Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nPunjab-Haryana High Court\nM/S Ild Millennium Pvt Ltd vs Union Of India And Others on 16 October, 2020CWP No. 38144 of 2018 and other connected matters                   page 1 of 68\n\n\n     IN THE HIGH COURT OF PUNJAB AND HARYANA\n                 AT CHANDIGARH\n\n                                            Date of Decision: 16th October, 2020\n\n1.           CWP No. 38144 of 2018\n\nExperion Developers Pvt. Ltd.\n                                                                   .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                                ......Respondents\n\n2.           CWP No. 9216 of 2019\n\nM/s Jasmine Buildmart Private Limited\n                                                                   .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                                ......Respondents\n3.           CWP No. 34244 of 2019\n\n\nWg. Cdr. Sukhbir Kaur Minhas\n                                                                   .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                                ......Respondents\n4.           CWP Nos.23669 & 35219 of 2019\n\nSS Group Private Limited\n                                                                   .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                                ......Respondents\n\n5.           CWP No.37671 of 2019\n\nBestech India Pvt. Ltd.\n                                                                   .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                                ......Respondents\n\n                                  1 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 2 of 68\n\n\n6.           CWP Nos.30068, 30069, 30070, 30071, 30072, 30793, 30812,\n             34320, 34342 & 34347 of 2019\n\nM/s. Ansal Housing Limited\n                                                                .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n7.           CWP No.32215 of 2019\n\nParsvnath Developers Limited and another\n                                                               .......Petitioners\n                                 Versus\n\nUnion of India and others                                    ......Respondents\n\n\n8.           CWP No.37502 of 2019\n\nParsvnath Hessa Developers Private Limited\n                                                               .......Petitioners\n                                 Versus\n\nUnion of India and Ors\n                                                             ......Respondents\n\n9.           CWP No.37549 of 2019\n\nParsvnath Developers Pvt. Ltd. and another\n\n                                                               .......Petitioners\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n10.          CWP No.37552 of 2019\n\nParsvnath Hessa Developers Private Limited\n\n                                                                .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n\n\n\n                                  2 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 3 of 68\n\n\n11.          CWP Nos. 3921 and 3975 of 2020\n\nParsvnath Hessa Developers Private Limited and another\n\n                                                              .......Petitioners\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n\n12.          CWP Nos. 34449, 34622, 34656 & 35209 of 2019\n\nM/s. Pioneer Urban Land and Infrastructure Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n13.          CWP Nos. 32110, 32272, 32274, 32275, 35623, 35683, 35735\n             37163, 37164, 37232, 37241, 37365, 37477, 37594 & 37601 of\n             2019\n\nAthena Infrastructure Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n14.          CWP Nos. 33125, 33404 ,33406, 33417, 33495, 33687, 33702,\n             34017, 34020, 34021, 35599, 35600, 35618, 35636, 35653 &\n             35679 of 2019\n\nAthena Infrastructure Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                             ......Respondents\n\n\n15.          CWP Nos. 32276 and 33140 of 2019\n\nVarali Properties Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n                                  3 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 4 of 68\n\n\n16.          CWP No. 35836 of 2019\n\nVarali Properties Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana\n                                                              ......Respondent\n17.          CWP Nos. 36172 & 36417 of 2019\n\nSelene Construction Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                             ......Respondents\n\n18.          CWP Nos. 4329, 5402, 5403, 5405, 5406, 5407, 5439, 5441, 5445,\n             5574, 5576, 5577, 5584 to 5586, 5608, 5609, 5618 & 5753 of 2020\n\nM/s. Ferrous Infrastructure Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n19.          CWP Nos. 37497 & 37596 of 2019 and\n             CWP Nos. 66 & 3093 of 2020,\n\nM/s. Ferrous Infrastructure Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                             ......Respondents\n\n20.          CWP Nos. 35769, 35777, 36475, 36493, 36526, 36593, 36684,\n             36696, 36699, 36756 & 37157 of 2019\n\nM/s. Shree Vardhman Infra Home Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                             ......Respondents\n\n\n\n\n                                  4 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 5 of 68\n\n\n21.          CWP No. 9664 of 2020\n\nM/s Imperia Wishfield Private Limited\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n\n22.          CWP No. 9689, 9692, 9703, 9705, 9706, 9726, 9727, 9730 & 9737\n             of 2020\n\n\nM/s. Imperia Wishfield Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n23.          CWP No. 729 of 2020\n\nM/s. Spaze Tower Private Limited and another\n                                                              .......Petitioners\n\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n24.          CWP No. 36433 of 2019 and CWP Nos. 1090, 1091, 1092, 1129,\n             3569, 3570, 3600, 3601, 3602, 3603, 3604, 3605, 3606, 3609, 3615,\n             3616 & 3617 of 2020\n\nEmaar MGF Land Pvt. Limited\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n25.          CWP Nos. 2286 and 2345 of 2020\n\nSaera Auto India Pvt. Ltd.                                     .......Petitioner\n                                 Versus\n\nState of Haryana and others\n                                                             ......Respondents\n\n\n\n                                   5 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 6 of 68\n\n\n26.          CWP No. 32999 of 2019\n\n\nSweta Estates Private Limited\n                                                               .......Petitioner\n                                 Versus\n\nState of Haryana and others                                  ......Respondents\n\n\n27.          CWP No. 14752, 14759, 14766, 14776, 14797, 14805, 14806,\n             14815, 14827, 14829 14842 & 14860 of 2020\n\nM/s. Apex Buildwell Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n28.          CWP Nos.9206 & 9313 of 2020\n\n\nM/s. Almond Infrabuild Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n29.          CWP No.6027 of 2020\n\n\nM/s. Splendor Landbase Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n30.          CWP Nos.4455 & 4463 of 2020\n\n\nM/s. VSR Infratech Private Limited\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n\n\n                                  6 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                 page 7 of 68\n\n\n31.          CWP Nos.10019, 10060 & 10066 of 2020\n\n\nM/s. ALM Infotech City Pvt. Ltd.\n                                                                .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                              ......Respondents\n\n\n32.          CWP No.10063 of 2020\n\nThe CMD (Mr. Alumuddin Rafi Ahmed),\nM/s. International Land Developer (ILD)\n\n                                                                .......Petitioner\n\n                                 Versus\n\nUnion of India and others\n                                                              ......Respondents\n\n33.          CWP No.10023, 10038 & 10110 of 2020\n\nM/s. ILD Millennium Pvt. Ltd.\n                                                                .......Petitioner\n\n                                 Versus\n\nUnion of India and others\n                                                              ......Respondents\n34.          CWP No.9658 of 2020\n\nM/s Supertech Ltd.\n                                                                .......Petitioner\n\n                                 Versus\n\nState of Haryana and others\n                                                              ......Respondents\n\n35.          CWP No.37039 of 2019\n\nM/s BPTP Ltd.\n                                                                .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                              ......Respondents\n\n\n                                   7 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 8 of 68\n\n\n36.          CWP No.12237 of 2019\n\nM/s Countrywide Promoters Pvt. Ltd. and others\n                                                              .......Petitioners\n\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n37.          CWP No.10704 of 2020\n\n\nM/s BPTP Ltd. and others\n                                                              .......Petitioners\n\n                                 Versus\nUnion of India and others\n                                                             ......Respondents\n\n38.          CWP No.15647 of 2019\n\nM/s TDI Infrastructure Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n39.          CWP No.1554 of 2020\n\n\nM/s Mapsko Builders Pvt. Ltd.\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n40.          CWP No.3059 of 2020\n\nM/s ATS Meadows Pvt. Ltd.\n                                                               .......Petitioner\n\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n\n\n\n                                  8 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 9 of 68\n\n\n41.          CWP Nos.9121, 9391 & 13426 of 2020\n\n\nCHD Developers Ltd.\n                                                               .......Petitioner\n\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n42.          CWP No.33867 of 2019\n\nDimple Cineplex\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n43.          CWP No.35937 of 2019\n\nAshiana Landcraft Realty Private Limited\n                                                               .......Petitioner\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\n44.          CWP No.34271 of 2019\n\nM/s Sana Realtors Pvt. Ltd.\n                                                               .......Petitioner\n\n                                 Versus\n\nUnion of India and others\n                                                             ......Respondents\n\nCORAM: JUSTICE S.MURALIDHAR\n       JUSTICE AVNEESH JHINGAN\n\nPresent:     Mr. Ashok Aggarwal, Sr. Advocate with Mr. Alok Kumar Jain,\n             Advocate for the petitioner in CWP No.2345 of 2020.\n\n             Mr. Ashish Chopra, Advocate\n             for the petitioner(s) in CWP Nos. 9216, 23669, 35219 & 37671 of\n             2019.\n\n\n\n\n                                  9 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                page 10 of 68\n\n\n             Mr. Chetan Mittal, Sr. Advocate with Mr. Alok Kumar Jain,\n             Advocate for the petitioner in CWP No.2286 of 2020.\n             Mr. Puneet Bali, Sr. Advocate with Mr. Gunjan Rishi, Advocate\n             for the petitioner(s) in CWP Nos.30068 to 30072 of 2019, CWP-\n             30812-2019, CWP-32215-2019, CWP-30793-2019, CWP-34320-\n             2019, CWP-34342-2019, CWP-34347-2019, CWP-37502-2019,\n             CWP-37549-2019, CWP-37552-2019, CWP-3921-2020 & CWP-\n             3975-2020.\n             Mr. Amit Jhanji, Advocate\n             for the petitioner (s) in CWP Nos. 34449, 34656, 34622 & 35209\n             of 2019.\n\n             Mr. Ajiteshwar Singh, Advocate\n             for the petitioner(s) in CWP Nos. 32110, 32272, 32274 to 32276,\n             33125, 33140, 33404, 33406, 33417, 33495, 33687, 33702, 34017,\n             34020, 34021, 35599, 35600, 35618, 35636, 35653, 35679, 35836,\n             36172 & 36417 of 2019.\n\n             Mr. Gaurav Chopra, Advocate with Mr. Reshabh Bajaj, Advocate,\n             for the petitioner(s) in CWP Nos. 66, 3093, 4329, 5402, 5403,\n             5405, 5406, 5407, 5439, 5441, 5445, 5574, 5576, 5577, 5584 to\n             5586, 5608, 5609, 5618, 5753 of 2020 & CWP Nos. 37497 &\n             37596 of 2019.\n\n             Mr. Anurag Jain, Advocate with\n             Mr. Shalabh Singhal & Ms. Preeti Taneja, Advocates,\n             for the petitioner(s) in CWP Nos.35769, 35777, 36475, 36493,\n             36526, 36593, 36684, 36696, 36699, 36756 & 37157 of 2019.\n\n             Mr. Sehajbir Singh, Advocate with\n             Mr. Chandandeep Singh, Advocate,\n             for the petitioner(s) in CWP Nos.9664, 9689, 9692, 9703, 9705,\n             9706, 9726, 9727, 9730 and 9737 of 2020.\n\n             Mr. Rajeev Anand, Advocate\n             for the petitioner(s) in CWP Nos.35623, 35683, 35735, 37163,\n             37164, 37232, 37241, 37365, 37477, 37594, 37601 of 2019 and\n             CWP No.729 of 2020.\n\n             Mr. R.S. Rai, Sr. Advocate with Mr. Alok Mittal, Advocate,\n             for the petitioner(s) in CWP No.36433 of 2019, CWP Nos.3569,\n             3570, 3600 to 3606, 3609, 3615 to 3617 of 2020.\n\n             Mr. Rana Gurtej Singh, Advocate\n             for the petitioner in CWP No.34244 of 2019.\n\n             Mr. V.S. Bhardwaj, Advocate\n             for the petitioner(s) in CWP No.32999 of 2019 and 38144 of 2018.\n\n\n\n\n                                  10 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                  page 11 of 68\n\n\n             Mr. Rahul Rampal, Advocate with Mr. Sandeep Choudhary,\n             Advocate, for the petitioner(s) in CWP Nos. 14752, 14759, 14766,\n             14776, 14797, 14805, 14806, 14815, 14827, 14829, 14842 &\n             14860 of 2020.\n\n             Mr. Harsh Bunger, Advocate with Mr. Paritosh Vaid, Advocate\n             for the petitioner(s) in CWP Nos. 9206 & 9313 of 2020.\n\n             Mr. Shubhnit Hans, Advocate\n             for the petitioner(s) in CWP Nos.6027, 4455 & 4463 of 2020.\n\n             Mr. Navdeep Kalair, Advocate with Mr. Venkat Rao, Advocate,\n             for the petitioner(s) in CWP Nos.10019, 10023, 10038, 10060,\n             10063, 10066 & 10110 of 2020.\n\n             Mr. Hemant Saini, Advocate with\n             Mr. Pragyan Pradip Sharma, Advocate\n             for the petitioner in CWP No.12237 & 37039 of 2019.\n\n             Mr. Pragyan Pradip Sharma, Advocate\n             for the petitioner in CWP No.10704 of 2020.\n\n             Mr. Rajnish Singh, Advocate\n             for the petitioner in CWP No. 15647 of 2019.\n\n             Mr. Himanshu Raj, Advocate\n             for the petitioner in CWP No.1554 of 2020.\n\n             Mr. Vivek Sethi, Advocate\n             for the petitioner in CWP No.3059 of 2020.\n\n             Mr. Alok Mittal, Advocate\n             for the petitioner in CWP Nos. 1090, 1091, 1092 & 1129 of 2020.\n\n             Mr. Shubankar Baweja, Advocate\n             for the petitioner in CWP Nos. 9121, 9391 & 13426 of 2020.\n\n             Mr. Gunjan Rishi, Advocate\n             for the petitioner in CWP Nos. 33867 & 35937 of 2019.\n\n             Mr. Manu K. Bhandari, Advocate\n             for the petitioner in CWP No.34271 of 2019.\n\n             Mr. Amit Jain, Advocate\n             for the petitioner in CWP No.9658 of 2020.\n\n             Mr. S.P. Jain, Additional Solicitor General of India with\n             Mr. Shobit Phutela, Mr. Ajay Kalra, Mr. Tanvir Jain, Mr. Rajiv\n             Sharma and Mr. Brijeshwar Singh Kanwar, Advocates,\n             for Union of India.\n\n\n                                  11 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 12 of 68\n\n\n             Mr. Ankur Mittal, Additional A.G., Haryana.\n             Mr. Ankur Mittal, Advocate with\n             Mr. Kushaldeep K. Manchanda, Advocates for HRERA.\n\n             Mr. Aftab Singh Khara, Advocate for the Respondent Nos. 5 and 6\n             in CWP No. 9658 of 2020.\n\n                 ****\nDr. S. Muralidhar, J.\nIntroduction\n1. These writ petitions under Article 226 of the Constitution raise several\nimportant questions of law concerning the interpretation of the provisions of the\nReal Estate (Regulation and Development) Act, 2016 (hereinafter 'the Act') as\nwell as the Haryana Real Estate (Regulation and Development) Rules, 2017\n(hereinafter 'the Haryana Rules').\n\n2. In some of these petitions, a challenge has been raised to the constitutional\nvalidity of the proviso to Section 43 (5) of the Act and correspondingly the\norders passed by the Real Estate Appellate Tribunal (hereinafter 'Appellate\nTribunal') rejecting the prayer of the Petitioners for waiver of the pre-deposit\nfor entertaining the appeal against an order of either the Real Estate Regulatory\nAuthority ('Authority') or the Adjudicating Officer ('AO'), as the case may be.\nThe Appellate Tribunal has, while rejecting such prayer, extended the time for\nmaking the pre-deposit. The further prayer in these petitions is that given the\nundue hardship faced by the Petitioners, the aforesaid orders of the Appellate\nTribunal should be interfered with by this Court, in exercise of its jurisdiction\nunder Article 226 of the Constitution of India, and the Appellate Tribunal be\ndirected to entertain the Petitioners' appeals without insisting on the pre-\ndeposit.\n\n3. In some of the petitions, a challenge has been laid to Rules 28 and 29 of the\nHaryana Rules as well as to forms CRA and CAO as amended by the Haryana\nReal Estate (Regulation and Development) Amendment Rules, 2019 notified on\n12th September, 2019 ('Haryana Amendment Rules 2019') as being ultra vires\nthe Act. The further issue urged in these petitions concerns the scope and\njurisdiction of the Authority and the AO respectively in relation to complaints\n\n\n\n                                  12 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 13 of 68\n\n\nunder the Act. In these petitions there is a corresponding prayer for quashing\nthe orders passed by the Authority as being without jurisdiction.\n\n4. Lastly, an issue is raised as regards to the applicability of the Act\nretroactively to 'ongoing' projects. It is sought to be contended by some of the\nPetitioners that the relevant provisions of the Act insofar as they seek to apply\nretroactively to 'ongoing' projects are bad in law.\n\nChallenge to the proviso to Section 43 (5) of the Act\n5. The Court first proposes to address the challenge to the proviso to Section 43\n(5) of the Act which mandates the making of a pre-deposit, in the circumstances\noutlined therein, for the Appellate Tribunal to entertain an appeal against the\norder of either the Authority or the AO. Section 43 (5) reads thus:\n\n      "43 (5) Any person aggrieved by any direction or decision or order\n      made by the Authority or by an adjudicating officer under this Act\n      may prefer an appeal before the Appellate Tribunal having\n      jurisdiction over the matter:\n\n      Provided that where a promoter files an appeal with the Appellate\n      Tribunal, it shall not be entertained, without the promoter first\n      having deposited with the Appellate Tribunal at least thirty percent\n      of the penalty, or such higher percentage as may be determined by\n      the Appellate Tribunal, or the total amount to be paid to the\n      allottee including interest and compensation imposed on him, if\n      any, or with both, as the case may be, before the appeal is heard.\n\n      Explanation.--For the purpose of this sub-section "person" shall\n      include the association of allottees or any voluntary consumer\n      association registered under any law for the time being in force.\n\n6. It must be noticed straightway that while Section 43 (5) of the Act envisages\nthe filing of an appeal before the Appellate Tribunal, against the order of the\nAuthority or the AO, by any "person", the Explanation appended thereto\nclarifies that for the purpose of Section 43 (5), 'person' shall include an\nassociation of allottees or any voluntary consumer association registered under\nany law for the time being in force". The proviso to Section 43 (5) of the Act\napplies only where the "promoter" intends to appeal against an order of the\nAuthority or the AO. The word "promoter" has been further defined under\n\n\n                                  13 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 14 of 68\n\n\nSection 2 (zk) of the Act as under:\n      "2.\n        Definitions--In this Act, unless the context otherwise\n        requires--\n    ...............\n\n      (zk) "promoter" means--\n\n             (i) a person who constructs or causes to be constructed an\n             independent building or a building consisting of apartments,\n             or converts an existing building or a part thereof into\n             apartments, for the purpose of selling all or some of the\n             apartments to other persons and includes his assignees; or\n\n             (ii) a person who develops land into a project, whether or\n             not the person also constructs structures on any of the plots,\n             for the purpose of selling to other persons all or some of the\n             plots in the said project, whether with or without structures\n             thereon; or\n\n             (iii) any development authority or any other public body in\n             respect of allottees of--\n\n                 (a) buildings or apartments, as the case may be,\n                 constructed by such authority or body on lands owned\n                 by them or placed at their disposal by the Government;\n                 or\n\n                 (b) plots owned by such authority or body or placed at\n                 their disposal by the Government, for the purpose of\n                 selling all or some of the apartments or plots; or\n\n             (iv) an apex State level co-operative housing finance society\n             and a primary co-operative housing society which constructs\n             apartments or buildings for its Members or in respect of the\n             allottees of such apartments or buildings; or\n\n             (v) any other person who acts himself as a builder, coloniser,\n             contractor, developer, estate developer or by any other name\n             or claims to be acting as the holder of a power of attorney\n             from the owner of the land on which the building or\n             apartment is constructed or plot is developed for sale; or\n\n             (vi) such other person who constructs any building or\n             apartment for sale to the general public.\n             Explanation.--For the purposes of this clause, where the\n             person who constructs or converts a building into apartments\n             or develops a plot for sale and the person who sells\n             apartments or plots are different person, both of them shall\n             be deemed to be the promoters and shall be jointly liable as\n\n                                  14 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 15 of 68\n\n\n             such for the functions and responsibilities specified under\n             this Act or the rules and regulations made thereunder"\n\n7. It is further seen that where the order appealed against imposes a penalty,\nthe promoter has to deposit at least 30% of the penalty amount or such higher\namount as may be directed by the Appellate Tribunal. Where the appeal is\nagainst any other order which involves the payment of an amount to the\nallottee, then what has to be deposited with the Appellate Tribunal is "the total\namount to be paid to the allottee" by such promoter/appellant "including\ninterest and compensation imposed on him, if any, or with both, as the case may\nbe." Further, such amount has to be deposited "before the appeal is heard."\n\n8. As regards the challenge to the constitutional validity of the proviso to\nSection 43 (5) of the Act, it is seen that by a decision dated 23rd September\n2020, a co-ordinate Division Bench ('DB') of this Court has in CWP No. 15205\nof 2020 (O&M) (M/s. Lotus Realtech Pvt. Ltd. v. State of Haryana) negatived\na similar challenge.\n\n9. This Court has perused the decision in M/s. Lotus Realtech Pvt. Ltd. (supra),\nand finds that it has set out the relevant portions of the recent decision of the\nSupreme Court in M/s. Technimont Pvt. Ltd. v. State of Punjab AIR 2019 SC\n4489, and has held as under:\n      "14. The law laid down by the Supreme Court in the aforesaid\n      decisions is that the right of appeal is the creature of a statute and\n      therefore, is and can be made conditional upon fulfilling certain\n      conditions by the statute itself and therefore, any requirement of\n      fulfillment of a condition imposed by the statute itself before a\n      person can avail the remedy of appeal is a valid piece of\n      legislation. It has further been held that the Appellate Authority\n      does not have the inherent powers to waive the limitation or\n      precondition prescribed by the statute for filing an appeal as the\n      inherent incidental or implied powers vested in the Appellate\n      Authority cannot be invoked to render a statutory provision\n      nugatory or meaningless. The Supreme Court has also held that in\n      genuine cases of hardship, an aggrieved person can take recourse\n      to the remedy of filing a writ petition under Article 226 of the\n      Constitution of India. However, even in such genuine cases of\n      hardship, no relief of waiver of pre-deposit can be granted by the\n      Appellate Authority. The challenge to the impugned provision of\n      Section 43(5) proviso of the Act of 2016 on this ground, being\n\n                                  15 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                  page 16 of 68\n\n\n      meritless, is therefore, rejected."\n\n10.The DB in M/s. Lotus Realtech Pvt. Ltd. (supra) also negatived the plea that\nrequiring only the promoters who are in appeal to make the pre-deposit as a\ncondition to entertaining their appeals by the Appellate Tribunal, was\ndiscriminatory. Specific to this contention, the DB observed that the treatment\nof promoters as a class different from other appellants satisfied the test of\nreasonableness laid down by several judgments of the Supreme Court\nexplaining Article 14 of the Constitution of India. In this regard, it was\nobserved by the DB in M/s. Lotus Realtech Pvt. Ltd. (supra) as under:\n      "18. A perusal of the provisions of the Act make it clear that\n      while limited and few rights and duties are prescribed for allottees\n      under Section 19 of the Act of 2016, several onerous duties and\n      obligations have been imposed on the promoters, namely,\n      registration, duties of promoters, obligations of promoters\n      adherence to the sanctioned plans, insurance of real estate,\n      payment of penalty, interest and compensation etc., under Chapter\n      III and VIII of the Act of 2016. This classification between\n      consumers and promoters is based upon intelligible differentia\n      between the rights, duties and obligations of the\n      allottees/consumers and the promoters and is in furtherance of the\n      very object and purpose of the Act to protect the interest of the\n      consumers viz.-a-viz. promoters in the real estate sector. It is for\n      this reason that the duties, liabilities, obligations and penalties\n      imposed on the promoters are much more onerous as against those\n      imposed upon the allottees. A perusal of the provisions of the Act\n      of 2016 makes it apparent that promoters and the allottees form\n      two distinctly identifiable separate class of persons and have also\n      been differently and separately dealt with under the various\n      provisions of the Act of 2016, therefore, the question of\n      discrimination between the promoters and the allottees as alleged\n      by the petitioner does not arise as they fall under two distinct and\n      different categories/classes.\n\n      19. From the object and purpose of the Act of 2016, it is further\n      evident that the Act seeks to reduce fraud and delays resorted to by\n      the promoters. For this purpose, adjudication through an authority\n      established under the Act has been provided and thereafter with a\n      view to deter promoters from protracting the dispute by involving\n      the allottees/consumers in lengthy litigation and with a view to\n      discourage them to file frivolous appeals only with an intention of\n      delaying the delivery of possession to the allottees, the onerous\n      condition of pre-deposit has been imposed upon the promoters in\n      case they file appeals before the Appellate Tribunal against the\n      orders passed by the authorities. Evidently, the condition of pre-\n      deposit imposed upon the promoters is inconsonance with and in\n\n                                  16 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 17 of 68\n\n\n        furtherance of the object and purpose of the Act which seeks to\n        eradicate fraud and delays and ensure prompt delivery of the real\n        estate to the allottees within the time frame prescribed.\n\n        20. We are of the considered opinion that as the promoters form a\n        distinct and separate class and as the prescription of the condition\n        of pre-deposit upon the promoters is in furtherance of the object of\n        the legislation, therefore, the imposition of the condition of pre-\n        deposit upon the promoters satisfies the test of Article 14 of the\n        Constitution of India."\n\n11.Yet another DB of this Court has in a judgment dated 6th October, 2020 in\nCWP Nos. 14623 and 14689 of 2020 (M/s. Landmark Apartments Pvt. Ltd. v.\nUnion of India), come to the same conclusion viz., that it cannot be held that\nthe condition of pre-deposit, as set out in the proviso to Section 43 (5) of the\nAct, is either illegal or onerous, thereby rendering the appeal illusory. The DB\nhas also rejected the further contention that where the ground of appeal was that\nthe order of the Authority lacked jurisdiction since the complaint would lie only\nbefore the AO, the condition of pre-deposit would not apply. The Court in this\nregard has affirmed the view expressed by the learned Single Judge of this\nCourt in Janta Land Promoters Pvt. Ltd. v. Abhimanyu Singh Vinayak, 2020\n(1) RCR (Civil) 160, holding that even in a case where "the Appellate Authority\nproceeds to decide the appeal on the ground of maintainability of the\nproceeding before the RERA Authority, that will also amount to hearing and\ntaking a decision in the appeal" and that "the promoter would be liable to\ndeposit the pre-requisite amount as per proviso to the Section 43 (5) of the\nAct".\n\n12. Having carefully perused the judgments of the DBs of this Court in M/s\nLotus Realtech Pvt. Ltd. (supra) and M/s Landmark Apartments Pvt. Ltd.\n(supra), this Bench finds no reason to take a different view in the matter. As\nobserved by the Court in the aforesaid judgments, the requirement of pre-\ndeposit of the amount, as set out in the proviso to Section 43 (5) of the Act,\ncannot be held to be unreasonable or arbitrary in light of the legal position\nexplained in several decisions of the Supreme Court, including M/s\nTechnimont Pvt. Ltd. v. State of Punjab (supra). It is plain, therefore, that the\nchallenge to the proviso to Section 43 (5) of the Act must fail. The prayer in\n\n\n                                  17 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 18 of 68\n\n\nthat regard is hereby rejected.\n\n13. Incidental to this issue is the challenge to the orders of the Appellate\nTribunal rejecting the plea of the Petitioners for waiver of pre-deposit or for\ngrant of further time, beyond what was already granted by the Appellate\nTribunal, to make the pre-deposit. It was urged that there exists a distinction\nbetween 'entertaining' an appeal in terms of the proviso to Section 43 (5) of the\nAct and passing orders by the Appellate Tribunal after 'receipt of an appeal'\nunder Section 44 (1) of the Act. The specific contention is that Section 44 (3) of\nthe Act obliges the Appellate Tribunal to pass orders in the appeal after it is\nfiled, notwithstanding the failure of the promoter, where the promoter is the\nAppellant, to make the mandatory pre-deposit before the Appellate Tribunal, as\nrequired by the proviso to Section 43 (5) of the Act.\n\n14. The Court is unable to agree with the above submission. Sections 43 and 44\nof the Act are to be read harmoniously. On such reading, the Court finds there\nto be no inconsistency in the wording of Section 43 (5) and Section 44 of the\nAct. Both envisage the filing of appeals by any person and this would include\nthe promoter. However, when it comes to an appeal filed by the promoter, the\nrequirement under the proviso to Section 43 (5) of the Act, will have to be\nmandatorily fulfilled, even for the purposes of the Appellate Tribunal having to\npass orders in terms of Section 44 of the Act. The proviso to Section 43 (5) of\nthe Act clearly states that the pre-deposit is required to be made "before the said\nappeal is heard." In other words, the Appellate Tribunal is not obliged to\nproceed to 'entertain' or hear an appeal that has been filed before it, if the\npromoter, who has filed such appeal, fails to comply with the direction for\nmaking the pre-deposit in terms of the proviso to Section 43 (5) of the Act.\n\n15. Typically, where the Appellate Tribunal rejects the plea of the Appellant for\nwaiver of pre-deposit, then it grants one more opportunity to the Appellant to\nmake the pre-deposit within a reasonable time failing which it will proceed to\ndismiss the appeal on the following date that is has fixed for the hearing of the\nappeal. This is what has happened in each of the cases here. There cannot be an\nindefinite postponement of the date by which the pre-deposit has to be made as\n\n                                  18 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 19 of 68\n\n\nthat would defeat the very object of the Act providing a mechanism for\nexpeditious redressal of the disputes. As explained by the Supreme Court in\nM/s. Technimont Pvt. Ltd. (supra), the Appellate Tribunal has no power to\nwaive the requirement of the making of a pre-deposit as mandated by the\nproviso to Section 43 (5) of the Act. This Court has held likewise in Neo\nDevelopers Pvt. Ltd. v. Union of India (decision dated 19th August 2020 in\nCWP No. 12154 of 2020) and Shri Mohan Singh v. Haryana Real Estate\nRegulatory Authority (decision dated 6th March 2020 in RERA Appeal No. 6 of\n2020). Further, as explained by the Supreme Court in Union Bank of India v.\nRajat Infrastructure Pvt. Ltd. (decision dated 2nd March 2020 in CA No. 1902\nof 2020), even the High Court cannot issue any direction in that regard contrary\nto the Act, since it does not have the powers vested in the Supreme Court under\nArticle 142 of the Constitution of India. In other words, if the Appellant fails to\nmake the pre-deposit within the time granted for that purpose once by the\nAppellate Tribunal, the Appellate Tribunal would be justified in proceeding to\ndismiss the appeal for failure to make the pre-deposit.\n\n16. Therefore, the challenge in these writ petitions on the abovementioned\nground, to all such orders of the Appellate Tribunal, rejecting the request of\nPetitioners to be granted further time beyond the date as stipulated by the\nAppellate Tribunal or where the appeals have been rejected on account of the\nPetitioners' failure to make the pre-deposit as directed, is hereby rejected.\n\nExercise of the discretionary jurisdiction under Article 226\n17. On the second issue whether in exercise of its jurisdiction under Article 226\nof the Constitution, this Court should, in the facts and circumstances of the\nindividual cases, waive the requirement of pre-deposit, this Court notes that\neven in M/s Technimont Pvt. Ltd. (supra), the Supreme Court had noted that\nthe power of a High Court under Article 226 of the Constitution, in rare cases\nof genuine hardship, to waive the requirement of pre-deposit either wholly or in\npart, continued. It was held that while there is no discretion conferred by the\nstatute in question upon the Appellate Authority to grant a waiver of pre-\ndeposit, as explained in Shyam Kishore v. Municipal Corporation of Delhi\n(1993) 1 SCC 22, in cases of extreme hardship, the High Court could, in\n\n                                  19 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 20 of 68\n\n\nexercise of its power under Article 226 of the Constitution, grant appropriate\nrelief in that regard. This legal position that in genuine cases of hardship a writ\npetition could be a remedy was reiterated in the subsequent decisions of the\nSupreme Court in Government of Andhra Pradesh v. P. Laxmi Devi (2008) 4\nSCC 720 and Har Devi Asnani v. State of Rajasthan, (2011) 14 SCC 160.\n\n18. It was argued on behalf of the Petitioners, that a distinction had to be drawn\nbetween an order of the Authority which was wholly without jurisdiction i.e.\nexercising a jurisdiction not vested in it in law viz., 'an error of jurisdiction'\nand an order which could be viewed as an 'error in jurisdiction' viz., the order\nis erroneous on grounds other than lack of jurisdiction. The argument,\nparticularly on the strength of the Supreme Court decision in Embassy Property\nDevelopments Pvt. Ltd. v. State of Karnataka 2019 SCC OnLine SC 1542, was\nthat while in the latter instance, this Court may decline to exercise its\ndiscretionary writ jurisdiction to judicially review the order, it could not decline\nto do so in the former instance. In other words, it was sought to be urged that\nsince the orders of the Authority challenged in some of these writ petitions was\nan 'error of jurisdiction' since the complaint had to be dealt with only by the\nAO and not the Authority, the existence of an alternative remedy of an appeal\nagainst such order before the Appellate Tribunal would not be a bar to the\nentertaining by this Court of a writ petition under Article 226 of the\nConstitution seeking judicial review of such order.\n\n19. The above submissions, though attractive, are not impressive. In each of the\nindividual writ petitions before this Court, where the order of the Appellate\nTribunal declining to waive the requirement of pre-deposit has been challenged,\nthis Court finds that in the facts and circumstances of the individual cases, no\ngrounds have been made out to persuade this Court to exercise its writ\njurisdiction under Article 226 of the Constitution to grant any relief in respect\nthereof. In none of the cases is the Court satisfied that a case of 'genuine\nhardship' has been made out.\n\n20. Further, on the interpretation of the provisions of the Act, and the\nconclusions drawn by this Court in this judgment on the scope of jurisdiction of\n\n                                  20 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                      page 21 of 68\n\n\nthe Authority and the AO respectively, and given the prayers in the individual\ncomplaints from which these writ petitions arise, none of the impugned orders\nof the Authority can be said to be without jurisdiction. In other words, the\nAuthority cannot be held to have exercised a jurisdiction that it totally lacked.\nWhether on the facts of the individual cases the Authority ought to have\ndecided the complaints differently is a matter of challenge on merits for which a\nremedy is in any event available by way of an appeal before the Appellate\nTribunal.\n\n21. It must be noted at this stage that against any order of the Appellate\nTribunal there is a second appeal to the High Court provided for under Section\n58 of the Act, which reads as under:\n      "58. Appeal to High Court--\n\n             (1) Any person aggrieved by any decision or order of the\n             Appellate Tribunal, may, file an appeal to the High Court,\n             within a period of sixty days from the date of communication\n             of the decision or order of the Appellate Tribunal, to him, on\n             any one or more of the grounds specified in section 100 of the\n             Code of Civil Procedure, 1908 (5 of 1908):\n\n             Provided that the High Court may entertain the appeal after the\n             expiry of the said period of sixty days, if it is satisfied that the\n             appellant was prevented by sufficient cause from preferring the\n             appeal in time.\n\n             Explanation.--The expression "High Court" means the High\n             Court of a State or Union territory where the real estate project\n             is situated.\n\n             (2) No appeal shall lie against any decision or order made by\n             the Appellate Tribunal with the consent of the parties.\n\n22. It is clear that an appeal can be filed in this Court "against any order of the\nAppellate Tribunal". Therefore, an order declining the prayer for waiver of pre-\ndeposit and the consequential order of dismissal of the appeal itself by the\nAppellate Tribunal can also be appealed against before this Court. It is only a\nconsent order passed by the Appellate Tribunal that cannot be appealed against\nas per Section 58 (2) of the Act. However, it is reiterated that in view of the\nlegal position explained hereinbefore, the Appellate Tribunal has no power, in\nterms of the proviso to Section 43 (5) read with Section 44 of the Act, to waive\n\n                                  21 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 22 of 68\n\n\nthe pre-deposit requirement.\n\n23. Even where according to the party aggrieved the Authority lacked\njurisdiction to decide the complaint, it would be for the Appellate Tribunal to\ndecide that issue in light of the legal position explained in this judgment on the\nrespective adjudicatory powers of the Authority and the AO. In such event, in\nview of the decision of this Court in M/s Landmark Apartments Pvt. Ltd.\n(supra), and which is further affirmed by this judgment, for the purposes of the\nappeal before the Appellate Tribunal the making of the pre-deposit in terms of\nthe Act would be mandatory. In any event, in all the appeals before it, the\nAppellate Tribunal would order the placing of the pre-deposit amount in a fixed\ndeposit pending the final decision in the appeal. If it were to order release of the\nwhole or part of the amount to the allottee, that would have to be upon the\nfurnishing of adequate security. This would be necessary as in the event of the\nappellant succeeding, the amount pre-deposited would be required to be\nrefunded. Therefore, it cannot be said that great prejudice is going to be caused\nto the Petitioners on that score.\n\n24. The Court notices that in some of these petitions, where the Appellate\nTribunal had granted an extension of time to make the pre-deposit, the\nPetitioners did not make such pre-deposit, even within the extended time. While\nin some cases, the Appellate Tribunal proceeded to pass the consequential order\ndismissing the appeal, it had not done so in some others. In many of the writ\npetitions arising from such cases, an interim order was passed by this Court\nrestraining the Appellate Tribunal from dismissing the appeal on the ground of\nfailure to make the pre-deposit. This Court hereby vacates all such interim\norders. Yet in some cases the registry of the Appellate Tribunal did not process\nthe appeals for failure to make the pre-deposit. In all these petitions, as a one-\ntime measure this Court grants time to the Petitioners to make the pre-deposit in\nthe manner indicated in paras 94 and 95 of this judgment.\n\n25. For all the aforementioned reasons, the contentions in these writ petitions\nconcerning the constitutional validity of the proviso to Section 43 (5) of the\nAct, the orders of the Appellate Tribunal declining to waive the pre-deposit\n\n                                    22 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 23 of 68\n\n\nrequirement or to grant further time to make the pre-deposit and, seeking to\npersuade this Court to exercise its jurisdiction under Article 226 of the\nConstitution to interfere with such orders of the Authority or the Appellate\nTribunal, as the case may be, are rejected.\n\nChallenge to Rules 28 and 29 of the Haryana Rules, as amended\n26. The Court next turns to the issue regarding the respective powers of the\nAuthority and the AO in regard to adjudication of the complaints made under\nthe Act, and in that context to the challenge laid to the validity of Rules 28 and\n29 of the Haryana Rules, 2017 as well as the amendments made thereto and to\nforms CRA and CAO by the Haryana Amendment Rules, 2019 notified on 12th\nSeptember, 2019.\n\n27. In this context it requires to be noticed that one of the writ petitions in this\nbatch was CWP No. 34244 of 2019 (Wing Commander Sukhbir Kaur Minhas v.\nState of Haryana and others) which had challenged the amendments to Rules\n28 and 29 and forms CRA and CAO vide notification dated 12th September,\n2019.\n\n28. It requires to be noticed here that the Haryana Amendment Rules 2019\nmade several other amendments to the Haryana Rules apart from the\namendments to Rules 28 and 29 and forms CRA and CAO. Nevertheless, when\nCWP No. 34244 of 2019 was taken up first for hearing on 25th November,\n2019, while issuing      notice of motion, the entire notification dated 12th\nSeptember, 2019 was directed by this Court to be stayed. The State of Haryana\nthen filed CM-901 of 2020 seeking a vacation of the stay by pointing out that\nthe challenge in the writ petition was to a limited extent and that, therefore,\nthere was no necessity for the entire notification to be stayed. However, by the\ntime any order could be passed in this application, similar interim orders were\npassed in a large number of petitions in this batch staying the entire\nnotification. It was only on 11th September, 2020 that this Court vacated the\nsaid interim order dated 12th September 2019 in CWP No. 3244 of 2019. This\nCourt noted that the Petitioner in that case was contending that her complaint\nseeking the relief against the promoter for refund and compensation ought not\n\n                                  23 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 24 of 68\n\n\nto be entertained by the Authority but only by the AO. This Court clarified in\nits order dated 11th September, 2020 that no final order would be passed by the\nAO on the Petitioner's complaint.\n\n29. Certain facts leading up to the aforementioned amendments to Rules 28 and\n29 of the Haryana Rules may now be adverted to. The Act was enacted in 2016.\nThe Statements of Objects and Reasons set out in the Bill preceding the Act\nread thus:\n      "Statement of Objects and Reasons. - The real estate sector plays\n      a catalytic role in fulfilling the need and demand for housing and\n      infrastructure in the country. While this sector has grown\n      significantly in recent years, it has been largely unregulated, with\n      absence of professionalism and standardization and lack of\n      adequate consumer protection. Though the Consumer Protection\n      Act, 1986 is available as a forum to the buyers in the real estate\n      market, the recourse is only curative and is not adequate to address\n      all the concerns of buyers and promoters in that sector. The lack of\n      standardization has been a constraint to the healthy and orderly\n      growth of industry. Therefore, the need for regulating the sector\n      has been emphasised in various forums. 2. In view of the above, it\n      becomes necessary to have a Central legislation, namely, the Real\n      Estate (Regulation and Development) Bill, 2013 in the interests of\n      effective consumer protection, uniformity and standardization of\n      business practices and transactions in the real estate sector. The\n      proposed Bill provides for the establishment of the Real Estate\n      Regulatory Authority (the Authority) for regulation and promotion\n      of real estate sector and to ensure sale of plot, apartment or\n      building, as the case may be, in an efficient and transparent manner\n      and to protect the interest of consumers in real estate sector and\n      establish the Real Estate Appellate Tribunal to hear appeals from\n      the decisions, directions or orders of the Authority. 3. The\n      proposed Bill will ensure greater accountability towards\n      consumers, and significantly reduce frauds and delays as also the\n      current high transaction costs. It attempts to balance the interests of\n      consumers and promoters by imposing certain responsibilities on\n      both. It seeks to establish symmetry of information between the\n      promoter and purchaser, transparency of contractual conditions, set\n      minimum standards of accountability and a fast-track dispute\n      resolution mechanism. The proposed Bill will induct\n      professionalism and standardization in the sector, thus paving the\n      way for accelerated growth and investments in the long run."\n\n30. The Act envisages adjudication by both the Authority in exercise of the\npowers under Chapter V of the Act and in particular Sections 31, 32, 34, 35 and\n40 of the Act and the AO in terms of the powers under Chapter VIII of the Act\n\n                                  24 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 25 of 68\n\n\nand in particular Sections 71 and 72 thereof. Appeals against the orders passed\nby the Authority and the AO are maintainable before the Appellate Tribunal\nconstituted under Section 43 of the Act. Against the orders of the Appellate\nTribunal, an appeal is provided to the High Court under Section 58 of the Act.\nThis then completes the hierarchical arrangement of the adjudicatory\nmechanisms under the Act.\n\n31. The Act spells out the obligations of the promoter of a real estate project\nand the consequence of the promoter failing to fulfil those obligations. Some of\nthose obligations are spelt out in Section 11, 12 to 18 of the Act. Section 18 of\nthe Act talks of the consequence of the failure by the promoter to complete or to\nbe unable to give possession of an apartment, plot or building either in terms of\nthe agreement for sale or failure to complete the project by the date specified\ntherein or on account of discontinuance of his business either on account of\nsuspension or revocation of the registration under the Act or for any other\nreason. In the event of either of the above contingencies under Section 18 (1)\n(a) of the Act, the promoter is made liable on the demand of the allottee:\n\n      (i)    in the event that the allottee wishes to withdraw from the project,\n             without prejudice to any other remedy available, to return the\n             amount received by the promoter in respect of that apartment, plot,\n             building, as the case may be, together with interest at such rate as\n             may be prescribed "including compensation in the manner as\n             provided under this Act";\n\n      (ii)   Where an allottee does not intend to withdraw from the project the\n             promoter shall pay him for every month's delay in the handing\n             over of the possession, interest at such rate as may be prescribed.\n\n32. Section 18 (2) of the Act mandates that in case loss is caused to allottee due\nto the defective title of the land, on which the project is being developed or has\nbeen developed, the promoter shall compensate the allottee and that such claim\nfor compensation under Section 18 (2) shall not be barred by limitation\nprovided under any law for the time being in force.\n\n                                  25 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 26 of 68\n\n\n\n\n33. Section 18 (3) of the Act states that where the promoter fails to discharge\nany other obligations under the Act or the Rules or Regulations made there\nunder or in accordance with the terms and conditions of the agreement for sale,\nthe promoter shall be liable to pay "such compensation" to the allottees, in the\nmanner as provided under the Act.\n\n34. It appears on a reading of Section 18 of the Act as a whole that upon the\ncontingencies spelt out therein, (i) the allottee can either seek refund of the\namount by withdrawing from the project; (ii) such refund could be together\nwith interest as may be prescribed; (iii) the above amounts would be\nindependent of the compensation payable to an allottee either in terms of\nSections 18 (2) or 18 (3) of the Act read with other provisions; (iv) the allottee\nwho does not intend to withdraw from the project will be required to be paid by\nthe promoter interest for every month's delay of handing over possession.\n\n35. Correspondingly, Section 19 of the Act spells out "Rights and duties of\nallottees". Section 19 (3) states that the allottee shall be entitled to claim the\npossession of the apartment, plot or building, as the case may be, and the\nassociation of allottees shall be entitled to claim the possession of the common\nareas, in terms of the declaration by the promoter under Section 4 (2) (i) (C) of\nAct. Section 19 (4) of the Act states that in the event of a promoter failing to\ncomply or being unable to give possession of the apartment, plot or building in\naccordance with the terms of agreement for sale or due to discontinuance of his\nbusiness as a developer on account of suspension or revocation of his\nregistration under the provisions of this Act or the rules or regulations made\nthereunder, the allottee shall be entitled: (a) to claim refund of the amount paid\nalong with interest at such rate as has been prescribed; and (b) the\ncompensation in the manner provided under the Act. To that extent Section 19\n(4) of the Act can be said to be a 'mirror provision' of Section 18 (1) to (3) of\nthe Act. Both these provisions recognize a right of an allottee to distinct\nremedies, viz., refund of the amount together with interest, interest for delayed\nhanding over of possession and compensation.\n\n                                  26 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 27 of 68\n\n\n36. When one turns to the powers of the Authority, it is seen that under Section\n31 the complaints can be filed either with the Authority or the AO for violation\nor contravention of the provisions of the Act or the Rules and Regulations.\nSuch complaint can be filed against "any promoter, allottee or real estate\nagent", as the case may be. Such complaint can be filed by "any aggrieved\nperson". The Explanation to Section 31 (1) of the Act states that for the\npurposes of said sub-section "person" shall include an association of allottees or\nany voluntary consumer association registered under any law for the time being\nin force. Section 31 (2) states that the form, manner and fees for filing a\ncomplaint under sub-section (1) shall be such as may be prescribed.\n\n37. Section 32 spells out the functions of Authority for promotion of the real\nestate sector. Section 34 (f) of the Act states that the functions of the Authority\nshall include ensuring "compliance of its regulations cast upon the promoters,\nthe allottees and the real estate agents under this Act and the rules and\nregulations made thereunder". Under Section 35 of the Act the Authority can,\neither on a complaint or suo moto by an order, call upon any promoter or\nallottee or real estate agent to furnish in writing such information or explanation\nrelating to its affairs as the Authority may require.\n\n38. Under Section 35 (1) of the Act the Authority can appoint one or more\npersons to make an inquiry into the affairs of any promoter or allottee or the\nreal estate agent, as the case maybe. Under Section 35 (2) of the Act, the\nAuthority is given all the powers vested in a civil court under the Code of Civil\nProcedure, 1908 (CPC) while trying a suit and this includes the discovery and\nproduction of books of account and other documents; summoning and\nenforcing the attendance of persons and examining them; issuing commissions\nfor the examination of witnesses or documents and "any other matter which\nmay be prescribed."\n\n39. Section 36 of the Act recognizes the power of the authority during an\ninquiry, to make interim orders restraining any promoter, allottee or real estate\nagent from carrying on any act in contravention of the Act, until the conclusion\nof such inquiry and without giving notice to such party, where the Authority\n\n                                  27 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 28 of 68\n\n\ndeems it necessary. Section 37 of the Act is widely worded and states that the\nAuthority may, for the purpose of discharging its functions under the Act or\nRules or Regulations "issue such directions from time to time, to the promoters\nor allottees or real estate agents, as the case may be, as it may consider\nnecessary" and such directions shall be binding on all concerned.\n\n40. Section 38 talks about the power of the Authority to impose penalty or\ninterest, in regard to any contravention of obligations cast upon the promoters,\nthe allottees and the real estate agents. Under Section 39, the Authority can\nwithin a period of two years from the date of an order passed by it, make\namendments to such orders for rectifying any mistake apparent from record.\n\n41. Section 40 of the Act is a provision that enables enforcement of orders. It\nstates that if a promoter or an allottee or a real estate agent, fails to pay any\ninterest or penalty or compensation imposed on him by the AO or the Authority\nor the Appellate Tribunal, as the case may be, it is recoverable from such\nperson as arrears of land revenue in the manner prescribed. Section 40 (2) of the\nAct is another enforcement provision.\n\n42. Chapter VIII of the Act talks about offences, penalties and 'adjudication'.\nVarious kinds of penalties are set out in Sections 59 to 68. Each of these\nprovisions clearly states that the penalty thereunder is required to be determined\nby the Authority.\n\n43. Section 71 of the Act titled 'Power to adjudicate' is specific to the AO. Sub-\nsection (1) of Section 71 once opens with the words "For the purpose of\nadjudging compensation under Sections 12, 14, 18 and Section 19". It states\nthat the Authority shall appoint one or more judicial officers to be an AO for\nholding an inquiry in the manner prescribed." Section 71 (2) of the Act states\nthat such application for compensation under Section 71 (1) shall be dealt with\nby the AO as expeditiously as possible, and the application should be disposed\nof within a period of 60 days from the date of its receipt. Under Section 71 (3)\nof the Act, while holding an inquiry the AO shall have the power to summon\nand enforce the attendance of persons acquainted with the facts and\n\n                                  28 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 29 of 68\n\n\ncircumstances of the case to give evidence or to produce any document which\nin the opinion of the adjudicating officer, may be useful for or relevant to the\nsubject matter of the inquiry. Section 71 (3) of the Act further states that where\nupon an inquiry, the AO is satisfied that the person has failed to comply with\nSections 12, 14, 18 and Section 19 of the Act, then the AO may direct such\nperson to pay compensation or interest, as the case may be, in accordance with\nany of those provisions. Section 72 of the Act lists out the factors that have to\nbe taken into account by the AO while determining the quantum of\ncompensation or interest, as the case may be, under Section 71 of the Act.\n\n44. Rule 21 (4) of the Haryana Rules is relatable to the adjudicatory powers of\nthe AO and it reads as under:\n      "For the purpose of adjudging the compensation under Section 12,\n      14, 18 and 19, the Authority shall in consultation with Government\n      appoint one or more officers, who shall not be below the rank of\n      Class-1 Officer/Additional District Judge who have sufficient\n      expertise and experience for holding judicial/quasi-judicial\n      court/enquiry. The adjudicating officer shall give a reasonable\n      opportunity of hearing to the parties before determining the\n      compensation."\n\n45. Rules 28 and 29 of the Haryana Rules deal with the procedure for filing of\ncomplaints before the Authority and the AO respectively. In a decision dated\n2nd May 2019 in a batch of appeals, the lead case of which was Appeal No.6 of\n2018 (Sameer Mahawar v. MG Housing Private Ltd.), the Appellate Tribunal\nheld that the compensation payable for the violations of the Act in terms of\nSection 12, 14 and 18 of the Act was "within the exclusive competence" of the\nAO. According to the Appellate Tribunal, the Authority had specific powers to\nlevy penalties and set aside an order cancelling the allotment but not to grant\nany relief enumerated under Sections 12, 14, 18 and 19 of the Act. It was held\nthat the mere fact that multiple reliefs may arise and awarded in relation to the\nsame cause of action could not be a valid ground to justify the filing of\ncomplaints in two different fora. According to the Appellate Tribunal, "the\nsegregation of the violations and causes of action on the basis of relief is not\nlegally permissible." The Appellate Tribunal noted that in terms of the proviso\nto Section 71(1) of the Act, a person whose complaint in respect of matters\n\n\n\n                                  29 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 30 of 68\n\n\ncovered under Sections 12, 14, 18 and 19 of the Act was pending before any of\nthe dispute redressal fora under the Consumer Protection Act, 1986 ('CPA') on\nor before commencement of the Act, may with the permission of such forum\nwithdraw the complaint and file an application before the AO under the Act.\nThe Appellate Tribunal concluded that the Authority had no jurisdiction to\nadjudicate upon the issue regarding the refund and directed that the complaints\nfiled by the allottees should stand transferred to the AO for adjudication.\n\n46. Thereafter, the Haryana Amendment Rules 2019 were notified on 12th\nSeptember, 2019 whereby inter alia amendments were made to Rules 28 and 29\nof the Haryana Rules. The unamended and amended Rules 28 and 29 read as\nunder:\n\n               Rule 28                                    Rule 28\n          (Pre-Amendment)                           (Post-Amendment)\n\nFiling of complaint         with   the Filing of complaint with Authority\nAuthority Section 31                   (Section 31) and inquiry into\n                                       allegations    of    contravention   or\n                                       violations (Section 35) and disposal of\n                                       complaint (Section 36, Section 37 and\n                                       Section 38\n28. (1) Any aggrieved person may 28. (1) Any aggrieved person may file a\nfile a complaint with the Authority complaint with the Authority for any\nfor any violation of the provisions of violation or contravention of the\nthe Act or the rules and regulations provisions of the Act or the rules and\nmade thereunder, save as those regulations made thereunder, against\nprovided to be adjudicated by the any promoter, allottee or real estate\nadjudicating officer, in Form 'CRA', agent as the case may be in Form\nin triplicate, which shall be 'CRA', or in the form specified in the\naccompanied by a fees as prescribed regulations,         which     shall    be\nin Schedule III in the form of a accompanied by a fees as prescribed in\ndemand draft or a bankers cheque Schedule III in the form of a demand\ndrawn on a Scheduled bank in favour draft or a bankers cheque drawn on a\nof "Haryana Real Estate Regulatory Scheduled bank or online payment in\nAuthority".                            favour of "Haryana Real Estate\n                                       Regulatory Authority".\n\n                                                (a) Complaint under section 31\n                                                may be filed by any aggrieved\n                                                person, in case of violation or\n                                                contravention of the provisions of\n                                                the Act by the promoter, allottee\n                                                or the real estate agent, as the\n\n                                   30 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                      page 31 of 68\n\n\n                                                case may be, and such violation\n                                                or contravention has been\n                                                established after an inquiry made\n                                                by the Authority under section\n                                                35.\n                                                (b) In case, in the complaint, only\n                                                an allegation has been made\n                                                regarding      contravention       or\n                                                violation of the provisions of the\n                                                Act or the rules or regulations\n                                                made thereunder, then the\n                                                Authority shall conduct an\n                                                inquiry in relation to the affairs of\n                                                the promoter or the allottee or the\n                                                real estate agent, as the case may\n                                                be, for establishing the veracity of\n                                                the      allegations      of      the\n                                                contravention/violation of the\n                                                provisions of the Act or the rules\n                                                or regulations made thereunder.\n\n                                                (c) If after an inquiry it is not\n                                                established                    that\n                                                contravention/violation of the\n                                                provisions of the Act or the rules\n                                                or regulation made thereunder\n                                                had been committed by the\n                                                promoter or the allottee or the\n                                                real estate agent, as the case may\n                                                be, then the Authority shall drop\n                                                the          allegations         of\n                                                contravention/violation of the\n                                                Act.\n\n                                                (d) In case, it is established that\n                                                contravention or violation of the\n                                                provisions of the Act or the rules\n                                                or     regulations      has    been\n                                                committed by the promoter or the\n                                                allottee or the real estate agent, as\n                                                the case may be, the Authority\n                                                shall pass such orders or issue\n                                                directions or grant relief as per\n                                                provisions of the Act.\n\n                                                (e) Where the allottee is the\n                                                aggrieved person and the\n                                                promoter has violated the\n                                                provisions of the Act or the rules\n\n\n                                  31 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                        page 32 of 68\n\n\n                                                   or     the    regulations     made\n                                                   thereunder as established on\n                                                   inquiry by the Authority under\n                                                   section 35 and in the complaint\n                                                   compensation has been sought by\n                                                   the allottee, the complaint for\n                                                   adjudging         quantum        of\n                                                   compensation as contained in\n                                                   sections 12, 14, 18 and 19, shall\n                                                   be referred to the adjudicating\n                                                   officer by the Authority and the\n                                                   adjudicating officer shall conduct\n                                                   an inquiry to adjudge the\n                                                   quantum of compensation as per\n                                                   the provisions mentioned in sub\n                                                   section (3) of section 71 by taking\n                                                   into consideration the factors\n                                                   mentioned in section 72, in the\n                                                   manner as prescribed in rule 29.\n\n(2) The Authority shall for the              (2) The Authority shall for the purposes\npurposes of deciding any complaint           of deciding any complaint as specified\nas specified under sub-rule (1),             under sub-rule (1), shall follow\nfollow summary procedure for                 summary procedure for inquiry in the\ninquiry in the following manner,             following manner, namely: --\nnamely:-\n\n      (a) upon receipt of the                      (a) upon receipt of the complaint,\n      complaint, the Authority shall               the Authority shall issue a notice\n      issue a notice along with                    along with particulars of the\n      particulars of the alleged                   alleged violation or contravention\n      contravention and the relevant               and the relevant documents to the\n      documents to the respondent                  respondent specifying date and\n      specifying date and time of                  time of hearing and by order in\n      hearing;                                     writing and recording reasons\n                                                   thereof call upon the respondent\n                                                   to furnish in writing such\n                                                   information     or     explanation\n                                                   relating to its affairs as the\n                                                   Authority may require; [section\n                                                   35(1)]\n\n      (b) the respondent against                   (b) the respondent against whom\n      whom such notice is issued                   such notice is issued under clause\n      under clause (a) of subrule (2),             (a), shall file his reply in respect\n      shall file his reply in respect of           of the complaint along with\n      the complaint within the                     information       or    explanation\n      period as specified in the                   relating to its affairs within the\n      notice;                                      period as specified in the notice;\n\n\n\n                                  32 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 33 of 68\n\n\n      (c) the notice shall specify a            (c) the notice shall specify a date\n      date and time for further                 and time for further hearing and\n      hearing and the date and time             the date and time for the hearing\n      for the hearing shall also be             shall also be communicated to the\n      communicated        to     the            complainant;\n      complainant;\n\n      (d) on the date so fixed, the             (d) on the date so fixed, the\n      Authority shall explain to the            Authority shall explain to the\n      respondent       about     the            respondent         about        the\n      contravention alleged to have             contravention alleged to have\n      been committed in relation to             been committed in relation to any\n      any of the provisions of the              of the provisions of the Act or the\n      Act or the rules and                      rules and regulations made\n      regulations made thereunder               thereunder and if the respondent:\n      and if the respondent.                    --\n\n             (i) pleads guilty, the                    (i) pleads guilty, the\n             Authority shall record                    Authority shall record the\n             the plea, and pass such                   plea, and pass such orders\n             orders          including                 as it thinks fit in\n             imposition of penalty as                  accordance      with     the\n             it    deems      fit   in                 provisions of the Act or the\n             accordance with the                       rules and regulations, made\n             provisions of the Act or                  thereunder;\n             the       rules       and\n             regulations,         made\n             thereunder;\n\n             (ii) does not plead guilty                (ii) does not plead guilty\n             and      contests     the                 and contests the complaint,\n             complaint, the Authority                  the Authority shall demand\n             shall      demand      an                 an explanation from the\n             explanation from the                      respondent;\n             respondent;\n\n      (e) in case the Authority is              (e) in case the Authority is\n      satisfied on the basis of the             satisfied on the basis of the\n      submissions made that the                 information and explanation and\n      complaint does not require any            other submissions made that the\n      further inquiry, it may dismiss           complaint does not require any\n      the complaint with reasons to             further inquiry, it may dismiss the\n      be recorded in writing;                   complaint with reasons to be\n                                                recorded in writing;\n\n      (f) in case the Authority is              (f) in case the Authority is\n      satisfied on the basis of the             satisfied on the basis of the\n      submissions made that there is            information, explanation and\n      a need for further hearing into           other submissions made that there\n      the complaint, it may order               is need for further hearing into\n\n\n                                  33 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 34 of 68\n\n\n      production of documents or                the complaint or matter taken up\n      other evidence(s) on a date and           suo-motu, it may order production\n      time fixed by it;                         of documents or other evidence\n                                                on a date and time fixed by it;\n\n      (g) the Authority shall have              (g) the authority shall have the\n      the power to carry out an                 power to carry out an inquiry into\n      inquiry into the complaint on             the complaint on the basis of\n      the basis of documents and                documents and submissions, the\n      submissions;                              Authority may appoint any person\n                                                or expert agency to make an\n                                                inquiry in relation to the affairs\n                                                of any promoter or allottee or the\n                                                real estate agent, as the case may\n                                                be;\n\n      (h) the Authority shall have              (h) the Authority for making\n      the power to summon and                   inquiry shall have the same\n      enforce the attendance of any             powers as are vested in a civil\n      person acquainted with the                court under the Code of Civil\n      facts and circumstances of the            Procedure, 1908 (Central Act 5 of\n      case to give evidence or to               1908) while trying a suit, in\n      produce any documents which               respect of matters mentioned in\n      in the opinion of the                     sub-section (2) of section 35;\n      adjudicating officer, may be\n      useful for or relevant to the\n      subject matter of the inquiry,\n      and in taking such evidence,\n      the Authority shall not be\n      bound     to    observe    the\n      provisions of the Indian\n      Evidence Act, 1872 (11 of\n      1872);\n\n      (i) on the date so fixed, the             (i) on the date so fixed, the\n      Authority upon consideration              Authority upon consideration of\n      of the evidence produced                  the evidence produced before it\n      before it and other records and           and     other      records      and\n      submissions, is satisfied that,           submissions is satisfied that, --\n\n             (i) the respondent is in               (i) the respondent is in\n             contravention of the                   contravention       of     the\n             provisions of the Act or               provisions of the Act or the\n             the rules and regulations              rules and regulations made\n             made thereunder, it shall              thereunder, it shall record its\n             pass      such     orders              findings accordingly;\n             including imposition of\n             penalty as it thinks fit in\n             accordance with the\n             provisions of the Act or\n\n\n                                  34 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 35 of 68\n\n\n             the rules and regulations\n             made thereunder;\n\n             (ii) the respondent is not             (ii) the respondent is not in\n             in contravention of the                contravention      of     the\n             provisions of the Act or               provisions of the Act or the\n             the rules and regulations              rules and regulations made\n             made thereunder, the                   thereunder, the Authority\n             Authority may, by order                may, by order in writing,\n             in writing, dismiss the                dismiss the complaint, with\n             complaint, with reasons                reasons to be recorded in\n             to be recorded in                      writing;\n             writing;\n\n      (j) if any person fails, neglects         (j) having come to the conclusion\n      or refuses to appear, or present          that     the     respondent    has\n      himself as required before the            committed contravention of the\n      Authority, the Authority shall            provisions of the Act or the rules\n      have the power to proceed                 or the regulations made there-\n      with the inquiry in the absence           under or the provisions of the\n      of such person or persons after           agreement for sale, it shall pass\n      recording the reasons for                 such orders and directions for the\n      doing so.                                 purpose of discharging its\n                                                functions under the provisions of\n                                                this Act or rules or regulations\n                                                made       thereunder    to    the\n                                                respondent as it may consider\n                                                necessary and such directions\n                                                shall be binding to all concerned.\n                                                In addition, the Authority may\n                                                order relief as deemed fit keeping\n                                                in view the provisions of the Act\n                                                or the rules or regulations made\n                                                thereunder or the terms of the\n                                                agreement and also keeping in\n                                                view the principles of natural\n                                                justice.\n\n                                                (k) the Authority may provide\n                                                relief in such form as deemed\n                                                appropriate including return of\n                                                the amount to the allottee\n                                                received by the promoter along\n                                                with interest at the rate as\n                                                prescribed in rule 15.\n\n                                                (l) if the complaint in form\n                                                'CRA' filed before the authority\n                                                for interim orders, directions for\n                                                compliance of obligations, relief\n\n\n                                  35 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                      page 36 of 68\n\n\n                                                and initiating penalty proceedings\n                                                the complaint shall be admissible\n                                                from the stage of concluding\n                                                inquiry by the Authority that\n                                                respondent has violated or\n                                                contravened provisions of the Act\n                                                or the rules or regulations made\n                                                thereunder warranting penalty\n                                                proceedings under the provisions\n                                                of the Act. The Authority may\n                                                initiate     penal     proceedings\n                                                exercising its powers under sub-\n                                                section (1) of section 38 to\n                                                impose penalty or interest, in\n                                                regard to any contravention of\n                                                obligations cast upon the\n                                                promoters, the allottees and the\n                                                real estate agents, under this Act\n                                                or the rules and the regulations\n                                                made thereunder and Authority\n                                                shall be guided by the principle of\n                                                natural justice and shall have\n                                                power to regulate its procedure.\n\n                                                       (i) the Authority shall issue\n                                                       a notice to the respondent\n                                                       mentioning the section\n                                                       under which it intends to\n                                                       initiate penal proceedings\n                                                       alongwith a show cause as\n                                                       why         penalty        as\n                                                       contemplated       by     the\n                                                       Authority shall not be\n                                                       imposed upon the violator\n                                                       respondent;\n\n                                                       (ii) on the date so fixed, the\n                                                       Authority               upon\n                                                       consideration of the reply\n                                                       to the show cause notice,\n                                                       may order the respondent\n                                                       liable to pay penalty as\n                                                       deem fit subject to\n                                                       provisions of the Act:\n\n                                                         Provided that penalty\n                                                       may be expressed in lump\n                                                       sum amount or interest\n                                                       imposed by the Authority\n                                                       upon    the    respondent\n\n\n                                  36 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 37 of 68\n\n\n                                                       violator and it shall be\n                                                       credited to the account of\n                                                       the State Government of\n                                                       Haryana in accordance\n                                                       with the provisions of\n                                                       subsection (2) of section\n                                                       76;\n\n                                                       (iii) if allottee is violator\n                                                       for any delay in payment\n                                                       towards any amount or\n                                                       charges to be paid by him\n                                                       as per provisions of the Act\n                                                       or rules or regulations or\n                                                       agreement for sale, the\n                                                       Authority may order that\n                                                       the allottee shall be liable\n                                                       to pay interest at such rate\n                                                       as prescribed in rule 15 to\n                                                       the promoter.\n\n                                                (m) If the complaint in form\n                                                'CAO'       filed    before    the\n                                                adjudicating officer for adjudging\n                                                quantum of compensation, the\n                                                complaint shall be admissible\n                                                from the stage of concluding\n                                                inquiry by the Authority that\n                                                respondent being promoter has\n                                                violated       or     contravened\n                                                provisions of the Act or the rules\n                                                or regulations made thereunder\n                                                warranting liability of the\n                                                promoter to pay compensation to\n                                                the allottee under the provisions\n                                                of the Act or the rules or\n                                                regulations made thereunder. The\n                                                Authority may refer the matter to\n                                                the adjudicating officer for\n                                                adjudging the quantum of\n                                                compensation payable to the\n                                                complainant allottee, and direct\n                                                both the parties to appear before\n                                                the adjudicating officer on the\n                                                appointed day. The quantum of\n                                                compensation payable to the\n                                                complainant may be expressed by\n                                                the adjudicating officer in the\n                                                form of lump sum amount or in\n                                                the form of percentage of interest\n\n\n                                  37 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                        page 38 of 68\n\n\n                                                   on the amount paid by the\n                                                   complainant to the respondent\n                                                   promoter          (compensation\n                                                   expressed in terms of interest i.e.\n                                                   compensatory interest)\n\n                                                   (n) if any person fails, neglects or\n                                                   refuses to appear, or present\n                                                   himself as required before the\n                                                   Authority, the Authority shall\n                                                   have the power to proceed with\n                                                   the inquiry in the absence of such\n                                                   person or persons after recording\n                                                   the reasons for doing so.\n\n(3) The procedure for day to day             (3) The procedure for day to day\nfunctioning of the Authority, which          functioning of the Authority, which\nhave not been provided by the Act or         have not been provided by the Act or\nthe rules made thereunder, shall be as       the rules made thereunder, shall be as\nspecified by regulations made by the         specified by regulations made by the\nAuthority.                                   Authority.\n\n(4) Where a party to the complaint is        (4) Where a party to the complaint is\nrepresented by an authorised person,         represented by an authorised person, as\nas provided under section 56, a copy         provided under section 56, a copy of the\nof the authorisation to act as such          authorisation to act as such and the\nand the written consent thereto by           written consent thereto by such\nsuch authorised person, both in              authorised person, both in original, shall\noriginal, shall be appended to the           be appended to the complaint or the\ncomplaint or the reply to the notice         reply to the notice of the complaint, as\nof the complaint, as the case may be.        the case may be."\n\n\n\n                Rule 29                                       Rule 29\n           (Pre-Amendment)                              (Post-Amendment)\n\nFiling of complaint and inquiry by Filing of complaint/ application for\nAdjudicating officer. Sections 12, 14, inquiry to adjudge quantum of\n18 and 19.                             compensation by adjudicating officer,\n                                       in respect of compensation under\n                                       sections 12, 14, 18 and 19\n29. (1)                                       29. (1)\nAny aggrieved person may file a               (a) Any aggrieved person may file an\ncomplaint with the adjudicating officer       application/ complaint with the\nfor interest and compensation as              adjudicating officer for adjudging\nprovided under sections 12, 14, 18 and        quantum of compensation as provided\n19 in Form 'CAO', in triplicate, which        under sections 12, 14, 18 and 19,\nshall be accompanied by a fee as              where violation by the promoter has\nmentioned in Schedule III in the form         been established by the Authority in an\n\n                                  38 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                        page 39 of 68\n\n\nof a demand draft or a bankers cheque        inquiry under section 35, in Form\ndrawn on a Scheduled bank in favour          'CAO'or in such form as specified in\nof "Haryana Real Estate Regulatory           the regulations, which shall be\nAuthority" and payable at the branch         accompanied by a fee as mentioned in\nof that bank at the station where the        Schedule III in the form of a demand\nseat of the said Authority is situated.      draft or a bankers cheque drawn on a\n                                             Scheduled bank or online payment in\n                                             favour of "Haryana Real Estate\n                                             Regulatory Authority" and payable at\n                                             the branch of that bank at the station\n                                             where the seat of the said Authority is\n                                             situated.\n\n(2) The adjudicating officer shall for       (2) The adjudicating officer shall for\nthe purposes of adjudging interest and       the    purposes       of    adjudging\ncompensation      follow     summary         compensation      follow     summary\nprocedure for inquiry in the following       procedure for inquiry in the following\nmanner, namely:--                            manner, namely: --\n\n      (a) upon receipt of the                       (a) upon receipt of the\n      complaint, the adjudicating                   complaint, the adjudicating\n      officer shall issue a notice along            officer shall issue a notice to the\n      with particulars of the alleged               respondent promoter along with\n      contravention and the relevant                particulars of the contravention\n      documents to the respondent;                  and the copy of the complaint\n                                                    seeking     compensation       and\n                                                    supporting relevant documents\n                                                    regarding           compensation\n                                                    demanded by the allottee\n                                                    (aggrieved person) to be paid by\n                                                    the respondent promoter;\n\n      (b) the respondent against                    (b) the respondent against\n      whom such notice is issued                    whom such notice is issued\n      under clause (a) of sub rule (2)              under clause (a) may file his\n      may file his reply in respect of              reply in respect of admissibility\n      the complaint within the period               of the compensation and\n      as specified in the notice;                   quantum      of    compensation\n                                                    within the period as specified in\n                                                    the notice;\n\n      (c) the notice may specify a date             (c) the notice shall specify a\n      and time for further hearing and              date and time for further hearing\n      the date and time for the hearing             and the date and time for the\n      shall also be communicated to                 hearing     shall      also    be\n      the complainant;                              communicated          to      the\n                                                    complainant;\n\n      (d) on the date so fixed, the                 (d) the adjudicating officer shall\n      adjudicating   officer   shall                have the power to summon and\n\n\n                                  39 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                        page 40 of 68\n\n\n      explain to the respondent about               enforce the attendance of any\n      the contravention alleged to                  person acquainted with the facts\n      have been committed in relation               and circumstances of the case to\n      to any of the provisions of the               give evidence or to produce any\n      Act or the rules and regulations              documents which in the opinion\n      made thereunder and if the                    of the adjudicating officer, may\n      respondent,                                   be useful for or relevant to the\n                                                    subject matter of the inquiry i.e.\n             (i) pleads guilty, the                 adjudging       quantum        of\n             adjudicating officer shall             compensation. [section 71(3)]\n             record the plea, and by\n             order in writing, order\n             payment of interest as\n             specified in rule 15 and\n             such compensation as he\n             deems fit, as the case may\n             be, in accordance with the\n             provisions of the Act or\n             the rules and regulations,\n             made thereunder;\n\n             (ii) does not plead guilty\n             and       contests     the\n             complaint,             the\n             adjudicating officer shall\n             demand and explanation\n             from the respondent;\n\n      (e) in case the adjudicating                  (e) while holding inquiry for\n      officer is satisfied on the basis             adjudging the quantum of\n      of the submissions made that                  compensation       or     interest\n      the complaint does not require                (compensation expressed in\n      any further inquiry, he may                   term      of     interest      i.e.\n      dismiss the complaint;                        compensatory interest) as the\n                                                    case may be, the adjudicating\n                                                    officer shall have due regard to\n                                                    the following factors, -\n\n                                                          (i) the amount of\n                                                          disproportionate gain or\n                                                          unfair         advantage,\n                                                          wherever     quantifiable,\n                                                          made as a result of the\n                                                          default;\n\n                                                          (ii) the amount of loss\n                                                          caused as a result of the\n                                                          default;\n\n                                                          (iii) the repetitive nature\n\n\n                                  40 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                       page 41 of 68\n\n\n                                                          of the default;\n\n                                                          (iv) such other factors\n                                                          which the adjudicating\n                                                          officer          considers\n                                                          necessary to the case in\n                                                          furtherance of justice.\n\n      (f) in case the adjudicating                  (f) before announcing his\n      officer is satisfied on the basis             award, a show cause notice shall\n      of the submissions made that                  be issued to the promoter\n      the there is a need for further               respondent opposite party;\n      hearing into the complaint, he                specifying therein the quantum\n      may order production of                       of compensation proposed to be\n      documents or other evidence on                paid along with reasons thereof.\n      a date and time fixed by him;                 After considering the reply of\n                                                    the promoter (respondent),\n                                                    evidences and documents all\n                                                    facts and circumstances and\n                                                    taking into account of the\n                                                    factors mentioned in section 72.\n                                                    The adjudicating officer shall\n                                                    announce his final award\n                                                    regarding      quantum        of\n                                                    compensation.\n\n      (g) the adjudicating officer shall            (g)     the     quantum       of\n      have the power to carry out an                compensation to be paid to the\n      inquiry into the complaint on                 allottee (complainant) by the\n      the basis of documents and                    promoter (violator respondent)\n      submissions;                                  may be expressed in the form of\n                                                    lump sum amount to be paid to\n                                                    the allottee (complainant) or in\n                                                    percentage of interest on the\n                                                    amount paid by the allottee\n                                                    (complainant) to the promoter\n                                                    (respondent).\n\n      (h) the adjudicating officer shall            (h) any compensation payable\n      have the power to summon and                  by the promoter to the allottee\n      enforce the attendance of any                 in terms of the Act or the rules\n      person acquainted with the facts              and regulation made there under\n      and circumstances of the case to              shall be payable by the\n      give evidence or to produce any               promoter to the allottee within a\n      documents which in the opinion                period of ninety days from the\n      of the adjudicating officer, may              date on which compensation has\n      be useful for or relevant to the              been     adjudged      by     the\n      subject matter of the inquiry,                adjudicating officer.\n      and in taking such evidence.\n\n\n\n                                  41 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                       page 42 of 68\n\n\n      (i) on the date so fixed, the\n      adjudicating      officer     upon\n      consideration of the evidence\n      produced before him and other\n      records and submissions is\n      satisfied that the respondent is,-\n             (i) liable to pay interest\n             and compensation, as the\n             case may be, the\n             adjudicating officer may,\n             by order in writing, order\n             payment of\n             interest as specified in\n             rule     14     and    such\n             compensation        as   he\n             deems\n             fit.\n\n             (ii) not liable to any\n             interest or compensation,\n             as the case may be, the\n             adjudicating officer may,\n             by order in writing,\n             dismiss the complaint,\n             with reasons to be\n             recorded in writing;\n\n      (j) if any person fails, neglects\n      or refuses to appear, or present\n      himself as required before the\n      adjudicating     officer,     the\n      adjudicating officer shall have\n      the power to proceed with the\n      inquiry in the absence of such\n      person     or   persons     after\n      recording the reasons for doing\n      so.\n\n(3) The procedure for day to day             (3) The procedure for day to day\nfunctioning of the adjudicating officer,     functioning of the adjudicating officer,\nwhich have not been provided by the          which have not been provided by the\nAct or the rules made thereunder, shall      Act or the rules made thereunder, shall\nbe as specified by regulations made by       be as specified by regulations made by\nthe Authority.                               the Authority.\n\n(4) Where a party to the complaint is        (4) Where a party to the complaint is\nrepresented by an authorised person, a       represented by an authorised person, a\ncopy of the authorisation to act as such     copy of the authorisation to act as such\nand the written consent thereto by           and the written consent thereto by\nsuch authorised person, both in              such authorised person, both in\n\n\n                                  42 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 43 of 68\n\n\noriginal, shall be appended to the original, shall be appended to the\ncomplaint or the reply to the notice of complaint or the reply to the notice of\nthe complaint, as the case may be.      the complaint, as the case may be.\n\n47. Corresponding amendments were made to Forms CRA and CAO. A perusal\nof the unamended and amended Rules 28 and 29 of the Haryana Rules, as\njuxtaposed, would reveal that the two distinct set of adjudicatory processes, one\nbefore the Authority and the other before the AO, stand explicitly recognized.\nUnder the amended Rule 28, any aggrieved person can file a complaint with the\nAuthority against any promoter, allottee or real estate agent inform CRA. If in\nthat complaint only an allegation has been made regarding contravention or\nviolation of the provisions of the Act, then the Authority itself is to conduct an\ninquiry for establishing the veracity of the allegations. If the allegation is\nestablished, the Authority can pass such orders in accordance with the Act.\nUnder the amended Rule 28 (e) when the allottee is the aggrieved person and\nthe promoter has violated the provisions of the Act, and in the complaint\ncompensation has been sought, then the complaint will be referred by the\nAuthority to the AO for adjudging 'quantum of compensation' as per Section\n71(3) of the Act taking into consideration the factors mentioned in Section 72\nand in a manner prescribed under amended Rule 29.\n\n48. Rule 28 (2) of the Haryana Rules as amended delineates the procedure that\nthe Authority will follow in making the inquiry into the allegation of violation\nof the provisions of the Act, Rules or regulations. It is further provided under\nRule 28 (3) as amended that the procedure for the day-to-day functioning of the\nauthority, which has not been provided by Act of the rules, shall be specified by\nthe regulations made by the authority.\n\n49. Rule 29 of the Haryana Rules as amended talks of filing of complaint/\napplication for inquiry for adjudging by the AO of the quantum of\ncompensation under Sections 12,14, 18 & 19. The amended Rule 29 (2) sets out\nthe summary procedure for inquiry by the AO. Correspondingly, Form CRA\nnow stands amended with the heading 'complaint to the authority' and with the\ncaption 'claim for relief, directions/ orders and penalty proceedings under\n\n\n                                  43 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 44 of 68\n\n\nSection 31 read with Sections 35, 36, 37 & 38'. The corresponding from CAO\nwhich pertains to complaints before the AO has also been amended where the\nword 'claim' has been substituted by "claim for compensation or interest, as the\ncase may be".\n\n50. The principal arguments of counsel for the Petitioners, assailing the above\namendments, are as follows:\n\n      (i) The scheme of the Act and the provisions pertaining to exercise of\n      adjudicatory functions reveals that the legislative intent was not to have a\n      bifurcation of the adjudicatory powers between the Authority on the one\n      hand and the AO on the other. In other words, the legislative intent was\n      to create only one adjudicating authority for deciding the issues between\n      the parties.\n\n      (ii) If two separate orders are passed by the Authority and the AO on the\n      issues of determination of violation and quantum of compensation or\n      interest, two appeals would lie before the Appellate Tribunal with there\n      being no finality of the determination of the violation. Thus, it would\n      lead to only multiplicity of litigation.\n\n      (iii) In case a complaint is filed before the authority claiming\n      compensation which was not granted by the Authority since it is not\n      authorized to deal with that issue, it would amount to denial of\n      compensation. In such a case, can the complaint for compensation be\n      refiled before the AO?\n      (iv) That even for the sake of arguments, if it can be said that the\n      Authority has power to grant refund of money and interest, then also the\n      Authority will have jurisdiction to grant interest only under the\n      agreement between parties. In case the complainant demands interest as\n      per the Act, Rules and regulations, it will be treated as compensation, and\n      thus will be within the purview of the AO. Similarly, if the rate of\n      interest demanded is more than the rate of interest mentioned in the\n\n                                  44 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 45 of 68\n\n\n      agreement, the same will be counted for compensation. Therefore,\n      wherever anything other than refund and interest as provided in\n      agreement is claimed by a party, the Authority will not have jurisdiction\n      to adjudge the same. Where the complainant claims relief of\n      compensation/ damages, the Authority will act only as a post office and\n      send the complaint to AO.\n\n      (vi) The jurisdiction of a plaint/ complaint depends on the claims made\n      by the plaintiff/ complainant and not on the relief granted by the\n      Authority or AO. The question of jurisdiction and maintainability arises\n      on the presentation of the complaint and not upon its decision. Therefore,\n      the Authority would not have jurisdiction to determine compensation or\n      interest. The cause of action being a bundle of rights, cannot be\n      bifurcated to be agitated in part before one authority and the remaining\n      before another.\n\n      (vii) Interest granted to an allottee in the shape of compensation would be\n      within the exclusive jurisdiction of the AO. The expression\n      'compensation or interest' in Section 71 (3) cannot be interpreted as\n      interest on the compensation. It is inconceivable that the interest alone,\n      without determination of compensation, can be granted.\n\n51. Almost all counsel appearing for the Petitioners have emphasised on the\nrequisite qualifications for being appointed as an AO and compared it with the\nqualifications for being the member of the Authority to argue that it is only the\nAO who is intended to undertake the adjudicatory functions of determining\nviolations of the Act, Rules and regulations and to grant reliefs as a\nconsequence. Relying on a number of decisions of the Supreme Court and the\nHigh Courts, including Union of India v. R. Gandhi, President, Madras Bar\nAssociation (2010) 11 SCC 1 and State of Gujarat v. Utility Users Welfare\nAssociation (2018) 6 SCC 21 it is argued that only a person, with the requisite\neducational qualifications and possessing adequate experience as a judicial\nofficer can undertake such exercise, failing which the provisions of the Act that\nare interpreted to expand the adjudicatory powers of the Authority, would be\n\n                                  45 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 46 of 68\n\n\nunconstitutional. It is pointed out that disputes under the Act would involve\ndetermining if the clauses of an agreement of sale have been complied with and\nthat such a 'lis' can be adjudged only by the AO. The refrain of the Petitioners\nis that the Authority comes in only to determine penalties and consequent\ninterest on the penalty and nothing more. In other words, according to the\nPetitioners, Section 38 of the Act exhausts all of the adjudicatory powers of the\nAuthority. It is urged that since it is not mandatory for the Authority to have as\nits member a judicially trained person, it is not equipped to undertake any\nadjudicatory exercise.\n\n52.The stand of the State of Haryana as well as the Authority on the other hand\nis that any existing ambiguity in interpretation of provisions of the Act, vis-à-\nvis the powers of the Authority and the AO now stands clarified with the\namendment to Rules 28 and 29 of the Haryana Rules and the corresponding\nforms CRA and CAO. It is submitted that the limited scope of the powers of the\nAO is to adjudge the quantum of compensation or interest by way of\ncompensation and for all other reliefs, it is the Authority which has the\njurisdiction. It is further submitted that the word 'interest' used in Section 71\n(3) of the Act is different from the interest payable under Section 18 (1) of the\nAct, which is at such rate as may be prescribed. The latter is pre-decided\ninterest for which no adjudication as such required. The rate is fixed by the\nState Government in terms of the Rules. However, for adjudging the quantum\nof compensation or quantum of interest by way of compensation, the AO is\nrequired to have due regard to the factors in Section 72 of the Act. Thus the\ninterest to be determined by the AO is not a pre-fixed rate of interest. This is\nseparate from the interest payable under Section 18 (1) of the Act. It is\nsubmitted that there is no warrant to restrict the powers of the Authority.\nMerely because the qualifications for being appointed as an AO and as a\nmember of the Authority may be different, cannot lead to the conclusion that it\nis only the AO, who has the powers of adjudication and not the Authority.\nReliance has been placed on the decision of the Bombay High Court in\nNeelkamal Realtors Suburban Pvt. Ltd v. Union of India, 2018 (1) RCR\n(Civil) 298.\n\n                                  46 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 47 of 68\n\n\n53. The Court now proceeds to consider the above submissions. As already\nnoted, the Act envisages a three-tier structure of adjudication. The adjudication\nin the first instance is to be undertaken by two fora, viz., the Authority and the\nAO. In the second tier there is the Appellate Tribunal, which entertains appeals\nagainst the orders of the Authority and the AO. The third tier is the High Court.\nUnder Section 58 of the Act, an appeal from any order of the Appellate\nTribunal is maintainable before the High Court.\n\n54. Under Section 22 of the Act, while the qualification for being appointed as\nChairperson of the Authority is a person having adequate knowledge and\nprofessional experience of at least 20 years in diverse disciplines/fields\nmentioned therein, it is 15 years in the case of Members. The disciplines/fields\nmentioned are urban development, housing, real estate development,\ninfrastructure, economics, and technical experts from relevant fields, planning\nlaw, commerce, accountancy, industry, management, social service, public\naffairs or administration. It is, therefore, not mandatory for either the\nChairperson or the member to have professional experience in law.            It is\nsignificant, however, that the Chairperson/Members of the Authority are to be\nappointed by the appropriate government on the recommendation of a Selection\nCommittee consisting of the Chief Justice of the High Court or his nominee, the\nSecretary of the Department dealing with Housing and the Law Secretary. As\nfar as the AO is concerned, under Section 71 (1) of the Act, it is the Authority\nwhich appoints the AO in consultation with the appropriate government. The\nAO has to necessarily be a serving or retired district judge.\n\n55. From the overall scheme of the Act, and in particular the provisions referred\nto, it is evident that no powers of a High Court are sought to be entrusted to the\nAuthority. The orders of the Authority are appealable before the Appellate\nTribunal, which in terms of Section 46 (1) of the Act is presided over by a\nChairperson who 'is or has been a Judge of a High Court'. This has to further\nbe seen in the context of the orders of the Appellate Tribunal itself being\nappealable in the High Court. Therefore, even the Appellate Tribunal is\nsubordinate to the High Court in the hierarchy of judicial authorities under the\nAct. This is, therefore, very different from the scheme of the Companies Act\n\n                                  47 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 48 of 68\n\n\nand the amendments thereto which were under challenge in the Madras Bar\nAssociation case (supra). There the powers of the High Court were entrusted to\nthe National Company Law Tribunal. It is in that context the decision was\nrendered mandating that since the NCLT takes over the functions of the High\nCourt "the members should as nearly as possible have the same position and\nstatus as High Court Judges".\n\n56. For the same reason, the reliance by the Petitioners on the decision of\nUtility Users Welfare Association (supra) is also misplaced. There the Supreme\nCourt was dealing with the adjudicatory mechanisms under the Electricity Act,\n2003 in which a two-tier structure is contemplated. There are the Central and\nState Regulatory Commissions, and adjudication officers at one level and at the\nappellate level, there is the Electricity Appellate Tribunal (APTEL). The\nAPTEL comprises a Chairperson who has been a Judge of the Supreme Court\nor Chief Justice of a High Court, one Judicial Member who has been or\nqualified to be a judge of a High Court, two Technical Members who are\nelectricity sector experts and one Technical Member who is an expert from\npetroleum and natural gas sector. Each bench of the APTEL has at least one\nJudicial Member and one Technical Member. A second appeal lies to the\nSupreme Court, from the orders of the APTEL, only on substantial questions of\nlaw. Under the Act in question however, there is an appeal provided to the High\nCourt from the orders of the Appellate Tribunal. Therefore, it would not be\nappropriate to compare the Electricity Commissions under the Electricity Act\nwith the Authority/AO under the Act or the APTEL with the Appellate\nTribunal. The Court is, therefore, not able to accept the plea of the Petitioners\nthat in the absence of Chairperson and Members of the Authority not\nmandatorily being required to have legal/judicial background but from variety\nof other fields, no adjudicatory function can be entrusted to the Authority\nwhatsoever. Given the two levels of appeals provided under the Act itself, first\nto the Appellate Tribunal which has a serving or retired High Court judge as\nChairperson, and then to the High Court, such submission appears to be\nmisconceived.\n\n57. The judgment of the Bombay High Court in Neelkamal Realtors Suburban\n\n                                  48 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 49 of 68\n\n\nPvt. Ltd. (supra) to the extent it holds that there is no mandatory requirement\nfor the Authority to have a judicial member who has the qualifications of\njudicial officer, is consistent with the conclusion of this Court. Indeed, as\nexplained by the Bombay High Court in Neelkamal Realtors Suburban Pvt.\nLtd. (supra), the context in which the observations were made by the Supreme\nCourt in Madras Bar Association (supra) was different from the context of the\nmulti-tiered adjudication process under the present Act.\n\n58. Reliance was placed by counsel for the Petitioners on the following\nobservations in the report of the Parliamentary Standing Committee on the Real\nEstate Bill 2013 to urge that the intention was to entrust the AO alone with\nadjudicatory powers:\n\n      "8.19. The Committee observe that under sub clause (2) of Clause\n      61, the application for adjudging compensation under sub-section\n      (1), shall be dealt with by the adjudicating officer as expeditiously\n      as possible and dispose of the same within a period of ninety days\n      from the date of receipt of such application. The Committee are in\n      agreement with the opinion of RBI that the Adjudicating Officer\n      needs to have more powers to pass interim orders in the nature of\n      directing the promoter to deposit at least a portion of the amount of\n      compensation even before the final disposal if the Adjudicating\n      Officer is satisfied that there is a prima facie case in favour of the\n      allottee or to direct the promoter to provide alternative\n      accommodation to the allottee where there is delay. The\n      Committee desire the Ministry to incorporate suitable provision in\n      the Bill."\n\n59. The above passage no doubt concerns entrusting adjudicatory powers to the\nAO but by no means is intended to expand the scope of the powers and\nfunctions of the AO under Section 71 of the Act. The opening words of Section\n71 (1) of the Act make it clear that the scope and functions of the AO are only\nfor 'adjudging compensation under Sections 12, 14, 18 and 19 of the Act'. If\nthe legislative intent was to expand the scope of the powers of the AO, then the\nwording of Section 71 (1) ought to have been different. On the contrary, even\nthe opening words of Section 71 (2) of the Act make it clear that an application\nbefore the AO is only for 'adjudging compensation'. Even in Section 71 (3) of\nthe Act, it is reiterated that the AO may direct 'to pay such compensation or\ninterest as the case may be as he thinks fit' in accordance with provisions of\n\n                                  49 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 50 of 68\n\n\nSections 12, 14, 18 and 19 of the Act. This has to be seen together with the\nopening words of Section 72 of the Act, which read "while adjudging the\nquantum of compensation or interest, as the case may be, under Section 71, the\nadjudicating officer shall have due regard to the following factors,\nnamely,................"\n\n60. On a collective reading of Sections 71 and 72 of the Act, the legislative\nintent becomes explicit. This is to limit the scope of the adjudicatory powers of\nthe AO to determining compensation or interest in the event of violation of\nSections 12, 14, 18 and 19 of the Act. To recapitulate, the question of\ncompensation arises only in relation to the failure of the promoter to discharge\nhis obligations. Therefore, in a complaint for compensation or interest in terms\nof Section 71 of the Act, the complainant would be the allottee and the\nRespondent would be the promoter. However, the powers of the Authority to\ninquire into complaints are wider in scope. As is plain from Section 31 of the\nAct, a complaint before the Authority can be against "any promoter/allottee,\nreal estate agent, as the case may be." It is, therefore, not correct to equate the\nadjudicatory powers of the Authority with that of the AO as they operate in\ndifferent spheres. Even vis-à-vis the promoter, complaints seeking reliefs other\nthan compensation or interest in terms of Section 71 read with Section 72 of the\nAct, the powers of adjudication are vested only with the Authority and not with\nthe AO. The submission that since disputes under the Act would involve\ndetermining if the clauses of an agreement of sale have been complied with by\neither party and that such a 'lis' can be adjudged only by the AO, is also not\nacceptable. There is no reason why the Authority cannot examine such a\nquestion if it were to arise for determination in a complaint before it. In any\nevent, the Authority's decisions are amenable to judicial review in two further\nappeals, once by the Appellate Tribunal and, thereafter, by the High Court.\n\n61. Consequently, the plea of the Petitioners that the power and scope of the\nfunctions of the Authority are limited to determining penalty or interest under\nSection 38 of the Act is rejected as it overlooks the wide range of powers of the\nAuthority on a collective reading of Sections 31, 34 (f), Sections 35, 36 and 37.\nIn fact, the power to issue interim orders under Section 36 of the Act and the\n\n                                  50 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 51 of 68\n\n\npower to issue directions under Section 37 of the Act are not made available to\nthe AO under Section 71 of the Act.\n\n62. The powers of the Authority under Section 35 of the Act are also of a wide\nnature. While discharging those functions, it will be open to the Authority to\neven require the AO to conduct the inquiry. Section 35 (2) of the Act also\nmakes its plain that the Authority will have the same powers as a civil Court.\nThe legislative intent is, therefore, not to diminish the adjudicatory functions of\nthe Authority but rather to provide it with all the trappings of a quasi-\njudicial/judicial authority while inquiring into the complaints and issuing\ndirections.\n\n63. Although, the Act does use distinct expressions like 'refund', 'interest',\n'penalty' and 'compensation', a collective reading of the provisions makes it\napparent that when it comes to refund of the amount, and interest on the refund\namount, or directing payment of interest for delayed delivery of possession, or\npenalty and interest thereon, it is the Authority which has the power to examine\nand determine the outcome of a complaint. This Court finds merit in the\ncontention on behalf of the Respondents that the expression 'interest' as used in\nSection 18 of the Act is a pre-determined rate, as may be fixed by the\ngovernment, and is distinct from the interest by way of compensation that has\nto be computed by the AO in terms of Section 71 (3) keeping in view the\nfactors outlined in Section 72 of the Act. When it comes to the question of\nseeking the relief of compensation or interest by way of compensation, the AO\nalone has the power to determine it on a collective reading of Sections 71 and\n72 of the Act.\n\n64. The submission on behalf of the Petitioners that the word 'quantum' is not\nused in Section 71 of the Act and, therefore, the AO has the powers beyond\nadjudging compensation, is again based on an improper understanding of the\nscope of those powers. If Sections 71 and 72 of the Act are read together, it is\nplain that the AO has to adjudge the 'quantum of compensation'.\n\n65. As far as the proviso to Section 71 (1) of the Act is concerned, it is an\n\n                                   51 of 68\n                 ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 52 of 68\n\n\nenabling provision. It enables a person whose complaint is pending in the\nconsumer fora under the CPA to opt to withdraw such complaints to go before\nthe AO. However, this has to be read along with Section 88 of the Act, which\nclearly states that "the provisions of this Act shall be in addition to, and not in\nderogation of, the provisions of any other law for the time being in force." It is,\ntherefore, not mandatory for a person, who has a complaint before the\nconsumer fora to have his complaint transferred to the AO. He can pursue both\nthe remedies simultaneously on the strength of Section 88 of the Act. If,\nhowever, such person opts to withdraw his complaint before the consumer fora\nto come to the AO, the scope of the relief he seeks would be limited to the\ncompensation or interest. He will, therefore, have to take a conscious decision.\nIf the relief he is seeking in the complaint before the consumer fora is in\naddition to seeking compensation or interest in the form of compensation, for\ninstance refund of the amount and interest thereon, then he will have to take a\nconscious decision on restricting his relief before the AO to one of\ncompensation or interest by way of compensation. For the remaining reliefs, he\nwill have to go before the Authority.\n\n66. It was repeatedly urged by the counsel for the Petitioners that the Authority\nand the AO can come to different conclusions on the same question, viz.,\nwhether there has been a violation of provisions of Sections 12, 14, 18 and 19\nof the Act by the promoter. This again appears to the Court to be based on an\nerroneous understanding of the scheme of the Act. If a complainant is seeking\nonly compensation or interest by way of compensation simpliciter with no other\nrelief, then obviously the complainant would straightway file a complaint\nbefore the AO. The complaint will be filed in form CAO and will be referrable\nto Rule 29 of the Haryana Rules. The AO in such instance would proceed to\ndetermine whether there is a violation of Sections 12, 14, 18 and 19 of the Act.\nTherefore, the question of any inconsistent order being passed by the Authority\nin such instance would not arise.\n\n67. The second scenario is that a single complaint is filed seeking a\ncombination of reliefs with one of the reliefs being relief of compensation and\npayment of interest. In such instance, the complaint will first be examined by\n\n                                    52 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 53 of 68\n\n\nthe Authority which will determine if there is a violation of the provisions of\nthe Act. If such complaint is by the allottee and against the promoter and if the\nAuthority comes to an affirmative conclusion regarding the violations it will\nthen, for the limited purpose of adjudging the quantum of compensation or\ninterest by way of compensation, refer the complaint for that limited purpose to\nthe AO. With the Authority already having found in favour of the complainant\nas regards violation by the promoter of Sections 12, 14, 18 and 19 of the Act,\nclearly the AO will not further examine that question. The AO will only\nproceed to determine the quantum of compensation or interest keeping in view\nthe factors outlined in Section 72 of the Act. In other words, the AO will act on\nthe finding of the Authority on the question of violation of those provisions and\nnot undertake a fresh exercise in that regard. This way the powers of the\nAuthority under Section 31 read with Sections 35 to 37 of the Act will not\noverlap the functions of the AO under Section 71 of the Act. Both sets of\nprovisions are, therefore, capable of being harmonized.\n\n68.1 The settled legal position on the doctrine of 'harmonious construction'\nmay be noticed at this stage. It was explained by the Supreme Court in\nVenkataramana Devaru v. State of Mysore AIR 1958 895 that:\n      "The rule of construction is well settled that when an enactment\n      there are in an enactment two provisions which cannot be\n      reconciled with each other, they should be so interpreted that, if\n      possible, effect should be given to both. This is what is known as\n      the rule of harmonious construction."\n\n68.2 In State of Rajasthan v. Gopi Kishan Sen AIR 1992 SC 1754, it was held:\n      "the rule of harmonious construction of apparently conflicting\n      statutory provisions is well established for upholding and giving\n      effect to all the provisions as far as it may be possible, and for\n      avoiding the interpretation which may render any of them\n      ineffective."\n\n68.3 In CIT v. Hindustan Bulk Carriers (2003) 3 SCC 57, the Supreme Court\nreminded that:\n      "The provisions of one section of the statute cannot be used to\n      defeat those of another unless it is impossible to effect\n      reconciliation between them. Thus a construction that reduces one\n      of the provisions to a "useless lumber' or 'dead letter' is not a\n      harmonised construction. To harmonise is not to destroy."\n\n                                   53 of 68\n                 ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 54 of 68\n\n\n\n\n68.4 In the same decision it was held:\n      "The Courts will have to reject that construction which will defeat\n      the plain intention of the legislature even though there may be\n      some in exactitude in the language used. [See Salmon v. Duncombe\n      (1886) 11 AC 627 p.634 (PC), Curtis v. Stovin (1889) 22 CBD\n      513) referred to in Commissioner of Income Tax v. S. Teja Singh\n      AIR 1959 SC 352].\n\n      If the choice is between two interpretations, the narrower of which\n      would fail to achieve the manifest purpose of the legislation we\n      should avoid a construction which would reduce the legislation to\n      futility, and should rather accept the bolder construction, based on\n      the view that Parliament would legislate only for the purpose of\n      bringing about an effective result. [See Nokes vs. Doncaster\n      Amalgamated Collieries (1940) 3 All E.R. 549 (CL) referred to in\n      Pye vs. Minister for Lands for NSW (1954) 3 All ER 514 (PC)].\n      The principles indicated in the said cases were reiterated by this\n      Court in Mohan Kumar Singhania v. Union of India AIR 1992 SC\n      1. The statute must be read as a whole and one provision of the Act\n      should be construed with reference to other provisions in the same\n      Act so as to make a consistent enactment of the whole statute."\n\n69. In light of the settled legal position, this Court rejects the submission\nadvanced by the counsel for the Petitioners that the provisions of the Act\nconcerning the respective adjudicatory powers of the Authority and the AO, as\nthey presently stand, are irreconcilable and that it is the AO alone that can\nexercise those powers to the exclusion of the Authority. Rules 28 and 29 of the\nHaryana Rules as amended seek to give effect to the harmonized construction\nof the provisions of the Act concerning the powers of the Authority and of the\nAO. The amended Rule 28 (1) of the Rules, in so far as it requires the Authority\nto first determine violations of the Act and then if it finds the existence of such\nviolations to refer the matter to the AO only where there is prayer for\ncompensation and interest by way of compensation, is consistent with above\ninterpretation. It is in other words based on the correct understanding of the\nclear delineation of the powers of the Authority on one hand and the AO on the\nother. Rule 29 of the Rules is also consistent with this clear delineation of the\nadjudicatory powers of the Authority and the AO respectively. Therefore, the\nCourt does not find the amended Rules 28 and 29 of the Rules, or the\namendments to Forms CRA and CAO to be ultra vires the Act.\n                                  54 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 55 of 68\n\n\n\n\n70. The decision of the Appellate Tribunal rendered on 2nd May, 2019 in\nSameer Mahawar (supra) to the effect that the Authority lacks the power to\nexamine a complaint seeking refund or the interest can no longer hold good,\nparticularly since it was rendered prior to the notification of the amended Rules\n28 and 29 of the Haryana Rules.\n\n71. The further issue that arises is regarding the prospective application of the\namended Rules 28 and 29 of the Haryana Rules. Here, the settled legal\nproposition is that a change of forum would be 'procedural'. It was explained\nby the Supreme Court in Securities and Exchange Board of India v. Classic\nCredit Limited (2018) 13 SCC 1, as under:\n      "34......In our considered view, the legal position expounded by\n      this Court in a large number of judgments including New India\n      Insurance Co. Ltd. v. Shanti Misra, (1975) 2 SCC 840; Securities\n      and Exchange Board of India v. Ajay Agarwal, (2010) 3 SCC 765;\n      and Ramesh Kumar Soni v. State of Madhya Pradesh, (2013) 4\n      SCC 696, is clear and unambiguous, namely, that procedural\n      amendments are presumed to be retrospective in nature, unless the\n      amending statute expressly or impliedly provides otherwise.\n\n      And also, that generally change of 'forum' of trial is procedural,\n      and normally following the above proposition, it is presumed to be\n      retrospective in nature, unless the amending statute provides\n      otherwise.\n      ....\n      35. We have also no doubt, that alteration of 'forum' has been\n      considered to be procedural, and that, we have no hesitation in\n      accepting the contention advanced on behalf of the SEBI, that\n      change of 'forum' being procedural, the amendment of the 'forum'\n      would operate retrospectively, irrespective of whether the offence\n      allegedly committed by the accused, was committed prior to the\n      amendment."\n\n72. In view of the settled legal position, the position that emerges is this. As\nlong as the complaint is yet to be decided as on the date of the notification\npublishing the Haryana Amendment Rules 2019, that will now be decided\nconsistent with the procedure outlined under the amended Rules 28 and 29 of\nthe Haryana Rules. In other words, if the pending or future complaint seeks\nonly compensation or interest by way of compensation, and no other relief, it\nwill be examined only by the AO. If the pending or future complaint seeks\n\n                                  55 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 56 of 68\n\n\nother reliefs i.e. other than compensation or interest by way of compensation,\nthe complaint will have to be examined by the Authority and not the AO. If the\npending or future complaint seeks a combination of reliefs, the complaint will\nhave to be examined first by the Authority. If the Authority finds there to be a\nviolation of Sections 12, 14, 18 and 19 of the Act by the promoter, and the\ncomplaint is by the allottee, then for determining the quantum of compensation\nsuch complaint will be referred by the Authority to the AO in terms of the\namended Rule 28 of the Haryana Rules. A complaint that has already been\nadjudicated prior to the coming into force of the amended Rules 28 and 29 of\nthe Haryana, and the decision has attained finality, will not stand reopened.\n\nRetroactive application of the Act to 'ongoing projects'\n73. The last issue concerns the retroactivity of the provisions of the Act\nparticularly with reference to 'ongoing' projects. The expression "Real Estate\nProject" is defined in Section 2 (zn) of the Act to mean:\n      "the development of a building or a building consisting or\n      apartments, or converting an existing building or a part thereof into\n      apartments, or the development of land into plots or apartments, as\n      the case may be, for the purpose of selling all or some of the said\n      apartments or plots or building, as the case may be, and includes\n      the common areas, the development works, all improvements and\n      structures thereon, and all easement, rights and appurtenances\n      belonging thereto."\n\n74. The Act is intended to apply even to 'ongoing' Real Estate Projects. The\nexpression 'ongoing project' has not been defined under the Act but under Rule\n2 (o) of the Haryana Rules which reads as under:\n      "ongoing project" means a project for which a license was issued\n      for the development under the Haryana Development and\n      Regulation of Urban Area Act, 1975 on or before the 1st May,\n      2017 and where development works were yet to be completed on\n      the said date, but does not include:\n\n          (i) any project for which after completion of development\n          works, an application under Rule 16 of the Haryana\n          Development and Regulation of Urban Area Rules, 1976 or\n          under sub code 4.10 of the Haryana Building Code 2017, as the\n          case may be, is made to the Competent Authority on or before\n          publication of these rules and\n\n\n\n                                  56 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 57 of 68\n\n\n           (ii) that part of any project for which part\n           completion/completion, occupation certificate or part thereof\n           has been granted on or before publication of these rules."\n\n75. The expression 'Completion Certificate' has been defined under Section 2\n(q) of the Act as under:\n      "completion certificate" means the completion certificate, or such\n      other certificate, by whatever name called, issued by the competent\n      authority certifying that the real estate project has been developed\n      according to the sanctioned plan, layout plan and specifications, as\n      approved by the competent authority under the local laws."\n\n76. This has to be read along with the expression 'occupancy certificate' which\nis defined under Section 2 (zf) of the Act as under:\n      "occupancy certificate" means the occupancy certificate, or such\n      other certificate by whatever name called, issued by the competent\n      authority permitting occupation of any building, as provided under\n      local laws, which has provision for civic infrastructure such as\n      water, sanitation and electricity."\n\n77. Rule 3 of the Haryana Rules talks of application for registration and Rule 4\nof 'additional disclosure by Promoters of ongoing projects.' Therefore, all\n'ongoing projects' i.e. those that commenced prior to the Act, and in respect of\nwhich no completion certificate is yet issued, are covered under the Act. It is\nplain that the legislative intent was to make the Act applicable to not only to the\nprojects which were to commence after the Act became operational but also to\nongoing projects. The issue that arises is whether this is permissible in law?\n\n78. The decision of the Bombay High Court in Neelkamal Realtors Suburban\nPvt. Ltd. (supra) has dealt with this issue quite extensively. The conclusion of\nthe Bombay High Court that this retroactive application of the Act, as\ndistinguished from retrospective effect, in relation to ongoing project is\nconsistent with the legal position in this regard. A very conscious decision was\ntaken that the Act should apply not only to new projects but to existing projects\nas well.\n\n79. The following observations of the Bombay High Court in Neelkamal\nRealtors Suburban Pvt. Ltd. (supra) are relevant in this context:\n\n                                  57 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 58 of 68\n\n\n      "86. On behalf of the Petitioners it was submitted that registration\n      of ongoing project under RERA would be contrary to the\n      contractual rights established between the promoter and allottee\n      under the agreement for sale executed prior to registration under\n      RERA. In that sense, the provisions have retrospective or\n      retroactive application. After assessing, we find that the projects\n      already completed are not in any way affected and, therefore, no\n      vested or accrued rights are getting affected by RERA. The RERA\n      will apply after getting the project registered. In that sense, the\n      application of RERA is prospective in nature. What the provisions\n      envisage is that a promoter of a project which is not complete/sans\n      completion certificate shall get the project registered under RERA,\n      but, while getting project registered, promoter is entitled to\n      prescribe a fresh time limit for getting the remaining development\n      work completed. From the scheme of RERA and the subject case\n      laws cited above, we do not find that first proviso to Section 3(1) is\n      violative of Article 14 or Article 19(1)(g) of the Constitution of\n      India. The Parliament is competent to enact a law affecting the\n      antecedent events. In the case of State of Bombay v. Vishnu\n      Ramchandra AIR 1961 SC 307, the Apex Court observed that the\n      fact that part of the requisites for operation of the statute were\n      drawn from a time antecedent to its passing did not make the\n      statute retrospective so long as the action was taken after the Act\n      came into force. The consequences for breach of such obligations\n      under RERA are prospective in operation. In case ongoing\n      projects, of which completion certificates were not obtained, were\n      not to be covered under RERA, then there was likelihood of\n      classifications in respect of undeveloped ongoing project and the\n      new project to be commenced. In view of the material collected by\n      the Standing Committee and the Select Committee and as\n      discussed on the floor of the Parliament, it was thought fit that\n      ongoing project shall also be made to be registered under RERA.\n      The Parliament felt the need because it was noticed that all over\n      the country in large number of projects the allottees did not get\n      possession for years together. Huge sums of money of the allottees\n      is locked in. Sizable section of allottees had invested their hard\n      earned money, life savings, borrowed money, money obtained\n      through loan from various financial institutions with a hope that\n      sooner or later they would get possession of their\n      apartment/flat/unit. There was no law regulating the real estate\n      sector, development work/obligations of promoter and the allottee.\n      Therefore, the Parliament considered it to pass a central law on the\n      subject. During the course of hearing, it was brought to notice that\n      in the State of Maharashtra a law i.e. MOFA on the subject has\n      been in operation. But MOFA provisions are not akin to regulatory\n      provisions of RERA.\n\n      87. The important provisions like Sections 3 to 19, 40, 59 to 70 and\n      79 to 80 were notified for operation from 1/5/2017. RERA law was\n      enacted in the year 2016. The Central Government did not make\n\n\n                                  58 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 59 of 68\n\n\n      any haste to implement these provisions at one and the same time,\n      but the provisions were made applicable thoughtfully and phase-\n      wise. Considering the scheme of RERA, object and purpose for\n      which it is enacted in the larger public interest, we do not find that\n      challenge on the ground that it violates rights of the Petitioners\n      under Articles 14 and 19(1)(g) stand to reason. Merely because\n      sale and purchase agreement was entered into by the promoter\n      prior to coming into force of RERA does not make the application\n      of enactment retrospective in nature. The RERA was passed\n      because it was felt that several promoters had defaulted and such\n      defaults had taken place prior to coming into force of RERA. In\n      the affidavit-in reply, the UOI had stated that in the State of\n      Maharashtra 12608 ongoing projects have been registered, while\n      806 new projects have been registered. This figure itself would\n      justify the registration of ongoing projects for regulating the\n      development work of such projects.\n\n      88. On behalf of the Petitioners it was submitted that Parliament\n      lacks power to make retrospective laws. Series of judgments cited\n      above would indicate a settled principle that a legislature could\n      enact law having retrospective/retroactive operation. It cannot be\n      countenance that merely because an enactment is made\n      retrospective in its operation, it would be contrary to Article 14 and\n      Article 19(1)(g). We find substance in the submissions advanced\n      by the learned counsel appearing for the respondents that\n      Parliament not only has power to legislate retrospectively but even\n      modify pre-existing contract between private parties in the larger\n      public interest. No enactment can be struck down merely by saying\n      that it is arbitrary and unreasonable unless constitutional infirmity\n      has been established. It is settled position that with the\n      development of law, it is desirable that courts should apply the\n      latest tools of interpretation to arrive at a more meaningful and\n      definite conclusion. A balance has to be struck between the\n      restrictions imposed and the social control envisaged by Article\n      19(6). The application of the principles will vary from case to case\n      as also with regard to changing conditions, values of human life,\n      social philosophy of the Constitution, prevailing conditions and the\n      surrounding circumstances.\n\n      89. Legislative power to make law with retrospective effect is well\n      recognized. In the facts, it would not be permissible for the\n      Petitioners to say that they have vested right in dealing with the\n      completion of the project by leaving the proposed allottees in\n      helpless and miserable condition. In a country like ours, when\n      millions are in search of homes and had to put entire life earnings\n      to purchase a residential house for them, it was compelling\n      obligation on the Government to look into the issues in the larger\n      public interest and if required, make stringent laws regulating such\n      sectors. We cannot foresee a situation where helpless allottees had\n      to approach various forums in search of some reliefs here and there\n\n\n                                  59 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 60 of 68\n\n\n      and wait for the outcome of the same for indefinite period. The\n      public interest at large is one of the relevant consideration in\n      determining the constitutional validity of retrospective legislation."\n\n80. This Court concurs with the above conclusions. No order of the Supreme\nCourt either entertaining a Special Leave Petition against the above decision in\nNeelkamal Realtors Suburban Pvt. Ltd. (supra) or staying its operation has\nbeen shown to this Court. In any event, the Court is of the view that there is\nnothing unreasonable and arbitrary in making the provisions of the Act\napplicable to all ongoing projects. There is a clear indication in the Act read\nwith the Haryana Rules of what can be considered to be an ongoing project. If\nit is the case of the promoter that the completion certificate has been\ndeliberately delayed, that would be examined by the AO, the Authority or the\nAppellate Tribunal, as the case may be, and the decision on that issue shall be\ntaken into account while deciding the case. The mere fact that there may be an\ninstance where there has been deliberate delay in issuing the completion\ncertificate will not render the retroactivity of the provisions unreasonable or\narbitrary. Consequently, this Court rejects the challenge to Sections 13, 18 (1)\nand 19 (4) of the Act and Rules 3 to 16 of the Haryana Rules as regards their\nretroactive applicability to 'ongoing projects'.\n\n81. One issue that has been raised in CWP-15647-2019 (M/s TDI Infrastructure\nLtd v. Union of India and others), concerning the retroactive application of\nSection 13, 18 (1) and 19 (4) of the Act and Rules 8 and 15 of the Haryana\nRules, is in respect of Space Buyers Agreements that were executed prior to the\ncoming into force the Act and the Haryana Rules. The submission is that in\nterms of the Explanation to Section 3, the project undertaken by the Petitioner\nM/s. TDI Infrastructure Limited (hereafter 'TDI') cannot be considered to be an\n'ongoing' project. The contention is that TDI had completed "major portion of\ndevelopment of their project' and had obtained a part completion certificate\n(CC) and had applied for an occupancy certificate (OC) prior to the coming into\nforce of the Act, despite which their projects were treated as 'ongoing'.\nAccording to TDI, on a collective reading of Sections 2 (o) with 2 (zn) of the\nAct as interpreted by the Bombay High Court in Neelkamal Realtors Suburban\nPvt. Ltd v. Union of India (supra), the provisions of the specific agreements\n\n\n                                  60 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 61 of 68\n\n\nentered into between TDI and their customers prior to coming into force of the\nAct and Haryana Rules are sacrosanct and cannot be sought to be overridden by\nretrospectively applying the Act and the Rules. It is sought to the contended\nthat as long as the part CC was obtained and the OC had been applied for and\nwas pending on the date of the coming into force of the Act, it would not fall\nwithin the definition of 'ongoing' project and such projects do not require\nregistration. The grievance is that despite the above position, a notice dated 17th\nJanuary, 2019 was issued by the Authority to TDI under Section 35 of the Act,\ntaking a contrary view and seeking to apply the Act and Rules to TDI.\n\n82. It is sought to be contended that directions issued by the Authority to TDI\nrequiring it to get its project registered would contradict the decision of\nSupreme Court in K. Kapen Chako v. The Provident Investment Company (P)\nLtd. (1977) 1 SCC 593 which holds that an Act cannot be applied\nretrospectively to override the effect of an existing instrument/contract.\nReliance has also been placed in this context on the decisions in Suhas H.\nPophale v. Oriental Insurance Co. Ltd. (2014) 4 SCC 657 and Purbanchal\nCables and Conductors Pvt. Ltd. v. Assam State Electricity Board (2012) 7\nSCC 462. In the last mentioned judgment, the Court was considering the award\nof interest in terms of new statute and had held that such award of interest could\nonly be for transactions/contracts executed after the date of enactment and\ncannot be retrospective. It is contended that in all the agreements executed by\nTDI prior to the enactment of the Act, the buyers were agreed for compensation\nfor delayed possession in the form of 'liquidated damages' payable in terms of\nthe agreement. There was a contractual cap on the amount of damages that may\nbe relieved in terms of space buyer agreements. It is contended that all of this\ncannot be overridden by applying the provisions of the Act. Reliance is placed\non the statement made by the Minister of Urban Development while dealing\nwith the Bill in which, inter-alia, it was stated as under:\n      "Regarding the consequences of including the ongoing projects\n      under the Bill, I discussed the issue with my officials. This shall\n      have a bearing on the projects and consumers. In fact, the Select\n      Committee of Rajya Sabha too in its wisdom supported and\n      retained the need for regulating existing projects. But at the same\n      time, project which is almost at the far end of completion and all,\n      what they require is they need to give only information. We are not\n\n                                  61 of 68\n                ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                  page 62 of 68\n\n\n      going to harass them. Because there is so much concern among the\n      industries circle as to what will happen to the ongoing projects, on\n      ongoing projects whatever agreement you have entered earlier\n      stands. You have to fulfill the obligation which you yourself have\n      agreed upon through an agreement. And whatever conditions that\n      were stipulated in our agreement, they have to be implemented in\n      toto. All of what I am proposing will apply for the future projects\n      along with the projects which have got stuck now. It is necessary\n      for me to clarify that upon passage of the Bill, ongoing projects\n      would not come to a standstill. Let me make it very clear in the\n      premises of the Parliament. They will not come to a standstill they\n      will continue.\n\n      The Bill does not provide that the existing project should stop all\n      operations until complied with the provisions of the Bill. The Bill\n      does not say that. The Bill only provides upon the formation of the\n      authorities, all promoters of existing projects coming within the\n      ambit of the Bill would need to register and provide and upload all\n      project details on the website of the Authority. This is mandatory.\n      A window of three months from the date of the commencement of\n      the said clauses, sections have been given to the promoters for\n      registration also.\n\n      Reasonable time has been given. All that developers need to do is\n      to specify the project details of such apartments so that,\n      prospective buyers will make informed choice, project status is\n      known to all, and ensure that the projects are completed on time.\n      That is the need of the hour."\n\n83. It is, accordingly, contended that Sections 13, 18 (1) and 19 (4) of the Act\nand Rules 8 and 15 of the Haryana Rules to the extent they are applied\nretrospectively, are violative of Articles 14, 20 and 19 (1) (g) of the\nConstitution of India.\n\n84. The above submissions have been considered. The Statement of Objects and\nReasons preceding the enactment have already been referred to. The relevant\npassages of the judgment of Bombay High Court in Neelkamal Realtors\nSuburban Pvt. Ltd. (supra) have also been referred to. The very concept of\n'ongoing project' is unique to the Act. The legislature was conscious of the\nimpact that the Act would have on such 'ongoing projects'. A collective reading\nof Section 3 with Section 2 (o) and 2 (zn) indicates that care was taken to\nspecify which of the projects would stand exempted. Section 3 (2) (b) of the\nAct is categorical that no registration of the project would be required where\n\n\n                                  62 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 63 of 68\n\n\n"the promoter has received completion certificate for real estate project prior to\nthe commencement of this Act." It cannot thus be argued that without satisfying\nthe above requirement or the other two contingencies in Sections 2 (a) and 2 (c)\nof the Act, a promoter can avoid registering an 'ongoing' project under the Act.\n\n85. Whether on the facts of a particular case, a promoter satisfies the above\nrequirement and therefore, is not required to obtain registration, is for the\nAuthority to determine in the first instance. If TDI is aggrieved by the decision\nof the Authority, then TDI would have other remedies already set out in the\nAct. The mere possibility that the Authority may commit an error in concluding\nwhether TDI satisfies the conditions spelt out in the Act for exempting them\nfrom registration, would not be reason to strike down the provisions\nthemselves. The Court is of the considered view that Section 13, 18 (1) and 19\n(4) of the Act and Rules 8 and 15 of the Haryana Rules do not fall foul of\nArticles 14 and 19 (1) (g) of the Constitution on account of the their retroactive\napplicability to 'ongoing' projects.\n\n86. The Act was consciously made applicable to 'ongoing projects' i.e. those\nfor which a CC has yet not been received by the promoter. There is also no\nquestion of any violation of settled law regarding overriding of the agreements\nof sale entered into prior to the date of Act coming into force and Haryana\nRules. Those agreements of sale would obviously be subject to the new legal\ndispensation put in place by the Act and the Rules. In light of the object and\npurpose of the Act, no comparison can be drawn with the other enactments\nwhich were subject matter of the decisions of Supreme Court relied upon by\nTDI.\n\n87. TDI also appears to be making a mistake in treating the penalty imposed\nunder the Act as a 'punishment for an offence' and erroneously contending that\nthere is a violation of Article 20 of the Constitution of India. The penalty\nenvisaged under the Act is not in the nature of a punishment for an offence but\nthe consequence of failure to comply with various obligations specified in the\nAct.\n\n                                  63 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 64 of 68\n\n\n88. For the above mentioned reasons, the Court finds no ground to accept the\nprayer of the Petitioner for a declaration that Sections 13, 18 (1) and 19 (4) of\nthe Act and Rules 8 and 15 of Haryana Rules, to the extent of their retroactive\noperation i.e. to 'ongoing projects' should be struck down. The Court leaves it\nopen to TDI to raise all the other contentions regarding the grant or non-grant\nof the CC or OC and the applicability to its projects of the Act in its case before\nthe Authority.\n\nSummary of conclusions\n89. To summarise the conclusions:\n\n      (i) The challenge to the constitutional validity of the proviso to Section\n      43 (5) of the Act is rejected.\n\n      (ii) The orders of the Appellate Tribunal declining to grant the Petitioners\n      further time to make the pre-deposit beyond the date as stipulated by the\n      Appellate Tribunal or where the appeals have been rejected on account of\n      the Petitioners' failure to make the pre-deposit as directed, are hereby\n      affirmed. Nevertheless, this Court has in paragraphs 94 and 95 hereafter\n      issued directions giving one last opportunity to the Petitioners to make\n      the pre-deposit in a time-bound manner.\n\n     (iii) In the facts and circumstances of the individual cases, no grounds\n     have been made out to persuade this Court to exercise its writ jurisdiction\n     under Article 226 of the Constitution to grant any relief in respect of\n     waiver of pre-deposit. In none of the cases is the Court satisfied that a\n     case of 'genuine hardship' has been made out.\n\n     (iv) On the interpretation of the provisions of the Act, the conclusions in\n     this judgment on the scope of jurisdiction of the Authority and the AO\n     respectively, and given the prayers in the individual complaints from\n     which these writ petitions arise, in none of the cases the Authority can be\n     held to have exercised a jurisdiction that it lacked and its orders cannot be\n     said to be without jurisdiction. No interference under Article 226 is\n     warranted on that score.\n                                   64 of 68\n                 ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                  page 65 of 68\n\n\n\n\n     (v) As regards the merits of the order of the Authority the remedy of an\n     appeal before the Appellate Tribunal is in any event available. Even\n     where according to the party aggrieved the Authority lacked jurisdiction\n     to decide the complaint, it would be for the Appellate Tribunal to decide\n     that issue in light of the legal position explained in this judgment on the\n     respective adjudicatory powers of the Authority and the AO. In such\n     instance too the pre-deposit would be mandatory.\n\n     (vi) A collective reading of provisions makes it apparent that when it\n     comes to refund of the amount, and interest on the refund amount, or\n     directing payment of interest for delayed delivery of possession, or\n     penalty and interest thereon, it is the Authority which has the power to\n     examine and determine the outcome of a complaint. When it comes to\n     question of seeking the relief of compensation or interest by way of\n     compensation, the AO alone has the power to determine it on a collective\n     reading of Sections 71 and 72 of the Act.\n\n     (vii) Rules 28 and 29 of the Haryana Rules as amended seek to give effect\n     to the harmonized construction of the provisions of the Act concerning the\n     powers of the Authority and of the AO. They are not ultra vires the Act.\n     The Court rejects the challenge to the validity of the amended Rules 28\n     and 29 of the Rules and the amendments to Forms CRA and CAO.\n\n     (viii) A complaint yet to be decided as on the date of the notification of\n     the Haryana Amendment Rules 2019, will now be decided consistent with\n     the procedure outlined under the amended Rules 28 and 29 of the Haryana\n     Rules.\n\n     (ix) The challenge to Sections 13, 18 (1) and 19 (4) of the Act and Rules 8\n     and 15 of the Haryana Rules as regards their retroactive applicability to\n     'ongoing projects' is hereby rejected.\n\n90. It is clarified that the above summary of the conclusions have to be read\nwith the main text of the judgment in the preceding paragraphs. All the interim\n\n\n                                  65 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                   page 66 of 68\n\n\norders in the petitions stand vacated. The proceedings in the pending appeals\nbefore the Appellate Tribunal will now continue in accordance with law.\n\nOrders in the individual writ petitions\n91. As far as CWP No. 34244 of 2019 is concerned, the only prayer therein is\nfor quashing the amended Rules 28 and 29 of the Haryana Rules. In view of the\npresent judgment of this Court, that prayer is rejected. Further, it may be noted\nthat by interim order dated 11th September 2020, this Court had vacated the\ninterim order passed by it on 25th November, 2019 and directed that the AO\nbefore whom the complaint of Petitioner was pending, will proceed with the\nhearing but not pass any final order. In view of the present judgment of this\nCourt, it is now directed that the said complaint, since it seeks refund together\nwith interest, be placed before the Authority on 23rd November, 2020 for\ndirections and for the Authority to then proceed to dispose of the said complaint\nin accordance with law. The AO will arrange to transmit the record of the said\ncomplaint to the Authority well before the aforementioned date. The writ\npetition is dismissed in the above terms.\n\n92. As regards the remaining petitions, many of the prayers are common and\nsome others are relevant to some of the writ petitions. However, the complete\nlist of prayers as is evident from examining the prayer clauses in the individual\nwrit petitions include the following:\n\n      (i) That the proviso to Section 43 (5) of the Act be declared\n      unconstitutional;\n\n      (ii) That the amended Rules 28 and 29 forms CRA and CAO of the\n      Haryana Rules be declared ultra vires of the Act.\n\n      (iii) That the order of the Authority be quashed as being without\n      jurisdiction.\n\n      (iv) That the order of the Appellate Tribunal dismissing the application\n      for waiver of pre-deposit be quashed.\n                                  66 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                    page 67 of 68\n\n\n      (v) That the order of the Appellate Tribunal dismissing the appeal for\n      failure to make the pre-deposit be quashed.\n\n      (vi) A direction be issued by this Court in exercise of its powers under\n      Article 226 of the Constitution, to the Appellate Tribunal to entertain the\n      Petitioner's appeal without insisting on any pre-deposit.\n\n      (vii) That the retrospective application of Sections 14, 18 and 19 of the\n      Act and Rules 8 and 15 of the Haryana Rules be declared invalid.\n\n93. For the reasons set out in this judgment each of the above prayers wherever\noccurring in the writ petitions is rejected. It is clarified that this Court is\ndesisting from discussing the merits of the orders of the Authority in the\nindividual petitions as that would have to be examined by the Appellate\nTribunal wherever appeals have been or are to be filed.\n\nDirections\n94. Since these writ petitions have been pending for some time and interim\norders have also been passed in many of them, as a one-time measure\npermission is granted to the Petitioners to make the pre-deposit in terms of the\nproviso to Section 43 (5) of the Act before the Appellate Tribunal, wherever\nappeals have already been filed and are pending, not later than 16th November,\n2020. This will also be available to those Petitioners in whose cases the registry\nof the Appellate Tribunal did not process the appeals for failure to make the\npre-deposit. Upon the making of such pre-deposit within the time granted by\nthis Court, the Appellate Tribunal, where the appeal is still pending, will then\nproceed to hear the appeal on merits, which would include a challenge to the\nvalidity of the order of the Authority. On failure of the Petitioners to make the\npre-deposit even within the extended time as granted by this Court, the\nAppellate Tribunal will proceed to pass appropriate consequential orders in the\nappeal.\n\n95. Where the Petitioner's appeal already stands dismissed by the Appellate\nTribunal for a failure to make the pre-deposit as directed, and that order is\n\n                                  67 of 68\n               ::: Downloaded on - 17-10-2020 03:08:48 :::\n CWP No. 38144 of 2018 and other connected matters                     page 68 of 68\n\n\nchallenged in the writ petition, this Court as a one-time measure, permits the\nPetitioner to make the pre-deposit in terms of the proviso to Section 43 (5) of\nthe Act before the Appellate Tribunal not later than 16th November, 2020. Upon\nmaking of the pre-deposit within the time granted by this Court, the Appellate\nTribunal will recall its order dismissing the appeal, restore the appeal to file and\nproceed to dispose of the appeal on merits, which will include examining the\nvalidity of the order of the Authority. On failure of the Petitioners to make the\npre-deposit with the time as granted by this Court, the order of the Appellate\nTribunal dismissing the appeal will stand affirmed without any further recourse\nto this Court.\n\n96. Where no appeal has yet been filed before the Appellate Tribunal, it is open\nto the Petitioner to challenge the order of the Authority before the Appellate\nTribunal in accordance with law. The fact of pendency of present petitions will\nbe taken into account by the Appellate Tribunal while examining the question\nof condoning the delay in filing the appeal.\n\n97. With all of the above directions, the writ petitions are dismissed but no\norder as to costs. All the interim orders in the individual petitions stand vacated.\n\n98. A copy of this judgment be placed in the connected petitions.\n\n                                                       (S. MURALIDHAR)\n                                                             JUDGE\n\n\n\n                                                     (AVNEESH JHINGAN)\n                                                          JUDGE\n16th October, 2020\njk/satyawan\n\n             Whether speaking/reasoned:             Yes/No\n             Whether Reportable:                    Yes/No\n\n\n\n\n                                   68 of 68\n                 ::: Downloaded on - 17-10-2020 03:08:48 :::