The West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), which conflicted with Central legislation already in place, namely the Real Estate (Regulation and Development) Act, 2016, was declared illegal by the Supreme Court in this significant decision (RERA).
The West Bengal Housing Industry Regulation Act, 2017, which is essentially the same as the Centre's RERA, was challenged as being unconstitutional by the "Forum filed the petition For People's Collective Efforts," an umbrella homebuyers group.
In the instant case titled Forum for People’s Collective Efforts (FPCE) v. State of West Bengal. The issue raised for clarification before the Supreme Court was:
Whether West Bengal encroached upon the domain of Parliament?
With regard to this issue, because both WBHIRA and RERA address the duplicate entry in the concurrent list and because a sizable portion of WBHIRA's provisions overlap with those of RERA, the Court concluded that the State of West Bengal exceeded its legislative authority by implementing WBHIRA.
The West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, which was in effect in the state for the regulation of promotion of construction, was impliedly repealed by the enactment of the RERA, the Court noted, and would not be reinstated by the invalidation of the 2017 state Act.
According to the bench, section 88 of the RERA does not prevent the states from passing laws on any related or congruent issues. If any topics are missing from RERA, the state legislatures may address them by a cognate law as long as it addresses an incidental matter.
The Court categorically held that,
“Since its enforcement in the State of West Bengal, the WB-HIRA would have been applied to building projects and implemented by the authorities constituted under the law in the state. In order to avoid 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 the 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."