# FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) & ANR v. THE STATE OF WEST BENGAL & ANR

- **Citation:** [2021] 5 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 2021-05-04
- **Bench:** Dr. Dhananjaya Y Chandrachud, M R Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/forum-for-people-s-collective-efforts-fpce-anr-v-the-state-of-west-bengal-anr-35007
- **Pages:** 178

## Headnote

West Bengal Housing Industry Regulation Act, 2017
(WB-HIRA):
Constitutional validity of - Challenged to, on the ground of
inconsistencies and overlapping with central law-Real Estate
(Regulation and Development) Act, 2016 (RERA) - Held: WB-HIRA
is repugnant to RERA and thus, held to be unconstitutional - WBHIRA purports to occupy the same subject as that which has been
provided in the Parliamentary legislation-RERA - State law fits,
virtually on all fours, with the footprints of the law enacted by
Parliament, which is constitutionally impermissible - Overlap
between the provisions of WB-HIRA and the RERA is so significant
-Provisions of the RERA have been lifted bodily, word for word
and enacted into the State enactment - WB-HIRA does not
complement the RERA by enacting provisions or fortifying the rights,
obligations and remedies created by the RERA - Subject of the
provisions of the State enactment is identical, the content is identical
- In essence and substance, WB-HIRA enacted a parallel mechanism
and parallel regime as that which has been entailed under the RERA
- Not only is the subject matter identical but the statutory provisions
of WB-HIRA are on a majority of counts identical to those of the
RERA - Both sets of statutes are referable to the same entries in the
Concurrent List-Entries 6 and 7 of List III - Thus, the test of
repugnancy based on an identity of subject matter is clearly
established - Also WB-HIRA did not have presidential assent and
was repugnant to RERA u/Art. 254 - Furthermore, as a result thereof,
no revival of the provisions of the WB Act, 1993, since it would
stand impliedly repealed upon the enactment of the RERA - Real
Estate (Regulation and Development) Act, 2016 - West Bengal
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SUPREME COURT REPORTS
[2021] 5 S.C.R.
(Regulation of Promotion of Construction and Transfer by
Promoters) Act, 1993.
Plea that WB-HIRA intended to cover the field of 'housing
industry' under Entry 24 of List II - Held: WB-HIRA did not fall
under the ambit of the term industry within the meaning of Entry 24
of the State List.
Real Estate (Regulation and Development) Act, 2016:
ss. 88 and 89 - Interpretation and interplay of - Held: s.88
stipulates that the application of other laws is not barred, the
provisions of the legislation "shall be in addition to, and not in
derogation of, the provisions of any other law for the time being in
force" - s. 89 provides for overriding effect to the provisions of the
RERA when it stipulates that it "shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for the
time being in force" - s. 88 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 - s. 88 does not exclude recourse to
other remedies created by cognate legislation - Where the cognate
legislation has been enacted by a State legislature, s.88 is an
indicator that Parliament did not wish to oust the legislative power
of the State legislature to enact legislation on cognate or allied
subjects - On facts, State legislature-WB-HIRA has not enacted
cognate or allied legislation but legislation which is identical to
and bodily lifted from the Parliamentary law-RERA - This plainly
implicates the test of repugnancy by setting up a parallel regime
under the State law - State legislature has encroached upon the
legislative authority of Parliament which has supremacy within the
ambit of the subjects falling within the Concurrent List of the Seventh
Schedule - Exercise conducted by the State legislature of doing so,
is plainly unconstitutional - West Bengal Housing Industry
Regulation Act, 2017.
Salient features of RERA Act - Explained.
Constitution of India:
Art. 254 - Repugnancy - Salient features of Art. 254 - Stated.
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Doctrine of repugnancy u/Art. 254(1) - Held: Operates within
the fold of the Concurrent List - Cla

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[2021] 5 S.C.R. 613
613
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) &
ANR.
v.
THE STATE OF WEST BENGAL & ANR.
(Writ Petition (C) No. 116 of 2019)
MAY 04, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M R SHAH, JJ.]
West Bengal Housing Industry Regulation Act, 2017
(WB-HIRA):
Constitutional validity of - Challenged to, on the ground of
inconsistencies and overlapping with central law-Real Estate
(Regulation and Development) Act, 2016 (RERA) - Held: WB-HIRA
is repugnant to RERA and thus, held to be unconstitutional - WBHIRA purports to occupy the same subject as that which has been
provided in the Parliamentary legislation-RERA - State law fits,
virtually on all fours, with the footprints of the law enacted by
Parliament, which is constitutionally impermissible - Overlap
between the provisions of WB-HIRA and the RERA is so significant
-Provisions of the RERA have been lifted bodily, word for word
and enacted into the State enactment - WB-HIRA does not
complement the RERA by enacting provisions or fortifying the rights,
obligations and remedies created by the RERA - Subject of the
provisions of the State enactment is identical, the content is identical
- In essence and substance, WB-HIRA enacted a parallel mechanism
and parallel regime as that which has been entailed under the RERA
- Not only is the subject matter identical but the statutory provisions
of WB-HIRA are on a majority of counts identical to those of the
RERA - Both sets of statutes are referable to the same entries in the
Concurrent List-Entries 6 and 7 of List III - Thus, the test of
repugnancy based on an identity of subject matter is clearly
established - Also WB-HIRA did not have presidential assent and
was repugnant to RERA u/Art. 254 - Furthermore, as a result thereof,
no revival of the provisions of the WB Act, 1993, since it would
stand impliedly repealed upon the enactment of the RERA - Real
Estate (Regulation and Development) Act, 2016 - West Bengal
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[2021] 5 S.C.R.
(Regulation of Promotion of Construction and Transfer by
Promoters) Act, 1993.
Plea that WB-HIRA intended to cover the field of 'housing
industry' under Entry 24 of List II - Held: WB-HIRA did not fall
under the ambit of the term industry within the meaning of Entry 24
of the State List.
Real Estate (Regulation and Development) Act, 2016:
ss. 88 and 89 - Interpretation and interplay of - Held: s.88
stipulates that the application of other laws is not barred, the
provisions of the legislation "shall be in addition to, and not in
derogation of, the provisions of any other law for the time being in
force" - s. 89 provides for overriding effect to the provisions of the
RERA when it stipulates that it "shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for the
time being in force" - s. 88 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 - s. 88 does not exclude recourse to
other remedies created by cognate legislation - Where the cognate
legislation has been enacted by a State legislature, s.88 is an
indicator that Parliament did not wish to oust the legislative power
of the State legislature to enact legislation on cognate or allied
subjects - On facts, State legislature-WB-HIRA has not enacted
cognate or allied legislation but legislation which is identical to
and bodily lifted from the Parliamentary law-RERA - This plainly
implicates the test of repugnancy by setting up a parallel regime
under the State law - State legislature has encroached upon the
legislative authority of Parliament which has supremacy within the
ambit of the subjects falling within the Concurrent List of the Seventh
Schedule - Exercise conducted by the State legislature of doing so,
is plainly unconstitutional - West Bengal Housing Industry
Regulation Act, 2017.
Salient features of RERA Act - Explained.
Constitution of India:
Art. 254 - Repugnancy - Salient features of Art. 254 - Stated.
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Doctrine of repugnancy u/Art. 254(1) - Held: Operates within
the fold of the Concurrent List - Clause (1) of Art. 254 envisages
that the law enacted by Parliament will prevail and the law made by
the legislature of the State shall be void "to the extent of repugnancy"
- Clause (1) does not define what is meant by repugnancy - Clause
(1) indicate that the provision deals with a repugnancy between a
law enacted by the State legislature with a provision of a law made
by Parliament which it is competent to enact; or to any provision of
an existing law; and with respect to one of the matters enumerated
in the Concurrent List.
Art. 254 - Repugnancy - Concept of - Three types of
repugnancy - Held: First type envisages a situation of an absolute
or irreconcilable conflict or inconsistency between a State legislative
enactment with a Parliamentary law with reference to a matter in
the Concurrent List - Second situation involving a conflict between
State and Central legislations may arise when a Parliamentary
legislation is so complete and exhaustive as a Code as to preclude
the existence of any other legislation by the State - Third test of
repugnancy is where the law enacted by Parliament and by the State
legislature regulate the same subject - Allowing the exercise of power
over the same subject matter would trigger the application of the
concept of repugnancy - This may implicate the doctrine of implied
repeal - In such cases, harmonious construction can be resorted
to, to ensure that the operation of both the statutes can co-exist -
Where, however, the competing statutes are not of the same
legislature, it then becomes necessary to apply the concept of
repugnancy, bearing in mind the intent of Parliament - Primary
effort in the exercise of judicial review must be to harmonise -
Repugnancy is not an option of first choice but something which
can be drawn where a clear case based on the application of one
of the three tests arises for determination.
Art. 254(2) - Presidential assent under, for WB-HRA - Lack
of - Held: 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 and this was not done - Thus, WBHIRA did not have presidential assent and was repugnant to RERA
under Article 254 - West Bengal Housing Industry Regulation Act,
2017 - Real Estate (Regulation and Development) Act, 2016.
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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Art. 142 - Jurisdiction under - Exercise of - WB-HIRA since
its enforcement, applied to building projects and implemented by
the authorities constituted under the law in the State of West Bengal
- WB-HIRA having declared unconstitutional, there is a need to
avoid uncertainty and disruption in respect of actions taken in the
past - Thus, in exercise of jurisdiction u/Art. 142, direction that
striking down of WB-HIRA would not affect the registrations,
sanctions and permissions previously granted under the legislation
- West Bengal Housing Industry Regulation Act, 2017 .
Words and phrases:
Expression "any other law for the time being in force" -
Meaning of, in the context of ss. 89, 2(zr) and 18(2) of the RERA
Act - Real Estate (Regulation and Development) Act, 2016.
Expression ' is in addition to and not in derogation of any
other law' - Meaning of, in the context of s. 88 of the RERA Act -
Real Estate (Regulation and Development) Act, 2016.
Allowing the writ petition, the Court
HELD: 1. West Bengal Housing Industry Regulation Act,
2017-WB-HIRA is repugnant to the Real Estate (Regulation and
Development) Act, 2016-RERA, and is hence unconstitutional.
As a consequence of the declaration by this Court of the invalidity
of the provisions of WB-HIRA, there shall be no revival of the
provisions of the WB 1993 Act, since it would stand impliedly
repealed upon the enactment of the RERA. [Para 83][790-D-E]
2.1 In view of the settled exposition of the ambit of Entry
24 of List II to the Seventh Schedule, there can be no manner of
doubt that the subject of WB-HIRA is not 'industries' within the
meaning of Entry 24. Both the central legislation-RERA and the
State legislation-WB-HIRA have substantially similar provisions.
These provisions seek to regulate the contractual relationship
between builders/promoters and their buyers in the real estate
sector. They recognize rights and obligations inter se promoters,
buyers and real estate agents. Both the State law and the Central
law provide for remedial measures to enforce compliance with
contractual rights and corresponding obligations. Hence, quite
correctly, the arguments before this Court have been addressed
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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. [Para 26][734-EG]
2.2 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. But these references in the Statement of
Objects and Reasons; the long title and the Counter Affidavit do
not preclude the State of West Bengal from asserting, that the
State legislation in pith and substance is not one which is on the
subject of industries within the meaning of Entry 24 of List II and
that it falls within the ambit of Entries 6 and 7 of List III. There is
a substantial overlap between the provisions of RERA and WBHIRA. Even the inconsistencies are on the same subject matter.
The provisions of RERA essentially seek to regulate the
contractual relationship between builders/promoters and
purchasers in the real estate sector. RERA, truly speaking, falls
within the ambit of Entries 6 and 7 of the Concurrent List. The
substantial overlap between the state and the central legislation
is evident on a comparative analysis of the two legislations. The
State of West Bengal is not precluded from seeking to sustain its
legislation on the basis that in pith and in substance it falls within
the ambit of Entries 6 and 7 of the Concurrent List. The analysis
of the constitutional challenge must therefore proceed on the
basis that both the central legislation-RERA, and the state
legislation-WB-HIRA, fall within the subjects embodied in
Entries 6 and 7 of List III of the Seventh Schedule. [Para 26][735A-F]
Tika Ramji v. State of UP [1956] SCR 393; Calcutta
Gas Co. (Proprietary) v. State of West Bengal AIR 1962
SC 1044 : [1962] Suppl. SCR 1; ITC Ltd. v. Agricultural
Produce Market Committee (2002) 9 SCC 232 : [2002]
1 SCR 441 - referred to.
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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3.1 Some of the salient features of Article 254 are:
(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 repugnant to Parliamentary legislation on a matter
enumerated in the Concurrent List has to yield to a
Parliamentary law whether enacted before or after the law
made by the State legislature;
(iii) Thirdly, in the event of a repugnancy, the Parliamentary
legislation shall prevail and the State law shall "to the extent
of the repugnancy" be void;
(iv) Fourthly, the consequence of a repugnancy between
the State legislation with a law enacted by Parliament within
the ambit of List III can be cured if the State legislation
receives the assent of the President; and
(v) Fifthly, the grant of Presidential assent under clause (2)
of Article 254 will not preclude Parliament from enacting a
law on the subject matter, as stipulated in the proviso to
clause (2). [Para 30][739-A-E]
3.2 The precedent of this Court, commencing from
Zaverbhai's case up until Innoventive Industries's case indicates
a thread of thought dwelling on when, within the meaning of Article
254(1), a law made by the legislature of a State can be considered
to be repugnant to a provision of a law made by Parliament with
respect to one of the matters in the Concurrent List which
Parliament is competent to enact. The doctrine of repugnancy
under Article 254(1) operates within the fold of the Concurrent
List. Clause (1) of Article 254 envisages that the law enacted by
Parliament will prevail and the law made by the legislature of the
State shall be void "to the extent of repugnancy". Clause (1) does
not define what is meant by repugnancy. The initial words of Clause
(1) indicate that the provision deals with a repugnancy between a
law enacted by the State legislature with: (i) A provision of a law
made by Parliament which it is competent to enact; or (ii) To any
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provision of an existing law; and (iii) with respect to one of the
matters enumerated in the Concurrent List. [Para 40][753-F-H;
754-A]
3.3 The initial part of Clause (1) alludes to a law enacted by
a state legislature being "repugnant" to a law enacted by
Parliament or to an existing law. The concluding part of clause 1
provides for a consequence, namely that the State law would be
void "to the extent of the repugnancy" and the Parliamentary
enactment shall prevail. The concept of repugnancy emerges from
the decisions of this Court which have elaborated on the context
of clause (1) of Article 254. Clause (2) of Article 254 has also
employed the expression "repugnant" while providing that a law
enacted by the legislature of a State which is repugnant to a law
enacted by Parliament or an existing law on a matter within the
Concurrent List shall, if it has received the assent of the
President, prevail in the State. The decisions of this Court
essentially contemplate three types of repugnancy:
(i) The first envisages a situation of an absolute 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
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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is such as to constitute a complete and exhaustive Code
on the subject; and
(iii) The third test of repugnancy is where the law enacted
by Parliament and by the State legislature regulate the same
subject. In such a case the repugnancy does not arise
because of a conflict between the fields covered by the two
enactments but because the subject which is sought to be
covered by the State legislation is identical to and overlaps
with the Central legislation on the subject. [Para 41][754B-H; 755-A-B]
3.4 The distinction between the first test on the one hand
with the second and third tests on the other lies in the fact that
the first is grounded in an irreconcilable conflict between the
provisions of the two statutes each of which operates in the
Concurrent List. The conflict between the two statutes gives rise
to a repugnancy, the consequence of which is that the State
legislation will be void to the extent of the repugnancy. The
expression 'to the extent of the repugnancy' postulates that those
elements or portions of the state law which run into conflict with
the central legislation shall be excised on the ground that they
are void. The second and third tests, on the other hand, are not
grounded in a conflict borne out of a comparative evaluation of
the text of the two provisions. Where a law enacted by Parliament
is an exhaustive Code, the second test may come into being.
The intent of Parliament in enacting an exhaustive Code on a
subject in the Concurrent List may well be to promote uniformity
and standardization of its legislative scheme as a matter of public
interest. Parliament in a given case may intend to secure the
protection of vital interests which require a uniformity of law and
a consistency of its application all over the country. A uniform
national legislation is considered necessary by Parliament in many
cases to prevent vulnerabilities of a segment of society being
exploited by an asymmetry of information and unequal power in a
societal context. The exhaustive nature of the Parliamentary code
is then an indicator of the exercise of the State's power to legislate
being repugnant on the same subject. The third test of repugnancy
may arise where both the Parliament and the State legislation
cover the same subject matter. Allowing the exercise of power
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over the same subject matter would trigger the application of the
concept of repugnancy. This may implicate the doctrine of implied
repeal in that the State legislation cannot 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 with its provisions. The Parliamentary legislation may
also stipulate that its provisions are in addition to and not in
derogation of other laws. Those other laws may be specifically
referred to by name, in which event this is an indication that the
operation of those specifically named laws is not to be affected.
Such a legislative device is often adopted by Parliament by saving
the operation of other Parliamentary legislation which is
specifically named. When such a provision is utilized, it is an
indicator of Parliament intending to allow the specific legislation
which is enlisted or enumerated to exist unaffected by a
subsequent law. Alternatively, Parliament may provide that its
legislation shall be in addition to and not in derogation of other
laws or of remedies, without specifically elucidating specifically
any other legislation. In such cases where the competent
legislation has been enacted by the same legislature, techniques
such as a harmonious construction can be resorted to in order to
ensure that the operation of both the statutes can co-exist. Where,
however, the competing statutes are not of the same legislature,
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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it then becomes necessary to apply the concept of repugnancy,
bearing in mind the intent of Parliament. The primary effort in
the exercise of judicial review must be an endeavour to
harmonise. Repugnancy in other words is not an option of first
choice but something which can be drawn where a clear case
based on the application of one of the three tests arises for
determination. [Para 42][755-B-H; 756-A-G]
Zaverbhai Amaldas v. State of Bombay (1955) 1 SCR
799; Tika Ramji v. State of UP [1956] SCR 393; O P
Stewart v. B K Roy AIR 1939 Cal 628; Deep Chand v.
State of UP [1959] 2 Suppl. SCR 8; State of Orissa v.
M/s M A Tulloch (1964) 4 SCR 461; M Karunanidhi v.
Union of India (1979) 3 SCC 431 : [1979] 3 SCR 254;
Hoechst Pharmaceuticals Ltd. v. State of Bihar (1983)
4 SCC 45 : [1983] 3 SCR 130; State of Kerala v. Mar
Appraem Kuri Company Ltd. (2012) 7 SCC 106 : [2012]
4 SCR 448; Innoventive Industries Ltd. v. ICICI Bank
(2018) 1 SCC 407 : [2017] 8 SCR 33 - referred to.
4.1 Two aspects of the RERA must be noticed at the forefront. Firstly, the RERA factors in the existence of municipal or
local authorities constituted under State legislation whose powers
and functions in regard to the development of land are regulated
by legislation enacted by the State legislatures. The RERA
recognizes that local bodies constituted under laws enacted by
the State legislatures regulate diverse aspects of construction
activity as an incident of the development of land. Secondly, in
diverse provisions, the RERA has imposed the duty of complying
with its regulatory provisions upon the 'appropriate government'.
This expression encompasses, in respect of matters relating to
the State, the State government. In the case of Union Territories,
the definition of the expression 'appropriate government' in
Section 2(g) is bifurcated into three categories-Union Territory
without a legislature; Union Territory of Puducherry; and Union
Territory of Delhi. [Para 43][756-H; 757-A-C]
4.2 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. [Para 44][757-D]
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4.3 Section 2(q), 2(zc), 2(zf), 2(zr) of RERA are indicative
of the fact that Parliament was conscious of the position that
diverse activities relating to construction projects are governed
by municipal and local legislation. There is an existence in the
States of various regimes of town and country planning governed
by State enactments and regulations have been framed under
them. Likewise, municipal and local laws govern diverse aspects
of construction activity in real estate projects including the
application for development, nature and extent of permissible
development on land, issuance of commencement certificates
allowing the promoter to begin development of an immoveable
property, completion certificates certifying the completion of the
construction project in accordance with the sanctioned plans and
the grant of occupation permission to occupy the constructed
areas. [Para 52][760-C-E]
4.4 All the definitions 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, 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. [Para
53][760-E-H]
4.5 The second aspect of RERA which deserves emphasis
is that its diverse provisions are regulated and enforced by the
real estate regulatory authority, ss. 20, 21, 26, 28, 32, ss. 3 to 19,
s. 31, ss. 38 to 40 of the RERA. Besides these, 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
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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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.Besides the
establishment of the real estate regulatory authority, the RERA
has, in Section 71, 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
authority in consultation with the appropriate government.
Furthermore, Chapter IX provides for finance, accounts, audits
and reports. [Paras 54-57][761-A-B; 762-B-D; 763-A]
4.6. Section 88 of the RERA stipulates that the application
of other laws is not barred: the provisions of the legislation "shall
be in addition to, and not in derogation of, the provisions of any
other law for the time being in force". At the same time, Section
89 provides for overriding effect to the provisions of the RERA
when it stipulates that it "shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for
the time being in force". The interpretation of these provisions
and their interplay will have an important bearing on the outcome
of the instant controversy. This is because, the State of West
Bengal had originally supported its legislative authority over the
subject governed by WB-HIRA on the ground that the state
enactment falls 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. [Para 58][763-E-H; 764-A-B]
5.1 The expression "any other law for the time being in
force" does not necessarily mean, such laws as were in existence
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when the statutory provision was enacted. To the contrary, it widely
considered to mean 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 colour from the context
in which it appears, and not devoid of it. [Para 70][776-G-H]
Sasanka Sekhar Maity v. Union of India (1980) 4 SCC
716 : [1980] 3 SCR 1209; Thyssen Stahlunion GMBH
v. Steel Authority of India (1999) 9 SCC 334 : [1999] 3
Suppl. SCR 461; Municipal Corporation of Delhi v.
Prem Chand Gupta (2000) 10 SCC 115 : [1999] 5 Suppl.
SCR 403; Yakub Abdul Razak Memon v. State of
Maharashtra (2013) 13 SCC 1 : [2013] 15 SCR 1;
Union Territory of Chandigarh v. Rajesh Kumar
Basandh (2003) 11 SCC 549 : [2003] 3 Suppl. SCR
452; Department of Customs v. Sharad Gandhi (2020)
13 SCC 521 : [2019] 4 SCR 273; National Insurance
Company Limited v. Sinitha (2012) 2 SCC 356 : [2011]
16 SCR 166 - relied on.
5.2 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), stipulates those 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 s. 2(zr) is not frozen in point of time as on
the date of the enactment of RERA. Likewise, s.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. [Para 72][778-B-E]
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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6.1. From the analysis of the provisions of RERA on the
one hand and of WB-HIRA on the other, two fundamental features
emerge from a comparison of the statutes. First, a significant and
even overwhelmingly large part of WB-HIRA overlaps with the
provisions of RERA. These provisions of the RERA have been
lifted bodily, word for word and enacted into the State enactment.
Second, in doing so, WB-HIRA does not complement the RERA
by enacting provisions which may be regarded as in addition to
or fortifying the rights, obligations and remedies created by the
Central enactment. The subject of the provisions of the State
enactment is identical, the content is identical. In essence and
substance, WB-HIRA has enacted a parallel mechanism and
parallel regime as that which has been entailed under the RERA.
The State legislature has, in other words, enacted legislation on
the same subject matter as the Central enactment. Not only is
the subject matter identical but in addition, the statutory
provisions of WB-HIRA are on a majority of counts identical to
those of the RERA. Both sets of statutes are referrable to the
same entries in the Concurrent List-Entries 6 and 7 of List IIIand the initial effort of the State of West Bengal to sustain its
legislation as a law regulating 'Industry" within the meaning of
Entry 24 of List II has been expressly given up before this Court.
[Para 73][778-E-H; 779-A-B]
6.2. In assessing whether this overlap between the statutory
provisions of WB-HIRA and the RERA makes the former
repugnant to the latter within the meaning of that expression in
clause (1) of Article 254, it becomes necessary to apply the several
tests which are a part of our constitutional jurisprudence.
Repugnancy can be looked at from three distinct perspectives.
The first is where the provision of a state enactment is directly in
conflict with a law enacted by Parliament, so that compliance with
one is impossible along with obedience to the other. The second
test of repugnancy is where Parliament through the legislative
provisions contained in the statute has enacted an exhaustive
code. The second test of repugnancy is based on an intent of
Parliament to occupy the whole field covered by the subject of its
legislation. In terms of the second test of repugnancy, a state
enactment on the subject has to give way to the law enacted by
Parliament on the ground that the regulation of the subject matter
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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. This principle
constitutes the foundation of the rule of implied repeal. The instant
case is not one where WB-HIRA deals not with matters which
form the subject matter of the Parliamentary legislation but with
other and distinct matters of a cognate and allied nature. WBHIRA, on the contrary, purports to occupy the same subject as
that which has been provided in the Parliamentary legislation.
The state law fits, virtually on all fours, with the footprints of the
law enacted by Parliament. This is constitutionally impermissible.
What the legislature of the State of West Bengal has attempted
to achieve is to set up its parallel legislation involving a parallel
regime. [Para 74][779-B-H; 780-A-B]
Innoventive Industries Ltd. v. ICICI Bank (2018) 1 SCC
407 : [2017] 8 SCR 33 - relied on.
6.3 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. The effect of Section 88 is to ensure that remedies
which are available under consumer legislation, including
Consumer Protection Act, 2019, are not ousted as a consequence
of the operation of the RERA. Of course, it is also material to
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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note that both sets of statutes, namely the Consumer Protection
Act(s) and the RERA, have been enacted by the Parliament and
both sets of statutes have to be therefore harmoniously
construed. Section 88 of the RERA does not exclude recourse to
other remedies created by cognate legislation. Where the cognate
legislation has been enacted by a State legislature, Section 88 of
the RERA is an indicator that Parliament did not wish to oust the
legislative power of the State legislature to enact legislation on
cognate or allied subjects. In other words, spaces which are left
in the RERA can be legislated upon by the State legislature by
enacting a legislation, so long as it is allied to, incidental or cognate
to the exercise of Parliament's legislative authority. What the
State legislature in the instant case has done is not to enact
cognate or allied legislation but legislation which, insofar as the
statutory overlaps is concerned is identical to and bodily lifted
from the Parliamentary law. This plainly implicates the test of
repugnancy by setting up a parallel regime under the State law.
The State legislature has encroached upon the legislative
authority of Parliament which has supremacy within the ambit of
the subjects falling within the Concurrent List of the Seventh
Schedule. The exercise conducted by the State legislature of
doing so, is plainly unconstitutional. [Para 75, 76][780-G-H; 781A, B-F]
6.4 The statutory overlaps between WB-HIRA and the
RERA cannot be overlooked. But quite apart from that, there is
an additional reason why the test of repugnancy engrafted in clause
(1) of Article 254 is attracted. This is because several provisions
of the WB-HIRA are directly in conflict and dissonance with the
RERA. Where a State enactment in the Concurrent List has
enacted or made a statutory provision which is in conflict with
those which have been enacted by Parliament, it may in a given
case be possible to excise the provision of the State statute so as
to bring it into conformity with the Parliamentary enactment. But
the instant case, involves a situation where valuable safeguards
which are introduced by Parliament in the public interest and
certain remedies which have been created by Parliament are
found to be absent in WB-HIRA. This is indicated from the
following provisions:
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(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
s. 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 application by the
promoter due to force majeure. The explanation
exhaustively defines force majeure to mean a case of war,
flood, drought, fire, cyclone, earthquake or any other
calamity caused by nature affecting the development of the
real estate project. The provisions of Section 6 of the WBHIRA, in contrast, while defining force majeure also
incorporate "any other circumstances prescribed", thereby
giving a wider discretion to the regulatory authority or the
State to give extensions of registration to real estate projects
in a manner which may prejudicially affect the interest of
home buyers;
(iv) Section 38(3) of the RERA empowers the real estate
regulatory authority in a monopoly situation to make a suo
motu reference to the Competition Commission of India.
No such provision is made in the State enactment. Hence,
FORUM FOR PEOPLE'S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF
WEST BENGAL
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a valuable safeguard to protect home buyers in the RERA
has been omitted.
(v) Section 41 of the RERA is a pivotal provision under
which the Central government is to establish a Central
Advisory Council. The Minister of the Central government
dealing with Housing is to be the ex officio Chairperson.
The membership of the Central Advisory Council is
stipulated in Section 41(3). The functions of the Central
Advisory Council are provided in Section 42 of the RERA.
WB-HIRA on the other hand, provides for the constitution
of a State Advisory Council under Section 41.