Doctrinal Analysis Of Supreme Court's Stance On Repugnancy Of Statutes

Introduction

The Supreme Court bench comprising of Justices D.Y. Chandrachud and M.R. Shah in Forum of People's Collective Efforts (FPCE) & Anr. Vs. State of West Bengal., ruled on the West Bengal state law on real estate regulation. The Apex court declared the West Bengal Housing Industry Regulation Act, 2017 (hereinafter referred to as "HIRA"). WB-HIRA) as unconstitutional. As soon as the WB-HIRA act was passed it was challenged before Supreme Court by the Forum for People's Collective Efforts (FPCE) on the basis of many constitutional concerns involving the conflicting provisions of the said act with central legislation.

Background

The Real Estate (Regulation and Development) Act, 2016 (herein referred to as RERA Act, 2016) was enacted by the Central Government in order to curb the uncertainty in the real estate sector between the promoter and purchasers and to induce transparency in such transactions. The RERA Act is essential as it deals with issues of consumers who are largely general home buyers often susceptible to facing problems dealing with large real estate conglomerates and promoters. The act allowed the state governments in order to make rules¹, establish bodies² and tribunals³ helping to apply the Act to specifics of the State.

The West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) was enacted by the state legislature just after an year of central legislation being passed by the parliament. It was also passed with an aim to regulate the real estate sector in West Bengal and safeguard the interest of the purchasers inducing transparency and efficiency of the real estate transaction between the parties.

Contentions of Parties

Petitioner (Forum for People's Collective Efforts (FPCE)

1. When it comes to the central legislation RERA, is a statute which sims to govern the real estate sector, WB-HIRA covers the objects of regulating the contractual behavior of the promoters and buyers in the real estate projects and hence operate on an identical scope and object. Hence the state law is the 'copy and paste' replica of the central legislation and covered field occupied by RERA.⁴
2. That the provisions of the WB-HIRA were framed in a way were inconsistent to the central legislation, diluting the provisions under central law in favour of the buildings putting the purchasers in a weak spot, failing the ultimate aim of law.⁵
3. That the WB-HIRA did not fall under Entry 24 of State List (in which state state solely has the authority to legislate the laws upon without the intervention of any other government), but under Entry 6 & 7 of Concurrent List because the state legislation works on the same field as the RERA is based on and hence repugnant and void under the Article 254(2) of Constitution.⁶
4. That WB-HIRA is against violation of a major constitutional mandate that is WB-HIRA neither reserved for nor had received the Presidential assent under Article 254(2) and hence was repugnant and void.⁷
5. That the section 89 of RERA impliedly repeals the State Acts with the president assent under Article 254(2)⁸.

Union of India

1. The RERA Act, 2016 was drafted in order to ensure the uniformity, transparency, efficiency and effective dispute resolution throughout the nation.⁹
2. The object of RERA Act, 2016 was to confer the adequate wide powers to the state allowing to frame rules and regulations for the purpose of effectuating the central legislation and not to create a parallel legislation.¹⁰
3. The objectives of WB-HIRA and RERA are completely in duplicity with each other dealing with same subject matter and identical manner and hence State has set up a parallel legislation similar to central legislation.¹¹

Respondent (State of West Bengal)

1. The WB-HIRA was framed by the State of West Bengal in order to protect the purchasers in the real estate transactions and appropriate adjudication of the disputes to the sector.¹²
2. The section 88 & 89 of the central legislation are not complete and exhaustive code and itself allows the State Governments to make the laws in order to regulate the real estate sector.¹³
3. The State of West Bengal argued that the WB-HIRA follows the RERA and "broadly and substantially" based on the same hence the WB-HIRA is not disqualified by the Entries 6 and 7 of List III of Seventh Schedule, and by virtue of the same does not attract the repugnancy or inconsistency between the state and central legislation.¹⁴
4. The State of West Bengal the principles of constitution such that the state law is based on the cooperative federalism and hence shall not be repealed.¹⁵

Analysis of the Court

1. The provisions under sections 3 to 17 of WB-HIRA are repugnant to corresponding to RERA. The argument of the State of West Bengal on the stating that the Section 88 and 89 indicating that Central legislation permitting the alternative legislation. It was conceded by court that RERA Act allows to form rules and establish authorities in order to effectuate the RERA Act and does not permit the States to frame the parallel or overlapping statute which covers the same subject matter.¹⁶
2. It was conceded by Apex Court that RERA and WB-HIRA were enacted keeping in context the Entries 6 & 7 of the Concurrent List and are a subject matter to it. Since provisions of WB-HIRA are in direct conflict RERA. Also The RERA is an exhaustive central legislation and shall be given priority to the State legislation.¹⁷
3. Further the state law of West Bengal bypasses the mandate to procure the Presidential assent under Article 254(2) and hence is repugnant to the central legislation (RERA).¹⁸

Decision of Court¹⁹

1. It was held by Apex Court that WB-HIRA is highly repugnant to RERA and is unconstitutional by the way of bypassing the Presidential assent under Article 254(2).
2. It was also held by the court that it is not permitted for the State Legislature to enact a parallel law on the subject matter which the Central legislation is present when the subject matter is the part of the Concurrent List in absence of the President's assent under Article 254(2).

Conclusion

The judgment of the Supreme Court, it was conceded that West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) as unconstitutional being repugnant (conflicting and overlapping) to the Real Estate (Regulation and Development) Act, 2016 and against the Constitution of India. The categorically stated that there cannot be framed by the individual states a parallel legislation on the subject matter in the concurrent list to which the Central law is existing in absence of Presidential assent under Article 254(2) of the Constitution of India.

Footnotes

1. Section 84(1) of RERA, 2016 states that "The appropriate Government shall, within a period of six months of the commencement of this Act, by notification, make rules for carrying out the provisions of this Act."

2. Section 20(1) of RERA, 2016 states that "The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Authority to be known as the Real Estate Regulatory Authority to exercise the powers conferred on it and to perform the functions assigned to it under this Act:..."

3. Section 43(1) of RERA, 2016 states that "The appropriate Government shall, within a period of one year from the date of coming into force of this Act, by notification, establish an Appellate Tribunal to be known as the —(name of the State/Union territory) Real Estate Appellate Tribunal."

4. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.1 (I).

5. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.1 (II).

6. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.1 (III).

7. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.1 (IV).

8. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.1 (V).

9. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.2 (I)(b).

10. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.2 (I)(c).

11. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.2 (II)(d).

12. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.3 (I).

13. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.3 (IV).

14. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.3 (II).

15. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para G.3 (V).

16. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para 82, 58.

17. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para 26.

18. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para H.4

19. Forum for People's Collective Efforts v State of West Bengal (2021) 8 SCC 599 (SC) para 83

Doctrinal Analysis Of Supreme Court's Stance On Repugnancy Of Statutes

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