Respondents Also Have Right To Legal Representation Before Regulatory Authority/ Tribunal: High Court Reads Down S.56 Rajasthan RERA Act

The validity of Section 56 of the Act of 2016 was challenged by the petitioner mainly on the ground that it is hit by Articles 14, 19(1) (g) and 21 of the Constitution of India.

Section 56 gave right of legal representation only to the applicant/ appellant. However, 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.

Acting Chief Justice Manindra Mohan Shrivastava and Justice Anoop Kumar Dhand, while allowing the petition, ruled,

"In the light of inclusion of 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."

Facts

One Suresh Chand Jain submitted an appeal before the RERA Tribunal against the Jaipur Development Authority (JDA) for redressal of his grievance. JDA appointed the petitioner-Chartered Accountant as its counsel to appear before the Tribunal to defend the case on behalf of the JDA. Acting under the instructions of JDA, he prepared a written submission and appeared before the Tribunal but the same was not taken on record by saying that a 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.

Notably, the 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. The petitioner has challenged the legality and validity of Section 56 of the Act of 2016 by filing this writ petition on being aggrieved by the impugned orders passed by the Tribunal and also being aggrieved by the impugned exclusion of the word "Respondent" to Section 56 of the RERA Act.

Court's Observations

The court declared the distinction made for non-inclusion of the word "Respondent" under Section 56 of the RERA Act as illegal and read-down Section 56 of the Act of 2016 as under:

""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."

It was opined by the court that 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, added the court.

The court noted that it is the settled principle of law that two equals should be treated as equal. It also noted that both appellant/applicant and the respondents are equal for the authorities hearing the matter. The court observed that 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.

In furtherance, the court observed that 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 and is thus, arbitrary and discriminatory.

Moreover, the court opined that non-providing the opportunity of right of legal representation to the respondent through Chartered Accountant/ Company Secretary/ Cost Accountant/ Lawyer amounts to denial of fair opportunity to participate in the proceedings and the same amounts to violation of natural justice. The court added that Section 56 of the RERA Act confers a right upon the applicant/appellant to appoint CA /CS /Cost Accountant/ Lawyer whereas it curtails the right of the respondent. It also added that both parties before the Tribunal/ Authority have equal rights and no differential treatment can be given to one set of persons over the another set of persons. No reason or rationale has been provided under the RERA Act to give such differential treatment, added the court.

On perusal of provisions of various Acts, the court observed that chartered accountants/company secretaries/cost accountants/lawyers are allowed to appear before the Tribunals and authorities constituted and function under these enactments. 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, added the court.

Adv. Siddharth Ranka appeared for the petitioner while Adv. Anand Sharma, Adv. Prakul Khurana for Sr. Adv. Sanjay Jhanwar and Adv. Pallavi Mehta appeared on behalf of the respondents.

Case Title: Sanjay Ghiya v. Union Of India

Citation: 2022 LiveLaw (Raj) 152

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