Thursday, March 30, 2023

State legislature can’t make law similar to one already enacted by Parliament: SC strikes down RERA-like Bengal act, declares it unconstitutional

A two-judge bench of Justice D.Y. Chandrachud and Justice M.R. Shah stated that once Parliament has enacted a law, it’s not open to the State legislature to enact a similar law and lift it word to word.

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The Supreme Court on Tuesday struck down the state legislation WB-HIRA, being repugnant to centre’s legislation RERA. WB-HIRA has, therefore, been declared unconstitutional. (Forum for Peoples Collective Efforts (FPCE) & Anr. vs The State of West Bengal & Anr.)

The Housing Industry Regulatory Authority was established under section 20 of West Bengal Housing Industry Regulatory Act, 2017 and published in the Official Gazette of October 17, 2017 and came into effect on June 1, 2018. The SAC maintained that this was becoming a parallel legislation.

The Supreme Court on April 20, had reserved its order on a plea filed by the Forum for Peoples Collective Efforts (FPCE) challenging the constitutional validity of the West Bengal Housing Industry Regulation Act 2017.

A two-judge bench of Justice D.Y. Chandrachud and Justice M.R. Shah stated, “Once Parliament has enacted a law, it’s not open to State legislature to enact a similar law and lift it word to word. Test of repugnancy is clearly established.”

The Counsel for the petitioner Adv. Justine George opposed the West Bengal Housing Industry Regulation Act 2017, because already there is central enacted law is enforce i.e RERA and he said that, “creation of a parallel regime will amount to a state of absurdity,” he said.

He also gave an example that Electricity being the subject matter of concurrent list, the Central Government has enacted the legislation called “The Electricity Act, 2003”. And if the State Governments are also allowed to legislate and make their own Electricity Statute then it will lead to a state of absurdity.

Sr. Adv Rakesh Dwivedi appearing for the State of West Bengal had submitted that State Government is in the ambit of Concurrent List where both the Centre and State can legislate. And the State law cannot be rendered repugnant to the Center’s law until and unless it is in conflict with the same.

While pronouncing its judgment, Justice Chandrachud stated, “HIRA has enacted a parallel mechanism and it is the same enactment as the Centre. Both the statutes refer to the same entry in the concurrent list in Schedule 7. The third test of repugnancy is that subject matter of State enactment is same to Central enactment & post it.”

The bench further added, “HIRA occupies the same subject as parliamentary enacted law. West Bengal has attempted to establish a parallel regime which is not permissible.”

Whereas, while declaring the Act as unconstitutional, the Court observed that, “provisions of West Bengal HIRA 1993 Act stood repealed after enactment of the HIRA 2016 Act. Our striking down provisions of 2016 Act will not revive 1993 Act in any way. We conclude that HIRA being repugnant to RERA is unconstitutional.”

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The bench held, “Section 88 cannot override Article 254. RERA itself deals with municipal issues and is enforced by State governments. Section 88 allows State law which will complement the RERA.”

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