9911796707
TMI Blog2022 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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." Brief facts of the case are that one Suresh Chand Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper representation as per rules." Bare perusal of Section 56 clearly indicates that Right of legal representation has been given only to the applicant/appellant to appear in person or the applicant/appellant can authorise one or more Chartered Accountants or Company Secretaries or Cost Accountants or Legal Practitioners or any of the officer to present before the Appellate Tribunal or the Regulatory Authority or the Adjudicating Officer as the case may be. But no such right of representation has been given to the respondent against whom the proceedings have been initiated before the Appellate Tribunal or before the Regulatory Authority or the Adjudicating Officer. It is noteworthy to mention here that though Section 56 does not permit the legal practitioner to appear on behalf of the respondent but still the Tribunal allowed the JDA to appear through Advocate and denied the Chartered Accountant like the petitioner to appear on behalf of the respondent. Being aggrieved by the impugned orders dated 01.08.2018, 02.08.2018 passed by the Tribunal and also being aggrieved by the impugned exclusion of the word "Respondent" to Section 56 of the RERA Act, the petitioner has challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stand taken by the Union of India in its reply is as under:- "(v) The grievance of the petitioner is that he is Chartered Accountant by profession and in an appeal filed by one Shri Suresh Chand Jain before the RERA Appellate Tribunal in which the petitioner put in appearance in the capacity of Chartered Accountant on behalf of respondent- JDA. The petitioner has come out with a case that his authorization to appear on behalf of JDA (respondent in the case) before the Appellate Tribunal has not been acknowledged and rather rejected by the Appellate Tribunal on the ground that as per Section 56, only the appellant/applicant can be allowed to be represented by Chartered Accountants/Company Secretaries and such similar profession has not been made for the respondent in the case. Hence, as the petitioner was seeking permission to represent respondent in the above case, therefore, vide order dated 01.08.2018 RERA Appellate Authority has not permitted the petitioner to appear on behalf of the respondent. (VI) That it is respectfully submitted that provision of Section 56 are absolutely clear and having no ambiguity whatsoever. Only on the basis of question of wrong interpretation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act of 2016. The respondent No.4 submitted that the provision of Section 56 of the Act of 2016 be suitably read down as "the applicant or appellant or respondent may either appear in person or authorised 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" and accordingly declare that Chartered Accountants are eligible to appear and represent appellants, applicants as well as respondents before the Appellate Tribunal or Regulatory Authority or the adjudicating officer, as the case may be. Heard learned counsel for the parties. The RERA Act was enacted by the legislature with an object to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be or sale of real estate projects, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts of company secretaries or Cost Accountants or legal practitioner of any of its officer to present its case before the Appellate Tribunal or the Regulatory Authority or the adjudicating officer but the framers of the Act forgot to provide this Right of legal representation to the respondent to authorise any of the above persons to present their case before the Appellate Tribunal or the Regulatory Authority or the Adjudicating Officer. The State of Rajasthan in its wisdom framed the Rules of 2017 in exercise of its powers under Section 84 of the Act and framed rules for carrying out the provisions of Act. Even the State never intended to frame the rules against the interest of any of the party who is being represented as a respondent to the proceedings before the Appellate Tribunal or Regulatory Authority. The right of legal representation has been given to both parties to the appeal and opposite to appear in person or by an authorised person. Rule 27 (5) & (6) of Rules of 2017 are reproduced as under:- "27 Form for filing appeal and the fees payable:- (5) Whether a party to the appeal is represented by an authorised person, as provided under Section 56, a copy of the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under there statutes. Section 432 of Companies Act also allows Chartered Accountants/ Company Secretaries/ Cost Accountants/Legal Representation/ any other person to appear on behalf of the parties before the Tribunal or the Appellate Tribunal. For ready reference, Section 432 of the Companies Act, 2013 is reproduced as under:- "432. Right to legal representation A party to any proceeding or appeal before the Tribunal or the Appellate Tribunal, as the case may be, may either appear in person or authorise one or more Chartered Accountants or company secretaries or cost accountants or legal practitioners or any other person to present his case before the Tribunal or the Appellate Tribunal, as the case may be." Similar provisions are there under Section 116 of the Central Goods and Services Tax Act which also gives the right to representation to both parties to appear before the authority in connection with any proceedings either in person or through his relative advocate, Chartered Accountants, Company Secretary or Cost Accountant. For ready reference, Section 116 of the Act of 2017 is reproduced as under:- "Section 116- Appearance by Authorised representative- (1) Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s i.e. (1) 'nemo judex in causa sua' which means (rule against bias). (2) 'Audi alteram partem'- (rule of fair hearing). 'Audi Alteram Partem' means "hear the opposite side" or "let the other side heard as well." This is the significant rule of natural justice which says that that no one should be condemned unheard. When a person against whom any action is sought to be taken and his right or interest is being affected, he shall be given an equal opportunity of being heard and defend himself. It gives right to the party to respond to the evidence against him and to choose legal representative of his own choice. Any adjudicating authority while deciding a dispute between the parties has to take into consideration the principles of natural justice as they form a part of the fundamental fair procedure amongst the parties. It is the duty of every person or body exercising judicial or quasi-judicial function to act in good faith and to listen fairly to both the sides before passing any order. No party should be made to suffer in person without giving any fair opportunity of being heard; in case, if any authority proceeds without giving a fair opportunity of hearing to the other party, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded 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. Taking into consideration the object, purpose and scheme of RERA, which was enacted in the larger public interest, we have placed our interpretational aspects of Section 56 with a balance approach so as to advance the object and purpose of RERA. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or of hurt. Fourthly:- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly:- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly:- With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception:- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." The Hon'ble Apex Court in the case of Independent Thought (supra) struck down the age of 15 years and read it down to 18 years in Para Nos. 196 and 197 by observing thus:- "196.Since this Court has not dealt with the wider issue of "marital rape", Exception 2 to Section 375 IPC should be read down to bring it within the four corners o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from unconstitutionality. 89. It is well settled that, with a view to save a provision from being declared unconstitutional, it may be read down. The creases may be ironed out (Entertainment Network (India) Ltd. vs. Super Cassette Industries Ltd. to ensure that it does not fall foul of Part III of the Constitution, and, only if it cannot, to then strike down legislation (plenary or subordinate) as ultra-vires Part III of the Constitution of India. If the law is arbitrary, discriminatory and violates the fundamental rights guaranteed to the citizens of the country, then the law can either be struck down or can be read down to bring it in consonance with the Constitution of India. (Independent Thought). 90. As the Court must start with the presumption that the impugned provision is intra vires, the said provision should be read down only to save it from being declared ultra vires, if the Court finds, in a given case, that the presumption stands rebutted. (J.K. Industries Limited & another v. Union of India & others; Hindustan Zinc Limited v. Rajasthan Electricity Regulatory Commission). A provision of an Act is read down to sustain its constitutionality (Pannalal Bansilal Pati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead down Section 8(1)(r) and declare that the disqualification from contesting elections to Panchayati Raj Institution, in terms of the said provision, would apply only to cases where persons, having two children or more, have a third child or more after 25.07.2019. The said provision shall not be understood as disqualifying those who already have three or more children before 25.07.2019 94. The challenge, to the constitutional validity of the newly inserted Section 10-C of the 2019 Amendment to the 2016 Act, must fail. Section 8(1)(r) shall be read down as a disqualification, from contesting elections to Panchayati Raj Institutions, only to those who give birth to a third child or more after the 2019 Amendment to the 2016 Act came into force on 25.07.2019." The writ petition, in view of the discussion made, deserves acceptance, thus the same is allowed. The distinction made for non-inclusion of the word "Respondent" under Section 56 of the RERA Act is declared illegal. As a consequence of the declaration above, the Section 56 of the Act of 2016 stands read-down as under:- "56. Right to legal representation- The applicant or appellant or respondent may either appear in pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
