The apex court of the country has struck down the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) and declared it unconstitutional for being in conflict with the RERA Act, 2016
By: Sunayna Jain, Jagran Lakecity University, Bhopal
The Supreme Court of the country stated that the state of West Bengal has intervened in the sphere of Parliament after the state has enacted the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), as it oversees with RERA and most numbers of WBHIRA are similar to RERA.
RERA was enacted by the Central Government in 2016, whereas WBHIRA was enacted for regulation and promotion of the housing sector and to ensure the sale of plot, apartment or building, which has been published in the Official Gazette, dated 17th October 2017 and came into effect on 1st June 2018.
The division bench of Justice D.Y. Chandrachud and Justice M.R. Shah has delivered the judgment after a plea was filed by an NGO Forum For People’s Collective Efforts, which contended that the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) should be struck down since it is in conflict with The Real Estate (Regulation and Development) Act, 2016 (RERA). The court said that it doesn’t matter whether there’s an overlap or no overlap because if Parliament intends to occupy a field, then you cannot legislate at the state level at all.
The West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) was challenged on the ground that although it is a matter of concurrent list (in which both centre and state can enact laws), but for a State to survive over Central law on the same subject according to the provisions of Article 254 (2), allows for a conflicting State law to receive the assent of the President, and it was not obtained in this present case.
The petitioners have pointed out before the hon’ble supreme court that WBHIRA is in direct conflict with the earlier framed central legislation RERA.
In the recent case, (RERA and WBHIRA are dealing with three matters of the concurrent list i.e. Entry 6 (property transfer), Entry 7 (matters of contract) and Entry 46 (matters concerning the jurisdiction of courts other than the Supreme Court).
The petitioners contended that if the Central and State governments may make laws on the same matter and if any conflict arises, then the former law will prevail over the latter.
The bench held that already a central act i.e. RERA Act, 2016 exists and the state enacting the same state legislation is not constitutionally permitted.
The court remarked that “The overlap is so significant that a test of repugnance based on the Identity of subject matter is established. West Bengal has attempted to Establish a parallel regime which is not constitutionally permissible.”