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SC HELD WBHIRA UNCONSTITUTIONAL
The constitutional validity of WBHIRA was challenged in the case of Forum for People’s Collective Efforts (FPCE) & Anr. Versus The State of West Bengal & Anr. On 4th May 2021, the Division Bench comprising of Justice D.Y. Chandrachud and M R Shah found WBHIRA repugnant to the Central Legislation RERA. Supreme Court said that State legislature can't sanction a law after Parliament has established a comparative law regarding a matter.
RERA VS WBHIRA
Central Government enacted the Real Estate Development and Regulatory Act (RERA) 2016 and asked every one of the states to follow the new rules and regulation. The state of West Bengal followed an alternate way. Rather than RERA, the state enacted West Bengal Housing Industry Regulatory Authority (WBHIRA). Both of the Acts aim to regulate and promote the housing sector and to ensure the sale of plot, apartment or building, or sale of real estate project, efficiently and transparently and to secure the interest of buyers in the real estate sector and set up a system for rapid question redressal. The nature of both Acts is so identical that the petitioner submitted that the state law is a ‘copy and paste’ replica of the central legislation (except for certain provisions which are inconsistent with RERA). WBHIRA covers all field which is covered by the RERA.
Issues raised in this case are as follow:
[1] Both State and Central legislation are relatable to the legislative subjects contained in Entries 6 and 7 of the Concurrent List.
[2] WB-HIRA has neither been reserved for nor has it gained Presidential assent under Article 254(2).
[3] Provisions are directly conflicting with the relating provisions of central enactment.
[4] State enactment is an identical copy of central enactment.
[5] The State legislature cannot set up parallel legislation.
The Supreme Court said that West Bengal had trespassed upon the area of Parliament while establishing WBHIRA as both enactments fall under the same entry of Concurrent list. Supreme Court examined the scope of repugnancy of the State law to the Central law under Article 254(1) of the Indian Constitution which states whenever there is any inconsistency between the central and state laws or any provision of law made by the state legislature which repugnant to any provision of a law passed by Parliament or to any provision of law concerning one of the matters mentioned in the Concurrent List then the law made by Parliament shall prevail and the law made by the Legislature of the State shall be declared void due to repugnancy. Supreme Court also analysed Article 254(2) and stated the grant of Presidential assent will not restrain Parliament from enacting a law on the subject matter.
CONCLUSION
Supreme Court concluded by saying that striking down the provisions of WB-HIRA in the present judgment will not restore the WB 1993 Act, which was repealed upon the enactment of WB-HIRA since the WB 1993 Act is itself repugnant to the RERA and would stand impliedly repealed. The Supreme court found WBHIRA as considerably indistinguishable from RERA and without presidential assent and declared it unconstitutional. By invoking Article 142 of the Indian Constitution Supreme Court ordered that the striking down of WB-HIRA will not influence the registrations, sanctions and permissions previously conceded under the enactment before the date of this judgment to avoid ambiguity and interruption regarding actions taken in the past.
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