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Supreme Court, today, delivered its verdict on the plea challenging Constitutional Validity of the West Bengal Housing Industry Regulation Act, 2017.
A Division Bench of Justice DY Chandrachud and Justice MR Shah, while striking down the provisions of WB HIRA to the extent of repugnancy with the Central Act RERA, 2016, observed,
“Provisions of the State Enactment is Identical. The content is Identical. In essence and substance WB HIRA has created a parallel mechanism and parallel regime as that entailed under the RERA. The State Legislature has, in other words, enacted legislation on the same subject matter as the Central enactment. Not only is the subject matter identical, but in addition, the statutory provision of the WB HIRA are on majority of counts, identical to those of RERA. Both set of statutes are referable to the same entries in the concurrent list, Entry 6 & 7 of List III. (Referring to the Third test of Repugnancy) Repugnancy in the Constitutional sense is implicated not because there is a conflict between the provisions enacted by the State legislature with the law enacted by the Parliament but because once Parliament has enacted a law, it is not open to the State Legislature to legislate on the same subject. (On section 88 & 89 RERA) Section 88 was enacted to empower the State Government to enact on cognate or allied subjects. In the present case, State Legislature has encroached upon the legislative power of the Parliament by enacting parallel mechanism; Void to the extent of repugnancy. Public interest omitted in WB HIRA; The Act has failed to create valuable Institutional safeguards and provisions intended to protect the Interest of Homebuyers. Striking down provisions of WB HIRA will not revive the WB 1993 Act since the 1993 Act itself is repugnant to RERA. (While exercising Article 142) Striking down the provisions of WB HIRA will not affect sanctions and permissions granted prior to the present judgment.”
“Provisions of the State Enactment is Identical. The content is Identical. In essence and substance WB HIRA has created a parallel mechanism and parallel regime as that entailed under the RERA.
The State Legislature has, in other words, enacted legislation on the same subject matter as the Central enactment. Not only is the subject matter identical, but in addition, the statutory provision of the WB HIRA are on majority of counts, identical to those of RERA. Both set of statutes are referable to the same entries in the concurrent list, Entry 6 & 7 of List III.
(Referring to the Third test of Repugnancy) Repugnancy in the Constitutional sense is implicated not because there is a conflict between the provisions enacted by the State legislature with the law enacted by the Parliament but because once Parliament has enacted a law, it is not open to the State Legislature to legislate on the same subject.
(On section 88 & 89 RERA) Section 88 was enacted to empower the State Government to enact on cognate or allied subjects. In the present case, State Legislature has encroached upon the legislative power of the Parliament by enacting parallel mechanism; Void to the extent of repugnancy.
Public interest omitted in WB HIRA; The Act has failed to create valuable Institutional safeguards and provisions intended to protect the Interest of Homebuyers.
Striking down provisions of WB HIRA will not revive the WB 1993 Act since the 1993 Act itself is repugnant to RERA.
(While exercising Article 142) Striking down the provisions of WB HIRA will not affect sanctions and permissions granted prior to the present judgment.”
FPCE in their plea had prayed for passing an order declaring West Bengal Housing Industry Regulation Act, 2017, ultra vires the provisions of the Central Act.
Senior Advocate Rakesh Dwivedi, representing the State of West Bengal, had made primarily two arguments;
(1) The idea of repugnancy implies an irreconcilable conflict and in the absence of conflict (as in the present case), the State law cannot be said repugnant, more so when Central law is completely hinged on the executive power of the State Government, barring rule making.
(2) Even in the absence of Section 88 & 89, the Parliament cannot cover the field exhaustively; the State must have power to compliment and supplement.
Learned ASG, Ms Aishwarya Bhati relied on the three tests of Repugnancy laid down by Justice Nariman in his judgment, Innoventive industries v. icici, (2018) 1 SCC 407;
"One test of seeing whether the subject-matter of the Parliamentary law has encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law."
It was further submitted by Ms. Bhati that, RERA was brought to ensure standardization, symmetry of information, uniformity in the Real Estate sector but by enacting a parallel mechanism under WB HIRA, State of West Bengal has defied the objectives of the Central Act.
Justice Chandrachud, in the course of hearing, made an interesting remark on the operation of two legislations, in the same field;
"Can the State, under the concurrent list, under cooperative federalism, operate in the same field as the Parliament, and not invoke Article 254?"
Also Read: “Parliament Can Enact Law On Same Subject If Presidential Assent Received On State Law”: Justice DY Chandrachud
Also Read: Repugnancy Also Arises Where the State Makes an Identical Law : Supreme Court while hearing plea Challenging Constitutionality of WB Housing Regulation Act
Also Read: “Baffling That A State Will Make A Law Exactly Similar To Central Legislation”: Justice DY Chandrachud Remarks While Hearing Challenge to WB HIRA
Also Read: Supreme Court Reserves Order In The Plea Challenging Constitutionality Of West Bengal Housing Industry Regulatory Authority Act
Case Title: Forum for Peoples Collective Efforts (FPCE) v. The State Of West Bengal | WP (C) No. 116/2019
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