Understanding how to execute WBRERA refund orders in West Bengal is crucial due to the rampant disregard of such orders by developers.
Implementation of WBRERA in West Bengal
The Real Estate (Regulation & Development) Act 2016 (RERA) stands as a beacon of hope for homebuyers, offering them legal recourse against unscrupulous practices in the real estate sector. However, the efficacy of this legislation hinges on the efficient execution of its orders. Here, we delve into the intricate process of executing RERA orders in West Bengal, shedding light on the steps involved and recent developments to bolster buyer protection. However, if you need specific assistance, consult an experienced property lawyer in West Bengal.
Understanding WBRERA Orders
RERA empowers homebuyers with a suite of rights, primarily entitling them to seek either a refund of invested amounts or compensation for delays and breaches of agreement terms. Notably, these reliefs are sought before the Real Estate Regulatory Authority (RERA) for refund and the Adjudicating Officer for compensation.
Granting of Refund Orders
In West Bengal, the process of issuing refund orders by the WBRERA is meticulous. A clear refund order is granted when the promoter fails to demonstrate the ability to deliver the property within the time frame mentioned in the agreement for sale or booking agreement or memorandum of understanding. Conversely, if the promoter assures delivery within a reasonable timeframe, contingent refund orders are issued, balancing the interests of all parties involved. However, it may be the case that you have already received the refund orders, but you do not know how to execute WBRERA refund orders in West Bengal. This is where an experienced property lawyer in West Bengal can be of critical help.
Execution of RERA Orders in West Bengal
Should a promoter fail to comply with a refund order within 45 days, the aggrieved party must initiate the execution process. This involves filing an Execution request with the WBRERA portal, prompting the issuance of a notice to the builder. Subsequently, if the builder persists in non-compliance, a Recovery Certificate is issued under section 40 of WBRERA. Under WBRERA, the executing authority for any order is the RERA Authority in West Bengal.
District Magistrate Role in Execution of WBRERA Refund Orders
The WBRERA Authority may execute the order itself or send the order for execution to the District Magistrate (DM) having jurisdiction as per Rule 25 or to the Principal Court having jurisdiction as per Rule 26 of WBRERA Rules 2021. This culminates in the involvement of the District Magistrate (DM), who has the authority to seek such refund as arrears of revenue under Rule 25 of the WBRERA Rules 2021 in a manner as provided under the West Bengal Public Demands Recovery Act, 1913. In extreme situations, the DM may also seize the non-compliant builder or developer’s bank accounts and auction properties. You may learn more about how to execute WBRERA refund orders in West Bengal by reading here.
Under the Real Estate (Regulation & Development) Act 2016 (“the RERA Act”), if the Promoter fails to deliver the Flat or Plot to the Allottee as per the terms and conditions of the Builder Buyer Agreement / Agreement for Sale, or any such agreement, then the Allottee possesses certain rights to seek refund and compensation.
Refund Options under WBRERA
These include the option to either request a refund of the amount paid thus far for the real estate property along with State Bank of India Prime Lending Rate (SBI PLR) +2%, or to remain in the Project while seeking delay penalties at SBI PLR +2% applicable rate from the promised date of delivery of the Flat/Plot as per the Builder Buyer Agreement / Agreement for Sale, or any such agreement. Furthermore, the Allottee can seek compensation for any losses incurred due to non-fulfilment of the terms and conditions of the Builder Buyer Agreement / Agreement for Sale, such as loss of opportunity, payment of rent or EMIs, missed educational opportunities for the allottee’s children, or investment opportunities. Typically, relief is sought before the concerned Real Estate Regulatory Authority (“the RERA”), and heard by the Adjudicating Officer or Authority of the WBRERA.
Power of Recovery to Execute WBRERA Refund Orders
Under Section 63 of WBRERA, stringent penalties are imposed for non-compliance, with promoters liable for penalties of up to five per cent of the project’s estimated cost for each day of default. Under Section 40 of WBRERA if any adjudicating officer, Regulatory Authority, or Appellate Tribunal issues an order or directive within their authority as per the Real Estate (Regulation & Development) Act 2016 or its associated rules and regulations, and if any individual fails to comply with such orders or directives, enforcement will be carried out under the prescribed procedures in West Bengal. Furthermore, RERA authorities can direct the DM to recover compensation or refund as arrears of land revenue as per the Bengal Public Demands Recovery Act, of 1913.
The Supreme Court in the case of Newtech Promoters and Developers Pvt. Ltd. vs. State of UP and Others, 2021 SCC OnLine SC1044, considering the RERA framework, emphasized that the allottee’s life savings, along with interest computed by the authority, must be returned, making such arrears legally enforceable. Section 40 of the Act presents some ambiguity, which, in our interpretation, should be harmonized with the Act’s purpose to avoid redundancy and ensure effectiveness. Therefore, the determined refundable amount to allottees/home buyers, as per the authority or adjudicating officer’s order, falls within the purview of Section 40 of the Act. Additionally, Section 41 empowers the authority (adjudicating officer) to enforce orders under prescribed methods, as detailed under WBRERA.
Execution of WBRERA Refund Orders
In a bid to streamline the execution process, WBRERA has decided to leverage provisions of the Civil Procedure Code (CPC) as well. This entails attaching properties and appointing receivers to ensure compliance, especially in cases where builders or developers flout possession orders. Such proactive measures showcase the commitment of authorities to safeguarding buyer rights.
If the District Magistrate delays or fails to exercise their powers in the recovery process as per WBRERA, the allottee can also seek recourse by petitioning the High Court for a writ of mandamus against the DM, requesting prompt action within a specified timeframe. In this manner, you can execute WBRERA refund orders in West Bengal.
If the District Magistrate neglects to enforce an Execution Order issued by RERA, you may also initiate Contempt Proceedings at the High Court against the District Magistrate. This is also an important avenue to execute WBRERA refund orders in West Bengal.
Why Do You Need to Execute WBRERA Refund Orders?
The core ethos of RERA is to safeguard the interests of homebuyers, and efficient execution of its orders is paramount to achieving this goal. While challenges persist, recent initiatives by WBRERA signal a positive shift towards bolstering buyer protections and you may also take steps to execute WBRERA refund orders. By harnessing the powers vested in them, authorities can instil confidence in the judicial system and ensure justice prevails in the realm of real estate transactions. For further help or assistance in WBRERA matters and to execute WBRERA refund orders, contact an experienced property lawyer in West Bengal here.