IMPORTANT POINT
Landowners are not considered promoters under RERA unless explicitly included, limiting their obligations to specified functions.

JUDGMENT :

M.A. ABDUL HAKHIM, J.

1. This Miscellaneous Second Appeal filed under Section 58 of the Real Estate (Regulation and Development Act) 2016 (for short, ‘RERA’) is admitted by this Court, formulating the following substantial questions of law.

(i) Whether the term “person causes to be constructed” used in the definition of “promoter” as per Section 2 (zk) of the RERA includes landowners?

(ii) Whether the Explanation to the definition of ‘promoter’ as per Section 2(zk) of the RERA a landowner is also to be treated as a promoter for all the functions and duties under the RERA?

(iii) Whether the landowners are also liable to be treated as a co-promoter for the purpose of registration of real estate projects under Section 3 of the RERA?

2. This Miscellaneous Second Appeal is filed by the appellant-builder challenging the Order of the Kerala Real Estate Regulatory Authority (for short ‘the K-RERA’) dated 18.09.2023 holding that the appellant is the sole promoter of the project “Pooja Arcade” and directing the appellant to register the said project before the K-RERA under Section 3 of the RERA within 15 days from the date of receipt of the order, failing which, the K-RERA shall be constrained to initiate proceedings under Section 59 of the RERA, which is confirmed by the Kerala Real Estate Appellate Tribunal ( for short ‘the Tribunal,’) as per order dated 29.05.2024.

3. The respondents are the landowners in which the appellant constructed the project “Pooja Arcade.” The appellant is the 1st respondent and the respondents are the 2nd and 3rd respondents in the suo motu Complaint initiated by K-RERA.

4. The K-RERA initiated a suo motu complaint under Section 3 of the RERA against the appellant when it noticed various advertisements for the sale of the apartments in the project “Pooja Arcade” by issuing a Show Cause Notice dated 15.09.2021 directing to show cause with sufficient explanation for the no-nregistration of the project ‘Pooja Arcade’. The appellant submitted a Reply dated 28.09.2021 that the project was not an ongoing project on the date of commencement of the RERA since the entire apartments had been sold in 2016 and that the project was a joint venture housing apartment project owned by the respondents; that the construction was entrusted with the appellant to construct four-storied residential apartment as a contractor; that the appellant constructed the four-storied apartments as per the approved plan and permit obtained in the name of the respondents.

5. The K- RERA on perusal of the documents submitted by the appellant, found that the project was an ongoing project which is liable to be registered under S.3 of the RERA and accordingly issued Notice dated 09.02.2022 directing the appellant to register the project under S. 3 of the RERA within 15 days on receipt of the notice failing which further action will be taken under S. 59 of the RERA. The appellant challenged the said Notice before the Tribunal by filing REFA No. 24/2022 and as per order dated 29.06.2022, the Tribunal set aside the Notice dated 09.02.2022 issued by the K-RERA and remanded the matter back to K-RERA for fresh consideration. The Tribunal remanded the matter, taking note of the contention of the appellant that the project is a joint venture housing apartment project owned by the respondents, who are the real promoters, and that the appellant is only a contractor. The Appellate Tribunal directed the authority to take a decision and pass an order under S.3 of the RERA after conducting an enquiry after hearing all the parties, including the promoter.

6. After remand, notices were issued to the appellant and the respondents and K-RERA conducted an enquiry into the matter.

7. The appellant contended that the landowners are also liable to be considered as promoters. The appellant produced various documents obtained in the names of the respondents with respect to the project. On the other hand, the respondents contended that the appellant is the promoter of th