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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Manindra Mohan Shrivastava, Anoop Kumar Dhand, JJ.
Sanjay Ghiya – Appellant
Versus
Union Of India & Ors. – Respondents
D.B. Civil Writ Petition No. 18078 of 2018
Decided On : 04-03-2022
Section 56 - Right to legal representation - The applicant or appellant or respondent 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 or the Regulatory Authority or the adjudicating officer, as the case may be.
Fact of the Case:
The petitioner, a Chartered Accountant, challenged the legality and validity of Section 56 of the Real Estate (Regulation and Development) Act, 2016, which denied the right of representation to the respondent. The petitioner was denied the opportunity to represent the respondent before the Tribunal, leading to the challenge of the provision.
Finding of the Court:
The court found that the provision violated Articles 14, 19(1)(g), and 21 of the Constitution of India as it discriminated against the respondent by denying them the right of legal representation. The court also noted that the provision was in violation of the principles of natural justice and the right to fair hearing.
Issues: The main issue was the constitutional validity of Section 56 of the Act, specifically whether it violated the fundamental rights of the respondent and the principles of natural justice.
Ratio Decidendi: The court held that the provision was arbitrary, discriminatory, and violated the fundamental rights of the respondent. It emphasized that the right to legal representation through chartered accountants, company secretaries, cost accountants, and lawyers is a part of the principles of natural justice in any proceedings before the Tribunal or the regulatory authority.
Final Decision: The court declared the non-inclusion of the word 'Respondent' under Section 56 of the RERA Act as illegal and read down the provision to include the respondent in the right of legal representation. As a consequence, the respondent was granted the right to representation before the Appellate Tribunal or the Regulatory Authority.
JUDGMENT
Anoop Kumar Dhand, J. - By way of filing this writ petition, a challenge has been given to Section 56 of the Rajasthan Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'RERA Act or Act of 2016') which reads as under:-
'56. Right to legal representation- The applicant or 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 or the Regulatory Authority or the adjudicating officer, as the case may be.
Explanation-For the purposes of this section,- (a) "chartered accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(b) "company secretary" means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(c) "cost accountant" means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(d) "legal practitioner" means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.'
2. Brief facts of the case are that one Suresh Chand Jain submitted an appeal before the Real Estate Regulatory Authority Tribunal (hereinafter referred to as 'the Tribunal') on 26.06.2018 against the Jaipur Development Authority (hereinafter referred to as 'JDA') for redressal of his grievance. The Tribunal issued notices to JDA for its appearance before it on 17.07.2018. JDA appointed the petitioner as its counsel to appear before the Tribunal to defend the case on behalf of the JDA. The petitioner is a Chartered Accountant (C.A).
3. Acting under the instructions of JDA, he prepared a written submission and appeared before the Tribunal on 01.08.2018 but the same was not taken on record by saying that Chartered Accountant is barred from appearing before the Tribunal. Thereafter, the JDA in order to safeguard its interest communicated one Tejram Meena, Advocate to represent its case before the Tribunal but vide order dated 02.08.2018, the Tribunal passed the following orders which is as under:-
'Another authorisation letter on behalf of OSD, Jaipur Development Authority, Jaipur, authorizing Mr. Sanjay Ghiya and Mr. Ashish Ghiya Chartered Accountant(s) under Section 56 of the Real Estate (Regulation and Development) Act, 2016 filed by Mr. Sanjay Ghiya (C.A).
In view of the order dated 01.08.2018 of this Tribunal authorisation of Mr. Sanjay Ghiya and Mr. Ashish Ghiya (C.A) is not maintainable before the Tribunal.
JDA as respondent should have avoided it.
Another set of written submissions on behalf of the JDA submitted today by Mr. Sanjay Ghiya (C.A). Written submissions having been signed and verified by the authority of JDA. Therefore, they cannot be taken on record. It is just and proper to mention here that, in veiw of specific order dated 01.08.2018 of this Tribunal, Mr. Sanjay Ghiya should not have dare to submit this. Conduct of JDA authorities in this regard cannot be appreciated.
However, Mr. Tej Ram Meena, Advocate has filed power on behalf of the JDA. If, JDA as respondent wants to file any reply or objection to the averments made in the appeal, they may do so as per the rules with proper verification by appropriate authority. This Tribunal is constrained to observe that hitherto been no serious effort has been made by JDA to contest this appeal. Be it so, it is upon the w
AI
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