REAL ESTATE APPELLATE TRIBUNAL

Appropriate Government

Section 2(g) of the Real Estate (Regulation and Development) Act, 2016 (‘Act’ for short) defines the expression ‘appropriate government’ in respect of matters relating to-

• the Union territory without Legislature, the Central Government;
•  the Union territory of Puducherry and Union territory of Jammu and Kashmir], the Union territory Government;
• the Union territory of Delhi, the Central Ministry of Urban Development;
• the State, the State Government.

Establishment of Appellate Tribunal

Section 43 of the Act provides for the establishment of Real Estate Appellate Tribunal by the appropriate Government prefixing the name of the State (for example – Tamil Nadu Real Estate Appellate Tribunal). The appropriate Government may establish more than one Appellate Tribunals having various jurisdiction. The appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Appellate Tribunal.

Appellate Tribunal Members

The Appellate 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.

The Appellate Tribunal shall consist of a chairperson, one judicial member and one administrative member. The Chairperson shall be a Judge of a High Court. The Judicial Member is a person who has held judicial post in the Indian Legal Service or Additional Secretary of the Indian Legal Service or an Advocate having 20 years of service dealing with real estate matters.

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 possesses experience of at least twenty 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 of members

The Chairperson shall be appointed by the appropriate Government in consultation with the Chief Justice of the High Court.

The Judicial Members and Technical or Administrative Members of the Appellate 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 and in such manner as may be prescribed.

Tenure of the members

The tenure of the members of the Tribunal is 5 years. They are not eligible for re-appointment. The Chairperson shall not hold office after he has attained 67 years and other members shall not hold office after they attained 65 years.

Removal

The appropriate Government may, in consultation with the Chief Justice of the High Court, remove from office of the Chairperson or any Judicial Member or Technical or Administrative Member of the Appellate 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 become physically or mentally incapable; or
• has acquired such financial or other interest as is likely to affect prejudicially his functions; or
• has so abused his position as to render his continuance in office prejudicial to the public interest.

A 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.

Suspension of a member

The appropriate Government may suspend from the office of the Chairperson or Judicial Member or Technical or Administrative 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.

Restriction on members

The Chairperson, judicial member or administrative member shall not hold any office of profit after his cessation as the member of the Tribunal. They are restricted to act on behalf of any person before the Authorities under the Act. They are restricted to give any advice or opinion to any one on this subject. The member cannot enter into contract of service with, or accept an appointment to 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. They 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.

Vacancies

If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member of the Appellate Tribunal, 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 Appellate Tribunal from the stage at which the vacancy is filled.     

Who can file appeal?

Any ‘person’ aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter. The term ‘person’ shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.

The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal.

Pre-deposit

If a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal at least 30% of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard.

Limitation

Every appeal shall be preferred 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 person. The appeal shall be in such form and accompanied by such fee, as prescribed in the Rules framed by the appropriate Government.  The Appellate Tribunal may entertain any appeal after the expiry of 60 days if it is satisfied that there was sufficient cause for not filling it within that period.

Powers of Tribunal

The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice. The Appellate Tribunal shall have power to regulate its own procedure.

The following powers under the Civil Procedure Code are applicable to the Appellate Tribunal, while deciding an appeal-

• 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 commissions for the examinations 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.

Legal Representation

The appellant may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal.

Disposal of appeal

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

The Appellate 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 deposing of such appeal and make such orders as it thinks fit.

The Appellate Tribunal shall send a copy of every order made by it to the parties and to the Authority or the adjudicating officer.