Explore the implementation of RERA in West Bengal and the registration process before WBRERA. Learn about the transition from WB HIRA, its legal implications, and the recent notification by WBRERA requiring registration of ongoing projects.
While the Central Government by Act No. 16 of 2016 dated 26.03.2016 enacted The Real Estate (Regulation and Development) Act 2016 (RERA) and extended the same to the whole of India except the State of Jammu and Kashmir, for it to come into force on 01.05.2017, the Legislature of West Bengal, by obtaining the asset of the Governor by Act XLI of 2017 published in the Calcutta Gazette (Extraordinary) dated 17.10.2017 enacted the West Bengal Housing Industry Regulation Act 2017(W.B. HIRA). The W.B. HIRA, came to be enforced by a Notification dated 29.03.2018 and the Rules thereunder were notified on 08.06.2018.
The constitutional validity of W.B. HIRA came to be challenged before the Hon’ble Supreme Court of India by Forum for People’s Collective and Another and by its judgment dated 04.05.2021, W.B. HIRA was struck down, thus paving the way for The Real Estate (Regulation and Development ) Act 2016 to be made applicable in the State of West Bengal.
The Hon’ble Supreme Court of India in its Judgment reported in (2021) 8 SCC 599, 2021 SCC online SC 361 as Forum for People’s Collective (FPCE) and Another vs State of West Bengal held that significant even overwhelmingly large part of WB HIRA over lapses with the provisions of the RERA and further found that the provisions of RERA have been lifted bodily, word for word and enacted into the State enactment. It also found that WB HIRA does not complement the RERA by enacting the provisions which may be regarded as an addition to or fortifying the right, obligations and remedies created by the Central Government. In effect, it was also held that WB HIRA enacted has a parallel mechanism and parallel regime (and as such it has been invalid under the RERA), thus finding that the State Legislature has enacted a legislation on the same subject matter as the Central enactment. Having found thus and also finding that both these statutes are referable to the same entries under the concurrent list – Item 6 and 7 of List III of the Constitution and further in view of the fact that the State of West Bengal had given up its claim that WB HIRA is a law regulating “Industry”, the Hon’ble Apex Court held that WB HIRA is unconstitutional as being repugnant to RERA. While striking down WB HIRA, the Apex Court also clarified that the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act 1993 which was repealed under WB HIRA being itself repugnant to RERA would stand impliedly repealed and there shall be no revival of these provisions.
In view of the fact that, the Act would have been applied to building projects and implemented by the authorities constituted under WB HIRA in the State in order to avoid uncertainty and disruption in respect of the actions taken in the past by holding that recourse to its jurisdiction under Article 142 is necessary, the Hon’ble Apex Court directed 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 the Judgment.
From the above, it can be understood that while the Hon’ble Apex Court held that WB HIRA as unconstitutional, for the period between the enforcement of WB HIRA i.e. from 29.03.2018 on which date WB HIRA came into force and on 08.06.2018 when the Rules thereunder came to be notified, in pursuance of which the web portal of WB HIRA having been operationalized and registrations granted for the projects for which the applications were filed under WBHIRA as also registrations granted to real estate agents, would not be affected in any manner with the passing of the aforesaid Judgment on 04.05.2021.
The Government of West Bengal has constituted the Real Estate Regulatory Authority (WBRERA) and the web portal of the Authority has been operationalized as on 31/01/2023.
WB-RERA has issued a Notification dated 03-02-2023 bearing No. 135-RERA/L-01/2023 –http://rera.wb.gov.in/notification.php in which it has ordered that all such projects which are ongoing as on the date of the launch of its website/portal i.e., 31/01/2023 and which have not received CC or OC as on that date would have to be registered under the provisions of Real Estate Regulatory Authority, within 3 months from that date i.e., within 30/04/2023.
Hence, all such projects which had been registered earlier would continue to remain to be recognized as registered projects under RERA and further such projects which have not been registered earlier and are ongoing as on 31/01/2023 would have to be registered. Such projects which obtained sanctions between 04/05/2021 and 31/01/2023 and have been completed as on 31/01/2023 can, for right now be said to be exempted from registration.
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