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SUPREME COURT OF INDIA
DHANANJAYA Y CHANDRACHUD, M R SHAH, JJ.
FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) & ANR. - APPELLANTS
VERSUS
THE STATE OF WEST BENGAL & ANR. - RESPONDENT
WRIT PETITION (C) NO.116 OF 2019
Decided on : 04-05-2021
Constitution of India,1950 - Article 32 - West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 - Maharashtra Housing (Regulation and Development) Act, 2012 - Constitutional Validity Of Act - Challenged - Bill for enactment of RERA was introduced in the Rajya Sabha - Bill was passed by the Rajya Sabha and by the Lok Sabha - Law received the assent of President and was published in the Official Gazette on the next day - In bringing about a balance between need to protect consumers with the necessity of encouraging investment in the real estate sector, Committee observed that while it shared the concerns of consumers, many of whom have to suffer because of fly by night operators, it was cognizant of the position that the real estate sector was largely being developed through private promoters, all of whom could not be tarred with the same brush – Held, Court have come to the conclusion that WB-HIRA is repugnant to RERA, and is hence unconstitutional - Court also hold and declare that as a consequence of declaration by this Court of invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA - Since its enforcement in State of West Bengal, WB-HIRA would have been applied to building projects and implemented by authorities constituted under the law in state -In order to avoid uncertainty and disruption in respect of actions taken in past, recourse to the jurisdiction of this Court under Article 142 is necessary - Hence, in exercise of jurisdiction under Article 142, Court direct that striking down of WB-HIRA will not affect registrations, sanctions and permissions previously granted under legislation prior to the date of this judgment - Writ petition is accordingly stand allowed.
JUDGMENT :
Dr. Justice Dhananjaya Y. Chandrachud, J.
A The challenge
B Legislative history
C RERA - the legislative process
D Salient features - RERA
E Salient provisions of WB-HIRA
F RERA and WB-HIRA - provisions at variance
G Submissions
G.1 For the petitioners
G.2 For the Union of India
G.3 For the State of West Bengal
H Analysis
H.1 Entry 24, List II - West Bengal’s ‘housing industry’ defense
H.2 The Constitutional Scheme of Article 254 and repugnancy
H.3 Repugnancy - RERA and WB-HIRA
H.3.1 Meaning of “is in addition to and not in derogation of any other law”
H.3.2 Meaning of “law for the time being in force”
B Legislative history
A. The challenge
1. The constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 (“WB-HIRA”/the “State enactment”) is challenged in a petition under Article 32. The basis of the challenge is that:
(ii) WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2);
(iii) The State enactment contains certain provisions which are either: a. Directly inconsistent with the corresponding provisions of the Central enactment; or b. A virtual replica of the Central enactment; and
(iv) Parliament having legislated on a field covered by the Concurrent List, it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up a parallel legislation.
Nuances apart, this, in substance, is the essence of the challenge.
B Legislative history
2. Before Parliament enacted the RERA in 2016, the state legislatures had enacted several laws to regulate the relationship between promoters and purchasers of real estate. Among them was the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (the “WB 1993 Act”). This legislation of the State of West Bengal was reserved for and received Presidential assent, following which it was published in the Official Gazette on 9 March 1994. Many other States enacted laws on the subject, including among them:
(ii) The Kerala Real Estate (Regulation and Development) Act, 2015 (the “Kerala Act”), was enacted by the State Legislative Assembly on 3 February 2016.
3. On 14 August 2013, the Bill for enactment of the RERA was introduced in the Rajya Sabha. The Bill was passed by the Rajya Sabha on 10 March 2016, and by the Lok Sabha on 15 March 2016. The law received the assent of the President on 25 March 2016, and was published in the Official Gazette on the next day. RERA was then partially enforced on 1 May 20161[Sections 2, 20 to 39, 41 to 58, 71 to 78 and 81 to 92.], while the rest of its provisions were enforced on 19 April 20172[Sections 3 to 19, 40, 59 to 70, 79 to 80.] . The Maharashtra Act was specifically repealed by RERA3[“Section 92. Repeal: The Maharashtra Housing (Regulation and Development) Act, 2012 is hereby repealed.”], while the Kerala Act was repealed by the State Legislative Assembly through the Kerala Real Estate (Regulation and Development) Repeal Act, 20174[Its Statement of Objects and Reasons noted “… As per clause (1) of article 254 of the Indian Constitution, if any provision of a law made by the legislature of a State is repugnant to any law made by the Parliament, the law made by the legislature of a State shall become void. Therefore the Government have decided to repeal the Kerala Real Estate (Regulation and Development) Act, 2015.”].
4 In the State of West Bengal, draft rules under the RERA were framed on 18 August 2016 but no further progress was mad
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