IMPORTANT POINT
The court ruled that an Occupancy Certificate issued before the Real Estate Act's enforcement is conclusive, exempting the project from registration requirements.

JUDGMENT :

1. The appellants were the respondents 1 to 3 in Complaint No. 58/2021 before the Kerala Real Estate Regulatory Authority (for short ‘the K-RERA’) filed by the 1^st respondent/Apartment Owners Association. The 2^nd respondent/Allottee also had filed Complaint No.113/2021 against the appellants.

2. The K-RERA considered the maintainability of the complaints and by its Order dated 06.10.2021 dismissed both the complaints holding that the Project by name ‘Kannur Heights Apartments’ was completed in the year 2009 and Occupancy Certificate was obtained on 29.08.2009 prior to the commencement of the Real Estate (Regulation and Development) Act, 2016 (for short ‘the Act’).

3. The complainant in Complaint No.58 alone filed Appeal before the Appellate Tribunal as REFA No.4/2022. The complainant in Complaint No.113/2021 filed A.R.No.113/2021 in this Court to initiate arbitration proceedings for redressal of his grievance and this Court by Order dated 25/11/2022 dismissed Arbitration Request holding that since the said complainant has already approached the K-RERA, he has waived his right to invoke the provisions of the Arbitration and Conciliation Act, 1996.

4. The Appellate Tribunal allowed REFA No.4/2022 by Order dated 07.07.2022 remanding the matter back to the K-RERA holding that Ext.B1 Occupancy Certificate is not conclusive Occupancy Certificate and it is only a conditional Occupancy Certificate since it is mentioned in Ext.B1 that terms and condition in the Consent To Establish issued by the Pollution Control Board should strictly be followed and that whether the respondents have complied with the conditions in Ext.B1 before 01.05.2017 is matter to be considered by the K-RERA in order to treat Ext.B1 as conclusive Occupancy Certificate as defined under the Act. The matter was remanded to consider the following issues.

1. Whether the conditions mentioned in Ext.B1 occupancy certificate dated 29/08/2009 are complied with by the respondents? If complied, is it before 1/5/2017 or later?

2. Whether the respondents in both the complaints who are legal heirs of deceased Sivaraj, the individual promoter of the project, stepped into the shoes of him after his death and became promoters to shoulder the liability of the project?

3. Whether the complainant in Complaint No.58/2021 is entitled to seek the reliefs sought for in the complaint?

5. Even though the Complainant in Complaint No.113/2021 did not prefer any appeal, since the entire Order of the K-RERA is set aside, the Appellate Tribunal ordered the K-RERA to give notice to the Complainant in Complaint No.113/2021 and to give an opportunity to him to participate in the proceedings and let in evidence. In view of this Order, the Order in Complaint No.113/2021 is also virtually set aside, remanding the matter to the K-RERA.

6. This Court admitted this Appeal on the following Substantial Questions of law.

1. Whether the conclusiveness of Ext.B1 document dated 31.07.2009 can be tested in the light of the definition of occupancy certificate contained in Section 2(zf) of the Real Estate (Regulation and Development) Act, 2016, which came into force on 01.05.2017 ?

2. Whether the appellate authority was justified in proceeding on the basis that Ext.B1 is not a conclusive occupancy certificate but only a conditional occupancy certificate?

3. Whether the lower appellate authority could have restored complaint No.113/2021 to file when the order in that case was not appealed against ?

4. Whether a complaint could be entertained with respect to a project that was completed before the Real Estate (Regulation and Development) Act, 2016 came into force on 01.05.2017, when Section 3(2)(b) of RERA Act stipulates the exemption for the registration of the building under the Act the RERA has no application on completed projects;

5. Whether the legal heirs of the sole developer of the project could be fastened with the liability regarding a completed project when there is no privity of contract between them and