THE REAL ESTATE APPELLATE TRIBUNAL

[DR.MARIAPPAN GOVINDARAJAN]

Chapter VII of the Real Estate (Regulation and Development) Act, 2016 (Act’ for short) deals with the constitution of the Real Estate Appellate Tribunal (‘Tribunal’ for short), functions and powers of the Tribunal.

Establishment of Tribunal

Section 43 of the Act provides that the appropriate Government within 30.04.2017 shall establish an Appellate Tribunal to be known as (name of the State/Union Territory) Real Estate Appellate Tribunal, by notification.  The appropriate Government may, if it deems necessary, establish one or more benches of the Tribunal, for various jurisdictions in the State or Union Territory.  The appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Appellate Tribunal.

Designated Tribunal

Until the establishment of the Tribunal, the appropriate Government shall designate, by order, any Appellate Tribunal functioning under any law for the time being in force, to be the Appellate Tribunal to hear appeals under the Act.  After the Tribunal is established, all matters pending with the Appellate Tribunal designated, shall stand transferred  to the Tribunal so established and shall be heard from the stage such appeal is transferred.

Members of the Tribunal

Every bench of the Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member.

Section 45 provides that the Tribunal shall consist of a Chairperson and not less than two whole time Members of which one shall be a Judicial Member and other shall be a Technical or Administrative Member, to be appointed by the appropriate Government.

Qualification

Section 46 provides that a person shall not be qualified for appointment as the Chairperson or a Member of the Tribunal unless he-

• in the case of Chairperson, is or has been a Judge of a High Court; and
• in the case of a Judicial Member he has held a judicial office in the territory of India for at least 15 years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least 20 years with experience in dealing with real estate matters; and
• in the case of a Technical or Administrative Member, he is a person who is well versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possess experience of at least 20 years in the field or who has held the post in the Central Government, or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government.

Appointment

Section 46(2) provides that the Chairperson of the Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of High Court or his nominee.

Section 46(3) provides that the Judicial Members and Technical or Administrative Members of the Tribunal shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of-

• the Chief Justice of the High Court or his nominee’
• the Secretary of the Department handling Housing and the Law Secretary

 in such manner as may be prescribed.  Section 47(2) provides that before appointing as Chairperson or Member, the appropriate Government shall satisfy itself that the person does not have any such financial or other interest, as is likely to affect prejudicially his functions as such member.

Tenure

Section 47 provides that the Chairperson or a Member of the Tribunal shall hold office, as such for a term not exceeding five years from the date on which he enters upon his office, but shall not be eligible for re-appointment.  In case a person, who is or has been a Judge of a High Court, has been appointed as Chairperson of the Tribunal, he shall not hold office after he has attained the age of 67 years.  No Judicial Member or Technical or Administrative Member shall hold office after he has attained the age of 65 years.

Vacancy

The Chairperson or a Member may relinquish his office by giving in writing to the appropriate Government a notice of not less than 3 months.

Section 49 provides that the appropriate Government may, in consultation with the Chief Justice of the High Court remove from the office of the Chairperson or any Judicial Member or Technical or Administrative of the Tribunal, who-

• has been adjudged as an insolvent; or
• has been convicted of an offence which, in the opinion of the appropriate Government involves moral turpitude; or
• has becomephysically or mentally incapable; or
• has so abused his position as to render his continuance in office prejudice to the public interest.

The Chairperson or a Judicial Member or Technical Member or Administrative Member shall not be removed from his office except by an order made by the appropriate Government after an inquiry made by the Judge of the High Court in which such Chairperson or Judicial Member or Technical or Administrative Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

The appropriate Government may suspend from the office of the Chairperson or any other Member in respect of whom a reference of conducting an inquiry has been made to the Judge of the High Court until the appropriate Government passes an order on receipt of the report of inquiry made by the Judge of the High Court on such reference.

Section 48(3) provides that the vacancy cause to the office of the Chairperson or any other member shall be filled up within a period of three months from the date on which such vacancy occurs.

Section 52 provides that if, for reason other than temporary absence, any vacancy occurs in the Office of the Chairperson or any other Member the appropriate Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is filled.

Restrictions

Section 50 provides that the Chairperson or any other member ceasing to hold office as such shall not-

• accept any employment in, or connected with, the management or administration of, any person or organization which has been associated with any work under this Act, from the date on which he ceases to hold office;
• act, for or on behalf of any person or organization in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or any other Member, before cessation of office, acted for or provided advice to, the Authority;
• give advice to any person using information which was obtained in his capacity as the Chairperson or any other Member and being unavailable to or not being able to be made available to the public;
• enter into a contract of service with, or accept an appointment to be a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such.

The Chairperson or any other Member shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such.

Procedure for appeal

Section 43(5) provides that any person aggrieved by any direction or decision or order made by the Authority or by Adjudicating Officer may prefer an appeal before the Tribunal having jurisdiction over the matter.  Where a promoter files an appeal with the Tribunal, it shall not be entertained without the promoter first having deposited with the Tribunal at least 30% of the penalty or such higher percentage as may be determined by the Tribunal or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the appeal is heard.

Section 44 provides that the appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority of the Adjudicating Officer may prefer an appeal to the Tribunal within a period of 60 days from the date on which a copy of the direction or order or decision made by the Authority or the Adjudicating Officer is received by the appropriate Government or the competent authority or the aggrieved persona and it shall be in such form and accompanied by such fee, as may be prescribed.

The Tribunal may entertain an appeal after the expiry of 60 days if it is satisfied that there was sufficient cause for not filing it within that period.

On receipt of the appeal, the Tribunal may after giving the parties an opportunity of being heard, pass such orders, including interim orders, as it thinks fit.  The Tribunal shall send a copy of every order made by it as expeditiously as possible and try to dispose of the appeal within a period of 60 days from the date of receipt of appeal.  If the appeal could not be disposed within 60 days, the Tribunal shall record the reasons in writing for not disposing of the appeal within that period.

The Tribunal may, for the purpose of examining the legality or propriety or correctness of any order or decision of the Authority or the adjudicating officer, on its own motion or otherwise, call for the records relevant to disposing of such appeal and make such orders as it thinks fit.

Section 53 provides that the Tribunal shall not be bound by the procedure laid down by Code of Civil Procedure but shall be guided by the principles of Natural Justice.  The Tribunal shall have power to regulate its own power subject to the provisions of this Act.  The Tribunal shall have, for the purpose of discharging the functions the same powers are vested in a civil court under the CPC, in respect of the following matters-

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of documents;
• receiving evidence on affidavits;
• issuing commission for the examination of witnesses or documents;
• reviewing its decisions;
• dismissing an application for default or directing it ex-parte; and
• any other matter which may be prescribed.

No act or proceeding of the Tribunal shall be invalid merely by reason of-

• any vacancy in, or any defect in the constitution of the Tribunal; or
• any defect in the appointment of a person acting as a Member of the Tribunal; or
• any irregularity in the procedure of the Tribunal not affecting the merits of the case.

Order – a decree

Section 57 provides that every order passed by the Tribunal shall be executable by the Tribunal as a decree of a civil court and for the purpose the Tribunal shall have all the powers of a civil court.  The Tribunal may transfer order to a civil court having local jurisdiction and such civil court shall execute the orders as if it were a decree made by the Court.

Appeal to High Court

Section 58 provides that any person aggrieved by any decision or order of the Tribunal,  may file an appeal to the High Court, within a period of 60 days from the date of communication of the decision of the order of the Tribunal, to him, on any one or more the grounds specified in Section 100 of CPC.  The High Court may entertain the appeal after the expiry of 60 days if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.

No appeal shall lie against any decision or order of the Tribunal with the consent of the parties.

Right to legal representation

Section 56 provides that the applicant or appellant may either appear in person or authorize one or more Chartered Accountants in practice or Company Secretaries in practice or Cost Accountants in practice or legal practitioners or any of its officers to present his or its case before the Tribunal or the Regulatory Authority or the Adjudicating Officer, as the case may be.