Kerala High Court
M/S.Pentagon Builders vs The Adjudicating Officer on 19 May, 2025
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
WP(C) NO. 25013 OF 2024
PETITIONERS:
1 M/S PENTAGON BUILDERS
NAZAR SQUARE BUILDING, 2ND FLOOR, 6/23 D, KAMUR
ROAD, WEST NADAKKAVU, KOZHIKODE, REPRESENTED BY
ITS MANAGING PARTNER DR. K.M. ASHIK, PIN - 673011
2 DR. K.M.ASHIK
AGED 58 YEARS
S/O DR. MOIDU, RESIDING AT APARTMENT NO. 9B
BRIDGETOWN APARTMENTS, NADAKKAVU KOZHIKODE, PIN -
673011
3 DR. HASEENA ASHIK
AGED 55 YEARS
W/O DR. K.M.ASHIK RESIDING AT APARTMENT NO. 9B
BRIDGETOWN APARTMENTS,NADAKKAVU KOZHIKODE, PIN -
673011
BY ADV M.KRISHNAKUMAR
RESPONDENTS:
1 THE ADJUDICATING OFFICER
KERALA REAL ESTATE REGULATORY AUTHORITY 5TH FLOOR,
SWARAJ BHAVAN, NANTHANCODE KOWDIAR P.O
THIRUVANANTHAPURAM, PIN - 695003
2 THE KERALA REAL ESTATE REGULATORY AUTHORITY
REPRESENTED BY ITS CHAIRMAN 5TH FLOOR,SWARAJ
BHAVAN NANTHANCODE KOWDIAR P.O THIRUVANANTHAPURAM,
PIN - 695003
WP(C).Nos.25013/24 and con.cases
2
3 DR. M.M. ABDUSSALAM
AGED 56 YEARS
S/O M.A. MOHAMMED KUTTY MEADOWS , ATHOLI ROAD,
PAVANGAD PUTHIYANGADI P.O PUTHUR AMSOM KOZHIKODE,
PIN - 673021
BY ADVS.
R. BINDU (SASTHAMANGALAM)
G.RAJAGOPAL (KUMMANAM)(K/3520/1999)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.11.2024, ALONG WITH WP(C).34918/2024 AND
CONNECTED CASES, THE COURT ON 19.05.2025 DELIVERED THE
FOLLOWING:
WP(C).Nos.25013/24 and con.cases
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
WP(C) NO. 29797 OF 2024
PETITIONERS:
1 M/S.PENTAGON BUILDERS
NAZAR SQUARE BUILDING, 2ND FLOOR, 6/23 D, KANNUR
ROAD, WEST NADAKKAVU, KOZHIKODE, REPRESENTED BY
ITS MANAGING PARTNER DR. K.M. ASHIK,, PIN -
673011
2 DR. K.M.ASHIK
AGED 58 YEARS
S/O DR. MOIDU, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE, PIN -
673011
3 DR. HASEENA ASHIK
AGED 55 YEARS
W/O DR. K. M. ASHIK, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE, PIN -
673011
BY ADV M.KRISHNAKUMAR
WP(C).Nos.25013/24 and con.cases
4
RESPONDENTS:
1 THE ADJUDICATING OFFICER
KERALA REAL ESTATE REGULATORY AUTHORITY 5TH
FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR PO,
THIMVANANTHAPURAM, PIN - 695003
2 THE KERALA REAL ESTATE REGULATORY AUTHORITY
REPRESENTED BY ITS CHAIRMAN 5TH FLOOR SWARAJ
BHAVAN NANTHANCODE KOWDIAR PO,
THIRUVANANTHAPURAM-, PIN - 695003
3 DR. RAJINA E.P
AGED 48 YEARS
D/O E.P. MOHAMMEDALI SHIFA, PARAPPANANGADI,
MALAPPURAM, PIN - 676303
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.11.2024, ALONG WITH WP(C).34918/2024 AND
CONNECTED CASES, THE COURT ON 19.05.2025 DELIVERED THE
FOLLOWING:
WP(C).Nos.25013/24 and con.cases
5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
WP(C) NO. 34868 OF 2024
PETITIONERS:
1 M/S PENTAGON BUILDERS
NAZAR SQUARE BUILDING, 2ND FLOOR, 6A3 D, KARMUR
ROAD, WEST NADAKKAVU, KOZHIKODE, REPRESENTED BY
ITS MANAGING PARTNER DR. K.M. ASHIK,, PIN -
673011
2 DR. K.M. ASHIK,
AGED 58 YEARS
S/O DR. MOIDU, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE, PIN -
673011
3 DR. HASEENA ASHIK
AGED 55 YEARS
W/O DR. K. M. ASHIK, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE, PIN -
673011
BY ADV M.KRISHNAKUMAR
WP(C).Nos.25013/24 and con.cases
6
RESPONDENTS:
1 THE ADJUDICATING OFFICER
KERALA REAL ESTATE REGULATORY AUTHORITY 5TH
FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR PO,
THIRUVANANTHAPURAM, PIN - 695003
2 THE KERALA REAL ESTATE REGULATORY AUTHORITY
REPRESENTED BY ITS CHAIRMAN 5TH FLOOR , SWARAJ
BHAVAN. NANTHANCODE, KOWDIAR PO,
THIRUVANANTHAPURAM-, PIN - 695003
3 DR. ABDUL LATHEEF
S/O P.K.MOHAMMAD MASTER PADIYATH BLANGACHALIL
HOUSE, KALIKAVU PO MALAPPURAM, PIN - 676525
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.11.2024, ALONG WITH WP(C).34918/2024 AND
CONNECTED CASES, THE COURT ON 19.05.2025 DELIVERED THE
FOLLOWING:
WP(C).Nos.25013/24 and con.cases
7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 19TH DAY OF MAY 2025 / 29TH VAISAKHA, 1947
WP(C) NO. 34918 OF 2024
PETITIONERS:
1 M/S PENTAGON BUILDERS
NAZAR SQUARE BUILDING, 2ND FLOOR, 6/23 D, KARMUR
ROAD, WEST NADAKKAVU, KOZHIKODE, REPRESENTED BY
ITS MANAGING PARTNER DR. K.M. ASHIK, PIN - 673011
2 DR. K.M. ASHIK,
AGED 58 YEARS
S/O DR. MOIDU, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE., PIN
- 673011
3 DR. HASEENA ASHIK,
AGED 55 YEARS
W/O DR. K. M. ASHIK, RESIDING AT APARTMENT NO.9B,
BRIDGETOWN APARTMENTS, NADAKKAVE KOZHIKODE, PIN -
673011
BY ADV M.KRISHNAKUMAR
RESPONDENTS:
1 THE ADJUDICATING OFFICER
KERALA REAL ESTATE REGULATORY AUTHORITY 5TH
FLOOR, SWARAJ BHAVAN, NANTHANCODE, KOWDIAR PO,
THIRUVANANTHAPURAM, PIN - 695003
WP(C).Nos.25013/24 and con.cases
8
2 THE KERALA REAL ESTATE REGULATORY AUTHORITY
REPRESENTED BY ITS CHAIRMAN 5TH FLOOR , SWARAJ
BHAVAN NANANTHANCODE, KOWDIAR PO,
THIRUVANANTHAPURAM-, PIN - 695003
3 DR. SHAHANAS E.P.
D/O E.P. MOHAMMEDALI NOOR MAHAL, AREACODE, ERNAD
TALUK, MALAPPURAM, PIN - 673639
OTHER PRESENT:
SRI. C.M. NAZAR, SC FOR KRERA.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 27.11.2024, ALONG WITH WP(C).25013/2024,
29797/2024 AND CONNECTED CASES, THE COURT ON 19.05.2025
DELIVERED THE FOLLOWING:
WP(C).Nos.25013/24 and con.cases
9
V.G.ARUN, J
= = = = = = = = = = = = = = = = =
W.P.(C).Nos.25013, 29797,34868
and 34918 of 2024
= = = = = = = = = = = = = = = = = =
Dated this the 19th day of May, 2025
JUDGMENT
The 1st petitioner is a registered firm engaged in the business of developing landed property as residential apartments and selling the same to willing purchasers. The 2 nd petitioner is the Managing partner and the 3rd petitioner is the only other partner of the firm. The 1st respondent is the Adjudicating Officer of the Kerala Real Estate Regulatory Authority and the 2nd respondent is the Authority (K-RERA) itself. The 3rd respondent in all writ petitions are dissatisfied purchasers of apartments, who had subsequently filed complaints before the 1st respondent under Section 71 of the Real Estate (Regulation and Development) Act, 2016 ('the Act' for short), seeking compensation and refund of the amount paid with interest. The petitioners had challenged the maintainability WP(C).Nos.25013/24 and con.cases 10 of those complaints before this Court on the ground that the complaints ought to have been filed before the K-RERA and only after the liability of the petitioners are adjudicated and found, the Adjudicating Officer is empowered to take further action. Those writ petitions were allowed as per Ext.P3 judgment and the Adjudicating Officer was directed to transmit the complaints to the K-RERA. Consequential direction was also issued directing the K-RERA to pass appropriate orders on the complaints after hearing the parties. In accordance with the direction, the K-RERA heard the parties and passed Ext.P4 order holding that the real estate project named 'Sea Shells' promoted by the petitioners is registrable under Section 3 of the Act and the allottees can file complaints either to the K-RERA or the Adjudicating Officer depending on their grievance. In the order it was also observed that the claim for compensation under Sections 12, 14, 18 and 19 of the Act shall be filed before the Adjudicating Officer, whereas the claim for refund of the amount paid to the promoter with interest while withdrawing from the project, or the claim for interest for delayed delivery of WP(C).Nos.25013/24 and con.cases 11 possession under Sections 12, 18(1)(b) and 19 of the Act, shall be filed before the Authority. Pursuant to the order, applications claiming compensation were filed before the Adjudicating Officer and in spite of objections as to maintainability, the 1 st respondent decided to proceed with the complaints. Hence, these writ petitions.
2.Heard, Adv.M.Krishnakumar for the petitioners, Adv.C.M. Nazar for the K-RERA and Adv.Bindu Sasthamangalam for the party respondents.
3. Learned counsel for the petitioners contended that, as the prayers in the applications squarely fall under Sections 14 and 18 of the Act, the 2nd respondent alone is empowered to adjudicate and take a decision. It is pointed out that the distinction between the powers of the Adjudicating Officer and the Authority are succinctly laid down by the Apex Court in Newtech Promoters and Developers Pvt.Ltd. v. State of U.P. and Others [(2021) 18 SCC 1]. It is argued that, in spite of bringing the above binding precedent to the notice of the 1 st respondent, the complaints are being proceeded with. WP(C).Nos.25013/24 and con.cases 12
4. Learned Standing Counsel for K-RERA submitted that the Authority had passed Ext.P4 order in terms of this Court's earlier direction and the complaints are filed in accordance with the observations in that order. Hence, the writ petitions are liable to be dismissed.
5. Learned counsel for the party respondents submitted that, in Ext.P4 order, the Authority had observed that complaints can be filed before the Authority as well as the Adjudicating Officer, depending on the nature of the grievance. Accordingly, Ext.P5 applications seeking compensation for change of Gymnasium from the promised location and loss of rental income as well as fiscal, physical and mental strain, was submitted before the Adjudicating Officer. The said reliefs fall under Sections 12 and 14 of the Act and can therefore be adjudicated by the 1st respondent under Section 71 of the Act. Moreover, separate complaints under Section 31 are filed before the K- RERA, seeking refund of the amount paid and getting the shortage of 120 square feet in area rectified by returning proportionate amount. The party respondents have thus acted WP(C).Nos.25013/24 and con.cases 13 strictly in accordance with the observations in Ext.P4 order, which is not under challenge in these writ petitions. According to the counsel, Newtech Promoters (supra) does not prohibit the purchasers from approaching the Adjudicating Officer under Section 71 of the Act.
6. At the outset it is to be noted that the petitioners have not challenged Ext.P4 common order of the 2 nd respondent. Being so, the following finding in paragraph 9 of Ext.P4 assumes relevance;
" 9. Based on the above decision that the real estate project 'Sea Shells' promoted by M/s. Pentagon Builders is registrable under Section 3 of the Act, 2016, the allottees are eligible to file complaints either to the Authority or to the Adjudication Officer depending on their grievance. As per the statutory provisions and the ruling of the Hon'ble Supreme Court in the New Tech case (supra), the claim for compensation under sections 12, 14, 18 and 19 of the Act shall be filed before the Adjudicating Officer. The claim for refund of the amount paid to the promoter with interest while withdrawing from the projector the claim for interest for delayed delivery of possession under sections 12, 18(1) (b) and 19 of the Act shall be filed before the Authority. The complainants may file fresh complaints/applications."
WP(C).Nos.25013/24 and con.cases 14 Accordingly, separate complaints under Sections 71 and 31 have been filed before the Adjudicating Officer and the Authority. In this context, the reliefs sought in the applications under Section 71, and extracted below for easy reference, assumes relevance;
"1. This Hon'ble AO may direct the Respondents to compensate the Complainant for change of gym from the scenic, promised location to a tiny room without a view, without the consent of the allottees, including this Complainant, with sufficient compensation as envisaged under the Act.
2. This Hon'ble AO may direct the Respondents to compensate the Complainant for the loss of rental, income and the strain on him fiscally, physically and mentally as claimed above.
3. This Hon'ble AO may direct the Respondents to compensate this complainant for the 8 years delay in handing over the apartment, above and beyond what is prescribed under the agreement."
7. A reading of Sections 38 and 71 of the Act makes it clear that, while the former provision empowers the Authority to impose penalty or interest for any contravention of obligation cast upon the promoters, the latter provides for the appointment of an Adjudicating Officer for the purpose of WP(C).Nos.25013/24 and con.cases 15 adjudging compensation under Sections 12, 14, 18 and 19 of the Act. In Newtech Promoters, the Apex Court, after noticing the clear distinction in the powers of the Authority and the Adjudicating Officer, proceeded to hold that the scope and function of the Adjudicating Officer are only for adjudging the compensation under Sections 12,14,18 and 19 of the Act and if there is breach or violation of the said provisions by the promoter, such a complaint has to be filed before the Regulatory Authority. Here, it is to be noted that Section 12 imposes the promoter with the liability of compensating any person sustaining loss by reason of incorrect or false statement in the information contained in the notice, advertisement or prospectus published by the promoter. As per Section 14(3), it is mandatory for the promoter to develop and complete the proposed project in accordance with the sanctioned plans, layout, approved specifications etc. The provision also makes the promoter liable to rectify the defect or pay compensation in case of deviation. Indisputably, the reliefs sought in Ext.P5 series applications filed before the WP(C).Nos.25013/24 and con.cases 16 Adjudicating Officer, squarely fall within Sections 12 and 14 of the Act and can therefore be adjudicated by the 1st respondent.
9. While on the issue, it is also pertinent to note that the Government of Kerala has formulated the Kerala Real Estate (Regulation and Development) Rules, 2018 in exercise of the power conferred by Section 84 of the Act. Rule 36 therein provides for the manner of filing complaint with the Regulatory Authority and the inquiry to be conducted by the Authority. Similarly, Rule 37 deals with the manner of filing complaint with the Adjudicating Officer and the manner of holding inquiry by the Adjudicating Officer. While the complaint before the Authority is to be filed in Form M, that before the Adjudicating Officer should be in Form N. In the instant case, the applications before the 1st respondent are filed in Form N and those before the Authority, in Form M. The party respondents having thus filed the applications in the prescribed manner, the 1st respondent is competent to adjudge the claims therein.
WP(C).Nos.25013/24 and con.cases 17 For the aforementioned reasons, the writ petitions are dismissed, leaving it open for the parties to raise all contentions, including the contention as to limitation, before the Adjudicating Officer.
sd/-
V.G.ARUN, JUDGE sj WP(C).Nos.25013/24 and con.cases 18 APPENDIX OF WP(C) 25013/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED IN FAVOUR OF THE 3RD RESPONDENT DATED 24.05.2018 Exhibit P2 TRUE COPY OF THE COMPLAINT ( WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT ON 13.12.2019 Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 15.09.2023 IN WPC 25593/ 2020 ON THE FILE OF HIGH COURT OF KERALA.
Exhibit P4 TRUE COPY OF THE ORDER DATED 16.01.2024 PASSED BY THE KERALA REAL ESTATE REGULATORY AUTHORITY Exhibit P5 TRUE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT ON 25.03.2024 Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST PETITIONER TO EXHIBIT P5 COMPLAINT PENDING BEFORE THE 1ST RESPONDENT.
RESPONDENT EXHIBITS Exhibit R3(a) True copy of the complaint filed before the 2nd respondent dated 25.03.2024 WP(C).Nos.25013/24 and con.cases 19 APPENDIX OF WP(C) 29797/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED IN FAVOUR OF THE 3RD RESPONDENT DATED 29.05.2018 Exhibit P2 TRUE COPY OF THE COMPLAINT NO. 38/ 2020 ( WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT ON 16.02.2020 Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 15-09- 2023 IN WPC 25521/2020 ON THE FILE OF THE HIGH COURT OF KERALA Exhibit P4 TRUE COPY OF THE ORDER DATED 16.01.2024 PASSED BY THE KERALA REAL ESTATE REGULATORY AUTHORITY Exhibit P5 TRUE COPY OF THE COMPLAINT NO. 13/ 2024 FILED BY THE 3RD RESPONDENT BEFORE THE 1ST RESPONDENT ON 03.05.2024 Exhibit P6 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE LST PETITIONER TO EXHIBIT P5 COMPLAINT NO. 13/ 2024 PENDING BEFORE THE I ST RESPONDENT DATED 29-07- 2024 WP(C).Nos.25013/24 and con.cases 20 APPENDIX OF WP(C) 34868/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED IN FAVOUR OF THE 3RD RESPONDENT DATED 25.05.2018 Exhibit P2 TRUE COPY OF THE COMPLAINT (WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE LST RESPONDENT ON 31.01.
2020Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 15-09- 2023 IN WPC 25561/ 2020 ON THE FILE OF THE HIGH COURT OF KERALA Exhibit P4 TRUE COPY OF THE ORDER DATED 16-01-2024 PASSED BY THE 2ND RESPONDENT ON EXHIBIT P2 COMPLAINT Exhibit P5 TRUE COPY OF THE COMPLAINT NO. CCP 15 / 2 024 (WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE LST RESPONDENT ON 3- 05-2024 WP(C).Nos.25013/24 and con.cases 21 APPENDIX OF WP(C) 34918/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED ASSIGNMENT DEED IN FAVOUR OF THE 3RD RESPONDENT DATED 29-05-2018 Exhibit P2 TRUE COPY OF THE COMPLAINT (WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE LST RESPONDENT ON 16-01-2020 Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 15-09- 2023 IN WPC 25354/2020 ON THE FILE OF THE HIGH COURT OF KERALA Exhibit P4 TRUE COPY OF THE ORDER DATED 16-01-2024 PASSED BY THE 2ND RESPONDENT ON EXHIBIT P2 COMPLAINT Exhibit P5 TRUE COPY OF THE COMPLAINT NO.CCP 14/ 2024 (WITHOUT ANNEXURES) FILED BY THE 3RD RESPONDENT BEFORE THE LST RESPONDENT ON 3-05-2024