How to Execute Recovery Certificate Issued By RERA

One should know, how to execute Recovery Certificate issued by RERA; as it can be really long and tiresome for the buyers if things are not done in time. Recently, in a report published by the Times of India in 2020, it was mentioned that according to RTI’s response UP RERA has disposed of, around 21,200 complaints out of total 28438 complaints that were filed in the State. But the main issue here is that the complaints are disposed but the money invested by buyers was not being realized as the builders are refusing to pay back the initial or advance amount. The statistics states that regulator has been able to realize only 16% of the total recovery citations from the builders for returning buyer’s money.

So, the difficult part comes after attaining the refund order and recovery certificates from the respective state RERAs. There has not been effective execution of recovery certificate or recovery citations by the Collectors and Tehsildars which has led to blockage in the active implementation of the RERA Act 2016. The main problem lies in execution of an order which is failing, as the Collectors and Tehsildars are unable to recover or realize money from the builders and the buyers are left with no choice but to appeal in higher courts of justice. Thus, RERA Authorities are further increasing the multiplicity of suits rather than reducing the burden of Courts.

Procedure to execute recovery certificate issued by RERA

Usually when the Recovery certificate or citation is issued by the respective State RERAs, it is sent to the Collector of that District and then the responsibility of realizing the money of buyer is shifted to the Collector as per the guidelines mentioned in their respective Revenue Code of the State. For instance- Section 169 t0 205 of the UP Revenue Code 2006, states that an arrear of land revenue remaining to be paid within the time specified in the writ of demand can be recovered from the defaulter in the following ways-

• By arresting or detaining the defaulter
• By attachment and sale of movable property of the defaulter including the agriculture produce
• By attachment of bank account or locker
• By attachment of land in respect of whose arrear is due
• By attachment and sale of land whose arrear is due
• By lease or sale of the land whose arrear is due

So the procedure of executing a warrant issued by RERA, goes in the following manner.

1. As soon as the Recovery certificate or citation is issued by the State RERA and received by the collector, it is send to the respective Tehsildar under whose local jurisdiction the corporate office or any other property of promoter is mentioned.
2. Then it is the duty of the Tehsildar to issue the “writ of demand” against the particular defaulter by calling him to appear or pay the amount defaulted within a given period of time.
3. The time period shall be specified by the Tehsildar when the defaulter appears after the issuance of the writ of demand.
4. If the defaulting promoter/ agent/ allottee pay the due amount then no further proceedings are initiated.
5. But if the defaulter refrains from paying the demand money as mentioned in the “writ of demand”, then the Revenue officials shall recover such amount by following either of the above mentioned ways.

Hence, this is the process of executing the recovery warrant of RERA.

When Recovery Certificate Is Not Executed

There are times when recovery warrants are not executed by the Collectors and Tehsildars and other Revenue officials with regard to recovering the arrears of land revenue and execute such Recovery certificate or citations and writ of demand issued by the State RERAs. Then in such circumstances, the aggrieved party can go to the High Court and enforce the Writ of Mandamus for the performance of their statutory duty. This writ is specifically available for people in cases against the non-obedience of the statutory duty by the officer of the state and may approach the High Court under Article 226 of the Indian Constitution for his specific grievances and request for the issuance of writ of mandamus against such government officer or Collector in our case, for executing the recovery certificate.

In the famous case of Amit Kumar Jain v. State of UP and Ors, the buyer had filed a writ petition in the Allahabad High Court represented by Advocate Prashant Kanha against the Collector, Gautam Buddha Nagar for enforcing the Recovery certificate issued to the petitioner within a given period of time.

When Order of High Court Is Not Executed By Collector/ Tehsildar

In few cases, it has been witnessed that High Court’s orders are also not adhered by the defaulters and the Collectors are unable to realize the money of the aggrieved party or they are involved with the defaulting parties. So, firstly in order to avoid the ignorance of High Court’s judgment the buyer should submit the order of High Court before the Collector and Tehsildar as soon as possible by all means and mode of communication (mail, courier etc.) so as to ensure that order of High Court has come into the notice of the Collector and Tehsildar in some or the other way.

Once the order has come into the notice of the Collector, then he will be duty bound to honor the concerned judgment within the prescribed time limit. However, if the Collector or Tehsildar fails to honor the order of Hon’ble High Court then the buyer shall have the resort to file suit of contempt proceedings against the respective Collector or Tehsildar before the Hon’ble High Court.

Conclusion

Thus, from the above it can be inferred that execution of recovery warrant or certificate is absolutely important even more than getting a RERA order from the authorities. And in case the Collector or Tehsildar fail to comply to the Recovery certificate, then writ of mandamus can be issued against them and even then, if there is no execution on part of Collector, then buyer can file a suit for contempt proceedings before the High Court, to get his rightful amount from the defaulter.

This article is authored by Rhea Banerjee.

Refer- shorturl.at/fgrQ3

Also Read- https://www.lawgurus.in/succession-laws-of-parsis-and-christians/