| Headnote |
Expression “any other law for the time being in force” – Meaning of, in the context of ss. 89, 2(zr) and 18(2) of the RERA Act – Real Estate (Regulation and Development) Act, 2016. Expression ‘ is in addition to and not in derogation of any other law’ – Meaning of, in the context of s. 88 of the RERA Act – Real Estate (Regulation and Development) Act, 2016.West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA): Constitutional validity of – Challenged to, on the ground of inconsistencies and overlapping with central law-Real Estate (Regulation and Development) Act, 2016 (RERA) – Held: WB-HIRA is repugnant to RERA and thus, held to be unconstitutional – WB- HIRA purports to occupy the same subject as that which has been provided in the Parliamentary legislation-RERA – State law fits, virtually on all fours, with the footprints of the law enacted by Parliament, which is constitutionally impermissible – Overlap between the provisions of WB-HIRA and the RERA is so significant –Provisions of the RERA have been lifted bodily, word for word and enacted into the State enactment – WB-HIRA does not complement the RERA by enacting provisions or fortifying the rights, obligations and remedies created by the RERA – Subject of the provisions of the State enactment is identical, the content is identical – In essence and substance, WB-HIRA enacted a parallel mechanism and parallel regime as that which has been entailed under the RERA – Not only is the subject matter identical but the statutory provisions of WB-HIRA are on a majority of counts identical to those of the RERA – Both sets of statutes are referable to the same entries in the Concurrent List-Entries 6 and 7 of List III – Thus, the test of repugnancy based on an identity of subject matter is clearly established – Also WB-HIRA did not have presidential assent and was repugnant to RERA u/Art. 254 – Furthermore, as a result thereof, no revival of the provisions of the WB Act, 1993, since it would stand impliedly repealed upon the enactment of the RERA – Real Estate (Regulation and Development) Act, 2016 – West Bengal(Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. Plea that WB-HIRA intended to cover the field of ‘housing industry’ under Entry 24 of List II – Held: WB-HIRA did not fall under the ambit of the term industry within the meaning of Entry 24 of the State List. Real Estate (Regulation and Development) Act, 2016:ss. 88 and 89 – Interpretation and interplay of – Held: s.88 stipulates that the application of other laws is not barred, the provisions of the legislation “shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force” – s. 89 provides for overriding effect to the provisions of the RERA when it stipulates that it “shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force” – s. 88 is an indicator of the fact that Parliament has not intended to occupy the whole field so as to preclude altogether the exercise of legislative authority whether under other Central or State enactments – s. 88 does not exclude recourse to other remedies created by cognate legislation – Where the cognate legislation has been enacted by a State legislature, s.88 is an indicator that Parliament did not wish to oust the legislative power of the State legislature to enact legislation on cognate or allied subjects – On facts, State legislature-WB-HIRA has not enacted cognate or allied legislation but legislation which is identical to and bodily lifted from the Parliamentary law-RERA – This plainly implicates the test of repugnancy by setting up a parallel regime under the State law – State legislature has encroached upon the legislative authority of Parliament which has supremacy within the ambit of the subjects falling within the Concurrent List of the Seventh Schedule – Exercise conducted by the State legislature of doing so, is plainly unconstitutional – West Bengal Housing Industry Regulation Act, 2017.Salient features of RERA Act – Explained. Constitution of India: Art. 254 – Repugnancy – Salient features of Art. 254 – Stated.Doctrine of repugnancy u/Art. 254(1) – Held: Operates within the fold of the Concurrent List – Clause (1) of Art. 254 envisages that the law enacted by Parliament will prevail and the law made by the legislature of the State shall be void “to the extent of repugnancy” – Clause (1) does not define what is meant by repugnancy – Clause (1) indicate that the provision deals with a repugnancy between a law enacted by the State legislature with a provision of a law made by Parliament which it is competent to enact; or to any provision of an existing law; and with respect to one of the matters enumerated in the Concurrent List. Art. 254 – Repugnancy – Concept of – Three types of repugnancy – Held: First type envisages a situation of an absolute or irreconcilable conflict or inconsistency between a State legislative enactment with a Parliamentary law with reference to a matter in the Concurrent List – Second situation involving a conflict between State and Central legislations may arise when a Parliamentary legislation is so complete and exhaustive as a Code as to preclude the existence of any other legislation by the State – Third test of repugnancy is where the law enacted by Parliament and by the State legislature regulate the same subject – Allowing the exercise of power over the same subject matter would trigger the application of the concept of repugnancy – This may implicate the doctrine of implied repeal – In such cases, harmonious construction can be resorted to, to ensure that the operation of both the statutes can co-exist – Where, however, the competing statutes are not of the same legislature, it then becomes necessary to apply the concept of repugnancy, bearing in mind the intent of Parliament – Primary effort in the exercise of judicial review must be to harmonise – Repugnancy is not an option of first choice but something which can be drawn where a clear case based on the application of one of the three tests arises for determination. Art. 254(2) – Presidential assent under, for WB-HRA – Lack of – Held: State of West Bengal would have had to seek the assent of the President before enacting WB-HIRA, where its specific repugnancy with respect to RERA and its reasons for enactment would have had to be specified and this was not done – Thus, WB- HIRA did not have presidential assent and was repugnant to RERA under Article 254 – West Bengal Housing Industry Regulation Act, 2017 – Real Estate (Regulation and Development) Act, 2016.Art. 142 – Jurisdiction under – Exercise of – WB-HIRA since its enforcement, applied to building projects and implemented by the authorities constituted under the law in the State of West Bengal – WB-HIRA having declared unconstitutional, there is a need to avoid uncertainty and disruption in respect of actions taken in the past – Thus, in exercise of jurisdiction u/Art. 142, direction that striking down of WB-HIRA would not affect the registrations, sanctions and permissions previously granted under the legislation – West Bengal Housing Industry Regulation Act, 2017 . Words and phrases:Expression “any other law for the time being in force” – Meaning of, in the context of ss. 89, 2(zr) and 18(2) of the RERA Act – Real Estate (Regulation and Development) Act, 2016. Expression ‘ is in addition to and not in derogation of any other law’ – Meaning of, in the context of s. 88 of the RERA Act – Real Estate (Regulation and Development) Act, 2016. |
