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2022 (5) TMI 1 - RAJASTHAN HIGH COURTRight to of Chartered Accountant (CA) to appear as counsel to appear before the Tribunal to defend the case on behalf of the JDA - Section 56 of the Rajasthan Real Estate (Regulation and Development) Act, 2016 - HELD THAT:- 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 - The concept of natural justice though not provided in Indian Constitution but it is considered as necessary element for the administration of justice. Natural justice is a concept of common law which has its origin in on ‘jua natural’ which means a law of nature. Natural justice has a very wide application in administrative discretion. It aims to prevent arbitrariness and injustice towards citizen with an act of administrative authorities. Initially, the concept of natural justice was confined to judicial proceedings only but with passage of time, this concept is applicable even in quasi-judicial proceedings. In order to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that differentia must have a rational relation to the objects sought to be achieved by the statute in question. Non-inclusion of the word “Respondent” under Section 56 of the RERA Act sound harsh, unreasonable and contrary to constitutional spirit - It is the settled principle of law that two equals should be treated as equal. Both appellant/applicant and the respondents are equal for the authorities hearing the matter. 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. Thus, 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. Thus, this provision is arbitrary and discriminatory. Hence, in view of the settled position of law, as held by the Hon’ble Supreme Court in the case of the INDEPENDENT THOUGHT VERSUS UNION OF INDIA AND ANR. [2017 (10) TMI 1602 - SUPREME COURT], Court can either hold the law to be totally unconstitutional and strike down the law or the Court may read down the law in such a manner that the law read down does not violate the Constitution. 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 - Petition allowed.
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