BY AD vs JOBY JACOB PULICKEKUDY

MR. MANOJ K JOSE AGED 47 YEARS S/O JOSE THOMAS, MANAGING DIRECTOR, CITY CASTLE, N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 SUDHIN BEN CHERIYAN AGED 49 YEARS S/O V.P CHERIYAN, DIRECTOR, AMITY PROJECTS INDIA PVT.LTD, CITY CASTLE. N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 NOUFAL K.M AGED 50 YEARS S/O MOIDEEN, DIRECTOR, AMITY PROJECTS INDIA PVT.LTD, CITY CASTLE. N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 MSA NO. 14 OF 2025 2 5 6 7 SUDHIL LAWRENCE AGED 50 YEARS S/O LAWRENCE, DIRECTOR, AMITY PROJECTS INDIA PVT.LTD, CITY CASTLE. N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 NIBU N.V AGED 46 YEARS S/O VAKKACHAN, DIRECTOR, AMITY PROJECTS INDIA PVT.LTD, CITY CASTLE. N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 AJI THOMAS AGED 50 YEARS S/O P.J. THOMAS, DIRECTOR, AMITY PROJECTS INDIA PVT. LTD, CITY CASTLE. N.H BYPASS, THYNOTHIL ROAD, ALUVA, PIN - 686101 BY ADVS. JOBY JACOB PULICKEKUDY ANIL GEORGE SMITHA PHILIPOSE ASHIK TOM ADARSH K. ANAINA VARGHESE RESPONDENTS/RESPONDENTS/COMPLAINANTS: 1 2 3 SHERIN M.P PARKJASH, KALLUKADAVU ROAD, PULLINCHODU , ALUVA –, PIN - 683101 K.A. ABDUL SALAM S/O. LATE K M ABDUL KHADER 5 B PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM, PIN - 682018 V.M MOHAMMED SAKHIR S/O. LATE VALIAPURAYIL MAHIN, 5 B PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM-, PIN - 682018 MSA NO. 14 OF 2025 3 4 5 6 7 K.A SULEKHA W/O. V M MOHAMMED SAKHIR 5 B PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM, NOW RESIDING AT VALIAPURAYIL SHEREEN, LOKAMALESWARAM, KODUNGALLOOR, PIN - 680664 M.C ABDUL RAHMAN S/O. LATE M.C KHADER, 5 B PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM, NOW RESIDING AT CHIRAKUZHI HOUSE, THIRURANGADI, MALAPPURAM -, PIN - 676306 MRS. K.A RAMLA W/O. ABDUL RAHMAN 5 B PROVIDENCE GROVE, PROVIDENCE ROAD, ERNAKULAM NOW RESIDING AT CHIRAKUZHI HOUSE, THIRURANGADI, MALAPPURAM, PIN - 676306 MRS. K.A SHAMLA W/O T.H RASHEED, 5 B PROVIDENCE GROVE, PROVIDENCE ROOD, ERNAKULAM NOW RESIDING AT THARAKKANDATHIL HOUSE, THOTTUMUGHAM, ALUVA, PIN - 683105 THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON

24.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MSA NO. 14 OF 2025 4 J U D G M E N T The Promoters of the project are challenging the Order of the Kerala Real Estate Regulatory Authority (for short ‘ the K-RERA ’) directing to register the project under Section 3 of the Kerala Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as ‘the Act’), and finding that the project was an ongoing process as on the date of the implementation of the Act. Though the Promoters filed an appeal before the Appellate Tribunal, the same was dismissed, confirming the order of the K-RERA.

2. I heard the learned Counsel for the appellants Sri.Joby Jacob Pulickekudy and the learned Standing counsel for the K-RERA Sri.C.M.Nazar.

3. The learned Counsel for the appellants contended that, admittedly, the application for a completion certificate was submitted to the Municipality on 04.04.2017. Rule 22(3) of the Kerala Municipality Building Rules provides that in case the occupancy certificate was not issued within 15 days, the owner can proceed as if the occupancy certificate has been duly issued to him. Taking note of the said MSA NO. 14 OF 2025 5 provision, this Court in W.P(c) No.12800/2021 filed by the Promoter directed the Municipality to issue an Occupancy Certificate to the project. When an Occupancy Certificate is issued on the basis of the judgment in the said Writ Petition, in view of the Deeming clause, it is deemed to have been issued on completion of 15 days from 04.04.2017. The Occupancy Certificate has to be treated as valid with effect from

19.04.2017 the day on which 15 days is completed from the date of submission of the Application. In such case, on account of the issuance of Occupancy Certificate before 01.05.2017, the project could not be treated as an ongoing project. The learned Counsel contended that in view of the decision of this Court in Nidhish P.V. v. Sivaprakash (2024 KHC 7050) when an Occupancy Certificate is issued by the local authority, K-RERA has no jurisdiction to consider the legality of the same.  Once the Occupancy Certificate is issued, the dates of issuance of Fire NOC and Consent from the Pollution Control Board are not relevant for consideration to K-RERA.   The learned Counsel further contended that in the case of Rajasthan, Karnataka, and Andhra Pradesh, the full completion of the project is not required to be MSA NO. 14 OF 2025 6 excluded from the ongoing project. There could not be any different treatment as far as that projects in Kerala.

4. Proviso to Section 3 of the Act mandates the promoter to register the project only if the projects are ongoing on the date of commencement of the Act and for which the completion certificate has not been issued. In view of the said provision as interpreted in Nidhish’s Case (Supra) in order to take out the project from registration, the promoter needs to prove either that the occupancy certificate was issued before 01.05.2017 or that the project was completed before the said date. This Court held that the question of whether the project is an ongoing one or not arises only in the absence of an Occupancy Certificate. If occupancy certificate is issued before

01.05.2017 as rightly pointed out by the learned Counsel the K-RERA cannot go behind the Occupancy Certificate to consider the legality of the Occupancy Certificate. If the Occupancy Certificate is not issued before 01.05.2017, still the promoter can prove before the K-RERA that the project was completed before 01.05.2017 to take out the project from the purview of registration. MSA NO. 14 OF 2025 7

5. Here, admittedly, the Occupancy Certificate is issued pursuant to the judgment dated 11.11.2021 in W.P.(C) No. 12800 of 2021. The word used in the Proviso to Section 3(1) is the ‘issuance’ of completion certificate. The word used in Section 3(2)(b) is ‘receipt’ of completion certificate. In view of the provisions in the Proviso to Section 3(1) and Section 3(2)(b) what is relevant and material is the issuance or receipt of a completion certificate for the project. Even if it is assumed that the promoter was entitled to get Occupancy Certificate on account of the deeming provision, the same could not be taken into account in view of the specific provisions of the Proviso to Section 3(1) and Section 3(2)(b).  Of course, as pointed out by the learned Counsel for the appellants, the K-RERA, as well as the Appellate Tribunal, considered whether the Fire NOC or Consent of the Pollution Control Board was submitted along with the Application for occupancy. I am of the view that the K-RERA and the Appellate Tribunal considered those documents only to verify the fact of whether the project was completed before 01.05.2017 in spite of the non issuance of the Occupancy Certificate before the said date. There is nothing on record to prove MSA NO. 14 OF 2025 8 that the project was completed before 01.05.2017. The learned Counsel invited my attention to the date of completion mentioned in the occupancy certificate as 04.04.2017. True, in almost all occupancy certificates, the date of completion as per the Completion Certificate submitted by the promoter is referred. Such date of completion stated by the promoter or his Architect could not relied on as it is only a self serving document.

6. Admittedly, the Application for Fire NOC and the Application for consent from the Pollution Control Board was submitted subsequent to 1.05.2017. It would only probabilize that the building was not complete as on 01.05.2017 as claimed by the appellants. Even if, the submission of those applications is after

01.05.2017, it is still open to the appellant to produce necessary evidence to prove that the building was complete on 01.05.2017. Such evidence is lacking in the present case.

7. The Rule 3 (2) of the Kerala Real Estate (Regulation and Development) Rules, 2018 does not permit partial completion of the project in order to take out the project from the purview of MSA NO. 14 OF 2025 9 registration. Hence full completion of the project is mandatory in order to take out the project from the purview of registration. In view of the said discussion, I do not find any ground or reason to interfere with the order of the K-RERA confirmed by the Appellate Tribunal. Accordingly, the Miscellaneous Second Appeal is dismissed. LU Sd/- M.A.ABDUL HAKHIM JUDGE MSA NO. 14 OF 2025 10 APPENDIX OF MSA 14/2025 PETITIONER ANNEXURES : Annexure A Annexure B Annexure C Annexure D THE TRUE PHOTOCOPY OF THE COMPLETION CERTIFICATE SUBMITTED TO THE ALUVA MUNICIPALITY ON 04.04.2017 THE TRUE PHOTOCOPY OF THE JUDGMENT DATED 11.11.2021 IN WPC NO.12800/2021 THE TRUE PHOTOCOPY OF THE OCCUPANCY CERTIFICATE ISSUED BY THE MUNICIPALITY DATED 03.02.2022 WITH DATE OF COMPLETION AS 04.04.2017 THE TRUE PHOTOCOPY OF REPLY NO. PIO/E2- 12151/23 DATED 06.10.2023 SUBMITTED BY THE 1ST RESPONDENT UNDER THE RIGHT TO INFORMATION ACT Annexure E THE TRUE PHOTOCOPY OF THE REPLY DATED 07.09.2023 ISSUED TO THE 1ST RESPONDENT // True Copy // PA To Judge