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2025 DIGILAW 509 (KER)

Sahara Prime City Ltd v. Kerala Real Estate Regulatory Authority

2025-03-07

C.S.DIAS

body2025
JUDGMENT : C.S.DIAS, J. The writ petition is filed to quash Ext.P4 order passed by the Kerala Real Estate Regulatory Authority, Thiruvananthapuram ('Authority', in short). 2. The petitioner is one among the Sahara Group of Companies. The petitioner had started a real estate project by name “Sahara Grace-Kochi” in the year 2008. The 2 nd respondent is an Association of some of the investors of Tower nos. B-1 and B-2. The 2 nd respondent filed Ext.P1 complaint before the Authority for various reliefs. The petitioner filed Ext.P2 preliminary objection raising the question of maintainability of the complaint. The petitioner had commenced the construction of the apartment complex in the year 2008 and completed the entire construction work in 2013. While the construction was in progress, by Ext.P3 order, the Honourable Supreme Court directed the Sahara Group of Companies not to part with any movable or immovable properties until further orders. Notwithstanding the said order, the Authority has passed Ext.P4 order, directing the petitioner to register the real estate project within 30 days from the date of order and to clear the debris and vegetations in the property. Et.P4 order is arbitrary, unjust and unreasonable. Hence, the writ petition. 3. The 2 nd respondent has filed a counter affidavit, inter-alia, contending that the petitioner has an alternative and efficacious statutory remedy under Section 43 (5) of the Real Estate (Regulation and Development) Act, 2016 ('Act' in short) to prefer an appeal before the Appellate Authority. It is without invoking the statutory remedy that the petitioner has approached this Court. Therefore, this Court may not entertain the writ petition and exercise its plenary powers under Article 226 of the Constitution of India. In addition to the same, in view of Ext.R2(d) order passed by the Honourable Supreme Court, it has been specifically clarified that Ext.P3 order would not stand in the way of the respective Authority/Forum considering complaints like Ext.P1. Hence, the writ petition may be dismissed. 4. Heard; the Sri.Basil Mathew, the learned counsel for the petitioner, Sri.C.M.Nazar, the learned counsel for the 1 st respondent Authority and Sri.Paul Kuriakose, the learned counsel for the 2 nd respondent. 5. Hence, the writ petition may be dismissed. 4. Heard; the Sri.Basil Mathew, the learned counsel for the petitioner, Sri.C.M.Nazar, the learned counsel for the 1 st respondent Authority and Sri.Paul Kuriakose, the learned counsel for the 2 nd respondent. 5. The 2 nd respondent has filed Ext.P1 complaint seeking various reliefs, including to direct the petitioner to apply for approval, comply with the provisions of the Act and execute the registered conveyance deed in favour of the respective members of the 2 nd respondent. The petitioner had filed Ext.P2 preliminary objection, inter- alia, contending that in view of Ext.P3 order passed by the Honourable Supreme Court they are precluded from proceeding with the project. 6. Notwithstanding the preliminary objection filed by the petitioner, the Authority has passed Ext.P4 order directing as follows: 1) The respondents shall register the real estate project “Sahara Grace Kochi” on Seaport-Airport Road, Chittethukara, Kakkanad, Kochi in Thrikkakara Municipality, covered by Ext.X1 permit, under Section 3 of the Act, 20616 within 30 days from the date of this order. 2) The respondents are directed to clear the project site of all debris and vegetation, clean the apartments and common areas of B1 and B2 towers, reported as complete, install the equipment's admittedly stored at site and report the status of the project before the next posting date. 3) The complainants are directed to submit details of the members of the Complainant Association, their bookings, payments made and balance payment due to enable this Authority to pass final orders in the complaint”. 7. It is apposite to refer to Section 43 of the Act, which reads as follows: “43. Establishment of Real Estate Appellate Tribunal.— (1) The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the — (name of the State/Union territory) Real Estate Appellate Tribunal. (2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be. (3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. (2) The appropriate Government may, if it deems necessary, establish one or more benches of the Appellate Tribunal, for various jurisdictions, in the State or Union territory, as the case may be. (3) Every bench of the Appellate Tribunal shall consist of at least one Judicial Member and one Administrative or Technical Member. (4) The appropriate Government of two or more States or Union territories may, if it deems fit, establish one single Appellate Tribunal: Provided that, until the establishment of an Appellate Tribunal under this section, the appropriate Government shall designate, by order, any Appellate Tribunal functioning under any law for the time being in force, to be the Appellate Tribunal to hear appeals under the Act: Provided further that after the Appellate Tribunal under this section is established, all matters pending with the Appellate Tribunal designated to hear appeals, shall stand transferred to the Appellate Tribunal so established and shall be heard from the stage such appeal is transferred. (5) Any person aggrieved by any direction or decision or order made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter: Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard. Explanation.—For the purpose of this sub-section “person” shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force”. 8. Section 43(5) of the Act undoubtedly provides for an appeal against any direction or order passed by the Authority or Adjudicating Officer under the Act before the Appellate Tribunal. 9. The sheet anchor of the argument of the learned counsel for the petitioner was that, in view of Ext.P3 order passed by the Honourable Supreme Court, the petitioner is prohibited to go ahead with the project. 9. The sheet anchor of the argument of the learned counsel for the petitioner was that, in view of Ext.P3 order passed by the Honourable Supreme Court, the petitioner is prohibited to go ahead with the project. Prima facie, I find the said contention to be untenable in the light of Ext.R2(d) clarificatory order passed by the Honourable Supreme Court, permitting the parties to agitate their disputes before the respective Authorities/Forums. 10. On a consideration of the above background facts, prima facie, I do not find any illegality in Ext.P4 order especially in view of the mandate under Section 3 of the Act, that any ongoing project/incomplete project which has not received completion certificate have to be mandatorily registered as per the principles laid down in Newtech Promoters and Developers Pvt. Ltd. vs. State of U.P. and others [ 2021 KHC 6692 ]. 11. In the above conspectus, I am not inclined to entertain the writ petition and exercise the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, when the petitioner has an alternative statutory remedy under Section 43(5) of the Act. Resultantly, the writ petition is dismissed, which is without prejudice to the right of the petitioner to challenge Ext.P4 order before the Appellate Authority. If the petitioner files an appeal along with an application to condone delay in view of the pendency of the writ petition before this Court from 02.02.2024, it would be upto the Appellate Authority to consider and dispose of the application and the appeal in accordance with law, untrammelled by any observation in this judgment.