Himachal Real Estate Regulatory Authority (Adjudication of Execution Petition) Regulations No. 3 of 2020

Himachal Real Estate Regulatory Authority, (Adjudication of Execution Petition) Regulations No. 3 of 2020

Himachal Pradesh Real Estate Regulatory Authority
Notification
Dated, the 02nd December, 2020
No. HP/RERA/General/Regulations/2020.

1. Short title, object, commencement and extent.—In exercise of the powers conferred on it under Section 85 of the Real Estate (Regulation and Development) Act, 2016 and other powers enabling it in that behalf, the Real Estate Regulatory Authority, Himachal Pradesh hereby makes the following regulations:

(i) These regulations may be called the Himachal Real Estate Regulatory Authority, (Adjudication of Execution Petition) Regulations No. 3 of 2020.

(ii) These regulations are meant to establish the procedures for filing and adjudication of execution petition (Section 51 and Order 21 Rule 10 of Code of Civil Procedure) relating to real estate projects, and all matters connected therewith or incidental thereto.

(iii) These regulations shall come into force from the date of their publication in the official gazette.

(iv) The Himachal Real Estate Regulatory Authority (Adjudication of Execution Petition) Regulations, 2020 shall apply to all matters falling within the jurisdiction of Real Estate Regulatory Authority, Himachal Pradesh as notified by the Government of Himachal vide Notification No. HSG-A (3)-1/ 2019 dated 16-12-2019 which comprises the entire area of the State of Himachal Pradesh.

2. Definitions.—Unless the context otherwise requires in these regulations:—

(i) “Act” means the Real Estate (Regulation and Development) Act, 2016 as amended from time to time;

(ii) “Authorized Officer” means the officer authorized by the Authority to enforce and execute the order(s)/ directions/ decree of the Authority passed from time to time;

(iii) “Authority” means the Real Estate Regulatory Authority, Himachal Pradesh.;

(iv) “Court” means a civil, criminal or revenue court and includes any tribunal or any other Authority constituted under any law for the time being in force to exercise judicial or quasi-judicial functions;

(v) “Decree” means the order, directions, decision etc. issued by the Authority;

(vi) “Decree-holder” means any person in whose favour a decree has been passed or an order capable of execution has been made;

(vii) “District” means the local limits of the jurisdiction of a Civil Court of original jurisdiction (hereinafter called a “District Court”), and includes the local limits of the ordinary original civil jurisdiction of a High Court;

(viii) “Judgment-debtor” means any person against whom a decree has been passed or an order capable of execution has been made;

(ix) “Order” means the formal expression of any decision/ directions of the Authority;

(x) “Prescribed” means prescribed by rules;

(xi) “Rules” means the Himachal Pradesh Real Estate Regulatory Authority (Regulation and Development) Rules, 2017 as amended from time to time;

(xii) “Regulations” means the Himachal Pradesh Real Estate Regulatory Authority (Adjudication of Execution Petition) Regulations, 2020 as amended from time to time;

(xiii) Words and expressions used herein and not defined but defined in the Act shall have the same meaning respectively assigned to them in the Act.

3. As per Section 40(2) of the Real Estate (Regulation and Development) Act, 2016 read with Rule 22 of the Himachal Pradesh Real Estate (Regulation and Development Amendment) Rules, 2020 the orders passed by the Authority shall be enforced in the same manner as if it were a decree or an order, direction or decision passed/ made by a Civil Court. Section 40 of the Real Estate (Regulation and Development) Act, 2016 and Rule 22 of the Himachal Pradesh Real Estate (Regulation and Development Amendment) Rules, 2020 are reproduced as under:

Section 40. Recovery of interest or penalty or compensation and enforcement of order, etc.—

(1) If a promoter or an allottee or a real estate agent, as the case may be, fails to pay any interest or penalty or compensation imposed on him, by the adjudicating officer or the Regulatory Authority or the Appellate Authority, as the case may be, under this Act or the rules and regulations made there under, it shall be recoverable from such promoter or allottee or real estate agent, in such matter as may be prescribed as an arrears of land revenue.

(2) If any adjudicating officer or the Regulatory Authority or the Appellate Tribunal, as the case may be, issues any order or directs any person to do any act, or refrain from doing any act, which it is empowered to do under this Act or the rules or regulations made there under, then in case of failure by any person to comply with such order or direction, the same shall be enforced, in such manner as may be prescribed.”

Rule 22- Recovery of interest, penalty and compensation and enforcement of order, direction or decision of Adjudicating Officer or the Authority or the Appellate Tribunal.”

(1) The recovery of the amounts due such as interest, penalty or compensation shall be recovered as arrears of land revenue in the manner provided under applicable local laws.

(2) Every order, direction or decision passed/made by the Adjudicating Officer or the Authority or the Appellate Tribunal, as the case may be, under the Real Estate (Regulation and Development) Act, 2016 or rules and regulations made there under, shall be enforced by the Adjudicating Officer or the Authority or the Appellate Tribunal in the same manner as if it were a decree or an order, direction or decision passed/made by a Civil Court in a suit pending therein, and it shall be lawful for the Adjudicating Officer or the Authority or the Appellate Tribunal, as the case may be, in the event of its inability to execute the order, direction or decision, to send such order, direction or decision to the Civil Court within the local limits of whose jurisdiction the real estate project is located to execute such order, direction or decision or to the Civil Court within the local limits of whose jurisdiction the person against whom the order, direction or decision is being issued, actually or voluntarily resides or carries on business or personally works for gain”.

4. Filing of execution petitions:—Section 40(1) of the Act of 2016 prescribes that for enforcing liability upon the promoter/allottee or a real estate agent with regard to payment of any interest or penalty imposed on him by the Authority, it is provided that the same shall be recoverable from that person as arrears of land revenue. So, Section 40 of the Act of 2016 has to be read with this regulation in order to recover the amount due from the promoter or an allottee or a real estate agent, as the case may be, by filing an execution petition under Section 51 read with Order 21 Rule 10 Code of Civil Procedure, 1908 in the prescribed performa (Form E1). It is provided under rule 22(1) of the said rules that the recovery of the amounts due such as interest, penalty or compensation shall be recovered as arrears of land revenue in the manner provided under applicable local laws. Since the amount due against a promoter or allottee or a real estate agent is to be recovered as arrears of land revenue by following the provisions of the Himachal Pradesh Land Revenue Act, 1954, so a recovery certificate to the Collector of the concerned district (Appendix-II) is to be issued by the Authority, as the case may be.

The second situation is with regard to enforcement of orders or directions passed by the Authority as provided under section 40(2) of the Act of 2016 read with Rule 22 of the Himachal Real Estate (Regulation and Development Amendment) Rules, 2020. The rule 22 (2) provides that, “Every order, direction or decision passed/made by the Adjudicating Officer or the Authority or the Appellate Tribunal, as the case may be, under the Real Estate (Regulation and Development) Act, 2016 or rules and regulations made there under, shall be enforced by the Adjudicating Officer or the Authority or the Appellate Tribunal in the same manner as if it were a decree or an order, direction or decision passed/made by a Civil Court in a suit pending therein, and it shall be lawful for the Adjudicating Officer or the Authority or the Appellate Tribunal, as the case may be, in the event of its inability to execute the order, direction or decision, to send such order, direction or decision to the Civil Court within the local limits of whose jurisdiction the real estate project is located to execute such order, direction or decision or to the Civil Court within the local limits of whose jurisdiction the person against whom the order, direction or decision is being issued, actually or voluntarily resides or carries on business or personally works for gain”.

Thus, for enforcement of the orders and directions passed by the Authority, as the case may be, a specific procedure as per provisions of Code of Civil Procedure is to be prescribed and the same is as under:

4.1 After an order or direction or decision has been passed by the Authority in a case pending before it and the same is to be enforced, then the petitioner by filing a petition either personally before the Authority or do so through an authorized representative who may be a chartered accountant or company secretary or cost accountant or a legal practitioner or any of its officers (Section 56 of the Act of 2016). The name, mobile number and email of the person or agency through whom the petitioner wishes to be represented shall also be deemed to be the registered mobile number and registered email of the petitioner. A notice on such mobile number or email shall be deemed to be a proper service of notice to the petitioner. The Authority will send all communications to the petitioner as well as to his representative, but a notice/communication to any one of them will be deemed to be a proper notice/communication to the petitioner. (Order 21 Rule 10 CPC)

4.2 The execution petition shall be filed before the Authority on plain paper in duplicate (along with the soft copy of petition in word format) plus copies in accordance with number of respondents in the format prescribed (Appendixes).

4.3 (I) The petition may be comprised of following:—

(a) Index (Appendix III)

(b) Brief facts (Appendix IV)

(c) Proforma for execution as prescribed by the Authority (Form E1).

(d) List of assets (movable or immovable) of the respondent/JD/companyaswell as its directors, if any by decree holder (Appendix V).

(e) Calculation sheet of claim, if any, (Appendix VI)

(f) Undertaking in assertion of claim as well as documents (Appendix) (VII)

(g) Any other supporting documents (if any)

(h) Relief sought (reproduce the content of the order/directions that have to be executed) (VIII)

(i) Self attested copy of the final order/decree

(II) The petition for execution should be in serial number.

(III) All the execution petitions should be filed as per the format given in the appendixes.

The petition should be in accordance with given format after suitably modifying the same according to the facts of the case.

4.4 All the petitions shall be examined by the office of the Authority to ensure that they are legible and in the prescribed format and all appendixes cited in the petition are duly annexed. A report shall be made by the office as to whether the decree/order to be executed is or not under challenge before the higher Authority and there is any stay to execute that order/decree and the statutory period to file appeal has expired or not.

4.5 The petitions may be filed personally or through an authorized person in the office of the Authority. In case, a petition is found to be in the prescribed format, the same shall be placed before the Authority for consideration. However, if it is not in the prescribed format, a communication shall be given regarding the deficiencies and the petitioner will be asked to rectify deficiencies within 15 days. Only a complete petition shall be deemed to be a petition received by the Authority for execution.

The execution petition may also be e-filed before this Authority under the prescribed “Form E1” after the process of e-filing is introduced by office of the Authority, which shall be governed by the same set of these of regulations for the purpose of adjudication

4.6 The Authorized officer shall prepare a register of the petitions received.

4.7 The Authority shall consider the petition and upon finding a prima-facie case, may issue a notice to the respondent. The notice to the respondent shall be issued accordingly. However, if the decree is for payment of money, execution by detention in prison shall not be ordered unless after giving the judgment debtor an opportunity of show cause under Order 21 Rule 37 CPC (Annexure IX) as to why he should not be committed to prison.

4.8 The notice to the respondent/judgment debtor shall be sent on registered email and registered phone number of the respondent available with the Authority in its database.

4.9 Intimation of the notice issued to the respondent as well as of the date of hearing shall also be given to the petitioner on his mobile number or registered e-mail furnished to the Authority.

4.10 The respondent/judgment debtor shall submit two copies of his reply. The respondent shall also send a copy of his reply to the petitioner. The Authorized officer shall place the petition along with the reply received from the respondent before the Authority. The reply to the execution petition may also be e-filed before this Authority after the process of e-filing is introduced by office of the Authority, which shall be governed by the same set of these of regulations for the purpose of adjudication.

4.11 In his reply, the respondent should specifically answer the assertions made by the petitioner and supported by documents or specifically deny the same. In case, the same are denied, the reasons and proof thereof must be given and documents, if any, in support of the assertions should be annexed.

4.12 The reply of the respondent/Judgment Debtor shall be in the same format as prescribed for filing the petition. It may be comprised of the following parts:

(i) Index

(ii) Reply to the facts alleged by the petitioner. Any additional fact in the knowledge of the respondent/judgment debtor may be cited alongwith evidence.

(iii) Reply to the calculation sheet submitted by the petitioner

(iv) Any other submission of the respondent.

(v) Reply to the relief sought by the petitioner.

(vi) An undertaking in support of assertions as well as documents filed with the reply.

4.13 Ordinarily, no adjournment to either of the party will be given. Adjournment can be granted when adequate justification is furnished otherwise; the adjournment shall be granted with cost which may be decided by the Authority depending upon facts and circumstances of the case.

4.14 Every petition, application, reply, undertaking, annexures to petition or the reply etc. shall be legible, properly spaced and duly verified by the parties to the Execution petition.

5. The Authority can initiate suo moto execution proceedings for the recovery of refund, penalty, interest etc. For that purpose the Authority will issue the notice to the Judgment Debtor and follow the procedure given in this Regulation.

6. In case, any order or direction or decision to a person to pay certain amount passed by the Authority, and that person against whom such order/ directions etc. has been passed refuses/ denies to pay that amount, then his movable property in execution of that order or decree as prescribed under Order 21 Rule 30 CPC (Appendix X) is liable to be attached by the Authority.

7. In case, any order or direction or decision to a person to put into possession the petitioner of a particular flat/building or commercial unit and who refuses to obey the same, the Authority may issue a warrant to give possession as per the provisions of Order 21 Rule 35 CPC (Appendix XI)

8. In case, any order or direction or decision for execution of decree by way of arrest and detention, the Authority may issue warrant of arrest as per provisions of Order 21 Rule 38 CPC(Appendix XII) and send that person to jail by preparing a warrant of committal as per provisions of Order 21 Rule 40 CPC(Appendix XIII)

9. In case, any order or direction or decision has been complied with by the judgment debtor and is lodged in the jail, he/she can be released by the Authority by issuance of an order as per Section 58 and 59 CPC (Appendix XIV).

10. In case, any order or direction or decision to the judgment debtor prohibiting him from transferring and creating any charge over some property, the Authority can pass an order as per the provisions of Order 21 Rule 54 CPC(Appendix XV)

11. In case, any order or direction or decision to the judgement debtor to be complied with or for payment of certain amount to the decree holder, the Authority can pass an order under Order 21 Rule 41(2) CPC by giving a direction to file an Undertaking of his assets (Appendix XVI)

12. In case, anywhere the decree is for payment of money, the Authority Officer can issue warrant of sale of the property under attachment to recover the amount due as per the provisions of Order 21 Rule 66 CPC(Appendix XVII 1 to 4)

13. In case, anywhere the attached property has been put to auction and sold, then the person in possession of that property can be prohibited from delivering that property to anyone except the auction-purchaser as per provisions of Order 21 Rule 79 CPC (Appendix XVIII)

14. In case, where the order or direction issued by the Authority is not complied with for whatever reasons may be, then a certificate of non-satisfaction of decree along with a certificate of execution of decree transferred to an another court as per the provisions of Order 21 Rule 6 CPC (Appendix XIX) and a precept as per the provisions of Section 46 CPC (Appendix XX) can be issued.

15. Orders passed by the Authority upon hearing will ordinarily be recorded and communicated to both the parties.

16. The orders passed by the Authority shall be issued and signed by the Authorized Officer of the Authority.

17. The Authority reserves the right to make any amendment in the regulations as and when required.

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