Appellate Tribunal, it must be remembered, is a creation of statute, it is not an authority which may be recognised as being vested with inherent powers: Delhi High Court
The Delhi High Court ruled that the Appellate Tribunal, it must be remembered, is a creation of statute, it is not an authority which may be recognised as being vested with inherent powers.
Background
In terms of the impugned orders, the Real Estate Appellate Tribunal has drawn suo moto proceedings in respect of various residential and commercial projects and construction activity being undertaken in connection therewith in the National Capital Territory of Delhi and passed orders of restraint in terms noted hereinafter.
The petitioner has approached the Court aggrieved by the fact that he has been informed by the appropriate development authorities that the plans as submitted cannot be accorded approval in light of the orders passed by the Appellate Tribunal.
Arguments
Mr. Mehra submitted that the powers of the Appellate Tribunal stand duly enumerated in Section 53. The amicus contended that the Act confers no power upon the Appellate Tribunal to draw proceedings on its own motion.
Amicus has also taken the Court through the relevant provisions of the Act including Sections 34, 36, 37 and 38 in order to delineate and distinguish the jurisdiction conferred on the Authority and the Appellate Tribunal.
He submitted that while the Act does confer powers upon the Authority to draw proceedings suo moto in contingencies contemplated and enumerated thereunder, no such power stands vested in the Appellate Tribunal.
He added that the issue which stands raised in the present petition is in any case no longer res integra bearing in mind the judgment rendered by the Court in Padam Singhee and Ors. vs. SVOGL Oil, Gas and Energy Ltd and Ors. and Shri Satyanarayan Rao vs. Indian Renewable Energy Development Authority Ltd. and Ors.
Decision
The single judge bench of Justice Yashwant Varma said that in order to appreciate the challenge which stands raised in the present petition, it would at the outset be relevant to contrast the power and jurisdiction which the Appellate Tribunal and the Authority are conferred with under the provisions of the Act.
The court added that as is evident from a reading of Sections 43 and 44, it is manifest that the Appellate Tribunal has been constituted as a forum whose jurisdiction may be invoked by any person aggrieved by a direction, decision or order made by the Authority or an Adjudicating Officer. Sections 43 and 44 of the Act do not confer, recognize or envisage any original or plenary power or authority being exercised by the Appellate Tribunal. The authority of the Appellate Tribunal stands confined to consideration of challenges that may be laid to orders passed by either the Authority or the Adjudicating Authority.
The court noted that the Act came into force on 26 March 2016. As it views Section 3, it is manifest that the same would principally apply to projects which may commence thereafter.
The court observed that in light of the mandate of Section 3(1) and insofar as ongoing projects are concerned, they would stand governed by its first Proviso. Similarly, Section 3(2) specifies the various contingencies in which a real estate project may be exempted from the requirement of compulsory registration under the Act. The provisions of Section 3 clearly indicate that the requirement of registration is one which necessarily merits an enquiry and examination of the facts of each real estate project before the Authority or the Appellate Tribunal may come to conclude that registration is mandated.
The Court found itself unable to appreciate the omnibus direction which ultimately came to be issued by the Appellate Tribunal. The Appellate Tribunal clearly and abjectly failed to bear in mind the true ambit of Section 3 and proceeded on the incorrect and unfounded premise that all projects were liable to be compulsorily registered under the Act.
The Court also took into consideration the significant portent of the direction issued. It has practically injuncted all construction activity in the NCT of Delhi. The aforesaid injunction is not shown to have been preceded by any enquiry with respect to the validity of a particular project or even a prima facie assessment or evaluation of the validity of a single project. In fact, the order does not even take note of a proven or evident violation of the provisions of the Act by a particular project. The Court was constrained to observe that the procedure as adopted by the Appellate Tribunal can neither be countenanced nor accorded an imprimatur.
Case title: Praveen Chhabra v/s Real Estate Appellate Tribunal
Citation: W.P.(C) 14552/2021
