Question

The constitutional validity of the West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) was challenged on the basis that both WB-HIRA and a Parliamentary enactment, namely, the Real Estate (Regulation and Development) Act, 2016 (RERA) are relatable to the legislative subjects contained in Entries 6 and 7 of List III (Concurrent List) of the Seventh Schedule of the Constitution of India. WB-HIRA has neither been reserved for nor has it received Presidential assent under Article 254(2) of the Constitution of India, which was necessary since it was going to occupy the same field as the RERA, a law which had been enacted by the Parliament. The State enactment contains certain provisions which are either: directly inconsistent with the corresponding provisions of the Central enactment; or a virtual replica of the Central enactment; and Parliament having legislated on a field covered by the Concurrent List, it is constitutionally impermissible for the State Legislature to enact a law over the same subject matter by setting up a parallel legislation. The analysis indicates repugnancy between WB-HIRA and RERA. Undoubtedly, as Article 254(1) postulates, the legislation enacted by the State legislature is void ‘to the extent of the repugnancy’. There is, not only a direct conflict of certain provisions between the RERA and WB-HIRA, but there is also a failure of the State legislature to incorporate statutory safeguards in WB-HIRA, which have been introduced in the RERA for protecting the interest of the purchasers of real estate. For repugnancy under Article 254 of the Constitution, there is a twin requirement to be fulfilled: firstly, there has to be a ‘repugnancy’ between a Central and State Act; and secondly, the Presidential assent has to be held as being non-existent. The test for determining such repugnancy is indeed to find out the dominant intention of both the legislations and whether such dominant intentions of both the legislations are alike or different. 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 order to attract the doctrine of repugnancy, both the legislations must be substantially on the same subject. Hence, WB-HIRA is repugnant to the RERA, and is hence unconstitutional.