We have come to the conclusion that WB-HIRA is repugnant to the RERA, and is hence unconstitutional. We also hold and declare that as a consequence of the declaration by this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA. (Para 83)
FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) & ANR. V/S THE STATE OF WEST BENGAL & ANR.
Writ Petition (C) No. 116 of 2019
Decided on May 4, 2021
A Two judge bench consisting of Justice Dr Dhananjaya Y Chandrachud and Justice M R Shah decided on this case. The court decided to allow the writ petition and struck down the West Bengal Housing Industry Regulation Act, 2017(WBHIRA), holding it to be unconstitutional in view of the 2017 RERA Act.
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 Both WB-HIRA and a Parliamentary enactment – the Real Estate (Regulation and Development) Act, 2016 (“RERA”/the “Central enactment”) are relatable to the legislative subjects contained in Entries 6 and 7 of the Concurrent List (interchangeably referred to as ‘List III’) of the Seventh Schedule to the Constitution; WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2); 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 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.
The key issue here was to whether to allow the appeal made and whether the 2017 RERA Act was constitutional or not.
The court observed that “we have come to the conclusion that WB-HIRA is repugnant to the RERA, and is hence unconstitutional. We also hold and declare that as a consequence of the declaration by this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.” (Para 83)
The court held that “Since its enforcement in the State of West Bengal, the WB-HIRA would have been applied to building projects and implemented by the authorities constituted under the law in the state. In order to avoid uncertainty and disruption in respect of actions taken in the past, recourse to the jurisdiction of this Court under Article 142 is necessary. Hence, in exercise of the jurisdiction under Article 142, we direct that the striking down of WB-HIRA will not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment. The writ petition is accordingly stand allowed in the above terms.” (Para 85)
View/Download Judgment - FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) & ANR. V/S THE STATE OF WEST BENGAL & ANR.
Saptarshi Mukhopadhyay
