Rps Infrastructure Ltd vs Savana Welfare Association

Court
Punjab and Haryana High Court



201 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH


RERA-APPL-225-2026 (O&M)
Date of Decision: 05.11.2026

RPS Infrastructure Ltd.
...Appellant
Versus
Savana Welfare Association
...Respondents

CORAM:- HON'BLE MR. JUSTICE JAGMOHAN BANSAL

Present:- Mr. Sunil Chadha, Senior Advocate with
Mr. Raghav Chadha, Advocate
for the appellant.

Mr. Nitin Kant Setia, Advocate and
Mr. Sahil Sabherwal, Advocate
for the respondent.



JAGMOHAN BANSAL, J. (ORAL)


1. The appellant through instant appeal under Section 58 of
Real Estate (Regulation and Development) Act, 2016 (for short ‘2016
Act’) is seeking setting aside of order dated 07.08.2026 whereby learned
Haryana Real Estate Appellate Tribunal, Haryana (for short ‘Appellate
Tribunal’) has dismissed its appeal as not maintainable due to lack of
pre-deposit.

2. Mr. Nitin Kant Setia, Advocate has put in appearance on
behalf of the respondent and filed his power of attorney. Registry is
directed to tag the same at an appropriate place on the case file.

3. The appellant-company is a promoter of a real estate project.
The respondent claiming itself to be duly constituted Residents Welfare
Association filed a complaint dated 06.12.2018 before the Real Estate
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RERA-APPL-225-2026 (O&M) -2-
Regulatory Authority, Haryana (for short ‘Authority’) seeking transfer of
Interest Free Maintenance Security (for short ‘IFMS’) collected by the
appellant. The appellant filed appeal before the Appellate Tribunal on the
ground that complaint is not maintainable. The Appellate Tribunal
allowed the appellant to withdraw the said appeal with liberty to raise
issue of maintainability before the Authority. The Authority without
framing preliminary issue of maintainability vide order dated 13.07.2022
allowed respondent’s complaint and directed the appellant to return
₹
amount of IFMS of 10 Crore to the respondent. The appellant preferred
an appeal and the Appellate Tribunal vide order dated 07.08.2026 has
dismissed its appeal on the ground of non-compliance of condition of
pre-deposit as per proviso to Section 43(5) of 2016 Act.

4. Learned Senior counsel for the appellant submits that
Appellate Tribunal has rejected appellant’s appeal on the ground of non-
compliance of condition of pre-deposit as per proviso to Section 43(5) of
2016 Act. As per proviso to Section 43(5), a promoter is required to make
pre-deposit of 100% of the amount determined by the Authority which is
payable to the allottee. In the present case, the Authority has directed the
₹
appellant to refund amount of 10 Crore to the Association. As per
explanation to Section 43(5), Association falls within the definition of
‘person’, however, does not fall within the definition of ‘allottee’. In
Section 43, expressions ‘person’ and ‘allottee’ are differently used. They
are having their own meaning and are not interchangeable.

5. Learned counsel for the respondent submits that in view of
Section 13(2) of General Clauses Act, 1897, expression ‘allottee’ includes
allottees. Residents Welfare Association is a group of allottees, thus,
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RERA-APPL-225-2026 (O&M) -3-
proviso to Section 43(5) should be read in a manner that promoter is
made liable to make pre-deposit of 100% of the amount determined by
the Authority where amount is payable to the RWA. Any other
interpretation would defeat intent of the aforesaid proviso. Condition of
pre-deposit in Section 43(5) has been inserted to protect interest of the
allottee. There would be anomaly if interest of the allottee is protected,
however, interest of the association of allottees is not protected.

6. Heard the arguments and perused the record.

7. From the perusal of record and arguments of both sides, it
comes out that dispute revolves around reading of proviso to Section
43(5). Section 43(5) creates right of appeal. Proviso to Section 43(5)
makes aforesaid right conditional. Section 43(5) reads as:
“43. Establishment of Real Estate Appellate Tribunal-
--- --- --- --- ---
(5) 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 ¹[jurisdiction] over the matter: Provided
that where a promoter files an appeal with the Appellate
Tribunal, it shall not be 2[entertained], without the
³[promoter] first having deposited with the Appellate
Tribunal atleast thirty per cent. 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.”


8. It is settled proposition of law that appeal is not a
fundamental right whereas it is a statutory right. Any statute providing for
right to appeal may provide for condition of pre-deposit besides other
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RERA-APPL-225-2026 (O&M) -4-
conditions like specified period to file appeal. By proviso, condition of
pre-deposit has been inserted. In few cases, promoter is required to make
pre-deposit of 30% whereas in remaining cases, he is required to make
deposit 100% of the amount determined by the Authority.

9. In Section 43(5), expressions ‘person’ and ‘allottee’ have
been used. Right of appeal is available to ‘any person’. As per
explanation, ‘person’ includes association of allottees or voluntary
consumer association registered under any other law for the time being in
force. Legislature has specifically used expression ‘allottee’ in the proviso
while making it mandatory to deposit 100% of the amount determined by
the Authority. Expression ‘allottee’ has been defined under Section 2(d)
which reads as:
“2(d)- ‘allottee’ in relation to a real estate project, means
the person to whom a plot, apartment or building, as the
case may be, has been allotted, sold (whether as freehold
or leasehold) or otherwise transferred by the promoter,
and includes the person who subsequently acquires the
said allotment through sale, transfer or otherwise but does
not include a person to whom such plot, apartment or
building, as the case may be, is given on rent;”


10. A perusal of aforesaid provision reveals that expression
‘allottee’ does not include residents’ welfare association/association of
allottees. Section 11(4)(e) enjoins that promoter shall enable the
formation of an association or society or cooperative society of the
allottees under the laws applicable. In the absence of local laws, the
association of allottees shall be formed within a period of three months of
the majority of allottees having booked their plot or apartment. Section
11(4)(e) reads as:
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“11. Functions and duties of promoter-
(4) The promoter shall-
Enable the formation of an association or
(e)
society or co- operative society, as the case may be, of the
allottees, or a federation of the same, under the laws
applicable:
Provided that in the absence of local laws, the
association of allottees, by whatever name called, shall be
formed within a period of three months of the majority of
allottees having booked their plot or apartment or
building, as the case may be, in the project.”

The abovesaid Section makes it clear that it is one of
responsibilities of the promoter to get formed an association of the
allottees.

11. Proviso to Section 43(5) mandates that promoter shall make
pre-deposit of total amount to be paid to the allottee. Expression ‘person’
includes association of allottees but expression ‘allottee’ does not include
association of allottees. The Courts are supposed to interpret the law and
cannot add or subtract any word in the statutory provisions. It is settled
proposition of interpretation of statutory provisions that where plain
language is clear, neither intention of the legislature is required to be seen
nor Courts can add or subtract any word in the statutory provisions unless
and until plain reading makes the provision unworkable. This Court does
not find any such eventuality in the present case. The statutory provision
is candidly providing that pre-deposit would be made where amount is
payable to allottee. It does not provide that
pre-deposit would be made where payment has to be made to association
of allottees. Contention of the respondent that amount to be payable to
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association of allottees is basically amount of allottees cannot be
countenanced while adjudicating question of pre-deposit. This would be
relevant at the time of adjudication of main appeal.

12. In the wake of above discussion and findings, this Court is of
the considered opinion that impugned order deserves to be set aside and
accordingly set aside. The Appellate Tribunal is hereby requested to pass
final order on merits. The Appellate Tribunal is further requested to
adjudicate the matter expeditiously and preferably within three months
from today. It is made clear that appellant shall not seek adjournment
before the Appellate Tribunal. Both sides, at the first instance, shall
appear before the Appellate Tribunal on 02.12.2026 and thereafter as
directed by the Tribunal.

13. Allowed .

14. Pending application(s), if any, shall also stand disposed of.


(JAGMOHAN BANSAL)
JUDGE
05.11.2026
Prince Chawla

Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No


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