IMPORTANT POINT
The main legal point established in the judgment is the retrospective or retroactive operation of RERA, 2016, and the mandatory registration requirement for ongoing projects with completion certificates issued after the commencement of the Act.

JUDGMENT :

This miscellaneous second appeal is at the instance of M/s.IFCI Infrastructure Development Limited, who is the respondent in Suo Motu complaint No.3147/K-RERA/2021. The respondents herein are the Kerala Real Estate Regulatory Authority (hereinafter referred to as 'K-RERA' for short) and additional respondents 2 to 5 are the respective allottees (hereinafter referred to as 'allottees' for short).

2. Heard the learned counsel for the appellant/promoter, the learned counsel for the allottees and the learned Standing Counsel for the K-RERA.

3. I shall refer the parties in this miscellaneous second appeal as “promoter”, “allottees”, “K-RERA” and “Appellate Tribunal” for convenience.

4. At the time of admission, as per order dated 02.03.2023, my learned predecessor raised the following substantial questions of law:

1. Whether the direction for registration of the appellant's project by the K-RERA is legal and in consonance with the provisions of the Act?

2. Does the appellant retain any right over the project handed over to the association in terms of the law then in force so as to mulct with the responsibility of registration under the RERA Act?”

5. The learned counsel for the promoter, Sri.Vinod Madhavan, submitted that in Suo Motu complaint No.3147/K-RERA/2021, K-RERA passed an order on 27.01.2022, directing the promoter to register the project 'IIDL Aerie' under Section 3 of the Real Estate (Regulation & Development) Act, 2016 (hereinafter referred to as RERA, 2016, for short).

6. According to the learned counsel for the promoter, the K-RERA passed the order negating the contention raised by the promoter to the effect that the Authority came into force only with effect from 17.04.2020 where an occupancy certificate/completion certificate in respect of the project was obtained by the promoter with effect from 29.02.2017. According to the learned counsel for the promoter, since the RERA, 2016 came into force practically with effect from 17.04.2020 (the date of establishment of K-RERA) the promoter is not bound to register the project in tune with Section 3 of the RERA, 2016. Therefore, the order of the K-RERA as confirmed by the appellate tribunal also would require interference.

7. The learned counsel submitted further that since K-RERA Rules, 2018 framed with effect from 18.06.2018 and the Authority came into force with effect from 17.04.2020, the promoter, who completed the work and obtained occupancy/completion certificate with effect from 29.12.2017, is not bound to register and such a course of action is an absolute impossibility. It is also submitted that law does not permit an impossibility to be performed. The learned counsel relied on three legal maxims and three decisions of the Apex Court in this regard as under:

“LEGAL MAXIMS

'lex non cogit ad impossibilia'

law does not compel a man to do that which cannot possibly be performed 'impotentia excusat legem'

law will generally excuse a default if a party is unable to perform a duty created by law without any default in him and where he has no remedy 'impossibilium nulla obligatio est

The impossible is no legal obligation. A legal obligation that is impossible to perform must be excused.

CASE LAWS:

1. Re: Presidential Poll [AIR 1974 SC 1682; (1974) 2 SCC 33, [1975] 1 SCR 504]:

The maxim of law impotentia excusal legem is intimately connected with another maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses, the law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him." Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control,