The Karnataka High Court has recently issued a notice in a Writ Petition filed under Article 226 of the Constitution challenging the constitutionality of Section 22 of the Real Estate (Regulation and Development) Act, 2016, which deals with the composition and manner of appointment of Chairperson and Members to RERA, for violating the principles of the independence of the judiciary, and the separation of powers.

The Single Judge Bench of Justice Krishna S. Dixit issued notice and sought the reply of the Union of India, the State of Karnataka and the other Respondents. In the Petition, moved through the Advocate Sameer Sharma it was submitted that the composition of the RERA envisaged under the impugned provision, coupled with the manner in which the members of the same are appointed, run counter to the basic structure of the Constitution of India thereby undermining the dispensation of justice and the performance of duties, responsibilities and functions cast upon the RERA under the aforesaid Act.

"A body discharging quasi-judicial and adjudicatory functions must have legally trained and judicially experienced members manning such a body", submits the Petitioner. The petition further says, "While it would be permissible, as per case-law, to have technical/administrative members also being part of bodies such as the RERA, it has been held to be necessary that the personnel manning such bodies must have a modicum of legal training, learning and experience."

The Petition highlights that Section 22 of the Act lacks any requirement whatsoever, vis-à-vis the members supposed to be appointed to the RERA, of having legal training/experience. In the Petition it is stated that greater scrutiny is required by the High Court while considering the present matter, as Section 22 of the RERA Act does not prescribe for even one legal/judicial member manning the RERA.

"It has again been held repeatedly by the Hon’ble Supreme Court and the High Courts that at least when it comes to discharging adjudicatory functions, there must be the mandatory presence and participation of at least one judicial member therein", submits the Petition. It also adds that "The impugned provision is also liable to be struck down as the manner of appointment of members to the RERA, by way of a Selection Committee comprising the Hon’ble Chief Justice of the concerned High Court (or his/her nominee), Secretary of the Department dealing with Housing and the Law Secretary, dilutes judicial independence, which has been held to be a basic structure of the Indian Constitution", the petition says.

During the hearing, Advocate Kumar M. N appearing for the Union of India contested the Petition by submitting that the question raised in the above Petition has been dealt with by the Bombay High Court in Neelkamal Realtors Suburban Pvt. Ltd. & Anr. v. Union of India and Ors. [2017 SCC OnLine Bom 9302], owing to which, the above Petition is not required to be entertained before the Karnataka High Court.

Responding to the same Advocate Sharma for the Petitioner submitted "That the said decision of the Bombay High Court fails to consider a plethora of case-law enunciated by the Hon'ble Supreme Court on this very issue, owing to which, the said decision is per incuriam and is not a bar for the Karnataka High Court to consider the Petition."

Accordingly, the Court issued notice in the matter.

Cause Title: M.D. Rajkumar v. Union of India & Ors. WP 15645/2023 (KAHC010367712023)

Justice Krishna S DixitKarnataka High CourtRERA

Ramey Krishan Rana