TaxTMI 
TaxTMI 
2021 (5) TMI 1031
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....nt 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 ....
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....no further progress was made in that regard. On 16 August 2017, the motion for passing the WB-HIRA Bill was adopted in the State Legislative Assembly. The State enactment received the assent of the Governor of West Bengal on 17 October 2017. Inter alia, the WB-HIRA repealed the WB 1993 Act^[5]. The remaining provisions of WB-HIRA were enforced by a notification^[6] dated 29 March 2018, issued by the Governor of the State of West Bengal in exercise of the power conferred by sub-section (3) of section 1 of WB-HIRA. Thereafter on 8 June 2018, the State of West Bengal framed rules under WB-HIRA. C RERA - the legislative process 5 The Standing Committee on Urban Development (2012-2013) of the Fifteenth Lok Sabha submitted its Thirtieth Report on the Real Estate (Regulation and Development) Bill, 2013 (the "RERA Bill 2013") pertaining to the Ministry of Housing and Urban Poverty alleviation. While adopting the draft report on 12 February 2014, the Committee emphasized the need for enacting a comprehensive legislation to regulate the real estate sector. The backdrop is succinctly summarized in the prefatory paragraphs of the report, which are set out below: "Over the past f....
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.... Committee invited suggestions and views from the members of the public, receiving a total of 273 suggestions. It further visited Kolkata, Bengaluru, Mumbai and Shimla to interact with stakeholders in various parts of the country. While discussing diverse issues which were presented before it by stakeholders, the Select Committee noted the grievances of consumers, many of whom were duped by unscrupulous promoters and were made to run from pillar to post to secure possession of the apartments which were agreed to be sold or a refund of their moneys. The plight of the consumers is highlighted in the following passage in the report of the Select Committee, which was presented before the Rajya Sabha on 30 July 2015: "(i) Consumers and Resident Welfare Association The Committee came across many instances of standalone projects where the consumers were fleeced by the unscrupulous promoters. These consumer invested their hard earned money for their dream houses which turned out to be a nightmare for them while they run from pillar to post either to get the possession of their apartment or refund of their money back and fighting cases in the courts. The consumers were una....
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.... that the liability of promoter should be increased from 2 years to 5 years. k) In case any project is abandoned by a promoter the way out suggested in clause 16 is inappropriate. In such an eventuality, the promoter be subjected to heavy penalty and compelled to carry the project through rather than considering the suggested options which were not practicable. l) In case of default, allottees are charged penalty at much higher rate of interest compared to default on the part of the promoter. m) There should not be any exemption to any project from the provisions of this Bill in respect of area and number of flats. n) Timely formation of the association of allottees and handing over of the common areas to the association for management at the earliest. o) Parking areas accommodation for domestic help to be dealt as per the Supreme Court Judgment." 7 In bringing about a balance between the need to protect consumers with the necessity of encouraging investment in the real estate sector, the Committee observed that while it shared the concerns of consumers, many of whom have to suffer because of 'fly by night operators', it was c....
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....re greater accountability towards consumers and significantly reduce frauds and delays as also the current high transactions costs. It attempts to balance the interests of consumers and promoters by imposing certain responsibilities on both. It seeks to establish symmetry of information between the promoter and purchaser, transparency of contractual conditions set minimum standards of accountability and a fast-track dispute resolution mechanism. The proposed Bill will induct professionalism and standardization in the sector, thus paving the way for accelerated growth and investments in the long run." (emphasis supplied) 9 The legislative background antecedent to and ultimately culminating in the enactment of the RERA indicates: firstly, the circumstances which gave rise to the need for comprehensive Parliamentary legislation on the subject; secondly, the specific inadequacies in the development of the real estate sector which were a source of exploitation of purchasers; thirdly, the legislative policy underlying the enactment of the law; and fourthly, the context in which specific statutory provisions have been adopted as the instrument for bringing about orderly development ....
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....eal Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto." 10 As such, the legislative background underlying the enactment of the RERA demonstrates a clear emphasis on: (i) Standardization; (ii) Uniformity; and (iii) Symmetry of information. These elements provide the justification for enacting a comprehensive legislation which is uniformly applicable to all parts of the country. D Salient features - RERA 11 Before we proceed further, some of the salient features of the RERA need to be noticed: (i) The expression 'real estate project' is defined in Section 2(zn): "(zn) "real estate project" means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartments, as the case may be, for the purpose of selling all or some of the said apartments or plots or building, as the case may be, and includes the common areas, the development works, all improvements and structures thereon, and all easement, rights and appurtenances belonging thereto;" (ii) ....
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....b. Adherence to approved plans and project specifications as approved by competent authorities; c. Obligations regarding veracity of advertisements or prospectus; d. Transfer of title by a registered deed of conveyance; e. Refund of monies in case of default; f. Prohibition on accepting more than ten per cent of the cost as advance without entering into a written agreement for sale; g. Rectification of structural defects for a specified period from the date of possession; h. Formation of an association, society or cooperative society of allottees and the execution of a registered deed of conveyance; (vi) It also provides the rights and obligations of allotees, which are: a. Obtaining information about sanctioned plans, lay outs and specifications approved by the competent authority; b. The date wise time schedule for completion of the project including provisions for essential amenities; c. Claiming possession, including possession of the common areas by the association; d. Refund in the event for default; e. Duty to make payments of consideration for the sale of the apartment, plo....
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....tablish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto." Its preamble is in the following terms: "Whereas it is expedient to establish the Housing Industry Regulatory Authority for regulation and promotion of the housing sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish a mechanism for speedy dispute redressal and for matters connected therewith or incidental thereto." The above excerpts indicate that the State enactment purports to set up a regulatory authority for the housing industry. Save and except for this emphasis on the housing industry, the broad purpose of the State enactment coincides with RERA. Before we set out a comparative table of the corresponding provisions of WB-HIRA and RERA, it is necessary to note at the outset that there is, in most of the substantive provisions, a complete overlap of the provisions contained in the two statutes. Evidently, the Bill for the introduction of WB-HIRA in the State legislature was prep....
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....purpose specified; 2(d) - Definition of "apartment" 2(j) - Definition of "building" (j) "building" includes any structure or erection or part of a structure or erection which is intended to be used for residential, commercial or for the purpose of any business, occupation, profession or trade, or for any other related purposes; 2(h) - Definition of "building" 2(k) - Definition of "carpet area" (k) "carpet area" means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment. 2(j) - Definition of "carpet area" Explanation.- For the purpose of this clause, the expression "exclusive balcony or verandah area" means the area of the balcony or verandah, as the case may be, which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the allottee; and "exclusive open terrace area" means the area of open terrace which is appurtenant to the net usable floor area of an apartment, meant for the exclusive use of the ....
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.... apartments, as the case may be, constructed by such authority or body on lands owned by them or placed at their disposal by the Government; or (b) plots owned by such authority or body or placed at their disposal by the Government, for the purpose of selling all or some of the apartments or plots; or (iv) an apex State level co-operative housing finance society and a primary co-operative housing society which constructs apartments or buildings for its Members or in respect of the allottees of such apartments or buildings; or (v) any other person who acts himself as a builder, coloniser, contractor, developer, estate developer or by any other name or claims to be acting as the holder of a power of attorney from the owner of the land on which the building or apartment is constructed or plot is developed for sale; or (vi) such other person who constructs any building or apartment for sale to the general public. Explanation.-For the purposes of this clause, where the person who constructs or converts a building into apartments or develops a plot for sale and the per....
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....lication to the Authority for registration of the said project within a period of three months from the date of commencement of this Act: Provided further that if the Authority thinks necessary, in the interest of allottees, for projects which are developed beyond the planning area but with the requisite permission of the local authority, it may, by order, direct the promoter of such project to register with the Authority, and the provisions of this Act or the rules and regulations made thereunder, shall apply to such projects from that stage of registration. (2) Notwithstanding anything contained in sub-section (1), no registration of the real estate project shall be required- (a) where the area of land proposed to be developed does not exceed five hundred square meters or the number of apartments proposed to be developed does not exceed eight inclusive of all phases: Provided that, if the appropriate Government considers it necessary, it may, reduce the threshold below five hundred square meters or eight apartments, as the case may be, inclusive of all phases, for exemption from registration under this Act....
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....e competent authority; (e) the plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof including fire fighting facilities, drinking water facilities, emergency evacuation services, use of renewable energy; (f) the location details of the project, with clear demarcation of land dedicated for the project along with its boundaries including the latitude and longitude of the end points of the project; (g) proforma of the allotment letter, agreement for sale, and the conveyance deed proposed to be signed with the allottees; (h) the number, type and the carpet area of apartments for sale in the project along with the area of the exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment, if any; (i) the number and areas of garage for sale in the project; (j) the names and addresses of his real estate agents, if any, for the proposed project; (k) the names and addresses of the contractors....
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....t, 1934; (E) that he shall take all the pending approvals on time, from the competent authorities; (F) that he has furnished such other documents as may be prescribed by the rules or regulations made under this Act; and (m) such other information and documents as may be prescribed. (3) The Authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment. 5 - Grant of registration (1) On receipt of the application under sub-section (1) of section 4, the Authority shall within a period of thirty days. 5 - Grant of registration (a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a Login Id and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project; or (b) reject the application for reasons to be recorded in....
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....ng satisfied that- 7 - Revocation of the registration (a) the promoter makes default in doing anything required by or under this Act or the rules or the regulations made thereunder; (b) the promoter violates any of the terms or conditions of the approval given by the competent authority; (c) the promoter is involved in any kind of unfair practice or irregularities. Explanation.- For the purposes of this clause, the term "unfair practice means" a practice which, for the purpose of promoting the sale or development of any real estate project adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:- (A) the practice of making any statement, whether in writing or by visible representation which,- (i) falsely represents that the services are of a particular standard or grade; (ii) represents that the promoter has approval or affiliation which such promoter does not have; (iii) makes a false or misleading representation concernin....
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....y deem fit including the carrying out of the remaining development works by competent authority or by the association of allottees or in any other manner, as may be determined by the Authority: 8 - Obligation of Authority consequent upon lapse of or on revocation of registration Provided that no direction, decision or order of the Authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this Act: Provided further that in case of revocation of registration of a project under this Act, the association of allottees shall have the first right of refusal for carrying out of the remaining development works. 9 - Registration of real estate agents (1) No real estate agent shall facilitate the sale or purchase of or act on behalf of any person to facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it, being the part of the real estate project registered under section 3, being sold by the promoter in any planning area, without obtaining registration under this section. 9 - Registration to real estate ....
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....p; 10 - Functions of real estate agents Every real estate agent registered under section 9 shall- (a) not facilitate the sale or purchase of any plot, apartment or building, as the case may be, in a real estate project or part of it, being sold by the promoter in any planning area, which is not registered with the Authority; 10 - Functions of real estate agents (b) maintain and preserve such books of account, records and documents as may prescribed; (c) not involve himself in any unfair trade practices, namely:- (i) the practice of making any statement, whether orally or in writing or by visible representation which- (A) falsely represents that the services are of a particular standard or grade; (B) represents that the promoter or himself has approval or affiliation which such promoter or himself does not have; (C) makes a false or misleading representation concerning the services; (ii) permitting the publication of any advertisement whether in any newspaper or otherwise o....
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.... (4) The promoter shall- (a) be responsible for all obligations, responsibilties and functions under the provisions of this Act or the rules and regulations made thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the competent authority, as the case may be: Provided that the responsibility of the promoter, with respect to the structural defect or any other defect for such period as is referred to in sub-section (3) of section 14, shall continue even after the conveyance deed of all the apartments, plots or buildings, as the case may be, to the allottees are executed. (b) be responsible to obtain the completion certificate or the occupancy certificate, or both, as applicable, from the relevant competent authority as per local laws or other laws for the time being in force and to make it available to the allottees individually or to the association of allottees, as t....
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....tgoings and penal charges, if any, to the authority or person to whom they are payable and be liable for the cost of any legal proceedings which may be taken therefor by such authority or person; (h) after he executes an agreement for sale for any apartment, plot or building, as the case may be, not mortgage or create a charge on such apartment, plot or building, as the case may be, and if any such mortgage or charge is made or created then notwithstanding anything contained in any other law for the time being in force, it shall not affect the right and interest of the allottee who has taken or agreed to take such apartment, plot or building, as the case may be; (5) The promoter may cancel the allotment only in terms of the agreement for sale: Provided that the allottee may approach the Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale, unilateral and without any sufficient cause. (6) The promoter shall prepare and maintain all such other details as may be specified, from time to time, by regulations made by the Authority. ....
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....leted by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities. (2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make- 14 - Adherence to sanctioned plans and project specifications by the promoter (i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person: Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as ....
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....s in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of the Authority: 15 - Obligations of promoter in case of transfer of a real estate project to a third party Provided that such transfer or assignment shall not affect the allotment or sale of the apartments, plots or buildings as the case may be, in the real estate project made by the erstwhile promoter. Explanation.- For the purpose of this sub-section, the allottee, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only. (2) On the transfer or assignment being permitted by the allottees and the Authority under sub-section (1), the intending promoter shall be required to independently comply with all the pending obligations unde....
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....t, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws: 17 - Transfer of title Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occupancy certificate. (2) After obtaining the occupancy certificate and handing over physical possession to the allottees in terms of sub-section (1), it shall be the responsibility of the promoter to handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be, as per the local laws: Provided that, in the absence of any local law, the promoter shall handover the necessary documents and plans, including common areas, the association of the allottees or the competent authority, as the case may be, within thirty days after obtaining the occupancy certificate. 18 - Return of amount and compensation ....
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....ater, sanitation, electricity and other amenities and services as agreed to between the promoter and the allottee in accordance with the terms and conditions of the agreement for sale. (3) The allottee shall be entitled to claim the possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under sub-clause (C) of clause (I) of sub-section (2) of section 4. (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder. (5) The allottee shall be entitled to have the necessary doc....
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....y: Provided further that, the appropriate Government may, if it deems fit, establish more than one Authority in a State or Union territory, as the case may be: Provided also that until the establishment of a Regulatory Authority under this section, the appropriate Government shall, by order, designate any Regulatory Authority or any officer preferably the Secretary of the department dealing with Housing, as the Regulatory Authority for the purposes under this Act: (2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. 21 - Composition of Authority The Authority shall consist of a Chairperson and not less than two whole time Members to be appointed by the appropriate Government. 21 - Composition of Authority 22 - Qualifications of Chairperson and Members of Authority The Chairperson and other Members of the Authority shall be appointed by the appropr....
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....airperson or a Member, as the case may be, may,- (a) relinquish his office by giving in writing, to the appropriate Government, notice of not less than three months; or (b) be removed from his office in accordance with the provisions of section 26 of this Act. (3) Any vacancy caused to the office of the Chairperson or any other Member shall be filled-up within a period of three months from the date on which such vacancy occurs. 25 - Administrative powers of Chairperson The Chairperson shall have powers of general superintendence and directions in the conduct of the affairs of Authority and he shall, in addition to presiding over the meetings of the Authority, exercise and discharge such administrative powers and functions of the Authority as may be prescribed. 25 - Administrative power of Chairperson 26 - Removal of Chairperson and Members from office in certain circumstances (1) The appropriate Government may, in accordance with the procedure notified, remove from office the Chairperson or other Members, if the Chairperson or such other Member, as the case may be,- (a....
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....ot being able to be made available to the public; (d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such. (2) The Chairperson and Members shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such. 28 - Officers and other employees of Authority 28. (1) The appropriate Government may, in consultation with the Authority appoint such officers and employees as it considers necessary for the efficient discharge of their functions under this Act who would discharge their functions under the general superintendence of the Chairperson. 28 - Officers and other employees of Authority (2) The salary and allowances payable to, and the other terms and conditions of service of, the officers and of the employees of the Authority appointed under sub-section (1) shall be such as may be prescribed. 29 - Meetings of Authority (1) The Authorit....
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....form, manner and fees for filing complaint under sub-section (1) shall be such as may be specified by regulations. 32 - Functions of Authority for promotion of real estate sector The Authority shall in order to facilitate the growth and promotion of a healthy, transparent, efficient and competitive real estate sector make recommendations to the appropriate Government of the competent authority, as the case may be, on,- 32 - Functions of Authority for promotion of real estate sector (a) protection of interest of the allottees, promoter and real estate agent; (b) creation of a single window system for ensuring time bound project approvals and clearances for timely completion of the project; (c) creation of a transparent and robust grievance redressal mechanism against acts of ommission and commission of competent authorities and their officials; (d) measures to encourage investment in the real estate sector including measures to increase financial assistance to affordable housing segment; (e) measures to encourage construction of en....
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....ration has been granted; (c) to maintain a database, on its website, for public viewing, and enter the names and photographs of promoters as defaulters including the project details, registration for which has been revoked or have been penalised under this Act, with reasons therefor, for access to the general public; (d) to maintain a database, on its website, for public viewing, and enter the names and photograhps of real estate agents who have applied and registered under this Act, with such details as may be prescribed, including those whose registration has been rejected or revoked; (e) to fix through regulations for each areas under its jurisdiction the standard fees to be levied on the allottees or the promoter or the real estate agent, as the case may be; (f) to ensure compliance of the obligations cast upon the promoters, the allottees and the real estate agents under this Act and the rules and regulations made thereunder; (g) to ensure compliance of its regulations or orders or directions made in exercise of its powers under this ....
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....er the provisions of this Act or rules or regulations made thereunder, issue such directions from time to time, to the promoters or allottees or real estate agents, as the case may be, as it may consider necessary and such directions shall be binding on all concerned. 37 - Powers of Authority to issue directions 38 - Powers of Authority (1) The Authority shall have powers to impose penalty or interest, in regard to any contravention of obligations cast upon the promoters, the allottees and the real estate agents, under this Act or the rules and the regulations made thereunder. 38 - Powers of Authority (2) The Authority shall be guided by the principles of natural justice and, subject to the other provisions of this Act and the rules made thereunder, the Authority shall have powers to regulate its own procedure. (3) Where an issue is raised relating to agreement, action, omission, practice or procedure that- (a) has an appreciable prevention, restriction or distortion of competition in connection with the development of a real estate project; or (b) has effect of market power of monopoly situation being abused for affecting interest of....
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....r made by the Authority or by an adjudicating officer under this Act may prefer an appeal before the Appellate Tribunal having jurisdiction over the matter: Provided that where a promoter files an appeal with the Appellate Tribunal, it shall not be entertained, without the promoter first having deposited with the Appellate Tribunal atleast thirty per cent. of the penalty, or such higher percentage as may be determined by the Appellate Tribunal, or the total amount to be paid to the allottee including interest and compensation imposed on him, if any, or with both, as the case may be, before the said appeal is heard. Explanation.- For the purpose of this sub-section "person" shall include the association of allottees or any voluntary consumer association registered under any law for the time being in force. 44 - Application for settlement of disputes and appeals to Appellate Tribunal (1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal. 44 - Application for set....
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....chnical or Administrative Member" means a Member of the Appellate Tribunal appointed as such under clause (c) of sub-section (1) of section 46. 46 - Qualifications for appointment of Chairperson and Members (1) A person shall not be qualified for appointment as the Chairperson or a Member of the Appellate Tribunal unless he,- (a) in the case of Chairperson, is or has been a Judge of a High Court; and (b) in the case of a Judicial Member he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and 46 - Qualifications for appointment of Chairperson and Members (c) in the case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at leas....
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.... (a) relinquish his office by giving in writing to the appropriate Government a notice of not less than three months; (b) be removed from his office in accordance with the provisions of section 49. (3) A vacancy caused to the office of the Chairperson or any other Member, as the case may be, shall be filled-up within a period of three months from the date on which such vacancy occurs. 49 - Removal of Chairperson and Member from office in certain circumstances (1) The appropriate Government may, in consultation with the Chief Justice of the High Court, remove from office of the Chairperson or any judicial Member or Technical or Administrative Member of the Appellate Tribunal, who- (a) has been adjudged as an insolvent; or 48 - Removal of Chairperson, Member etc (b) has been convicted of an offence which, in the opinion of the appropriate Government involves moral turpitude; or (c) has become physically or mentally incapable; or (d) has acquired such financial or other interest as is likely to affect prejudicially his fun....
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....ority is a party and with respect to which the Chairperson or Judicial Member or Technical or Administrative Member had, before cessation of office, acted for or provided advice to, the Authority; (c) give advice to any person using information which was obtained in his capacity as the Chairperson or Judicial Member or Technical or Administrative Member and being unavailable to or not being able to be made available to the public; (d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such. (2) The Chairperson or Judicial Member or Technical or Administrative Member shall not communicate or reveal to any person any matter which has been brought under his consideration or known to him while acting as such. 51 - Officers and other employees of Appellate Tribunal (1) The appropriate Government shall provide the Appellate Tribunal with such officers and employees as it may deem fit. 51 - Officers and other employ....
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....pellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 55 - Vacancies, etc., not to invalidate proceeding of Appellate Tribunal No act or proceeding of the Appellate Tribunal shall be invalid merely by reason of- (a) any vacancy in, or any defect in the constitution of, the Appellate Tribunal, or (b) any defect in the appointment of a person acting as a Member of the Appellate Tribunal; or (c) Any irregularity in the procedure of the Appellate Tribunal not affecting the merits of the case. 56 - Right to legal representation The applicant or appellant may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal or the Regulatory Authority or the adjudicating officer, as the case may be. 56 - Right to Legal re-presentation Explanation.-For the purposes of this section,- (a) "chartered accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of se....
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.... (2) No appeal shall lie against any decision or order made by the Appellate Tribunal with the consent of the parties. 59 - Punishment for non-registration under Section 3 (1) If any promoter contravenes the provisions of section 3, he shall be liable to a penalty which may extend up to ten per cent. of the estimated cost of the real estate project as determined by the Authority. 59 - Punishment for non-registration under Section 3 (2) If any promoter does not comply with the orders, decisions or directions issued under sub-section (1) or continues to violate the provisions of section 3, he shall be punishable with imprisonment for a term which may extend up to three years or with fine which may extend up to a further ten per cent. of the estimated cost of the real estate project, or with both. 60 - Penalty for contravention of Section 4 If any promoter provides false information or contravenes the provisions of section 4, he shall be liable to a penalty which may extend up to five per cent. of the estimated cost of the real estate project, as determined by the Authority. 60 - Penalty for contravention of Section 4 61 - Penalty....
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....er cent., of the estimated cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated and as determined by the Authority 65 - Penalty for failure to comply with orders of Authority by real estate agent 66 - Penalty for failure to comply with orders of Appellate Tribunal by real estate agent If any real estate agent, who fails to comply with, or contravenes any of the orders, decisions or directions of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to one year or with fine for every day during which such default continues, which may cumulatively extend up to ten per cent. of the estimated cost of plot, apartment or building, as the case may be, of the real estate project, for which the sale or purchase has been facilitated, or with both. 66 - Penalty for failure to comply with orders of Appellate Tribunal by real estate agent 67 - Penalty for failure to comply with orders of Authority by allottee If any allottee, who fails to comply with, or contravenes any of the orders, decisions or directions of the Authority he shall be liable to a pena....
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.... 74 - Grants and loans by State Government The State Government may, after due appropriation made by State Legislature by law in this behalf, make to the Authority, grants and loans of such sums of money as the State Government may think fit for being utilised for the purposes of this Act. 70 - Grants and loans by State Government 75 - Constitution of Fund (1) The appropriate Government shall constitute a fund to be called the 'Real Estate Regulatory Fund' and there shall be credited thereto,- 71 - Constitution of Fund (a) all Government grants received by the Authority; (b) the fees received under this Act; (c) the interest accrued on the amounts referred to in clauses (a) to (b). (2) The Fund shall be applied for meeting- (a) the salaries and allowances payable to the Chairperson and other Members, the adjudicating officer and the administrative expenses including the salaries and allowances payable to be officers and other employees of the Authority and the Appellate Tribunal; (b) the othe....
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....e appropriate Government by the Authority and the appropriate Government shall cause the audit report to be laid, as soon as may be after it is received, before each House of Parliament or, as the case may be, before the State Legislature or the Union territory Legislature, where it consists of two Houses, or where such legislature consists of one House, before the House. 78 - Annual report (1) The Authority shall prepare once in every year, in such form and at such time as may be prescribed by the appropriate Government,- (a) a description of all the activities of the Authority for the previous year; (b) the annual accounts for the previous year; and (c) the programmes of work for the coming year. 74 - Annual report (2) A copy of the report received under sub-section (1) shall be laid, as soon as may be after it is received, before each House of Parliament or, as the case may be, before the State Legislature or the Union Territory Legislature, where it consists of two Houses, or where such legislature consists of one House, before that House. 79 - Bar of Jurisdiction No civil court shall have jurisdiction to entertain any suit or pro....
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....a reasonable opportunity to the Authority to make representations against the proposed supersession and shall consider the representations, if any, of the Authority. (2) Upon the publication of a notification under sub-section (1) superseding the Authority,- (a) the Chairperson and other Members shall, as from the date of supersession, vacate their offices as such; (b) all the powers, functions and duties which may, by or under the provisions of this Act, be exercised or discharged by or on behalf of the Authority shall, until the Authority is reconstitued under sub-section (3), be exercised and discharged by the person or persons referred to in sub-section (1); And (c) all properties owned or controlled by the Authority shall, until the Authority is reconstituted under sub-section (3), vest in the appropriate Government. (3) On or before the expiration of the period of supersession specified in the notification issued under sub-section (1), the appropriate Government shall reconstitute the Authority by a fresh appointment of its Chairperson and other members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be....
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....ants within the meaning of section 21 of the Indian Penal Code. 82 - Members, etc., to be public servants 90 - Protection of action taken in good faith No suit prosecution or other legal proceedings shall lie against the appropriate Government or the Authority or any officer of the appropriate Government or any member officer or other employees of the Authority for anything which is in good faith done or intended to be done under this Act or the rules or regulations made thereunder. 84 - Protection of action taken in good faith 91 - Power to remove difficulties (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the date of the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 85 - Power to remove difficulties It needs to be emphasized that t....
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....red or open excluding open car parking areas reserved for common areas and facilities to park vehicles located at any level having sufficient drive way and maneuvering space for loading and uploading as sanctioned by the competent authority and includes all types of car parking areas sanctioned by competent authority. 2 Definition of 'Garage' Section 2(y): 'Garage' has been defined to mean 'a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an un-enclosed or uncovered parking space such as 'open parking areas'. Section 2 (x): 'Garage' has been defined to mean 'garage and parking space as sanctioned by the Competent Authority'. 3 Planning Area RERA applies to only those real estate projects which are located within the planning area notified by the appropriate government or a competent authority to be a planning area. There exists no separate concept of a planning area. WB-HIRA applies to all projects in the State of West Bengal. 4 "Force Majeure" events for the purpose of Extension of registration The registration granted under section 5 may be extended by the Authority on an application mad....
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....ions of RERA to invoke force majeure clause and extend the completion date 'suo motu' or revised / extended completion date for all real estate projects registered under RERA for a period of 6 months, where completion date expires on or after 25th March, 2020. However, the stakeholders (homebuyers & promoters) of West Bengal got deprived as they were not covered under the purview of RERA. Section 41: WB-HIRA provides for establishment of State Advisory Council chaired (ex-officio) by State Minister of Housing. However, the purpose of having a Central Advisory Council was entirely different, which can't be substituted by establishing State Advisory Council. Any advisory of Central Government based upon the recommendation of CAC will have no effect in the state of West Bengal. 7 Compounding of Offences Section 70: Provides for compounding of offences under the Act. There is no such provision. 8 Factors for adjudging quantum of compensation or interest. Section 71(1): provides that Regulatory Authority shall appoint an adjudicating officer for purpose of adjudging compensation under sections 12, 14, 18 and section 19, who is or has been a District Judge t....
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....al enactments; and d. WB-HIRA covers the identical field of regulating the contractual behavior of promoters and buyers in real-estate projects. The state law is a 'copy-and paste' replica of the central legislation (except for certain provisions which are inconsistent with RERA) and covers the field which is occupied by the central enactment. (II) WB-HIRA is repugnant to RERA a. The subjects of both sets of legislations are contained in Entries 6 and 7 of the Concurrent List; b. The state law does not fall either under the subject of land (Entry 18, List II^[7]) or industry (Entry 24, List II). That WB-HIRA does not fall under Entry 24, List II is evident from the meaning of the expression 'industry' as explained in the following decisions: * Tika Ram Ji v State of UP, (1956) SCR 393 at pg. 412, 420 [5-Judges] * Calcutta Gas Co. Ltd. v State of West Bengal, (1962) Supp. 3 SCR 1 [5-Judges] * ITC Ltd. v Agricultural Produce Market Committee & Ors., (2002) 9 SCC 232 [5-Judges] * Accountant and Secretarial Services Pvt. Ltd. v UOI (1988) 4 SCC 324 [2-Judges] * Ashoka Marketing Ltd. v Punjab National Bank, (1990....
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....tement of Objects and Reasons of the Bill from when it was introduced in the state legislature, specifically notes that housing comes under the ambit of industry which is why the state decided to enact its own legislation; 2. The long title of the state enactment seeks to establish a housing industry regulatory authority for regulation and promotion of the housing sector; 3. The Governor of West Bengal was not informed of RERA when assent was sought; 4. Even in the counter affidavit filed in this Court, the State government has pleaded that "as per WB-HIRA, housing comes under the meaning of 'industry'"; and 5. Once it is conceded during the course of oral submissions that the legislation does not fall under Entry 24 of List II but Entries 6 and 7 of List III, the entire edifice of the legislation being referable to the State List is negatived and the state enactment is void under Article 254(1). (IV) Effect of Sections 88 and 89 of RERA: a. It is common ground that both the central and state laws fall under the subjects of legislation contained in the Concurrent List; b. The State of West Bengal has submitted that Sections 8....
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....ons- both to promoters and consumers. Section 89 gives overriding effect to RERA over inconsistent existing laws; h. Sections 88 and 89 do not prohibit the enactment of laws by Parliament or the state legislatures in future. However, in the case of a future state law covering the same field, its validity has to be tested only on the touchstone of Article 254 without reference to Sections 88 or 89. In the event of a future Parliamentary law, its effect and impact would be tested on the general principles of interpretation of statutes such as general and special laws, an earlier and later law and the rule of harmonious construction. The State cannot enact a law on the subject matter without seeking Presidential assent; i. The expression "in addition to and not in derogation of" was intended to indicate that the remedies in RERA are addition to those provided by other statutes including the Consumer Protection Act and the Insolvency and Bankruptcy Code, 2016 ("IBC"). j. Provisions analogous to Sections 88 and 89 of the RERA are contained in several other central statutes on the subjects in the Concurrent List some of which are tabulated below: Central Law....
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....d and Statement of objects of RERA a. The legislative background before the enactment of the RERA in 2016 indicates that a comprehensive exercise was carried out by the Select Committee of the Rajya Sabha which heard the views of stakeholders from across the country; b. Parliament has enacted RERA, as the Statement of Objects and Reasons indicates, having due regard to 1. The necessity of a central legislation to provide effective protection to real estate buyers and protect them from exploitation; 2. The need to ensure uniformity and standardization of business practices; 3. The key purpose of RERA is to ensure uniformity, transparency, efficiency, symmetry, standardization and efficacious dispute resolution; c. While enacting the RERA, Parliament by its definition of "appropriate government" in Section 2(g) entrusted wide powers to the State governments including the power to frame rules and regulations. d. Some of the salient features of RERA include 1. Registration of real estate projects; 2. Registration of real estate agents; 3. Mandatory disclosers of project details on the web-site of ....
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....concurrent list; and third, even in the absence of an actual conflict, repugnancy may arise when both the State and Central statutes seek to exercise power over the same subject matter; a. First test of repugnancy: direct conflict There is a direct inconsistency between several provisions of the RERA and WB-HIRA: 1. Under the RERA open car parking areas are covered by the definition of 'common areas' in Section 2(n), indicating therefore that they cannot be sold; on the other hand in the State enactment, Section 2(i) allows the car parking area to be prescribed by rules made by the state government; 2. The definition of 'garage' in Section 2(y) of RERA does not include unenclosed or uncovered parking spaces such as open parking areas, whereas Section 2(x) of WB-HIRA defines the expression 'garage' to mean parking spaces as sanctioned by the competent authority; 3. RERA applies only to those real estate projects situated in a planning area while there is no concept of a planning area in the state legislation; 4. Section 6 of the RERA specifically confines force majeure events to specific eventualities whereas the corresponding provisio....
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.... the decision in Pioneer Urban Land & Infrastructure Ltd vs Union of India [(2019) 8 SCC 416], the provisions of three central enactments were construed harmoniously namely RERA, the Consumer Protection Act, 1986 and the IBC. Construing these enactments harmoniously, the Court held that the IBC and Consumer Protection Act as well as RERA provide concurrent remedies to allottees of flats which can be exercised at their option; and 5. Even assuming that Sections 88 and 89 of RERA are construed as an intent of the Parliament to not occupy the field exhaustively, they cannot be implied to allow the operation of State laws which completely eclipse and encroach upon RERA so much so that the existence of RERA is impossible as long as WB-HIRA is given effect to by the State. c. Third test of repugnancy: implied repeal 1. The subject matter of both the enactments is the regulation of the real estate sector; 2. WB-HIRA stands in the State of West Bengal in place of RERA. Both cannot stand together. As a matter of fact, while WB-HIRA is fully operational in the State of West Bengal, RERA is non-operational; 3. The only exception would be where the State ....
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.... powers under Articles 245 and 246 of the Constitution, Parliament has enacted the legislation on the subjects assigned to it under Entries 6 and 7 of List III of the Seventh Schedule which pertain to transfer of property and contracts not relating to agricultural land. Since the enactment in the State of West Bengal follows the provisions of RERA "broadly and substantially", the state enactment would also be covered by Entries 6 and 7 of List III of the Seventh Schedule; b. In the Counter Affidavit filed by the State of West Bengal it was contended that the State enactment falls under Entry 24 of List II, as it deals with the housing industry. This contention is not correct and is not being pressed. This is for the reason that the ambit of Entry 24 of List II has been explained in the decisions of the Constitution Bench in Tika Ramji vs State of UP [(1956) SCR 393] and ITC Ltd vs Agricultural Produce Market Committee [(2002) 9 SCC 232] to exclude those subjects which are specifically included in the other Entries of List III in the Seventh Schedule; and c. In view of the above position, Entry 24 of List II will not cover the field which is covered by Entries 6 an....
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.... the WB 1993 Act was operating. Parliament did not repeal this Act. The WB 1993 Act was repealed only by Section 86 of WB-HIRA to align the State Act with the RERA. The fact that Parliament repealed only the Maharashtra Act indicates that RERA does not evince any intention to shut out other state enactments. On the contrary the Parliamentary intent is to make RERA permissive and accommodative of state legislation; f. The fact that other states had not enacted a law like WB-HIRA does not take away the plenary legislative powers of the State of West Bengal; g. In exercise of the rule making power under Section 80(1) of the WB-HIRA, the State of West Bengal has framed rules on 5 June 2018. A dedicated web-site has been made operational. The regulatory authority has been established on 23 July 2018 while its Chairperson and Members were appointed on 25 June 2020 and 30 June 2020. The Appellate Tribunal has been established on 29 July 2019 and both the Authority and the Appellate Tribunal are adjudicating all complaints; and h. One of the reasons for enacting WB-HIRA was to enable the State to have its own State Advisory Council for advising and recommending t....
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....on does not enable the Union Executive to give directions to the State legislature. Federalism is a basic feature of the Constitution. WB-HIRA follows the principle of cooperative federalism. The Union government has no authority to direct the State legislature to repeal its law. These submissions will now fall for analysis. H Analysis H.1 Entry 24, List II - West Bengal's 'housing industry' defense 19 The interesting feature of the case with which we commence the discussion is that when it was enacted, WB-HIRA was intended to cover the field of 'housing industry' under Entry 24 of List II. The Statement of Objects and Reasons to the WB-HIRA Bill notes that: "2. Since the 'housing' comes under the periphery of 'industry', it is contemplated that the State Government should go for its own State Legislation... ..." 20 The long title to the state enactment explains that WB-HIRA is "an act to establish Housing Industry Regulatory Authority ("HIRA") for regulation and promotion of housing sector...". 21 In the Counter Affidavit which has been filed on behalf of the State of West Bengal before this Court the subject of the legislation is asserted to fall within....
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....n List, it is required that an express declaration be made by the Parliament, an abstract declaration is not contemplated. In the event the Parliament passes a law containing a declaration specifying the industry and indicating the nature and extent of the Union control over the concerned industry, then to that limited extent the State's legislative power is curtailed. It is reiterated that even in the case of a declaration under Entry 52 by the Central Government, "industry" as a whole is not taken out of Entry 24 of the State List. 17. That, in furtherance of the above, it is further submitted that a perusal of RERA exhibits that there is no declaration even in the abstract that the Union intends to assume control over the real estate sector." (emphasis supplied) 22 As a matter of fact, it has also been urged that Entries 6 and 7 of the Concurrent List would not cover the subject of the housing industry since the field covered by these Entries "merely enables the manner and mode in which property is to be transferred and contracts are to be executed". This submission is sought to be buttressed by stating that WB-HIRA is merely an extension of RERA with a wider ....
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....rocess of manufacture or production but also activities antecedent, such as acquisition of raw-material and subsequent, such as the disposal of finished products. A Constitution Bench of this Court held that the expression 'industry' in its wide sense would be capable of comprising three different aspects: first, raw materials which are an integral part of the industrial process; second, the process of manufacture and production; and third, distribution of the products of the industries. The Court held that the process of manufacture or production would be comprised in Entry 24 of List II except where the industry is a controlled industry when it would fall under Entry 52 of List I. The Constitution Bench rejected the contention that the expression "industries" in Entry 52 of List I was wide enough to encompass the power to legislate in respect of raw material said to be an integral part of the industrial process or the distribution of the products of the industry. 25 The decision in Tika Ramji (supra) was followed by a Constitution Bench in Calcutta Gas Co. (Proprietary) vs State of West Bengal [AIR 1962 SC 1044] which held that the expression 'industry' in all the three Lists ....
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.... before this Court have been addressed on the basis that the subject of both the central and the state legislations - RERA and WB-HIRA falls under Entries 6 and 7 of the Concurrent List to the Seventh Schedule. Entries 6 and 7 are extracted below: "6. Transfer of property other than agricultural land; registration of deeds and documents. 7. Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land." Now it is true that the edifice of the defense which was set up before this Court in the Counter Affidavit is premised on the State enactment being a law on the subject of 'industries' falling within the ambit of Entry 24 of the State List. The genesis of this defense traces its origin to the Statement of Objects and Reasons accompanying the Bill when it was introduced in the State legislature in West Bengal. Indeed, the long title also indicates that the State legislation sought to establish a Housing Industry Regulatory Authority ("HIRA"). But these references in the Statement of Objects and Reasons; the long title and the Counter Affidavit do not preclude the St....
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....to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, the Concurrent List. Clause (2) begins with a non-obstante provision which gives it precedence over Clause (3). Clause (2) embodies the principle that Parliament and (subject to clause (1)) the legislature of any State have the power to make laws with respect to any of the matters in List III. Clause 3 stipulates that the legislature of any State has the exclusive power to make laws for the State or any part of it "with respect to any of the matters enumerated in List II", the State List. Some of the salient features of Article 246 need to be noticed. (i) An exclusive power has been entrusted to Parliament to legislate on matters enumerated in List I; (ii) The plenary power entrusted to Parliament to legislate with respect to a matter enumerated in List I is reaffirmed by the non-obstante provision which operates notwithstanding anything in Clauses (2) and (3); (iii) On matters which have been enumerated in List III: a. Parliament has the power to make laws notwithstanding clause (3); and b. The State legislature also has the power to make law....
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....rrent List, the law enacted by Parliament is to prevail whether it was enacted before or after the State law or, as the case may be, the existing law. Clause (1) of Article 254 is however made subject to clause (2) which envisages that if a State law on a matter enumerated in the Concurrent List contains a provision which is repugnant to an earlier law of Parliament or an existing law with respect to the subject matter, the law made by the legislature of the State will prevail in the State if it is has been reserved for the consideration of the President and has received such assent. Despite the grant of Presidential assent, the Parliament is not precluded from enacting any law with respect to the same matter in future including a law adding to, amending, varying or repealing the law made by the legislature of the State. 30 Some of the salient features of Article 254 may be noticed at this stage: (i) Firstly, Article 254(1) embodies the concept of repugnancy on subjects within the Concurrent List on which both the State legislatures and Parliament are entrusted with the power to enact laws; (ii) Secondly, a law made by the legislature of a State which is repugn....
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....tinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State." (emphasis supplied) Dealing with the issue, the Court held that a State legislation whose subject matter is identical to a law enacted by the Parliament would be repugnant under Article 254(1): "11. It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly ho....
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....ach legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least when the sanctions they impose are diverse. But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject-matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter". To the same ....
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....ly, after comparing the gamut of impugned provisions before it, in holding that no provision of the impugned Act and the Rules made by the UP legislature and its delegate stood invalidated by any provision contained in Act 65 of 1951 as amended in 1953 or 1955 and the Sugarcane Control Order 1955 issued under it, the Constitution Bench held: "31. In the instant case, there is no question of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to cover the whole field. It would be necessary, therefore, to compare the provisions of Act 65 of 1951 as amended by Act 26 of 1953, Act 10 of 1955 and the Sugar Control Order, 1955 issued thereunder with those of the impugned Act and U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 passed thereunder. 34...Suffice it to say that none of these provisions do overlap, the Centre being sil....
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....ision for the nationalization of transport services but the States introduced amendments to implement the scheme of nationalization of road transport. With a view to introduce a Union law throughout the country, Parliament enacted the Amendment Act by inserting Chapter IVA in the Motor Vehicles Act, 1939. This object, the Court ruled, would be frustrated if the argument that both the UP Act and the Amending Act should co-exist in respect of schemes to be framed after the Amendment Act, were accepted. Additionally, the learned judge also observed that the provisions of the scheme, the principles of compensation and the manner of its payment differed in the two Acts. 35 In State of Orissa vs M/s M A Tulloch [(1964) 4 SCR 461], the legislation in issue was the Orissa Mining Areas Development Fund Act, 1952 under which certain areas were constituted as mining areas and the State government was empowered to levy a fee at a percentage of the value of the mined ore at the pit's mouth. Entry 23 of the State List covers "regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union". Entry 54 of t....
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....dia Penal Code, the Prevention of Corruption Act and the Criminal Law (Amendment) Act, 1952. The State Act had the assent of the President. Hence by virtue of Article 254(2), it was urged that the aforementioned Central Acts stood repealed and could not revive even after the State Act was repealed. Justice S Murtaza Fazal Ali formulated the principles governing repugnancy in the following observations: "8... 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitu....
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....public man from any proceeding by way of investigation or otherwise which might, apart from this Act, be instituted against him." This amendment received the assent of the President on April 10, 1974 and was published in the Tamil Nadu Government Gazette Extraordinary dated April 16, 1974. We have already shown that although the State Act was passed as far back as December 30, 1973 it received the assent of the President on April 10, 1974, that is to say, on the same [ Ed. : But see paras 4 and 7 of this judgment and 1974 MLJ (Stat.) Mad. Acts p. 2 wherein it is stated that Act II of 1974 was assented to by the President on Dec. 30, 1973 and published in T. N. Govt. Gaz. Extra., Pt. IV, S. 2 at p. 5, dated Jan. 2, 1974] date as Act 16 of 1974. The Act was however brought into force on May 8, 1974 when the new Section 29 which had already replaced the old section and had become a part of the statute. Therefore, for all intents and purposes the State Act cannot be read in isolation, but has to be interpreted in conjunction with the express language contained in Section 29 of the State Act. This section has in unequivocable terms expressed the intention that the State Act whi....
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....ench held: "37... This section has in unequivocable terms expressed the intention that the State Act which was undoubtedly the dominant legislation would only be "in addition to and not in derogation of any other law for the time being in force" which manifestly includes the Central Acts, namely, the Penal Code, 1860, the Corruption Act and the Criminal Law (Amendment) Act. Thus, the Legislature about a month before the main Act came into force clearly declared its intention that there would be no question of the State Act colliding with the Central Acts referred to above. The second part of Section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is, therefore, clear that in view of this clear intention of the legislature there can be no room for any argument that the State Act was in any way repugnant to the Central Acts. We have already pointed out from the decisions of the Federal Court and this Court that one of the important tests to find out as to whether or not there is repugnancy is to asce....
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.... a clash between the two laws and the question of repugnancy, the Court held, "does not come into play". 38 In State of Kerala vs Mar Appraem Kuri Company Ltd. [(2012) 7 SCC 106], a Constitution Bench dealt with the question as to whether the Kerala Chitties Act, 1975 became repugnant to the Chit Funds Act, 1982 enacted by Parliament on the date when the Parliamentary legislation received the assent of the President or subsequently, when a notification was issued under Section 1(3) bringing the Central Act into force in the State of Kerala. On comparing the Central and State statutes in the course of the judgment, Chief Justice SH Kapadia, noticed various provisions of the State Act in conflict with the Central legislation. The High Court had also noticed several inconsistencies. The Court held that the Act of 1982 was enacted as a Central legislation to ensure uniformity in the provisions applicable to Chit Fund institutions throughout the country. There was thus an intent to occupy the entire field falling under Entry 7 of List III. A significant aspect of the Central legislation was Section 3 which gave overriding effect to the law enacted by Parliament. Moreover, Section 90 ....
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....iamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy. 51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so ....
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....e or irreconcilable conflict or inconsistency between a provision contained in a State legislative enactment with a Parliamentary law with reference to a matter in the Concurrent List. Such a conflict brings both the statutes into a state of direct collision. This may arise, for instance, where the two statutes adopt norms or standards of behavior or provide consequences for breach which stand opposed in direct and immediate terms. The conflict arises because it is impossible to comply with one of the two statutes without disobeying the other; (ii) The second situation involving a conflict between State and Central legislations may arise in a situation where Parliament has evinced an intent to occupy the whole field. The notion of occupying a field emerges when a Parliamentary legislation is so complete and exhaustive as a Code as to preclude the existence of any other legislation by the State. The State law in this context has to give way to a Parliamentary enactment not because of an actual conflict with the absolute terms of a Parliamentary law but because the nature of the legislation enacted by Parliament is such as to constitute a complete and exhaustive Code on the ....
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....t co-exist with a legislation enacted by Parliament. But even here if the legislation by the State covers distinct subject matters, no repugnancy would exist. In deciding whether a case of repugnancy arises on the application of the second and third tests, both the text and the context of the Parliamentary legislation have to be borne in mind. The nature of the subject matter which is legislated upon, the purpose of the legislation, the rights which are sought to be protected, the legislative history and the nature and ambit of the statutory provisions are among the factors that provide guidance in the exercise of judicial review. The text of the statute would indicate whether Parliament contemplated the existence of State legislation on the subject within the ambit of the Concurrent List. Often times, a legislative draftsperson may utilize either of both of two legislative techniques. The draftsperson may provide that the Parliamentary law shall have overriding force and effect notwithstanding anything to the contrary contained in any other law for the time being in force. Such a provision is indicative of a Parliamentary intent to override anything inconsistent or in conflict wit....
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.... the definition of the expression 'appropriate government' in Section 2(g) is bifurcated into three categories: (i) A Union Territory without a legislature; (ii) The Union Territory of Puducherry; and (iii) The Union Territory of Delhi. 44 Parliament while enacting the RERA has imposed the obligation to secure compliance with its provisions in diverse aspects upon the State governments. Each of these two facets needs to be developed and analyzed for the purpose of the discussion. 45 The statutory dictionary which is adopted in the provisions of Section 2 contains various definitions which expressly recognize the existence of State enactments regulating construction activities. The definition of the expression 'commencement certificate' in Section 2(m) is as follows: "(m) "commencement certificate" means the commencement certificate or the building permit or the construction permit, by whatever name called issued by the competent authority to allow or permit the promoter to begin development works on an immovable property, as per the sanctioned plan;" The definition of the expression "commencement certificate" adverts to a building or con....
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....e. The definition implicitly recognizes the existence of town and country planning legislation in the State governing planned development and the existence of development plans authorized and sanctioned under the terms of such legislation. 48 In a similar manner, the definition of the expression 'completion certificate' in Section 2(q) recognizes that the real estate project has been developed according to the plan, layout plan and specifications duly approved by the competent authority as provided for in local laws. Section 2(q) is in the following terms: "(q) "completion certificate" means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws;" 49 The expression 'local authority' is defined in Section 2(zc) as follows: "(zc) "local authority" means the Municipal Corporation or Municipality or Panchayats or any other Local Body constituted under any law for the time being in force for providing municipal services or ....
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....g the completion of the construction project in accordance with the sanctioned plans and the grant of occupation permission to occupy the constructed areas. 53 All the definitions which we have adverted to clearly postulate the existence of State legislation which governs and regulates construction activity through municipal and local bodies. The RERA naturally has not attempted to supplant these State enactments which govern the permissible use of land for development, the applicable norms for construction activity, the nature and extent of development permissible on land falling within municipal and local areas and the process of carrying out construction from its initiation to completion. In not intruding into this area, the RERA has followed the distribution of legislative powers. Entry 5 of List II to the Seventh Schedule, as we have seen earlier, deals with local government, including the constitution and powers of municipal corporations and other local authorities for the purpose of local self-government or village administration. The control over development activities under municipal and local laws is governed by State legislation. 54 The second aspect of RERA which ....
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....s and duties of allottees are specified in Section 19. Significantly, Section 31 envisages the filling of complaints with the authority or an adjudicating officer in the event that there has been a violation or contravention of the provisions of the Act or its rules and regulations by a promoter, allottee or real estate agent. The authority has wide ranging powers under Sections 38 and 40 to impose a penalty or interest for a contravention of the obligations cast upon promoters, allottees and real estate agents. 55 Besides the above provisions, the RERA has provided for the establishment of a Real Estate Appellate Tribunal by the appropriate government in Chapter VII. Consistent with the provisions of Sections 43 to 57, the real estate regulatory authority has a vital role to play in regard to the imposition of penalties under Chapter VIII prescribes penalties for contravention of the provisions of the Act. 56 Besides the establishment of the real estate regulatory authority, the RERA has, in Section 71^[15], contemplated the appointment of adjudicating officers for adjudging compensation under Sections 12, 14, 18 and 19. These adjudicating officers are to be appointed by the....
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.... within the ambit and purview of List II of the Seventh Schedule. However, though this submission was specifically pressed in the counter affidavit, it has been expressly given up in the oral and written submissions tendered before this Court by the State of West Bengal. The submission now of the State of West Bengal accepts that in essence and in substance, WB-HIRA contains a substantial overlap with the provisions of the RERA and is a law which the State legislature enacted in exercise of its legislative authority under Article 246(2) while legislating on subjects in the Concurrent List. The State of West Bengal submitted that WB-HIRA, like the RERA is enacted with reference to the subjects incorporated in Entries 6 and 7 of List III of the Seventh Schedule. Simply put, the submission of the State of West Bengal is four-fold: firstly, though there is a substantial overlap between the State and the Central enactments and both of them govern the same subject matter and field, there is no constitutional prohibition on the State legislature enacting legislation on a subject in the Concurrent List which is virtually identical to central legislation in the same list; secondly, Section ....
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....ARFAESI Act") were applied to certain non-banking financial institutions, including the respondent. The respondent issued a notice under Section 13(2) of the SARFAESI Act. In the course of the arbitration proceedings, an interim order was passed from which proceedings were carried in appeal under Section 37 of the Arbitration and Conciliation Act 1996, resulting in the dispute travelling to this Court. Sections 35 and 37 of the SARFAESI Act are in the following terms: "35. The provisions of this Act to override other laws.-The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. *** 37. Application of other laws not barred. -- The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time....
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....(Ceiling and Regulation) Act 1976, among other instruments. Section 32(1) was as follows: "32.Effect of the Act on other laws. -- (1) The provisions of this Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the memorandum or articles of association of an industrial company or in any other instrument having effect by virtue of any law other than this Act." The RDDB Act which was a later enactment of 1993 contained Section 34 giving it overriding effect: "34.Act to have overriding effect. - (1) Save as provided under sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance C....
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....aw, which deals with the reconstruction of sick companies and matters incidental thereto, though it is general as regards other matters such as recovery of debts. The RDDB Act is also a special law, which deals with the recovery of money due to banks or financial institutions, through a special procedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even specifically deal with. Thus the purpose of the two laws is different." The Court noticed that Section 34(2) of the RDDB Act specifically provides that its provisions would be in addition to and not in derogation of the other laws mentioned in it, including SICA. The expression 'not in derogation' was then construed in the following observations: "49. The term "not in derogation" clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and for that purpose further intended that all the other proceedings against the company and its properties should be stayed pending the proces....
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....s to be interpreted. The fact that RERA is in addition to and not in derogation of the provisions of any other law for the time being in force, also makes it clear that the remedies under RERA to allottees were intended to be additional and not exclusive remedies. Also, it is important to remember that as the authorities under RERA were to be set up within one year from 1-5-2016, remedies before those authorities would come into effect only on and from 1-5-2017 making it clear that the provisions of the Code, which came into force on 1-12-2016, would apply in addition to RERA." (emphasis supplied) The Court noted the decision in KSL & Industries (supra) in which it was held that notwithstanding the non-obstante clause contained in the RDDB Act which was later in time than the non-obstante clause in the SICA and the principle that the later Act would prevail over the earlier, this principle was departed from only because of the of the presence of a provision, like Section 88 of the RERA, which was contained in the RDDB Act which made it clear that the Act was meant to be in addition and not in derogation of other statutes. Distinguishing the decision, the Court observed: ....
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....engal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971) and now the West Bengal Land Reforms (Amendment) Act, 1971 (W.B. Act 12 of 1972) which introduced Chapter II-B imposing a new ceiling on agricultural holdings of raiyats. That is the law for the time being in force, and no land is being acquired by the State under Section 14-L within the ceiling limits prescribed therein. 28. It will be noticed that the second proviso to Article 31-A(1) refers to the "ceiling limit applicable to him", which evidently refers to the law in question and not earlier law, that is Section 6(1) of the West Bengal Estates Acquisition Act, 1953. It will be noticed that both Section 4(3) and Section 6(2) of the West Bengal Land Reforms Act, 1955 stood deleted by the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971) and thereafter by the West Bengal Land Reforms (Amendment) Act, 1972 with retrospective effect from February 12, 1971." (emphasis supplied) 65 In Thyssen Stahlunion GMBH vs Steel Authority of India [(1999) 9 SCC 334], a two judge Bench of this Court considered the expression "for the time being in force" in the context of an arbitra....
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....he application of the new Act till they knew the provisions thereof and that would mean that any such agreement as mentioned in the arbitration clause could be entered into only after the new Act had come into force. When the agreement uses the expressions "unless otherwise agreed" and "law in force" it does give an option to the parties to agree that the new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that agreement has to be entered into only after the coming into force of the new Act." (emphasis supplied) 66 The decision of a two judge Bench in Municipal Corporation of Delhi vs Prem Chand Gupta [(2000) 10 SCC 115], considered Regulation 4(1) of the Services Regulations of 1959 which commenced with the expression "Unless otherwise provided in the Act or these regulations, the rules for the time being in force and applicable to government servants in the service of the Central Government shall, as far as may be, regulate the conditions of service of municipal officers and other municipal employees". The Court rejected the submission that the rules for the time being ....
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....very case indicate a single period of time. It may be for an indefinite period of time depending upon the context in which the phrase is used. It is also evident that generally it denotes an indefinite period of time, meaning thereby, the position as existing at the time of application of the rules, maybe, amended or unamended. Therefore, to come to a conclusion as to whether it is for one time or for indefinite period of time, the context, purpose and the intention of the use of the phrase will have to be seen and examined." 69 Similarly, in Department of Customs vs Sharad Gandhi [(2020) 13 SCC 521], a two judge Bench of this Court considered a case where the respondent had been discharged of offences under Sections 132 and 175 of the Customs Act, 1962. The Additional Chief Metropolitan Magistrate allowed an application for discharge holding that there was a complete bar with regard to prosecution under the Customs Act, 1962, and that the Collector of Customs only had the power to confiscate the goods and impose a penalty for a breach of Section 3 of the Antiquities and Art Treasurers Act, 1972. Amongst other issues, the Bench had to interpret the meaning of Section 30 of the A....
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....applicable. But it is not the question of applying general laws that engage the attention of the legislature. The intention behind Section 30 was as noted is to provide for any other law which deal with antiquity to continue to have force and declare its enforceability even after passing of the Antiquities Act. In that view of the matter we are of the view that the words "any other law for the time being in force" must be construed as ejusdem generis." (emphasis supplied) 70 These decisions indicate that the expression "any other law for the time being in force" does not necessarily mean, such laws as were in existence when the statutory provision was enacted. To the contrary, it widely considered to means not just the laws which were in existence when the statutory provision was enacted but also such laws which may come into existence at a later stage. On the other hand, another line of judicial precedent also suggests the meaning to be ascribed to the expression must bear color from the context in which it appears, and not devoid of it. 71 For instance, in National Insurance Company Limited vs Sinitha [(2012) 2 SCC 356], in the context of a policy of insurance, the expre....
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....ch will determine the nature and ambit of the expression "any other law for the time being in force". 72 In the case of the RERA, the expression "law for the time being in force" is used in Section 89 as well as in Section 2(zr) and Section 18(2). Section 2(zr), as noticed earlier, stipulates that words and expression used in the Act, but not defined in it and defined in any law for the time being in force or in municipal laws or other relevant laws of the appropriate government, shall have the meaning assigned to them in those laws. Evidently, a law for the time being in force in Section 2(zr) is not frozen in point of time as on the date of the enactment of RERA. Likewise, Section 18(2) of the RERA imposes an obligation to the promoter to compensate allottees for the loss caused due to a defective title to the land and the provision stipulates that the claim for compensation shall not be barred by limitation provided "under any law for the time being in force". However, in Section 89, "law for the time being in force" is used in general sense of all the provisions of the Act, vis-à-vis, provisions of other Acts. H.3.3 Knitting it together 73 From our analysis of t....
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....he law enacted by Parliament on the ground that the regulation of the subject matter by Parliament is so complete as a code, so as to leave no space for legislation by the State. The third test of repugnancy postulates that the subject matter of the legislation by the State is identical to the legislation which has been enacted by Parliament, whether prior or later in point of time. Repugnancy in the constitutional sense is implicated not because there is a conflict between the provisions enacted by the State legislature with those of the law enacted by Parliament but because once Parliament has enacted a law, it is not open to the State legislature to legislate on the same subject matter and, as in this case, by enacting provisions which are bodily lifted from and verbatim the same as the statutory provisions enacted by Parliament. The overlap between the provisions of WB-HIRA and the RERA is so significant as to leave no manner of doubt that the test of repugnancy based on an identity of subject matter is clearly established. As the decision in Innoventive Industries (supra) emphasizes, laws under this head are repugnant even if the rule of conduct prescribed by both the laws is ....
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....tness of the submission, it is necessary to construe Section 88 in its proper perspective. Unless this is done, the Court would be doing violence to the intent of Parliament and to the constitutional principles which are embodied in Article 254. Parliament envisaged in Section 88 of the RERA that its provisions would be in addition to and not in derogation of other laws for the time being in force. True enough, this provision is an indicator of the fact that Parliament has not intended to occupy the whole field so as to preclude altogether the exercise of legislative authority whether under other Central or State enactments. For instance, Section 71 of the RERA specifically contemplates (in the proviso to sub-Section (1)) that a complaint in respect of matters covered by Sections 12, 14, 18 and 19 is pending in the adjudicating fora constituted by the Consumer Protection Act, 1986. The person who has moved the consumer forum may withdraw the complaint and file an application before the adjudicating officer constituted under the RERA. The effect of Section 88 is to ensure that remedies which are available under consumer legislation, including Consumer Protection Act, 2019, are not o....
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....g provisions: (i) Section 2(n) of the RERA contains a statutory definition of the meaning of 'common areas'. Parliament has defined the expression to mean what is set out in sub-clause 1(i) to (iii) which includes open parking areas. The WB-HIRA contains a definition of the expression 'common areas' in Section 2(m). While this definition is pari materia, WB-HIRA has enacted the definition of the expression 'car parking area' in Section 1 to mean such area as may be prescribed in exercise of the rule making power. The rules framed by the State government define the expression to mean an area either enclosed or uncovered or open excluding open car parking areas reserved as common areas and to exclude all types of car parking areas sanctioned by the competent authority; (ii) Section 2(y) of the RERA defines the expression 'garage' so as not to include an unenclosed or uncovered parking space such as open parking area. On the other hand, Section 2(x) of WB-HIRA defines the expression 'garage' to mean garage and property space as sanctioned by the competent authority; (iii) Section 6 of the RERA provides for an extension of a registration under Section 5 on an....
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....s, Ministry of Law and Justice, Niti Aayog, National Housing Bank, Housing and Urban Development Corporation, five representatives of State Governments to be selected by rotation, five representatives of the Real Estate Regulatory Authorities to be selected by rotation, and any other Central Government department as notified. (4) The Central Advisory Council shall also consist of not more than ten members to represent the interests of real estate industry, consumers, real estate agents, construction labourers, non-governmental organisations and academic and research bodies in the real estate sector." The functions of the Central Advisory Council are provided in Section 42 of the RERA, which reads as follows: "42. Functions of Central Advisory Council. (1) The functions of the Central Advisory Council shall be to advise and recommend the Central Government,- (a) on all matters concerning the implementation of this Act; (b) on major questions of policy; (c) towards protection of consumer interest; (d) to foster the growth and development of the real estate sector; (e) on any other matter as may be assigned to it by the Central Government. (2) The Central Governme....
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....and recommend to the State government in distinct in contrast to the functions of the Central Advisory Council, which is to make policy recommendations to the Central government on the subjects contemplated in clauses (a) to (e) of Section 42. As a consequence, the advisory role of the Central government, based on the recommendations of the Central Advisory Council, has been completely eroded in the provisions of WB-HIRA; (vi) While Section 70 of the RERA contains a provision for compounding of offences, but WB-HIRA does not contain any such provision; (vii) Section 71(1) of the RERA provides that the regulatory authority shall appoint adjudicating officers for the purpose of adjudging compensation under Sections 12, 14, 18 and 19. The adjudicating officer is required to be a person who is or has been a District Judge. WB-HIRA does not contain any provision for appointment of adjudicating officers for the purpose of adjudging compensation. Under Section 40(3) of WB-HIRA, this power is entrusted to the regulatory authority and not to a judicial person or body. The fact that an appeal against the orders of the regulatory authority lie to the Appellate Tribunal and t....
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....stly, there has to be a "repugnancy" between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject." (emphasis supplied) 80 Since we have already answered with the first requirement, the second remains. However, the State of West Bengal initially argued that WB-HIRA did not require presidential since it had been enacted under List II, but that argument has now been given up before this Court, as already noted above, and it is admitted that it comes under List III (the....
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....w. However such extension may require the assent of the President in case of repugnancy."" (emphasis supplied) As such, it is abundantly clear that the State of West Bengal would have had to seek the assent of the President before enacting WB-HIRA, where its specific repugnancy with respect to RERA and its reasons for enactment would have had to be specified. Evidently, this was not done. However, since we have already held WB-HIRA to be repugnant to RERA, this issue becomes moot. I Conclusion 82 Before the WB-HIRA, the State legislature had also enacted the WB 1993 Act. Upon receiving the assent of the President, the Act was published in the Calcutta Gazette, Extraordinary on 9 March 1994. Some of the salient provisions of the Act are detailed below: (i) Section 3 provides for registration of promoters who construct or intend to construct a building and for obtaining permission for construction; (ii) Section 4 provides for the validity of the certificate of registration and for cancellation; (iii) Section 5 provides for appeals; (iv) Section 6 provides for adjudication of disputes by an officer appointed by the State government fo....
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....oid uncertainty and disruption in respect of actions taken in the past, recourse to the jurisdiction of this Court under Article 142 is necessary. Hence, in exercise of the jurisdiction under Article 142, we direct that the striking down of WB-HIRA will not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment 85 The writ petition is accordingly stand allowed in the above terms. 86 Pending application(s), if any, stand disposed of. [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." [5] "86. Repeal and Savings. (1) The West Bengal (....
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....ature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State ....