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TMI Blog2021 (5) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... the salient provisions of the Act are detailed below: (i) Section 3 provides for registration of promoters who construct or intend to construct a building and for obtaining permission for construction; (ii) Section 4 provides for the validity of the certificate of registration and for cancellation; (iii) Section 5 provides for appeals; (iv) Section 6 provides for adjudication of disputes by an officer appointed by the State government for adjudication; (v) Section 7 provides that the promoter shall before taking any advance payment for deposit, which shall not be more than 40 per cent of the sale price, enter into a written agreement for sale which shall be registered; (vi) Section 8 restrains additions or alterations without the consent of the transferee and for rectification of defects; (vii) Section 9 contains a prohibition on a promoter creating a mortgage or charge without the consent of the purchaser after entering into an agreement; (viii) Section 10 requires the formation of a co-operative society; (ix) Section 11 provides for the promoter to covey title to the co-operative society; (x) Section 12 provides for insurance against loss or death; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anvi, Adv., Mr. Rajat Nair, Adv., Mr. Mohd. Akhil, Adv., Mr. Navanjay Mahapatra, Adv., Mr. Raj Bahadur Yadav, Adv., Mrs. Anil Katiyar, AOR, Mr. Rakesh Dwivedi, Sr. Adv., Mr. Suhaan Mukerji, Adv., Mr. Vishal Prasad, Adv., Mr. Nikhil Parikshit, Adv., Mr. Eklavya Dwivedi, Adv., Mr. Abhishek Manchanda, Adv., Mr. Sayandeep Pahari, Adv., Mr. Arya Tripathy, Adv. and M/S. Plr Chambers And Co. JUDGMENT Dr Justice Dhananjaya Y Chandrachud A The challenge B Legislative history C RERA - the legislative process D Salient features RERA E Salient provisions of WB-HIRA F RERA and WB-HIRA provisions at variance G Submissions G.1 For the petitioners G.2 For the Union of India G.3 For the State of West Bengal H Analysis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, following which it was published in the Official Gazette on 9 March 1994. Many other States enacted laws on the subject, including among them: (i) The Maharashtra Housing (Regulation and Development) Act, 2012 (the Maharashtra Act ), which received Presidential assent on 2 February 2014; and (ii) The Kerala Real Estate (Regulation and Development) Act, 2015 (the Kerala Act ), was enacted by the State Legislative Assembly on 3 February 2016. 3 On 14 August 2013, the Bill for enactment of the RERA was introduced in the Rajya Sabha. The Bill was passed by the Rajya Sabha on 10 March 2016, and by the Lok Sabha on 15 March 2016. The law received the assent of the President on 25 March 2016, and was published in the Official Gazette on the next day. RERA was then partially enforced on 1 May 2016 [1] , while the rest of its provisions were enforced on 19 April 2017 [2] . The Maharashtra Act was specifically repealed by RERA [3] , while the Kerala Act was repealed by the State Legislative Assembly through the Kerala Real Estate (Regulation and Development) Repeal Act, 2017 [4] . 4 In the State of West Bengal, draft rules under the RERA were framed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt years, it has been largely unregulated. There is, thus, absence of professionalism and standardization and lack of adequate consumer protection. Though the Consumer Protection Act 1986 is available as a forum to the buyers in the real estate market, the recourse is only curative and is inadequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums. 6 Upon being introduced in the Rajya Sabha, the RERA Bill 2013 was referred to a twenty-one member Select Committee, on a motion adopted by the House on 6 May 2015. The Committee held seventeen sittings nine in Delhi and the remaining in different parts of the country. As many as 445 persons appeared before the Select Committee drawn from different categories and groups of stakeholders - representatives of consumers; resident welfare associations; promoter builders; banks and financial institutions; Housing Ministries of all the States and Union Territories; law firms and independent experts in the field of real estate. Following a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill. e) In case of default by a promoter, they should be given refund of money at the market rate prevailing at that time with interest. f) There should be one criterion for selling a flat i.e. the carpet area which should be clearly defined and should not be linked to National Building Code which can be damaged any time independent of the Bill. g) The definition of the term advertisement should be made more exhaustive and the definition of the term allottee should also include the association of allottees or group of allottees so that they can in case of need take up the cause collectively. h) Information relating to various clearances, credentials of promoter i.e., cases pending against, defaults in payments in the past, projects left in between in the past, etc. water harvesting environmental impact, net worth of promoters and financing pattern etc. should be given. i) Regarding the provision to keep 50% of the amount realized for the project from allottees in a separate account, it was demanded that this amount should not be less than 70%. j) On structural defect after handing over the possession, it was demanded that the liability of promoter should be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the real estate market, the recourse is only curative and is not adequate to address all the concerns of buyers and promoters in that sector. The lack of standardization has been a constraint to the healthy and orderly growth of industry. Therefore, the need for regulating the sector has been emphasized in various forums. 2. In view of the above, it becomes necessary to have a Central legislation, namely the Real Estate (Regulation and Development) Bill, 2013 in the interests of effective consumer protection, uniformity and standardization of business practices and transactions in the real estate sector. The proposed Bill provides for the establishment of the Real Estate Regulatory Authority (the Authority) for regulation and promotion of real estate sector and to ensure sale of plot, apartment or building, as the case may be, in an efficient and transparent manner and to protect the interest of consumers in real estate sector and establish the Real Estate Appellate Tribunal to hear appeals from the decisions, directions or orders of the Authority. 3. The proposed Bill will ensure greater accountability towards consumers and significantly reduce frauds and delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consumers and to significantly reduce frauds, delays and high transaction costs. While imposing duties and responsibilities on promoters and purchasers, RERA sought to achieve its objectives by ensuring: (i) Symmetry of information between promoters and purchasers; (ii) Transparency of contractual conditions; (iii) Threshold standards of standardization of accountability; and (iv) A fast-track dispute resolution mechanism. Besides the Statement of Objects and Reasons, the long title to the legislation dwells on the purpose of the law in the following terms: An Act to establish the Real Estate Regulatory Authority for regulation and promotion of the real estate sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish an adjudicating mechanism for speedy dispute redressal and also to establish the Appellate Tribunal to hear appeals from the decisions, directions or orders of the Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VI Central Advisory Council Chapter VI The Real Estate Appellate Tribunal Chapter VII Offences, Penalties and Adjudication Chapter IX Finance, Accounts, Audits and Reports Chapter X Miscellaneous (iv) RERA mandates the registration of real estate projects and real estate agents. The salient features of this process are: a. Mandatory registration of real estate projects with the real estate regulatory authority is required before the promoter can advertise, market, book, sell or offer for sale or invite persons to purchase a plot, apartment or building in a real estate project; b. Mandatory registration of real estate agents before facilitating the sale or purchase of plots, apartments or buildings in real estate projects; c. Mandatory public disclosure of all project details by promoters; d. Promoters are required to make a mandatory public disclosure of all registered projects on the web-site of the authority including lay out plans, land titles, statutory approvals, agreements; (v) R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Conditions of service; e. Powers; f. Appeals; (x) RERA notes the offences, penalties and adjudication, along with: a. Delegated legislation; b. Power of the appropriate government to make rules; c. Framing of regulations by the authority; and (xi) Finally, Sections 88 and 89 of the RERA provide as follows: 88. Application of other laws not barred. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 89. Act to have overriding effect. The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force. E Salient provisions of WB-HIRA 12 The long title to the State enactment describes the purpose and content of the legislation as: An Act to establish the Housing Industry Regulatory Authority for regulation and promotion of the housing sector and to ensure sale of plot, apartment or building, as the case may be, or sale of real estate project, in an efficient and transparent manner and to protect the interest of consumers in the real estate sector and to establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch plot, building or apartment or to make advances or deposits for such purposes; 2(a) Definition of advertisement 2(d) Definition of allottee (d) allottee in relation to a real estate project, means the person to whom a plot, apartment or building, as the case may be, has been allotted, sold (whether as freehold or leasehold) or otherwise transferred by the promoter, and includes the person who subsequently acquires the said allotment through sale, transfer or otherwise but does not include a person to whom such plot, apartment or building, as the case may be, is given on rent; 2(c) Definition of allottee 2(e) Definition of apartment (e) apartment whether called block, chamber, dwelling unit, flat, office, showroom, shop, godown, premises, suit, tenement, unit or by any other name, means a separate and self-contained part of any immovable property, including one or more rooms or enclosed spaces, located on one or more floors or any part thereof, in a building or on a plot of land, used or intended to be used for any residential or commercial use such as res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) the premises for the lodging of persons employed for the management of the property including accommodation for watch and ward staffs or for the lodging of community service personnel; (v) installations of central services such as electricity, gas, water and sanitation, air-conditioning and incinerating, system for water conservation and renewable energy; (vi) the water tanks, sumps, motors, fans, compressors, ducts and all apparatus connected with installations for common use; (vii) all community and commercial facilities as provided in the real estate project; (viii) all other portion of the project necessary or convenient for its maintenance, safety, etc., and in common use; 2(zk) Definition of promoter (zk) promoter means- (i) a person who constructs or causes to be constructed an independent building or a building consisting of apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(zm) Definition of real estate agent (zm) real estate agent means any person, who negotiates or acts on behalf of one person in a transaction of transfer of his plot, apartment or building, as the case may be, in a real estate project, by way of sale, with another person or transfer of plot, apartment or building, as the case may be, of any other person to him and receives remuneration or fees or any other charges for his services whether as commission or otherwise and includes a person who introduces, through any medium, prospective buyers and sellers to each other for negotiation for sale or purchase of plot, apartment or building, as the case may be, and includes property dealers, brokers, middlemen by whatever name called; 2(zl) Definition of real estate agent 2(zn) Definition of real estate project (zn) real estate project means the development of a building or a building consisting of apartments, or converting an existing building or a part thereof into apartments, or the development of land into plots or apartment, as the case ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; (b) where the promoter has received completion certificate for a real estate project prior to commencement of this Act; (c) for the purpose of renovation or repair or re-development which does not involve marketing, advertising selling or new allotment of any apartment, plot or building, as the case may be, under the real estate project. Explanation. - For the purpose of this section, where the real estate project is to be developed in phases, every such phase shall be considered a stand alone real estate project, and the promoter shall obtain registration under this Act for each phase separately. 4 Application for registration of real estate projects (1) Every promoter shall make an application to the Authority for registration of the real estate project in such form, manner, within such time and accompanied by such fee as may be specified by the regulations made by the Authority. 4 Application for registration of real estate projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exclusive balcony or verandah areas and the exclusive open terrace areas apartment with the apartment, if any; (i) the number and areas of garage for sale in the project; (j) the names and addresses of his real estate agents, if any, for the proposed project; (k) the names and addresses of the contractors, architect, structural engineer, if any and other persons concerned with the development of the proposed project; (l) a declaration, supported by an affidavit, which shall be signed by the promoter or any person authorised by the promoter, stating:- (A) that he has a legal title to the land on which the development is proposed along with legally valid documents with authentication of such title, if such land is owned by another person; (B) that the land is free from all encumbrances, or as the case may be details of the encumbrances on such la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) The Authority shall operationalise a web based online system for submitting applications for registration of projects within a period of one year from the date of its establishment. 5 Grant of registration (1) On receipt of the application under sub-section (1) of section 4, the Authority shall within a period of thirty days. 5 Grant of registration (a) grant registration subject to the provisions of this Act and the rules and regulations made thereunder, and provide a registration number, including a Login Id and password to the applicant for accessing the website of the Authority and to create his web page and to fill therein the details of the proposed project; or (b) reject the application for reasons to be recorded in writing, if such application does not conform to the provisions of this Act or the rules or regulations made thereunder: Provided that no application shall be rejected unless the applicant has been given an opportunity of being heard in the matter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er being satisfied that- 7 Revocation of the registration (a) the promoter makes default in doing anything required by or under this Act or the rules or the regulations made thereunder; (b) the promoter violates any of the terms or conditions of the approval given by the competent authority; (c) the promoter is involved in any kind of unfair practice or irregularities. Explanation.- For the purposes of this clause, the term unfair practice means a practice which, for the purpose of promoting the sale or development of any real estate project adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:- (A) the practice of making any statement, whether in writing or by visible representation which,- (i) falsely represents that the services are of a particular standard or grade; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt works in accordance with the provisions of section 8; (d) may, to protect the interest of allottees or in the public interest, issue such directions as it may deem necessary. Revocation of registration. 8 Obligation of Authority consequent upon lapse of or on revocation of registration Upon lapse of the registration or on revocation of the registration under this Act, the Authority, may consult the appropriate Government to take such action as it may deem fit including the carrying out of the remaining development works by competent authority or by the association of allottees or in any other manner, as may be determined by the Authority: 8 Obligation of Authority consequent upon lapse of or on revocation of registration Provided that no direction, decision or order of the Authority under this section shall take effect until the expiry of the period of appeal provided under the provisions of this Act: Provided further that in case of revocation of registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (6) Every registration shall be valid for such period as may be prescribed, and shall be renewable for a period in such manner and on payment of such fee as may be prescribed. (7) Where any real estate agent who has been granted registration under this Act commits breach of any of the conditions thereof or any other terms and conditions specified under this Act or any rules or regulations made thereunder, or where the Authority is satisified that such registration has been secured by the real estate agent through misrepresentation or fraud, the Authority may, without prejudice to any other provisions under this Act, revoke the registration or suspend the same for such period as it thinks fit: Provided that no such revocation or suspension shall be made by the Authority unless an opportunity of being heard has been given to the real estate agent. 10 Functions of real estate agents Every real estate agent registered under section 9 shall- (a) not facilitate the sale or purchase of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... types of apartments or plots, as the case may be, booked; (c) quarterly up-to-date the list of number of garages booked; (d) quarterly up-to-date the list of approvals taken and the approvals which are pending subsequent to commencement certificate; (e) quarterly up-to-date status of the project; and (f) such other information and documents as may be specified by the regulations made by the Authority. (2) The advertisement or prospectus issued or published by the promoter shall mention prominently the website address of the Authority, wherein all details of the registered project have been entered and include the registration number obtained from the Authority and such other matters incidental thereto. (3) The promoter at the time of the booking and issue of allotment letter shall be responsible to make available to the allottee, the following i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the project by the association of the allottees; (e) enable the formation of an association or society or co-operative society, as the case may be, of the allottees, or a federation of the same, under the laws applicable: Provided that in the absence of local laws, the association of allottees, by whatever name called, shall be formed within a period of three months of the majority of allottees having booked their plot or apartment or building, as the case may be, in the project; (f) execute a registered conveyance deed of the apartment, plot or building, as the case may be, in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees or competent authority, as the case may be, as provided under section 17 of this Act; (g) pay all outgoings until he transfers the physical possession of the real estate project to the allottee or the associations of allottees, as the case may be, which he has coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, and sustains any loss or damage by reason of any incorrect, false statement included therein, he shall be compensated by the promoter in the manner as provided under this Act: 12 Obligations of promoter regarding veracity of the advertisement or prospectus Provided that if the person affected by such incorrect, false statement contained in the notice, advertisement or prospectus, or the model apartment, plot or building, as the case may be, intends to withdraw from the proposed project, he shall be returned his entire investment along with interest at such rate as may be prescribed and the compensation in the manner provided under this Act. 13 No deposit or advance to be taken by promoter without first entering into agreement for sale (1) A promoter shall not accept a sum more than ten per cent of the cost of the apartment, plot, or building as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement for sale with such person and register the said agreement for sale, under any law for the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee. Explanation.- For the purpose of this clause, minor additions or alterations excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc. (ii) any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building. Explanation.- For the purpose of this clause, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) On the transfer or assignment being permitted by the allottees and the Authority under sub-section (1), the intending promoter shall be required to independently comply with all the pending obligations under the provisions of this Act or the rules and regulations made thereunder, and the pending obligations as per the agreement for sale entered into by the erstwhile promoter with the allottees: Provided that any transfer or assignment permitted under provisions of this section shall not result in extension of time to the intending promoter to complete the real estate project and he shall be required to comply with all the pending obligations of the erstwhile promoter, and in case of default, such intending promoter shall be liable to the consequences of breach or delay, as the case may be, as provided under this Act or the rules and regulations made thereunder. 16 Obligations of promoter regarding insurance of real estate project (1) The promoter shall obtain all such insurances as may be notified by the appropriate Government, including but not l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the promoter to handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be, as per the local laws: Provided that, in the absence of any local law, the promoter shall handover the necessary documents and plans, including common areas, the association of the allottees or the competent authority, as the case may be, within thirty days after obtaining the occupancy certificate. 18 Return of amount and compensation (1) If the promoter fails to complete or is unable to give possession of an apartment, plot or building,- 18 Return of amount and compensation (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of apartment, plot or building, as the case may be, and the association of allottees shall be entitled to claim the possession of the common areas, as per the declaration given by the promoter under sub-clause (C) of clause (I) of sub-section (2) of section 4. (4) The allottee shall be entitled to claim the refund of amount paid along with interest at such rate as may be prescribed and compensation in the manner as provided under this Act, from the promoter, if the promoter fails to comply or is unable to give possession of the apartment, plot or building, as the case may be, in accordance with the terms of agreement for sale or due to discontinuance of his business as a developer on account of suspension or revocation of his registration under the provisions of this Act or the rules or regulations made thereunder. (5) The allottee shall be entitled to have the necessary documents and plans, including that of common areas, after handing over the physical possession of the apartment or plot or building as the case may be, by the promoter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two or more States or Union territories may, if it deems fit, establish one single Authority: Provided further that, the appropriate Government may, if it deems fit, establish more than one Authority in a State or Union territory, as the case may be: Provided also that until the establishment of a Regulatory Authority under this section, the appropriate Government shall, by order, designate any Regulatory Authority or any officer preferably the Secretary of the department dealing with Housing, as the Regulatory Authority for the purposes under this Act: (2) The Authority shall be a body corporate by the name aforesaid having perpetual succession and a common seal, with the power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall, by the said name, sue or be sued. 21 Composition of Authority The Authority shall consist of a Chairperson and not less than two whole time Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salary and allowances payable to Chairperson and Members (1) The salary and allowances payable to, and the other terms and conditions of service of, the Chairperson and other Members shall be such as may be prescribed and shall not be varied to their disadvantage during their tenure. 24 Salary and allowances payable to Chairperson and Members (2) Notwithstanding anything contained in sub-sections (1) and (2) of section 23, the Chairperson or a Member, as the case may be, may,- (a) relinquish his office by giving in writing, to the appropriate Government, notice of not less than three months; or (b) be removed from his office in accordance with the provisions of section 26 of this Act. (3) Any vacancy caused to the office of the Chairperson or any other Member shall be filled-up within a period of three months from the date on which such vacancy occurs. 25 Administrative powers of Chairperson ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l authority or in any statutory authority or any corporation established by or under any Central, State or provincial Act or a Government Company, as defined under clause (45) of section 2 of the Companies Act, 2013, which is not a promoter as per the provisions of this Act; 27 Restrictions on Chairperson or Members on employment after cessation of office (b) act, for or on behalf of any person or organisation in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or such Member had, before cessation of office, acted for or provided advice to, the Authority; (c) give advice to any person using information which was obtained in his capacity as the Chairperson or a Member and being unavailable to or not being able to be made available to the public; (d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposing of the application within that period. 30 Vacancies, etc., not to invalidate proceeding of Authority No act or proceeding of the Authority shall be invalid merely by reason of- (a) any vacancy in, or any defect in the constitution of, the Authority; or (b) any defect in the appointment of a person acting as a Member of the Authority; or (c) any irregularity in the procedure of the Authority not affecting the merits of the case 30 Vacancies, etc., not to invalidate proceeding of Authority 31 Filing of complaints with the Authority or the adjudicating officer (1) Any aggrieved person may file a complaint with the Authority or the adjudicating officer, as the case may be, for any violation or contravention of the provisions of this Act or the rules and regulations made thereunder against any promoter allottee or real estate agent, as the case may be. 31 Filing of complaints with the Authority Explanation.- For the purpose of this sub-section person shall include the association of allott ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate Government in matters relating to the development of real estate sector; (j) any other issue that the Authority may think necessary for the promotion of the real estate sector. 33 Advocacy and awareness measures (1) The appropriate Government may, while formulating a policy on real estate sector (including review of laws related to real estate sector) or any other matter, make a reference to the Authority for its opinion on possible effect, of such policy or law on real estate sector and on the receipt of such a reference, the Authority shall within a period of sixty days of making such reference, give its opinion to the appropriate Government which may therafter take further action as it deems fit. 33 Advocacy and awareness measures (2) The opinion given by the Authority under sub-section (1) shall not be binding upon the appropriate Government in formulating such policy or laws. (3) The Authority shall take suitable measures for the promotion of adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edient to do so, on a complaint or suo motu, relating to this Act or the rules of regulations made thereunder, it may, by order in writing and recording reasons therefor call upon any promoter or allottee or real estate agent, as the case may be, at any time to furnish in writing such information or explanation relating to its affairs as the Authority may require and appoint one or more persons to make an inquiry in relation to the affairs of any promoter or allottee or the real estate agent, as the case may be. 35 Powers of Authority to call for information, conduct investigations (2) Notwithstanding anything contained in any other law for the time being in force, while exercising the powers under sub-section (1), the Authority shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit, in respect of the following matters, namely:- (i) the discovery and production of books of account and other documents, at such place and at such time as may be specified by the Authority; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or affecting interest of allottees adversely, then the Authority, may suo motu, make reference in respect of such issue to the Competition Commission of India. 39 Rectification of orders The Authority may, at any time within a period of two years from the date of the order made under this Act, with a view to rectifying any mistake apparent from the record, amend any order passed by it, and shall make such amendment, if the mistake is brought to its notice by the parties: Provided that no such amendment shall be made in respect of any order against which an appeal has been preferred under this Act: Provided further that the Authority shall not, while rectifying any mistake apparent from record, amend substantive part of its order passed under the provisions of this Act. 39 Rectification of orders 43 Establishment of Real Estate Appellate Tribunal (1) 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) Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered under any law for the time being in force. 44 Application for settlement of disputes and appeals to Appellate Tribunal (1) The appropriate Government or the competent authority or any person aggrieved by any direction or order or decision of the Authority or the adjudicating officer may prefer an appeal to the Appellate Tribunal. 44 Application for settlement of disputes and appeals to Appellate Tribunal (2) Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed: Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days if it is satisfied that there was sufficient cause for not filling it within that period. (3) On receipt of an appeal under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court; and (b) in the case of a Judicial Member he has held a judicial office in the territory of India for at least fifteen years or has been a member of the Indian Legal Service and has held the post of Additional Secretary of that service or any equivalent post, or has been an advocate for at least twenty years with experience in dealing with real estate matters; and 46 Qualifications for appointment of Chairperson and Members (c) in the case of a Technical or Administrative Member, he is a person who is well-versed in the field of urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, public affairs or administration and possesses experience of at least twenty years in the field or who has held the post in the Central Government, or a State Government equivalent to the post of Additional Secretary to the Government of India or an equivalent post in the Central Government or an equivalent post in the State Government. (2) The Chairperson of the Appellate Tribunal shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate Government a notice of not less than three months; (b) be removed from his office in accordance with the provisions of section 49. (3) A vacancy caused to the office of the Chairperson or any other Member, as the case may be, shall be filled-up within a period of three months from the date on which such vacancy occurs. 49 Removal of Chairperson and Member from office in certain circumstances (1) The appropriate Government may, in consultation with the Chief Justice of the High Court, remove from office of the Chairperson or any judicial Member or Technical or Administrative Member of the Appellate Tribunal, who- (a) has been adjudged as an insolvent; or 48 Removal of Chairperson, Member etc (b) has been convicted of an offence which, in the opinion of the appropriate Government involves moral turpitude; or (c) has become physically or mentally incapable; or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incial Act or a Government Company as defined under clause (45) of section 2 of the Companies Act, 2013, which is not a promoter as per the provisions of this Act; (b) act, for or on behalf of any person or organisation in connection with any specific proceeding or transaction or negotiation or a case to which the Authority is a party and with respect to which the Chairperson or Judicial Member or Technical or Administrative Member had, before cessation of office, acted for or provided advice to, the Authority; (c) give advice to any person using information which was obtained in his capacity as the Chairperson or Judicial Member or Technical or Administrative Member and being unavailable to or not being able to be made available to the public; (d) enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during his term of office as such. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... moning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examinations of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or directing it ex parte; and (g) any other matter which may be prescribed. (5) All proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193, 219 and 228 for the purposes of section 196 of the Indian Penal Code, and the Appellate Tribunal shall be deemed to be civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973 55 Vacancies, etc., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table by the Appellate Tribunal as a decree of civil court, and for this purpose, the Appellate Tribunal shall have all the powers of a civil court. 57 Orders passed by Appellate Tribunal to be executable as a decree (2) Notwithstanding anything contained in sub-section (1), the Appellate Tribunal may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by the court. 58 Appeal to High Court (1) Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the High Court, within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908: 58 Appeal to High Court Provided that the High Court may entertain the appeal after the expiry of the said period of sixty days, if it is satisfied that the appellant was prevented by sufficient cause from pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nues, which may cumulatively extend up to five per cent. of the cost of plot, apartment or buildings, as the case may be, of the real estate project, for which the sale or purchase has been facilitated as determined by the Authority 62 Penalty for non-registration and contravention under Sections 9 and 10 63 Penalty for failure to comply with orders of Authority by promoter If any promoter, who fails to comply with, or contravenes any of the orders or directions of the Authority, he shall be liable to a penalty for every day during which such default continues, which may cumulatively extend up to five per cent., of the estimated cost of the real estate project as determined by the Authority 63 Penalty for failure to comply with orders of Authority by promoter 64 Penalty for failure to comply with orders of Appellate Tribunal by promoter If any promoter, who fails to comply with, or contravenes any of the orders, decisions or directions of the Appellate Tribunal, he shall be punishable with imprisonment for a term which may extend up to three years or with fine for every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal, as the case may be, he shall be punishable with imprisonment for a term which may extend up to one year or with fine for every day during which such default continues, which may cumulatively extend up to ten per cent. of the plot, apartment or building cost, as the case may be, or with both. 68 Penalty for failure to comply with orders of Appellate Tribunal by allottee 69 Offences by companies (1) Where an Offence under this Act has been committed by a company, every person who, at the time, the offence was committed was in charge of, or was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: 69 Offences by companies Provided that nothing contained in this sub-section, shall render any such person liable to any punishment under this Act if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority in connection with the discharge of its functions and for the pruposes of this Act. (3) The Fund shall be administered by a committee of such Members of the Authority as may be determined by the Chairperson. (4) The committee appointed under sub-section (3) shall spend monies out of the Fund for carrying out the objects for which the Fund has been constituted. 76 Crediting sums realised by way of penalties to Consolidated Fund of India or State account (1) All sums realised, by way of penalties, imposed by the Appellate Tribunal or the Authority, in the Union territories, shall be credited to the Consolidated Fund of India. (2) All sums realised, by way of penalties, imposed by the Appellate Tribunal or the Authority, in a State, shall be credited to such account as the State Government may specify. 72 Crediting sums realised by way of penalties to Consolidated Fund of State 77 Budget, accounts and audit (1) The Authority shall prepare a budget, maintain proper accounts and other relevant records a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be, before the State Legislature or the Union Territory Legislature, where it consists of two Houses, or where such legislature consists of one House, before that House. 79 Bar of Jurisdiction No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 75 Bar of Jurisdiction 80 Cognizance of offences (1) No court shall take cognizance of any offence punishable under this Act or the rules or regulations made thereunder save on a complaint in writing made by the Authority or by any officer of the Authority duly authorised by it for this purpose. (2) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. 76 Cognizance of off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es owned or controlled by the Authority shall, until the Authority is reconstituted under sub-section (3), vest in the appropriate Government. (3) On or before the expiration of the period of supersession specified in the notification issued under sub-section (1), the appropriate Government shall reconstitute the Authority by a fresh appointment of its Chairperson and other members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disqualified for re-appointment. (4) The appropriate Government shall cause a copy of the notification issued under sub-section (1) and a full report of any action taken under this section and the circumstances leading to such action to be laid before each House of Parliament or, as the case may be, before the State Legislature, or the Union Territory Legislature, as the case may be, where it consists of two Houses, or where such legislature consists of one House, before that House. 78 Power of State Government to supersede Authority 83 Powers of appropriate Government to issue directions to Authority and obtain reports and returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules or regulations made thereunder. 84 Protection of action taken in good faith 91 Power to remove difficulties (1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act as may appear to be necessary for removing the difficulty: Provided that no order shall be made under this section after the expiry of two years from the date of the commencement of this Act. (2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament. 85 Power to remove difficulties It needs to be emphasized that the tabulated provisions of the State enactment are verbatim a reproduction of the Central enactment in most instances, with minor differences between the provisions (due to RERA being a Central enactment, and WB-HIRA being a State enactment) but those are not relevant for our present discussion. It is also important to note that Section 83 of WB-HIRA provides as follows: 83. Application of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... car parking areas sanctioned by competent authority. 2 Definition of Garage Section 2(y): Garage has been defined to mean a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an un-enclosed or uncovered parking space such as open parking areas . Section 2 (x): Garage has been defined to mean garage and parking space as sanctioned by the Competent Authority . 3 Planning Area RERA applies to only those real estate projects which are located within the planning area notified by the appropriate government or a competent authority to be a planning area. There exists no separate concept of a planning area. WB-HIRA applies to all projects in the State of West Bengal. 4 Force Majeure events for the purpose of Extension of registration The registration granted under section 5 may be extended by the Authority on an application made by the promoter due to force majeure, in such form and on payment of such fee as may be specified by regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions under the enabling provisions of RERA to invoke force majeure clause and extend the completion date suo motu or revised / extended completion date for all real estate projects registered under RERA for a period of 6 months, where completion date expires on or after 25th March, 2020. However, the stakeholders (homebuyers promoters) of West Bengal got deprived as they were not covered under the purview of RERA. Section 41: WB-HIRA provides for establishment of State Advisory Council chaired (ex-officio) by State Minister of Housing. However, the purpose of having a Central Advisory Council was entirely different, which can t be substituted by establishing State Advisory Council. Any advisory of Central Government based upon the recommendation of CAC will have no effect in the state of West Bengal. 7 Compounding of Offences Section 70: Provides for compounding of offences under the Act. There is no such provision. 8 Factors for adjudging quantum of compensation or interest. Section 71(1): provides that Regulatory Authority shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furthers the objects of the Transfer of Property Act, 1882. It provides for the enforcement of contracts through remedial measures which are in addition to the remedies provided in the Consumer Protection Act, 1986 and its successor legislation of 2019. RERA, in other words, is a special statute governing the real estate sector encompassing rights and obligations found in different central enactments; and d. WB-HIRA covers the identical field of regulating the contractual behavior of promoters and buyers in real-estate projects. The state law is a copy-and paste replica of the central legislation (except for certain provisions which are inconsistent with RERA) and covers the field which is occupied by the central enactment. (II) WB-HIRA is repugnant to RERA a. The subjects of both sets of legislations are contained in Entries 6 and 7 of the Concurrent List; b. The state law does not fall either under the subject of land (Entry 18, List II [7] ) or industry (Entry 24, List II). That WB-HIRA does not fall under Entry 24, List II is evident from the meaning of the expression industry as explained in the following decisions: Tika Ram Ji v State of UP, (1956 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... state legislature, it was intended to govern the field of housing industry under Entry 24 of List II in the State of West Bengal and not the field of contracts and transfer of property under Entries 6 and 7 of List III. This is evident from the following circumstances: 1. The Statement of Objects and Reasons of the Bill from when it was introduced in the state legislature, specifically notes that housing comes under the ambit of industry which is why the state decided to enact its own legislation; 2. The long title of the state enactment seeks to establish a housing industry regulatory authority for regulation and promotion of the housing sector; 3. The Governor of West Bengal was not informed of RERA when assent was sought; 4. Even in the counter affidavit filed in this Court, the State government has pleaded that as per WB-HIRA, housing comes under the meaning of industry ; and 5. Once it is conceded during the course of oral submissions that the legislation does not fall under Entry 24 of List II but Entries 6 and 7 of List III, the entire edifice of the legislation being referable to the State List is negatived and the state enactment is void under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standing anything inconsistent contained in any other law for the time being in force; g. The expression for the time being in force may, according to context and intent refer to either 1. a specific period of time or 2. to all periods of time. Since RERA is remedial and regulatory, it is to operate together with existing laws including the Consumer Protection Act for the purpose of providing wholesome statutory protections- both to promoters and consumers. Section 89 gives overriding effect to RERA over inconsistent existing laws; h. Sections 88 and 89 do not prohibit the enactment of laws by Parliament or the state legislatures in future. However, in the case of a future state law covering the same field, its validity has to be tested only on the touchstone of Article 254 without reference to Sections 88 or 89. In the event of a future Parliamentary law, its effect and impact would be tested on the general principles of interpretation of statutes such as general and special laws, an earlier and later law and the rule of harmonious construction. The State cannot enact a law on the subject matter without seeking Presidential assent; i. The expression in additio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (VI) Upon the declaration of WB-HIRA as unconstitutional, the 1993 legislation in West Bengal may also be declared as repealed in view of the following: a. Section 89 of the RERA impliedly repeals all earlier state acts with Presidential assent under the proviso to Article 254(2); and b. In the alternative, Section 86 of WB-HIRA which repeals WB 1993 Act may be severed by applying the doctrine of severability. On the above grounds, it has been submitted that WB-HIRA is void for want of legislative competence. G.2 For the Union of India 17 Ms Aishwarya Bhati, learned Additional Solicitor General appearing on behalf of the Union of India urged the following submissions: (I) Background and Statement of objects of RERA a. The legislative background before the enactment of the RERA in 2016 indicates that a comprehensive exercise was carried out by the Select Committee of the Rajya Sabha which heard the views of stakeholders from across the country; b. Parliament has enacted RERA, as the Statement of Objects and Reasons indicates, having due regard to 1. The necessity of a central legislation to provide effective protection to real estate buyers and pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specifically given up at the time of the oral submissions. (III) Article 254 of the Constitution and repugnancy Repugnancy of a statute enacted by the state legislature with a central statute on a subject in the concurrent list may arise in any one or more of the following modes: First, there may be an inconsistency or conflict in the actual terms of competing statutes; second, though there is no direct conflict between a State and Central statute, the latter may be intended to be an exhaustive code in which event it occupies the whole field, excluding the operation of the state law on the subject in the concurrent list; and third, even in the absence of an actual conflict, repugnancy may arise when both the State and Central statutes seek to exercise power over the same subject matter; a. First test of repugnancy: direct conflict There is a direct inconsistency between several provisions of the RERA and WB-HIRA: 1. Under the RERA open car parking areas are covered by the definition of common areas in Section 2(n), indicating therefore that they cannot be sold; on the other hand in the State enactment, Section 2(i) allows the car parking area to be prescribed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... field 1. The entire subject of WB-HIRA is the same as RERA as a result of which the state law is repugnant to the central legislation; 2. The enforcement of the RERA would be completely obstructed in the State of West Bengal if WB-HIRA is given effect to; 3. Sections 88 and 89 of RERA cannot be construed in isolation. While Section 88 permits the existence of other laws in addition to RERA, this would not apply to other legislation which would completely derail, obstruct and assault the very existence of RERA; 4. In the decision in Pioneer Urban Land Infrastructure Ltd vs Union of India [(2019) 8 SCC 416], the provisions of three central enactments were construed harmoniously namely RERA, the Consumer Protection Act, 1986 and the IBC. Construing these enactments harmoniously, the Court held that the IBC and Consumer Protection Act as well as RERA provide concurrent remedies to allottees of flats which can be exercised at their option; and 5. Even assuming that Sections 88 and 89 of RERA are construed as an intent of the Parliament to not occupy the field exhaustively, they cannot be implied to allow the operation of State laws which completely eclipse and encroach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by state laws in the matter of sanctioning of plans and completion of construction projects. This is supported by references to the planning area (Section 2(zh)) and appropriate government (Section 2(g) of RERA); and c. The provisions of Sections 88 and 89 of RERA indicate that the central legislation is not a complete or exhaustive code on the subject matter legislated upon by Parliament. (II) Constitutional validity a. While enacting RERA in exercise of its legislative powers under Articles 245 and 246 of the Constitution, Parliament has enacted the legislation on the subjects assigned to it under Entries 6 and 7 of List III of the Seventh Schedule which pertain to transfer of property and contracts not relating to agricultural land. Since the enactment in the State of West Bengal follows the provisions of RERA broadly and substantially , the state enactment would also be covered by Entries 6 and 7 of List III of the Seventh Schedule; b. In the Counter Affidavit filed by the State of West Bengal it was contended that the State enactment falls under Entry 24 of List II, as it deals with the housing industry. This contention is not correct and is not being pressed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e operating when RERA was enacted as well as laws made after the enforcement of RERA; d. The expression laws for the time being in force has been deployed in Section 2(zr) and Section 18(2) of RERA as well as in Section 89. This supports the contention of the State of West Bengal; e. Parliament has chosen to repeal only the Maharashtra Act by way of Section 92 of RERA. Prior to WB-HIRA, in the State of West Bengal, the WB 1993 Act was operating. Parliament did not repeal this Act. The WB 1993 Act was repealed only by Section 86 of WB-HIRA to align the State Act with the RERA. The fact that Parliament repealed only the Maharashtra Act indicates that RERA does not evince any intention to shut out other state enactments. On the contrary the Parliamentary intent is to make RERA permissive and accommodative of state legislation; f. The fact that other states had not enacted a law like WB-HIRA does not take away the plenary legislative powers of the State of West Bengal; g. In exercise of the rule making power under Section 80(1) of the WB-HIRA, the State of West Bengal has framed rules on 5 June 2018. A dedicated web-site has been made operational. The regulatory authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 282 of the Constitution; f. Even if the Central Act provides certain additional features which are absent in the State Act, the State Act would be bound to treat those as being superimposed on the State law in view of Section 89 of RERA. Moreover, a Removal of Difficulties Order can be issued under Section 85 of WB-HIRA; and g. Article 256 of the Constitution does not enable the Union Executive to give directions to the State legislature. Federalism is a basic feature of the Constitution. WB-HIRA follows the principle of cooperative federalism. The Union government has no authority to direct the State legislature to repeal its law. These submissions will now fall for analysis. H Analysis H.1 Entry 24, List II West Bengal s housing industry defense 19 The interesting feature of the case with which we commence the discussion is that when it was enacted, WB-HIRA was intended to cover the field of housing industry under Entry 24 of List II. The Statement of Objects and Reasons to the WB-HIRA Bill notes that: 2. Since the housing comes under the periphery of industry , it is contemplated that the State Government should go for its own State Legislat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Entry 24 of State List is eroded only to the extent to which control was assumed by the Union pursuant to a declaration made by parliament under Entry 52 of Union List. In the absence thereof, under Entry 52 of Union List, the State Legislature will have power to legislate under Entry 24 of State List. That under Entry 52 of the Union List, it is required that an express declaration be made by the Parliament, an abstract declaration is not contemplated. In the event the Parliament passes a law containing a declaration specifying the industry and indicating the nature and extent of the Union control over the concerned industry, then to that limited extent the State's legislative power is curtailed. It is reiterated that even in the case of a declaration under Entry 52 by the Central Government, industry as a whole is not taken out of Entry 24 of the State List. 17. That, in furtherance of the above, it is further submitted that a perusal of RERA exhibits that there is no declaration even in the abstract that the Union intends to assume control over the real estate sector. (emphasis supplied) 22 As a matter of fact, it has also been urged that Entries 6 and 7 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that it was expedient in the public interest that the Union should take in its control the industries specified in the First Schedule which included the industry engaged in the manufacture or production of sugar. In Tika Ramji (supra), the argument was that the expression industries should be construed as not only including the process of manufacture or production but also activities antecedent, such as acquisition of raw-material and subsequent, such as the disposal of finished products. A Constitution Bench of this Court held that the expression industry in its wide sense would be capable of comprising three different aspects: first, raw materials which are an integral part of the industrial process; second, the process of manufacture and production; and third, distribution of the products of the industries. The Court held that the process of manufacture or production would be comprised in Entry 24 of List II except where the industry is a controlled industry when it would fall under Entry 52 of List I. The Constitution Bench rejected the contention that the expression industries in Entry 52 of List I was wide enough to encompass the power to legislate in respect of raw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilders/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 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. Entries 6 and 7 are extracted below: 6. Transfer of property other than agricultural land; registration of deeds and documents. 7. Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land. Now 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s enumerated in List I of the Seventh Schedule the Union List is entrusted to Parliament. Clause (1) of Article 246 which embodies this principle is prefaced with a non-obstante provision which gives it precedence over clauses (2) and (3). Article 246 (2) enunciates the principles governing the exercise of legislative power to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule, the Concurrent List. Clause (2) begins with a non-obstante provision which gives it precedence over Clause (3). Clause (2) embodies the principle that Parliament and (subject to clause (1)) the legislature of any State have the power to make laws with respect to any of the matters in List III. Clause 3 stipulates that the legislature of any State has the exclusive power to make laws for the State or any part of it with respect to any of the matters enumerated in List II , the State List. Some of the salient features of Article 246 need to be noticed. (i) An exclusive power has been entrusted to Parliament to legislate on matters enumerated in List I; (ii) The plenary power entrusted to Parliament to legislate with respect to a matter enumerated in List I i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to clause (2). Clause (1) also provides that in the event of 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 a provision of an existing law with respect to a matter enumerated in the Concurrent List, the law enacted by Parliament is to prevail whether it was enacted before or after the State law or, as the case may be, the existing law. Clause (1) of Article 254 is however made subject to clause (2) which envisages that if a State law on a matter enumerated in the Concurrent List contains a provision which is repugnant to an earlier law of Parliament or an existing law with respect to the subject matter, the law made by the legislature of the State will prevail in the State if it is has been reserved for the consideration of the President and has received such assent. Despite the grant of Presidential assent, the Parliament is not precluded from enacting any law with respect to the same matter in future including a law adding to, amending, varying or repealing the law made by the legislature of the State. 30 Some of the salient features of Article 254 may be noticed at this stage: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 The important thing to consider with reference to this provision is whether the legislation is in respect of the same matter . If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. (emphasis supplied) Dealing with the issue, the Court held that a State legislation whose subject matter is identical to a law enacted by the Parliament would be repugnant under Article 254(1): 11. It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another Legislature assumes to enter to any extent upon the same field . Dixon, J. elaborated this theme in Ex parte McLean [(1930) 43 CLR 472, 483]: When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes, and Section 109 applies. That this is so is settled, at least when the sanctions they impose are diverse. But the reason is that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject-matter and provide what the law upon it shall be. If it appeared that the Federal law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne; yet it is equally obvious that the two laws are repugnant, for to the extent to which a citizen is compelled to obey one of them, the other, though not actually disobeyed, is nullified . Significantly, after comparing the gamut of impugned provisions before it, in holding that no provision of the impugned Act and the Rules made by the UP legislature and its delegate stood invalidated by any provision contained in Act 65 of 1951 as amended in 1953 or 1955 and the Sugarcane Control Order 1955 issued under it, the Constitution Bench held: 31. In the instant case, there is no question of any inconsistency in the actual terms of the Acts enacted by Parliament and the impugned Act. The only questions that arise are whether Parliament and the State Legislature sought to exercise their powers over the same subject-matter or whether the laws enacted by Parliament were intended to be a complete exhaustive code or, in other words, expressly or impliedly evinced an intention to cover the whole field. It would be necessary, therefore, to compare the provisions of Act 65 of 1951 as amended by Act 26 of 1953, Act 10 of 1955 and the Sugar Control Order, 1955 issued thereunder with thos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to operate in respect of the same subject matter in the same field . Justice K Subba Rao noted that the unamended Motor Vehicles Act 1939 did not make any provision for the nationalization of transport services but the States introduced amendments to implement the scheme of nationalization of road transport. With a view to introduce a Union law throughout the country, Parliament enacted the Amendment Act by inserting Chapter IVA in the Motor Vehicles Act, 1939. This object, the Court ruled, would be frustrated if the argument that both the UP Act and the Amending Act should co-exist in respect of schemes to be framed after the Amendment Act, were accepted. Additionally, the learned judge also observed that the provisions of the scheme, the principles of compensation and the manner of its payment differed in the two Acts. 35 In State of Orissa vs M/s M A Tulloch [(1964) 4 SCR 461], the legislation in issue was the Orissa Mining Areas Development Fund Act, 1952 under which certain areas were constituted as mining areas and the State government was empowered to levy a fee at a percentage of the value of the mined ore at the pit s mouth. Entry 23 of the State List covers reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1973. Though the State legislation was subsequently repealed, it was urged that during the time that it was in force, it was repugnant to the provisions of the India Penal Code, the Prevention of Corruption Act and the Criminal Law (Amendment) Act, 1952. The State Act had the assent of the President. Hence by virtue of Article 254(2), it was urged that the aforementioned Central Acts stood repealed and could not revive even after the State Act was repealed. Justice S Murtaza Fazal Ali formulated the principles governing repugnancy in the following observations: 8 1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. 2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State Legislature while b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n derogation of, any other law for the time being in force, and nothing contained herein shall exempt any public man from any proceeding by way of investigation or otherwise which might, apart from this Act, be instituted against him. This amendment received the assent of the President on April 10, 1974 and was published in the Tamil Nadu Government Gazette Extraordinary dated April 16, 1974. We have already shown that although the State Act was passed as far back as December 30, 1973 it received the assent of the President on April 10, 1974, that is to say, on the same [ Ed. : But see paras 4 and 7 of this judgment and 1974 MLJ (Stat.) Mad. Acts p. 2 wherein it is stated that Act II of 1974 was assented to by the President on Dec. 30, 1973 and published in T. N. Govt. Gaz. Extra., Pt. IV, S. 2 at p. 5, dated Jan. 2, 1974] date as Act 16 of 1974. The Act was however brought into force on May 8, 1974 when the new Section 29 which had already replaced the old section and had become a part of the statute. Therefore, for all intents and purposes the State Act cannot be read in isolation, but has to be interpreted in conjunction with the express language contained in Section 29 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resident subsequently. Interpreting the provisions of the substituted Section 29, the Constitution Bench held: 37 This section has in unequivocable terms expressed the intention that the State Act which was undoubtedly the dominant legislation would only be in addition to and not in derogation of any other law for the time being in force which manifestly includes the Central Acts, namely, the Penal Code, 1860, the Corruption Act and the Criminal Law (Amendment) Act. Thus, the Legislature about a month before the main Act came into force clearly declared its intention that there would be no question of the State Act colliding with the Central Acts referred to above. The second part of Section 29 also provides that nothing contained in the State Act shall exempt any public man from being proceeded with by way of investigation or otherwise under a proceeding instituted against him under the Central Acts. It is, therefore, clear that in view of this clear intention of the legislature there can be no room for any argument that the State Act was in any way repugnant to the Central Acts. We have already pointed out from the decisions of the Federal Court and this Court that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament to make a law under Entry 33 of List III. There was therefore no question of a clash between the two laws and the question of repugnancy, the Court held, does not come into play . 38 In State of Kerala vs Mar Appraem Kuri Company Ltd. [(2012) 7 SCC 106], a Constitution Bench dealt with the question as to whether the Kerala Chitties Act, 1975 became repugnant to the Chit Funds Act, 1982 enacted by Parliament on the date when the Parliamentary legislation received the assent of the President or subsequently, when a notification was issued under Section 1(3) bringing the Central Act into force in the State of Kerala. On comparing the Central and State statutes in the course of the judgment, Chief Justice SH Kapadia, noticed various provisions of the State Act in conflict with the Central legislation. The High Court had also noticed several inconsistencies. The Court held that the Act of 1982 was enacted as a Central legislation to ensure uniformity in the provisions applicable to Chit Fund institutions throughout the country. There was thus an intent to occupy the entire field falling under Entry 7 of List III. A significant aspect of the Central legislation was Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as the State law is referable to the same subject-matter as the Parliamentary law to any extent, it must give way. One test of seeing whether the subject-matter of the Parliamentary law is encroached upon is to find out whether the Parliamentary statute has adopted a plan or scheme which will be hindered and/or obstructed by giving effect to the State law. It can then be said that the State law trenches upon the Parliamentary statute. Negatively put, where Parliamentary legislation does not purport to be exhaustive or unqualified, but itself permits or recognises other laws restricting or qualifying the general provisions made in it, there can be said to be no repugnancy. 51.8. A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject-matter. This need not be in the form of a direct conflict, where one says do and the other says don't . Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the State legislation or part the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancy: (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 is such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied 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 ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate government. In the case of Union Territories, the definition of the expression appropriate government in Section 2(g) is bifurcated into three categories: (i) A Union Territory without a legislature; (ii) The Union Territory of Puducherry; and (iii) The Union Territory of Delhi. 44 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 for the purpose of the discussion. 45 The statutory dictionary which is adopted in the provisions of Section 2 contains various definitions which expressly recognize the existence of State enactments regulating construction activities. The definition of the expression commencement certificate in Section 2(m) is as follows: (m) commencement certificate means the commencement certificate or the building permit or the construction permit, by whatever name called issued by the competent authority to allow or permit the promoter to begin development works on an immovable property, as per the sanctioned plan; The definition of the expression commencement certificate adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to time. The definition implicitly recognizes the existence of town and country planning legislation in the State governing planned development and the existence of development plans authorized and sanctioned under the terms of such legislation. 48 In a similar manner, the definition of the expression completion certificate in Section 2(q) recognizes that the real estate project has been developed according to the plan, layout plan and specifications duly approved by the competent authority as provided for in local laws. Section 2(q) is in the following terms: (q) completion certificate means the completion certificate, or such other certificate, by whatever name called, issued by the competent authority certifying that the real estate project has been developed according to the sanctioned plan, layout plan and specifications, as approved by the competent authority under the local laws; 49 The expression local authority is defined in Section 2(zc) as follows: (zc) local authority means the Municipal Corporation or Municipality or Panchayats or any other Local Body constituted under any law for the time being in force for providing municipal services or basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the construction project in accordance with the sanctioned plans and the grant of occupation permission to occupy the constructed areas. 53 All the definitions which we have adverted to 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, as we have seen earlier, 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. 54 The second aspect of RERA which deserves emphasis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llottees are specified in Section 19. Significantly, Section 31 envisages the filling of complaints with the authority or an adjudicating officer in the event that there has been a violation or contravention of the provisions of the Act or its rules and regulations by a promoter, allottee or real estate agent. The authority has wide ranging powers under Sections 38 and 40 to impose a penalty or interest for a contravention of the obligations cast upon promoters, allottees and real estate agents. 55 Besides the above provisions, 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 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. 56 Besides the establishment of the real estate regulatory authority, the RERA has, in Section 71 [15] , 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. Simply put, the submission of the State of West Bengal is four-fold: firstly, though there is a substantial overlap between the State and the Central enactments and both of them govern the same subject matter and field, there is no constitutional prohibition on the State legislature enacting legislation on a subject in the Concurrent List which is virtually identical to central legislation in the same list; secondly, Section 88 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were applied to certain non-banking financial institutions, including the respondent. The respondent issued a notice under Section 13(2) of the SARFAESI Act. In the course of the arbitration proceedings, an interim order was passed from which proceedings were carried in appeal under Section 37 of the Arbitration and Conciliation Act 1996, resulting in the dispute travelling to this Court. Sections 35 and 37 of the SARFAESI Act are in the following terms: 35. The provisions of this Act to override other laws.-The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law. *** 37. Application of other laws not barred. The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Companies Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992), the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) or any other law for the time being in force. 61 Justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mong other instruments. Section 32(1) was as follows: 32.Effect of the Act on other laws. ( 1) The provisions of this Act and of any rules or schemes made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law except the provisions of the Foreign Exchange Regulation Act, 1973 (46 of 1973) and the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976) for the time being in force or in the memorandum or articles of association of an industrial company or in any other instrument having effect by virtue of any law other than this Act. The RDDB Act which was a later enactment of 1993 contained Section 34 giving it overriding effect: 34.Act to have overriding effect. - (1) Save as provided under sub-section (2), the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. (2) The provisions of this Act or the rules made thereunder shall be in addition to, and not in derogation of, the Industrial Finance Corporation Act, 1948 (15 of 1948), the State Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dental thereto, though it is general as regards other matters such as recovery of debts. The RDDB Act is also a special law, which deals with the recovery of money due to banks or financial institutions, through a special procedure, though it may be general as regards other matters such as the reconstruction of sick companies which it does not even specifically deal with. Thus the purpose of the two laws is different. The Court noticed that Section 34(2) of the RDDB Act specifically provides that its provisions would be in addition to and not in derogation of the other laws mentioned in it, including SICA. The expression not in derogation was then construed in the following observations: 49. The term not in derogation clearly expresses the intention of Parliament not to detract from or abrogate the provisions of SICA in any way. This, in effect must mean that Parliament intended the proceedings under SICA for reconstruction of a sick company to go on and for that purpose further intended that all the other proceedings against the company and its properties should be stayed pending the process of reconstruction. While the term proceedings under Section 22 of SICA did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law for the time being in force, also makes it clear that the remedies under RERA to allottees were intended to be additional and not exclusive remedies. Also, it is important to remember that as the authorities under RERA were to be set up within one year from 1-5-2016, remedies before those authorities would come into effect only on and from 1-5-2017 making it clear that the provisions of the Code, which came into force on 1-12-2016, would apply in addition to RERA. (emphasis supplied) The Court noted the decision in KSL Industries (supra) in which it was held that notwithstanding the non-obstante clause contained in the RDDB Act which was later in time than the non-obstante clause in the SICA and the principle that the later Act would prevail over the earlier, this principle was departed from only because of the of the presence of a provision, like Section 88 of the RERA, which was contained in the RDDB Act which made it clear that the Act was meant to be in addition and not in derogation of other statutes. Distinguishing the decision, the Court observed: 27. In view of Section 34(2) of the Recovery Act, this Court held that despite the fact that the non obstante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment) Act, 1971 (W.B. Act 12 of 1972) which introduced Chapter II-B imposing a new ceiling on agricultural holdings of raiyats. That is the law for the time being in force, and no land is being acquired by the State under Section 14-L within the ceiling limits prescribed therein. 28. It will be noticed that the second proviso to Article 31-A(1) refers to the ceiling limit applicable to him , which evidently refers to the law in question and not earlier law, that is Section 6(1) of the West Bengal Estates Acquisition Act, 1953. It will be noticed that both Section 4(3) and Section 6(2) of the West Bengal Land Reforms Act, 1955 stood deleted by the West Bengal Land Reforms (Amendment) Act, 1971 (President's Act 3 of 1971) and thereafter by the West Bengal Land Reforms (Amendment) Act, 1972 with retrospective effect from February 12, 1971. (emphasis supplied) 65 In Thyssen Stahlunion GMBH vs Steel Authority of India [(1999) 9 SCC 334], a two judge Bench of this Court considered the expression for the time being in force in the context of an arbitration agreement and agreed with the view of the High Courts of Bombay and Madhya Pradesh, which had held that the express ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the arbitration clause could be entered into only after the new Act had come into force. When the agreement uses the expressions unless otherwise agreed and law in force it does give an option to the parties to agree that the new Act would apply to the pending arbitration proceedings. That agreement can be entered into even before the new Act comes into force and it cannot be said that agreement has to be entered into only after the coming into force of the new Act. (emphasis supplied) 66 The decision of a two judge Bench in Municipal Corporation of Delhi vs Prem Chand Gupta [(2000) 10 SCC 115], considered Regulation 4(1) of the Services Regulations of 1959 which commenced with the expression Unless otherwise provided in the Act or these regulations, the rules for the time being in force and applicable to government servants in the service of the Central Government shall, as far as may be, regulate the conditions of service of municipal officers and other municipal employees . The Court rejected the submission that the rules for the time being in force would be those which were in existence when the Services Regulations of 1959 were promulgated and not any later r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase is used. It is also evident that generally it denotes an indefinite period of time, meaning thereby, the position as existing at the time of application of the rules, maybe, amended or unamended. Therefore, to come to a conclusion as to whether it is for one time or for indefinite period of time, the context, purpose and the intention of the use of the phrase will have to be seen and examined. 69 Similarly, in Department of Customs vs Sharad Gandhi [(2020) 13 SCC 521], a two judge Bench of this Court considered a case where the respondent had been discharged of offences under Sections 132 and 175 of the Customs Act, 1962. The Additional Chief Metropolitan Magistrate allowed an application for discharge holding that there was a complete bar with regard to prosecution under the Customs Act, 1962, and that the Collector of Customs only had the power to confiscate the goods and impose a penalty for a breach of Section 3 of the Antiquities and Art Treasurers Act, 1972. Amongst other issues, the Bench had to interpret the meaning of Section 30 of the Antiquities and Art Treasurers Act, 1972, which reads as follows: 30. Application of other laws not barred. - The provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 30 was as noted is to provide for any other law which deal with antiquity to continue to have force and declare its enforceability even after passing of the Antiquities Act. In that view of the matter we are of the view that the words any other law for the time being in force must be construed as ejusdem generis. (emphasis supplied) 70 These decisions indicate that the expression any other law for the time being in force does not necessarily mean, such laws as were in existence when the statutory provision was enacted. To the contrary, it widely considered to means 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 color from the context in which it appears, and not devoid of it. 71 For instance, in National Insurance Company Limited vs Sinitha [(2012) 2 SCC 356], in the context of a policy of insurance, the expression for the time being in force was held to mean provisions then existing. The decision related to Sections 144 and 163A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being in force is used in Section 89 as well as in Section 2(zr) and Section 18(2). Section 2(zr), as noticed earlier, stipulates that 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 Section 2(zr) is not frozen in point of time as on the date of the enactment of RERA. Likewise, Section 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- -vis, provisions of other Acts. H.3.3 Knitting it together 73 From our 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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. As the decision in Innoventive Industries (supra) emphasizes, laws under this head are repugnant even if the rule of conduct prescribed by both the laws is identical. This principle constitutes the foundation of the rule of implied repeal. The present case is not one where WB-HIRA deals not with matters which form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament and to the constitutional principles which are embodied in Article 254. 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. For instance, Section 71 of the RERA specifically contemplates (in the proviso to sub-Section (1)) that a complaint in respect of matters covered by Sections 12, 14, 18 and 19 is pending in the adjudicating fora constituted by the Consumer Protection Act, 1986. The person who has moved the consumer forum may withdraw the complaint and file an application before the adjudicating officer constituted under the RERA. 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 note that both sets of statutes, namely the Consumer Protection Act(s) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 Section 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Real Estate Regulatory Authorities to be selected by rotation, and any other Central Government department as notified. (4) The Central Advisory Council shall also consist of not more than ten members to represent the interests of real estate industry, consumers, real estate agents, construction labourers, non-governmental organisations and academic and research bodies in the real estate sector. The functions of the Central Advisory Council are provided in Section 42 of the RERA, which reads as follows: 42. Functions of Central Advisory Council. (1) The functions of the Central Advisory Council shall be to advise and recommend the Central Government,- (a) on all matters concerning the implementation of this Act; (b) on major questions of policy; (c) towards protection of consumer interest; (d) to foster the growth and development of the real estate sector; (e) on any other matter as may be assigned to it by the Central Government. (2) The Central Government may specify the rules to give effect to the recommendations of the Central Advisory Council on matters as provided under sub-section (1). WB-HIRA on the other hand, provides for the constitution of a State Adviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral government, based on the recommendations of the Central Advisory Council, has been completely eroded in the provisions of WB-HIRA; (vi) While Section 70 of the RERA contains a provision for compounding of offences, but WB-HIRA does not contain any such provision; (vii) Section 71(1) of the RERA provides that the regulatory authority shall appoint adjudicating officers for the purpose of adjudging compensation under Sections 12, 14, 18 and 19. The adjudicating officer is required to be a person who is or has been a District Judge. WB-HIRA does not contain any provision for appointment of adjudicating officers for the purpose of adjudging compensation. Under Section 40(3) of WB-HIRA, this power is entrusted to the regulatory authority and not to a judicial person or body. The fact that an appeal against the orders of the regulatory authority lie to the Appellate Tribunal and thereafter to the High Court cannot gloss over the fact that the valuable safeguard of appointing judicial officers as adjudicating officers for determining compensation under the RERA has not been enacted in WB-HIRA; and (viii) Section 80(2) of the RERA provides that no Court inferior to a Metropo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislations are alike or different. To put it simply, a provision in one legislation in order to give effect to its dominant purpose may incidentally be on the same subject as covered by the provision of the other legislation, but such partial or incidental coverage of the same area in a different context and to achieve a different purpose does not attract the doctrine of repugnancy. In a nutshell, in order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject. (emphasis supplied) 80 Since we have already answered with the first requirement, the second remains. However, the State of West Bengal initially argued that WB-HIRA did not require presidential since it had been enacted under List II, but that argument has now been given up before this Court, as already noted above, and it is admitted that it comes under List III (the same as RERA). Further, it has also been clarified by us, rejecting their argument, that Sections 88 and 89 of the RERA did not implicitly permit the States to create their own legislation creating a parallel regime alongside the RERA which would have not required presidential assent. Hence, it is clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be specified. Evidently, this was not done. However, since we have already held WB-HIRA to be repugnant to RERA, this issue becomes moot. I Conclusion 82 Before the WB-HIRA, the State legislature had also enacted the WB 1993 Act. Upon receiving the assent of the President, the Act was published in the Calcutta Gazette, Extraordinary on 9 March 1994. Some of the salient provisions of the Act are detailed below: (i) Section 3 provides for registration of promoters who construct or intend to construct a building and for obtaining permission for construction; (ii) Section 4 provides for the validity of the certificate of registration and for cancellation; (iii) Section 5 provides for appeals; (iv) Section 6 provides for adjudication of disputes by an officer appointed by the State government for adjudication; (v) Section 7 provides that the promoter shall before taking any advance payment for deposit, which shall not be more than 40 per cent of the sale price, enter into a written agreement for sale which shall be registered; (vi) Section 8 restrains additions or alterations without the consent of the transferee and for rectification of defects; (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the above terms. 86 Pending application(s), if any, stand disposed of. [1] Sections 2, 20 to 39, 41 to 58, 71 to 78 and 81 to 92. [2] Sections 3 to 19, 40, 59 to 70, 79 to 80. [3] Section 92. Repeal: The Maharashtra Housing (Regulation and Development)Act, 2012 is hereby repealed. [4] Its Statement of Objects and Reasons noted As per clause (1) of article 254 of the Indian Constitution, if any provision of a law made by the legislature of a State is repugnant to any law made by the Parliament, the law made by the legislature of a State shall become void. Therefore the Government have decided to repeal the Kerala Real Estate (Regulation and Development) Act, 2015. [5] 86. Repeal and Savings. (1) The West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 is hereby repealed. [6] No. 18-HIV/3M-3/17 (PART-2) [7] Interchangeably referred to as State List [8] WP 2737 of 2017, decided on 6 December 2017 [9] 7. Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war. [10] 52. Industries, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State [14] 109. Inconsistency of laws.-When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. [15] 71. Power to adjudicate. (1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority shall appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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