BY: Shruti Sharma
Under the Real Estate Regulatory Authorities Act (RERA Act), the Real Estate Appellate Tribunals are constituted in Gujarat to deal with the matters pertaining with the Gujarat Real Estate sector. The meaning of the Tribunal for the purpose of the Act is the Gujarat Real Estate Appellate Tribunal. In order for the promoters to sell, book or advertise their real estate properties, it is mandatory for them to register under the RERA Act. In Gujarat, the RERA registration is done under the Gujarat Real Estate Regulatory Authority.
The registration under RERA Act can be done by any person who constructs independent buildings or modify or sell any apartment. Apart from this, any person who owns a property at the disposal of the state or central government can also apply for the RERA registration. Under the Act, the Real Estate Regulatory Authority is established by the appropriate government for the regulation and promotion of the real estate sector in the state. There is an adjudicating mechanism for a speedy grievance Redressal for the registered real estate projects.
The Appellate Tribunal is established by the appropriate government under the Act. Such an appellate tribunal hears the appeal against the decisions, directions or orders of the Regulatory Authority. The directions are given by the appropriate government to dispose the appeal within a period of sixty days. The ideal composition of the appellate tribunal include a chairperson, three additional judicial members, secretary, specialist in accounts, law, technical and administration and IT.
CURRENT SCENARIO :
Advocate and Charter Accountant, Nipun Praveen Singhvi, moved a PIL before the Gujarat HC. The PIL argued that the Gujarat Real Estate Appellate Tribunal consisted of only one judicial member and the administrative and technical members were not appointed. He further said that any such order or the entire proceeding by just one member is without any jurisdiction and would become void in its entirety. This indeed becomes a situation of bureaucratization of justice and impacts the separation of power.
Reliance was put on the case of Man Global Limited vs. Bharat Prakash Joukani where it was held by the bench that any order taken by a sole member would be without jurisdiction. The appointment of persons with the specialised knowledge of is an important factor that should be taken into account while adjudicating these matters or while creating adjudicating bodies specialised in certain matters. Because real estate sector has become a valuable asset for the private individuals as well as the country, and enjoy the protection of fundamental rights under Article 19(1)(g) and constitutional right under Article 300-A. While adjudicating any such dispute without technical expertise would be incomplete and lack the scope to protect the real estate. The estimated registrations under the RERA Act in Gujarat are approximately 6200 projects and a potential investment up to the value of 1.85 lakhs crores INR. In addition to this, the petition also argued that the Presiding Officer and the staff of the Food Safety Appellate Tribunal have also performed certain functions of the Real Estate Appellate Tribunal without any additional allowance. Singhvi has also urged that the Ministry of Law & Justice of the Government of Gujarat to supervise the functioning of the Real Estate Appellate Tribunal instead of Urban Development and Housing Department. The Swiss Ribbon Case was referred for this purpose where it was held that sponsoring ministry cannot be held responsible for providing adequate support to the tribunals.
The petitioner had prayed the Gujarat High Court that the present establishment of the Real Estate Appellate Tribunal is the violation of the Section 43(3) of the RERA Act and also prayed for the state government to provide directions for the appointment of the technical and administrative member of the Real Estate Appellate Tribunal or the Gujarat RERA Tribunal. He further argued before the court that instances like this are the ones which infect the legal system in India and they also violate the separation of power envisioned through the constitution.
Although the Government of Gujarat has already constituted the Coram for the adjudication of the RERA Act disputes, the petitioner prayed before the Gujarat HC to direct the Appellate Tribunal not to pass any order till the pendency of the case. Because of the absence of the technical and administrative expertise, it would amount to an error in the entire proceeding and also would amount to be void in nature. Real Estate Sector is an expanding sector of the economy of the state and the country, such an error in the adjudication of the relating disputes would be problematic in nature. This also leads to the increase in pendency of the cases of disputes under the RERA Act. The expertise of the complete Coram is therefore necessary.