JUDGMENT

Dated this the 18th day of January, 2024 This miscellaneous second appeal has been filed under Section 58(1) of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as 'the RERA Act, 2016', for convenience) read with Section 100 of the Code of Civil Procedure (hereinafter referred to as 'CPC', for short) at the instance of the original complainant in complaint No.33/2021 on the files of the Kerala Real Estate Regulatory Authority, Thiruvananthapuram. He assails the order in REFA No.57/2022 dated 09.11.2023 on the files of the Kerala Real Estate Appellate Tribunal, Ernakulam. The respondents herein are the respondents in the original complaint.

2. Heard the learned counsel for the appellant as well as the learned counsel appearing for the respondents in detail.

3. I shall refer the parties in this miscellaneous second appeal as 'complainant' and 'respondents' for convenience.

4. As per order dated 20.12.2023, this second appeal got admitted on raising the following substantial question of law:

“(i) Whether the Appellate Tribunal is justified in passing an open remand, requiring the entire proceedings to start afresh, since the only lacuna to be found in the order of the authority is the absence of the Chairman on the date of the final hearing of the matter?”

5. On the facts of this case, the Kerala Real Estate Regulatory Authority, Thiruvananthapuram, passed an order on 04.07.2022 in complaint No.33/2021 and when the matter was taken up before the Appellate Tribunal in REFA No.57/2022, an illegality had been pointed out, stating that the Chairman of the Regulatory Authority did not hear the matter and the Member alone heard the matter, though both of them delivered the order.

6. The Appellate Tribunal found it as a valid contention, presumably, violation of the principles of natural justice. However, in the operative portion, the appellate authority ordered as under:

“In the result, the Order dated 4/7/2022 of the K-RERA in Complaint No.33/2021 which is under challenge in this appeal is set aside, and the case is remanded to K-RERA for enquiry and procedure afresh according to law. The K-RERA is directed to dispose of the matter afresh within two months from the date of receipt of a copy of this order. Office will immediately communicate a copy of the order to the K-RERA.”

7. Now the complainant is aggrieved by the operative portion of the order, which seems to be a direction to the Regulatory Authority to go for an 'enquiry and procedure afresh' relegating the authority to adduce fresh evidence in a case where parties already adduced evidence in this matter and the only dispute raised before the Appellate Tribunal is non-hearing of the matter by the Chairman.

8. At the time of hearing of this second appeal, the learned counsel appearing for the respondents submitted that there was omission on the part of the Regulatory Authority to mark some documents placed by the respondents. Therefore, those documents may also to be read in evidence along with the evidence already adduced and the matter may be heard and disposed of on the said evidence.

9. The learned counsel appearing for the complainant also did not oppose marking of those documents already produced and hearing of this matter on the basis of the evidence already recorded, including the additional documents submitted to be produced earlier.

10. On analysis of the matter in dispute, the grievance projected by the respondent before the Appellate Tribunal is non-hearing of the matter by the Chairman of the Regulatory Authority, but the Appellate Tribunal was oblivious or lost sight of the exact grievance projected and passed an order directing the Regulatory Authority to go for an 'enquiry and procedure afresh', so as to comply both as mandatory, being conjunctive in its operation. In fact, when the grievance addressed before the Appellate Tribunal is non-hearing of the appeal by the Chairman of the Regulatory Authority, the remand order should not b