Sivarman Shahphon Kuttiparambil v. Union of India and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 30TH DAY OF JANUARY 2020 / 10TH MAGHA, 1941** **WP(C).No.20319 OF 2019()** ## **PETITIONER:** **SIVARAMAN SHAHPHON KUTTIPARAMBIL AGED 45 YEARS,KUTTIPARAMBIL (ALUKATHARA) HOUSE, KALAPARAMBA, ARIPALAM POST, IRINJALAKUDA, THRISSUR DISTRICT, KERALA - 680 688.** **BY ADVS.** **SRI.AJIT G.ANJARLEKAR SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.GOVIND PADMANAABHAN** ## **RESPONDENTS:** **1 THE UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF HOUSING AND URBAN AFFAIRS, NIRMAN BHAWAN, MAULANA AZAD ROAD, NEW DELHI – 110 011. 2 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, 4TH FLOOR, SECRETARIAT ANNEX, THIRUVANANTHAPURAM - 695 001. 3 THE STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOUSING), MAIN BLOCK, 1ST FLOOR, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** **R1 BY ADV. MR.T.A.UNNIKRISHNAN, CGC R2 & R3 BY SPL. GOVERNMENT PLEADER SRI.C.M.NAZAR R1 BY SRI.P.VIJAYAKUMR, ASG.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** ## **W.P.(C)No.20319 of 2019** ## **JUDGMENT** Dated this the 30[th] day of January, 2020 ## **S.Manikumar, C.J.** Pursuant to the directions issued by the Hon'ble Supreme Court in the judgment dated 9.8.2019 in W.P.(C)No.43 of 2019 (Pioneer Urban Land and Infrastructure Ltd. and Another v. Union of India and Others) for constitution of Real Estate Regulatory Authority (RERA)and Appellate Tribunal, instant Public Interest Litigation is filed for a direction to the State of Kerala represented by the Principal Secretary, Local Self Government Department, Thiruvananthapuram and State of Kerala represented by the Additional Chief Secretary (Housing), Thiruvananthapuram (respondents 2 and 3 herein) to constitute the Real Estate Regulatory Authority (RERA), Adjudicating Authority and the Appellate Tribunal and to provide the requisite paraphernalia, office space, infrastructure and funds, within a time frame as deemed fit by this Hon'ble Court. 2. On 18.10.2019, this Court passed the following order: “Record of proceedings shows that the Honourable Division Bench of this court has directed Sri.C.M.Nazar, learned Special Government Pleader to appraise this court about the development of constitution of Real Estate Regulatory Authority (RERA). On this day, when the matter came up for further hearing, on behalf of respondent No.2, **3** ## **W.P.(C)No.20319 of 2019** Joint Secretary to Government of Kerala, Local Self Government (IB) Department has filed an affidavit stating that Government have issued notification in G.O.(P)No.65/2019/LSGD. dated 5[th] October, 2019 that in exercise of the powers conferred by sub-section (1) of Section 20 of the Real Estate (Regulation & Development) Act, 2016, Kerala Real Estate Regulatory Authority has to be established. In the affidavit, it is also stated that the Government have issued another notification in G.O.(P)No.66/2019/LSGD dated 5[th] October, 2019 by which members have appointed as whole time members of Kerala Real Estate Regulatory Authority. For brevity, said Government Order is extracted below: “GOVERNMENT OF KERALA Local Self Government (IB) Department NOTIFICATION G.O.(P)No.66/2019/LSGD. 5[th] October, 2019/19[th] Kanni 1195 S.R.O.No.726/2019 Thiruvananthapuram WHEREAS, in exercise of the powers conferred by sub-section (1) of section 20 of the Real Estate (Regulation and Development) Act, 2016 (Central Act 16 of 2016), the Kerala Real Estate Regulatory Authority has been constituted as per notification issued under G.O. (P)No.65/2019/LSGD dated 5[th] day of October 2019 and published as S.R.O.No.724/2019 in the Kerala Gazette Extraordinary No.2362 dated 9[th] day of October, 2019. Now, THEREFORE, in exercise of the powers conferred by Section 21 and 22 of the Real Estate (Regulation and Development) Act, 2016 (Central Act 16 of 2016), the Government of Kerala hereby appoint Shri.P.H.Kurian, Pullukottayil, ERA-61, TKD Road, Muttada P.O., Thiruvananthapuram as Chairman and the following persons as whole time Members of the Kerala Real Estate Regulatory Authority. **W.P.(C)No.20319 of 2019** **4** 1. Smt.Preetha P. Menon Flat No.2, Kunnanoli Apartments P.A.Achuthan Road, Merikkunnu P.O. Vellimadukunnu, Kozhikode. 2. Shri.Mathew Francis.C, Chief Engineer (Rtd), Kerala Public Works Department, TARA-337, Chembukkavu, General Hospital Road, Kunnukuzhi, Thiruvananthapuram. By order of the Governor, T.K.Jose, IAS Additional Chief Secretary to Government” 2. However, Sri.Ram Mohan.G, learned counsel for the petitioner submitted that Regulatory Authority has to be made functional. 3. On the request of the Government of Kerala for empanelling representatives for the Kerala Real Estate Regulatory Authority, steps have already been taken. 4. Sri.C.M.Nazar, learned Special Government Pleader to get instructions as to whether appropriate sanction is issued for making the Regulatory Authority functional and also with respect to the appellate authority. Post after two weeks.” 3. On 7.11.2019, submission was made by the learned Government Pleader that the appointment of the Adjudicating Officer as per Section 71(1) of the Real Estate (Regulation and Development) Act, 2016 was under consideration. So this Court directed the Secretary to **5** ## **W.P.(C)No.20319 of 2019** Government, Local Self Government Department to file a detailed status report as to the steps taken. 4. In the meanwhile, vide letter dated 10.1.2020, addressed to the Registrar, High Court of Kerala, Ernakulam, the Chairman, Kerala Real Estate Regulatory Authority has requested to provide certain details for appointment of one retired District Judge as an Adjudicating Officer of the Authority. Responding to the request, on 29.1.2020, the Registrar General has furnished the details to the Additional Chief Secretary & Member Secretary, Selection Committee, Real Estate Appellate Authority, Housing (PS) Department, Thiruvananthapuram. 5. Added further, Mr.C.M.Nazar, learned Special Government Pleader handed over a status report on the steps taken for constitution of Kerala Real Estate Regulatory Authority, appointment of other Member, status regarding appointment of Appellate Tribunal and appointment of Adjudicating Officer. 6. Learned Special Government Pleader submitted that as the data required by the Additional Chief Secretary & Member Secretary, Selection Committee, Real Estate Appellate Authority, Housing (PS) Department, Thiruvananthapuram has been furnished by the Registrar General, appointment would be made as expeditiously as possible. Insofar as the appointment of the Adjudicating Authority is concerned, learned Special **6** ## **W.P.(C)No.20319 of 2019** Government Pleader submitted that selection procedure including interview has been completed. As regards the appointment of the Judicial Member and Technical/Administrative Member in the Real Estate Appellate Tribunal, learned Special Government Pleader further submitted that meeting of the selection committee has to be convened and then a decision has to be taken. Status report reads thus: “ **Status Report to be filed in WP(C) No.20319/2019 filed by Sri.Sivaraman Shahphon, regarding the establishment of Kerala Real Estate Regulatory Authority and Real Estate Appellate Tribunal.** I. Present Stage of Constitution of Kerala Real Estate Regulatory Authority. The action taken so far by State of Kerala in constituting Kerala Real Estate Regulatory Authority is given below:- - As per G.O.(P)No.65/2019/LSGD dated 05.10.2019 (Notified as - S.R.O.No.724/2019 dated 09.10.2019 in Kerala Gazette Extraordinary) Government had constituted Kerala Real Estate Regulatory Authority. - As per G.O.(P)No.66/2019/LSGD dated 05.10.2019 (Notified as - S.R.O.No.726/2019 dated 09.10.2019 in Kerala Gazette Extraordinary) Sri.P.H.Kurian IAS (Rtd.) was appointed as the Chairperson, and Smt.Preetha P. Menon and Shri.Mathew Francis C. as whole time Members of the Authority. - Sri.P.H.Kurian IAS (Rtd.) has assumed charge on 10.10.2019 and - Smt.Preetha P. Menon on 11.10.2019. The other Member Shri.Mathew Francis C. has expressed his unwillingness to join in Kerala Real Estate Regulatory Authority. - The Authority started functioning in 5[th] Floor, Swaraj Bhavan, **7** ## **W.P.(C)No.20319 of 2019** Nanthencode, Thiruvananthapuram in October 2019. - As per G.O.(Rt)No.2462/2019/LSGD dated 05.11.2019 'Real Estate - Regulatory Fund Kerala' has been constituted as per sub section (1) of Section 75 of Kerala Real Estate (Regulation and Development) Act, 2016. - As per G.O.(Rt)No.2462/2019/LSGD dated 05.11.2019 sanction has - also been accorded to the Chairman, Kerala Real Estate Regulatory Authority to open appropriate Account such as Treasury Savings Bank Account or Account in any Nationalized or scheduled Bank in public sector and administer the Real Estate Regulatory Fund, as per Rule 22(q) of Kerala Real Estate (Regulation and Development) Rules, 2018. - As per G.O.(Rt)No.2593/2019/LSGD dated 18.11.2019 Smt.V. - Padma, Joint Secretary to Government, Law Department was appointed as Secretary (Legal) in Kerala Real Estate Authority on deputation basis for the smooth functioning of the office. - As per G.O.(Ms)No.145/2019/LSGD dated 18.11.2019 Government - had declared Thiruvananthapuram as the Head Quarters of Kerala Real Estate Regulatory Authority, as per Rule 24(1) of the Kerala Real Estate (Regulation and Development) Rules, 2018. - As per G.O.(Rt)No.8883/2019/Fin dated 11.11.2019, additional - expenditure to the tune of Rs. One Crore has been authorized under the Head of Account “2217-80-800-66-Real Estate Regulatory Authority (RERA) (Non Plan – Voted)” for meeting the establishment expenses of the Authority for the year 2019-20. - As per G.O.(Rt)No.2620/2019/LSGD dated 20.11.2019, sanction - has been accorded to release an amount of Rs.One Crore to Kerala Real Estate Regulatory Authority for meeting the establishment expenses for the year 2019-20. - As per G.O.(Rt)No.2715/2019/LSGD dated 30.11.2019 Sri.R.Pradeep **W.P.(C)No.20319 of 2019** **8** and Sri.Sibin Rajan, Deputy Town Planners of Town and Country Planning Department were appointed as Deputy Director (Technical) in Kerala Real Estate Regulatory Authority on Deputation basis. - As per G.O.(Rt)No.2763/2019/LSGD dated 05.12.2019, Sri.H. - Prasanth, Senior Town Planner, Town and Country Planning Department was appointed as Secretary (Technical and Administration) in the Authority on Deputation basis. - As per G.O.(Rt)No.2718/2019/LSGD dated 30.11.2019, the - procedure for appointment of Adjudicating Officer in the Authority proposed by the Chairman, KRERA was approved as per Section 71(1) of Real Estate Regulation and Development Act, 2016. - As per G.O.(Rt)No.2931/2019/LSGD dated 23.12.2019, - Government had declared the official emblem of KRERA as per Rule 24(3) of Kerala Real Estate (Regulation and Development) Rules, 2018. - The Hon'ble Chief Minister of Kerala has officially inaugurated the - functioning of the K-RERA on **01.01.2020** in a formal function held at Mascot Hotel, Thiruvananthapuram. ## **II. Appointment of other Member** The Selection Committee constituted as per G.O.(P)No. 88/2019/LSGD dated 09.12.2019 (S.R.O.No.956/2019 dated 09.12.2019) for the appointment of other member in KRERA met on 10.01.2020 has resolved the following:- - The Additional Chief Secretary, Department of Housing, Government of Kerala, who is ex-officio member of the Selection Committee, will act as the Member Secretary of the Selection Committee. - The Selection Committee had unanimously resolved to formulate procedure of its own for selection of the Member of the Kerala Real Estate Regulatory Authority. **9** ## **W.P.(C)No.20319 of 2019** - The Committee unanimously resolved to authorize the Member Secretary to notify and invite applications for appointment to the post of Member, Kerala Real Estate Regulatory Authority. - The Committee unanimously resolved and authorized the Member Secretary to give proper publicity with respect to the notification and invitation of application, through Government website, printed medias and other methods. The applications shall be invited so as to reach the Member Secretary at his office at the Government Secretariat, Thiruvananthapuram **on or before 07/02/2020** . - The Committee resolved that, the candidates can be permitted to submit their application in plane paper (without any prescribed form) supported by their personal details along with self attested copies of supporting credentials to prove their requisite qualifications and experience as stipulated in the relevant provisions of the Act and the Rules. - The Committee resolved to convene its next meeting on any convenient date after the last date notified for receipt of applications, for the purpose of scrutinizing the applications and to prepare the list of candidates eligible for consideration. Government will appoint the other Member in KRERA soon on receipt of the recommendation of the Selection Committee. ## **III. Status regarding appointment of Appellate Tribunal** As per Section 46 of the Real Estate (Regulation & Development) Act, 2016, the Chairperson of the Appellate Tribunal shall be appointed by the appropriate Government in consultation with the Chief Justice of High Court or his nominee. Accordingly Government had consulted Registrar General, High Court of Kerala for furnishing a panel of Hon'ble Judges for appointment as Chairperson **W.P.(C)No.20319 of 2019** **10** of Real Estate Appellate Tribunal. The Registrar General has furnished a panel of Hon'ble Judges, in the order of seniority, for consideration to the post of Real Estate Appellate Tribunal under Section 46(2) of the Real Estate (Regulation & Development) Act, 2016. Section 46(3) of the Act also stipulates that the Judicial Member and Technical or Administrative Member of the Appellate Tribunal shall be appointed by the appropriate Government on the recommendation of a Selection Committee consisting, inter alia, of the Chief Justice of the High Court or his nominee. Accordingly, State Government had constituted the Selection Committee as per G.O.(P) No.76/2019/LSGD dated 29.10.2019 (Notified as S.R.O.No.790/2019 dated 29.10.2019 in Kerala Gazette Extraordinary). The Selection Committee formally met on 23.11.2019 and as resolved by the Selection Committee, the Notification for appointment of Judicial Member and Administrative or Technical Member was published in leading dailies and Government website fixing the last date of receipt of applications as 21.12.2019, 5 PM. The second meeting of the Selection Committee was held on 10/01/2020. The Committee unanimously resolved to accept all application received as on the last date 21.12.2019. It is also resolved to authorize the Member Secretary (Additional Chief Secretary, Department Housing) to call for the Confidential Report in respect of the Retired Judicial officers from the Hon'ble High Court, Police report from the Superintendent of Police of the District concerned in respect of the Advocate applicants for the post of Judicial member and Vigilance report in respect of the applicants for the post of Technical/Administrative Member, and the reports shall be obtained within a period of three weeks. The Committee resolved to convene its next meeting on a **11** ## **W.P.(C)No.20319 of 2019** convenient date after the receipt of reports from the Hon'ble High Court, Superintendent of Police and Vigilance Department in order to fix the date and venue to conduct interview. State Government will constitute Kerala Real Estate Appellate Tribunal soon on receipt of the recommendation of the Selection Committee. ## **IV. Appointment of Adjudicating Officer** Soon after assuming the charge, the Chairperson of the Authority had approached Government with the proposal in tune with Section 71(1) of the Real Estate (Regulation and Development) Act, 2016, for appointing the Adjudicating Officer. Accordingly, as per G.O. (Rt)No.2718/2019/LSGD dated, 30.11.2019, the procedure for appointment of Adjudicating Officer in the Authority proposed by the Chairman, KRERA was approved as per Section 71(1) of Real Estate Regulation and Development Act, 2016. The selection procedure including interview is completed. The chairman KRERA has forwarded the panel of candidates prepared for the purpose, to the Registrar (Subordinate Judiciary) for verification as to whether there is any adverse remarks in their service, as the candidates are District Judges (Rtd.). The Chairman KRERA has informed that the Adjudicating Officer is likely to join in the Authority by the end of January 2020. No further action in the matter of appointment of Adjudicating Officer in KRERA is to be taken at Government level.” 7. Section 22 of the Real Estate (Regulation and Development) Act, 2016 reads thus: ## “ **22. Qualifications of Chairperson and Members of** **W.P.(C)No.20319 of 2019** **12** **Authority** .- The Chairperson and other Members of the Authority shall be appointed by the appropriate Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, the Secretary of the Department dealing with Housing and the Law Secretary, in such manner as may be prescribed, from amongst persons having adequate knowledge of and professional experience of at-least twenty years in case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical experts from relevant fields, planning, law, commerce, accountancy, industry, management, social service, public affairs or administration: Provided that a person who is, or has been, in the service of the State Government shall not be appointed as a Chairperson unless such person has held the post of Additional Secretary to the Central Government or any equivalent post in the Central Government or State Government: Provided further that a person who is, or has been, in the service of the State Government shall not be appointed as a member unless such person has held the post of Secretary to the State Government or any equivalent post in the State Government or Central Government. ” The said Selection Committee shall convene a meeting as expeditiously as possible and select a suitable officer for the post of Judicial Member and Technical/Administrative Member in the Real Estate Appellate Tribunal. 8. Section 71(1) of the Real Estate (Regulation and Development) **W.P.(C)No.20319 of 2019** **13** ## Act, 2016 reads thus: “ **71. Power to adjudicate** .- (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint in consultation with the appropriate Government one or more judicial officer as deemed necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the prescribed manner, after giving any person concerned a reasonable opportunity of being heard: Provided that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19 is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal Commission or the National Consumer Redressal Commission, established under section 9 of the Consumer Protection Act, 1986, on or before the commencement of this Act, he may, with the permission of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an application before the adjudicating officer under this Act.” 9. In consultation with the Government, the authority is requested to finalise the selection as expeditiously as possible. Exercise of selection of suitable officer to the post of Judicial Member and Technical/ Administrative Member in the Real Estate Appellate Tribunal as far as appointment of Adjudicating Officer by the competent authorities under the statute be done within a period of one month from the date of receipt of a copy of this judgment. Competent authorities are requested ## **W.P.(C)No.20319 of 2019** **14** to finalise the selection for making Kerala Real Estate Regulatory Authority functional. With the above directions, writ petition is disposed of. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** **vpv** **W.P.(C)No.20319 of 2019** **15** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE DEMAND NOTICE DATED 13.06.2017 ISSUED BY THE PETITIONER'S LAWYER TO THE 'PROMOTER'.** **EXHIBIT P2 A TRUE COPY OF THE REPLY NOTICE DATED 07.07.2017 ISSUED BY THE PROMOTER'S LAWYER.** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R2(a) TRUE COPY OF THE GOVERNMENT ORDER G.O. (P)NO.65/2019/LSGD DATED 5.10.2019.** **ANNEXURE R2(b) TRUE COPY OF THE GOVERNMENT ORDER G.O. (P)NO.66/2019/LSGD DATED 5.10.2019. ANNEXURE R1(a) TRUE COPY OF THE EXTRAORDINARY GAZETTE NOTIFICATION NO.2595 DATED 29.10.2019.** **/TRUE COPY/** **P.A. TO JUDGE**