Category: Allahabad High Court

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 05.10.2026

Allahabad HC: RERA Appellate Order Without Technical or Administrative Member Is Null and Void

The Allahabad High Court has delivered an important ruling concerning the mandatory composition of Benches of the Real Estate Appellate Tribunal under the Real Estate (Regulation and Development) Act, 2016 (“RERA Act”). The Court held that an appellate order passed by a Bench not constituted in accordance with Section 43(3) is without jurisdiction, null and void, and the defect cannot be cured by invoking Section 55 of the Act.

The ruling came in a batch of appeals filed by Shashank Gupta against M/s Vatika Nirman Private Limited, arising from orders of the RERA Appellate Tribunal.

Three Questions Before the High Court

• While admitting the appeals, the High Court had framed three substantial questions of law. These concerned whether the Tribunal was justified in treating the underlying complaint as premature while also deciding the issue of cancellation; whether the Tribunal’s judgment was coram non judice in light of Sections 43(3) and 45 of the RERA Act; and whether findings concerning consideration and breach of the allotment terms could stand without supporting material.
• The Court decided to first address the second and foundational question—whether the RERA Appellate Tribunal Bench itself had been legally constituted.

The Controversy Over Composition of the RERA Appellate Tribunal

• The controversy arose after the Technical Member demitted office on 26 September 2023. The Tribunal recorded that its functioning had effectively come to a standstill from 27 September 2023. Subsequently, a Judicial Member was appointed, and judicial functioning was resumed with the Chairman and a Judicial Member despite the absence of a Technical Member.
• The impugned appellate judgment dated 14 May 2024 related to multiple appeals before the RERA Appellate Tribunal.
• This raised a fundamental jurisdictional question: Can a RERA Appellate Tribunal Bench validly exercise judicial functions without the Administrative or Technical Member expressly contemplated by Section 43(3)?

Section 43(3): Mandatory Composition of Every Bench

The High Court examined the statutory architecture of the RERA Act, particularly Sections 43, 45 and 55.

Section 43(3) expressly provides that:

• “Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member.”
• The Court noted that Section 45 separately provides for the constitution of the Appellate Tribunal consisting of a Chairperson and not less than two whole-time Members, including a Judicial Member and a Technical or Administrative Member.
• The High Court found an important statutory distinction between the “Appellate Tribunal” as an institution and the “Bench” constituted to hear and decide appeals.
• According to the Court, the deliberate use of the word “Bench” in Section 43(3) makes the prescribed composition a substantive requirement for the exercise of appellate jurisdiction.

Can Section 55 Cure the Absence of a Technical Member?

• A central issue was the effect of Section 55 of the RERA Act, which provides that an act or proceeding of the Appellate Tribunal shall not be invalid merely because of a vacancy or defect in its constitution, a defect in appointment, or a procedural irregularity not affecting the merits.
• The High Court rejected the proposition that Section 55 could be used to overcome non-compliance with Section 43(3).
• Justice Pankaj Bhatia held that Section 55(c), which protects proceedings from certain procedural irregularities, cannot cure an irregularity in the constitution of the Bench itself.
• This distinction became decisive. A vacancy or procedural defect that Section 55 protects is fundamentally different from a Bench exercising jurisdiction without satisfying the mandatory minimum composition prescribed by Parliament.

Punjab & Haryana High Court Precedent Relied Upon

• The Allahabad High Court found support for its interpretation in a Division Bench judgment of the Punjab & Haryana High Court reported as 2020 SCC OnLine P&H 2030. That judgment had considered whether a RERA Appellate Tribunal could exercise judicial functions through a Single Member Bench.
• The Punjab & Haryana High Court had held that Sections 43(3) and 45, when read harmoniously, mandate at least two Members—one Judicial Member and one Administrative or Technical Member. Consequently, an order passed by a Single Member Bench would be null and void.
• The judgment also referred to similar views expressed by the Bombay High Court in Man Global Pvt. Ltd. v. Bharat Prakash Joukani and Larsen and Toubro Limited v. Ms. Rekha Sinha.
• The Punjab & Haryana High Court precedent had further relied upon the Supreme Court’s decision in Gulzari Lal Agarwal v. The Accounts Officer, (1996) 10 SCC 590, concerning harmonious statutory interpretation without doing violence to the plain language of the legislation.

Interim Division Bench Order Could Not Retrospectively Cure Jurisdiction

• The Allahabad High Court also considered an earlier Division Bench order dated 16 May 2024, passed after suo motu cognizance was taken regarding the functioning of the U.P. Real Estate Appellate Tribunal.
• That interim order had directed resumption of the Tribunal’s functioning in view of Section 55 while leaving the final interpretation of the provision open.
• Crucially, however, the judgment under challenge in the present appeals had been passed before 16 May 2024.
• The High Court therefore observed that even assuming jurisdiction could be attributed to the Tribunal because of the subsequent interim Division Bench order, it could not cure the absence of jurisdiction at the time the impugned order was passed.

Allahabad HC: Defect Goes to the Root of Jurisdiction

• On a conjoint reading of Sections 43(3), 45 and 55, the High Court reached a categorical conclusion.
• It held that an order passed by an Appellate Tribunal Bench not constituted in accordance with Section 43(3) is null and void, and such jurisdictional defect cannot be saved by Section 55.
• The Court consequently answered the second substantial question of law in favour of the appellant and held that the impugned order was without jurisdiction and null and void. Having decided the jurisdictional issue, the Court considered it unnecessary to adjudicate the remaining two questions.

Matter Remanded for Fresh Decision Within 60 Days

• By the time the High Court decided the appeals, it was informed that a Technical Member had been appointed and that the Appellate Tribunal was functioning in accordance with the statutory mandate.
• The High Court therefore remanded the matter to the RERA Appellate Tribunal for fresh adjudication. It directed the Tribunal to decide the matter expeditiously, without granting unnecessary adjournments, preferably within 60 days. The Tribunal was also directed to consider the matter afresh, particularly the date of allotment, which the High Court noted had not previously been considered.

Why the Judgment Is Significant

• The ruling draws an important line between a curable vacancy or procedural irregularity and a fundamental defect in the constitution of the adjudicatory Bench.
• Section 55 cannot be treated as a blanket validation provision permitting the Tribunal to disregard the minimum composition expressly mandated by Section 43(3). Where Parliament requires every Bench to comprise at least one Judicial Member and one Administrative or Technical Member, failure to satisfy that requirement goes to the jurisdiction of the Bench itself.
• The judgment therefore has wider implications for RERA appellate proceedings decided during periods when the statutory composition of a Tribunal Bench was incomplete.
• At the same time, the judgment should not be read as deciding the underlying merits of the dispute between the allottee and the developer. The High Court expressly refrained from deciding the other two substantive questions after finding the appellate order jurisdictionally invalid. The merits will now have to be considered afresh by a properly constituted Appellate Tribunal.

Key Takeaway

A RERA Appellate Tribunal Bench must comply with the composition mandated by Section 43(3) of the RERA Act. The absence of the required Administrative or Technical Member is not merely a procedural irregularity capable of being cured by Section 55; an order passed by an improperly constituted Bench is without jurisdiction and null and void.

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Source: Allahabad High Court

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