SC strikes down West Bengal Housing Industry Regulation Act, 2017 as unconstitutional
May 04, 2021
New Delhi [India], May 4 : The Supreme Court on Tuesday struck down the West Bengal Housing Industry Regulation Act, 2017 (HIRA) as unconstitutional, which was passed to regulate the real estate sector in place of the central law, RERA.
A Bench headed by Justice DY Chandrachud declared as void and unconstitutional the HIRA, for being repugnant to the RERA Act.
The apex court said that if the Parliament has enacted a law on a subject, it is not open for the State legislature to pass a similar law.
"Once Parliament has enacted a law, it's not open to the State legislature to enact a similar law and lift it word to word. Test of repugnancy is clearly established," the top court said.
The judgment of the Bench comes on a plea was filed by the Forum For People's Collective Efforts, an umbrella homebuyers association, challenging the constitutional validity of the West Bengal Housing Industry Regulation Act, 2017, which is identical to the Centre's RERA.
"HIRA has enacted a parallel mechanism and it is the same enactment as the Centre. Both the statutes refer to the same entry in the concurrent list in Schedule 7. The third test of repugnancy is that the subject matter of State enactment is same to Central enactment and post it," the Bench said in its order.
It further said that HIRA occupies the same subject as parliamentary enacted law. West Bengal has attempted to establish a parallel regime which is not permissible.
It also said in its verdict that the State Legislature has encroached on the subject of the parliamentary legislation which has a higher weightage in matters of entries of concurrent list. This analysis shows there is additional repugnancy between HIRA and RERA.
We conclude that HIRA being repugnant to RERA is unconstitutional, it stated.
"By exercising Article 142, we direct that striking down of West Bengal HIRA will not affect the sanctions or permissions granted under HIRA prior to the delivery of this judgment. This power has been exercised to safeguard past decisions and prevent chaos," the Bench said.
