RERA'S Reach Tested: A Critical Review of the Kerala RERA Appellate Tribunal's Ruling on Project Registration and Allottee Rights

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The Project in Focus: A "Metrocity" on the Periyar's Banks

This article undertakes a thorough review of a recent final order issued by the Kerala Real Estate Appellate Tribunal, Ernakulam, a decision with significant implications for real estate regulation and allottee rights under the Real Estate (Regulation and Development) Act, 2016. The Tribunal's ruling pertains to appeals against the Kerala Real Estate Regulatory Authority's directive for the comprehensive registration of a sprawling 17.00-acre waterfront residential "metrocity" on the banks of the Periyar River. This extensive development features approximately 1000 units across 10 apartment towers and 68 villas, offering a range of configurations including 1, 2, and 3 BHK apartments, as well as 4 BHK villas. Residents benefit from a comprehensive suite of common areas and facilities, including a swimming pool, club house, gymnasium, indoor games, tennis and badminton courts, cycling and jogging tracks, children's play area, party hall, landscaped gardens, and an amphitheatre, along with essential services like 24-hour power backup, Wi-Fi, a gated community, maintenance staff, reserved parking, banking facilities, food court, library, restaurants, solid waste management, centralized gas supply, sewage treatment, rainwater harvesting, high-speed elevators, and robust security with CCTV.

The Tribunal's Directive: Partial Registration, Full Obligations?

In a significant modification to the Authority's order, the Tribunal limited the project's registration requirement to the 154902.90 square meters covered by a permit dated July 25, 2017, mandating completion within 30 days. Crucially, the order also stipulated that this partial registration does not absolve the promoter or landowner from their obligation to provide all facilities and amenities previously agreed upon with allottees and their associations, ensuring that promised amenities remain enforceable even for parts of the project falling outside RERA registration. This analysis proposes to evaluate the legality of these findings in light of the Real Estate (Regulation and Development) Act, 2016.

Promoter's Defense: Phased Completion vs. Comprehensive Project

The promoter's core argument was that the entire construction of four towers was completed by 2014 and therefore could not be considered part of a single project for RERA registration. Supporting this, certificates from local authorities confirmed that 89 apartments across these four towers were completed and received occupancy in 2013-2015. Sale deeds for these towers were finalized by 2013-2014, and building numbers assigned in 2013-2014, all predating the RERA Act's commencement. Furthermore, a permit renewal in February 2014 explicitly excluded these four completed towers, covering a reduced area of 1.7 lakh sq. meters, a pattern continued by a subsequent permit renewal in July 2017, which covered 154902.90 sq. meters, implying the exclusion of the completed structures. The promoter contended that RERA registration should thus be limited to the area of the later permit, as towers completed before May 1, 2017, are not subject to the Act. They emphasized that the project was conceived and executed in distinct phases, and the issuance of occupancy certificates is the definitive factor for an "ongoing project" under RERA, certificates which, having been issued in 2013, 2014, and 2015 for the four towers, cannot be retroactively invalidated. While acknowledging earlier agreements that mentioned common amenities, the promoter noted the absence of such terms in later sale deeds for these completed towers, arguing that prior agreements merge into the final sale deed. However, it was also conceded that if amenities are demonstrably connected to the users of different phases, their provision cannot be denied under civil law, particularly concerning easements.

RERA's Mandate: Defining "Real Estate Project" and "Ongoing Phases"

The Kerala Real Estate Appellate Tribunal's interpretation of the RERA Act in the project's case centered on defining "ongoing projects" for registration. The Tribunal found that phases with occupancy certificates issued before RERA's commencement (May 1, 2017) were not subject to registration, aligning with the Act's prospective application and recognizing de facto phased development despite initial single permits. It affirmed the right of registered associations to file complaints under RERA, consistent with Sections 31 and 10. Crucially, while limiting RERA registration to genuinely ongoing portions, the Tribunal emphasized the promoter's continued civil law obligation (including easement) to provide all promised amenities, even for completed phases, thereby seeking to ensure consumer protection beyond direct RERA regulatory scope.

Section 3 of RERA clarifies that in a phased real estate project, "every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately." While this provision acknowledges the reality of phased development, a crucial question arises: Can a promoter unilaterally alter the "rules of the game" by transitioning to a phased development model after having already entered into agreements for sale with allottees for a comprehensive, undivided project? This presents a significant challenge to the principle of consumer protection, as such a shift could potentially dilute the promoter's obligations for the overall project and force allottees to accept remedies fragmented across different "standalone" phases, contrary to their initial purchase agreements.

Section 2(zn) of the RERA Act comprehensively defines a "real estate project" to include not just the development of buildings or plots, but also "the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto." This definition must be read in conjunction with the Explanation to Section 3, which stipulates that for projects developed in phases, "every such phase shall be considered a stand alone real estate project." This raises a critical interpretational dilemma: For a phase to truly be "standalone" and warrant separate registration, it logically follows that the common areas, development works, and all associated improvements must be distinctly identifiable and exclusively attributable to that particular phase. If common areas and integrated development works serve the entire, initially conceived project, regardless of how many "phases" the promoter subsequently declares, then segmenting registration merely based on partial occupancy certificates or renewed permits might be fundamentally incongruous with RERA's comprehensive definition of a "real estate project." The Tribunal's order does not explicitly detail whether such a granular assessment of shared common areas and integrated development works was undertaken. Merely because a promoter obtained certain occupancy certificates from a local authority should not, in itself, be sufficient to unilaterally redefine the scope of the project and thereby diminish the statutory rights of the allottees and the obligations of the promoters under the RERA Act. This approach risks undermining the very purpose of RERA, which is to ensure transparency and accountability across the entire project as initially envisioned and marketed.

The Jurisdictional Conundrum: RERA's Scope vs. Civil Remedies

The Tribunal's directive for allottees to pursue civil remedies for common facilities and amenities, despite affirming the maintainability of their complaints before the RERA Authority, appears to be in direct tension with Section 79 of the RERA Act. Section 79 explicitly bars civil courts from entertaining matters that the RERA Authority, Adjudicating Officer, or Appellate Tribunal are empowered to determine under the Act.

This raises a significant legal conundrum:

  • Contradiction in Jurisdiction: If the complaints are deemed "maintainable" under RERA, implying that the RERA framework has the jurisdiction to address the issues raised, then directing allottees to civil courts for resolution of specific grievances (like common amenities) seems to undermine RERA's exclusive jurisdiction as established by Section 79. The purpose of RERA is to provide a specialized and expeditious forum for resolving real estate disputes, precisely to avoid the complexities and delays of civil litigation.

  • Dilution of RERA's Authority: Such a directive could be interpreted as diluting the RERA Authority's and Tribunal's power to comprehensively address disputes related to a "real estate project," which, by its definition (Section 2(zn)), includes common areas and amenities.

  • Practical Implications for Allottees: It forces allottees into a bifurcated legal process, potentially requiring them to pursue parallel proceedings in different forums (RERA for some issues, civil court for others), which could lead to increased litigation costs, delays, and even conflicting judgments.

This particular finding of the Tribunal, therefore, poses a critical question regarding its legality and consistency with the overarching scheme and specific bar on civil court jurisdiction under Section 79 of the RERA Act.

Implications for Allottees: Fragmented Justice?

In conclusion, while the Tribunal's order attempts to navigate the complexities of phased development and pre-RERA construction, its interpretations regarding "ongoing projects," the scope of registration, and the directive for allottees to seek civil remedies for certain amenities raise serious questions about its fidelity to the RERA Act's core principles. By limiting RERA's direct application based on occupancy certificates and permit renewals, the Tribunal risks undermining the comprehensive definition of a "real estate project" and the protective intent behind Section 3. More concerning is the apparent contradiction with Section 79, which bars civil court jurisdiction over matters RERA is empowered to determine. This decision inadvertently creates a fragmented legal landscape for allottees, potentially preventing them from fully exercising their statutory rights and diluting the promoter's comprehensive obligations under the RERA Act, leading to confusion regarding the very purpose for which complaints are permitted before the RERA Authority. Ultimately, the Tribunal's approach, while perhaps pragmatic, might inadvertently compromise the robust consumer protection framework RERA was designed to establish.

Details of the Tribunal's Order for Reference:

  • Forum: Kerala Real Estate Appellate Tribunal, Ernakulam

  • Presiding Members: Justice Somarajan.P (Chairperson), Sri. Vincent P.J (Judicial Member), Dr. Kuruvilla Thomas (Administrative Member)

  • Date of Order: Wednesday, July 9, 2025

  • Appeal Numbers: REFA Nos. 41, 42 & 43 of 2025

  • Appeals Against: Order dated March 3, 2025, in Complaint Nos. 115, 116 & 117 of 2020 of the Real Estate Regulatory Authority

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