The Supreme Court has been moved challenging the validity of the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA). The Court on Monday issued notice in the petition filed by the Forum for People’s Collective Efforts, which contends that the WBHIRA should be struck down given that it conflicts with a Central Legislation already occupying the field, i.e. the Real Estate (Regulation and Development) Act, 2016 (RERA).
The petition filed through Advocate Devashish Bharuka states,
“Since a central legislation [RERA] already occupied the field sought to be covered by the impugned State Act [WBHIRA], the constitutional scheme requires that the State Act should give way to the Central legislation and it is the Central statute alone, which should prevail in the State of West Bengal.”
RERA was enacted by the Central Government in 2016. The petition recounts that in August the same year, West Bengal notified the draft Real Estate (Regulation and Development) Rules, 2016 under the RERA. To finalise these rules, a stakeholder meeting was also arranged in 2017, for which the petitioner was also invited. However, no further action was taken thereafter.
Instead, the WBHIRA, 2017 was notified in March 2018, to come into effect in June the same year. Further, rules under the WBHIRA, 2017 Act was also published in June 2018.
The validity of this State Act i.e. the WBHIRA has now been challenged given that it is in direct conflict with the earlier framed RERA, a Central legislation.
As pointed by the petitioner, both legislations deal with subjects falling under Entries 6 (property transfer), 7 (matters of contract) and 46 (matters concerning the jurisdiction of courts other than Supreme Court) of the Concurrent List in the Constitution of India.
This means that while both the Central and State Government may make laws on such subjects, the State law would have to yield to the Central law if there is any conflict between the two.
While this is the case, the Forum has contended that since the RERA already comprises a complete and exhaustive code, “there is no scope for any State legislation to be enacted in the area save in terms of Article 254 (2) of the Constitution of India.”
Article 254 (2) allows for a conflicting State law on a concurrent list subject to prevail over a central law, if it receives the assent of the President. However, as pointed out in the petition,
“It is an admitted position that the State of West Bengal neither reserved the impugned State Act for consideration of the President nor had ever obtained the President’s assent inspite of the fact that the entire field stood occupied by RERA, 2016 enacted by the Parliament.”
In view of these contentions, the petitioner has prayed that the Court declares the WBHIRA as unconstitutional, and further that it direct the implementation of the RERA in West Bengal. The petitioner approached the Supreme Court after representations made to various government authorities, including the President of India, the Prime Minister, Parliament authorities and State government authorities failed to yield any positive response. Inter alia, the petition also points that the Kerala Government had earlier repealed a similar State Act after taking note that the same was in conflict with the Centre’s RERA.