The court established that deemed occupancy granted prior to the enactment of the Real Estate Act means registration under it is not mandatory for ongoing projects, setting aside conflicting orders.

JUDGMENT

The petitioner has approached this Court seeking to quash Exts.P11 and P12.

2. It is averred that the petitioner is a company engaged in the business of development and construction of multi storied building. The petitioner constructed a multi storied building with basement plus 7 floors, after obtaining Ext.P1 building permit in the name of the land owner on 06.03.2008. Ext.P3 completion certificate was submitted by the petitioner on 28.02.2017. Thereafter there was no communication from the respondent Corporation. The petitioner would contend that after completion of 15 days, the petitioner is deemed to have obtained the occupancy for the building. Since the occupancy certificate was not issued in a physical form, the petitioner has approached this Court filing W.P.(C)No.30033 of 2021 through the land owner. Three complaints were raised by the occupants before the authority to which the petitioner has filed their objection stating that this is not an ongoing project at the time of introduction of the Kerala Real Estate Regulatory Authority in Kerala and therefore, the complaints are not maintainable. It is seen that Exts.P7 to P10 proceedings are in respect of the complaints raised by the three occupants. While so, Ext.P7 show cause notice was issued by the respondent, to which Ext.P8 reply was filed by the petitioner. Ext.P9 is the interim order passed by the respondent directing to file an affidavit by the petitioner. Pursuant to which Ext.P10 affidavit was filed. While so, Ext.P11 order was issued, wherein the petitioner was directed to register the project within 15 days, imposing a penalty of 100% of the registration fee. It was followed by the issuance of Ext.P12 order. It is aggrieved by the same that the petitioner has approached this Court.

3. The petitioner would submit that this Court in W.P.

(C)No.30033 of 2021, by the judgment dated 25.03.2024, has declared that the applicant is entitled for deemed occupancy in respect of the building, as on 28.02.2017. The said date being prior to the commencement of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as “the Act, 2016”), which came into force only on 01.05.2017, the provisions of the Act, 2016 are not applicable to the subject project and therefore, the petitioner cannot be compelled to have a registration as mandated under Section 3 of the Act, 2016.

4. A detailed counter affidavit has been filed by the respondent wherein it is stated that Ext.R1(a) show cause notice was issued to the petitioner, to which a reply was filed by the petitioner. Since the reply was found to be not satisfactory, Ext.P11 proceedings were initiated directing the petitioner to register the project with the Kerala Real Estate Regulatory Authority within 15 days, on a specific finding that the occupancy certificate has not been issued so far.

5. Section 3 of the Act, 2016 deals with ‘Prior registration of real estate project with Real Estate Regulatory Authority’, which mandates that no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, in any real estate project, without registering the real estate project with the Real Estate Regulatory Authority established under the Act. The proviso to mandates that projects that are ongoing on the date of commencement of this Act and for which the completion certificate has not been issued, the promoter shall make an application to the Authority for registration of the said project within a period of three months from the date of commencement of the Act. Rule 3 of the Kerala Real Estate (Regulation and Development) Rules, 2018 (hereinafter referred to as “the Rules, 2018”), deals with ‘Registration of Real Estate Proj