Plea challenging Kerala Apartment Ownership Act as repugnant to RERA

A Division Bench comprising Justice A Muhammed Mustaque and Justice M.A. Abdul Hakhim admitted a Public Interest Litigation, challenging the Kerala Apartment Ownership Act 1983.  Act 5 of 1984, remains unimplemented, successfully for the last 30 years. Admission to the PIL is a milestone in the long legal battle towards the implementation of this Act.

About the Petitioner : Adv Ananda Padmanabhan

Mr. Ananda Padmanabhan an Advocate, practicing in the High Court of Kerala, Tribunals, and the District Judiciary is the Petitioner in this PIL.   His expertise in the field of construction law helped in the successful research, which finally led to the filing of this PIL.

Contents of the Public Interest Litigation PIL

The Writ Petition, in the state of facts, narrates the law relating to Apartment Ownership In the Country and its international perspective.  It surveys the laws relating to apartment ownership in the various states of the Country and makes a comparative study regarding the law in Kerala.  It discusses the importing missing elements of regulation the Kerala Act.

Important Legal propositions

• Section 2 of the Kerala Apartment Ownership Act is repugnant to the provisions of the Real Estate (Regulation and Development) Act 2016, hence the former to the extent it requires the execution and registration of declaration by the Sole Owner or all the Owners, for the application of the Act, is unconstitutional and void.
• The High Court is competent to read down Section 2 of the Kerala Apartment Ownership Act 1983, to make the Act constitutional.  Hence the provision may be appropriately read down to make the Act, constitutional.
• The requirement in Section 2 of KAOA, that either the Sole Owner or all the owners have to execute and register the Declaration, violates Section 56 of the Indian Contract Act (the Doctrine of impossibility).
• The provisions of RERA, are retroactive.  KAOA is preserved under RERA, by the application of the term ‘local laws’, as contained in Section 17 of RERA.
• Clause 20 of Annexure A of the K-RERA Rules, mandates that the Promoter must ensure compliance with the provisions of KAOA.  The Kerala RERA Authority must ensure that the Promoters of all registered real estate projects consisting of Apartment Buildings, comply with this contractual provision.
• Since, the Promoters failed to comply with Clause 20 of Annexure A, the dictum laid down in Supertech Limited Vs. Emerald Court Owner Resident Welfare Association & Ors .(Civil Appeal No. 5041 of 2021, and it should be deemed that the provision of KAOA would apply even if the Promoter has failed to execute and register Declaration, to apply the Act.

Reliefs sought in the Public Interest Litigation

1. To declare that Section 2 of the Kerala Apartment Ownership Act 1983, is repugnant to the Real Estate (Regulation and Development) Act 2016, and is unconstitutional to the extent it requires the sole owner or all the Owners to execute and register declaration, in the manner prescribed, for the application of the Act.
2. To declare that to overcome the unconstitutionality, of Section 2 of the Kerala Apartment Ownership Act 1983, the words “all the Owners’ may be read as ‘any owner’ and consequently Section 2 of the Act shall be read as follows:“This Act applies only to property, the sole owner or ‘any of’ the Owners of which submit the same to the provisions of this Act by duly executing and registering a declaration as hereinafter provided:Provided that no property shall be submitted to the provisions of this Act, unless it is mainly used, or proposed to be used, for residential purpose”
3. To declare that the provisions of the Kerala Apartment  Ownership Act 1983 is applicable to all Real Estate Projects in the nature of Apartment  Buildings or Condominium type of Properties, covered under the provision of RERA, even if the Promoter as the sole owner or all the Owners of the said building, has not executed and registered declaration, as prescribed, in the light of the dictum laid down by the Hon’ble Supreme Court in ‘Supertech Limited Versus Emerald Court Owner Resident Welfare Association & Ors. (Civil Appeal No. 5041 of 2021)
4. To issue a Writ of Mandamus or any other appropriate writ order or direction, compelling and commanding Respondent No.4 to ensure that Clause 20 of Annexure A (standard form Agreement for Sale) under the Kerala Real Estate (Regulation and Development) Rules 2018 is strictly complied by all the Promoters of the Apartment Buildings, registered under Section 3 of RERA.
5. To issue a Writ of Mandamus or any other appropriate writ order or direction, compelling and commanding Respondent No. 1, to direct the Competent Authorities appointed under KAOA, to take necessary further actions under KAOA, treating that the Act applies to all Real Estate Projects comprising of Apartment Buildings, to which RERA is applicable, without insisting for the execution and registration of Declaration by the sole owner or all the owners,. 
6. To issue a Writ of Mandamus or any other appropriate writ order or direction, compelling and commanding Respondent No1, to pass an appropriate order invoking Section 27 of the KAOA, for removing the difficulties and to give effect to the provision of the Act.
7. To allow such other reliefs that this Hon’ble Court may deem fit and proper in the nature and circumstances of the case.

Conclusion

Hopefully, this Public Interest Litigation, will finally, bring relief to the Apartment Owners in the State, and will be able to fulfill the objective of achieving ownership of an individual apartment in the building and to make such apartment heritable and transferable property. It may also bring about a new legal land scape for the laws on apartment ownership in the Country.