respondents vociferously argued that the writ petitions themselves are an abuse of the process of law considering the promoters had been intentionally delaying the proceedings and indulging in multiple litigations instead of settling the award. Further submitting that the RERA order was not suffering from any jurisdictional error or illegality, in passing the awards favouring the allottees, the learned counsel submitted that the issues raised in the petitions in question have already been decided by the Supreme Court against the promoters in Newtech Promoters judgment. The learned counsel further submitted that the relief provided by the Authority comes within its domain as per S.34 and S.37 of the Act and thus, writ petitions should be dismissed considering there is an alternative remedy available to the petitioners. Judgment The Court out rightly perused several sections of RERA Act, 2016 in question and noted that the Act explicitly and clearly entitles allottees to seek return amount with interest and compensation under S.12 which also casts a liability on the promoters to furnish correct facts in advertisements and if not done so, then ...

RERA ACT- Inconvenience In Making Pre-Deposits Not An Onerous Circumstance Warranting Relaxation Of A Statutory Mandate: Punjab And Haryana High Court

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