Non-Registration Of Ongoing Project Does Not Bar RERA Or Hinder Allottee Rights: Kerala High Court

The Kerala High Court on 20 February held that a developer's failure to mandatorily register a housing project cannot be invoked to challenge RERA's jurisdiction, and cannot deprive allottees of statutory relief.

Justice Ziyad Rahman A.A. dismissed a batch of writ petitions filed by the Army Welfare Housing Organisation (AWHO), observing that once a project is compulsorily registrable under Section 3(1) of the Real Estate (Regulation and Development) Act, 2016, complaints by allottees are maintainable before the Kerala Real Estate Regulatory Authority (K-RERA).

The Bench observed:

“The breaches on the part of the promoter to fulfill the mandatory obligation under the statute, cannot be a ground to deny the legitimate rights of allottees that flow from the enactment.”

The dispute concerns Chander Kunj Army Towers at Silver Sand Island, Vyttila, Kochi. Apartment owners had approached K-RERA raising grievances related to the project. The adjudicating officer entertained the complaints and granted relief, including compensation for mental agony.

By an interim order dated 3 October 2024, K-RERA directed the developer to register the project. Certain complaints were later rejected in view of an earlier High Court judgment ordering the demolition of two towers in the same complex due to structural defects.

The complainants appealed before the Real Estate Appellate Tribunal, which set aside the rejection and directed K-RERA to proceed with the complaints. The developer challenged this before the High Court, which remanded the matter to K-RERA for reconsideration.

On remand, K-RERA reiterated the requirement of registration and restored the complaints, granting an extended timeline for registration until 31 March 2026.

AWHO then approached the High Court under Article 226 of the Constitution, contending that the project was not liable for registration since the occupancy certificate had been issued before the Kerala RERA Rules came into force on 14 June 2018. It argued that the project could not be treated as ongoing and, therefore, K-RERA lacked jurisdiction.

The respondents, including allottees and the Union of India, countered that the Act itself had come into force on 1 May 2017, and since the occupancy certificate was issued only on 21 February 2018, the project was compulsorily registrable.

Accepting this contention, the Court reiterated that the jurisdiction of the Regulatory Authority flows directly from the statute. Applying the principle laid down by the Supreme Court in Newtech Promoters and Developers Pvt. Ltd. v. State of UP, the Court held that once a project falls within the statutory regime, the Authority is empowered to entertain complaints and grant relief.

The Court further noted that since the occupancy certificate was issued on 21 February 2018, after the Act came into force on 1 May 2017, the project qualifies as an “ongoing project” mandatorily requiring registration and cannot escape the statutory regime merely because of the developer's non-registration. It noted:

“Evidently, the occupancy certificate in this case was issued on 21.02.2018 and thus, it was after 1.05.2017, the date on which the Act came into force and hence the same can only be treated as an ongoing project which requires registration."

However, with respect to the developer's challenge to the compensation awarded for mental agony, the Court observed that such issues must be pursued before the statutory appellate authority under Section 43(5) of the Act and not through writ proceedings.

Accordingly, holding that an effective alternate remedy of appeal was available, the Court declined to exercise writ jurisdiction and dismissed the petitions. It granted the developer liberty to pursue statutory remedies.

Appearances for petitioners (AWHO): Senior Advocate M. Ramesh Chander, Advocates Bejoy Joseph P.J, Govind G. Nair, Balu Tom, Bonny Benny, P.M. Rajagopal.

Appearances for respondents (Union of India & Ors.): Advocates K. Shaj, Beena N. Kartha, Arun Chand, Bharat Vijay P., Kevin James, Akash Joshi, Minu Vittorria Paulson, Gopika Gopal, Archana P.P., Ren Shibu, Shehroon Patel A.K., Issac Melvin B.O., Alvin Joseph, Riya Philo Johnson, Sruthi K. Suresh, Gishma P.S., Mary Helen A.G, Mahadev M.J P. Anirudhan and Saji Thomas (party-in-person in WP(C) 5846/2026).