DR.DHANANJAYA Y.CHANDRACHUD, J. - (1.) A. The challenge B. Legislative history C. RERA - the legislative process D. Salient features - RERA E. Salient provisions of WB-HIRA F. RERA and WB-HIRA - provisions at variance G. Submissions G.1 For the petitioners G.2 For the Union of India G.3 For the State of West Bengal H. Analysis H.1 Entry 24, List II - West Bengal's 'housing industry' defense H.2 The Constitutional Scheme of Article 254 and repugnancy H.3 Repugnancy - RERA and WB-HIRA H.3.1 Meaning of "is in addition to and not in derogation of any other law" H.3.2 Meaning of "law for the time being in force" H.3.3 Knitting it together H.4 Lack of Presidential Assent for WB-HIRA I. Conclusion A. The challenge 1. The constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 ("WB-HIRA"/the "State enactment") is challenged in a petition under Article 32. The basis of the challenge is that: (i) Both WB-HIRA and a Parliamentary enactment - the Real Estate (Regulation and Development) Act, 2016 ("RERA"/the "Central enactment") are relatable to the legislative subjects contained in Entries 6 and 7 of the Concurrent List (interchangeably referred to as 'List III') of the Seventh Schedule to the Constitution; (ii) WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2); (iii) The State enactment contains certain provisions which are either: a. Directly inconsistent with the corresponding provisions of the Central enactment; or b. A virtual replica of the Central enactment; and (iv) Parliament having legislated on a field covered by the Concurrent List, it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up a parallel legislation. Nuances apart, this, in substance, is the essence of the challenge. B. Legislative history
(2.) Before Parliament enacted the RERA in 2016, the state legislatures had enacted several laws to regulate the relationship between promoters and purchasers of real estate. Among them was the West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (the "WB 1993 Act"). This legislation of the State of West Bengal was reserved for and received Presidential assent, following which it was published in the Official Gazette on 9 March 1994. Many other States enacted laws on the subject, including among them: (i) The Maharashtra Housing (Regulation and Development) Act, 2012 (the "Maharashtra Act"), which received Presidential assent on 2 February 2014; and (ii) The Kerala Real Estate (Regulation and Development) Act, 2015 (the "Kerala Act"), was enacted by the State Legislative Assembly on 3 February 2016.
(3.) On 14 August 2013, the Bill for enactment of the RERA was introduced in the Rajya Sabha. The Bill was passed by the Rajya Sabha on 10 March 2016, and by the Lok Sabha on 15 March 2016. The law received the assent of the President on 25 March 2016, and was published in the Official Gazette on the next day. RERA was then partially enforced on 1 May 2016[1], while the rest of its provisions were enforced on 19 April 2017[2]. The Maharashtra Act was specifically repealed by RERA[3], while the Kerala Act was repealed by the State Legislative Assembly through the Kerala Real Estate (Regulation and Development) Repeal Act, 2017[4]. [1] Sections 2, 20 to 39, 41 to 58, 71 to 78 and 81 to 92. [2] Sections 3 to 19, 40, 59 to 70, 79 to 80. [3] "Section 92. Repeal: The Maharashtra Housing (Regulation and Development) Act, 2012 is hereby repealed." [4] Its Statement of Objects and Reasons noted "... As per clause (1) of article 254 of the Indian Constitution, if any provision of a law made by the legislature of a State is repugnant to any law made by the Parliament, the law made by the legislature of a State shall become void. Therefore the Government have decided to repeal the Kerala Real Estate (Regulation and Development) Act, 2015." ;