IMPORTANT POINT
The existence and date of issuance of occupancy certificates are critical in determining whether a real estate project is ongoing under the RERA.

JUDGMENT :

M.A. Abdul Hakhim, J.

1. This Court had disposed of this Miscellaneous Second Appeal as per Judgment dated 30.08.2024, which is reported in Nidhish P.V. V. Sivaprakash 2024 (6) KHC 16. Thereafter, the respondent filed this Review Petition No.1023/2024 to review the judgment dated 30.08.2024. This Court allowed the said Review Petition No.1023/2024 as per judgment dated 03.10.2024, recalling the judgment dated 30.08.2024, finding that this Court committed an error in allowing the appeal in part after framing the Substantial Questions of law at the admission stage itself.

2. Thereafter the Miscellaneous Second Appeal was admitted on the very same substantial questions of law which were considered in the judgment dated 30.08.2024. The Counsel on either side made additional submissions on 15.10.2024. Hence this revised judgment is passed incorporating consideration of the additional contentions made by the respondent.

3. 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).

4. 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.

5. 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.

6. 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 the 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.

7. When the complaint was pending enquiry, the K-RERA by its order dt 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