Siji Jacob and AISLE Isac alias AISLE Jacob v. Ultima Builders and Developers Pvt. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ## `THE HONOURABLE MR. JUSTICE T.R.RAVI` ``` THURSDAY, THE 10[TH] DAY OF AUGUST 2023 / 19TH SRAVANA, 1945 ``` ## `MSA NO. 3 OF 2022` ``` REFA NO.45 OF 2021 OF KERALA REAL ESTATE APPELLATE TRIBUNAL, ERNAKULAM ``` ``` COMPLAINT NO.1/2021 IN KERALA REAL ESTATE REGULATORY AUTHORITY, ``` ## `THIRUVANANTHAPURAM` ## `APPELLANTS/RESPONDENTS/COMPLAINANTS:` - `1 SIJI JACOB, AGED 48 YEARS, S/O.CHACKO PHILIP, PEEDIYAKAL HOUSE, KAVIYOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN-689 582.` - `2 AISLE ISAC ALIAS @ AISLE JACOB, W/O.SIJI JACOB, PEEDIYAKAL HOUSE, KAVIYOOR VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT, PIN-689 582.` ``` BY ADVS. P.HARIDAS BIJU HARIHARAN SHIJIMOL M.MATHEW P.C.SHIJIN RISHIKESH HARIDAS ``` ## `RESPONDENTS/APPELLANTS/RESPONDENTS:` - `1 ULTIMA BUILDERS AND DEVELOPERS PVT. LTD., REPRESENTED BY ITS DIRECTOR M.C.M. NAJEEB, ULTIMA BUILDERS & DEVELOPERS, NILAMPATHINJAMUGAL, MLA ROAD, NILAMPATHINJAMUGAL, RAJAGIRI VALLEY, KAKKANAD, ERNAKULAM, PIN-682 039.` ``` 2M.C.M.NAJEEB, DIRECTOR, ULTIMA BUILDERS & DEVELOPERS, NILAMPATHINJAMUGAL, MLA ROAD, NILAMPATHINJAMUGAL, RAJAGIRI VALLEY, KAKKANAD, ERNAKULAM, PIN-682 039. ``` ``` BY ADVS. SUNIL SHANKER SANDHRA.S ``` ``` THIS MISC. SECOND APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 10.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MSA NO. 3 OF 2022 ``` ``` 2 ``` ## **T.R. RAVI, J.** ## **---------------------------------** M.S.A No.3 of 2022 ---------------------------------------------- Dated this the 10[th] day of August, 2023 ## **JUDGMENT** The appeal has been preferred against the order dated 08.03.2022 of the Kerala Real Estate Appellate Tribunal in REFA No.45 of 2021. The appellants had preferred a complaint before the Real Estate Regulatory Authority stating that the appellants had entered into an agreement with the respondents on 04.01.2011 for sale of a unit numbered as 12G and as per the agreement, the respondents were to provide a covered car park. It is submitted that despite several letters issued between 2011 and 2018, no covered car park has been provided and the respondents had only issued a letter permitting the use of an adjacent land for parking on a temporary basis. It is further submitted that even though there was an agreement for transfer of a covered car park, the sale deed does not take in the car parking space. According to the appellants, they had pointed out ``` 3 ``` ``` MSA NO. 3 OF 2022 ``` this aspect to the promoter and the promoter had assured that it will be rectified. The question to be considered is whether the project in which the appellants had purchased the apartment is an “ongoing project” on the appointed day so as to bring the project within the purview of the Real Estate (Regulation and Development) Act, 2016 (for short ‘the 2016 Act’). The respondents took the stand that the project had been completed even before the sale deed was executed and the buildings had been numbered as early as in 2010. It is hence submitted that the Act which came into effect only in 2016 will not apply to the project in question, even if the Act is to be treated as retroactive. The relevant dates for this purpose are as follows: The occupancy certificate had been obtained and building numbered on 08.09.2010. The agreement between the appellants and the respondents was executed on 04.01.2011, wherein the appellants had agreed to purchase the apartment for a consolidated sum of Rs. 35 lakhs, which includes Rs.2,25,000/- towards the undivided right in the land. The ``` 4 ``` ``` MSA NO. 3 OF 2022 ``` possession is stated to have been handed over on 17.05.2011. The sale deed was executed in favour of the appellants on 10.06.2011. Curiously, the sale deed does not state about the car parking space and the total consideration as per the sale deed is only Rs.21,36,600/- inclusive of Rs.2,25,000/- being the undivided share in the land. 2. I need not go into the reason for the huge reduction in the price within six months from the agreement for the sale. The fact remains that the Local Authority had issued occupancy certificate in 2010 itself. The counsel for the appellants submits that going by the decision in **M/s. Newtech Promoters and Developers Pvt.Ltd. v. State of UP & Others** [2021 KHC 6692] what is relevant is the issuance of the completion certificate as provided under Section 3 of the 2016 Act and so long as such a certificate has not been issued, the project is to be treated as an ongoing project, coming within the purview of the Act. Reliance is also placed on the decision of a learned Single Judge of this Court in **Alfa Ventures (P) Ltd. v. State of** ``` 5 ``` ``` MSA NO. 3 OF 2022 ``` **Kerala and Others** [2022 (5) KHC 157] wherein, this Court has held that the completion certificate contemplated in Section 3 of the 2016 Act is distinct from the completion certificate contemplated under Section Rule 22 of the Kerala Municipality Building Rules. The learned Judge had also elucidated on the scope and ambit of the term ‘on going project’. On facts, the promoter in **Alfa Ventures (Supra)** had completed the project in the year 2017 and occupancy certificate was issued on 24.05.2018. It was on that fact that it was contended that the project will not come within the purview of the Act and no registration is required for the project. The court held that the completion certificate for the project was issued only on 24.05.2018. It was observed that even if the contention that the construction of the project was completed prior to 01.05.2017 is accepted in its face value, that would not satisfy the twin requirement of the first proviso, of having completed the project and having submitted completion certificate prior to the date of commencement of the Act. ``` 6 ``` ``` MSA NO. 3 OF 2022 ``` 3. The Kerala Municipalities Act and the Building Rules framed thereunder do not contemplate the issuance of a completion certificate as such by the Municipality which is the competent authority going by the definition of ‘Competent Authority’ in the 2016 Act. Rule 22 of the Kerala Municipality Building Rules, 1999 states about the completion certificate, which would suggest that the completion certificate, is to be submitted by the owner after completion or development, or redevelopment of the land or construction or reconstruction. What is provided is, if such a certificate is submitted, the Secretary shall issue an occupancy certificate in the form annexed not less than 15 days from the date of receipt of the completion certificate. It also provides for a deemed occupancy if the occupancy certificate is not issued within 15 days. It would thus appear that as per the Kerala Municipalities Act and Rules, after completion of the project and supplying the necessary documents, what is issued is an occupancy certificate. The occupancy certificate is a certificate which is issued by the ``` 7 ``` ``` MSA NO. 3 OF 2022 ``` competent Authority under the 2016 Act. Section 2(zf) defines an occupancy certificate also. As per the definition, it is an occupancy certificate or such other certificate by, whatever name called, issued by the competent authority permitting occupation of any building, as provided under the local laws, which has the provisions for civic infrastructure such as water, sanitation and electricity. 4. In the case on hand, there is no dispute that an occupancy certificate had been issued even before the sale in favour of the appellants. The 2016 Act came into force six years after the issuance of the occupancy certificate. In normal course a completion certificate precedes an occupancy certificate and it is only in special situations that permission to occupy is granted by the Local Self Government even before the completion of the project. Such a situation does not arise in this case. It may be true that the appellants have a grievance that they did not get a car park. But that by itself cannot be a reason for saying that even after issuance of the occupancy certificate and assessment ``` 8 ``` ``` MSA NO. 3 OF 2022 ``` of the building to tax in 2010 and the building being occupied by the allottees for more than six years, it should be treated as an ongoing project after the coming into force of the 2016 Act. At any rate, the appellants who chose to get the sale deed executed without any reference to the car park which had been made mention in the agreement to sell that preceded the sale deed, cannot be heard to say that the project is not a completed project on the date of coming into force of the 2016 Act. The appellate Authority has considered the issue in detail and has found that the project is not an ongoing project. No interference is called for in this second appeal. The second appeal fails and is dismissed. **Sd/-** **T.R.RAVI JUDGE** mpm