In a PIL, the Division Bench of Chief Justice Aravind Kumar and Justice Mauna Bhatt of the Gujarat High Court has asked the Gujarat Government to file a reply mentioning how much time it will take to appoint Chairman and Technical Member in the Gujarat Real Estate Appellate Tribunal in Gandhinagar.
The Bench posted the case for further hearing on October 29 after the Government Pleader Manisha Shah made a statement that the appointments will be made soon. The Bench was hearing a Public Interest Litigation filed by Advocate Nipun Singhvi through his Lawyer Vishal J Dave. The posts are lying vacant after the Chairperson retired on June 15 after attaining age of retirement, while the Technical Member resigned on September 20.
The Bench indicated that it will close the matter if the state informs a time frame within which the appointments will be made.
The PIL highlights that the RERA Tribunal has been functioning with only a judicial members and that the government needs to appoint a Chairperson and a Technical Member as per Section 45 of The Real Estate (Regulation and Development) Act, 2016. The present Tribunal is coram non judice and the orders passed by it would be void, as per the petitioner.
"The "Coram" of the Gujarat Real Estate Appellate Tribunal consists of only one Judicial Member and no technical or administrative member thereby the constitution of Gujarat Real Estate Appellate Tribunal is "coram non judice". Further in absence of any Chairperson along with technical or administrative member of the appellate tribunal, any proceedings or order passed by the single member would be void and without jurisdiction. 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 floodgates of litigation."
The petition mentioned that, Bombay High Court in the case of Man Global Limited Vs. Bharat Prakash Joukani has taken a view that any order passed by the sole member would be without jurisdiction.
The petitioner in the PIL has sought a direction from the High Court to bring the Tribunal under the Legal Department instead of the existing Urban Housing and Urban Development Department. Citing a judgment in the case of Union of India v. R. Gandhi, President of Madras Bar Association, the plea states that as per the Supreme Court, Tribunals should only be provided support from the Ministry of Law and Justice and neither the Tribunal nor its members shall seek or be provided with facilities from the respective parent ministries or concerned departments.