In a major development, the Karnataka High Court bench led by Justice Krishna Dixit has accepted a writ petition (WP) challenging the constitutional validity of Section 22 of the Real Estate Regulatory Authority (RERA) Act. The bench also sent notices to the state government and Karnataka RERA on July 31, 2023.
Section 22 of the RERA Act describes the qualifications of the chairperson and the members of the Authority.
According to advocate Sameer Sharma who filed WP No. 15645 of 2023, the members of Karnataka RERA do not represent officials with a judicial background.
Section 22 of the RERA Act
According to the clause, the chairperson and other members of RERA shall be appointed by the appropriate government on the recommendations of a selection committee.
The committee consists of the Chief Justice of the High Court or his nominee, the Secretary of the department dealing with housing and the Law Secretary.
Although the section does not specify the qualifications for members, it stipulates that the officials must have sufficient knowledge of and professional experience in a variety of departments, including infrastructure, housing, real estate development, and urban development, including at least 15 years for members and at least 20 years for the chairperson.
Section 22 deserves scrutiny by the High Court as it does not prescribe the presence of even one legal/judicial member manning the RERA, the petition added.
It has been held by the Supreme Court and the High Courts that when it comes to discharging adjudicatory functions, the presence and participation of a judicial member is mandatory. Under Section 22 of the RERA Act, there is no such requirement, it added.
The petition asks that Section 22 be struck down as the manner of appointing members to RERA via a selection committee dilutes judicial independence, a basic tenet of the Constitution.
The advocate for the Union of India, M .N. Kumar, submitted before the High Court that the petition has already been considered by the Bombay High Court in the Neelkamal Realtors Suburban Pvt. Ltd. Vs Union of India and others in 2017, and therefore, does not require to be heard before the Karnataka High Court.
Sharma argued, however, that the ruling of the Bombay High Court fails to consider several Supreme Court views precedent on this particular topic.
Taking note of the submissions, Justice Krishna Dixit said that the matter requires detailed and serious consideration. The bench directed the Additional Government Advocate (AGA) to accept the notice on behalf of the state of Karnataka and an emergent notice was issued to the Karnataka RERA.
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