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We are team of experts rendering services related to Real Estate Regulatory Compliance along with other Legal Services within the field of Litigated and Non-litigatated matters including matters under RERA  ( Real Estate Regulatory Authority / Housing and Industrial Regulatory Authority ). We have been working on RERA  since the inception and subsequent rules and implementation of the act. You do compliance and handle all disputes on behalf of promoter / developer. We also handle disputes of the customers i.e the allottees. Providing required guidance to both developer as well as consumer is our key focus.

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Allottee is sufferer as to payment of registration duty

Allottee is sufferer as to payment of registration duty

Under WBHIRA, the Agreement for Sale shall be as per the model prescribed under the WBHIRA rules which clearly mentioned that the allottee shall purchased the Carpet Area as defined u/s 2(j) of the WBHIRA Act.

However, the stamp duty charged at the time of registration of the said instrument i.e. Agreement for Sale is calculated over the super built up area (which is much higher than the carpet area) by the registering Authority under West Bengal Stamp Duty Act.

It has become a practice which is followed by the registrar under West Bengal Registration Act to evaluate the property on the Super Built Up area for charging stamp duty which is clearly illegal as the same is barred by the WBHIRA Act.

The matter was referred before the West Bengal Consumer Affairs. As well as before the Housing Minister but no action has taken till date.

In my opinion, the allottee is being overcharged the government Authority and has paid over stamp duty over and above carpet area which is in contradiction to the provision of WBHIRA Act.

SUBHRO KANTI ROY CHOWDHURY,
ADVOCATE
HIGH COURT AT CALCUTTA,
PH: 9831581182/9432371406

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WBHIRA challenged before the Apex Court

WBHIRA challenged before the Apex Court

Currently, WBHIRA has been challenged under Article 254 (2) of the Constitution of India which is pending before the Apex Court of India. Considering its outcome, the real estate Industry of West Bengal will suffer of major blow as to the aspect related to ‘Garage’ morefully defined u/s 2(x) of WBHIRA.

In my opinion presently, the real estate projects of West Bengal are charging separate consideration as to Garage/Parking Space be it open or covered/Podium Parking/Mechanical Parking which shall suffer in case WBHIRA is repealed by the Hon’ble Supreme Court of India. It is to be seem whether the apex court passed an Order as to the fate of such consideration received for Garage/Parking Space be it open or covered/Podium Parking/Mechanical Parking having retrospective effect or not? The Builder will be highly effected if a retrospective effect is given to such Order whereby a complicated and confused of legal status or identity shall arise as to how the exclusive consideration received against sale of Garage/Parking Space be it open or covered/Podium Parking/Mechanical Parking will be adjusted against the right of the allottee. Further, any allottee who have only purchased Garage/Parking Space be it open or covered/Podium Parking/Mechanical Parking not a residential or commercial unit therewith shall be in a complex position as to the fate or legal identity of such purchase.

In my view, WBHIRA or RERA whichever prevail in the State of West Bengal should not hamper the interest of the allottee who have purchased Garage/Parking Space be it open or covered/Podium Parking/Mechanical Parking, so, that the ultimate motto of the Act which is to safeguard the interest of the allottee is uphill by the law.

SUBHRO KANTI ROY CHOWDHURY,
ADVOCATE
HIGH COURT AT CALCUTTA,
PH: 9831581182/9432371406

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RERA Act : Rights & Duties of Allottes

The Real Estate (Regulation and Development) Act, 2016, is enacted for the benefit and security of the Allotees which is the prime over view of the act. So, we can very well say that the interest of the Allotees has been safeguarded by the Act and we here only high light the portion as to the rights and duties of the Allottees so that every individual who is an allottee can get a glance as to his/her/their rights and duties:

Sector 19 provides for the rights and duties of Allottes. The rights of the Allottees are specifically provided under Sub-Section (1) to (5). In addition there are rights, which can be inferred from the other provisions of the Act. A summary of the same can be presented in the following table:

Sl. No. Description of Rights of Allottees Section
1. The allottee shall be entitled to obtain the information relating to sanctioned plans, layout plans along with the specifications. Section 19(1)
2. The allottee shall be entitled to know stage-wise time schedule of completion of the project. Section 19(2)
3. The allottee shall be entitled to claim the possession of apartment, plot or building. Section 19(3)

 
4. The allottee shall be entitled to claim the refund of amount paid along with interest and compensation from the promoter, if he fails to comply. Section 19(4)

 
5. The allottee shall be entitled to have the necessary documents and plans. Section 19(5)
Additional/inferred Rights:
6. The allottee has right to completion of the Project even where the registration of project has lapsed or has been revoked. Section 8
7. The allottee has right against promoter to get rectification of structural defect or any other defects done even after the conveyance deed of all the apartments, plots or buildings. Section 11(4)(a)
8. The allottee has right that Promoter shall obtain Completion and Occupancy Certificate of the apartment, plot or building that he has booked. Section 11(4)(b)
9. The allottee has right that the Promoters shall obtain the lease certificate. Section 11(4)(c)
10. The allottee has against promoter for providing and maintaining the essential services, on reasonable charges. Section 11(4)(d)
11. The allottee has right to formation of an association or society or co-operative society. Section 11(4)€
12. The allottee has right to get executed a registered conveyance deed of the apartment, plot or building. Section 11(4)(f)
13. The allottee has right payment of pay of all outgoings by promoters until he transfers the physical possession of the real estate project to the allottee. Section 11(4)(g)
14. The allottee has right that promoter shall not mortgage or charge the project after execution of agreement for sale. Section 11(4)(h)
15. The allottee has right to approach the authority against cancellation of allotment against the agreement for sale. Section 11(5)
16. The allottee shall be entitled to refund of investment together with interest and compensation if is affected by incorrect, false statement contained in the notice, advertisement etc. and wants to withdraw from the project. Section 12
17. The allottee is entitled to get Agreement for Sale signed before making any payment in excess of 10%. Section 13
18. The allottee has right that promoter shall develop the project as per the sanctioned plan. Section 14(1)
19. The allottee shall have right to give or not to give consent in case of major additions or alterations in the project. Section 14(2)
20. The allottee shall be entitled to receive appropriate compensation, if the promoter fails to rectify defects. Section 14(3)
21. The allottee shall be entitled to give or not give consent for transfer or assignment of project by promoter to third party. Section 15
22. The allotteeshall be entitled to benefits of Insurance upon transfer of possession. Section 16(3)
23. The allottee has right to receive all documents and papers of insurance. Section 16(4)
24. The allottee is entitled to get execution of title deed for the apartment, plot or building. Section 17(1)
25. The allottee has right to get possession of the apartment, plot or building. Section 17(2)
26. The allotteeis entitled to compensation in case promoter fails to comply agreement for sale. Section 18(1)(a)
27. The allottee is entitled to compensation in case the promoter discontinues business and allottee wants to withdraw from the project. Section 18(1)(b)
28. The allottee is entitled to compensation in case of any loss caused to him due to defective title of the land. Section 18(2)
29. The allottee has right to get interest at the same rate at which he is required to pay interest to the Promoter. Section 18(2)
30. The allottee has to right to file complaint before adjudicating authority for enforcement of his rights. Section 31(1)
31. The allottee has right to make appeal against any order of the Authority or adjudicating officer. Section 44
32. The allottee has right to appeal against the order or tribunal before High Court. Section 58
Rights through Association
33. The Association of allottees has right to takeover the project in prescribed manner, if the promoter fails to complete or registration lapses or is revoked. Section 8
34. The allottee has right that Promoter shall obtain Completion and Occupancy Certificate, inter alia, for transfer of title and possession of common area to the Association. Section 11(4)(b)
35. The allottee has right that the Promoter shall obtain the lease certificate, inter alia, for transfer of title and possession of common area to the Association. Section 11(4)(c)
36. The allottee has right to formation of an association or society or co-operative society. Section 11(4)(c)
37. The allottee association has right to get benefits of insurance and documents related thereto transferred in its name. Section 16
38. The allottee is entitled to get execution of title deed in favour of the association of allottees for the common area in the apartment, plot or building. Section 17(1)
39. The allottee has right to get possession of the common area of the apartment, plot or building in favour of the association of allottees. Section 17(2)
SUBHRO KANTI ROY CHOWDHURY,
ADVOCATE
HIGH COURT AT CALCUTTA,
PH: 9831581182/9432371406
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WBHIRA Act : An Introduction

The Government of West Bengal vide Notification number 1189-L dated 17th October 2017, published in the Kolkata Gazette, Extraordinary, Part-III, dated 17/10/2017, presented the WEST BENGAL HOUSING INDUSTRY REGULATION ACT,2017, passed by the West Bengal Legislature and duly received the assent of the Governor of Government of West Bengal.The Government of West Bengal for establishing the Housing Industry Regulatory Authority to regulate and promotion of the Housing sector and to ensure that the sale of plot, apartment or building, as the case may be, or sale of real-estate projects, in an efficient and transparent manner and to protect the interest of the consumers in the real estate sector and to establish a mechanism for speedy dispute redressal. It is a process for formation of a formal guideline to channelize and protect the interest of the consumers Promoters and the Real estate Agents.By this Act the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (West Ben.XX of 1993) is repealed by the enforcement of this Act.

However, it is very interesting that all the previous acts were for a guideline for the Promoter and it involved the Consumers but never before any attempt was made for the regulating the activities of the Real Estate Agents which is a major step as the Real Estate market the Agents work as the bridge between the Promoter and the consumer but their act was never before officially recognized and with this act the Agents duties and activities have been categorically stated and with the registration process they have got the due professionalism required for the recognition efficiency of the Real Estate Agents.

SUBHRO KANTI ROY CHOWDHURY,
ADVOCATE
HIGH COURT AT CALCUTTA,
PH: 9831581182/9432371406
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RERA Act : An Introduction

The real-estate sector was one of the major sectors where there was high growth but was largely unorganized and unregulated from the prospective of the consumer as well as the Promoter, though consumer protection laws are available, the recourse available therein are only curative, but not preventive. This has affected the overall potential growth of the Sector due to absence of professionalism and standardization. To ensure the objective of protection of the interest of the consumers/ allottees and for infusing transparency and fair-play, reducing fraud and delays, introducing pan India standardization, establishing symmetry of information between the Promoter and the allorttee, imposing certain responsibilities on both promoters and allorttees as well as to establish a regulatory oversight mechanism  to enforce contract the Government of India was in the process of drafting a bill to regulate the Real-Estate market Pan-India.

The process of drafting the bill started as early as in the year 2013 and finally after a lot of amendments finally “The Real Estate (Regulation and Development) Bill was passed by the Rajya Sabha on 10th March, 2016 and the Lok Sabha on 15th March,2016. The Bill as passed by the Parliament was assented to by the Hon’ble President on 25th March, 2016. The Act assented to by the Hon’ble President was published in the Official Gazette on the 26th of March, 2016 for public information.

SUBHRO KANTI ROY CHOWDHURY,
ADVOCATE
HIGH COURT AT CALCUTTA,
PH: 9831581182/9432371406