Summary
The Court declared the West Bengal Housing Industry Regulation Act, 2017 unconstitutional for repugnancy to the Real Estate (Regulation and Development) Act, 2016. WB-HIRA substantially copied RERA to establish a parallel regime while omitting material protections for home-buyers, without Presidential assent. RERA’s preservation of complementary laws did not authorize such duplication. The earlier West Bengal 1993 enactment did not revive. Registrations, sanctions and permissions granted before the judgment were protected under Article 142.
Issues
- Whether WB-HIRA concerned industries in the State List or contracts and property transfers in the Concurrent List.
- Whether substantial duplication of RERA and omission of its safeguards made WB-HIRA repugnant under Article 254.
- Whether Sections 88 and 89 of RERA permitted the parallel State regime without Presidential assent.
- Whether the earlier State law revived and what protection applied to completed regulatory actions.
Provisions considered
- Articles 246 and 254; Seventh Schedule, List III, Entries 6 and 7; List II, Entry 24, Constitution of IndiaLocated both enactments in the Concurrent List and applied Parliamentary supremacy and repugnancy; the housing-industry justification was untenable. (¶¶ 19-30, 40-42, 73-81)
- Sections 88, 89 and 92, Real Estate (Regulation and Development) Act, 2016Preservation of additional remedies and allied laws did not permit a duplicate State regime; express repeal of Maharashtra’s law did not validate WB-HIRA. (¶¶ 58-59, 73-76, 80, 82-83)
- Statutory scheme, including Section 83, West Bengal Housing Industry Regulation Act, 2017Declared the parallel regime repugnant to RERA because of its overwhelming overlap, direct conflicts and omitted safeguards; no Presidential assent protected it. (¶¶ 12-14, 73-81, 83)
- Sections 2(n), 2(y), 6, 38(3), 41, 42, 71 and 80(2), Real Estate (Regulation and Development) Act, 2016Identified protections concerning parking, extensions, competition, national advice, judicial adjudication of compensation and criminal trial jurisdiction that WB-HIRA altered or omitted. (¶¶ 12, 14, 56, 77-78)
- Article 142, Constitution of IndiaProtected registrations, sanctions and permissions granted under WB-HIRA before the date of judgment to avoid uncertainty and disruption. (¶ 84)
Held
- Both statutes regulate contractual rights and obligations between promoters, buyers and agents and fall under Concurrent List Entries 6 and 7. Their substance could not be treated as industry under State List Entry 24. The State could nevertheless advance the correct constitutional basis despite its earlier contrary defence. (¶ 19-26)
- Repugnancy may arise from irreconcilable provisions, an exhaustive Parliamentary code, or overlapping regulation of the same subject that cannot coexist. Courts should first endeavour to harmonise; the applicable test depends on statutory text, purpose and context. Identical rules may still create repugnancy when embodied in a competing parallel regime. (¶¶ 31-42, 73-74)
- WB-HIRA’s overwhelming verbatim overlap with RERA established a parallel mechanism rather than complementary regulation of distinct allied matters. This duplication attracted Article 254(1). (¶¶ 73-74, 76)
- Sections 88 and 89 do not show an intention to exclude all complementary Central or State legislation. Consumer remedies and State regulation of allied matters in spaces left by RERA may coexist. They do not authorize States to replace RERA with a substantially identical regime. Even assuming the saving covers later laws, WB-HIRA remained invalid. (¶¶ 43-58, 70-76)
- Material departures additionally removed or diluted safeguards concerning parking, force-majeure extensions, competition references, Central advisory policy, adjudication of compensation by judicial officers and criminal trial jurisdiction. An appellate remedy did not cure the omission of judicial adjudication at the initial compensation stage. (¶ 77-78)
- WB-HIRA had neither been reserved for nor received Presidential assent. Sections 88 and 89 supplied no substitute for Article 254(2); the required Presidential consideration must specifically address repugnancy and the reasons for the State law. (¶ 79-81)
- Invalidation did not revive the West Bengal 1993 Act: its repugnant provisions already stood impliedly repealed by RERA. Previously granted registrations, sanctions and permissions were preserved only as specified in the Article 142 direction. (¶ 82-84)
Result
Writ petition allowed; WB-HIRA declared unconstitutional for repugnancy to RERA, without revival of the West Bengal 1993 Act. Registrations, sanctions and permissions granted before 4 May 2021 protected; pending applications disposed of.