Case Law Details
Forum for People’s Collective Efforts (FPCE) Vs State of West Bengal (Supreme Court)
Conclusion: The provisions of the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (WB 1993) Act impliedly stood repealed upon the enactment of the RERA in 2016, in accordance with Sections 88 and 89 read with Article 254(1) of the Constitution. As a consequence of the declaration by this Court of the invalidity of the provisions of West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA, 2017), there should be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA.
Held: A petition under Article 32 was filed challenging the constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 (“WB-HIRA”/the “State enactment”). The grounds of challenge were that both WB-HIRA and a Parliamentary enactment – the Real Estate (Regulation and Development) Act, 2016 (“RERA”/the “Central enactment”) were 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 had neither been reserved for nor had it received Presidential assent under Article 254(2); the State enactment contains certain provisions which were either directly inconsistent with the corresponding provisions of the Central enactment; or a virtual replica of the Central enactment; and Parliament having legislated on a field covered by the Concurrent List, it was constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up parallel legislation. It was held that the provisions of the WB 1993 Act impliedly stood repealed upon the enactment of the RERA in 2016, in accordance with Sections 88 and 89 read with Article 254(1) of the Constitution. Hence, the striking down of the provisions of WB-HIRA in the present judgment would not, in any manner, revive the WB 1993 Act, which was repealed upon the enactment of WB-HIRA since the WB 1993 Act was itself repugnant to the RERA, and would stand impliedly repealed. It was concluded that WB-HIRA was repugnant to the RERA, and was hence unconstitutional. 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provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993 Act, since it would stand impliedly repealed upon the enactment of the RERA. 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 was necessary. Hence, in exercise of the jurisdiction under Article 142, the striking down of WB-HIRA would not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment.
FULL TEXT OF THE SUPREME COURT JUDGMENT/ORDER
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