IMPORTANT POINT
The court clarified that the Completion Certificate's issuance date is crucial in determining a project's ongoing status under RERA, emphasizing the conjunctive reading of statutory provisions.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. The appellants are the legal heirs of the respondent in Complaint No. 17/2020 of the Kerala Real Estate Regulatory Authority (‘the K-RERA’ for short).

2. The complainant is the Apartment Owners Association of the project of the respondent by name ‘Orchid Garden-PVS Park’ located at Govindapuram, Kozhikode. The Complainant/Association sought direction to the respondent to execute a registered conveyance deed in favour of the Association with respect to the undivided proportionate title in the common area in accordance with the Rules and to direct the respondent to handover all the relevant original documents in connection with the entire apartments.

3. The main grievance of the complainant is that the project of the respondent consisted of four blocks namely, A, B, C, and D, having a total number of 64 flats in a total area of 167 cents, that the common area for the above four blocks is included in the 167 cents, but the respondent used only 126 cents for the said blocks and common area and the balance 41 cents are in the possession of the respondent and the respondent is trying to make new construction therein without handing over possession of the common area and without delivering the documents such as Building Permit, Sanctioned Plan, Deeds, Occupancy Certificate, NOC from Pollution Control Board to the complainant.

4. The respondent opposed the prayers in the complaint stating that the complaint is filed under the mistaken impression that the entire 167 cents of land owned by the respondent is intended for construction of the four blocks that have been built by the respondent; that, in fact, the total land was intended for construction of five blocks as can be seen from the approved plan and permit issued by the local authority; that 41 cents situated at the southern extremity is proposed for future development; that the allottees of units in the four constructed block have no right over the 41 cents which is not the part of the site of their blocks. The complainant has only the right of usage over all the common areas excluding 41 cents demarcated in the approved plan intended for future development.

5. When the complaint was pending enquiry, the K-RERA by its order dated 5.03.2020 prima facie found that the project in question is registrable under Section 3 of the Real Estate (Regulation and Development) Act, 2016 (‘the RERA’ for Short) and thereupon directed the respondent to file an application for registration within two weeks from the date of order. The respondent filed a Statement dt. 19.03.2020 stating that the project is not an ongoing one but a finished project before coming into force of the RERA and that, therefore, the respondent is not liable for registration. The respondent was directed to produce the original Occupancy Certificate which he claimed to have obtained in the year 2009. On 16.10.2020, the respondent filed an Affidavit before the K-RERA affirming that the Occupancy Certificate was issued 12 years ago and, hence, he is not in possession of the same. The K-RERA marked the copies of the Occupancy Certificates produced by the respondent as Exts.B5 to B8. The K-RERA directed the Secretary Kozhikode Corporation to submit a Report declaring the date of issue of all the Occupancy Certificates with regard to four blocks of the project. The Secretary of the Kozhikode Corporation submitted Ext.X1 Report dated 06.01.2020 stating that the Corporation does not have the file relating to the Occupancy Certificates with regard to the Project. After hearing both sides and taking the evidence into consideration, the K-RERA by its order dated 15.11.2021 found that the complaint is not maintainable as the project is not an ongoing project, since the apartments were transferred to the allottees, numbered in their names and property tax was assessed and collected long before coming into force of the RERA. However, the K-RERA granted a relief in favour of the complainant that the members of