31 Dec 2019 1:31 PM GMT
The High Court of Gujarat has sought to know the stand of the State on a PIL challenging the coram of the Gujarat Real Estate Appellate Authority which comprises only one judicial member and no technical or administrative member. A bench of Chief Justice Vikram Nath and Justice A J Shastri issued notice to the State government and also the Gujarat Real Estate Appellate Authority on a...
The High Court of Gujarat has sought to know the stand of the State on a PIL challenging the coram of the Gujarat Real Estate Appellate Authority which comprises only one judicial member and no technical or administrative member.
A bench of Chief Justice Vikram Nath and Justice A J Shastri issued notice to the State government and also the Gujarat Real Estate Appellate Authority on a PIL which the coram of Gujarat Real Estate Appellate Tribunal should be subject to judicial review since its constitution is "coram non judice".
The PIL has been moved by advocate and Chartered Accountant Nipun Praveen Singhvi against what he called the "tribunalisation and bureaucratization of justice" and "its impact on judicial independence and separation of powers".
The PIL said the "Gujarat Real Estate Appellate Tribunal consist of only one judicial member and there is no administrative member or technical member appointed, therefore, the entire order or any proceedings concluded by the one of the member of the Tribunal is totally without jurisdiction and would be void, therefore, this would create a legal impediment and all such orders would be assailed before this Hon'ble Court on such technical ground which would open the flood gates of litigation".
Singhvi relied on a recent judgment passed by the Bombay High Court in case titled 'Man Global Limited versus Bharat Prakash Joukani' wherein the bench took the view that any order passed by the sole member would be without jurisdiction.
In the PIL argued by advocates Vishal Dave and Hiral U Mehta, Singhvi said "the Gujarat Real Estate Appellate Tribunal has extensive powers to decide on complicated issues and disputes in the field of real estate. Today, Real Estate is a valuable business asset for any organisation and consumers and effective protection of their rights is part of the fundamental right under Article 19(1)(g) of the Constitution of India to carry on trade and business and the constitutional guarantee under Article 300-A. In these circumstances, a body that lacks technical expertise and experience cannot be mandated with the task of adjudicating on the scope and protection of real estate".
The appointment of technical members having specialised knowledge is no doubt a relevant and important factor to be taken into account when creating bodies that have expertise in adjudication of certain kinds of disputes, the measure adopted to bring in such specialised knowledge for adjudication.
The PIL also rued resource crunch facing the Tribunal as the Presiding Officer and the staff of the Food Safety Appellate Tribunal have been designated to perform the additional function of the Gujarat Real Estate Appellate Tribunal without any additional allowance or additional staff.
It submitted that Gujarat RERA authority has registered more than 6200 projects and with a potential investment is of Rs.1.85 Lakhs Crores. Total Complaints status as per last reported data is 1768 out of which 1302 have been disposed of and 466 remain pending.
The PIL, however, said the Tribunal declined to provide information about the number of appeals filed, pending and disposed of due to lack of resources since the Presiding officer and staff of the Food Safety Appellate Tribunal has been designated to perform the additional task/burden of Gujarat Real Estate Appellate Tribunal, therefore, it consumes lot of time for the appellate tribunal for adjudication of appeal which violates the right to a fair and impartial system for the administration of justice which is also an integral part of the right to life conferred under Article 21".
Singhvi also urged that the functioning of the Gujarat Real Estate Appellate Tribunal be brought under the supervision of Ministry of Law & Justice, Government of Gujarat instead of Urban Development and Urban Housing Department while citing the decision of the apex court in NCLT and Swiss Ribbon Case wherein it was held that the 'sponsoring ministry' of the Tribunal cannot be responsible for providing support to the tribunal.