Point of Law: Sub-Section (1) of Section 3 interdicts promoters from advertising, marketing, booking, selling, offering for sale or inviting persons to purchase in any manner any plot, apartment or building, as case may be, in any real estate project or part of it, in any planning area, without registering real estate project with Real Estate Regulatory Authority.

JUDGMENT :

V.G. ARUN, J.

1. The petitioner is a private limited company engaged in the development and construction of major infrastructure and residential projects. One such project is ‘Alfa Horizon’ a multistoried commercial complex in Mulavukad Village in Ernakulam District. During the course of construction of the building, the petitioner entered into agreements with prospective buyers for sale of undivided shares in the land and also for construction of the building. Accordingly, the purchasers made substantial payments. Construction of the building was completed by early 2017 and completion certificate submitted on 10.05.2017. Occupancy certificate was issued by the Mulavukad Panchayat on 24.05.2018, more than an year of submission of the completion certificate. In the meanwhile, the Central Government enacted the Real Estate [Regulation and Development] Act, 2016 (‘the Act’ for short). Various provisions of the Act were enforced from 01.05.2016 and 01.05.2017 onwards. Section 3 of the Act, providing for registration with the Real Estate Regulatory Authority was made applicable w.e.f. 01.05.2017. Section 84 of the Act makes it mandatory for the State Government to make rules for carrying out the provisions of the Act. Accordingly, the Kerala Real Estate [Regulation and Development] Rules, 2018 was introduced with effect from 14.06.2018 and the Kerala Real Estate Regulatory Authority [K-RERA] constituted on 05.10.2019. Thereafter, in exercise of the power under Section 20, the K-RERA issued public notice dated 26.12.2019, informing all promoters/ developers/builders that, from 01.01.2020 onwards, they shall not advertise, market, book, sell or offer for sale or invite persons to purchase or transfer any plot, apartment or building in a real estate project as defined in Section 2(zn) of the Act. This was followed by another notice dated 26.12.2019 calling upon the allottees/buyers to verify whether the project is registered with the K-RERA. Yet another public notice dated 22.02.2020 was issued by the second respondent, clarifying the meaning of the term on going project. While so, the third respondent, a prospective purchaser of undivided shares in the Alfa Horizon project, filed a complaint before the second respondent [K-RERA] seeking refund of Rs. 86,41,871/- paid to the petitioner towards sale consideration. Based on the complaint, the second respondent issued Ext.P10 notice, requiring the petitioner to appear for hearing on 31.03.2022. Accordingly, the petitioner appeared before the 2nd respondent and raised a contention that the Alfa Horizon project having been completed and occupancy certificate obtained prior to the introduction of the Rules, the project/building does not require registration under the Act and is therefore not amenable to the jurisdiction of the K-RERA. A few days later, the petitioner received Ext.P11 notice dated 29.03.2022, requiring the petitioner to register the project, Alfa Horizon or to produce occupancy certificate to prove that the project is not fall under the purview of the Act. There is a further direction not to sell or market the unsold units till the project is registered. This writ petition is filed challenging Ext.P11 notice and for a declaration that the project ‘Alfa Horizon’ is not liable to be registered with the K-RERA.

2. Learned Counsel for the petitioner drew attention to the 1st proviso to Section 3 of the Act to contend that only on going projects are liable for registration, which position has been clarified by the Authority itself, vide Ext.P6 notification dated 27.12.2019. Therein, it is stated that, real estate projects that have obtained occupancy certificate do not require registration under K-RERA and on going projects should be registered within three months from 01.01.2020. It is submitted that Section 3 of the Act was made applicable from 01.05.2017 and the K-RERA was constituted only on 01.01.2020, whereas the project Alfa Horizon was completed in the year 2017 a