Case Briefs
Truth and Youth (TAY) 2021. All rights reserved.

Forum For Peoples Collective V. The State Of West Bengal


Author: Niyush Kumar, 4th year student at Amity Law School, Delhi.

 Citation: N/A

Date Of Decision: 04 May 2021

Bench: D.Y. Chandrachud, M.R. Shah

Original Copy: VIEW

 

Issue In Question

  • The constitutional validity of WB-HIRA?
  • Does the state hold the power to enact any law under concurrent list as on the same level as of the parliament’s power?

Background Of the Case

  • The petitioners filed a civil action with the Honorable Supreme Court against the constitutional validity of WBHIRA on a number of grounds, including the fact that WB-HIRA is a parallel and virtual replica of the law enacted by central government, namely Real Estate Law (Regulation and Development), 2016 (RERA). WB-HIRA is void due to a lack of legislative competence if WB-HIRA covers the identical area covered by the central decree, RERA, and that WB-HIRA is a copy of RERA (with the exception of certain provisions that are contradictory with RERA.
  • The subject RERA and WB-HIRA are in the Concurrent List of the Seventh Schedule of the Constitution of India, RERA is an exhaustive code that regulates the contractual relationship between promoters and buyers in the real estate sector.
  • There are disagreements between RERA and WB-HIRA and the state legislature has had several chats that influence WB-HIRA in favor of the developer and builder. At the time WB-HIRA was enacted, the West Bengal legislature intended that WB-HIRA regulate the housing industry listed in entry 24 of List II (state list), but it was recognized in the course of the oral presentations that WB-HIRA is not in entry 24 list II (state list), but in entries 6 and 7 of list III (concurrent list) and thus contains the entire statement that is on the state list.
  • If the state is allowed to offer a “double regulation”, this would cause total chaos in the real estate sector. The state cannot enact law on this matter without the approval of the President. Under RERA, the state government is a delegate of parliament, while the state under WB-HIRA has changed its role to that of a delegate.
  • RERA does not cover the entire field and does not claim to be complete.  Since WB-HIRA “largely and essentially” follows the provisions of RERA, it would also be included in entry 6 and 7 of Annex III (simultaneous list).
  • The state law would only be null and void if it was inconsistent with a law enacted by Parliament on the concurrent list, and in this case only to the extent of repugnancy. The identity of the thing does not represent contradiction or repugnancy, especially if the publication is not a complete and exhaustive code. WB-HIRA complements RERA.
  • Sections 88 and 89 indicate that the parliamentary intention was for RERA to coexist with other laws and to get RERA to allow and comply with state laws.
  • West Bengal (Promotion of Construction and Transfer by Developers Regulation) Act 1993 was not repealed by Parliament, but repealed by Section 88 of the WB-HIRA in order to align the state decree with RERA. The conflict and the few inconsistencies between the provisions of RERA and WB-HIRA are minor.

Judgment

  • The attorney, who appeared on behalf of the petitioner, argued that if WB-HIRA is allowed to operate in the state of West Bengal, it will not only give way to the West Bengal government, but will encourage other state lawmakers to join the matter in the competing List that are listed and pass laws on the matter that have already been passed by the central government and are in force. Thus, the state legislators could pass laws in favor of the builders, which diminishes the purpose of the RERA and makes this law superfluous.
  • The petitioner pleaded to issue a mandamus court order or any other court order or order stating that WB-HIRA complies with the provisions of the Constitution of India and also to direct the government of West Bengal to not implement the provisions of WB-HIRA in the state of West Bengal, when there is already a central law on the same subject that was in force long before the WB-HIRA was promulgated. Moreover, 98% of the WB HIRA is a copy and insertion of RERA. In addition, the petitioner said that only central legislation should exist in the state of West Bengal, as the constitutional process dictates that state legislation must give way to central law. In the state of Maharashtra, the state law was abolished despite the approval of the President, and the state of Kerala has not implemented its act either. The petitioners also informed the High Court that there is a direct conflict between the Central Law  RERA and the State Law WB-HIRA.
  • The petitioner justified his statement by pointing out the cases that created chaos and confusion over whether this particular issue should be pursued under the RERA or the WB-HIRA. For example the supervisory authority, real estate agent, real estate project register, etc., but real estate agents and property developers have no choice but to register under the WB-HIRA.
  •  Note that several states across the country are implementing the RERA law to communicate the rules, except for West Bengal which not only ignores the central law but also indirectly challenges parliamentary supremacy by making the (RERA) Central government fail and also submitted a letter proving that the union’s housing minister had contacted the foreign minister to repeal the state law. In addition, they said the RTI response indicated that the governor was not properly informed or advised.
  • While responding to the main issue, Judge Chandrachud was quite astonished and commented that this was the first time something like this had happened. Confused, he asked, “Why should a state pass a law that is exactly similar to the central law?” He explained how inconsistencies can arise between state and central law, saying that repugnancy could be due to a direct conflict or an occupied field, or to the enactment of a state law that does not complement the existing central law, but in reality it does the same, what Parliament does when drafting its law. In addition, he asked the question that a state can say, “You passed a law, now we are going to pass and enforce a similar law and not yours, is that acceptable?” The court found that under Article 162, the executive power of the Indian Union is expanded under Article 256, which allows the Center to give instructions to the state and is required to obey them.
  • The investigative court further said that a central act cannot be reduced to a dead letter by the state government and asked: “What was the intention of the state government? Nobody (state) does that. ” The central government, which exercises its executive powers, can instruct the state to enforce the central law and then cannot say, “Make the law, we will not lay down rules for its enforcement.” 
  • The Honorable Court said that there is an exception that the Government of India has no authority when the state enacts a pari-mater law under the contemporaneous list since the central government discharges the use of their right, the moment central law ends.

Critical Analysis

  • It is clear from the court ruling that although the West Bengal Housing Industry Regulation Act 2017 (WB HIRA) was enacted under the State Listing and the Real Estate (Regulation and Development) Act, it is still under the simultaneous listing in 2017. State law could never pass the constitutionality test. Such state laws, which make a rule similar to that of the already implemented central law, only bring absurdity and confusion to the people.

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