West Bengal Act XLI of 2017
THE WEST BENGAL HOUSING INDUSTRY REGULATION
ACT, 2017.
An Act to establish the Housing Industry Regulatory Authority for regulation and promotion of the housing sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto.
WHEREAS it is expedient to establish the Housing Industry Regulatory Authority for regulation and promotion of the housing sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector
The West Bengal Housing Industry Regulation Act, 2017.
(Chapter 1- Preliminary-Sections 1, 2.)
And to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto.
It is hereby enacted in the Sixty-eighth Year of the Republic of India, by the Legislature of West Bengal, as follows:
Chapter 1
Preliminary
1. (1) This act may be called the West Bengal Housing Industry Regulation Act 2017.
(2) It extends to the whole of West Bengal.
(3) This section shall come into force at once and the remaining sections shall come into force on such date or dates at the state Government may, by notification in the official Gazette, appoint and different dates may be appointed for different sections of this Act.
2. In this Act, unless the context otherwise requires,--
Advertisement means any document described or issued as advertisement through any medium and includes any notice, circular or other document or publicity in any form ,informing persons about a real estate project, or offering for sale of a plot, building or
Explanation.—For the purpose of this clause, the expression “exclusive balcony or verandah area” means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee and “exclusive open terrace area” means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee;
“external development works “ including roads and road systems landscaping ,water supply, sewerage and drainage systems ,electricity supply transforemer,sub-station,solid waste
(za) "Interest" means the rates of interest payable by the promoter or the allottee, as the case may be;
Explanation. -- For the purpose of this clause--
(zb) "Internal development works" means roads, footpaths, water supply, sewers, drains, parks, tree planting, street lighting, provision for community buildings and for treatment and disposal of sewage and silage water, solid waste management and disposal, water conservation, energy management, fire protection and fire safety requirements, social infrastructure such as educational health and other public amenities or any other work in a project for its benefit, as per sanctioned plans;
(zc) local authority" means the Municipal Corporation or Municipality or Panchayat or Industrial Township Authority or any other Local Body constituted under any law for the time being in force for providing municipal services or basic services, as the case may be, in respect of areas under its jurisdiction;
(zd) "Member" means the member of the Housing Industry Regulatory Authority appointed under section 21 and includes the Chairperson;
(ze) "Notification" means a notification published in the Official Gazette;
(zf) "occupancy certificate" means the occupancy certificate, or such other certificate by whatever name called, issued by the competent authority permitting occupation of any building, as provided under local laws, which has provision for civic infrastructure such as water, sanitation and electricity:
(Zg) "Person" includes,--
(Zh) "Prescribed" means prescribed by rules made under this Act;
(zi) "Project" means the real estate project as defined in clause (zm);
(zj) promoter means,--
Explanation.-For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the persons who sells apartments or plots are different persons, both of them shall be deemed to be the promoters and shall be jointly liable as such for the functions and responsibilities specified, under this Act or the rules and regulations made there under;
(zk) "prospectus" means any document described or issued as a prospectus or any notice, circular, or other document offering for sale of any real estate project or inviting any person to make advances or deposits for such purposes;
(zl) "real estate agent" means any person, who negotiates or acts on behalf of one person in a transaction of transfer of his plot, apartment or building, as the case may be, in a real estate project, by way of sale, with another person or transfer of plot, apartment or building, as the case may be, of any other person to him and receives remuneration or fees or any other charges for his services whether as commission or otherwise and includes a person who introduces, through any medium, prospective buyers and sellers to each other for negotiation for sale or property dealers, brokers, middlemen by- whatever name called;
(zm) "real estate project" means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartment, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto;
(zn) "Regulations" means the regulations made by the Authority under this Act;
(zo) "Rule'" means the rules made under this Act by the State Government;
(zp) "sanctioned plan" means the site plan, building plan, building permit, service plan, parking and circulation plan, landscape plan, layout plan, zoning plan and such other plan and includes structural designs, if applicable, permissions such as environment permission and such other permissions, which are approved by the competent authority prior to start of a real estate project;
(zq) "State Government" means the State Government in the Housing Department;
(zr) words and expressions used herein but not defined in this Act and defined in any law for the time being in force or in the municipal laws or such other relevant laws of the State Government shall have the same meanings respectively assigned to them in those laws.
CHAPTERII
REGISTRATION OF REAL ESTATE PROJECT AND REGISTRATION OF REAL ESTATE AGENTS
3. (1) No promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building, as the case may be, in any real estate project or part of it, without registering the real estate project with the Housing Industry Regulatory Authority established under this Act:
Explanation.-For the purpose of this section, where the real estate project is to be developed in phases, every such shall be considered a standalone real estate project, and the promoter shall obtain registration under this Act for each phase separately.
4. 1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be specified by the regulations made by the Authority.
2) The promoter shall enclose the following documents along with the application referred to in sub-section (1), namely:--
Explanation.-For the purpose of this clause, the term “schedule bank “means a bank included in the Second Schedule to the Reserve Bank of India Act, 1934;
5. (1) On receipt of the application under sub-section (1) of section 4, the Authority shall within a period of thirty days,
6. The registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be specified by regulations made by the Authority Provided that the Authority may in reasonable circumstances, without default on the part of the promoter, based on the facts of each case, and for reasons to be recorded in writing, extend the registration granted to a project for such time as it considers necessary, which shall, in aggregate, not exceed a period of one year:
Provided further that no application for extension of registration shall be rejected unless the applicant has been given an opportunity of being heard in the matter.
Explanation.-For the purpose of this section, the expression "force majeure" shall mean a case of war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project or any other circumstances as may be prescribed.
7. (1) The Authority may on receipt of a complaint or suomotu in this behalf or on the recommendation of the competent authority, revoke the registration granted under section 5, after being satisfied that
Explanation.-For the purposes of this clause, the term "unfair practice" means a practice which, for the purpose of promoting the sale or development of any real estate project, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely
8. Upon lapse of the registration or on revocation of the registration under this Act, the Authority, may consult the State Government to take such action as it may deem fit including the carrying out of the remaining development works by competent authority or by the association of allottees or in any other manner, as may be determined by the Authority:
9. (1) No real estate agent shall facilitate the sale or purchase of or act on behalf of any person to facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it, being the part of the real estate project registered under section 3, without obtaining registration under this section.
10. Every real estate agent registered under section 9 shall--
i) The practice of making any statement, whether orally or in writing or by visible representation which
CHAPTER III
FUNCTIONS AND DUTIES OF PROMOTER
11. (1) The promoter shal, upon receiving his Login ld and password under clause (a) of sub-section (1) or under sub-section (2) of section 5, as the case may be, create his web page on the website of the Authority and enter all details of the proposed project as provided under section 4, in all the fields as provided, for public viewing including-
(5) The promoter may cancel the allotment only in terms of the agreement for sale:
12. Where any person makes an advance or a deposit on the basis of the information contained in the notice advertisement or prospectus, or on the basis of any model apartment, plot or building, as the case may be, and sustains any loss or damage by the reason of any incorrect, false statement included therein, he shall be compensated by thepromoter in the manner as provided under this Act:
13. (1) A promoter shall not accept a sum more than ten per cent of the cost of the apartment, plot, or building, as the case may be, as an advance payment or an application promoter fee, from a person without first entering into a written agreement for sale with such person and register the said agreement for sale, under any law for the time being in force.
14. (1) The proposed project shall be developed and completed by the promoter in plans accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities by
Explanation.-For the purpose of this clause, the allottees, irespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc. by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.
15. (1) The promoter shall not transfer or a sign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of project the Authority
16. (1) the promoter shall obtain all such insurances as may be notified by the State Government, including but not limited to insurance in respect of
17. (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws
CHAPTER IV
RIGHTS AND DUTIES OF ALLOTTEES
19. (1) The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications, approved by the competent authority and such other information as provided in this Act or the rules and regulations made thereunder or the agreement for sale signed with the promoter
(2)The allottee shall be entitled to know stage-wise time schedule of completion of the project, including the provisions for water, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale.
3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under section 4.
(4)The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder.
(5) The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building, as the case may be, by the promoter.
(6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other lawful charges, if any
(7) The allottee shall be liable to pay interest, at such rate as may be prescribed, for any delay in payment towards any amount or charges to be paid under sub-section(6)
(8) The obligations of the allottee under sub-section (6) and the liability towards interest under sub-section (7) may be reduced when mutually agreed to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or building, as the case may be, shall participate towards the formation of an association or society or co-operative society of the allottees, or a federation of the same.
(10) Every allottee shall take physical possession of the apartment, plot or building, as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be.
(11) Every allottee shall participate towards registration of the conveyance deed of the apartment, plot or building. as the case may be, as provided under sub-section (1) of section 17 of this Act.
CHAPTER V
THE HOUSING INDUSTRY REGULATORY AUTHORITY
Establishment and incorporation of Housing Industry Regulatory Authority.
20. (1) The State Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Authority to be known as the West Bengal Housing Industry Regulatory Authority to exercise the powers conferred on it and to perform the functions assigned to it under this Act:
21. The Authority shall consist ofa Chairperson and not less than two Members to be appointed by the State Government.
22. The Chairperson and other Members of the Authority shall be appointed by the State Government on the recommendations of a Selection Committee consisting of the Chief Justice of the High Court or his nominee, Housing Secretary and the Law Secretary, in such manner as may be prescribed, from amongst persons having adequate knowledge of and professional experience of at least twenty years in case of the Chairperson and fifteen years in the case of the Members in urban development, housing, real estate development, infrastructure, economics, technical expertise from relevant fields, planning. law or administration:
23. (1) The Chairperson and Members shall hold office for a term not exceeding five years from the date on which they enter upon their office, or until they attain the age of sixty-five years, whichever is earlier and shall not be eligible for re-appointment.
(2) Before appointing any person as a Chairperson or Member, the State Government shall satisfy itself that the person does not have any such financial or other interest as is likely to affect prejudicially his functions as such Member
24. (1) The salary and allowances payable to and the other terms and conditions of service of the Chairperson and other Members shall be such as may be prescribed and shall not be varied to their disadvantage during their tenure.
(2) Notwithstanding anything contained in section 23, the Chairperson or a Member, as the case may be, may, relinquish his office by giving in writing, to the State Government, notice of not less than three months.
(3) Any vacancy caused to the office of the Chairperson or any other Member shall be filled-up within a period of three months from the date on which such vacancy
25. The Chairperson shall have powers of general superintendence and directions in the conduct of the affairs of Authority and he shall, in addition to presiding over the meetings of the Authority, exercise and discharge such administrative powers and functions of the Authority as may be prescribed.
26. (1) The State Government may, in accordance with the procedure notified,
other Member, as the case may be,
or
(2) The Chairperson or Member shall not be removed from his office on the ground specified under clause (d) or clause (e) of sub-section (1) except by an order made by the State Government after an inquiry made by a Judge of the High Court in which such Chairperson or Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
27. (1) The Chairperson or a Member, ceasing to hold office as such, shall not--
(a) accept any employment in, or connected with, the management or administration of, any person or organisation which has been associated with any work under this Act, from the date on which he ceases to hold office:
Provided that nothing contained in this clause shall apply to any employment under the State Government or a local authority or in any statutory authority or any corporation established by or under any Central, State or provincial Act or a Government Company, as defined under clause (45) of section 2 of the Companies Act, 2013, which is not a promoter as per the provisions of this Act;
(b) act, for or on behalf of any person or organisation in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or such Member had before cessation of office, acted for, or provided advice to, the Authority.
(c) give advice to any person using information which was obtained in his capacity as the Chairperson or a Member and being unavailable to or not being able to be made available to the public;
(d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such.
(e) The Chairperson and Members shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such.
28. (1) The State Government may, in consultation with the Authority appoint such officers and employees as it considers necessary for the efficient discharge of their functions under this Act who would discharge their functions under the general superintendence of the Chairperson.
(2) The salary and allowances payable to, and the other terms and conditions of service of, the officers and of the employees of the Authority appointed under sub section () shall be such as may be prescribed.
29. (1) The Authority shall meet at such places and times, and shall follow such rules of procedure in regard to the transaction of business at its meetings (including quorum at such meetings), as may be specified by the regulations made by the Authority.
(2) If the Chairperson for any reason, is unable to attend a meeting of the Authority, any other Member chosen by the Members present amongst themselves at the meeting, shall preside at the meeting
(3) All questions which come up before any meeting of the Authority shall be
decided by a majority of votes by the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the person presiding shall have second or casting vote.
(4) The questions which come up before the Authority shall be dealt with as expeditiously as possible and the Authority shall dispose of the same within a period of sixty days from the date of receipt of the application:
Provided that where any such application could not be disposed of within the said period of sixty days, the Authority shall record its reasons in writing for not disposing of the application within that period.
30. No act or proceeding of the Authority shall be invalid merely by reason of
(a) any vacancy in, or any defect in the constitution of, the Authority; or
(b) any defect in the appointment of a person acting as a Member of the Authority: or
(c) any iregularity in the procedure of the Authority not affecting the merits of the case.
31. (1) Any aggrieved person may file a complaint with the Authority for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter, allottee or real estate agent, as the case may be.
Explanation- For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.
(2) The form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations.
32. The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the State Government or the competent authority, as the case may be, on
(a) protection of interest of the allottees, promoter and real estate agent;
b) creation of a single window system for ensuring time bound project approvals and clearances for timely completion of the project;
(c) creation of a transparent and robust grievance redressal mechanism against acts of omission and commission of competent authorities and their officials
(d) measures to encourage investment in the real estate sector including measures to increase financial assistance to affordable housing segment;
(e) measures to encourage construction of environmentally sustainable and affordable housing, promoting standardization and use of State construction materials, fixtures, fittings and construction techniques;
(f) measures to encourage grading of projects on various parameters of development including grading of promoters;
(g) measures to facilitate amicable conciliation of disputes between the promoters and the allottees through dispute settlement forums set up by the consumer or promoter associations;
(h) measures to facilitate digitization of land records and system towards conclusive property titles with title guarantee;
(i) to render advice to the State Government in matters relating to the development of real estate sector
(j) any other issue that the Authority may think necessary for the promotion of the real estate sector
33. (1) The State Government may, while formulating a policy on real estate sector(including review of laws related to real estate sector) or any other matter, make areference to the Authority for its opinion on possible effect, of such policy or law on real estate sector and on the reccipt of such a reference, the Authority shall within a period of sixty days of making such reference, give its opinion to the State Government which may thereafter take further action as it deems fit.
(2) The opinion given by the Authority under sub-section (1) shall not be binding upon the State Government in formulating such policy or laws.
(3)The Authority shall take suitable measures for the promotion of advocacy, creating awareness and imparting training about laws relating to real estate sector and policies.
34. The functions of the Authority shall include –
(a) to register and regulate real estate projects and real estate agents registered under this Act;
(b) to publish and maintain a website of records, for public viewing, of all real estate projects for which registration has been given, with such details as may be prescribed, including information provided in the application for which registration has been granted;
(c)to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalized under this Act, with reasons therefor, for access to the general public;
(d) to maintain a database, on its website, for public viewing, and enter the names and photographs of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked;
(e) to fix through regulations for each areas under its jurisdiction the standard fees to be levied on the allottees or the promoter or the real estate agent, as the case may be;
(f) to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder;
g) to ensure compliance of its regulations or orders or directions made in exercise of its powers under this Act;
(h) to perform such other functions as may be entrusted to the Authority by the State Government as may be necessary to carry out the provisions of this Act.
35. (1) Where the Authority considers it expedient to do so, on a complaint or on its own relating to this Act or the rules or regulations made thereunder, it may, by order in writing and recording reasons therefor call upon any promoter or allottee or real estate agent, as the case may be, at any time to furnish in writing such information or explanation relating to its altairs as the Authority may require and appoint one or more persons to make an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be.
(2) Notwithstanding anything contained in any other law for the time being in force, while exercising the powers under sub-section (1), the Authority shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely:
36. Where during an inquiry, the Authority is satisfied that an act in contravention of this Act, or the rules and regulations made thereunder, has been committed and continues to be committed or that such act is about to be committed, the Authority
37. The Authority may for the purpose of discharging its functions under the provisions of this Act or rules or regulations made thereunder, issue such directions from time to time, to the promoters or allottees or real estate agents, as the case may be, directions.as it may consider necessary and such directions shall be binding on all concerned.
38. (1) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made thereunder.
(2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, the Authority shall have powers to regulate its own procedure.
39. The Authority may, at any time, within a period of two years from the date of
40. (1) If a promoter or an allottee or a real estate agent, as the case may be, fails pay any interest or penalty or compensation imposed on him by the Regulatory
CHAPTER VI
STATE ADVISORY COUNCIL
.41. (1) The State Government may, by notification, establish with effect from such date as it may specify in such notification, a Council to be known as the State Advisory Council
(2) The Minister to the Government of the State of West Bengal in charge of the Department dealing with Housing shall be the ex officio Chairperson of the State Advisory Council.
3) The State Advisory Council shall consist of representatives of the Finance Department, Department of Industry, Commerce & Enterprises, Department of Urban Development and Municipal Affairs, Department of Consumer Affairs, Law Department, five representatives of the Real Estate Regulatory Authorities to be selected by rotations, and any other State Government department as notified.
4) The State Advisory Council shall also consist of not more than ten members to represent the interests of real estate industry, consumers, real estate agents, construction labourers, non-governmental organisations and academic and research bodies in the real estate sector.
42. The functions of the State Advisory Council shall be to advise and recommend the State Government,
(a) on all matters concerning the implementation of this Act;
(b) on major questions of policy;
(c) towards protection of consumer interest;
(d) to foster the growth and development of the real estate sector,
(e)on any other matter as may be assigned to it by the State Government.
(f) The State Government may specify the rules to give effect to the recommendations of the State Advisory Council on matters as provided under sub-section (1).
CHAPTER VII
THE HOUSING INDUSTRY APPELLATE TRIBUNAL
43. The State Government shall establish an Appellate Tribunal to be known as the West Bengal Housing Industry Appellate Tribunal.
Explanation--For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force.
44. (1) The State Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority may prefer an appeal to the Appellate Tribunal.
45. The Appellate Tribunal shall consist of a Chairperson and not less than two whole time members of which one shall be a Judicial member and other shall be a Technical or Administrative Member, to be appointed by the State Government. Explanation.-For the purposes of this Chapter,
(i) "Judicial Member" means a Member of the Appellate Tribunal appointed as such under clause (b) of sub-section (1) of section 46.
(ii) "Technical or Administrative Member" means a Member of the Appellate Tribunal appointed as such under clause (c) of sub-section (1) of section 46.
46. (1) A person shall not be qualified for appointment as the Chairperson or a
47. (1) The Chairperson of the Appellate Tribunal or a Member of the Appellate Tribunal shall hold office, as such for a term not exceeding five years from the date on which he enters upon his office, but shall not be eligible for re-appointment:
2) Before appointing any person as Chairperson or Member, the State Government shall satisfy itself that the person does not have any such financial or other interest, as is likely to affect prejudicially his functions as such member
48. (1) The State Government may remove from office of the Chairperson or any Judicial Member or Technical or Administrative Member, as the case may be, of the Appellate Tribunal, who-
(a) has been adjudged as an insolvent; or
b) has been convicted of an offence which, in the opinion of the State Government involves moral turpitude; or
(C) has become physically or mentally incapable; or
(d) has acquired such financial or other interest as is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his continuance in office prejudicial to the public interest.
(f) The Chairperson or Judicial Member or Technical or Administrative Member, as the case may be, shall not be removed from his office except by an order made by the State Government after an inquiry made by the Judge of the High Court in which such Chairperson or Judicial Member or Technical or Administrative Member has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
(g) The State Government may suspend from the office of the Chairperson or Judicial Member or Technical or Administrative Member in respect of whom a reference of conducting an inquiry has been made to the Judge of the High Court under sub-section (2), until the State Government passes an order on receipt of the report of inquiry made by the Judge of the High Court on such reference
(h) The State Government may, by rules, regulate the procedure for inquiry referred to in sub-section (2).
49. (1) The salary and allowances payable to and the other terms and conditions of service of the Chairperson and other Members shall be such as may be prescribed and shall not be varied to their disadvantage during their tenure.
(2) Notwithstanding anything contained in section 47, the Chairperson or a Member, as the case may be, may relinquish his office by giving in writing to the State Government a notice of not less than three months.
(3) A vacancy caused to the office of the Chairperson or any other Member, as the case may be, shall be filled-up within a period of three months from the date on which such vacancy occurs.
Restrictions on Chairperson Judicial Member or Technical or Administrative Member on employment after cessation of office.
50. The Chairperson or Judicial Member or Technical or Administrative Member, ceasing to hold office as such shall not:
(2) The Chairperson or Judicial Member or Technical or Administrative Member shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such.
51. (1) The State Government shall provide the Appellate Tribunal with such officers and employees as it may deem fit.
(2) The officers and employees of the Appellate Tribunal shall discharge their functions under the general superintendence of its Chairperson.
(3) The salary and allowances payable to, and the other terms and conditions of service of, the officers and employees of the Appellate Tribunal shall be such as maybe prescribed.
52. It, for reason other than temporary absence, any vacancy occurs in the office ofthe Chairperson or a Member of the Appellate Tribunal, the State Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled.
53. (1) The Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice.
2) Subject to the provisions of this Act the Appellate Tribunal shall have power to regulate its own procedure.
3) The Appellate Tribunal shall also not be bound by the rules of evidence contained in the Indian Evidence Act, 1872.
4) The Appellate Tribunal shall have, for the purpose of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 in respect of the following matters, namely
(5) All proceedings before the Appellate Tribunal shall be deemed to be judicial
54. The Chairperson shall have powers of general superintendence and direction in the conduct of the affairs of Appellate Tribunal and he shall in addition to presiding over the meetings of the Appellate Tribunal exercise and discharge such administrative powers and functions of the Appellate Tribunal as may be prescribed.
55. No act or proceeding of the Appellate Tribunal shall be invalid merely by reason of
(a) any vacancy in or any defect in the constitution of the Appellate Tribunal, or
(b) any defect in the appointment ofa person acting as a Member of the
(c)any irregularity in the procedure of the Appellate Tribunal not affecting the merits of the case.
56. 1he applicant or appellant may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal or the Regulatory Authority, as the case may b
(a) "chartered accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(b) company secretary means a company secretary as defined in clause (C) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act;
(c)”cost accountant" means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 or any other law for the time being in force and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act
(d) "legal practitioner" means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice.
57. (1) Every order made by the Appellate Tribunal under this Act shall be executable by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court.
(2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court.
58. (1) Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908:
(2)Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(3) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties.
CHAPTER VIII
OFFENCES AND PENALTIES
59. (1) if any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to ten percent, of the estimated cost of the real estate project as determined by the Authority.
(2) If any promoter does not comply with the orders, decisions or directions issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to three years or with fine which may extend up to a further ten per cent, of the estimated cost of the real estate project, or with both.
60. If any promoter provides false information or contravenes the provisions of ,he shall be liable to a penalty which may extend up to five per cent, of the estimated cost of the real estate project, as determined by the Authority.
61. If any promoter contravenes any other provisions of this Act, other than that provided under section 3 or section 4 or the rules or regulations made thereunder, he shall be liable to a penalty which may extend up to five per cent, of the estimated cost of the real estate project as determined by the Authority.
Penalty for non-registration and contravention under section 9 and 10.
62. If any real estate agent fails to comply with or contravenes the provisions of section 9 or section 10, he shall be liable to a penalty of ten thousand rupees for every day during which such default continues, which may cumulatively extend up to five percent, of the cost of plot, apartment or buildings, as the case may be, of the real estate project, for which the sale or purchase has been facilitated as determined by the Authority.
63. If any promoter, who fails to comply with, or contravenes any of the orders or directions of the Authority, he shall be liable to a penalty for every day during which such default continues, which may29 of 34vely extend upto five per cent, of the estimated cost of the real estate project as determined by the Authority.
64. If any promoter, who fails to comply with, or contravenes any of the orders decisions or directions of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to three years or with fine for every day during which such default continues, which may cumulatively extend upto ten per cent, of the estimated cost of the real estate project, or with both.
65. If any real estate agent, who fails to comply with, or contravenes any of the orders, decisions or directions of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up to five percent, of the estimated cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated and as determined by the Authority.
66. If any real estate agent, who fails to comply with, or contravenes any of the orders, decisions or directions of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to one year or with tine for every day during which such default continues, which may cumulatively extend up to ten percent, of the estimated cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated, or with both.
67. If any allottee, who fails to comply with, or contravenes any of the orders, decisions or directions of the Authority, he shall be liable to a penalty for the period during which such default continues, which may cumulatively extend up to five per cent, of the plot, apartment or building cost, as the case may be, as determined by the Authority.
68. If any allottee, who fails to comply with, or contravenes any of the orders or directions of the Appellate 1Tribunal, as the case may be, he shall be punishable with imprisonment for a term which may extend up to one year or with fine for every day during which such default continues, which may cumulatively extend up to ten per cent, of the plot, apartment or building cost, as the case may be, or with both.
69. (1) Where an offence under this Act has been committed by a company, every person who, at the time, the offence was committed was in charge of , or was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section, shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (), where an offence under this Act has been committed by a company, and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
(a) "company" means any body corporate and includes a firm, or otherassociation of individuals; and
(b) "director" in relation to a firm, means a partner in the firm.
CHAPTER IX
FINANCE, ACCOUNTS, AUDITS AND REPORTS
70. The State Government may, after due appropriation made by State Legislatureby law in this behalf, make to the Authority. grants and loans of such sums of money as the State Government may think fit for being utilized for the purposes of this Act.
71. (1) The State Government shall constitute a fund to be called the Housing
Industry Regulatory Fund and there shall be credited thereto,
(a) all Government grants received by the Authority:
(b) the fees received under this Act;
(C) the interest accrued on the amounts referred to in clauses (a) to (b).
(d) The Fund shall be applied for meeting-
(e) the salaries and allowances payable to the Chairperson and other Members and the administrative expenses including the salaries and allowances payable to the officers and other employees of the Authority and the Appellate Tribunal;
(f) the other expenses of the Authority in connection with the discharge of its functions and for the purposes of this Act.
(g) The Fund shall be administered by a committee of such Members of the Authority as may be determined by the Chairperson.
(h) The committee appointed under sub-section (3) shall spend money out ofthe Fund for carrying out the objects for which the Fund has been constituted.Crediting Sums realized by way of Penalties to Con-Solidated Funds of State.
72. All sums realized, by way of penalties, imposed by the Appellate Tribunal orthe Authority shall be credited to Consolidated Fund of the State.
73. (1) The Authority shall prepare a budget, maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the State Government in consultation with the Comptroller and Auditor-General of India.
(2) The accounts of the Authority shall be audited by the Comptroller and Auditor- General of India at such intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Authority to the Comptroller and Auditor- General of India.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the accounts of the Authority under this Act shall have the same rights and privileges and authority in connection with such audit as the Comptroller and Auditor- General generally has in connection with the audit of Government accounts and in particular shall have the right to demand and production of books, accounts, connected vouchers and other docunments and papers, and to inspect any of the offices of the Authority.
(4) The accounts of the Authority, as certified by the Comptroller and Auditor General of India or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the State Government by the Authority and the State Government shall cause the audit report to be laid, as soon as may be after it is received, before the State Legislature.
74. (1) The Authority shall prepare a report once in every year, in such form and atsuch time as may be prescribed by the State Government which shall contain of--
(a) a description of all the activities of the Authority for the previous year,
(b) the annual accounts for the previous year, and
(C) the programs of work for the coming year.
(d)A copy of the report received under sub-section (1) shall be laid, as soon as may be after it is received, before the State Legislature.
CHAPTER X
MISCELLANEOUS
75. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
76. No court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder save on a complaint in writing made by the Authority or by any officer of the Authority duly authorized by it for this purpose.
77. The Authority may, by general or special order in writing, delegate to any member, officer of the Authority or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the power to make regulations under section 81), as it may deem necessary.
78. (1)I f, at any time, the State Government is of the opinion,---
(a) that, on account of circumstances beyond the control of the Authority, it is unable to discharge the functions or perform the duties imposed on it by or under the provisions of this Act; or
(b) that the Authority has persistently defaulted in complying with any direction given by the State Government under this Act or in the discharge of the functions or performance of the duties imposed on it by or under the provisions of this Act and as a result of such default the financial position of the Authority or the administration of the Authority has suffered; or
(c) that circumstances exist which render it necessary in the public interest the State Government may, by notification, supersede the Authority for such period, not exceeding six months, as may be specified in the notification: Provided that before issuing any such notification, the State Government shall give reasonable opportunity to the Authority to make representations against the proposed Supersession and shall consider the representations, if any, of the Authority.
2) Upon the publication of a notification under sub-section (1) superseding the Authority,--
(a) the Chairperson and other Members shall, as from the date of supersession, vacate their offices as such;
(b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Authority shall, until the Authority is reconstituted under sub-section (5), be exercised and discharged by the State Government or Such authority as the State Government may specify in this behalf;
(c)all properties owned or controlled by the Authority shall, until the Authority is reconstituted under sub-section (3), vest in the State Government.
(3) On or before the expiration of the period of supersession specified in the notification issued under sub-section (1), the State Govermment shall reconstitute the Authority by a fresh appointment of its Chairperson and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment.
(4) The State Government shall cause a copy of the notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before the State Legislature.
79. (1) Without prejudice to the foregoing provisions of this Act, the Authority shall, in exercise of its powers and in performance of its functions under this Act, be bound by such directions on questions of policy, as the State Government may give in writing to it from time to time:
80. (1) The State Government may, by notification, make rules for carrying out the provisions of this Act.
(2) All rules made under this Act shall be laid for not less than fourteen days before the State Legislature as soon as possible after they are made and shall be subject to such modification as the State Legislature may make during the session in which they are so laid. Any modification of the said rules made by the State Legislature shall be published in the Official Gazette, and shall, unless some later date is appointed by the State Government, come into force on the date of such publication.
81. The Authority shall, within a period of thre months of its establishment, by notification, make regulations, consistent with this Act and the rules made thereunder to carry out the purposes of this Act.
82. The Chairperson, Members and other officers and employees of the Authority, and the Appellate Tribunal, shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860.
83. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force.
84. (1) Anything which is done in good faith or intended to be done by any authority or any officer in this behalf in respect of anything done under this Act, the authority or the officer, as the case may be, shall be protected from prosecution, suit or any other legal proceeding
(2) If any loss or damage is caused or likely to be caused by anything which 1 in good faith done or intended to be done by the State Government in pursuance ot the provisions of this Act or any rules made thereunder, the State Government shall be protected from prosecution, suit or any other legal proceeding.
85. (1) If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before the state Legislature.
86. (1) The West Bengal Building (Regulation of Promotion of Construction andTransfer by promoters)Act,1993 is hereby repealed.
(2) Notwithstanding such repeal,----
(3) the provisions of the said enactments shall apply in relation to any proceeding relating to any real estate project which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to proceedings which commenced on or after this Act comes into force;
(4) all rules made and notifications published, under the said enactment shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.
By order of the Governor,
MADHUMATI MITRA.
Secy. to the Govt. of West Bengal,
Law Department
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