Mumbai: The Court has struck down section 46 of the RERA Act, which deals with appointment of members on the RERA tribunal. The court held that the tribunal could not have persons who are just involved in providing legal services, such as bureaucrats and advisors. They absolutely must have years of judicial experience.
While reading out the operative part of the 330-page order, justices Naresh Patil and Rajesh Ketkar said that section 46 (1) (b) which reads “or has been a member of the Indian Legal Service and has held the post of additional secretary of that service or any equivalent post” has been severed and struck down.
The bench further held that a two-member bench of the tribunal should always consist of a judicial member.
“We hold that in the constitution of the tribunal, majority of the members shall always be judicial members,” said the order.
The decision to strike down the specific section was made after various counsels for the Union and state discussed at length the qualifications of the members.
Advocate Darius Khambatta who appeared as Amicus Curiae in the petition informed the court that the post was a quasi-judicial post and hence there was a need for a judicial member of the level of a high court judge or someone with the number of years that would qualify him or her to become a judge.
The bench had appreciated the efforts of Khambatta and also other counsels like Shiraz Rustomjee for making the efforts to clarify the issue, which helped the court to arrive at the above conclusion regarding the eligibility of members.
