Government of west bengal proposes new Rera bill which will likely to be implemented in 2017. the proposed bill is as follows:
GOVERNMENT OF WEST BENGAL
HOUSING DEPARTMENT
NOTIFICATION
No ___________ In exercise of the powers conferred by section 84 read with sub-clause (i) of clause (g) of section 2 of the Real estate (Regulation and Development) Act, 2016 (16 of 2016), the Government is pleased hereby to make the following rules for the State of West Bengal, namely:-
CHAPTER I PRELIMINARY
1. Short title and Commencement
(1) These rules may be called the West Bengal Real Estate (Regulation and Development) Rules, 2016.
(2) It shall come into force with effect from _______________________
2. Definitions
1. In these rules, unless the context otherwise requires-
(a) “Act” means the Real Estate (Regulation and Development) Act, 2016;
(b) “Annexure” means an annexure appended to these rules;
(c) “authenticated copy” shall mean a self-attested copy of any document required to be provided by any person under these rules:
(d) “Form” means a form appended to these rules;
(e) “State Government” means the State Government in the Housing Department;
(f) “layout plan” means a plan of the project depicting the division or proposed division of land into plots, roads, open spaces, amenities etc. and other details as may be necessary;
(g) “project land” means any parcel or parcels of land on which the project is developed and constructed by a promoter;
(h) “section” means a section of the Act; and
2. Words and expressions used herein and not defined, but defined in the Act, shall have the same meaning respectively assigned to them in the Act.
CHAPTER II
REAL ESTATE PROJECT REGISTRATION
3. Information and documents to be furnished by the promoter for registration of project.- (1) The promoter shall furnish the following additional information and documents, along with those specified under the relevant sections of the Act, for registration of the real estate project with the regulatory authority namely.-
(a) Authenticated copy of the PAN card of the promoter;
(b) Audited balance sheet of the promoter for the preceding financial year and income tax returns of the promoter for three preceding financial years;
(c) the number of open parking areas available in the said real estate project:
(d) copy of the legal title deed reflecting the title of the promoter to the land on which development in proposed to be developed along with legally valid documents with authentication of such title, if such land is owned by another person;
(e) the details of encumbrances on the land on which development is proposed including any rights, title, interest or name of any party in or over such land along with details;
(f) where the promoter is not the owner of the land on which development is proposed details of the consent of the owner of the land along with a copy of the collaboration agreement, development agreement, joint development agreement or any other agreement, as the case may be, entered into between the promoter and such owner and copies of title and other documents reflecting the title of such owner on the land proposed to be developed.
(g) Such other information and documents, as may be specified by regulations.
(2) The application referred to in sub-section (1) of section 4 shall be made in writing as per Form ‘A’, which shall be submitted in triplicate, until the application procedure is made web based as provided under sub-section (3) of section 4 of the Act.
(3) The promoter shall pay a registration fee at the time of application for registration by way of a demand draft drawn on any scheduled bank, for a sum calculated as the rate of:-
(a) Rupees ten per square meter for residential projects where the area of land proposed to be developed does not exceed one thousand square meters; or rupees twenty per square meter for residential projects where the area of land proposed to be developed exceeds one thousand square meters; or
(b) Rupees fifty per square meter for commercial or any other projects, where the area of land proposed to be developed does not exceed one thousand square meters;or rupees one hundred per square meter for commercial or any other projects, where the area of land proposed to be developed exceeds one thousand square meters;
(4) The declaration to be submitted under clause (1) of sub-section (2) of section 4 of the Act, shall be as per Form ‘B’, which shall include a declaration stating that the promoter shall not discriminate against any allottee at the time of allotment of any apartment, plot or building, as the case may be.
(5) In case the promoter applies for withdrawal of application for registration of the project before the expiry of the period of 30 days provided under sub-section (1) of section 5, registration fee to the extent of ten percent paid under sub-rules (3) above, or rupees fifty thousand whichever is more, shall be retained as processing fee by the regulatory authority and the remaining amount shall be refunded to the promoter within thirty days from the date of such withdrawal.
4. Disclosure by promoters of existing projects.-
(1) Upon the notification for commencement of sub-section (1) of section 3, promoters of all ongoing projects which have not received completion certificate shall, within the time specified in the said subsection, make an application to the Regulatory Authority in the form and manner provided in Rule 3.
(2) The promoter shall disclose all project details as required under the Act and the rules and regulations made thereunder, including the status of the project and the extent of completion.
(3) The promoter shall disclose the size of the apartment based on carpet area even if earlier sold on any other basis such as super area, super built-up area, built up area etc. which shall not affect the validity of the agreement entered into between the promoter and the allottee to that extent.
(4) In case of plotted development the promoter shall disclose the area of the plot being sold to the allottes.
5. Withdrawal of sums deposited in separate account.-(1) For the purpose of sub-clause (1) of clause (1) of sub-section (2) of section 4, the construction cost shall be the cost incurred by the promoter, whether as an outright purchase, lease charges etc.
(2) For the purposes of sub-clause (D) of clause (1) of sub-section (2) of section 4, the construction cost shall be the cost incurred by the promoter, towards the on-site expenditure for the physical development of the project.
6. Grant or rejection of registration of the project.-(1) Upon the registration of a project as per section 5 read with Rule 3, the Regulatory Authority shall issue a registration certificate with a registration number as per Form ‘C’ to the promoter.
(2) In case of rejection of the application as per section 5 the regulatory authority shall inform the applicant as per Form ‘D’.
7. Extension of registration of the project.- (1) The registration granted under section 5, may be extended as per section 6, on an application made by the promoter in Form‘E’ which shall not be less than three months prior to the expiry of the registration granted.
(2) The application for extension of registration shall be accompanied with a demand draft drawn in any scheduled bank, for an amount equivalent to twice the registration fee as prescribed under sub-rule (3) of rule 3 along with an explanatory note setting out the reasons for delay in the completion of the project and the need for extension of registration for the project, along with documents supporting such reasons:
Provided that where extension of registration is due to force majeure the regulatory authority may at its discretion waive the fee for extension of registration.
(3) Extension of registration of the project shall not be beyond the period provided as per local laws for completion of the project or phase thereof, as the case may be.
(4) In case of extension of registration, the regulatory authority shall inform the promoter about the same as per Form ‘F’ and in case of rejection of the application for extension of registration the regulatory authority shall, after giving an opportunity to the applicant to be heard in the matter as per second proviso of section 6, inform the promoter about the same as per Form ‘D’:
8. Revocation of Registration of the project.-Upon the revocation of registration of a project as per section 7 the regulatory authority shall inform the promoter about such revocation as per Form – ‘D’.
9. Agreement for sale.- (1) For the purpose of sub-section (2) of section 13, the agreement for sale shall be in the form as per Annexure ‘A’.
(2) Any application letter, allotment letter or any other document signed by the allottee, in respect of the apartment, plot or building prior to the execution and registration of the agreement for sale for such apartment, plot or building as the case may be, shall not be construed to limit the rights and interests of the allottee under the agreement for sale or under the Act or the rules or the regulations made thereunder.
CHAPTER III REAL ESTATE AGENT REGISTRATION
10. Application for Registration by the real estate agent.– (1) Every real estate agent required to register as per sub-section (2) of section 9 of the Act shall make an application in writing to the Regulatory Authority as per Form ‘G’ along with the following documents, namely:-
a) Brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies etc.):
b) Particulars of registration including the bye-laws, memorandum of association, articles of association etc. as the case may be;
c) Photograph of the real estate agent if it is an individual and the photograph of the partners, directors etc. in case of other entities.
d) Authenticated copy of the PAN Card;
e) Income tax returns filed under the provisions of the Income Tax Act, 1961 for three financial years preceding the application or in case the applicant was exempted from filing returns under the provisions of the Income Tax Act, 1961 for any of the three year preceding the application, a declaration to such effect;
f) Authenticated copy of the address proof of the place of business; and
g) Such other information and documents, as may be specified by regulations,
(2) The real estate agent shall pay a registration fee at the time of application for registration by way of a demand draft drawn on any scheduled bank, for a sum of rupees twenty-five thousand in case of the applicant being and individual; or rupees two lakh fifty thousand in case of the applicant being anyone other than an individual.
11. Grant of Registration to the real estate agent.- (1) Upon the registration of a real estate agent as per section 9 read with Rule 10, the Regulatory Authority shall issue a registration certificate with a registration number as per Form ‘H’ to the real estate agent.
(2) In case of rejection of the application as per section 9 the Regulatory Authority shall inform the applicant as per Form ‘I’.
(3) The registration granted under this rule shall be valid for a period of five years.
12. Renewal of registration of real estate agent.-(1) The registration granted under section 9, may be renewed as per section 6, on an application made by the real estate agent in Form – ‘J’ which shall not be less than three months prior to the expiry of the registration granted.
(2) The applicant for renewal of registration shall be accompanied with a demand draft drawn on any scheduled bank, for a sum of rupees five thousand in case of the real estate agent being an individual or rupees fifty thousand in case of the real estate agent being anyone other than an individual.
(3) The real estate agent shall also submit all the updated documents set out in clauses (a) to (f) of rule 10 at the time of application for renewal.
(4) In case of renewal of registration, the regulatory authority shall inform the real estate agent about the same as per Form ‘K’ and in case of rejection of the application for renewal of registration the regulatory authority, shall inform the real estate agent as per Form ‘I’:
Provided that no application for renewal of registration shall be rejected unless the applicant has been given an opportunity of being heard in the matter.
(5) The renewal of registration of the real estate agent shall be granted provided that the real estate agent remains in compliance with the provisions of the Act and the rules and regulations made thereunder.
(6) The renewal granted under this rule shall be valid for a period five years.
13. Revocation of Registration of real estate agent.-The Regulatory Authority may, due to reasons specified under sub-section (7) of section 9, revoke the registration granted to the real estate agent or renewal thereof, as the case may be, and intimate the real estate agent of such revocation as per Form ‘I’.
14. Maintenance and preservation of books of accounts, records and documents.- The Real estate agent shall maintain and preserve books of account, records and documents in accordance with the provisions of the Income Tax Act, 1961.
15. Other functions of a real estate agent.-The real estate agent shall provide assistance to enable the allottee and promoter to exercise their respective rights and fulfill their respective obligations at the time of booking and sale of any plot, apartment or building, as the case may be.
CHAPTER IV
DETAILS TO BE PUBLSHED ON THE WEBSITE OF THE AUTHORITY
16. Details to be published on the website.- (1) For the purpose of clause (b) of section 34, the regulatory authority shall ensure that the following information shall be made available on its website in respect of each project registered:
i. Details of the promoter including the following:
(i) Developer or Group Profile:
(A) A brief detail of his enterprise including its name, registered address, type of enterprise (proprietorship, limited liability partnership society, partnership, company competent authority) and the particulars of registration and in case of newly incorporated or registered entity, brief details of the of the parent entity including its name, registered address, type of enterprise (proprietorship, societies, limited liability partnership, partnership, companies, competent authority);
(B) background of promoter-educational qualification, work experience and in case of a newly incorporated or registered entity work experience of the parent entity.
(ii) Track record of the promoter:
(A) number of years of experience of the promoter or parent entity in real estate construction in the state/union territory;
(B) number of years of experience of the promoter or parent entity in real estate construction in other states or union territories
(C) number of completed projects and area constructed till date
(D) number of ongoing projects and proposed area to be constructed.
(E) Details and profile of ongoing and completed projects for the last 5 years as provided under clause (b) of sub-section (2) of section 4.
(iii) Litigations: Details of past or ongoing litigations in relation
to the real estate project.
(iv) Website:
(A) web link to the developer or group website;
(B) web link to the project website.
ii. Details of the real estate project including the following:
(i) Compliance and registration:
(A) authenticated copy of the approvals and commencement certificate from the competent authority as provided under clause (c) of sub-section (2) of section 4;
(B) the sanctioned plan, layout plan and specifications of the project or thephase thereof, and the whole project as sanctioned by the competent authority as provided under clause (d) of sub-section (2) of section 4;
(C) details of the registration granted by the Authority.
(ii) Apartment and garage related details:
(A) Details of the number, type and carpet area of apartments for sale in the project as provided under clause (h) of sub-section (2) of section 4;
(B) Details of the number and areas of garage for sale in the project as provided under clause (i) of sub-section (2) of section 4;
(C) Details of the number of open parking areas available in the real estate project.
(iii) Registered Agents: Names and addresses of real estate agents as provided under clause (j) of sub-section (2) of section 4.
(iv) Consultants: Details, including name and addresses, of contractors, architect and structural engineers and other persons concerned with the development of the real estate project as provided under clause (k) of sub-section (2) of section 4, such as :-
(A) Name and address of the firm
(B) Names of promoters
(C) Year of establishment
(D) Names and profile of key projects completed
(v) Location:the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude andlongitudeof the end points of the project as provided under clause (f) of sub-section (2) of section 4.
(vi) Development Plan:
(A) The plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including firefighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy etc. as provided under clause (e) of sub-section (2) of section 4;
(B) Amenities: a detailed note explaining the salient features of the proposed project including access to the project, design for dectric supply including street lighting, water supply arrangements and site for disaposal and treatment of storm and silage water, any other facilities and amenities or public health services proposed to be provided in the project;
(C) Gantt Charts and Project schedule: the plan of development works to be executed in the project and the details of the proposed facilities to be provided thereof.
iii. Financials of the promoter:
(i) authenticated copy of the PAN card of the promoter
(ii) audited balance sheet of the promoter for the preceding financial year and income tax returns of the promoter for three preceding financial years and in case of a newly incorporated or registered entity annual returns of the last 3 financial years of the parent entity.
iv. The promoter shall upload the following updates on the webpage for the project within seven days from the expiry of each quarter
i. List of number and types of apartments or plots, as the case may be booked;
ii. List of number of garages booked;
iii. Status of the project;
(A) Status of construction of each building with photographs;
(B) Status of construction of each floor with photographs
(C) Status of construction of internal infrastructure and common areas with photographs.
iv. Status of approvals:
(A) Approval received;
(B) Approvals applied and expected date of receipt;
(C) Approvals to be applied and date planned for application;
(D) Modifications, amendment or revisions, if any, issued by the competent authority with regard to any license, permit or approval for the project.
e. Downloads:
(i) Approvals:
(A) No Objection Certificates
→ Consent to Establish and Operate;
→ Environmental Clearance;
→ Fire NOC;
→ Permission from Water and Sewerage
department;
→ Height clearance from Airport Authority of India;
→ such other approvals as may be required and obtained from the project
(B) Authenticated copy of the license or land use permission, building sanction plan and the commencement certificate from the competent authority obtained in accordance with the laws applicable for the project, and where the project is proposed to be developed in phases, an authenticated copy of the license or land use permission, building sanction plan and the commencement certificate for each of such phases.
(C) Authenticated copy of the site plan or site map showing the location of the project land along with names of revenue estates, survey numbers, cadastral numbers, khasra numbers and area of each parcels of the project land;
(D) Authenticated copy of the layout plan of the project or the phase thereof, and also the layout plan of the whole project as sanctioned by the competent authority;
(E) Floor Plans for each tower and block including clubhouse, amenities and common areas;
(F) Any other permission, approval or licence that may be required under applicable law;
(G) Authenticated copy of occupancy certificate and completion certificate including its application.
(ii) Legal Documents:
(A)Details including the proforma of the application form, allotment letter, agreement for sale and the conveyance deed;
(B) Authenticated copy of the legal title deed reflecting the title of the promoter to the land on which development is proposed to be developed along with legally valid documents with authentication of such title, if such land is owned by another person;
(C) Land title Search Report from an advocate having experience of at least ten years in land related matters;
(D) Details of encumbranceson the land on which development is proposed including any rights, title, interest or name of any party in or over such land along with details or no encumbrance certificate from an advocate having experience of at-least ten years in land related matters;
(E) Where the promoter is not the owner of the land on which development is proposed details of the consent of the owner of the land along with a copy of the collaboration agreement, development agreement, joint development agreement or any other agreement, as the case may be, entered into between the promoter and such owner and copies of title and other documents reflecting the title of such owner on the land proposed to be developed;
(F) Sanction letters:
o From banks for construction finance;
o From banks for home loan tie-ups.
f. Contact details: Contact address, contact numbers and email ids of the promoter and other officials handling the project.
g. Such other documents or information as may be specified by the Act or the rules and regulations made thereunder.
(2) For the purpose of clause ( c ) of section 34, the regulatory authority shall maintain a database and ensure that the information specified therein shall be made available on its website in respect of each project revoked or penalized, as the case may be.
(3) For the purpose of clause (d) of section 34, the regulatory authority shall ensure that the following information shall be made available on its website in respect of each real estate agent registered with it or whose application for registration has been rejected or revoked;
(a) For real estate agents registered with the Authority;
i. registration number and the period of validity of the registration of the real estate agent with the regulatory authority;
ii. brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies etc.);
iii. particulars of registration including the bye-laws, memorandum of association, articles of association etc. as the case may be;
iv. photograph of the real estate agent if it is and individual and the photograph of the partners, directors etc. in case of other persons;
v. authenticated copy of the PAN card;
vi. income tax returns filed under the provisions of the Income Tax Act, 1961 for three financial years preceding the application or in case the applicant was exempted from filing returns under the provisions of the Income Tax Act, 1961 for any of the three year preceding the application, a declaration to such effect;
vii. authenticated copy of the address proof of the place of business and the contact address, contact numbers and email-ids of the real estate agent and other officials responsible.
(b) In case of applicants whose application for registration as a real estate agent have been rejected or real estate agents whose registration has been revoked by the regulatory authority;
(i) registration number and the period of validity of the registration of the real estate agent with the regulatory authority;
(ii) brief details of his enterprise including its name, registered address, type of enterprise (proprietorship, societies, partnership, companies etc.);
(iii) photograph of the real estate agent if it is and individual and the photograph of the partners, directors etc. in case of other persons.
(c) Such other documents or information as may be specified by the Act or the rules and regulations made thereunder.
(4) The Authority shall maintain a back-up, in digital form, of the contents of its website in terms of this rule, and ensure that such back-up is updated on the last day of each month.
CHAPTER V
RATE OF INTEREST PAYTABLE BY PROMOTER ANDALLOTTEE AND TIMELINES FOR REFUND
17. Rate of interest payable by the promoter and the allottee.-The rate of interest payable by the promoter to the allottee or by the allottee to the promoter, as the case may be, shall be the State Bank of India Prime Lending Rate plus two percent. (The interest rate charged by banks to their largest, most secure, and most creditworthy customers on short-term loans.)
18. Timelines for refund.-Any refund of monies along with the applicable interest and compensation, if any, payable by the promoter in terms of the Act or the rules and regulations made thereunder, shall be payable by the promoter to the allottee within forty-five days from the date on which such refund along with applicable interest and compensation, if any, becomes due.
CHAPTER VI
REAL ESTATE REGULATORY AUTHORITY
19. Manner of selection of chairperson and members of the Authority.
1. As and when vacancies of Chairperson or a Member in the regulatory authority exist or arise, or are likely to arise, the State Government may make a reference to the Selection Committee in respect of the vacancies to be filed.
2. The Selection Committee may, for the purpose of selection of the Chairperson or a Member of the regulatory authority, follows such procedure as it deem fit to suggest a panel of names possessing the requisite qualification and experience and suitable for being considered for appointment as Chairperson or Member of the regulatory authority. The Selection Committee shall give preference to the eligible persons who have served in the Housing department of any State Government or the government of India.
3. The Selection Committee shall select three persons for each vacancy and recommend the same to the State Government.
4. The Selection Committee shall make its recommendation to the State Government within a period of sixty days from the date of reference made under sub-rule (1)
5. The State Government shall within thirty days from the date of the recommendation by the Selection Committee, appoint one of the three persons recommended by the Selection Committee for the vacancy of the Chairperson or Member, as the case may be.
20. Salary and allowances payable and other terms and conditions of service of Chairperson and Members of the regulatory authority.- (1) The salaries and allowances payable to the Chairperson and Members of the regulatory authority shall be as follows:
(a) The Chairperson shall be paid a consolidated monthly salary of two lakh fifty thousand rupees and they shall not be entitled to any allowance relating to house and vehicle;
(b) The whole-time Member shall be paid a consolidated monthly salary of two lakh rupees and they shall not be entitled to any allowance relating to house and vehicle;
(c) Every part-time member, who is not a servant of the Government, shall be paid a sitting fee for each day he attends the meetings of the regulatory authority as may be determined by the State Government, from time to time and they shall not be entitled to any allowance relating to house and vehicle.
(2) The Chairperson and every other Member shall be entitled to thirty days of earned leave for every year of service.
(3) The other allowances and conditions of service of the Chairperson and the whole-time Member shall be as per notification issued by the State Government from time to time.
21. Administrative powers of the Chairperson of the regulatory authority.- The administrative powers of the Chairperson of the regulatory authority shall include making decisions with regard to the following:
(a) All matters pertaining to staff strength, wages and salaries structures, emoluments, perquisites and personnel policies;
(b) All matters pertaining to creation and abolition of posts;
(c) All mater pertaining to appointments, promotions, and confirmation for all posts;
(d) Acceptance of resignation by any Member, officer or employee;
(e) Officiating against sanctioned posts;
(f) Authorization of tours to be undertaken by any Member, officer or employee: within and outside India and allowance to be granted for the same:
(g) All matters in relation to reimbursement of medical claims;
(h) All matters in relation to grant or rejection of leaves.
(i) Permission for hiring of vehicles for official use.
(j) Nominations for attending seminars, conferences and training courses in India or abroad;
(k) Permission for invitation of guests to carry out training course;
(l) All matters pertaining to staff welfare expenses;
(m) Sanction scrapping or write-off of capital assets which due to normal wear and tear have become unserviceable or are considered beyond economical repairs;
(n) All matters relating to disciplinary action against any Member, officer or employees;
(o) Any other powers that may be required for the efficient functioning of the Authority and enforcement of the provisions of the Act and these Rules.
22. Salary and allowances payable and other terms and conditions of service of the officers and other employees of the regulatory authority and experts and consultants engaged by the regulatory authority.-(1) The conditions of service of the officers and employees of the Authority and any other category of employees in the matter of pay, allowances, leave, joining time, joining time pay age of superannuation and other conditions of se4rvice, shall be regulated in accordance with such rules and regulations as are, from time to time, applicable to officers and employees of the State Government and drawing the corresponding scales of pay;
(2) Consultants or experts that may be engaged by the Authority:
(a) Shall be paid a monthly honorarium as may be determined by the State Government from time to time;
(b) The consultant or expert shall not be deemed to be regular members of the staff borne on the establishment of the Authority;
(c) The consultant or expert may be appointed for tenure of one year, extendable on year to year basis.
(d) The terms of their appointment may be terminated by the Authority by serving one month’s notice.
(3) The State Government shall have a power to relax the provisions of any of these rules in respect of any class or category of officers or employees or consultants and experts, as the case may be.
23. Functioning of the Authority.-(1) the office of the regulatory authority shall be located at such place as may be determined by the State Government by notification.
(2) The working days and office hours of the regulatory authority shall be the same as that of the State Government.
(3) The official common seal and emblem of the regulatory authority shall be such as the State Government may specify.
24. Additional powers of the Authority.- (1) In addition to the powers specified in subsection (2) of section 35 the regulatory authority shall have the following additional powers;
(a) Require the promoter, allottee or real estate agent to furnish in writing such information or explanation or produce such documents within such reasonable time, as it may deem necessary;
(b) Requisitioning, subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), any public record or document or copy of such record or document from any office.
(2) The regulatory authority may call upon such experts or consultants from the fields of economics, commerce, accountancy, real estate, competition, construction architecture or engineering or from any other discipline as it deems necessary, to assist the regulatory authority in the conduct or any inquiry or proceedings before it.
(3) On receipt of the application in prescribed form and complete in all respects under section 4 read with rule 3 for registration of a project, the Authority may review the documents submitted along with the application under rule 3 and enquire, inter-alia, into the following matters and such other matters, as it may consider necessary, prior to grant of registration within the time prescribed under sub-section (1) of section 5, namely:-
(a) the nature of rights and interest of the promoter to the land which is proposed to be developed;
(b) extent and location of area of land proposed to be developed;
(c) lay out plan of the project;
(d) financial, technical and managerial capacity of the promoter to develop the project;
(e) plan regarding the development works to be executed in the project; and
(f) conformity of development of the project with neighboring areas.
(4) The authority may in the interest of the allottees, enquire into the payment of amounts imposed as penalty, interest or compensation, paid or payable by the promoter, in order to ensure that the promoter has not;
(a) Withdrawn the said amounts from the account maintained as provided under sub clause (D) of clause (1) of the sub-section (2) of section 4; or
(b) Used any amounts paid to such promoter by the allottees for the that real estate project for which the penalty, inte4rest or compensation is payable, or any other real estate project;
(c) Recovered by amounts paid as penalty, fine or compensation from the allottees of the relevant real estate project or any other real estate project.
25. Manner of recovery of interest, penalty and compensation.-Subject to the provisions of sub-section (1) of section 40, the recovery of the amounts due as arrears of land revenue shall be carried out in the manner provided in local laws.
26. Manner of implementation of order, direction or decisions of the adjudicating officer, the Authority or the Appellate Tribunal.- For the purpose of sub-section (2) of section 40, every order passed by the adjudicating officer, regulatory authority or Appellate Tribunal, as the case may be, under the Act or thy rules and regulations made thereunder, shall be enforced by the adjudicating officer, regulatory authority or the Appellate Tribunal in the same manner as if it were a decree or order made by the principal civil court in a suit pending therein and it shall be lawful for the adjudicating officer, regulatory authority or Appellate Tribunal, as the case may be in the event of its inability to execute the order, send such order to the principal civil court, to execute such order either within the local limits of whose jurisdiction the real estate project is located or in the principal civil court within the local limits of whose jurisdiction the person against whom the order is being issued, actually and voluntarily resides, or carries on business, or personally works for gain.
CHAPTER VII
CENTRAL ADVISORY COUNCIL
27. Manner of giving effect to the recommendation of the Central Advisory Council.-
(1) Pursuant to its establishment as per sub-section (1) of section 41 of the Act the Central Advisory Council shall, at such intervals as it may deem necessary, make recommendation on the matters set out in sub-section (1) of section 42 of the Act.
(2) The Central Advisory Council shall prepare draft recommendation and invite comments on the same from stakeholders, experts, civil society etc.
(3) Upon receipt of comments on the draft recommendation as per sub-rule (2), the Central Advisory Council shall finalize its recommendation after incorporating such comments as it may deem appropriate and refer the same to the Central Government, who shall have the authority-
(a) to accept such recommendation in entirety;
(b) to accept such recommendation with such amendments as may deem fit and proper;
(c) to refer back such recommendation to the Central Advisory Council with its comments for consideration;
(d) to reject such recommendation.
(4) Pursuant to acceptance of the recommendations or part thereof the Central Government may share the recommendation of the Central Advisory Council with the State Government of States and Union Territories with Legislature for further necessary action to give effect to the said recommendation.
(5) As regards, the Union territories without Legislature, the Central Government may, if it deems fit, by notification, make rules to give effect to such recommendations of the Central Advisory Council.
CHAPTER VIII
REAL ESTATE APPELLATE TRIBUNAL
28. Form for filing Appeal and the fees payable.-(1) Every appeal field under subsection (1) of section 44 shall be accompanied by a fee of rupees one thousand in the form of a demand draft drawn on a nationalized bank in favour of the Appellate Tribunal and payable at the main branch of that Bank at the station where the seat of the said Appellate Tribunal is situated.
(2) Every appeal shall be field as per Form ‘L’ along with the following documents:
(a) An attested true copy of the order against which the appeal is field;
(b) Copies of the documents relied upon by the appellant and referred to in the appeal;
(c) An index of the documents.
(3) Procedure for filing the appeal shall be as decided by the Appellate Tribunal.
29. Manner of selection of members of the Appellate Tribunal.- (1) As and when vacancies of a Member in the Appellate Tribunal exist or arise, or are likely to arise, the State Government may make a reference to the Selection Committee in respect of the vacancies to be filled.
(2) The Selection Committee may, for the purpose of selection of the Member of the Appellate Tribunal, follow such procedure as deemed fit to suggest a panel of names possessing the requisite qualification and experience and suitable for being considered for appointment as Member of the Appellate Tribunal. The Selection Committee shall give preference to the eligible persons who have served in the Housing department of any State Government or the government of India
(3)The Selection Committee shall select two persons for each vacancy and recommend the same to the State Government.
(4) The Selection Committee shall make its recommendation to the State Government within a period of sixty days from the date of reference made under subrule (1).
(5) The State Government shall within thirty days from the date of the recommendation by the Selection Committee, appoint one of the two persons recommended by the Selection Committee for the vacancy of the Member.
30. Salary and allowances payable and other terms and conditions of service of Chairperson and Members of the Appellate Tribunal.- (1) The salaries and allowances payable to the Chairperson and Members of the Appellate Tribunal shall be as follows:
(a) The Chairperson shall be paid a monthly salary equivalent to the last drawn salary by such person, as a Judge of a High Court;
(b) The whole-time Member shall be paid a monthly salary equivalent to the last drawn salary at the post held by such person, prior to his appointment as a Member of the Appellate Tribunal;
(c) Every full-time Member, who is not a servant of the Government, shall be paid a monthly salary equivalent to the Additional Secretary to the Government of India;
(d) Every part-time Member, who is not a servant of the Government, shall be paid a sitting fee for each day he attends the meetings of the Appellate Tribunal as may be determined by the State Government, from time to time.
(2) The Chairperson and every other Member shall be entitled to thirty days of earned leave for every year of service.
(3) The other allowances and conditions of service of the Chairperson and the whole time Member shall be as per notification issued by the State Government from time to time.
31. Procedure for inquiry of the charges against the Chairperson or Member of the Authority or the Appellate Tribunal.– (1) In the event of the State Government becoming aware of occurrence of any of the circumstances specified in clause (d) or clause (e) of sub-section(1) of section 26 in case of a Chairperson or Member of the regulatory authority or as specified under sub-section (1) of section 49 in case of a Chairperson or Member of the Appellate Tribunal, by receipt of a complaint in this regard or suomotu, as the case may be, the State Government shall make a preliminary scrutiny with respect to such charges against the Chairperson or any member of the regulatory authority or Appellate Tribunal as the case may be.
(2) If, on preliminary scrutiny, the State Government considers it necessary to investigate into the allegation, it shall place the complaint, if any together with supporting material as may be available, before a judge of the High Court.
(3) The State Government shall forward to the Judge, copies of –
(a) the statement of charges against the Chairperson or Member of the regulatory authority or Appellate Tribunal, as the case may be; and
(b) material documents relevant to the inquiry
(4) The Chairperson or Member of the Authority or Appellate Tribunal, as the case may be, shall be given a reasonable opportunity of being heard with respect to the charges within the time period as may be specified in this behalf by the Judge.
(5) Where it is alleged that the Chairperson or Member Appellate Tribunal is unable to discharge the duties of his office efficiently due to any physical or mental incapacity and the allegation is denied, the Judge may arrange for the medical examination of the Chairperson or Member of the Appellate Tribunal.
(6) After the conclusion of the investigation, the Judge shall submit his report to the State Government starting therein his findings and the reasons thereof on each of the articles of charges separately with such observations on the whole case as he thinks fits.
(7) Thereafter, the State Government shall in consultation with the Chief Justice of the High Court decide to either remove or not to remove the Chairperson or Member of the regulatory authority or Appellate Tribunal, as the case may be.
32. Salary and allowances payable and other terms and conditions of service of the officers and other employees of the Appellate Tribunal.-(1) The conditions of service of the officers and employees of the Authority and any other category of employees in the matter of pay, allowances. Leave, joining time, joining time pay, age of superannuation and other conditions of service, shall be regulated in accordance with such rules and regulations as are, from time to time, applicable to officers and employees of the State Government and drawing the corresponding scales of pay;
(2) The State Government shall have power to relax the provisions of any of these rules in respect of any class or category of officers or employees or consultants and experts, as the case may be.
33. Additional powers of the Appellate Tribunal.- The Appellate Tribunal may call upon such experts or consultants from the fields of economics, commerce, accountancy, real estate, competition, construction, architecture or engineering or from any other discipline as it deems necessary, to assist the Appellate Tribunal in the conduct of any inquiry or proceedings before it.
34. Administrative powers of the Chairperson of the Appellate Tribunal.- The administrative powers of the Chairperson of the Appellate Tribunal shall include making decisions with regard to the following:
A) All matters pertaining to staff strength, wages and salaries structures, emoluments, perquisites and personnel policies;
B) All matters pertaining to creation and abolition of posts;
C) All matter pertaining to appointment, promotions and confirmation for all posts;
D) Acceptance of resignations by any member, officer or employee;
E) Officiating against sanctioned posts;
F) Authorization of tours to be undertaken by any member, officer or employee within and outside India and allowance to be granted for the same;
G) All matters in relation to reimbursement of medical claims;
H) All matters in relation to grant or rejection of leaves;
I) Permission for hiring of vehicles for official use;
J) Nominations for attending seminars, conferences and training courses in India or abroad;
K) Permission for invitation of guests to carry out training course
L) all matters pertaining to staff welfare expenses;
M) sanction scrapping or write-off of capital assets which due to normal wear and tear have become unserviceable or are considered beyond economical repairs;
N) all matters relating to disciplinary action against any Member, officer or employee;
O) any other powers that may be required for the efficient functioning of the Appellate Tribunal and enforcement of the provisions of the Act and these Rules.
CHAPTER IX
OFFENCES AND PENALTIES
35. Terms and conditions and the fine payable for compounding of offence.- (1) The court shall, for the purposes of compounding any offence specified under section 70, accept a sum of money as specified in the Table below:
Offence Money to be paid for compounding the offence
Imprisonment under sub section (2) of section 59 (punishment for non-registration) 10% of the estimated cost of the real estate project
Imprisonment under section 64, (failure to comply appellate authority’s order by Promoter 10% of the estimated cost of the real estate project
Imprisonment under section 66 (failure to comply appellate authority’s order by Agent) 10% of the estimated cost of the plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated
Imprisonment under section 68 (offences by company) 10% of the estimated cost of the plot, apartment or building, as the case may be
Provided that the State Government may, by notification in the official gazette, amend the rates specified in the table above.
(2) On payment of the sum of money in accordance with the table above, any person in custody in connection with that offence shall be set at liberty and no proceedings shall be instituted or continued against such person in any court.
(3) The acceptance of the sum of money for compo9unding an offence in accordance with the table above, by the Court shall be deemed to amount to an acquittal within the meaning of section 300 of the Code of Criminal Procedure, 1973.
(4) The Promoter, allottee or real estate agent, as the case may be, shall comply with the orders of the regulatory authority or the Appellate Tribunal, within the period specified by the court, which shall not be more than 30 days from the date of compounding of the offence.
36. Manner of filing a complaint with the regulatory authority and the manner of holding an inquiry by the regulatory authority.- (1) Any aggrieved person may file a complaint with the regulatory authority for any violation under the Act or the rules and regulations made thereunder, save as those provided to be adjudicated by the adjudicating officer, as per Form ‘M’ which shall be accompanied by a fee of rupees one thousand in the formof a demand draft drawn on a nationalized bank in favour of regulatory authority and payable at the main branch of that bank at the station where the seat of the said regulatory authority is situated.
(2) The regulatory authority shall for the purposes of deciding any complaint as specified under sub-rule (1), follow summary procedure for inquiry in the following manner:
A) Upon receipt of the complaint the regulatory authority shall issue a notice along with particulars of the alleged contravention and the relevant documents to the respondent;
B) The notice shall specify a date and time for further hearing;
C) On the date so fixed, the regulatory authority shall explain to the respondent about the contravention alleged to have been committed in relation to any of the provisions of the Act or the rules and regulations made thereunder and if the respondent;
i. Pleads guilty, the regulatory authority shall record the plea, and pass such orders including imposition of penalty as it thinks fit in accordance with the provisions of the Act or the rules and regulations, made thereunder;
ii. Does not plead guilty and contests the complaint the regulatory authority shall demand and explanation from the respondent;
D) In case the regulatory authority is satisfied on the basis of the submissions made that the complaint does not require any further inquiry it may dismiss the complaint;
E) In case the regulatory authority is satisfied on the basis of the submissions made that the there is need for further hearing into the complaint it may order production of documents or other evidence on a date and time fixed by it;
F) The regulatory authority shall have the power to carry out an inquiry into the complaint on the basis of documents and submissions;
G) On the date so fixed, the regulatory authority upon consideration of the evidence produced before it and other records and submissions is satisfied that –
i. The respondent is in contravention of the provisions of the Act or the rules and regulations made thereunder it shall pass such orders including imposition of penalty as it thinks fit in accordance with the provisions of the Act or the rules and regulations made thereunder;
ii. The respondent is not in contravention of the provisions of the act or the rules and regulations made thereunder the regulatory authority may be order in writing, dismiss the complaint, with reasons to be recorded in writing.
H) If any person fails, neglects or refuses to appear, or present himself as required before the regulatory authority the regulatory authority shall have the power to proceed with the inquiry in the absence of such person or persons after recording the reasons for doing so.
37. Manner of filing a complaint with the adjudicating officer and the manner of holding an inquiry by the adjudicating officer.- (1) Any aggrieved person may file a complaint with the adjudicating officer for a compensation under section 12, 14, 18 and 19 as per Form ‘N’ which shall be accompanied by a fee of rupees one thousand in the form of a demand draft drawn on a nationalized bank in favour of regulatory authority and payable at the main branch of that bank at the station where the seat of the said regulatory authority is situated.
(2) The adjudicating officer shall for the purposes of adjudging compensation follow summery procedure for inquiry in the following manner:
i) Upon receipt or the complaint the adjudicating officer shall issue a notice along with particulars of the alleged contravention and the relevant documents to the promoter;
j) The notice shall specify a date and time for further hearing;
k) On the date so fixed, the adjudicating officer shall explain to the promoter about the contravention alleged to have been committed in relation to any of the provisions of the Act or the rules and regulations made thereunder and if the promoter;
(i) pleads guilty, the adjudicating officer shall record the pleaand award such compensation as he thinks fit in accordance with the provisions of the Act or the rules and regulations, made thereunder;
(ii) does not plead guilty and contests the complaint the adjudicating officer shall demand and explanation from the promoter;
l) In case the adjudicating officer is satisfied on the basis of the submissions made that the complaint does not require any further inquiry it may dismiss the complaint;
m) In case the adjudicating officer is satisfied on the basis of the submissions made that the there is need for further hearing into the complaint it may order production of documents or other evidence on a date and time fixed by him;
n) The adjudicating officer shall have the power to carry out an inquiry into the complaint on the basis of documents and submissions;
o) On the date so fixed, the adjudicating officer upon consideration of the evidence produced before him and other records and submissions is satisfied that the promoter is –
(i) liable to pay compensation, the adjudicating officer may, by order in writing, order payment of such compensation, as deemed fit by the promoter to the complaint; or
(ii) not liable to any compensation, the adjudicating officer may, by order in writing, dismiss the complaint, with reasons to be recorded in writing.
p) If any person fails, neglects or refuses to appear, or present himself as required before the adjudicating officer, the adjudicating officer shall have the power to proceed with the inquiry in the absence of such person or persons after recording the reasons for doing so.
CHAPTER X
BUDGET AND REPORT
38. Budget, accounts and audit.- The regu7latory authority shall prepare a budget, maintain proper accounts and other relevant records and prepare an annual statement of accounts as provided in section 77 as per Form ‘O’.
39. Report and Returns.-The regulatory authority shall prepare its annual report as provided in section 78 as per Form ‘P’.
By LNN (Liyans News Network)
