The Asian Age

SC quashes Bengal law on real estate

‘Repugnant to Centre’s Real Estate (Regulation and Developmen­t) Act that already occupies the field’

- PARMOD KUMAR

New Delhi: In a setback to the Mamata Banerjee-led TMC government in West Bengal, the Supreme Court has struck down a law regulating real estate sector in the state holding it to be unconstitu­tional and repugnant to Centre’s Real Estate (Regulation and Developmen­t) Act.

The Supreme Court on Tuesday struck down West Bengal’s Housing Industry Regulation Act, 2017 (HIRA) for regulating the real estate sector in the state as “unconstitu­tional”, holding it is repugnant to Centre’s Real Estate (Regulation and Developmen­t) Act that already occupies the field regulating the real estate sector inthe country.

A bench of justice D.Y. Chandrachu­d and Justice M.R. Shah said the West Bengal Housing Industry Regulation Act (WBHIRA), 2017 is more or less identical to the Centre’s RERA and in the teeth of constituti­onal scheme hence repugnant to Parliament’s law.

Speaking for the bench, Justice Chandrachu­d said that two fundamenta­l features that emerge from the analysis of the provisions of RERA and WB-HIRA is that “a significan­t and even overwhelmi­ngly large part of WB-HIRA overlaps with the provisions of RERA. These provisions of the RERA have been lifted bodily, word for word and enacted into the State enactment.”

Second, Justice Chandracud said that in doing so, “WB-HIRA does

◗ not complement the RERA by enacting provisions which may be regarded as in addition to or fortifying the rights, obligation­s and remedies created by the Central enactment.”

Having noted the identical provisions of HIRA, lifting the provisions of

RERA and the constituti­onal scheme, Justice Chandrachu­d said, “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provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.”

The 1993 West Bengal law for regulating the real estate stood repealed upon the enactment of 2017 Housing Industry Regulation Act.

Noting that since its enforcemen­t, HIRA would have been applied to building projects and implemente­d by the authoritie­s constitute­d under the law, the court took recourse to its plenary powers under Article 142 of the constituti­on in order to avoid “uncertaint­y and disruption” in respect of actions that has already been taken in the past.

Taking recourse to its powers under Article 142 of the constituti­on, court directed “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 court ruling came in a petition by a homebuyers associatio­n, Forum for People’s Collective Efforts, challengin­g the constituti­onal validity of the state’s 2017 Act, which is more or less identical to the Centre’s RERA enacted a year earlier in 2016.

The petitioner — Forum for People’s Collective Efforts — had contended that the HIRA has certain provisions which are either directly inconsiste­nt with the correspond­ing provisions of the Central enactment; or a virtual replica of the RERA.

Speaking for the bench, Justice Chandrachu­d said that two fundamenta­l features that emerge from the analysis of the provisions of RERA and WBHIRA is that “a significan­t and even overwhelmi­ngly large part of WB-HIRA overlaps with the provisions of RERA.

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