Real Estate Appellate Tribunal Can Appoint Commission For Getting Material Aspects Required For Settling Disputes: Kerala High Court

The Kerala High Court recently laid down that that the Kerala Real Estate Appellate Tribunal, which has special power to regulate its own procedure, can appoint a Commission as well, if the Tribunal is of the opinion that appointment of such a Commission is necessary for getting certain material aspects, which are required for the purpose of deciding the matter in controversy in between the promoter and allottee. 

The Court added that the said power is not drawn from Order XLI Rule 27 of the Code of Civil Procedure (CPC). Order XLI Rule 27 of CPC specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.

Perusing various provisions of the Real Estate (Regulation and Development) Act, 2016 ('Act, 2016'), Justice A. Badharudeen observed:

"....the Appellate Tribunal has the power to regulate its own procedure and the said power is given to deal with a matter, where the Appellate Tribunal requires anything to be done within the mandate of law for addressing the real dispute in between the litigants. It is apropose to note that Section 35 of the Act, 2016, in fact, gives wide power to the Authority to enquire and appoint one or more persons to make an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be. In the said circumstances, it is difficult to lay down law, holding that the powers of the Appellate Tribunal is much less than that of the Authority when the statute specifically provides power to the Appellate Tribunal to regulate its own procedure. To be more vivid, it could not be held that the power to appoint a Commission to have enquiry available to the Authority, is not available to the Appellate Tribunal". 

The respondent in the present appeal had sought the appointment of a Commission, for collecting some information in order to decide a controversy between the parties. The appellant on the other hand, opposed the application, mainly on the ground that materials sought to be collected, by appointing Commission, would come under the purview of Order XLI Rule 27 of the C.P.C. and that the Appellate Tribunal had no such power.

The Appellate Tribunal however rejected the respondent's claim, and found that it would require certain materials to decide the issue, pursuant to which it appointed a Commission to get details of the said vital materials. 

The Appellant argued that the appointment of a Commission, by the Tribunal, is against the mandate of Section 53 of the Act, 2016 and that the Order of the Tribunal was thus non-est. 

Section 53 of the Act, 2016 lays down the Powers of the Appellate Tribunal, while Section 35 of the statutes stipulates the powers of the Authority. 

Perusing the same, the Court found that Section 53 clearly states that the Appellate Tribunal shall not be bound by the procedure laid down by the C.P.C. and shall be guided by the principles of natural justice. Sub-Section (4) however adds that Appellate Tribunal shall have the same powers as vested in a Civil Court under the C.P.C. in respect of the matters specifically mentioned therein, for the purpose of discharging its functions. 

Additionally, Court noted that Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872. 

"Thus, a conjoint reading of the above provisions make the point clear that the Appellate Tribunal, which has special power to regulate its own procedure, can appoint a Commission also, if the Tribunal is of the opinion that, appointment of such a Commission, for getting certain material aspects, which are necessary for the purpose of deciding the matter in controversy in between the promoter and allottee, and the said power not drawn from Order XLI Rule 27 of the C.P.C. Therefore, the challenge raised by the appellant herein, found to be meritless," the Court held. 

It further noted that the appellant had also failed to raise any substantial question of law warranting admission of the second appeal, as required under Section 100 of CPC. 

The second appeal was thus dismissed without being admitted. 

Counsel for the Appellant: Advocate Biju Abraham

Citation: 2023 LiveLaw (Ker) 681

Case Title: P.V. Nidhish v. Sivaprakash 

Case Number: MSA NO. 31 OF 2023

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