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Supreme Court strikes down West Bengal regulation on actual estate

The Supreme Court on Tuesday struck down as unconstitutional a West Bengal State regulation supposed to shield domestic buyers, announcing the State desired to create a “parallel regime” and encroached upon the same Central regulation — Real Estate (Regulation and Development) Act — enacted the 12 months before.

In a jolt to the Mamata Banerjee government, a Bench of Justices D.Y. Chandrachud and M.R. Shah declared the West Bengal Housing Industry Regulation Act of 2017 (WB-HIRA) “repugnant” to the Parliamentary regulation of Real Estate (Regulation and Development) Act of 2016.

“We have concluded that WB-HIRA is repugnant to the RERA, and is for this reason unconstitutional. We additionally keep and declare that as a final result of the assertion through this Court of the invalidity of the provisions of WB-HIRA, there shall be no revival of the provisions of the West Bengal (Regulation of Promotion of Construction and Transfer with the aid of Promoters) Act, 1993 because it would stand impliedly repealed upon the enactment of the RERA,” Justice Chandrachud, who authored the 190-page judgment, declared.

The court, however, exercised its terrific powers underneath Article 142 and made the impact of its judgment placing down the provisions of the WB-HIRA perspective.

“Since its enforcement in the State of West Bengal, the WB-HIRA would have been utilized to constructing tasks and carried out with the aid of the authorities constituted underneath the regulation in the state. To keep away from uncertainty and disruption in admire of moves taken in the past, recourse to the jurisdiction of this Court underneath Article 142 is necessary. Hence, in the workout of the jurisdiction beneath Article 142, we direct that the putting down of WB-HIRA will now not have an effect on the registrations, sanctions and permissions earlier granted underneath the regulation before the date of this judgment,” the bench said.

The courtroom stated WB-HIRA used to be equal to RERA and for that reason an encroachment into the parliamentary authority to make regulation on topics falling inside its ambit below the Concurrent List of the Seventh Schedule of the Constitution.

“What the State legislature in the current case has finished is no longer to enact cognate or allied rules however regulation which, insofar as the statutory overlaps is involved is same to and bodily lifted from the Parliamentary law. This it seems that implicates the take a look at of repugnancy by using putting up a parallel regime beneath the State law,” Justice Chandrachud explained.

“The State legislature has encroached upon the legislative authority of Parliament… The workout performed by using the State legislature of doing so is it appears that unconstitutional,” the court docket concluded.

The judgment stated some other check of repugnancy between WB-HIRA and RERA used to be the treasured safeguards added by way of the Parliament in public pastime and sure treatments which had been created by using Parliament have been observed to be absent in WB-HIRA, the courtroom noted.

The verdict was once primarily based on a petition filed by using an NGO, Forum for People’s Collective Efforts (FPCE), and some others questioning the constitutional validity of WB-HIRA

Among the questions raised was once that WB-HIRA had neither been reserved for nor had acquired Presidential assent underneath Article 254(2). Besides the State enactment had contained provisions without delay inconsistent with RERA and it was once a “virtual replica” of the Central law.

“A good-sized and even overwhelmingly giant section of WB-HIRA overlaps with the provisions of RERA. These provisions of the RERA have been lifted bodily, phrase for phrase and enacted into the State enactment… In essence and substance, WB-HIRA has enacted a parallel mechanism and parallel regime as that which has been entailed beneath the RERA,” the judgment said.

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