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2023 Supreme(Online)(KER) 7271
HIGH COURT OF KERALA
K. Babu, J
TATA REALTY AND INFRASTRUCTURE LIMITED – Appellant
Versus
VIVEK KRISHNAMOORTHY – Respondent
MSA 6 2021
SRI.JOSEPH MARKOSE (SR.), SRI.ABRAHAM JOSEPH MARKOS, SRI.ISAAC THOMAS, SRI.P.G.CHANDAPILLAI ABRAHAM, SRI.ALEXANDER JOSEPH MARKOS, SRI.SHARAD JOSEPH KODANTHARA, SRI.K.S.BHARATHAN, SRI.ALPHIN ANTONY, SRI.AADITHYAN S.MANNALI, SRI.VISAKH ANTONY, SRI.ABEL ANTONY, SRI.CHRISTINE MATHEW, SMT.RANCE R.
The judgment clarified the limitations of the appellate jurisdiction of K-REAT and its authority to direct K-RERA contrary to public notices.
Headnote:
Regulation - Real Estate - Real Estate (Regulation and Development) Act - Sections 18(1), 43 - The court assessed the jurisdictional limits of K-RERA and K-REAT under the Real Estate Act, leading to the conclusion that the Appellate Tribunal's directions were beyond its authority.
Fact of the Case:
The dispute arose from an agreement for apartment purchase where the parties sought the return of the advance payment. The K-RERA dismissed their complaint, leading to an appeal to the K-REAT, which remitted the case for reconsideration.
Issues: The key issues revolved around the authority of K-RERA and K-REAT regarding the challenge of public notices and the directive powers of the Appellate Tribunal.
Ratio Decidendi: The court emphasized that the K-REAT could not issue guidelines or directives to K-RERA, as it only had appellate jurisdiction under the Real Estate Act.
Final Decision: The MSA was closed, allowing K-RERA to proceed according to law as directed by K-REAT.
JUDGMENT
The challenge in this MSA is to the order dated 29.09.2021 passed by the Kerala Real Estate Appellate Tribunal (K-REAT), Ernakulam in REFA No.19/2021. The sole respondent before the Tribunal is the appellant. On 14.05.2018, the parties entered into an agreement for the purchase of an apartment. Respondent Nos. 1 to 3 paid a sum of Rs.40,86,685/- as advance. Later, they claimed the advance amount with interest from the promoter. They filed Complaint No.207/2020 before the Kerala Real Estate Regulatory Authority (K-RERA). The promoter resisted the claim on the ground that the K-RERA is not the proper authority to decide the claim.
2. After hearing both sides, K-RERA found that it has no authority or jurisdiction to order return of advance amount under Section 18 (1) of the Real Estate (Regulation and Development) Act .
Accordingly, the complaint was dismissed.
3. The said order was challenged before the Tribunal. The Tribunal set aside the order of the K-RERA and remitted the matter for a decision afresh in terms of the common order dated 12.08.2021 in REFA Nos. 21 and 27 of 2021.
4. This order is challenged in this MSA. This Court framed the following substantial questions of law:-
“(i) Whether a public notice issued by the K-RERA can be the subject matter of challenge in an appeal before the K-
REAT?
(ii) Whether the Appellate Tribunal exercising powers under Section 43 of the Act can simply 'ignore' a public notice issued by the jurisdictional K-RERA and proceed to issue directions to the contrary?
(iii) Whether the Appellate Tribunal, while remanding back an issue to the K-RERA, can dictate to it how the issue is to be considered, and disposed of?
(iv) Can K-REAT entertain an appeal against a public notice, which was admittedly not challenged in the complaint before the K-RERA?
(v) Does not Act empower the K-REAT, which has only appellate jurisdiction, to issue guidelines to the K-RERA, or for the matter, the general public?”
5. Heard both sides.
6. It is submitted from the Bar that the K-RERA has withdrawn public notices dated 27.12.2019 and 17.09.2020 and the appellant has registered Tower 5 of the Project.
7. Having regard to these developments, the questions framed by this Court need no further consideration in this case. The K- RERA may proceed further in accordance with law as directed by the Appellate Authority.
The MSA stands closed.
