2022 (5) TMI 1 - HC - Indian Laws

Right to of Chartered Accountant (CA) to appear as counsel to appear before the Tribunal to defend the case on behalf of the JDA - Section 56 of the Rajasthan Real Estate (Regulation and Development) Act, 2016 - HELD THAT - The right of legal representation through chartered accountants/company secretaries/cost accountants/lawyers is a part of principles of natural justice in any proceedings before the Tribunal or the regulatory authority - The concept of natural justice though not provided in Indian Constitution but it is considered as necessary element for the administration of justice. Natural justice is a concept of common law which has its origin in on jua natural which means a law of nature. Natural justice has a very wide application in administrative discretion. It aims to prevent arbitrariness and injustice towards citizen with an act of administrative authorities. Initially, the concept of natural justice was confined to judicial proceedings only but with passage of time, this concept is applicable even in quasi-judicial proceedings. In order to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question. Non-inclusion of the word Respondent under Section 56 of the RERA Act sound harsh, unreasonable and contrary to constitutional spirit - It is the settled principle of law that two equals should be treated as equal. Both appellant/applicant and the respondents are equal for the authorities hearing the matter. When once right or legal representation through CA/CS/Cost Accountant and lawyer has been given to the applicant then deprivation of his right to the respondent amounts to violation of right of equality of the respondent contained under Article 14 of the Constitution of India. Thus, the clarification made by the legislature in not providing the right and legal representation to the respondent is not in conformity with the provisions of the Constitution. The provision under challenge violates the fundamental rights of the respondent citizens. Thus, this provision is arbitrary and discriminatory. Hence, in view of the settled position of law, as held by the Hon ble Supreme Court in the case of the INDEPENDENT THOUGHT VERSUS UNION OF INDIA AND ANR. 2017 (10) TMI 1602 - SUPREME COURT , Court can either hold the law to be totally unconstitutional and strike down the law or the Court may read down the law in such a manner that the law read down does not violate the Constitution. The word Respondent under Section 56 of the Act of 2016, the respondent would also have the right of representation (like the applicant or appellant) to either appear in person or authorize one or more Chartered Accountants or Company Secretaries or Cost Accountants or Legal Practitioner or of its officer to present his or its case before the Appellate Tribunal or Regulatory Authority or the Adjudicating Officer, as the case may be - Petition allowed.

Summary

Issues Involved:
1. Constitutionality of Section 56 of the Rajasthan Real Estate (Regulation and Development) Act, 2016.
2. Right to legal representation for respondents under Section 56.
3. Alleged violation of Articles 14, 19(1)(g), and 21 of the Constitution of India.
4. Interpretation of statutory provisions and principles of natural justice.

Detailed Analysis:

1. Constitutionality of Section 56 of the RERA Act, 2016:
The petitioner challenged the constitutionality of Section 56 of the RERA Act, 2016, which allows only the applicant or appellant to appear in person or authorize a representative, including Chartered Accountants (CAs), Company Secretaries (CSs), Cost Accountants, or legal practitioners, to represent them. The petitioner argued that this provision is discriminatory and violates Articles 14 and 19 of the Constitution by excluding respondents from having similar representation rights.

2. Right to Legal Representation for Respondents:
The petitioner, a Chartered Accountant, was appointed by the Jaipur Development Authority (JDA) to represent it before the Real Estate Regulatory Authority Tribunal. However, the Tribunal refused to accept the representation, stating that Section 56 does not permit CAs to represent respondents. The petitioner contended that this exclusion is arbitrary and discriminatory, as it denies respondents the same right to legal representation granted to applicants and appellants.

3. Alleged Violation of Articles 14, 19(1)(g), and 21 of the Constitution:
The petitioner argued that the exclusion of respondents from the right to legal representation under Section 56 violates the equality before the law guaranteed by Article 14, the right to practice any profession under Article 19(1)(g), and the right to life and personal liberty under Article 21. The petitioner claimed that the classification between applicants/appellants and respondents is not rational and lacks a reasonable basis.

4. Interpretation of Statutory Provisions and Principles of Natural Justice:
The court examined the object and purpose of the RERA Act, which aims to protect consumers' interests and ensure transparency in the real estate sector. The court noted that the right to legal representation is a fundamental aspect of natural justice, which ensures fair hearing and prevents arbitrariness. The court emphasized that both parties in a dispute should have equal rights to representation to maintain the principles of natural justice.

Judgment:
The court held that the exclusion of respondents from the right to legal representation under Section 56 is unconstitutional and violates Articles 14 and 21. The court declared the distinction made for non-inclusion of the word "Respondent" under Section 56 as illegal. Consequently, the court read down Section 56 to include respondents, allowing them the same rights to legal representation as applicants and appellants.

Revised Section 56:
"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."

Conclusion:
The court's judgment ensures that respondents in proceedings before the Real Estate Regulatory Authority Tribunal have the same right to legal representation as applicants and appellants, thereby upholding the principles of natural justice and equality before the law.