The Supreme Court has issued a notice to West Bengal government and the Government of India, while admitting a plea filed by pan-India homebuyers’ body Forum for Peoples Collective Efforts (FPCE) to repeal the West Bengal Housing Regulation Act, 2017 (WBHIRA).
The homebuyers’ body had earlier approached the governor of West Bengal and West Bengal chief minister, the Prime Minister, and the President of India to repeal WBHIRA, and implement the Real Estate (Regulation & Development) Act, 2016, enacted by the central government.
West Bengal’s separate state housing legislation received the Governor’s assent in October 2017, but the central government’s RERA regulation had received the President’s consent in March 2016.
The central government’s RERA was fully notified and implemented across the country -- except in Jammu & Kashmir -- on May 1, 2017. The homebuyers’ body had earlier raised concerns that allowing state-level legislation would lead to RERA becoming redundant.
“There’s no presidential assent to WB HIRA and therefore is unconstitutional in view of Article 254 (2) of the constitution of India. We have challenged the validity of the state act,” said Devashish Bharuka, Advocate-on-Record in Supreme Court, representing the petitioners. “The matter is likely to come up for hearing in two weeks.”
According to the public litigation filed by FPCE, the homebuyers’ body has received information under the Right to Information Act revealing that the Governor of West Bengal has not been properly informed, or advised, in the matter by the West Bengal government, as there was already a Central law -- RERA regulating the said subject.
In the backdrop of implementation of the central law RERA, existing state legislations of Maharashtra and Kerala were repealed. While repealing its state Act, the Kerala government had stated that if any provision of a law made by the legislature of the state is repugnant to any law made by the Parliament, the state law would turn void.
Both RERA and West Bengal’s HIRA differ on the definition of force majeure clause and garage. Under RERA, force majeure clause can be invoked only in case of war, drought, floods, earthquake, fire or any other natural calamity affecting the regular development of real estate projects. However, according to HIRA, over and above the conditions listed under RERA, force majeure clause can be declared for any other circumstance prescribed.
RERA has defined garage as a place within a project that has a roof and walls on three sides for parking any vehicle, but it does not include unenclosed or uncovered parking area. HIRA, on the other hand, says a parking slot means such an area as may be prescribed, and garage as sanctioned by the competent authority.