Department: Housing
Subject:
GOVERNMENT OF WEST BENGAL
LAW DEPARTMENT
Legislative
No. 397-L. 9th March, 1994
NOTIFICATION
West Bengal Act XX of 1993
THE WEST BENGAL BUILDING (REGULATION OF PROMOTION OF CONSTRUCTION AND TRANSFER BY PROMOTERS) ACT, 1993.
An Act to provide for the regulation of promotion of construction and transfer of building by promoters in West Bengal.
Whereas it is expedient in the public interest to provide for the regulation of promotion of construction and transfer of building by promoters in West Bengal;
It is hereby enacted in the Forty-fourth Year of the Republic of India, by the Legislature of West Bengal, as follows:-
1. Short title, extent and commencement.
(1) This Act may be called the West Bengal Building (Regulation of Promotion Construction and Transfer by Promoters) Act, 1993.
(2) It extends to the whole of West Bengal.
(3) It shall come into force in such area or areas, and on such date or dates, as the State Government may, by notification in the Official Gazette, appoint; and different dales may be appointed for different areas.
2. Definitions.
In this Act, unless the context otherwise requires,-
(a) “apartment” means an apartment as defined in the West Bengal Apartment Ownership Act, 1972;
(b) “block” means a block of flats;
(c) “building” includes a flat or block;
(d) “contractor” means any person who undertakes a contract for construction of any building;
(e) “flat” means a separate residential unit, whether self-contained or not, used or intended to be used for any of the purposes referred to in sub-clause (a) to (i) of clause (2) of section 390 of the Calcutta Municipal Corporation Act, 1980, and includes an apartment;
(f) “prescribed” means prescribed by rules made under this Act;
(g) “promoter” means a person who constructs or causes to be constructed a building on a plot of land for the purpose of transfer of such building by sale, gift or otherwise to any other person or to a company, co-operative society or association of persons, and includes-
(i) his assignee, if any,
(ii) the person who constructs, and the person who transfers by sale, gift or otherwise, the building, if the two are different persons,
(iii) the Government,
(iv) an undertaking of the Government, or
(v) any board, company, corporation, firm, or other association of persons, established by or under any law for the time being in force;
(h) “purchaser” means any person who, under section 7, enters into an agreement with the promoter for the purchase of a flat;
(i) “Registrar” means the Registrar as defined in the West Bengal Co-operative Societies Act, 1983;
(j) the expression “to construct a building” with its grammatical variation means-
(i) to construct a new building, or
(ii) to re-construct a building, or
(iii) to convert a building, or any part of a building, not being a fiat or block, into a flat or block.
3. Registration and permission for construction.
(1) Every promoter who constructs or intends to construct in any area in which this Act comes into force a building for the purpose of transfer of such building by sale, gift or otherwise, shall at least ninety days before the commencement of the construction of such building in such area, make an application to such officer of the State Government (hereinafter referred to as the authorised officer) as the State Government may appoint, for registration of his name and for permission for construction of such building. The application shall be in such form, and shall be accompanied by such fee, as may be prescribed:
Provided that notwithstanding anything contained in this Act or in any other law for the time being in force, in the case of any building under construction on the date immediately before the date of coming into force of this Act by any promoter, such officer of the State Government, not below the rank of Executive Engineer, as the State Government may appoint, shall have access to the site of such building at any time of the day without prior intimation to the promoter for investigation of any complaint from any purchaser with regard to unlawful or defective construction or use of sub-standard materials, and such officer may, at the conclusion of such investigation, bring to the notice of the promoter the defects of construction, if any, for rectification within such period as may be specified by him. If the promoter fails to rectify the defects within the period as aforesaid, such officer may declare such building, to be unsafe or dangerous for human habitation, if the construction of such building so warrants.
(2) Every such application shall be accompanied by a statement containing the following particulars and documentary evidences where necessary:-
(a) detailed description of land with site plan;
(b) the nature of the promoter’s title to the land (copy of title deed to be annexed);
(c) details of the agreement between the owner of the land and the promoter authorising the latter to undertake the construction of building (copy of registered agreement to be annexed);
(d) the nature of encumbrances on the land, including the right, title, interest or claim of any other person in or over such land;
(e) the total covered floor area, the number of flats proposed to be constructed, the approximate size of each fiat and the facilities including common facilities likely to be made available to the purchasers by the promoter;
(f) sanctioned plan for the construction of building under any law for the time being in force or, where the plan is not sanctioned at the time of making the application under sub-section (1), an undertaking by the applicant to the effect that the plan will be submitted by him as soon as it is sanctioned:
Provided that the name of the applicant shall not be registered, and the applicant shall not be granted permission to construct the building, under sub-section (5) until the sanctioned plan is submitted;
(g) detailed specifications of the construction of building as approved by any competent authority under any law for the time being in force;
(h) the estimated expenditure for the construction of building and the source from which the expenditure shall be financed;
(i) details of financial agreement made with any bank or other financial institution, and of legal safeguards taken, if any, for the construction of building, or the transfer of building by sale, gift or otherwise;
(j) details of advance payment or deposit to be taken by the promoter from the purchaser:
Provided that no advance payment or deposit shall be taken- by any promoter before his name is registered under sub-section (5);
(k) the period within which or the date on which the possession of fiats is proposed to be made over to the purchasers;
(l) copies of agreements entered into or proposed to be entered into with the purchasers;
(m) the name of architect or engineer or any other person authorised to submit plan under any law for the time being in force, or the name of firm or company competent to submit plan, who has prepared the plan and the estimates of the proposed construction of building together with address;
(n) the name and address of the contractor or contractors proposed to be engaged for the construction of building:
Provided that if and when there is any change of contractor proposed to be engaged or actually engaged before or after the commencement of the construction of any building, as the case may be, the promoter shall forthwith inform the authorised officer of the name and address of such contractor,
(o) such other particulars as may be prescribed.
(3) Every promoter shall make a separate application for the construction of building on separate plot of land or for the construction of separate building:
Provided that no such application shall be entertained where the promoter has no title to the land unless the agreement between the owner of the land and the promoter, authorising the promoter to undertake the construction of building, is duly registered:
Provided further that no such application shall be refused without giving the promoter a reasonable opportunity of being heard.
(4) The name of a promoter shall not be registered if-
(a) he is of unsound mind and stands so declared by a competent authority; or
(b) he is an undischarged insolvent; or
(c) he, being a discharged insolvent, has not obtained from the court having jurisdiction a certificate that his insolvency was caused by misfortune without any misconduct on his part; or
(d) he has been convicted of an offence of criminal breach of trust; or
(e) he is otherwise incompetent to make any contract under any law for the time being in force; or
(f) the certificate of registration granted to him previously for construction of any other building was cancelled under section 4 of this Act.
(5) The authorised officer shall, on receipt of an application under sub-section (1), scrutinize the application and the accompanying documents and, on being satisfied that the application complies with the provisions of this Act and the rules made thereunder, register the name of the applicant and, by an order, grant him permission to construct the building or may, for reasons to be recorded in writing, by an order refuse to register the name of the applicant and to grant him permission to construct the building:
Provided that no order refusing to register the name of an applicant and to gram him permission to undertake the construction of building shall be made without giving the applicant a reasonable opportunity of being heard:
Provided further that every application under sub-section (1) shall be disposed of by the authorised officer within a period of three months from the date of receipt of such application.
(6) The name of every promoter registered under sub-section (5) shall be entered in a register to be maintained by the authorised officer in such form as may be prescribed.
(7) The promoter, whose name has been registered under sub-section (5), shall be granted a certificate of registration in such form as may be prescribed; and the permission to undertake the construction of building under that sub-section shall be in conformity with the sanctioned plan for the construction of building.
(8) A copy of the order granting permission under sub-section (5) shall be sent by the authorised officer to the authority who has sanctioned the plan for construction of building or, as the case may be, for conversion of building or any part of building under any law for the time being in force.
4. Period of validity of certificate of registration and cancellation thereof.
(1) The certificate of registration or the permission for construction of building granted to a promoter under section 3 shall, subject to the provisions of sub-section (2) of this section, remain valid for a period of three years from the date of issue of such certificate or grant of such permission, as the case may be:
Provided that the authorised officer may, from lime to time, extend the period of validity of the certificate of registration or the permission for construction of building; so, however, that the total period of such extension shall not, in either case, exceed two years:
Provided further that, if the promoter cannot complete the construction of such building within the total period of five years for circumstances beyond his control, he may make an application to the State Government for extending the period of validity of the certificate of registration for construction of such building, and the State Government may, on receipt of such application, extend the said period of five years by such further period as it thinks fit.
(2) Notwithstanding anything contained in sub-section (1), a certificate of registration may be cancelled by the authorised officer by an order in writing if-
(a) the statement or any part thereof furnished by the promoter under sub-section (2) of section 3 is subsequently found to be false or incorrect; or
(b) the promoter becomes subject to any of the disqualifications mentioned in sub-section (4) of section 3; or
(c) the promoter, in course. of the construction of any building, uses sub-standard materials or violates any rules or established practices regulating the construction of building:
Provided that no certificate of registration shall be cancelled without giving the promoter an opportunity of being heard.
5. Appeal.
(1) Any promoter aggrieved by an order of the authorised officer under sub-section (5) of section 3 or sub-section (2) of section 4 may, within thirty days from the date of the service of the order, prefer an appeal to such authority as may be prescribed.
(2) The manner in which an appeal shall be filed and the manner of deciding the appeal shall be such as may be prescribed.
6. Adjudication of disputes.
Any purchaser may, if he has any dispute regarding the purchase of any flat, make an application in such form as may be prescribed to such officer as the State Government may appoint for adjudication of the dispute in such manner as may be prescribed.
7. Agreement and registration thereof.
Notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, a promoter shall, before he takes any advance payment or deposit, which shall not be more than forty per cent, of the sale price of a flat, enter into a written agreement for sale with each person who intends to purchase, such flat and the agreement shall be registered under the Registration Act, 1908, and such agreement shall contain such particulars, and shall be accompanied by such documents or copies thereof, as may be prescribed:
Provided that no such agreement shall be registered before the promoter is granted permission to construct building under sub-section (5) of section 3.
8. Alteration or addition without consent of transferee and rectification of defect.
(1) No promoter shall, after he has been granted under sub-section (5) of section 3 permission to construct a building and after an agreement under section 7 has been entered into by him with any person who intends to purchase a flat, make, without prior consent of such person,-
(i) any alteration in the structure of such flat; or
(ii) make any alteration in the structure of a building or construct any additional structure:
Provided that every alteration in the structure of such flat or building or every construction of such additional structure shall be done with the prior permission of the authority which sanctioned the original plan of such flat or building and with due regard to the detailed specifications of the construction of building as approved by the competent authority under any law for the time being in force.
(2) Subject to the provisions of sub-section (1), a building shall be constructed and completed in accordance with the plan referred to in clause (f), and the specifications referred to in clause (g), of sub-section (2) of section 3. If any defect in the construction of the building or in the material used or if any unauthorised change in the construction of the building is brought to the notice of the promoter by the person or persons taking possession of the building within a period of one year from the date of taking such possession, it shall either be rectified, wherever possible, by the promoter without charge to the person or persons who agreed to purchase any flat or flats or such person or persons shall be paid a reasonable compensation for such defect or change.
(3) Where there is a dispute as respects any defect in the construction of the building or in the material used or any unauthorised change in the construction of the building or the amount of reasonable compensation payable in respect of such defect or change which is not rectified by the promoter or is incapable of being rectified, or where there is a dispute as to whether it is reasonably possible for the promoter to rectify such defect or change, the matter shall, on payment of such fee by the purchaser in such manner as may be prescribed, be referred for a decision to the Chief Engineer in the Housing Directorate under the Housing Department of the State Government or to such other officer of the State Government, not below the rank of Executive Engineer, as the State Government may appoint within a period of two years from the date of taking possession of the building.
(4) The Chief Engineer, either himself or through his nominee, not below the rank of Executive Engineer, or the officer appointed under sub-section (3), as the case may be, shall, after such enquiry as may be deemed necessary, record his decision within one year from the date of payment of the fee referred to in sub-section (3) and inform the parties to the dispute forthwith, and his decision shall be final.
(5) The Chief Engineer or his nominee, not below the rank of Executive Engineer, or the officer appointed under sub-section (3), as the case may be, shall have access to the site of any building under construction by any promoter, whose name has been registered under sub-section (5) of section 3, at any time of the day without prior intimation to him for inspection of the work of construction or for investigation of any complaint from any purchaser or other person or from any other source with regard to unlawful or defective construction or use of sub-standard materials, and the decision of the Chief Engineer or his nominee or the officer as aforesaid shall be final and binding on the promoter:
Provided that any purchaser or other person making the complaint shall deposit such fee in such manner as may be prescribed:
Provided further that the fee shall be refunded to the purchaser or other person, as the case may be, if the complaint is found correct:
Provided also that the cost of inspection or investigation, as the case may be, shall be borne by the promoter if the complaint is found correct.
9. Bar to execution of mortgage etc. and refund of money, if such mortgage is executed, or for failure to give possession.
(1) No promoter shall, after he enters into an agreement under section 7, mortgage or create a charge on the flat or the land on which such flat is constructed without prior consent of the person or persons with whom such agreement is entered into.
(2) If any promoter-
(a) executes such mortgage or creates such charge without the price consent of the person or persons as aforesaid after the agreement is registered under section 7, or
(b) fails to give possession of a flat, duly completed, by the date specified in the agreement or by the further date agreed to by the parties, or
(c) is unable, for reasons beyond his control or beyond the control of his agent, to give possession of the flat by the date specified in the agreement under section 7 or by the further date agreed to by the parties, and a period of three months thereafter, or a further period of three months if such reasons still exist, has elapsed, the promoter shall, without prejudice to any other remedies to which he may be liable under this Act or any other law for the time being in force, be liable on demand to refund the amount already received by him in respect of such flat with simple interest at the current bank fate from the date of receipt of such amount till the date on which the amount and the interest thereon is refunded, and the amount and the interest shall, subject to any prior encumbrance, be a charge on the land and the building thereon, if any, to the extent of the amount due:
Provided that-
(a) if the promoter wilfully delays the construction of the flat and does not complete the construction thereof within the period specified in the agreement under section 7 (hereinafter referred to as the specified period), and gives possession of the flat to the party after