Just days after her resounding victory in the West Bengal Assembly elections, Chief Minister Mamata Banerjee has been dealt a major blow as the Supreme Court struck down a law regulating and promoting real estate sector in the State as the honourable court held it unconstitutional.
Coming down heavily on the West Bengal Housing Industry Regulation Act (WB-HIRA), 2017, the country’s Apex court while observing that a significant and even overwhelmingly large part of WB-HIRA overlaps with the provisions of Centre’s Real Estate (Regulation and Development) Act (RERA), struck down the law as the top court also observed that some of the provisions have been lifted bodily, word for word from RERA and enacted into the state’s law.
In what should be a major worry for Mamata Banerjee and her Trinamool Congress, the Supreme Court observed that the legislature of the West Bengal has attempted to achieve is to set up its parallel legislation involving a “parallel regime’.
The bench of Justices DY Chandrachud and M R Shah also observed that State legislature has encroached upon the legislative authority of Parliament.
“We have come to the conclusion that WB-HIRA is repugnant to the RERA, and is hence unconstitutional,” stated the bench.
The bench added, “We also hold and declare that 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 (West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993), since it would stand impliedly repealed upon the enactment of the RERA.”
The Supreme court in its 190-page verdict said, “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 is necessary. Hence, in exercise of the jurisdiction under Article 142, we direct that the striking down of WB-HIRA will not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment.”
Hitting out at the state legislature, the top court said, “There is, in other words, not only a direct conflict of certain provisions between the RERA and WB-HIRA but there is also a failure of the State legislature to incorporate statutory safeguards in WB-HIRA, which have been introduced in the RERA for protecting the interest of the purchasers of real estate. In failing to do so, the State legislature has transgressed the limitations on its power and has enacted a law which is repugnant to Parliamentary legislation on the same subject matter.”
It added, “This plainly implicates the test of repugnancy by setting up a parallel regime under the State law. The 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. The exercise conducted by the State legislature of doing so, is plainly unconstitutional.”
