High Court of KeralaSingle JudgeWrit petition disposed of; interim order to con...
P.A. JINAS v. STATE OF KERALA & ORS
Case / Petition Number:WP(C) No. 19306 of 2021
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- P. V. Kunhikrishnan, J.
- Judgment Date
- 2021-12-08
- Court Decision / Holding
- The writ petition is disposed of. The court notes the availability of an appeal under Section 44 of the Real Estate (Regulation & Development) Act, 2016 and directs that the petitioner may challenge Ext.P11 before the appellate authority within two weeks from receipt of a copy of the judgment. The appellate authority will consider the appeal and pass orders in accordance with law. The interim order staying Ext.P11 will continue until the appeal is finally disposed of by the appellate authority, subject to the respondents' right to move to vacate the stay. All contentions of the petitioner and respondents are kept open. The court also directs that the appeal itself should be disposed within 60 days under Section 44(5).
- Final Disposition
- Writ petition disposed of; interim order to continue; petitioner to file appeal under Section 44; appellate authority to decide; all contentions left open.
Parties to the Case
Appellants / Petitioners
- P.A. Jinas
Respondents
- State of Kerala represented by the Secretary to Government, Local Self Government (IB) Department, Secretariat, Thiruvananthapuram-695001
- Thrikakkara Municipality, Kakkanad P.O., Ernakulam-682030, represented by its Secretary
- Kerala Real Estate Regulatory Authority (KRERA) TC 25/1379, CRA D-112, Near Pentecostal Church, Plamoodu-Charachira Road, Trivandrum-695003, represented by its Secretary (Technical and Administration)
- SANTHOSH PRABHAKARAN, Kathaliparambil, Allapra P.O., Perumbavoor, Ernakulam – 683542
- VINI SANTHOSH, Kathalipparambil, Allapra P.O, Perumbavoor, Ernakulam - 683542
Legal Representation & Advocates
Counsels for Petitioners
- • SANTHOSH MATHEW
- • VIJAY V. PAUL
- • GOKUL
- • ASOK
- • ANANDAPADMANABHAN
- • UNNIKRISHNAN
- • SHERYL ELIZABATH SEBASTIAN
- • WAFA KHATHEEJA
Counsels for Respondents
- • S. Jamal
- • C. M. Nazer
Case Synopsis & Summary
The writ petition, filed by P.A. Jinas, challenges Ext.P11, an order under the Real Estate (Regulation & Development) Act, 2016 (RERA). The petitioner seeks to set aside Ext.P11 and argues that Ext.P8 complaints under the RERA Act relating to enforcement of contractual obligations arising from Exts. P2 and P3 are not maintainable, and that the RERA Act should not apply to agreements executed before its coming into force. The petition also contends that Section 18 of the RERA Act should not apply to pre-enactment agreements and invokes Article 226 to challenge the order. The main issue, however, is the propriety of Ext.P11. The court notes that there exists an efficacious alternative remedy by way of an appeal under Section 44 of the RERA Act and that, in the circumstances, the writ petition should be disposed of with limited interference. The judgment directs that the petitioner may file an appeal challenging Ext.P11 before the appellate authority within two weeks from receipt of a copy of the judgment, and that the appellate authority will consider and decide the matter in accordance with law. The interim order staying Ext.P11 will continue until the appeal is finally disposed of, with the respondents free to seek vacatur. All contentions are left open. Exhibits P1–P19 pertain to permits, agreements, payments, occupancy certificates, complaints, and interim orders. The court emphasizes preserving the status quo while directing recourse to appellate remedies.
Provisions of Law Cited
Real Estate (Regulation & Development) Act, 2016 (RERA Act)Section 44 of the Real Estate (Regulation & Development) Act, 2016Section 44(5) of the Real Estate (Regulation & Development) Act, 2016Section 18 of the Real Estate (Regulation & Development) Act, 2016Article 226 of the Constitution
Submissions & Arguments
Contentions of Appellants / Petitioners
Not stated in the document.
Contentions of Respondents
Not stated in the document.
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**WEDNESDAY, THE 8[TH] DAY OF DECEMBER 2021/ 17TH AGRAHAYANA, 1943**
## **WP(C) NO. 19306 OF 2021**
## **PETITIONER/S:**
**P.A. JINAS AGED 50 YEARS SON OF LATE ABDUL RAHMAN, C.C.35/514, GALAXY HOUSE, S.I.U.P SCHOOL LANE, DESHABHIMANI ROAD, KALOOR P.O., ERNAKULAM, PIN-682017.**
**BY ADVS. SANTHOSH MATHEW VIJAY V. PAUL GOKUL ASOK ANANDAPADMANABHAN UNNIKRISHNAN SHERYL ELIZABATH SEBASTIAN WAFA KHATHEEJA**
## **RESPONDENT/S:**
**1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT (IB) DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001.**
**2 THRIKKAKARA MUNICIPALITY KAKKANAD P.O., ERNAKULAM-682030, REPRESENTED BY ITS SECRETARY.**
**3 KERALA REAL ESTATE REGULATORY AUTHORITY (KRERA) TC 25/1379, CRA D-112, NEAR PENTACOSTAL CHURCH, PLAMOODU-CHARACHIRA ROAD, TRIVANDRUM-695003, REPRESENTED BY ITS SECRETARY (TECHNICAL AND ADMINISTRATION)**
**4 SANTHOSH PRABHAKARAN, KATHALIPARAMBIL, ALLAPRA P.O,**
**WP(C) NO. 19306 OF 2021**
**2**
**PERUMBAVOOR, ERNAKULAM – 683542**
**VINI SANTHOSH,**
**5**
**KATHALIPARAMBIL, ALLAPRA P.O, PERUMBAVOOR, ERNAKULAM - 683542**
**BY ADVS. S.JAMAL C.M.NAZAR**
## **OTHER PRESENT:**
**SMT.DEEPA NARAYANAN, SR.GP**
**THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(C) NO. 19306 OF 2021**
**3**
# **P.V.KUNHIKRISHNAN, J. =================== WP(C) No. 19306 OF 2021 =================== Dated this the 08[th] day of December 2021**
## **J U D G M E N T**
## The above of writ petition is filed with the following
## prayers;
“ i. Call for the records relating to Ext.P11 and set aside the same by issue of a writ of certiorari or such other appropriate writ, direction or order;
ii. Issue a writ of mandamus or any other appropriate writ, order or direction declaring that Ext.P8 complaints filed under the RERA Act 2016 seeking for enforcement of the contractual obligations arising out of the agreement entered into by the parties as per Ext. P2 and P3 are not maintainable.
iii. Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the RERA Act 2016 shall not apply in respect of agreements executed between parties before the coming into force of the RERA Act 2016.
iv. Issue any appropriate writ, order or direction under Article 226 of the Constitution declaring that Section 18 of the RERA Act 2016 shall not apply to agreements executed between the parties prior to the
**WP(C) NO. 19306 OF 2021**
**4**
enactment of the RERA Act 2016.
v. Issue such other appropriate writ, order or direction which this Hon'ble Court may deem fit and just in the circumstances of the case. ”
2. The main challenge in this writ petition is against Ext.P11 order. Admittedly an appeal is maintainable against Ext.P11 order under Section 44 of the Real Estate (Regulation & Development) Act, 2016. In such circumstances, according to me, when there is an alternative remedy available to the petitioner, the petitioner can file an appeal before the appellate authority challenging Ext.P11. All the contentions of the petitioner and respondents are left open. It is bring to the notice of this Court by the learned counsel for the petitioner that, an interim order was passed by this Court on 16.09.2021 and the same is in force even now. The interim order can be continued till the appeal is disposed of because as per Section 44 (5) of the Real Estate (Regulation & Development), Act 2016, the appeal itself is to be disposed
**WP(C) NO. 19306 OF 2021**
**5**
of within 60 days. In such circumstances, the interim order already granted by this Court can be continued till the appeal is finally disposed of by the appellate authority.
Therefore, this writ petition is disposed of with the following manner;
1. The petitioner is free to challenge Ext.P11 order before the appellate authority within two weeks from the date of receipt of a copy of this judgment.
2. Once such an appeal is received, the appellate authority will consider the same and pass appropriate orders in it, in accordance to law.
3. The interim order of stay of Ext.P11 will continue till the appeal is finally disposed of by the appellate authority. But, I make it clear that, the respondents are free to file appropriate application before the appellate authority to vacate the same and the appellate authority is free to pass appropriate orders in it, in accordance to law.
**WP(C) NO. 19306 OF 2021**
**6**
4. All the contentions of the petitioner and respondents
are left open.
**Sd/-**
**P.V.KUNHIKRISHNAN JUDGE**
LU
**WP(C) NO. 19306 OF 2021**
**7**
## **APPENDIX OF WP(C) 19306/2021**
**PETITIONER EXHIBITS**
**EXHIBIT P1**
**TRUE COPY OF THE REVISED BUILDING PERMIT DATED 12.11.2013 ISSUED BY THE 2ND RESPONDENT.**
- **EXHIBIT P2**
**TRUE COPY OF THE AGREEMENT FOR SALE DATED 27.09.2013 BETWEEN THE 4TH AND 5TH RESPONDENTS AND M/S.GALAXY HOMES.**
- **EXHIBIT P3 TRUE COPY OF THE AGREEMENT FOR CONSTRUCTION DATED 27.09.2013 BETWEEN THE 4TH AND 5TH RESPONDENT AND COMPANY.**
- **EXHIBIT P4 TRUE COPY OF THE FINAL BILL DATED 11.04.2018.**
**EXHIBIT P5 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 15.03.2021.**
- **EXHIBIT P6 DETAILED STATEMENT OF PAYMENTS MADE BY THE 4TH AND 5TH RESPONDENTS.**
- **EXHIBIT P7 COPY OF THE COMPLAINT FILED BY 4TH AND 5TH RESPONDENTS NUMBERED AS 184 OF 2020 WITHOUT ANNEXURES.**
- **EXHIBIT P8 COPY OF THE AMENDED COMPLAINT DATED 27.03.2021.**
- **EXHIBIT P9 TRUE COPY OF THE DETAILED OBJECTIONS FILED BY THE PETITIONER.**
**EXHIBIT P10 TRUE COPY OF THE INTERIM ORDER DATED 25.03.2021.**
- **EXHIBIT P11 TRUE COPY OF THE ORDER DATED 26 AUGUST 21**
**WP(C) NO. 19306 OF 2021**
**8**
**IN CC 184 OF 2020.**
**EXHIBIT P12 TRUE COPY OF NOTIFICATION G.O. (P)NO.65/2019/LSGD DATED 05.10.2019.**
**EXHIBIT P13 PHOTOGRAPHS OF THE BUILDING GALAXY PINE COURT BLOCK-1.**
**EXHIBIT P14 PHOTOGRAPH OF THE APARTMENT C-3 PURCHASED BY THE 4TH AND 5TH RESPONDENTS.**
- **EXHIBIT P15 TRUE COPY OF THE STOP MEMO DATED 21.08.2014 ISSUED BY THE VILLAGE OFFICE, KAKKANAD.**
- **EXHIBIT P16 TRUE COPY OF THE SETTLEMENT DATED 29.06.2017.**
- **EXHIBIT P17 TRUE COPY OF THE INTERIM ORDER DATED 17.08.2021 IN WP(C)NO.17083/2021.**
- **EXHIBIT P18 TRUE COPY OF THE INTERIM ORDER DATED 07.05.2021 IN WP(C)NO.11190/2021.**
- **EXHIBIT P19**
**TRUE COPY OF THE INTERIM ORDER DATED 22.06.2021 IN WP(C)NO.12546/2021.**
**// True Copy // PA To Judge**