The Hon’ble Kerala High Court opined that the term promoter used in RERA would not include landowner in normal cases, unless there is an indication that it includes landowner.
Further, it was ruled that there is no requirement for the landowner to give any kind of declaration. The promoter mentioned in Sections 3 and 4 and the landowner are separate and distinct persons, and the term promoter used in Sections 3 and 4 does not include the landowner.
From Form B, it is clear that even if the landowner is a person different from the Promoter, he need not join with the Promoter to submit the Application for registration. All the details are to be submitted by the Promoter himself along with his Application after obtaining the same from the land owner. It affirms that the landowner and the promoter are different persons, and the term promoter does not include landowner for the purpose of registration of the real estate project.
The Court held that the Application for registration of the Real Estate Project under Sections 3 and 4 of the RERA is to be submitted by the Promoter/s alone who do not include the land owner. However, there are provisions in the RERA providing duties and obligations on the landowners. In case the landowners fail to discharge their functions and obligations under RERA, the aggrieved person can very well file a complaint under S.31 against the landowner. The term ‘promoter’ in Section 31 includes landowner.
Brief Facts:
The present appeal has been filed for following questions of law:
a. Whether the term “person causes to be constructed” used in the definition of “promoter” as per Section 2 (zk) of the RERA includes landowners?
b. Whether the Explanation to the definition of ‘promoter’ as per Section 2(zk) of the RERA a landowner is also to be treated as a promoter for all the functions and duties under the RERA?
c. Whether the landowners are also liable to be treated as a co- promoter for the purpose of registration of real estate projects under Section 3 of the RERA?
Observations of the Court:
On the issue of whether promoter includes landowner, the Court observed that the If the intention of the Legislature was to include the landowner in sub-clauses (i) and (ii) of Rera, there is no need to include an Explanation to Subclause (vi) dealing with the case of the landowner. The non-inclusion of the landowner in sub-clauses (i) and (ii) and inclusion of the landowner in Explanation to Subclause (vi) indicates the legislative intention that the term ‘promoter’ in the normal course does not include landowner. It cannot be said that wherever the term ‘promoter’ is used it is inclusive of landowners.
It was opined that the term promoter used in RERA would not include landowner in normal cases, unless there is an indication that it includes landowner.
Further, it was ruled that there is no requirement for the landowner to give any kind of declaration. The promoter mentioned in Sections 3 and 4 and the landowner are separate and distinct persons, and the term promoter used in Sections 3 and 4 does not include the landowner.
From Form B, it is clear that even if the landowner is a person different from the Promoter, he need not join with the Promoter to submit the Application for registration. All the details are to be submitted by the Promoter himself along with his Application after obtaining the same from the land owner. It affirms that the landowner and the promoter are different persons, and the term promoter does not include landowner for the purpose of registration of the real estate project.
The Court held that the Application for registration of the Real Estate Project under Sections 3 and 4 of the RERA is to be submitted by the Promoter/s alone who do not include the land owner. However, there are provisions in the RERA providing duties and obligations on the landowners. In case the landowners fail to discharge their functions and obligations under RERA, the aggrieved person can very well file a complaint under S.31 against the landowner. The term ‘promoter’ in Section 31 includes landowner.
The decision of the Court:
The Hon'ble Court, after noting facts and circumstances answered all three issues in negative and accordingly dismissed the appeal.
Case Title: Pooja Constructions v. The Secretary & Others
Coram: Hon’ble Mr. Justice M. A Abdul Hakim
Case No.: MSA NO. 16 OF 2024
Advocates for the Petitioner: Advs. P.K.SREEVALSAKRISHNAN, K.R.PRATHISH
Advocates for the Respondent: Advs. P.J.STEPHEN, BINU V V VEETTIL VALAPPIL, MANEKSHA D
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