Court holds that a challenge to RERA jurisdiction, where determination involves the project structure, contractual terms and conduct of the parties, should ordinarily be pursued before the statutory Appellate Tribunal.
Jaipur, September 1, 2026: The Rajasthan High Court at Jaipur has dismissed two connected writ petitions arising out of RERA proceedings concerning a resort project structured around a sale-and-leaseback model. The Court held that the petitioners could not ordinarily bypass the statutory appellate remedy under Section 43(5) of the Real Estate (Regulation and Development) Act, 2016 by directly invoking the writ jurisdiction of the High Court.
The case is significant in the context of resort projects structured around the sale of units followed by their leaseback for resort operations. However, an important distinction emerges from the judgment: the High Court did not finally decide whether the sale-and-leaseback model is covered by RERA. That substantive question was expressly left open for consideration by the RERA Appellate Tribunal.
Background to the dispute
The underlying proceedings concerned a residential-cum-commercial project in which purchasers had booked units and paid substantial amounts towards the sale consideration. The purchasers alleged that the Agreement to Sell/Builder Buyer Agreement, which was to be furnished upon payment of 10% of the sale consideration, was not supplied. After a legal notice seeking refund did not result in compliance, complaints were filed before the RERA Authority seeking withdrawal from the project, refund of the deposited amounts, interest and assured returns.
The promoters disputed the maintainability of the complaints and questioned the jurisdiction of the RERA Authority. Their principal contention was that the project was a purely commercial hospitality project and did not answer the statutory description of a “real estate project” under Section 2(zn) of the RERA Act. It was also contended that the petitioners did not fall within the definition of “promoter” under Section 2(zk).
The RERA Authority rejected these objections and held that the project was required to be registered under RERA. It directed refund of ₹19.60 lakh in each of the two complaints, together with interest at 10.80% per annum, imposed a ₹50 lakh penalty under Section 59 for contravention of Section 3, and directed registration of the project with the Authority.
High Court considers maintainability
Instead of approaching the Real Estate Appellate Tribunal, the petitioners invoked the writ jurisdiction of the High Court. Their case was that the objection went to the very jurisdiction of the RERA Authority and involved a pure question of law. It was therefore argued that the availability of an alternative remedy should not prevent the High Court from exercising its writ jurisdiction.
The High Court did not accept this submission. It held that the question raised was not one of jurisdiction simpliciter. Determination of whether the project constituted a “real estate project” and whether the petitioners were “promoters” would require examination of the terms of the contract, conduct of the parties, and the nature, structure and attributes of the project.
The Court noted that the RERA Authority had already considered the jurisdictional objection at length. It further held that the same contentions were available to be urged before the RERA Appellate Tribunal, which was fully competent to examine the record and decide the jurisdictional issue.
The Court therefore refrained from entering into the merits of the controversy or expressing any opinion on the question of jurisdiction, leaving the same open to be agitated before the Appellate Tribunal.
Statutory appeal under Section 43(5)
The Court reiterated the settled principle that where a special statute provides a self-contained mechanism and an efficacious alternative remedy, the High Court should not ordinarily entertain a writ petition under Article 226 so as to bypass the statutory forum.
The Court relied upon decisions of the Punjab and Haryana High Court, Himachal Pradesh High Court and Chhattisgarh High Court which had similarly declined to entertain writ petitions against RERA orders where the statutory appellate remedy under Section 43(5) was available.
Pre-deposit requirement under Section 43(5)
The petitioners also contended that the pre-deposit requirement applicable to a promoter’s appeal under Section 43(5) was onerous. The High Court rejected the contention, relying upon the Supreme Court’s decision in M/s Newtech Promoters and Developers Pvt. Ltd. v. State of Uttar Pradesh & Ors.
The Court reiterated that the right of appeal is a creature of statute and may legitimately be subject to conditions imposed by the legislature. The mandatory pre-deposit was treated as a legislative safeguard intended to test the bona fides of the promoter and secure the interests of the allottees.
The Court accordingly held that the pre-deposit requirement could not be treated as making the statutory appellate remedy illusory or onerous.
Godrej Sara Lee distinguished
The petitioners had relied upon the Supreme Court’s decision in Godrej Sara Lee Ltd. The High Court distinguished that decision on the ground that it concerned a pure question of law regarding the competence of a revisional authority.
In the present case, by contrast, the objection to RERA jurisdiction depended upon an examination of documents, contractual terms, the conduct of the parties and the nature, structure and attributes of the project. The High Court therefore held that the decision relied upon was distinguishable and did not govern the present controversy.
The substantive issue remains open
The High Court did not rule on the substantive applicability of RERA to the sale-and-leaseback model. It dismissed the writ petitions because the statutory appellate remedy had not first been exhausted.
The Court expressly clarified that all contentions, including the plea regarding jurisdiction, remained open before the Appellate Tribunal. The Tribunal is therefore free to consider the substantive question on its own merits and in accordance with law, uninfluenced by the observations made by the High Court.
Outcome
The writ petitions were dismissed with liberty to the petitioners to approach the RERA Appellate Tribunal under Section 43(5). The High Court directed that the period spent prosecuting the writ petitions would be excluded while computing limitation. It further directed that if an appeal was filed within 30 days from September 1, 2026, it would not be dismissed on the ground of limitation.
The Court also observed that the separate challenge to the Office Order dated 24 February 2025 and the minutes of the meeting dated 5 February 2025 could be pursued, if so advised, through a separate writ petition.
Significance
The decision is important for litigation arising from resort and hospitality projects using a sale-and-leaseback structure. It makes clear that a promoter cannot ordinarily bypass the RERA appellate mechanism merely by characterising its challenge as one concerning jurisdiction.
At the same time, the judgment should not be read as a final determination by the Rajasthan High Court that a sale-and-leaseback resort model is governed by RERA. That substantive issue was expressly left open and remains to be adjudicated in the statutory appellate proceedings.
Appearance for the Respondents: Sr. Adv. R.B. Mathur and Adv. Falak Mathur.
Court: High Court of Judicature for Rajasthan, Jaipur Bench
Date of order: 1 September 2026
