1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No. 116 of 2019
Forum for People’s Collective Efforts (FPCE) & Anr. …Petitioners
Versus
The State of West Bengal & Anr. …Respondents
2
J U D G M E N T
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
H.1 Entry 24, List II – West Bengal’s ‘housing industry’ defense
H.2 The Constitutional Scheme of Article 254 and repugnancy
H.3 Repugnancy – RERA and WB-HIRA
3
H.3.1 Meaning of “is in addition to and not in derogation
of any other law”
H.3.2 Meaning of “law for the time being in force”
H.3.3 Knitting it together
H.4 Lack of Presidential Assent for WB-HIRA
I Conclusion
PART A
4
A The challenge
1 The constitutional validity of the West Bengal Housing Industry Regulation
Act, 2017 (“WB-HIRA”/the “State enactment”) is challenged in a petition under
Article 32. The basis of the challenge is that:
(i) Both WB-HIRA and a Parliamentary enactment – the Real Estate (Regulation
and Development) Act, 2016 (“RERA”/the “Central enactment”) are relatable
to the legislative subjects contained in Entries 6 and 7 of the Concurrent List
(interchangeably referred to as ‘List III’) of the Seventh Schedule to the
Constitution;
(ii) WB-HIRA has neither been reserved for nor has it received Presidential
assent under Article 254(2);
(iii) The State enactment contains certain provisions which are either:
a. Directly inconsistent with the corresponding provisions of the Central
enactment; or
b. A virtual replica of the Central enactment; and
(iv) 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.
Nuances apart, this, in substance, is the essence of the challenge.
PART B
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B Legislative history
2 Before Parliament enacted the RERA in 2016, the state legislatures had
enacted several laws to regulate the relationship between promoters and purchasers
of real estate. Among them was the West Bengal (Regulation of Promotion of
Construction and Transfer by Promoters) Act, 1993 (the “WB 1993 Act”). This
legislation of the State of West Bengal was reserved for and received Presidential
assent, 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 20161
, while the rest of its provisions were
enforced on 19 April 20172
. The Maharashtra Act was specifically repealed by
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.
PART C
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RERA3
, while the Kerala Act was repealed by the State Legislative Assembly
through the Kerala Real Estate (Regulation and Development) Repeal Act, 20174
.
4 In the State of West Bengal, draft rules under the RERA were framed on 18
August 2016 but no further progress was made in that regard. On 16 August 2017,
the motion for passing the WB-HIRA Bill was adopted in the State Legislative
Assembly. The State enactment received the assent of the Governor of West Bengal
on 17 October 2017. Inter alia, the WB-HIRA repealed the WB 1993 Act5
. The
remaining provisions of WB-HIRA were enforced by a notification6 dated 29 March
2018, issued by the Governor of the State of West Bengal in exercise of the power
conferred by sub-section (3) of section 1 of WB-HIRA. Thereafter on 8 June 2018,
the State of West Bengal framed rules under WB-HIRA.
C RERA - the legislative process
5 The Standing Committee on Urban Development (2012-2013) of the Fifteenth
Lok Sabha submitted its Thirtieth Report on the Real Estate (Regulation and
Development) Bill, 2013 (the “RERA Bill 2013”) pertaining to the Ministry of Housing
and Urban Poverty alleviation. While adopting the draft report on 12 February 2014,
the Committee emphasized the need for enacting a comprehensive legislation to
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)
PART C
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regulate the real estate sector. The backdrop is succinctly summarized in the
prefatory paragraphs of the report, which are set out below:
“Over the past few decades, the demand for housing has
increased manifold. In spite of Government’s efforts through
various schemes, it has not been able to cope up with the
increasing demands. Taking advantage of the situation, the
private players have taken over the real estate sector with no
concern for the consumers. Though availability of loans both
through private and public banks has become easier, the high
rate of interest and the higher EMI has posed additional
financial burden on the people with the largely unregulated
Real Estate and Housing Sector. Consequently the
consumers are unable to procure complete information or
enforce accountability against builders and developers in the
absence of an effective mechanism in place. At this juncture
the need for the Real Estate (Regulation and Development)
Bill is felt badly for establishing an oversight mechanism to
enforce accountability of the Real Estate Sector and providing
adjudication machinery for speedy dispute redressal.
1.2. The real estate sector plays a catalytic role in fulfilling
the need and demand for housing and infrastructure in the
country. While this sector has grown significantly in recent
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
PART C
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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
press communique, the Select Committee invited suggestions and views from the
members of the public, receiving a total of 273 suggestions. It further visited Kolkata,
Bengaluru, Mumbai and Shimla to interact with stakeholders in various parts of the
country. While discussing diverse issues which were presented before it by
stakeholders, the Select Committee noted the grievances of consumers, many of
whom were duped by unscrupulous promoters and were made to run from pillar to
post to secure possession of the apartments which were agreed to be sold or a
refund of their moneys. The plight of the consumers is highlighted in the
following passage in the report of the Select Committee, which was presented
before the Rajya Sabha on 30 July 2015:
“(i) Consumers and Resident Welfare Association
The Committee came across many instances of standalone
projects where the consumers were fleeced by the
unscrupulous promoters. These consumer invested their hard
earned money for their dream houses which turned out to be
a nightmare for them while they run from pillar to post either
to get the possession of their apartment or refund of their
money back and fighting cases in the courts. The consumers
were unanimous in their submission that they have no means
to know about the real status of the project for example
whether all the approvals have been obtained, who is holding
the title of the land, what is the financing pattern of the project
and what has been the past record of the builder, etc As a
result, they invested their money without having any
information about the project. In many cases, they were not
given what was promised to them and in almost all the cases
PART C
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the project was delayed. Submitting their views on the Bill,
they highlighted the following points:-
a) There should not be any deemed provision for the registration
of project by promoter. The projects should be registered only
after thorough scrutiny.
b) Any housing project should commence only after obtaining al
the approvals by the promoter and they should have access
to all the documents before entering into agreement of sale.
c) The advance cost of apartment, plot or building before
entering into written agreement should not be more than one
lakh or 5 % of the cost of apartment whichever is less (Clause
13(1).
d) There should be model “agreement for sale” which should be
appended to the 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 increased
from 2 years to 5 years.
k) In case any project is abandoned by a promoter the way out
suggested in clause 16 is inappropriate. In such an
eventuality, the promoter be subjected to heavy penalty and
compelled to carry the project through rather than considering
the suggested options which were not practicable.
l) In case of default, allottees are charged penalty at much
higher rate of interest compared to default on the part of the
promoter.
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m) There should not be any exemption to any project from the
provisions of this Bill in respect of area and number of flats.
n) Timely formation of the association of allottees and handing
over of the common areas to the association for management
at the earliest.
o) Parking areas accommodation for domestic help to be dealt
as per the Supreme Court Judgment.”
7 In bringing about a balance between the need to protect consumers with the
necessity of encouraging investment in the real estate sector, the Committee
observed that while it shared the concerns of consumers, many of whom have to
suffer because of 'fly by night operators', it was cognizant of the position that the real
estate sector was largely being developed through private promoters, all of whom
could not be tarred with the same brush. The Select Committee observed that there
was a need to ensure that a renewed impetus is provided for the growth of the real
estate sector to fulfill the government’s objective of ensuring housing for all, while at
the same time protecting the interest of consumers. The Committee struck a
legislative balance between these objects, seeking to “stand by the good consumer
and the good promoter”.
8 Following the report of the Select Committee, the Real Estate (Regulation and
Development) Bill, 2016 (the “RERA Bill 2016”) was introduced. The Statement of
Objects and Reasons accompanying the RERA Bill 2016 emphasizes the basic
rationale for the enactment of the legislation:
“STATEMENT OF OBJECTS AND REASONS
The real estate sector plays a catalytic role in fulfilling the
need and demand for housing and infrastructure in the
country. While this sector has grown significantly in recent
PART C
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years, it has been largely unregulated, with 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 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 delays as also the current high
transactions costs. It attempts to balance the interests of
consumers and promoters by imposing certain
responsibilities on both. It seeks to establish symmetry
of information between the promoter and purchaser,
transparency of contractual conditions set minimum
standards of accountability and a fast-track dispute
resolution mechanism. The proposed Bill will induct
professionalism and standardization in the sector, thus
paving the way for accelerated growth and investments
in the long run.”
(emphasis supplied)
9 The legislative background antecedent to and ultimately culminating in the
enactment of the RERA indicates: firstly, the circumstances which gave rise to the
need for comprehensive Parliamentary legislation on the subject; secondly, the
PART C
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specific inadequacies in the development of the real estate sector which were a
source of exploitation of purchasers; thirdly, the legislative policy underlying the
enactment of the law; and fourthly, the context in which specific statutory provisions
have been adopted as the instrument for bringing about orderly development and
growth of the real estate sector. The legislative background demonstrates the
concern of the policy makers that the unregulated growth of the real estate sector,
accompanied by a lack of professionalism and standardization, had resulted in
serious hardship to consumers. The real estate sector is of crucial significance to
meet the demand for housing in the country. While remedies were provided to
consumers by the Consumer Protection Act, 1986, this recourse was “curative” and
did not assuage all the concerns of buyers on the one hand and promoters on the
other hand in the sector. There existed an asymmetry of information between
promoters and buyers of real estate. Buyers lacked adequate information about the
title to the land, the nature of the development, pricing of projects and the progress
of construction. A lack of standardization and uniformity was a key factor restraining
the balanced growth and development of the real estate sector. The Central
enactment sought to remedy the drawbacks of the existing regulatory framework in
the country by establishing a real estate regulatory authority to ensure that
transactions between promoters and buyers are governed by the twin norms of
efficiency and transparency. It sought to bring about accountability towards
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:
PART C
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(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 thereto.”
10 As such, the legislative background underlying the enactment of the RERA
demonstrates a clear emphasis on:
(i) Standardization;
(ii) Uniformity; and
(iii) Symmetry of information.
These elements provide the justification for enacting a comprehensive legislation
which is uniformly applicable to all parts of the country.
PART D
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D Salient features – RERA
11 Before we proceed further, some of the salient features of the RERA need to
be noticed:
(i) The expression ‘real estate project’ is defined in Section 2(zn):
“(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
apartments, as the case may be, for the purpose of
selling all or some of the said apartments or plots or
building, as the case may be, and includes the
common areas, the development works, all
improvements and structures thereon, and all
easement, rights and appurtenances belonging
thereto;”
(ii) The expression ‘apartment’, which is adverted to in the definition of real estate
project under Section 2(zn), is defined in Section 2(e) as follows:
“(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 residence, office, shop,
showroom or godown or for carrying on any business,
occupation, profession or trade, or for any other type
of use ancillary to the purpose specified;”
(iii) The provisions of the RERA are comprised in ten Chapters. Broadly, the
division is as follows:
Chapter I Preliminary
Chapter II Registration of Real Estate
Projects and Registration of
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Real Estate Agents
Chapter III Functions and Duties of
Promoters
Chapter IV Rights and Duties of allottees
Chapter V The Real Estate Regulatory
Authority
Chapter 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;
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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) RERA also provides the functions and duties of promoters, in the following
terms:
a. Disclosure of all relevant information relating to the project;
b. Adherence to approved plans and project specifications as approved by
competent authorities;
c. Obligations regarding veracity of advertisements or prospectus;
d. Transfer of title by a registered deed of conveyance;
e. Refund of monies in case of default;
f. Prohibition on accepting more than ten per cent of the cost as advance
without entering into a written agreement for sale;
g. Rectification of structural defects for a specified period from the date of
possession;
h. Formation of an association, society or cooperative society of allottees and
the execution of a registered deed of conveyance;
(vi) It also provides the rights and obligations of allotees, which are:
a. Obtaining information about sanctioned plans, lay outs and specifications
approved by the competent authority;
b. The date wise time schedule for completion of the project including
provisions for essential amenities;
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c. Claiming possession, including possession of the common areas by the
association;
d. Refund in the event for default;
e. Duty to make payments of consideration for the sale of the apartment, plot
or building together with interest as prescribed;
f. Duty to take possession;
(vii) Establishment of a real estate authority by the appropriate government (the
State government in a State with corresponding provisions for Union
territories), with the following details provided:
a. Composition of the authority;
b. Qualifications for appointment to the authority;
c. Removal of members and conditions of service;
d. Functions of the authority include the growth and promotion of the realestate sector;
(viii) RERA also provides for the establishment of a Central Advisory Council to
advise and make recommendations to the Central government on all matters
concerning the implementation of RERA, on major questions on policy,
towards protection of consumer interest, to foster the growth and
development of real-estate sector and on any other matter as assigned by the
Central government.
(ix) It also establishes the Real-Estate Appellate Tribunal, provides the following
details about the institution:
a. Establishment;
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b. Settlement of disputes and appeals;
c. Composition;
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 a mechanism for
PART E
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speedy dispute redressal and for matters connected therewith
or incidental thereto.”
Its preamble is in the following terms:
“Whereas it is expedient 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 a
mechanism for speedy dispute redressal and for matters
connected therewith or incidental thereto.”
The above excerpts indicate that the State enactment purports to set up a regulatory
authority for the housing industry. Save and except for this emphasis on the housing
industry, the broad purpose of the State enactment coincides with RERA. Before we
set out a comparative table of the corresponding provisions of WB-HIRA and RERA,
it is necessary to note at the outset that there is, in most of the substantive
provisions, a complete overlap of the provisions contained in the two statutes.
Evidently, the Bill for the introduction of WB-HIRA in the State legislature was
prepared on the basis of the RERA as a drafting model. Hence, during the course of
this judgment, the provisions of the State enactment which are at variance to those
in the Central enactment will be delineated separately. However, at this stage, a
sampling of some of the crucial provisions would indicate that they are identical in
their entirety, in the State of West Bengal’s WB-HIRA and RERA which has been
enacted by Parliament. This identical nature is evident from the tabulated statement
set out below, in which the identical provision is placed in the middle (as extracted
PART E
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from the RERA), while it is flanked with its relevant Section number and title from
RERA and WB-HIRA on both sides:
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
2(b) – Definition
of “advertisement”
(b) "advertisement" means any document
described or issued as advertisement through any
medium and includes any notice, circular or other
documents or publicity in any form, informing
persons about a real estate project, or offering for
sale of a plot, building or apartment or inviting
persons to purchase in any manner such 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 residence,
office, shop, showroom or godown or for carrying
on any business, occupation, profession or trade,
or for any other type of use ancillary to the purpose
specified;
2(d) – Definition of
“apartment”
2(j) – Definition of (j) "building" includes any structure or erection or 2(h) – Definition of
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Section and Title
of RERA
Provision Section and Title
of WB-HIRA
“building” part of a structure or erection which is intended to
be used for residential, commercial or for the
purpose of any business, occupation, profession or
trade, or for any other related purposes;
“building”
2(k) – Definition
of “carpet area”
(k) "carpet area" means the net usable floor area
of an apartment, excluding the area covered by the
external walls, areas under services shafts,
exclusive balcony or verandah area and exclusive
open terrace area, but includes the area covered
by the internal partition walls of the apartment.
Explanation.— For the purpose of this clause, the
expression "exclusive balcony or verandah area"
means the area of the balcony or verandah, as the
case may be, which is appurtenant to the net
usable floor area of an apartment, meant for the
exclusive use of the allottee; and "exclusive open
terrace area" means the area of open terrace
which is appurtenant to the net usable floor area of
an apartment, meant for the exclusive use of the
allottee;
2(j) – Definition of
“carpet area”
2(n) – Definition
of “common
areas”
(n) "common areas" mean—
(i) the entire land for the real estate project or
where the project is developed in phases and
registration under this Act is sought for a phase,
the entire land for that phase;
(ii) the stair cases, lifts, staircase and lift lobbies, fir
escapes, and common entrances and exits of
buildings;
(iii) the common basements, terraces, parks, play
areas, open parking areas and common storage
spaces;
(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
2(m) – Definition of
“common areas”
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Section and Title
of RERA
Provision Section and Title
of WB-HIRA
personnel;
(v) installations of central services such as
electricity, gas, water and sanitation, airconditioning 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 apartments, or converts an existing
building or a part thereof into apartments, for the
purpose of selling all or some of the apartments to
other persons and includes his assignees; or
(ii) a person who develops land into a project,
whether or not the person also constructs
structures on any of the plots, for the purpose of
selling to other persons all or some of the plots in
the said project, whether with or without structures
thereon; or
(iii) any development authority or any other public
body in respect of allottees of—
(a) buildings or apartments, as the case may be,
constructed by such authority or body on lands
owned by them or placed at their disposal by the
Government; or
(b) plots owned by such authority or body or
2(zj) – Definition of
“promoter”
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placed at their disposal by the Government, for the
purpose of selling all or some of the apartments or
plots; or
(iv) an apex State level co-operative housing
finance society and a primary co-operative housing
society which constructs apartments or buildings
for its Members or in respect of the allottees of
such apartments or buildings; or
(v) any other person who acts himself as a builder,
coloniser, contractor, developer, estate developer
or by any other name or claims to be acting as the
holder of a power of attorney from the owner of the
land on which the building or apartment is
constructed or plot is developed for sale; or
(vi) such other person who constructs any building
or apartment for sale to the general public.
Explanation.—For the purposes of this clause,
where the person who constructs or converts a
building into apartments or develops a plot for sale
and the persons who sells apartments or plots are
different persons, both of them shall be deemed to
be the promoters and shall be jointly liable as such
for the functions and responsibilities specified,
under this Act or the rules and regulations made
thereunder;
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
2(zl) – Definition of
“real estate agent”
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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(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 may be, for the
purpose of selling all or some of the said
apartments or plots or building, as the case may
be, and includes the common areas, the
development works, all improvements and
structures thereon, and all easement, rights and
appurtenances belonging thereto;
2(zm) – Definition
of “real estate
project”
3 – Prior
registration of real
estate project with
Real Estate
Regulatory
Authority
(1) No promoter shall advertise, market, book, sell
or offer for sale, or invite persons to purchase in
any manner any plot, apartment or building, as the
case may be, in any real estate project or part of it,
in any planning area, without registering the real
estate project with the Real Estate Regulatory
Authority established under this Act:
Provided that projects that are ongoing on the date
of commencement of this Act and for which the
completion certificate has not been issued, the
promoter shall make an application to the Authority
for registration of the said project within a period of
three months from the date of commencement of
this Act:
Provided further that if the Authority thinks
necessary, in the interest of allottees, for projects
which are developed beyond the planning area but
with the requisite permission of the local authority,
it may, by order, direct the promoter of such project
to register with the Authority, and the provisions of
this Act or the rules and regulations made
thereunder, shall apply to such projects from that
3 – Prior
registration of real
estate project with
Real Estate
Regulatory
Authority
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stage of registration.
(2) Notwithstanding anything contained in subsection (1), no registration of the real estate project
shall be required—
(a) where the area of land proposed to be
developed does not exceed five hundred square
meters or the number of apartments proposed to
be developed does not exceed eight inclusive of all
phases: Provided that, if the appropriate
Government considers it necessary, it may, reduce
the threshold below five hundred square meters or
eight apartments, as the case may be, inclusive of
all phases, for exemption from registration under
this Act;
(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 redevelopment 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
4 – Application for
registration of real
estate projects
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the regulations made by the Authority.
(2) The promoter shall enclose the following
documents along with the application referred to in
sub-section (1), namely:—
(a) a brief details of his enterprise including its
name, registered address, type of enterprise
(proprietorship, societies, partnership, companies,
competent authority), and the particulars of
registration, and the names and photographs of
the promoter;
(b) a brief detail of the projects launched by him, in
the past five years, whether already completed or
being developed, as the case may be, including
the current status of the said projects, any delay in
its completion, details of cases pending, details of
type of land and payments pending;
(c) an authenticated copy of the approvals and
commencement certificate from the competent
authority obtained in accordance with the laws as
may be applicable for the real estate project
mentioned in the application, and where the project
is proposed to be developed in phases, an
authenticated copy of the approvals and
commencement certificate from the competent
authority for each of such phases;
(d) the sanctioned plan, layout plan and
specifications of the proposed project or the phase
thereof, and the whole project as sanctioned by the
competent authority;
(e) the plan of development works to be executed
in the proposed project and the proposed facilities
to be provided thereof including fire fighting
facilities, drinking water facilities, emergency
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evacuation services, use of renewable energy;
(f) the location details of the project, with clear
demarcation of land dedicated for the project along
with its boundaries including the latitude and
longitude of the end points of the project;
(g) proforma of the allotment letter, agreement for
sale, and the conveyance deed proposed to be
signed with the allottees;
(h) the number, type and the carpet area of
apartments for sale in the project along with the
area of the 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 land including any rights, title, interest or
name of any party in or over such land along with
details;
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(C) the time period within which he undertakes to
complete the project or phase thereof, as the case
may be;
(D) that seventy per cent. of the amounts realised
for the real estate project from the allottees, from
time to time, shall be deposited in a separate
account to be maintained in a scheduled bank to
cover the cost of construction and the land cost
and shall be used only for that purpose:
Provided that the promoter shall withdraw the
amounts from the separate account, to cover the
cost of the project, in proportion to the percentage
of completion of the project:
Provided further that the amounts from the
separate account shall be withdrawn by the
promoter after it is certified by an engineer, an
architect and a chartered accountant in practice
that the withdrawal is in proportion to the
percentage of completion of the project:
Provided also that the promoter shall get his
accounts audited within six months after the end of
every financial year by a chartered accountant in
practice, and shall produce a statement of
accounts duly certified and signed by such
chartered accountant and it shall be verified during
the audit that the amounts collected for a particular
project have been utilised for the project and the
withdrawal has been in compliance with the
proportion to the percentage of completion of the
project.
Explanation.— For the purpose of this clause, the
term "schedule bank" means a bank included in
the Second Schduled to the Reserve Bank of India
Act, 1934;
(E) that he shall take all the pending approvals on
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time, from the competent authorities;
(F) that he has furnished such other documents as
may be prescribed by the rules or regulations
made under this Act; and
(m) such other information and documents as may
be prescribed.
(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.
(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.
(2) If the Authority fails to grant the registration or
reject the application, as the case may be, as
provided under sub-section (1), the project shall be
deemed to have been registered, and the Authority
shall within a period of seven days of the expiry of
5 – Grant of
registration
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the said period of thirty days specified under subsection (1), provide a registration number and a
Login Id and password to the promoter for
accessing the website of the Authority and to
create his web page and to fill therein the details of
the proposed project.
(3) The registration granted under this section shall
be valid for a period declared by the promoter
under sub-clause (C) of clause (1) of sub-section
(2) of section 4 for completion of the project or
phase thereof, as the case may be
6 – 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 regulations made by the Authority:
Provided that the Authority may in reasonable
circumstances, without default on the part of the
promoter, based on the facts of each case, and for
reasons to be recorded in writing, extend the
registration granted to a project for such time as it
considers necessary, which shall, in aggregate, not
exceed a period of one year:
Provided further that no application for extension of
registration shall be rejected unless the applicant
has been given an opportunity of being heard in
the matter.
Explanation.— For the purpose of this section, the
expression "force majeure" shall mean a case of
war, flood, drought, fire, cyclone, earthquake or
6 – Extension of
registration
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any other calamity caused by nature affecting the
regular development of the real estate project
7 – Revocation of
registration
(1) The Authority may, on receipt of a complaint or
suo motu in this behalf or on the recommendation
of the competent authority, revoke the registration
granted under section 5, after being satisfied
that—
(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;
(ii) represents that the promoter has approval or
affiliation which such promoter does not have;
(iii) makes a false or misleading representation
concerning the services;
(B) the promoter permits the publication of any
advertisement or prospectus whether in any
newspaper or otherwise of services that are not
7 – Revocation of
the registration
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intended to be offered;
(C) the promoter indulges in any fraudulent
practices.
(2) The registration granted to the promoter under
section 5 shall not be revoked unless the Authority
has given to the promoter not less than thirty days
notice, in writing, stating the grounds on which it is
proposed to revoke the registraton, and has
considered any cause shown by the promoter
within the period of that notice against the
proposed revocation.
(3) The Authority may, instead of revoking the
registration under sub-section (1), permit it to
remain in force subject to such further terms and
conditions as it thinks fit to impose in the interest of
the allottees, and any such terms and conditions
so imposed shall be binding upon the promoter.
(4) The Authority, upon the revocation of the
registration,—
(a) shall debar the promoter from accessing its
website in relation to that project and specify his
name in the list of defaulters and display his
photograph on its website and also inform the
other Real Estate Regulatory Authority in other
States and Union territories about such revocation
or registration;
(b) shall facilitate the remaining development
works to be carried out in accordance with the
provisions of section 8;
(c) shall direct the bank holding the project back
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account, specified under subclause (D) of clause
(I) of sub-section (2) of section 4, to freeze the
account, and thereafter take such further
necessary actions, including consequent defreezing of the said account, towards facilitating
the remaining development 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:
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
registration of a project under this Act, the
association of allottees shall have the first right of
refusal for carrying out of the remaining
development works.
8 – Obligation of
Authority
consequent upon
lapse of or on
revocation of
registration
9 – Registration
of real estate
agents
(1) No real estate agent shall facilitate the sale or
purchase of or act on behalf of any person to
facilitate the sale or purchase of any plot,
apartment or building, as the case may be, in a
real estate project or part of it, being the part of the
real estate project registered under section 3,
9 – Registration to
real estate agents
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being sold by the promoter in any planning area,
without obtaining registration under this section.
(2) Every real estate agent shall make an
application to the Authority for registration in such
form, manner, within such time and accompanied
by such fee and documents as may be prescribed.
(3) The Authority shall, within such period, in such
manner and upon satisfying itself of the fulfillment
of such conditions, as may be prescribed—
(a) grant a single registration to the real estate
agent for the entire State of Union territory, as the
case may be;
(b) reject the application for reasons to be
recorded in writing, if such application does not
conform to the provisions of the 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.
(4) Whereon the completion of the period specified
under sub-section (3), if the applicant does not
receive any communication about the deficiencies
in his application or the rejection of his application,
he shall be deemed to have been registered.
(5) Every real estate agent who is registered as
per the provisions of this Act or the rules and
regulations made thereunder, shall be granted a
registration number by the Authority, which shall
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be quoted by the real estate agent in every sale
facilitated by him under this Act.
(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 any plot,
apartment or building, as the case may be, in a
real estate project or part of it, being sold by the
promoter in any planning area, which is not
registered with the Authority;
(b) maintain and preserve such books of account,
records and documents as may prescribed;
(c) not involve himself in any unfair trade practices,
10 – Functions of
real estate agents
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namely:—
(i) the practice of making any statement, whether
orally or in writing or by visible representation
which—
(A) falsely represents that the services are of a
particular standard or grade;
(B) represents that the promoter or himself has
approval or affiliation which such promoter or
himself does not have;
(C) makes a false or misleading representation
concerning the services;
(ii) permitting the publication of any advertisement
whether in any newspaper or otherwise of services
that are not intended to be offered.
(d) facilitate the possession of all the information
and documents, as the allottee, is entitled to, at the
time of booking of any plot, apartment or building,
as the case may be;
(e) discharge such other functions as may be
prescribed.
11 – Function and
duties of promoter
(1) The promoter shall, upon receiving his Login Id
and password under clause (a) of sub-section (1)
or under sub-section (2) of section 5, as the case
may be, create his web page on the website of the
Authority and enter all details of the proposed
project as provided under sub-section (2) of
section 4, in all the fields as provided, for public
viewing, including—
(a) details of the registration granted by the
Authority;
(b) quarterly up-to-date the list of number and
types of apartments or plots, as the case may be,
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duties of promoter
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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
information, namely:—
(a) sanctioned plans, layout plans, along with
specifications, approved by the competent
authority, by display at the site or such other place
as may be specified by the regulations made by
the Authority;
(b) the stage wise time schedule of completion of
the project, including the provisions for civic
infrastructure like water, sanitation and electricity.
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(4) The promoter shall—
(a) be responsible for all obligations,
responsibilties and functions under the provisions
of this Act or the rules and regulations made
thereunder or to the allottees as per the agreement
for sale, or to the association of allottees, as the
case may be, till the conveyance of all the
apartments, plots or buildings, as the case may be,
to the allottees, or the common areas to the
association of allottees or the competent authority,
as the case may be:
Provided that the responsibility of the promoter,
with respect to the structural defect or any other
defect for such period as is referred to in subsection (3) of section 14, shall continue even after
the conveyance deed of all the apartments, plots
or buildings, as the case may be, to the allottees
are executed.
(b) be responsible to obtain the completion
certificate or the occupancy certificate, or both, as
applicable, from the relevant competent authority
as per local laws or other laws for the time being in
force and to make it available to the allottees
individually or to the association of allottees, as the
case may be;
(c) be responsible to obtain the lease certificate,
where the real estate project is developed on a
leasehold land, specifying the period of lease, and
certifying that all dues and charges in regard to the
leasehold land has been paid, and to make the
lease certificate available to the association of
allottees;
(d) be responsible for providing and maintaining
the essential services, on reasonable charges, till
the taking over of the maintenance of the project
by the association of the allottees;
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(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 collected from the allottees, for
the payment of outgoings (including land cost,
ground rent, municipal or other local taxes,
charges for water or electricity, maintenance
charges, including mortgage loan and interest on
mortgages or other encumbrances and such other
liabilities payable to competent authorities, banks
and financial institutions, which are related to the
project):
Provided that where any promoter fails to pay all or
any of the outgoings collected by him from the
allottees or any liability, mortgage loan and interest
thereon before transferring the real estate project
to such allottees, or the association of the
allottees, as the case may be, the promoter shall
continue to be liable, even after the transfer of the
property, to pay such outgoings and penal
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charges, if any, to the authority or person to whom
they are payable and be liable for the cost of any
legal proceedings which may be taken therefor by
such authority or person;
(h) after he executes an agreement for sale for any
apartment, plot or building, as the case may be,
not mortgage or create a charge on such
apartment, plot or building, as the case may be,
and if any such mortgage or charge is made or
created then notwithstanding anything contained in
any other law for the time being in force, it shall not
affect the right and interest of the allottee who has
taken or agreed to take such apartment, plot or
building, as the case may be;
(5) The promoter may cancel the allotment only in
terms of the agreement for sale: Provided that the
allottee may approach the Authority for relief, if he
is aggrieved by such cancellation and such
cancellation is not in accordance with the terms of
the agreement for sale, unilateral and without any
sufficient cause. (6) The promoter shall prepare
and maintain all such other details as may be
specified, from time to time, by regulations made
by the Authority.
12 – Obligations
of promoter
regarding veracity
of the
advertisement or
prospectus
Where any person makes an advance or a deposit
on the basis of the information contained in the
notice advertisement or prospectus, or on the
basis of any model apartment, plot or building, as
the 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:
Provided that if the person affected by such
incorrect, false statement contained in the notice,
12 – Obligations of
promoter regarding
veracity of the
advertisement or
prospectus
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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 time
being in force.
(2) The agreement for sale referred to in subsection (1) shall be in such form as may be
prescribed and shall specify the particulars of
development of the project including the
construction of building and apartments, along with
specifications and internal development works and
external development works, the dates and the
manner by which payments towards the cost of the
apartment, plot or building, as the case may be,
are to be made by the allottees and the date on
which the possession of the apartment, plot or
building is to be handed over, the rates of interest
payable by the promoter to the allottee and the
allottee to the promoter in case of default, and
such other particulars, as may be prescribed.
13 – No deposit or
advance to be
taken by promoter
without first
entering into
agreement for sale
14 – Adherence
to sanctioned
plans and project
specifications by
the promoter
(1) The proposed project shall be developed and
completed by the promoter in accordance with the
sanctioned plans, layout plans and specifications
as approved by the competent authorities.
14 – Adherence to
sanctioned plans
and project
specifications by
the promoter
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(2) Notwithstanding anything contained in any law,
contract or agreement, after the sanctioned plans,
layout plans and specifications and the nature of
the fixtures, fittings, amenities and common areas,
of the apartment, plot or building, as the case may
be, as approved by the competent authority, are
disclosed or furnished to the person who agree to
take one or more of the said apartment, plot or
building, as the case may be, the promoter shall
not make—
(i) any additions and alterations in the sanctioned
plans, layout plans and specifications and the
nature of fixtures, fittings and amenities described
therein in respect of the apartment, plot or building,
as the case may be, which are agreed to be taken,
without the previous consent of that person:
Provided that the promoter may make such minor
additions or alterations as may be required by the
allottee, or such minor changes or alterations as
may be necessary due to architectural and
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
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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, the
allottees, irrespective of the number of apartments
or plots, as the case may be, booked by him or
booked in the name of his family, or in the case of
other persons such as companies or firms or any
association of individuals, etc., by whatever name
called, booked in its name or booked in the name
of its associated entities or related enterprises,
shall be considered as one allottee only.
(3) In case any structural defect or any other defect
in workmanship, quality or provision of services or
any other obligations of the promoter as per the
agreement for sale relating to such development is
brought to the notice of the promoter within a
period of five years by the allottee from the date of
handing over possession, it shall be the duty of the
promoter to rectify such defects without further
charge, within thirty days, and in the event of
promoter's failure to rectify such defects within
such time, the aggrieved allottees shall be entitled
to receive appropriate compensation in the manner
as provided under this Act.
15 – Obligations
of promoter in
case of transfer of
a real estate
project to a third
party
(1) The promoter shall not transfer or assign his
majority rights and liabilities in respect of a real
estate project to a third party without obtaining
prior written consent from two-third allottees,
except the promoter, and without the prior written
approval of the Authority:
Provided that such transfer or assignment shall not
affect the allotment or sale of the apartments, plots
15 – Obligations of
promoter in case of
transfer of a real
estate project to a
third party
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or buildings as the case may be, in the real estate
project made by the erstwhile promoter.
Explanation.—For the purpose of this sub-section,
the allottee, irrespective of the number of
apartments or plots, as the case may be, booked
by him or booked in the name of his family, or in
the case of other persons such as companies or
firms or any association of individuals, by whatever
name called, booked in its name or booked in the
name of its associated entities or related
enterprises, shall be considered as one allottee
only.
(2) On the transfer or assignment being permitted
by the allottees and the Authority under subsection (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 (1) The promoter shall obtain all such insurances 16 – Obligations of
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of promoter
regarding
insurance of real
estate project
as may be notified by the appropriate Government,
including but not limited to insurance in respect of
—
(i) title of the land and building as a part of the real
estate project; and
(ii) construction of the real estate project
(2) The promoter shall be liable to pay the
premium and charges in respect of the insurance
specified in sub-section (1) and shall pay the same
before transferring the insurance to the association
of the allottees.
(3) The insurance as specified under sub-section
(1) shall stand transferred to the benefit of the
allottee or the association of allottees, as the case
may be, at the time of promoter entering into an
agreement for sale with the allottee.
(4) On formation of the association of the allottees,
all documents relating to the insurance specified
under sub-section (1) shall be handed over to the
association of the allottees.
promoter regarding
insurance of real
estate project
17 – Transfer of
title
(1) The promoter shall execute a registered
conveyance deed in favour of the allottee along
with the undivided proportionate title in the
common areas to the association of the allottees or
the competent authority, as the case may be, and
hand over the physical possession of the plot,
apartment of building, as the case may be, to the
allottees and the common areas to the association
of the allottees or the competent authority, as the
case may be, in a real estate project, and the other
title documents pertaining thereto within specified
17 – Transfer of
title
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period as per sanctioned plans as provided under
the local laws:
Provided that, in the absence of any local law,
conveyance deed in favour of the allottee or the
association of the allottees or the competent
authority, as the case may be, under this section
shall be carried out by the promoter within three
months from date of issue of occupancy certificate.
(2) After obtaining the occupancy certificate and
handing over physical possession to the allottees
in terms of sub-section (1), it shall be the
responsibility 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,—
(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
18 – Return of
amount and
compensation
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reason,
he shall be liable on demand to the allottees, in
case the allottee wishes to withdraw from the
project, without prejudice to any other remedy
available, to return the amount received by him in
respect of that apartment, plot, building, as the
case may be, with interest at such rate as may be
prescribed in this behalf including compensation in
the manner as provided under this Act:
Provided that where an allottee does not intend to
withdraw from the project, he shall be paid, by the
promoter, interest for every month of delay, till the
handing over of the possession, at such rate as
may be prescribed.
(2) The promoter shall compensate the allottees in
case of any loss caused to him due to defective
title of the land, on which the project is being
developed or has been developed, in the manner
as provided under this Act, and the claim for
compensation under this subsection shall not be
barred by limitation provided under any law for the
time being in force.
(3) If the promoter fails to discharge any other
obligations imposed on him under this Act or the
rules or regulations made thereunder or in
accordance with the terms and conditions of the
agreement for sale, he shall be liable to pay such
compensation to the allottees, in the manner as
provided under this Act.
19 – Rights and
duties of allottees
(1) The allottee shall be entitled to obtain the
information relating to sanctioned plans, layout
plans along with the specifications, approved by
the competent authority and such other information
19 – Rights and
duties of allottees
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as provided in this Act or the rules and regulations
made thereunder or the agreement for sale signed
with the promoter.
(2) The allottee shall be entitled to know stagewise time schedule of completion of the project,
including the provisions for water, sanitation,
electricity and other amenities and services as
agreed to between the promoter and the allottee in
accordance with the terms and conditions of the
agreement for sale.
(3) The allottee shall be entitled to claim the
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
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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.
(6) Every allottee, who has entered into an
agreement for sale to take an apartment, plot or
building as the case may be, under section 13,
shall be responsible to make necessary payments
in the manner and within the time as specified in
the said agreement for sale and shall pay at the
proper time and place, the share of the registration
charges, municipal taxes, water and electricity
charges, maintenance charges, ground rent, and
other charges, if any.
(7) The allottee shall be liable to pay interest, at
such rate as may be prescribed, for any delay in
payment towards any amount or charges to be
paid under sub-section (6).
(8) The obligations of the allottee under subsection (6) and the liability towards interest under
sub-section (7) may be reduced when mutually
agreed to between the promoter and such allottee.
(9) Every allottee of the apartment, plot or building
as the case may be, shall participate towards the
formation of an association or society or
cooperative society of the allottees, or a federation
of the same.
(10) Every allottee shall take physical possession
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of the apartment, plot or building as the case may
be, within a period of two months of the occupancy
certificate issued for the said apartment, plot or
building, as the case may be.
(11) Every allottee shall participate towards
registration of the conveyance deed of the
apartment, plot or building, as the case may be, as
provided under sub-section (1) of section 17 of this
Act.
20 –
Establishment
and incorporation
of Real Estate
Regulatory
Authority
(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
Authority to be known as the Real Estate
Regulatory Authority to exercise the powers
conferred on it and to perform the functions
assigned to it under this Act:
Provided that the appropriate Government 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
20 – Establishment
and incorporation
of Housing Industry
Regulatory
Authority
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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 Members to be
appointed by the appropriate Government.
21 – Composition
of Authority
22 –
Qualifications of
Chairperson and
Members of
Authority
The Chairperson and other Members of the
Authority shall be appointed by the appropriate
Government on the recommendations of a
Selection Committee consisting of the Chief
Justice of the High Court or his nominee, the
Secretary of the Department dealing with Housing
and the Law Secretary, in such manner as may be
prescribed, from amongst persons having
adequate knowledge of and professional
experience of at least twenty years in case of the
Chairperson and fifteen years in the case of the
Members in urban development, housing, real
estate development, infrastructure, economics,
technical experts from relevant fields, planning,
law, commerce, accountancy, industry,
management, social service, public affairs or
administration:
Provided that a person who is, or has been, in the
service of the State Government shall not be
appointed as a Chairperson unless such person
has held the post of Additional Secretary to the
Central Government or any equivalent post in the
22 – Qualifications
of Chairperson and
Members of
Authority
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Central Government or State Government:
Provided further that a person who is, or has been,
in the service of the State Government shall not be
appointed as a member unless such person has
held the post of Secretary to the State Government
or any equivalent post in the State Government or
Central Government.
23 – Term of
office of
Chairperson and
Members
23. (1) The Chairperson and Members shall hold
office for a term not exceeding five years from the
date on which they enter upon their office, or until
they attain the age of sixtyfive years, whichever is
earlier and shall not be eligible for re-appointment.
(2) Before appointing any person as a Chairperson
or Member, the appropriate Government shall
satisfy itself that the person does not have any
such financial or other interest as is likely to affect
prejudicially his functions as such Member.
23 – Term of office
of Chairperson and
Members
24 – 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.
(2) Notwithstanding anything contained in subsections (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
24 – Salary and
allowances payable
to Chairperson and
Members
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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
The Chairperson shall have powers of general
superintendence and directions in the conduct of
the affairs of Authority and he shall, in addition to
presiding over the meetings of the Authority,
exercise and discharge such administrative powers
and functions of the Authority as may be
prescribed.
25 – Administrative
power of
Chairperson
26 – Removal of
Chairperson and
Members from
office in certain
circumstances
(1) The appropriate Government may, in
accordance with the procedure notified, remove
from office the Chairperson or other Members, if
the Chairperson or such other Member, as the
case may be,—
(a) has been adjudged as an insolvent; or
(b) has been convicted of an offence, involving
moral turpitude; or
(c) has become physically or mentally incapable of
acting as a Member; or
(d) has acquired such financial or other interest as
is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his
continuance in office prejudicial to the public
interest.
(2) The Chairperson or Member shall not be
removed from his office on the ground specified
under clause (d) or clause (e) of sub-section (1)
26 – Removal of
Chairperson and
other Members
from office in
certain
circumstances
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except by an order made by the appropriate
Government after an inquiry made by a Judge of
the High Court in which such Chairperson or
Member has been informed of the charges against
him and given a reasonable opportunity of being
heard in respect of those charges
27 – Restrictions
on Chairperson or
Members on
employment after
cessation of office
(1) The Chairperson or a Member, ceasing to hold
office as such, shall not—
(a) accept any employment in, or connected with,
the management or administration of, any person
or organisation which has been associated with
any work under this Act, from the date on which he
ceases to hold office: Provided that nothing
contained in this clause shall apply to any
employment under the appropriate Government or
a local 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;
(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
27 – Restrictions
on Chairperson or
Members on
employment after
cessation of office
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which he had direct and significant official dealings
during his term of office as such.
(2) The Chairperson and Members shall not
communicate or reveal to any person any matter
which has been brought under his consideration or
known to him while acting as such.
28 – Officers and
other employees
of Authority
28. (1) The appropriate Government may, in
consultation with the Authority appoint such
officers and employees as it considers necessary
for the efficient discharge of their functions under
this Act who would discharge their functions under
the general superintendence of the Chairperson.
(2) The salary and allowances payable to, and the
other terms and conditions of service of, the
officers and of the employees of the Authority
appointed under sub-section (1) shall be such as
may be prescribed.
28 – Officers and
other employees of
Authority
29 – Meetings of
Authority
(1) The Authority shall meet at such places and
times, and shall follow such rules of procedure in
regard to the transaction of business at its
meetings, (including quorum at such meetings), as
may be specified by the regulations made by the
Authority.
(2) If the Chairperson for any reason, is unable to
attend a meeting of the Authority, any other
Member chosen by the Members present amongst
themselves at the meeting, shall preside at the
meeting.
(3) All questions which come up before any
29 – Meetings of
Authority
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meeting of the Authority shall be decided by a
majority of votes by the Members present and
voting, and in the event of an equality of votes, the
Chairperson or in his absence, the person
presiding shall have a second or casting vote.
(4) The questions which come up before the
Authority shall be dealt with as expeditiously as
possible and the Authority shall dispose of the
same within a period of sixty days from the date of
receipt of the application: Provided that where any
such application could not be disposed of within
the said period of sixty days, the Authority shall
record its reasons in writing for not disposing 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.
Explanation.—For the purpose of this sub-section
"person" shall include the association of allottees
or any voluntary consumer association registered
31 – Filing of
complaints with the
Authority
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under any law for the time being in force.
(2) The form, manner and fees for filing complaint
under sub-section (1) shall be such as may be
specified by regulations.
32 – Functions of
Authority for
promotion of real
estate sector
The Authority shall in order to facilitate the growth
and promotion of a healthy, transparent, efficient
and competitive real estate sector make
recommendations to the appropriate Government
of the competent authority, as the case may be,
on,—
(a) protection of interest of the allottees, promoter
and real estate agent;
(b) creation of a single window system for ensuring
time bound project approvals and clearances for
timely completion of the project;
(c) creation of a transparent and robust grievance
redressal mechanism against acts of ommission
and commission of competent authorities and their
officials;
(d) measures to encourage investment in the real
estate sector including measures to increase
financial assistance to affordable housing
segment;
(e) measures to encourage construction of
environmentally sustainable and affordable
housing, promoting standardisation and use of
appropriate construction materials, fixtures, fittings
and construction techniques;
(f) measures to encourage grading of projects on
various parameters of development including
grading of promoters;
(g) measures to facilitate amicable conciliation of
32 – Functions of
Authority for
promotion of real
estate sector
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disputes between the promoters and the allottees
through dispute settlement forums set up by the
consumer or promoter associations;
(h) measures to facilitate digitization of land
records and system towards conclusive property
titles with title guarantee;
(i) to render advice to the appropriate 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.
(2) The opinion given by the Authority under subsection (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 advocacy, creating awareness
and imparting training about laws relating to real
estate sector and policies.
33 – Advocacy and
awareness
measures
34 – Functions of The functions of the Authority shall include— 34 – Functions of
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Authority (a) to register and regulate real estate projects and
real estate agents registered under this Act;
(b) to publish and maintain a website of records,
for public viewing, of all real estate projects for
which registration has been given, with such
details as may be prescribed, including information
provided in the application for which registration
has been granted;
(c) to maintain a database, on its website, for
public viewing, and enter the names and
photographs of promoters as defaulters including
the project details, registration for which has been
revoked or have been penalised under this Act,
with reasons therefor, for access to the general
public;
(d) to maintain a database, on its website, for
public viewing, and enter the names and
photograhps of real estate agents who have
applied and registered under this Act, with such
details as may be prescribed, including those
whose registration has been rejected or revoked;
(e) to fix through regulations for each areas under
its jurisdiction the standard fees to be levied on the
allottees or the promoter or the real estate agent,
as the case may be;
(f) to ensure compliance of the obligations cast
upon the promoters, the allottees and the real
estate agents under this Act and the rules and
regulations made thereunder;
(g) to ensure compliance of its regulations or
orders or directions made in exercise of its powers
under this Act;
(h) to perform such other functions as may be
entrusted to the Authority by the appropriate
Government as may be necessary to carry out the
Authority
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provisions of this Act.
35 – Powers of
Authority to call
for information,
conduct
investigations
(1) Where the Authority considers it expedient 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.
(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;
(ii) summoning and enforcing the attendance of
persons and examining them on oath;
(iii) issuing commissions for the examination of
witnesses or documents;
(iv) any other matter which may be perscribed.
35 – Powers of
Authority to call for
information,
conduct
investigations
36 – Power to
issue interim
orders
Where during an inquiry, the Authority is satisfied
that an act in contravention of this Act, or the rules
and regulations made thereunder, has been
committed and continues to be committed or that
such act is about to be committed, the Authority
36 – Power to issue
interim orders
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may, by order, restrain any promoter, allottee or
real estate agent from carrying on such act until
the conclusion of such inquiry of until further
orders, without giving notice to such party, where
the Authority deems it necessary
37 – Powers of
Authority to issue
directions
37. The Authority may, for the purpose of
discharging its functions under the provisions of
this Act or rules or regulations made thereunder,
issue such directions from time to time, to the
promoters or allottees or real estate agents, as the
case may be, as it may consider necessary and
such directions shall be binding on all concerned.
37 – Powers of
Authority to issue
directions
38 – Powers of
Authority
(1) The Authority shall have powers to impose
penalty or interest, in regard to any contravention
of obligations cast upon the promoters, the
allottees and the real estate agents, under this Act
or the rules and the regulations made thereunder.
(2) The Authority shall be guided by the principles
of natural justice and, subject to the other
provisions of this Act and the rules made
thereunder, the Authority shall have powers to
regulate its own procedure.
(3) Where an issue is raised relating to agreement,
action, omission, practice or procedure that— (a)
has an appreciable prevention, restriction or
distortion of competition in connection with the
development of a real estate project; or (b) has
effect of market power of monopoly situation being
abused for affecting interest of allottees adversely,
then the Authority, may suo motu, make reference
in respect of such issue to the Competition
Commission of India.
38 – Powers of
Authority
39 – Rectification The Authority may, at any time within a period of 39 – Rectification of
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of orders 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.
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) Real Estate Appellate
Tribunal.
(2) The appropriate Government may, if it deems
necessary, establish one or more benches of the
Appellate Tribunal, for various jurisdictions, in the
State or Union territory, as the case may be.
(3) Every bench of the Appellate Tribunal shall
consist of at least one Judicial Member and one
Administrative to Technical Member.
(4) The appropriate Government of two or more
States or Union territories may, if it deems fit,
establish one single Appellate Tribunal:
Provided that, until the establishment of an
Appellate Tribunal under this section, the
43 – Establishment
of Housing Industry
Appellate Tribunal
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appropriate Government shall designate, by order,
any Appellate Tribunal Functioning under any law
for the time being in force, to be the Appellate
Tribunal to hear appeals under the Act:
Provided further that after the Appellate Tribunal
under this section is established, all matters
pending with the Appellate Tribunal designated to
hear appeals, shall stand transferred to the
Appellate Tribunal so established and shall be
heard from the stage such appeal is transferred.
(5) Any person aggrieved by any direction or
decision or order made by the Authority or by an
adjudicating officer under this Act may prefer an
appeal before the Appellate Tribunal having
jurisdiction over the matter:
Provided that where a promoter files an appeal
with the Appellate Tribunal, it shall not be
entertained, without the promoter first having
deposited with the Appellate Tribunal atleast thirty
per cent. of the penalty, or such higher percentage
as may be determined by the Appellate Tribunal,
or the total amount to be paid to the allottee
including interest and compensation imposed on
him, if any, or with both, as the case may be,
before the said appeal is heard.
Explanation.—For the purpose of this sub-section
"person" shall include the association of allottees
or any voluntary consumer association registered
under any law for the time being in force.
44 – Application (1) The appropriate Government or the competent 44 – Application for
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for settlement of
disputes and
appeals to
Appellate Tribunal
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.
(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-section (1),
the Appellate Tribunal may after giving the parties
an opportunity of being heard, pass such orders,
including interim orders, as it thinks fit.
(4) The Appellate Tribunal shall send a copy of
every order made by it to the parties and to the
Authority or the adjudicating officer, as the case
may be.
(5) The appeal preferred under sub-section (1),
shall be dealt with by it as expeditiously as
possible and endeavour shall be made by it to
dispose of the appeal within a period of sixty days
from the date of receipt of appeal: Provided that
where any such appeal could not be disposed of
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disputes and
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within the said period of sixty days, the Appellate
Tribunal shall record its reasons in writing for not
disposing of the appeal within that period.
(6) The Appellate Tribunal may, for the purpose of
examining the legality or propriety or correctness
of any order or decision of the Authority or the
adjudicating officer, on its own motion or
otherwise, call for the records relevant to deposing
of such appeal and make such orders as it thinks
fit.
45 – Composition
of Appellate
Tribunal
The Appellate Tribunal shall consist of a
Chairperson and not less than two whole time
Members of which one shall be a Judicial member
and other shall be a Technical or Administrative
Member, to be appointed by the appropriate
Government.
Explanation.—For the purposes of this Chapter,—
(i) "Judicial Member" means a Member of the
Appellate Tribunal appointed as such under clause
(b) of sub-section (1) of section 46;
(ii) "Technical or Administrative Member" means a
Member of the Appellate Tribunal appointed as
such under clause (c) of sub-section (1) of section
46.
45 – Composition
of Appellate
Tribunal
46 –
Qualifications for
appointment of
Chairperson and
Members
(1) A person shall not be qualified for appointment
as the Chairperson or a Member of the Appellate
Tribunal unless he,—
(a) in the case of Chairperson, is or has been a
Judge of a 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
46 – Qualifications
for appointment of
Chairperson and
Members
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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
(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 appointed by the appropriate Government in
consultation with the Chief Justice of High Court or
his nominee.
(3) The judicial Members and Technical or
Administrative Members of the Appellate Tribunal
shall be appointed by the appropriate Government
on the recommendations of a Selection Committee
consisting of the Chief Justice of the High Court or
his nominee, the Secretary of the Department
handling Housing and the Law Secretary and in
such manner as may be prescribed.
47 – Term of
office of
Chairperson and
(1) The Chairperson of the Appellate Tribunal or a
Member of the Appellate Tribunal shall hold office,
as such for a term not exceeding five years from
47 – Term of office
of Chairperson and
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Members the date on which he enters upon his office, but
shall not be eligible for re-appointment:
Provided that in case a person, who is or has been
a Judge of a High Court, has been appointed as
Chairperson of the Tribunal, he shall not hold office
after he has attained the age of sixty-seven years:
Provided further that no Judicial Member or
Technical or Administrative Member shall hold
office after he has attained the age of sixty-five
years.
(2) Before appointing any person as Chairperson
or Member, the appropriate Government shall
satisfy itself that the person does not have any
such financial or other interest, as is likely to affect
prejudicially his functions as such member.
Members
48 – 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.
(2) Notwithstanding anything contained in subsections (1) and (2) of section 47, the Chairperson
or a Member, as the case may be, may:—
(a) relinquish his office by giving in writing to the
appropriate Government a notice of not less than
three months;
(b) be removed from his office in accordance with
49 – Salary and
allowances payable
to Chairperson and
Members
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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
(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
(d) has acquired such financial or other interest as
is likely to affect prejudicially his functions; or
(e) has so abused his position as to render his
continuance in office prejudicial to the public
interest.
(2) The Chairperson or Judicial member or
Technical or Administrative Member shall not be
removed from his office except by an order made
by the appropriate Government after an inquiry
made by the Judge of the High Court in which such
Chairperson or Judicial member or Technical or
Administrative Member has been informed of the
charges against him and given a reasonable
opportunity of being heard in respect of those
48 – Removal of
Chairperson,
Member etc
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charges.
(3) The appropriate Government may suspend
from the office of the Chairperson or Judicial
member or Technical or Administrative Member in
respect of whom a reference of conducting an
inquiry has been made to the Judge of the High
Court under sub-section (2), until the appropriate
Government passes an order on receipt of the
report of inquiry made by the Judge of the High
Court on such reference.
(4) The appropriate Government may, by rules,
regulate the procedure for inquiry referred to in
sub-section (2).
50 – Restrictions
on Chairperson or
Judicial Member
or Technical or
Administrative
Member on
employment after
cessation of office
(1) The Chairperson or Judicial Member or
Technical or Administrative Member, ceasing to
hold office as such shall not:—
(a) Accept any employment in, or connected with,
the management or administration of, any person
or organisation which has been associated with
any work under this Act, from the date on which he
ceases to hold office:
Provided that nothing contained in this clause shall
apply to any employment under the appropriate
Government or a local authority or in any statutory
authority or any corporation established by or
under any Central, State of 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;
(b) act, for or on behalf of any person or
organisation in connection with any specific
50 – Restrictions
on Chairperson or
Judicial Member or
Technical or
Administrative
Member on
employment after
cessation of office
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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.
(2) The Chairperson or Judicial Member or
Technical or Administrative Member shall not
communicate or reveal to any person any matter
which has been brought under his consideration or
known to him while acting as such.
51 – Officers and
other employees
of Appellate
Tribunal
(1) The appropriate Government shall provide the
Appellate Tribunal with such officers and
employees as it may deem fit.
(2) The officers and employees of the Appellate
Tribunal shall discharge their functions under the
general superintendence of its Chairperson.
(3) The salary and allowances payable to, and the
other terms and conditions of service of, the
officers and employees of the Appellate Tribunal
51 – Officers and
other employees of
Appellate Tribunal
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shall be such as may be prescribed.
52 – Vacancies If, for reason other than temporary absence, any
vacancy occurs in the office of the Chairperson or
a Member of the Appellate Tribunal, the
appropriate Government shall appoint another
person in accordance with the provisions of this
Act to fill the vacancy and the proceedings may be
continued before the Appellee Tribunal from the
stage at which the vacancy is filled.
52 – Vacancies
53 – Powers of
Tribunal
(1) The Appellate Tribunal shall not be bound by
the procedure laid down by the Code of Civil
Procedure, 1908 but shall be guided by the
principles of natural justice.
(2) Subject to the provisions of this Act, the
Appellate Tribunal shall have power to regulate its
own procedure.
(3) The Appellate Tribunal shall also not be bound
by the rules of evidence contained in the Indian
Evidence Act, 1872.
(4) The Appellate Tribunal shall have, for the
purpose of discharging its functions under this Act,
the same powers as are vested in a civil court
under the Code of Civil Procedure, 1908 in respect
of the following matters, namely:—
(a) summoning and enforcing the attendance of
any person and examining him on oath;
(b) requiring the discovery and production of
documents;
53 – Powers of
Appellate Tribunal
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(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
54 –
Administrative
powers of
Chairperson of
Appellate Tribunal
The Chairperson shall have powers of general
superintendence and direction in the conduct of
the affairs of Appellate Tribunal and he shall, in
addition to presiding over the meetings of the
Appellate Tribunal exercise and discharge such
administrative powers and functions of the
Appellate Tribunal as may be prescribed.
54 – Administrative
powers of
Chairperson of
Appellate Tribunal
55 – Vacancies,
etc., not to
invalidate
proceeding of
Appellate Tribunal
No act or proceeding of the Appellate Tribunal
shall be invalid merely by reason of— (a) any
vacancy in, or any defect in the constitution of, the
Appellate Tribunal, or (b) any defect in the
appointment of a person acting as a Member of the
Appellate Tribunal; or (c) Any irregularity in the
procedure of the Appellate Tribunal not affecting
the merits of the case.
55 – Vacancies,
etc., not to
invalidate
proceeding of
Appellate Tribunal
56 – Right to legal
representation
The applicant or appellant may either appear in
person or authorise one or more chartered
56 – Right to Legal
re-presentation
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accountants or company secretaries or cost
accountants or legal practitioners or any of its
officers to present his or its case before the
Appellate Tribunal or the Regulatory Authority or
the adjudicating officer, as the case may be.
Explanation.—For the purposes of this section,—
(a) "chartered accountant" means a chartered
accountant as defined in clause (b) of sub-section
(1) of section 2 of the Chartered Accountants Act,
1949 or any other law for the time being in force
and who has obtained a certificate of practice
under sub-section (1) of section 6 of that Act;
(b) "company secretary" means a company
secretary as defined in clause (c) of sub-section
(1) of section 2 of the Company Secretaries Act,
1980 or any other law for the time being in force
and who has obtained a certificate of practice
under sub-section (1) of section 6 of that Act;
(c) "cost accountant" means a cost accountant as
defined in clause (b) of sub-section (1) of section 2
of the Cost and Works Accountants Act, 1959 or
any other law for the time being in force and who
has obtained a certificate of practice under subsection (1) of section 6 of that Act;
(d) "legal practitioner" means an advocate, vakil or
an attorney of any High Court, and includes a
pleader in practice.
57 – Orders
passed by
Appellate Tribunal
to be executable
as a decree
(1) Every order made by the Appellate Tribunal
under this Act shall be executable 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
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(2) Notwithstanding anything contained in subsection (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:
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 preferring the
appeal in time.
Explanation.—The expression "High Court" means
the High Court of a State or Union territory where
the real estate project is situated.
(2) No appeal shall lie against any decision or
order made by the Appellate Tribunal with the
consent of the parties.
58 – Appeal to High
Court
59 – Punishment
for nonregistration under
Section 3
(1) If any promoter contravenes the provisions of
section 3, he shall be liable to a penalty which may
extend up to ten per cent. of the estimated cost of
the real estate project as determined by the
Authority.
(2) If any promoter does not comply with the
59 – Punishment
for non-registration
under Section 3
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orders, decisions or directions issued under subsection (1) or continues to violate the provisions of
section 3, he shall be punishable with
imprisonment for a term which may extend up to
three years or with fine which may extend up to a
further ten per cent. of the estimated cost of the
real estate project, or with both.
60 – Penalty for
contravention of
Section 4
If any promoter provides false information or
contravenes the provisions of section 4, he shall
be liable to a penalty which may extend up to five
per cent. of the estimated cost of the real estate
project, as determined by the Authority.
60 – Penalty for
contravention of
Section 4
61 – Penalty for
contravention of
other provisions
of this Act
If any promoter contravenes any other provisions
of this Act, other than that provided under section 3
or section 4, or the rules or regulations made
thereunder, he shall be liable to a penalty which
may extend up to five per cent. of the estimated
cost of the real estate project as determined by the
Authority.
61 – Penalty for
contravention of
other provisions of
this Act
62 – Penalty for
non-registration
and contravention
under Sections 9
and 10
If any real estate agent fails to comply with or
contravenes the provisions of section 9 or section
10, he shall be liable to a penalty of ten thousand
rupees for every day during which such default
continues, 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 If any promoter, who fails to comply with, or 64 – Penalty for
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failure to comply
with orders of
Appellate Tribunal
by promoter
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
day during which such default continues, which
may cumulatively extend up to ten per cent. of the
estimated cost of the real estate project, or with
both.
failure to comply
with orders of
Appellate Tribunal
by promoter
65 – Penalty for
failure to comply
with orders of
Authority by real
estate agent
If any real estate agent, 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 plot, apartment or building,
as the case may be, of the real estate project, for
which the sale or purchase has been facilitated
and as determined by the Authority
65 – Penalty for
failure to comply
with orders of
Authority by real
estate agent
66 – Penalty for
failure to comply
with orders of
Appellate Tribunal
by real estate
agent
If any real estate agent, 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 one year or with fine for every
day during which such default continues, which
may cumulatively extend up to ten per cent. of the
estimated cost of plot, apartment or building, as
the case may be, of the real estate project, for
which the sale or purchase has been facilitated, or
with both.
66 – Penalty for
failure to comply
with orders of
Appellate Tribunal
by real estate agent
67 – Penalty for
failure to comply
with orders of
Authority by
allottee
If any allottee, who fails to comply with, or
contravenes any of the orders, decisions or
directions of the Authority he shall be liable to a
penalty for the period during which such default
continues, which may cumulatively extend up to
five per cent. of the plot, apartment or building
cost, as the case may be, as determined by the
Authority
67 – Penalty for
failure to comply
with orders of
Authority by allottee
68 – Penalty for If any allottee, who fails to comply with, or 68 – Penalty for
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failure to comply
with orders of
Appellate Tribunal
by allottee
contravenes any of the orders or directions of 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.
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:
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.
(2) Notwithstanding anything contained in subsection (1), where an offence under this Act has
been committed by a company, and it is proved
that the offence has been committed with the
consent or connivance of, or is attributable to, any
neglect on the part of any director, manager,
secretary or other officer of the company, such
director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and
shall be liable to be proceeded against and
punished accordingly.
69 – Offences by
companies
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Explanation.—For the purpose of this section,—
(a) ''company'' means any body corporate and
includes a firm, or other association of individuals;
and
(b) ''director'' in relation to a firm, means a partner
in the firm
74 – Grants and
loans by State
Government
The State Government may, after due
appropriation made by State Legislature by law in
this behalf, make to the Authority, grants and loans
of such sums of money as the State Government
may think fit for being utilised for the purposes of
this Act.
70 – Grants and
loans by State
Government
75 – Constitution
of Fund
(1) The appropriate Government shall constitute a
fund to be called the 'Real Estate Regulatory Fund'
and there shall be credited thereto,—
(a) all Government grants received by the
Authority;
(b) the fees received under this Act;
(c) the interest accrued on the amounts referred to
in clauses (a) to (b).
(2) The Fund shall be applied for meeting—
(a) the salaries and allowances payable to the
Chairperson and other Members, the adjudicating
officer and the administrative expenses including
the salaries and allowances payable to be officers
and other employees of the Authority and the
Appellate Tribunal;
(b) the other expenses of the Authority in
connection with the discharge of its functions and
71 – Constitution of
Fund
PART E
79
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
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 and
prepare an annual statement of accounts in such
form as may be prescribed by the appropriate
Government in consultation with the Comptroller
and Auditor General of India.
(2) The accounts of the Authority shall be audited
by the Comptroller and Auditor General of India at
such intervals as may be specified by him and any
expenditure incurred in connection with such audit
shall be payable by the Authority to the
Comptroller and Auditor General of India.
(3) The Comptroller and Auditor-General and any
person appointed by him in connection with the
73 – Budget
accounts and audit
PART E
80
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
audit of the accounts of the Authority under this Act
shall have the same rights and privileges and
authority in connection with such audit as the
Comptroller and Auditor General generally has in
connection with the audit of Government accounts
and, in particular shall have the right to demand
and production of books, accounts, connected
vouchers and other documents and papers, and to
inspect any of the offices of the Authority.
(4) The accounts of the Authority, as certified by
the Comptroller and Auditor-General of India or
any other person appointed by him in this behalf,
together with the audit report thereon shall be
forwarded annually to the appropriate Government
by the Authority and the appropriate Government
shall cause the audit report to be laid, as soon as
may be after it is received, before each House of
Parliament or, as the 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 the
House.
78 – Annual
report
(1) The Authority shall prepare once in every year,
in such form and at such time as may be
prescribed by the appropriate Government,— (a) a
description of all the activities of the Authority for
the previous year; (b) the annual accounts for the
previous year; and (c) the programmes of work for
the coming year.
(2) A copy of the report received under sub-section
(1) shall be laid, as soon as may be after it is
received, before each House of Parliament or, as
the case may be, before the State Legislature or
the Union Territory Legislature, where it consists of
74 – Annual report
PART E
81
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
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
offences
81 – Delegation The Authority may, by general or special order in
writing, delegate to any member, officer of the
Authority or any other person subject to such
conditions, if any, as may be specified in the order,
such of its powers and functions under this Act
(except the power to make regulations under
section 85, as it may deem necessary.
77 – Delegation
82 – Power of
appropriate
Government to
supersede
Authority
(1) If, at any time, the appropriate Government is
of the opinion,—
(a) that, on account of circumstances beyond the
control of the Authority, it is unable to discharge
the functions or perform the duties imposed on it
by or under the provisions of this Act; or
(b) that the Authority has persistently defaulted in
complying with any direction given by the
78 – Power of State
Government to
supersede
Authority
PART E
82
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
appropriate Government under this Act or in the
discharge of the functions or performance of the
duties imposed on it by or under the provisions of
this Act and as a result of such default the financial
position of the Authority or the administration of the
Authority has suffered; or
(c) that circumstances exist which render it
necessary in the public interest so to do,
the appropriate Government may, by notification,
supersede the Authority for such period, not
exceeding six months, as may be specified in the
notification and appoint a person or persons as the
President or the Governor, as the case may be,
may direct to exercise powers and discharge
functions under this Act:
Provided that before issuing any such notification,
the appropriate Government shall give a
reasonable opportunity to the Authority to make
representations against the proposed
supersession and shall consider the
representations, if any, of the Authority.
(2) Upon the publication of a notification under
sub-section (1) superseding the Authority,—
(a) the Chairperson and other Members shall, as
from the date of supersession, vacate their offices
as such;
(b) all the powers, functions and duties which may,
by or under the provisions of this Act, be exercised
or discharged by or on behalf of the Authority shall,
until the Authority is reconstitued under subsection (3), be exercised and discharged by the
person or persons referred to in sub-section (1);
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83
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
and
(c) all properties 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.
83 – Powers of
appropriate
Government to
issue directions to
Authority and
obtain reports and
returns
(1) Without prejudice to the foregoing provisions of
this Act, the Authority shall, in exercise of its
powers and in performance of its functions under
this Act, be bound by such directions on questions
of policy, as the appropriate Government may give
in writing to it from time to time:
Provided that the Authority shall, as far as
practicable, be given an opportunity to express its
79 – Powers of
State Government
to issue directions
to Authority and
obtain reports and
returns
PART E
84
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
views before any direction is given under this subsection.
(2) If any dispute arises between the appropriate
Government and the Authority as to whether a
question is or is not a question of policy, the
decision of the appropriate Government thereon
shall be final.
(3) The Authority shall furnish to the appropriate
Government such returns or other information with
respect to its activities as the appropriate
Government may, from time to time, require.
84(1) – Power of
appropriate
Government to
make rules
(1) The appropriate Government shall, within a
period of six months of the commencement of this
Act, by notification, make rules for carrying out the
provisions of this Act.
80(1) – Power of
State Government
to make rules
85(1) – Power to
make regulations
(1) The Authority shall, within a period of three
months of its establishment, by notification, make
regulations, consistent with this Act and the rules
made thereunder to carry out the purposes of this
Act.
81 – Power to
make regulations
87 – Members,
etc., to be public
servants
The Chairperson, Members and other officers and
employees of the Authority, and the Appellate
Tribunal and the adjudicating officer shall be
deemed to be public servants within the meaning
of section 21 of the Indian Penal Code.
82 – Members,
etc., to be public
servants
90 – Protection of
action taken in
good faith
No suit, prosecution or other legal proceedings
shall lie against the appropriate Government or the
Authority or any officer of the appropriate
Government or any member, officer or other
employees of the Authority for anything which is in
good faith done or intended to be done under this
84 – Protection of
action taken in
good faith
PART E
85
Section and Title
of RERA
Provision Section and Title
of WB-HIRA
Act or the rules or regulations made thereunder.
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 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.”
PART F
86
13 Section 83 corresponds to Section 88 of the RERA. However, there is no
provision in WB-HIRA corresponding to Section 89 of RERA, according to which
overriding effect has been given to the RERA, notwithstanding anything inconsistent
therewith contained in any other law for the time being in force. Further, the
repealing provisions of the two enactments are distinct. Section 92 of the RERA has
repealed the Maharashtra Act, while Section 86(1) of WB-HIRA repeals the WB
1993 Act.
F RERA and WB-HIRA – provisions at variance
14 In the previous section, this judgment has dwelt on the substantial overlap
between the provisions of RERA and the subsequently enacted WB-HIRA. However,
in this segment of the judgment, it would be necessary to visit the inconsistencies
and deviations made in WB-HIRA from the provisions of the RERA. These
divergences are indicated in the following tabulation, which has been put on record
by the Union of India during its submissions:
S.No. Particulars RERA WB-HIRA
1
Definition of Car
Parking Area:
Under the scheme of RERA:
Open Car parking areas are
covered under the definition of
‘common areas’, therefore it
cannot be sold.
Section 2 (i): ‘Car parking
area’ has been defined to
mean ‘such area as may be
prescribed’.
Under, Section 2(n) "common
areas" mean—
Further, in WB-HIRA Rules:
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87
S.No. Particulars RERA WB-HIRA
(i) the entire land for the real
estate project or where the
project is developed in phases
and registration under this Act is
sought for a phase, the entire
land for that phase;
(ii) the stair cases, lifts, staircase
and lift lobbies, fire escapes, and
common entrances and exits of
buildings;
(iii) the common basements,
terraces, parks, play areas, open
parking areas and common
storage spaces;
Car parking means an area
either enclosed or unclosed,
covered or open excluding
open car parking areas
reserved for common areas
and facilities to park
vehicles located at any level
having sufficient drive way
and maneuvering space for
loading and uploading as
sanctioned by the
competent authority and
includes all types of 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 regulations
made by the Authority.
Section 6: Force Majeure
events mean a case of war,
flood, drought, fire, cyclone,
earthquake, or any other
calamity caused by nature
affecting the regular
development of the real
estate project or any other
circumstances as may be
prescribed.
PART F
88
S.No. Particulars RERA WB-HIRA
Under, Section 6, they are
limited to a case of war, flood,
drought, fire, cyclone,
earthquake, or any other
calamity caused by nature
affecting the regular
development of the real estate
project.
It gives the wider discretion
to regulatory authority/State
to give extension to real
estate project’s registration
and it may adversely affect
the interest of homebuyers.
5
Power of the
Regulatory
Authority
Section 38 (3): Where an issue
has effect of monopoly situation,
the authority has power to make
suo-motu reference to the
Competition Commission of
India in certain cases.
No such power to make
suo-motu reference to the
Competition Commission of
India.
It may also affect the
interest of homebuyers.
6
Establishment of
Central Advisory
Council
Section 41: Provides for
establishment of Central
Advisory Council, chaired (ex
officio) by the Union Minister of
Housing.
The functions of the Central
Advisory Council shall be to
advise and recommend the
Central Government
(i) on all matters concerning the
implementation of this Act;
(ii) on major questions of policy;
(iii) towards protection of
consumer interest;
(iv) to foster the growth and
development of the real estate
sector;
(v)on any other matter as may
be assigned to it by the
Central Government.
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.
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89
S.No. Particulars RERA WB-HIRA
Recently, during COVID-19
global pandemic time, To
address the concerns of
homebuyers, who have invested
their lifetime savings not
deprived of delivery of their
dream house/flat and to ensure
the completion of projects,
based upon the
recommendations of Central
Advisory Council (CAC) on 13th
May, 2020 Ministry has issued
the necessary advisory to all
States/Union Territories and
their Regulatory Authorities for
issuance of requisite orders/
directions 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.
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
appoint an adjudicating officer
for purpose of adjudging
compensation under sections
12, 14, 18 and section 19, who
Section 40(3): Factors
stated in WB-HIRA for
adjudging the quantum of
compensation or interest,
payable by a promotor,
PART F
90
S.No. Particulars RERA WB-HIRA
is or has been a District Judge
to be an adjudicating officer.
allottee or real estate agent,
as the case may be, are
required to be considered by
the Regulatory Authority.
The power to adjudging
compensation has also
been given to Regulatory
Authority which is being
chaired by administrative
person not judicial person.
9 Court which may
try offences Section 80(2): No Court inferior
to Metropolitan Magistrate or a
First Class Judicial Magistrate
shall try any offence punishable
under the Act.
There is no such provision.
10
Section 84(2) This provision contained
illustration in regard to the
exercise of the rule making
power.
There is no such provision.
11
Power to make
regulation
Section 85(2) contains
illustration in regard to the
nature of regulations.
There is no such provision.
12
Overriding effect
Section 89: RERA has been
given overriding force and effect There is no such provision.
15 Now, it is in this backdrop that it becomes necessary to consider the
submissions made by the parties.
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91
G Submissions
G.1 For the petitioners
16 Mr Devashish Bharuka, learned Counsel appearing on behalf of the
petitioners urged the following submissions:
(I) Nature of RERA and WB-HIRA
a. The subject of both the central and the state enactments is covered by
Entries 6 and 7 of the Concurrent List to the Seventh Schedule to the
Constitution;
b. RERA is a complete and exhaustive code which regulates the contractual
relationship between a builder/promoter and a buyer/consumer in the real
estate sector and provides remedial measures. Parliament has indicated
an intent to occupy the whole field;
c. RERA regulates the rights and obligations between promoters and buyers
of real estate in addition to the provisions of the Indian Contract Act, 1872.
The enactment, in ensuring the actual transfer of property to the buyer
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
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92
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 ‘copyand 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
II7
) 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) SCR 393 at pg. 412, 420 [5-Judges]
• Calcutta Gas Co. Ltd. v State of West Bengal, (1962) Supp. 3 SCR 1
[5-Judges]
• ITC Ltd. v Agricultural Produce Market Committee & Ors., (2002) 9
SCC 232 [5-Judges]
• Accountant and Secretarial Services Pvt. Ltd. v UOI (1988) 4 SCC 324
[2-Judges]
• Ashoka Marketing Ltd. v Punjab National Bank, (1990) 4 SCC 406 [5-
Judges]
7 Interchangeably referred to as ‘State List’
PART G
93
• Indu Bhushan Bose v Rama Sundari Debi, (1969) 2 SCC 289 [5-
Judges]
c. The tests of repugnancy as enunciated in the judgments of this Court are
three-fold: First, there may be a direct inconsistency or conflict between
the actual terms of the competing statutes; Second, even if there is no
direct conflict, where Parliament has intended to occupy the entire field by
enacting an exhaustive or complete code, the state law in the same field
would be repugnant and inoperative; and Third, a conflict may arise where
the State Legislature has sought to exercise its powers over the same
subject matter as the legislation by Parliament;
d. RERA being an exhaustive code regulating the contractual relationships
between promoters and buyers in the real-estate sector, WB-HIRA
entrenches on an occupied field and is hence repugnant and void under
Article 254(2) of the Constitution;
e. WB-HIRA was not reserved for the assent of the President and is hence
not protected by Article 254(2) nor would the state enactment be protected
by Article 255 which applies only to a situation where a ‘recommendation’
or ‘previous sanction’ is required to be given by the Governor or the
President; and
f. Without prejudice to the earlier submissions on the doctrine of occupied
field, there are inconsistencies between RERA and WB-HIRA. The state
legislature has made several changes which tilt the law in favour of the
promoter – builder. For example:
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94
1. Though, the adjudication of compensation under the RERA is entrusted
to an adjudicatory officer who is a judicial officer, this provision for an
adjudicating officer does not find place in the state enactment.
2. Changes have been made in the definition of the expression’s ‘garage’
and ‘force majeure’.
3. Removal of the concept of planning area in the state legislation.
4. Change in the jurisdictional court which takes cognizance of offences;
(III) Complete change of stance by the State government.
a. At the time when WB-HIRA was enacted by the 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;
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95
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 254(1).
(IV) Effect of Sections 88 and 89 of RERA:
a. It is common ground that both the central and state laws fall under the
subjects of legislation contained in the Concurrent List;
b. The State of West Bengal has submitted that Sections 88 and 89 of RERA
allows the States to by-pass the requirement of Presidential assent under
Article 254(2) to enact a statute which is substantially identical to RERA for
creating parallel regimes across the country;
c. Accepting this submission and allowing the State to provide a “duplicate
regime would result in complete chaos in the real-estate sector;
d. At the time when RERA was enacted several state laws were in existence
including
State Act Date of
Presidential
assent
Maharashtra Ownership Flats (Regulation of
the promotion of Construction, Sale,
12.12.1963
PART G
96
management and Transfer) Act, 1963
Karnataka Ownership Flat (Regulation of the
promotion of Construction, Sale, Management
and Transfer) Act, 1972
29.06.1973
Gujarat Ownership Flats Act, 1973 28.06.1973
Andhra Pradesh Apartments (Promotion of
Construction and Ownership) Act, 1987
15.05.1987
West Bengal (Regulation of Promotion of
Construction and Transfer by Promoters) Act,
1993
09.03.1994
Punjab Apartment and Property Regulation
Act, 1995
02.08.1995
The above state laws covered certain areas beyond what is covered by
RERA. Hence, Section 89 read with the proviso to Article 254(2) impliedly
repeals such provisions to the extent to which they overlap with the RERA.
Significantly, the state legislations covering the same subject matter were
enacted in Maharashtra in 2012 and in Kerala in 2015. By Section 92 of
RERA, Parliament repealed the Maharashtra legislation while Kerala
repealed its own law in 2017;
e. The legislative history of RERA would indicate that there was a clarion call
for a uniform national law in the real-estate sector for some time;
f. Section 88 of RERA stipulates that the provisions of the Act are in addition
to and not in derogation of any other law for the time being in force while
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97
Section 89 gives overriding force and effect to RERA notwithstanding
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 addition to and not in derogation of” was intended to
indicate that the remedies in RERA are addition to those provided by other
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98
statutes including the Consumer Protection Act and the Insolvency and
Bankruptcy Code, 2016 (“IBC”).
j. Provisions analogous to Sections 88 and 89 of the RERA are contained in
several other central statutes on the subjects in the Concurrent List some
of which are tabulated below:
Central Law under List
III
Addition and not in
Derogation provision
Overriding over other
Inconsistent laws
Electricity Act, 2003 (List
III,
Entry 38)
Sec. 175 Sec.174
Limited Liability Act, 2008
(List III, Entry 7)
Sec. 71 --
The Commercial Courts,
2015
(List III, Entries 11-A, 13,
46)
-- Sec. 21
Insolvency and
Bankruptcy
Code, 2016 (List III, Entry
9)
-- Sec. 238
The Mental Healthcare
Act,
2017 (List III, Entry 16)
-- Sec. 120
The Fugitive Economic
Offenders Act, 2018 (List
III,
Entry 1)
Sec. 22 Sec. 21
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If the interpretation of the State of West Bengal is accepted, the States
would have an open hand to legislate by enacting a parallel regime as in
the case of WB-HIRA without obtaining Presidential assent. This would
destroy the federal legislative scheme of the primacy of Parliament under
Article 254.
(V) Applicability of Article 256
a. The interpretation placed by the State of West Bengal on Sections 88 and
89 is contrary to the request of the Union of India to the State to repeal
WB-HIRA and to notify the rules under RERA;
b. The State was under a constitutional mandate to act under Article 256
rather than enacting its own law without Presidential assent under Article
254(2); and
c. The enactment of a parallel regime for implementing provisions analogous
to RERA in the State of West Bengal will create serious inconvenience
and absurdity and render the entire scheme of RERA as a uniform national
regulation, unworkable. Under RERA, the State government acts as a
delegate of Parliament whereas with WB-HIRA, the State has shifted its
role to that of a delegator.
(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:
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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 protect them from exploitation;
2. The need to ensure uniformity and standardization of business
practices;
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3. The key purpose of RERA is to ensure uniformity, transparency,
efficiency, symmetry, standardization and efficacious dispute
resolution;
c. While enacting the RERA, Parliament by its definition of “appropriate
government” in Section 2(g) entrusted wide powers to the State
governments including the power to frame rules and regulations.
d. Some of the salient features of RERA include
1. Registration of real estate projects;
2. Registration of real estate agents;
3. Mandatory disclosers of project details on the web-site of the authority;
4. Fast track dispute settlement mechanism;
5. Establishment of a Central Advisory Council to recommend policy
measures for protecting consumer interest and ensure faster growth
and development of the real estate sector; and
6. Establishment of a real estate regulatory authority and appellate
tribunal for oversight of real estate transactions and to settle disputes
by imposing interest and compensation.
(II) Constitutional validity
a. The validity of RERA has been upheld by the Bombay High Court8 (except
for Section 46(1)(b));
8 WP 2737 of 2017, decided on 6 December 2017
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b. As many as 29 States and Union Territories have notified rules under
RERA as of the date of the filing of the counter affidavit;
c. As on date, 34 States and Union Territories have notified the rules (with
the sole exceptions of Nagaland where the process is going on and West
Bengal which has enacted its separate legislation). The provisions of WBHIRA bear an uncanny resemblance to RERA and large portions of the
State legislation have been copied verbatim from the central legislation;
d. The Statement of Objects and Reasons of WB-HIRA also indicates that
the purpose was to regulate and promote the housing sector in an efficient
and transparent manner in the interests of consumers. The objects of the
state legislation are synonymous with RERA and the State statute deals
with the same subject matter in an identical manner. The State of West
Bengal in effect has set up a parallel mechanism and parallel regime
which is similar to the RERA on a majority of counts; and
e. Though in the counter affidavit, the State of West Bengal sought to justify
the state law primarily under Entry 24 of List II of the Seventh Schedule,
this stand has been 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
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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 WBHIRA:
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 by rules made by the state
government;
2. The definition of ‘garage’ in Section 2(y) of RERA does not include
unenclosed or uncovered parking spaces such as open parking areas,
whereas Section 2(x) of WB-HIRA defines the expression ‘garage’ to
mean parking spaces as sanctioned by the competent authority;
3. RERA applies only to those real estate projects situated in a planning
area while there is no concept of a planning area in the state
legislation;
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4. Section 6 of the RERA specifically confines force majeure events to
specific eventualities whereas the corresponding provision of state
enactment is much wider leaving it to be prescribed by the rules;
5. Under Section 38(3) of RERA, the Authority has been entrusted with
the power to make a reference to the Competition Commission of India
in the event of a monopoly situation while there is no such provision in
the state enactment;
6. While Section 41 of the RERA provides for a Central Advisory Council
to advise and recommend the Central government on specific matters,
the corresponding provision of WB-HIRA provides for the establishment
of a State Advisory Council chaired by the State Minister of Housing;
7. Unlike Section 70 of RERA which has a provision of compounding of
offences, there is no corresponding provision in WB-HIRA;
8. Section 71(1) provides for the appointment of an adjudicating officer of
the rank of a district judge by the regulatory authority for adjudging
compensation. Section 40 of WB-HIRA entrusts the adjudicatory
function to the administrative regulatory authority without providing for a
judicial officer; and
9. Section 80(2) of the RERA provides that no court inferior to that of a
Metropolitan Magistrate or Judicial Magistrate First Class shall try an
offence under the RERA, while there is no such provision in WB-HIRA.
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The Central government has established a fund of Rs 25,000 crores (known as the
SWAMIH) to provide for last mile funding for projects which are net-worth positive
and registered under RERA, including those projects declared as NPAs or those
which are the subject matter of proceedings before the NCLT under the IBC. If the
state law is allowed to hold the field, buyers of real estate projects in the State of
West Bengal which are not registered under the RERA will lose the benefit of the
above provision.
b. Second test of repugnancy: Occupied 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 India9
, 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
9 (2019) 8 SCC 416
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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 upon RERA so much so that the existence of
RERA is impossible as long as WB-HIRA is given effect to by the State.
c. Third test of repugnancy: implied repeal
1. The subject matter of both the enactments is the regulation of the real
estate sector;
2. WB-HIRA stands in the State of West Bengal in place of RERA. Both
cannot stand together. As a matter of fact, while WB-HIRA is fully
operational in the State of West Bengal, RERA is non-operational;
3. The only exception would be where the State legislation contains
distinct matters which are of a cognate and allied nature. However, in
the present case, WB-HIRA deals on all fours with the subject matter of
RERA and not with any distinct matter which is cognate or allied; and
4. The state enactment has created an identical but parallel and mutually
exclusive regime in the State of West Bengal, which cannot co-exist
with the regime which is enacted under RERA.
On the above grounds, it has been submitted that the state enactment fails all the
three tests of repugnancy. While the failure of the first test would only require WB-
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HIRA to yield to RERA to the extent of the repugnancy, since the State enactment in
the present case completely obstructs and hinders the Parliamentary law, the
repugnancy is, according to the submission, absolute and complete.
G.3 For the State of West Bengal
18 Mr Rakesh Dwivedi, learned Senior Counsel appearing on behalf of the State
of West Bengal has urged the following submissions:
(I) RERA does not cover the whole field and is not exhaustive:
a. An analysis of RERA would indicate that its objective is to regulate and
promote the real estate sector and to ensure the sale of plots, apartments,
buildings and real estate projects in an efficient and transparent manner.
The other object is to protect consumer interest and establish an
adjudicating mechanism for speedy resolution of disputes, including
appeals;
b. A survey of the provisions of RERA would indicate that it is based on plans
sanctioned and approved by competent authorities under state
enactments. The sanctioned plan provides a specific period for
construction and local bodies are responsible for the sanctioning of plans
under local laws. Similarly, local authorities provide for completion
certificates. The diverse provisions of RERA contemplate the jurisdiction of
local authorities governed by state laws in the matter of sanctioning of
plans and completion of construction projects. This is supported by
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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.
This is for the reason that the ambit of Entry 24 of List II has been
explained in the decisions of the Constitution Bench in Tika Ramji vs
State of UP10 and ITC Ltd vs Agricultural Produce Market Committee11
10 (1956) SCR 393 11 (2002) 9 SCC 232
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to exclude those subjects which are specifically included in the other
Entries of List III in the Seventh Schedule; and
c. In view of the above position, Entry 24 of List II will not cover the field
which is covered by Entries 6 and 7 of List III. Hence, the present case has
to be adjudicated upon by considering both RERA and WB-HIRA as being
referable to subjects in Concurrent List. Consequently, the Court will have
to determine as to whether Article 254 has a nullifying effect on the state
enactment.
(III) Article 254 and Repugnancy
a. In view of the language of Article 254, the state law would be void only if it
is in consistent with and repugnant to a law made by Parliament in the
Concurrent List and, in such an event, only to the extent of the
repugnancy;
b. Repugnancy would arise if there is a conflict between a state enactment
and central enactment which cannot be reconciled or if the central
enactment occupies the whole field completely and exhaustively. Applying
the above tests, there is no repugnancy or inconsistency between WBHIRA and RERA. Irrespective of Sections 88 and 89 of RERA, Article 254
is not attracted;
c. The submission of the petitioner is based on the substantial identity
between WB-HIRA and RERA. This substantial identity is indicative of
consonance, conformity and symmetry. Identity of subject matter does not
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constitute inconsistency or repugnancy, particularly when the central
enactment is not a complete and exhaustive code; and
d. In the present case, the state law is complementary to the central law.
(IV) Sections 88 and 89 of RERA
a. Sections 88 and 89 indicate that RERA was not intended by Parliament to
be a complete and exhaustive code nor is it intended to be exclusive in
operation. Sections 88 and 89 allow other laws to operate and wherever
there is an inconsistency with RERA, the central act would prevail.;
b. Sections 88 and 89 indicate a Parliamentary intent that RERA should coexist with other legislations;
c. Section 88 refers to “any other law for the time being in force”. Such an
expression has been construed by this Court to cover laws which were
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
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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 has been
established on 23 July 2018 while its Chairperson and Members were
appointed on 25 June 2020 and 30 June 2020. The Appellate Tribunal has
been established on 29 July 2019 and both the Authority and the Appellate
Tribunal are adjudicating all complaints; and
h. One of the reasons for enacting WB-HIRA was to enable the State to have
its own State Advisory Council for advising and recommending to the State
government on the implementation of the law on major questions of policy,
protection of consumer interest and development of the real estate sector.
(V) The few inconsistencies between WB-HIRA and RERA are of a minor
nature:
a. There is no real conflict with the provisions of RERA under which an
adjudicating officer decides disputes as to compensation under Section 71.
Under Section 31, a complaint can be filed both before the ‘Authority’ and
the ‘Adjudicating Officer’. Under WB-HIRA, the Authority decides and there
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is an appeal provided to the Tribunal and then to the High Court.
Consequently, there is no conflict;
b. While under WB-HIRA, the Chairperson of the Tribunal can be removed in
consultation with the Chief Justice of the High Court, as in the case of
RERA, both Acts contemplate an enquiry by a Judge of the High Court.
This secures the independence of the Chairperson;
c. As regards the definition of ‘garage,’ ‘planning area,’ and ‘force majeure’,
there is no significant difference. RERA adopts a declaration of planning
area in the law relating to Town and Country Planning of the State and
hence a separate provision in the State Act is not required. Similarly, the
definitions of ‘garage’ and force majeure are not variant;
d. The State Advisory Council is to act in compliance with the rules framed by
the Central government. Where the rules have not been framed by the
Central government or there is an issue which is not governed by the
Central Act, the State can prescribe a rule or policy on the
recommendation of the State Advisory Council. Sections 83 and 84 of
RERA contemplate a role for the State in this regard;
e. Under RERA grants are made by the Central government whereas under
WB-HIRA grants are given by the State government. This does not result
in a conflict. The State cannot provide for grants by the Central
government. Moreover, there is nothing to prevent the Central government
from making a grant under Article 282 of the Constitution;
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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 WBHIRA 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 Legislation… …”
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20 The long title to the state enactment explains that WB-HIRA is “an act to
establish Housing Industry Regulatory Authority (“HIRA”) for regulation and
promotion of housing sector…”.
21 In the Counter Affidavit which has been filed on behalf of the State of West
Bengal before this Court the subject of the legislation is asserted to fall within the
purview of the following Entries in the State List of the Seventh Schedule to the
Constitution:
• Entry 5- Local Government
• Entry 18- Land
• Entry 24- Industries subject to the provisions of entries 7 and 52 of List I
• Entry 35- Works, lands and buildings vested in or in the possession of the
State
• Entry 64- Offences against laws with respect to any of the matters in this List
• Entry 66- Fees in respect of any of the matters in this List, but not including
fees taken in any court.
Even as among the above Entries, the Counter Affidavit substantively dwells on
Entry 24 of the State List. The defense in the Counter is that (i) housing as an
industry falls in Entry 24 of the State List; (ii) Entry 24 is subject to the provisions of
Entries 712 and 5213 of List I; (iii) there is no declaration by Parliament within the
12 “7. Industries declared by Parliament by law to be necessary for the purpose of defence or for the
prosecution of war.”
13 “52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in
the public interest.”
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meaning of Entries 7 or 52; (iv) WB-HIRA falls within the ambit of ‘industry’ in Entry
24 of the State List. That indeed is the basis of the Counter Affidavit. Paragraphs 15,
16 and 17 of the Counter are extracted below:
“15. It is most respectfully submitted that, as per WBHIRA
"housing" comes under the meaning of "Industry".
Therefore, the State Government ought to go for curated
legislations, specific to the need of the State. Furthermore,
State law can also be amended by the State itself without
approaching the central government as and when the
occasion arises to meet the necessity of the people of the
state. That, even the Real Estate Activities being an
industry' vests in the State Legislature competence to
enact a legislation on the subject matters by virtue of
Entry 24 of the State List in the Seventh Schedule to the
Col since the matter falls within the purview of the State
list unless brought under the Control of the Union by the
relevant Legislation.
16. That it is imperative to note that Entry 24 of State List in
its widest amplitude takes in all Industries. In other words, the
legislative power of the State under 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)
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22 As a matter of fact, it has also been urged that Entries 6 and 7 of the
Concurrent List would not cover the subject of the housing industry since the field
covered by these Entries “merely enables the manner and mode in which property is
to be transferred and contracts are to be executed”. This submission is sought to be
buttressed by stating that WB-HIRA is merely an extension of RERA with a wider
purview of the housing industry as opposed to RERA which deals with a limited
extent only with real estate. In other words, since the legislation falls under Entry 24
of the State List, there was – in the submission - no necessity of reserving the law
for the assent of the President.
23 Faced with the judgments of this Court defining the ambit of the expression
“industry” in the Union and the State Lists, the basis of asserting the legislative
competence of the State legislature (‘industry’ in Entry 24 of List II) over the subject
of the State enactment as set out in the Counter Affidavit has been specifically given
up in the course of the oral submissions in this Court. As a matter of fact, the written
submissions which have been placed on the record during the course of the hearing
specifically state that the claim of WB-HIRA being referable to Entry 24 of the State
List “as it deals with housing industry” is “not accurate and is not being pressed”.
The reason which has been adduced is that the ambit of Entry 24 of List II has been
explained to exclude from within its fold subject matters which are specifically
included in the other Entries of the three Lists of the Seventh Schedule.
24 Before proceeding with the discussion any further, it would be necessary for
this Court to dwell on the concession which has been made on behalf of the State of
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West Bengal. The concession is based on a correct assessment of the ambit of the
expression ‘industry’ in the three lists. In Tika Ramji vs State of UP14 (“Tika
Ramji”), there was a challenge to the validity of the UP Sugarcane (Regulation of
Supply and Purchase) Act 1953 under which the UP Sugarcane Supply and
Purchase Order 1954 was made. The vires of the Act was challenged on the ground
that the Act was respect to the subject of industries, the control of which by the
Union is declared by Parliament by law to be expedient in the public interest, within
the meaning of Entry 52 of List I. Parliament enacted the Industries (Development
and Regulation) Act 1951 declaring 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
14 1956 SCR 393
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enough to encompass the power to legislate in respect of raw material said to be an
integral part of the industrial process or the distribution of the products of the
industry.
25 The decision in Tika Ramji (supra) was followed by a Constitution Bench in
Calcutta Gas Co. (Proprietary) vs State of West Bengal15 which held that the
expression ‘industry’ in all the three Lists must be given the same meaning and
since ordinarily, industry is in the field of State legislation, the word must be
construed in such a manner that no entry in List II is deprived of its entire content. A
Constitution Bench of this Court in ITC Ltd. vs Agricultural Produce Market
Committee16 reiterated the principles which have been enunciated in Tika Ramji
(supra). Justice YK Sabharwal, (as the learned Chief Justice then was), speaking for
himself and Justice Brijesh Kumar, reiterated the principles which were adopted by
the Constitution Bench in Tika Ramji (supra). After considering the precedents of
this Court, the judgment reiterated the principles enunciated in Tika Ramji’s (supra)
case. In a concurring judgment, Justice Ruma Pal noted:
“126. To sum up: the word “industry” for the purposes of
Entry 52 of List I has been firmly confined by Tika
Ramji [1985 Supp SCC 476: 1985 Supp (1) SCR 145] to
the process of manufacture or production only.
Subsequent decisions including those of other Constitution
Benches have reaffirmed that Tika Ramji case [AIR 1956 SC
676 : 1956 SCR 393] authoritatively defined the word
“industry” — to mean the process of manufacture or
production and that it does not include the raw materials used
in the industry or the distribution of the products of the
industry. Given the constitutional framework, and the weight
15 AIR 1962 SC 1044
16 (2002) 9 SCC 232
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of judicial authority it is not possible to accept an argument
canvassing a wider meaning of the word “industry”. Whatever
the word may mean in any other context, it must be
understood in the constitutional context as meaning
“manufacture or production”.”
(emphasis supplied)
26 In view of the settled exposition of the ambit of Entry 24 of List II to the
Seventh Schedule, there can be no manner of doubt that the subject of WB-HIRA is
not ‘industries’ within the meaning of Entry 24. Both the central legislation – RERA
and the State legislation – WB-HIRA have substantially similar provisions. These
provisions seek to regulate the contractual relationship between builders/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
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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 when it was introduced in the State legislature in West Bengal. Indeed, the
long title also indicates that the State legislation sought to establish a Housing
Industry Regulatory Authority (“HIRA”). But these references in the Statement of
Objects and Reasons; the long title and the Counter Affidavit do not preclude the
State of West Bengal from asserting, in the course of the submissions, that the State
legislation in pith and substance is not one which is on the subject of industries
within the meaning of Entry 24 of List II and that it falls within the ambit of Entries 6
and 7 of List III. Indeed, as we have noticed in the earlier part of this judgment, there
is a substantial overlap between the provisions of RERA and WB-HIRA. Even the
inconsistencies which have been noticed earlier are on the same subject matter.
The provisions of RERA essentially seek to regulate the contractual relationship
between builders/promoters and purchasers in the real estate sector. RERA, truly
speaking, falls within the ambit of Entries 6 and 7 of the Concurrent List. The
substantial overlap between the state and the central legislation is evident on a
comparative analysis of the two legislations which has been alluded to in the earlier
part of this judgment. The State of West Bengal is not precluded from seeking to
sustain its legislation on the basis that in pith and in substance it falls within the
ambit of Entries 6 and 7 of the Concurrent List. The analysis of the constitutional
challenge in the present case must therefore proceed on the basis that both the
central legislation – RERA, and the state legislation – WB-HIRA, fall within the
subjects embodied in Entries 6 and 7 of List III of the Seventh Schedule. That
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indeed is the foundation on which submissions have been urged and the further
analysis is based. In a matter involving the constitutional validity of its law the State
of West Bengal has not been precluded by this court from urging the full line of its
defense.
H.2 The Constitutional Scheme of Article 254 and repugnancy
27 The distribution of legislative powers in Part XI of the Constitution envisages
that Parliamentary legislation extends to the entire territory of India or its part while
state legislation extends law to the whole or any part of a state. Under Article 24617,
the legislative power to make laws “with respect to” any of the matters 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 nonobstante 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
17 “246. Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to
as the Union List)
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any
State also, have power to make laws with respect to any of the matters enumerated in List III in the
Seventh Schedule (in this Constitution referred to as the Concurrent List
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such
State or any part thereof with respect to any of the matters enumerated in List II of the Seventh Schedule
(in this Constitution referred to as the State List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not
included (in a State) notwithstanding that such matter is a matter enumerated in the State List.”
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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 is reaffirmed by the non-obstante provision which
operates notwithstanding anything in Clauses (2) and (3);
(iii) On matters which have been enumerated in List III:
a. Parliament has the power to make laws notwithstanding clause (3); and
b. The State legislature also has the power to make laws subject to clause
(1).
(iv) The State legislatures have the exclusive powers to make laws for the State
or any part of it with respect to matters in List II, this power being subject to
clauses (1) and (2);
(v) Clauses (1) and (2) of Article 246 employ non-obstante provisions in respect
of
a. The exclusive power entrusted to Parliament over List I matters;
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b. The power entrusted to Parliament over List III matters;
(vi) Though, the legislature of a State has exclusive power to make laws with
respect to matters on the State List, this is subject to clauses (1) and (2).
28 Parliament, under Article 248, has been entrusted with the residuary powers
of legislation (subject to Article 246A) to make any law with respect to any matter
which is not enumerated in the Concurrent or State Lists. The 101st Amendment to
the Constitution, which came into force from 16 September 2016, inserted Article
246A18 to make a special provision with respect to the goods and services tax.
Article 246A begins with a non-obstante provision, giving it overriding force over
Articles 246 and 254. Under clause (1), Parliament and, subject to clause (2), the
legislature of a State has the power to make laws with respect to goods and services
tax imposed by the Union or by the State. Under clause (2), Parliament has been
entrusted with the exclusive power to make laws with respect to goods and services
tax where the supply of goods, services or both takes place in the course of interstate trade and commerce.
18 “(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2),
the Legislature of every State, have power to make laws with respect to goods and services tax imposed
by the Union or by such State.
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply
of goods, or of services, or both takes place in the course of inter-State trade or commerce.
Explanation. - The provisions of this article, shall, in respect of goods and services tax referred to in
clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax
Council.”
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29 Article 25419 contains provisions for inconsistencies between laws made by
Parliament and by the legislatures of the States. Clause (1) of Article 254 stipulates
that where a State law “is repugnant” to a Parliamentary law which Parliament is
competent to enact or to a provision of an existing law “with respect to one of the
matters enumerated in the Concurrent List”, then the law made by Parliament is to
prevail and the law made by the legislature of a State shall “to the extent of the
repugnancy” be void. The provisions of clause (1) are subject 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
19 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law
made by Parliament which Parliament is competent to enact, or to any provision of an existing law with
respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause
( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such
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
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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:
(i) Firstly, Article 254(1) embodies the concept of repugnancy on subjects within
the Concurrent List on which both the State legislatures and Parliament are
entrusted with the power to enact laws;
(ii) Secondly, a law made by the legislature of a State which is repugnant to
Parliamentary legislation on a matter enumerated in the Concurrent List has
to yield to a Parliamentary law whether enacted before or after the law made
by the State legislature;
(iii) Thirdly, in the event of a repugnancy, the Parliamentary legislation shall
prevail and the State law shall “to the extent of the repugnancy” be void;
(iv) Fourthly, the consequence of a repugnancy between the State legislation
with a law enacted by Parliament within the ambit of List III can be cured if the
State legislation receives the assent of the President; and
(v) Fifthly, the grant of Presidential assent under clause (2) of Article 254 will not
preclude Parliament from enacting a law on the subject matter, as stipulated
in the proviso to clause (2).
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31 A long line of precedent of this Court has developed on the content of the
concept of repugnancy as envisaged in Article 254. It becomes necessary to visit
some of those precedents in order to prepare a jurisprudential foundation for
addressing the central challenge in the present case. In Zaverbhai Amaldas vs
State of Bombay20 (“Zaverbhai”), the contention of the State was that as a result of
the Essential Supplies (Temporary Powers) Act (Act 24 of 1946) which was followed
by amendments in 1948-1949 and 1950, Section 2 of Bombay Act 36 of 1947 had
become inoperative. The amendments of 1948 and 1949 were made when Section
107(2) of the Government of India Act was in force. At the time when the Amending
Act of 1950 was enacted, the Constitution had come into operation. Justice TL
Venkatarama Aiyar speaking for the Constitution Bench, held that there was no
express repeal of the Bombay Act by Central Act 52 of 1950 in terms of the proviso
to Article 254(2). Hence, the question to be decided was whether the amendments
made to the Essential Supplies (Temporary Powers) Act by the Central legislature in
1948, 1949 and 1950 were “further legislation” under Section 107(2) of the
Government of India Act, 1947 or a “law with respect to the same matter” falling
within Article 254(2). In this context, the Court held:
“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
20 (1955) 1 SCR 799
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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 stand together,
then the earlier is repealed by the later enactment, will be
equally applicable to a question under Article 254(2)
whether the further legislation by Parliament is in respect
of the same matter as that of the State law. We must
accordingly hold that Section 2 of Bombay Act 36 of 1947
cannot prevail as against Section 7 of the Essential Supplies
(Temporary Powers) Act 24 of 1946 as amended by Act 52 of
1950.”
(emphasis supplied)
32 The judgement of the Constitution Bench in Tika Ramji (supra) explained the
concept of repugnancy arising by reason of both Parliament and the State
legislature having operated in the same field in respect of a matter enumerated in
the Concurrent List. Justice NH Bhagwati adopted the three tests of repugnancy on
inconsistency spelt out by Nicholas’ text on the Australian Constitution and
observed:
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“27. Nicholas in his Australian Constitution, 2nd Ed., p. 303,
refers to three tests of inconsistency or repugnancy:—
(1) There may be inconsistency in the actual terms of the
competing statutes (R. v. Brisbane Licensing Court, [1920] 28
CLR 23).
(2) Though there may be no direct conflict, a State law
may be inoperative because the Commonwealth law, or the
award of the Commonwealth Court, is intended to be a
complete exhaustive code (Clyde Engineering Co.
Ltd. v. Cowburn, [1926] 37 CLR 466).
(3) Even in the absence of intention, a conflict may
arise when both State and Commonwealth seek to
exercise their powers over the same subject-matter
(Victoria v. Commonwealth, [1937] 58 CLR
618; Wenn v. Attorney-General (Vict.), [1948] 77 CLR 84).”
(emphasis supplied)
Section 109 of the Australia Constitution Act of 190021 envisages a style of
federalism and repugnance in similar terms to the Indian Constitution. Therefore,
Australian jurisprudence would also be instructive in interpreting repugnance
between provisions of the State law against Parliamentary enactments. The
Constitution Bench in Zaverbhai (supra) thereafter moved on to cite other
judgments of the High Court of Australia, observing:
“28. Isaacs, J. in Clyde Engineering Company,
Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down one
test of inconsistency as conclusive: “If, however, a competent
legislature expressly or implicitly evinces its intention to cover
the whole field, that is a conclusive test of inconsistency
where 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]:
21 “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.”
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“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 subjectmatter 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 the particular conduct or matter to which its
attention is directed. When a Federal statute discloses such
an intention, it is inconsistent with it for the law of a State to
govern the same conduct or matter”.
To the same effect are the observations of Evatt, J. in Stock
Motor Plough Ltd. v. Forsyth [(1932) 48 CLR 128, 147]:
“It is now established, therefore, that State and Federal
laws may be inconsistent, although obedience to both laws is
possible. There may even be inconsistency although each
law imposes the very same duty of obedience. These
conclusions have, in the main, been reached, by
ascribing “inconsistency” to a State law, not because the
Federal law directly invalidates or conflicts with it, but
because the Federal law is said to “cover the field”. This
is a very ambiguous phrase, because subject-matters of
legislation bear little resemblance to geographical areas. It is
no more than a cliche for expressing the fact that, by reason
of the subject-matter dealt with, and the method of dealing
with it, and the nature and multiplicity of the regulations
prescribed, the Federal authority has adopted a plan or
scheme which will be hindered and obstructed if any
additional regulations whatever are prescribed upon the
subject by any other authority; if, in other words, the subject is
either touched or trenched upon by State authority”
(emphasis supplied)
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33 The decision has also adverted to a judgment of Justice BN Rau, speaking for
the Calcutta High Court in O P Stewart vs B K Roy22, where it was observed:
“29…
at p.632 “It is sometimes said that two laws cannot be said to
be properly repugnant unless there is a direct conflict
between them, as when one says “do” and the other “don't”,
there is no true repugnancy, according to this view, if it is
possible to obey both the laws. For reasons which we shall
set forth presently, we think that this is too narrow a test:
there may well be cases of repugnancy where both laws say
“don't” but in different ways. For example, one law may say,
“No person shall sell liquor by retail, that is, in quantities of
less than five gallons at a time” and another law may say, “No
person shall sell liquor by retail, that is, in quantities of less
than ten gallons at a time”. Here, it is obviously possible to
obey both laws, by obeying the more stringent of the two,
namely the second one; 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
22 AIR 1939 Cal 628
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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
those of the impugned Act and U.P. Sugarcane Regulation of
Supply and Purchase Order, 1954 passed thereunder.
34…Suffice it to say that none of these provisions do
overlap, the Centre being silent with regard to some of
the provisions which have been enacted by the State and
the State being silent with regard to some of the
provisions which have been enacted by the Centre. There
is no repugnancy whatever between these provisions and the
impugned Act and the Rules framed thereunder as also the
U.P. Sugarcane Regulation of Supply and Purchase Order,
1954 do not trench upon the field covered by Act 10 of 1955.
There being no repugnancy at all, therefore, no question
arises of the operation of Article 254(2) of the Constitution
and no provision of the impugned Act and the Rules made
thereunder is invalidated by any provision contained in Act 65
of 1951 as amended by Act 26 of 1953 or Act 10 of 1955 and
the Sugarcane Control Order, 1955 issued
thereunder.”(emphasis supplied)
34 To complete this trinity of cases we may next advert to the decision in Deep
Chand vs State of UP23. The Constitution Bench dealt inter alia with the issue as to
whether the provisions of the Uttar Pradesh Transport Service (Development) Act,
1955 where repugnant to the provisions of a subsequent Parliamentary enactment–
the Motor Vehicles (Amendment) Act 1956. As in the case of Tika Ramji (supra),
the Court cited the three pronged test of repugnancy formulated by Nicholas in his
text on the Australian Constitution. The Constitution Bench recorded that the
decision in Tika Ramji (supra) had accepted the three rules with the decision in
Zaverbhai (supra) having laid down a similar test. Reformulating the principle,
Justice K Subba Rao in his separate opinion observed:
23 (1959) Supp (2) SCR 8
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“28…
Repugnancy between two statutes may thus be ascertained
on the basis of the following three principles:
(1) Whether there is direct conflict between the two
provisions;
(2) Whether Parliament intended to lay down an
exhaustive code in respect of the subject-matter replacing the
Act of the State Legislature and
(3) Whether the law made by Parliament and the law
made by the State Legislature occupy the same field…”
(emphasis supplied)
The judgment noted that a comparison of the provisions of the UP Act and the
Amending Act indicated that both the legislations were intended 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 Tulloch24, 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
24 (1964) 4 SCR 461
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at a percentage of the value of the mined ore at the pit’s mouth. Entry 23 of the
State List covers “regulation of mines and mineral development subject to the
provisions of List I with respect to regulation and development under the control of
the Union”. Entry 54 of the Union List deals with “regulation of mines and mineral
development to the extent to which such regulation and development under the
control of the Union is declared by Parliament by law to be expedient in the public
interest”. The Parliament subsequently enacted the Mines and Minerals
(Development and Regulation) Act, 1957 which contains the declaration envisaged
by the latter part of Entry 54 of the Union List. The High Court had held that on the
coming into force of the Central Act, the Orissa Act ceased to be operative by
reason of the withdrawal of legislative competence since the entry in the State List is
subject to a Parliamentary declaration and a law enacted by Parliament. Justice N
Rajagopala Ayyangar, speaking for the Constitution Bench, dealt with the issue of
repugnancy in the following observations:
“14…Repugnancy arises when two enactments both within
the competence of the two Legislatures collide and when the
Constitution expressly or by necessary implication provides
that the enactment of one legislature has superiority over the
other then to the extent of the repugnancy the one
supersedes the other. But two enactments may be repugnant
to each other even though obedience to each of them is
possible without disobeying the other. The test of two
legislations containing contradictory provisions is not,
however, the only criterion of repugnancy, for if a
competent legislature with a superior efficacy expressly
or impliedly evinces by its legislation an intention to
cover the whole field, the enactments of the other
legislature whether passed before or after would be
overborne on the ground of repugnance. Where such is
the position, the inconsistency is demonstrated not by a
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detailed comparison of provisions of the two statutes but by
the mere existence of the two pieces of legislation.”
(emphasis supplied)
The Court held that the intent of the subsequent Parliamentary enactment was to
cover the entire field and there was an implied repeal of the Orissa Act.
36 In 1979, a Constitution Bench in M Karunanidhi vs Union of India25 (“M
Karunanidhi”) revisited the issue of repugnancy in the context of the Tamil Nadu
Public Men (Criminal Misconduct) Act, 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
being substantially within the scope of the entries in the State
List entrenches upon any of the Entries in the Central List the
25 (1979) 3 SCC 431
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constitutionality of the law may be upheld by invoking the
doctrine of pith and substance if on an analysis of the
provisions of the Act it appears that by and large the law falls
within the four corners of the State List and entrenchment, if
any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature
on a subject covered by the Concurrent List is inconsistent
with and repugnant to a previous law made by Parliament,
then such a law can be protected by obtaining the assent of
the President under Article 254(2) of the Constitution. The
result of obtaining the assent of the President would be that
so far as the State Act is concerned, it will prevail in the State
and overrule the provisions of the Central Act in their
applicability to the State only. Such a state of affairs will exist
only until Parliament may at any time make a law adding to,
or amending, varying or repealing the law made by the State
Legislature under the proviso to Article 254.”
The Constitution Bench held that although the ingredients of criminal misconduct as
defined in Section 5(1)(d) of the Prevention of Corruption Act were substantially the
same in the State Act as in the Central Acts, the prescribed punishment varied. The
Court held that the State Act did not contain a provision repugnant to the Central
Acts but it was “a sort of complementary Act which runs pari passu the Central
Acts”. The Court held:
“37. Last but not the least there is a very important
circumstance which completely and conclusively clinches the
issue and takes the force out of the argument of Mr
Venugopal on the question of repugnancy. It would be seen
that in the original State Act, Section 29 ran thus:
“Act to override other laws, etc.—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 custom, usage or contract or decree or order of a
court or other authority.”
This section underwent an amendment which was brought
about by Tamil Nadu Act 16 of 1974 which substituted a new
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Section 29 for the old one. The new section which was
substituted may be extracted thus:
“Saving—The provisions of this Act shall be in addition to,
and not in 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 the State Act. 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 one of the important tests to find out as to whether
or not there is repugnancy is to ascertain the intention of the
legislature regarding the fact that the dominant legislature
allowed the subordinate legislature to operate in the same
field pari passu the State Act.”
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Since the State Act created distinct and separate offences with different ingredients
and different punishments, it was held not to collide with the Central Acts. Another
feature of the State Act in M Karunanidhi (supra) was that as originally enacted, the
legislation contained a provision (Section 29) giving overriding effect to its
provisions, notwithstanding anything inconsistent contained in any other law for the
time being in force”. Subsequently, by Tamil Nadu Act 16 of 1959, a new Section 29
was substituted. The substituted Section 29 provided that the provisions of the Act
were in addition to and not in derogation of any other law for the time being in force
and nothing in the Act would exempt a “public man” from any proceeding by way of
an investigation or otherwise, which might apart from the Act be instituted against
them. The amendment received the assent of the President on 10 April 1974 and
was published in the Gazette on 16 April 1974. The State Act though enacted in
December 1973 received the assent of the President 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
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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 one of the important tests to
find out as to whether or not there is repugnancy is to
ascertain the intention of the legislature regarding the
fact that the dominant legislature allowed the
subordinate legislature to operate in the same field pari
passu the State Act.”
(emphasis supplied)
37 A three judge Bench of this Court in Hoechst Pharmaceuticals Ltd. vs State
of Bihar26, considered the constitutional validity of Section 5(1) of the Bihar Finance
Act, 1981 which provided for the levy of a surcharge on every dealer, whose gross
turnover during a year exceeded Rs 5 lacs, in addition to the tax payable by him.
The Act received the assent of the President. The challenge was on the ground that
the price fixation of essential commodities in general and drugs and formulations in
particular was an occupied field by various Control orders issued by the Union
government under Section 3(1) of the Essential Commodities Act 1955, Justice AP
Sen, speaking for the three judge Bench, rejected the arguments of the appellant
that there was a repugnancy between sub-Section (3) of Section 5 which was
relatable to Entry 54 of List II and the Control order issued by the Central
government under Section 3(1) of the Essential Commodities Act relatable to Entry
33 of List III. The Court held that the question of repugnancy under Article 254(1)
between a law made by Parliament and the law made by the State legislature arises
only in case both the legislations occupy the same field with respect to one of the
26 (1983) 4 SCC 45
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matters enumerated the Concurrent List and there is a direct conflict between the
two laws. Article 254(1), it held, has no application to cases of repugnancy due to
overlapping found between List II on the one hand and Lists I and III on the other. In
such a case, the State law will fail not because of the repugnancy to the Union law
but due to want of legislative competence. The Court rejected the argument that
sub-Section (3) of Section 5 being a State law must be struck down as ultra vires on
the ground that the fixation of the price of essential commodities was an occupied
field covered by central legislation. The power of the State legislature to make a law
with respect to the levy and imposition of a tax on the sale or purchase of goods
(relatable to Entry 54 of List II) and to make ancillary provisions is plenary and was
not subject to the power 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.27, 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
27 (2012) 7 SCC 106
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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 Section 3
which gave overriding effect to the law enacted by Parliament. Moreover, Section 90
provided for the repeal of State legislations, manifesting, in the view of the Court, an
intent of Parliament to occupy the field hitherto occupied by the State legislations.
The Court observed that every aspect relating to the conduct of chits as was
covered by the State Act had been touched upon by the Central Act in a more
comprehensive manner. The Court held that on the enactment of the Central
legislation on 19 August 1982, intending to occupy the entire subject of chits under
Entry 7 of List II, the State Legislature was denuded of its power to enact a law on
the subject.
39 A two judge Bench of this Court in Innoventive Industries Ltd. vs ICICI
Bank28 (“Innoventive Industries”), dealt with the provisions of the Maharashtra
Relief Undertakings (Special Provisions) Act 1958 vis-à-vis the provisions of the
IBC. Speaking through Justice RF Nariman the court held that the IBC is an
exhaustive code on the subject matter of insolvency in relation to corporate entities,
referable to Entry 9 of List III of the Seventh Schedule which deals with “bankruptcy
and insolvency”. On the other hand, the subject covered by the Maharashtra
legislation fell within Entry 23 of List III which deals with “social security and social
28 (2018) 1 SCC 407
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insurance; employment and unemployment”. IBC was held to prevail after adverting
to the earlier line of precedent, the Court formulated the three tests of repugnancy in
the following terms:
“51.6. Repugnancy may be direct in the sense that there is
inconsistency in the actual terms of the competing statutes
and there is, therefore, a direct conflict between two or more
provisions of the competing statutes. In this sense, the
inconsistency must be clear and direct and be of such a
nature as to bring the two Acts or parts thereof into direct
collision with each other, reaching a situation where it is
impossible to obey the one without disobeying the other.
This happens when two enactments produce different legal
results when applied to the same facts.
51.7. Though there may be no direct conflict, a State law
may be inoperative because the Parliamentary law is
intended to be a complete, exhaustive or exclusive code. In
such a case, the State law is inconsistent and repugnant,
even though obedience to both laws is possible, because so
long 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 subjectmatter. 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 thereof is identical with that of
the Parliamentary legislation, so that they cannot both stand
together, then the State legislation will be said to be
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repugnant to the Parliamentary legislation. However, if the
State legislation or part thereof deals not with the matters
which formed the subject-matter of Parliamentary legislation
but with other and distinct matters though of a cognate and
allied nature, there is no repugnancy.”
40 Our journey of tracing the precedents of this Court, commencing from
Zaverbhai (supra) up until Innoventive Industries (supra) indicates a thread of
thought dwelling on when, within the meaning of Article 254(1), a law made by the
legislature of a State can be considered to be repugnant to a provision of a law
made by Parliament with respect to one of the matters in the Concurrent List which
Parliament is competent to enact. The doctrine of repugnancy under Article 254(1)
operates within the fold of the Concurrent List. Clause (1) of Article 254 envisages
that the law enacted by Parliament will prevail and the law made by the legislature of
the State shall be void “to the extent of repugnancy”. Clause (1) does not define
what is meant by repugnancy. The initial words of Clause (1) indicate that the
provision deals with a repugnancy between a law enacted by the State legislature
with: (i) A provision of a law made by Parliament which it is competent to enact; or
(ii) To any provision of an existing law; and (iii) with respect to one of the matters
enumerated in the Concurrent List.
41 The initial part of Clause (1) alludes to a law enacted by a state legislature
being “repugnant” to a law enacted by Parliament or to an existing law. The
concluding part of clause 1 provides for a consequence, namely that the State law
would be void “to the extent of the repugnancy” and the Parliamentary enactment
shall prevail. The concept of repugnancy emerges from the decisions of this Court
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which have elaborated on the context of clause (1) of Article 254. Clause (2) of
Article 254 has also employed the expression “repugnant” while providing that a law
enacted by the legislature of a State which is repugnant to a law enacted by
Parliament or an existing law on a matter within the Concurrent List shall, if it has
received the assent of the President, prevail in the State. The decisions of this Court
essentially contemplate three types of repugnancy:
(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
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nature of the legislation enacted by Parliament is such as to constitute a
complete and exhaustive Code on the subject; and
(iii) The third test of repugnancy is where the law enacted by Parliament and by
the State legislature regulate the same subject. In such a case the
repugnancy does not arise because of a conflict between the fields covered
by the two enactments but because the subject which is sought to be covered
by the State legislation is identical to and overlaps with the Central legislation
on the subject.
42 The distinction between the first test on the one hand with the second and
third tests on the other lies in the fact that the first is grounded in an irreconcilable
conflict between the provisions of the two statutes each of which operates in the
Concurrent List. The conflict between the two statutes gives rise to a repugnancy,
the consequence of which is that the State legislation will be void to the extent of the
repugnancy. The expression ‘to the extent of the repugnancy’ postulates that those
elements or portions of the state law which run into conflict with the central
legislation shall be excised on the ground that they are void. The second and third
tests, on the other hand, are not grounded in a conflict borne out of a comparative
evaluation of the text of the two provisions. Where a law enacted by Parliament is an
exhaustive Code, the second test may come into being. The intent of Parliament in
enacting an exhaustive Code on a subject in the Concurrent List may well be to
promote uniformity and standardization of its legislative scheme as a matter of public
interest. Parliament in a given case may intend to secure the protection of vital
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interests which require a uniformity of law and a consistency of its application all
over the country. A uniform national legislation is considered necessary by
Parliament in many cases to prevent vulnerabilities of a segment of society being
exploited by an asymmetry of information and unequal power in a societal context.
The exhaustive nature of the Parliamentary code is then an indicator of the exercise
of the State’s power to legislate being repugnant on the same subject. The third test
of repugnancy may arise where both the Parliament and the State legislation cover
the same subject matter. Allowing the exercise of power over the same subject
matter would trigger the application of the concept of repugnancy. This may
implicate the doctrine of implied 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
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of a Parliamentary intent to override anything inconsistent or in conflict with its
provisions. The Parliamentary legislation may also stipulate that its provisions are in
addition to and not in derogation of other laws. Those other laws may be specifically
referred to by name, in which event this is an indication that the operation of those
specifically named laws is not to be affected. Such a legislative device is often
adopted by Parliament by saving the operation of other Parliamentary legislation
which is specifically named. When such a provision is utilized, it is an indicator of
Parliament intending to allow the specific legislation which is enlisted or enumerated
to exist unaffected by a subsequent law. Alternatively, Parliament may provide that
its legislation shall be in addition to and not in derogation of other laws or of
remedies, without specifically elucidating specifically any other legislation. In such
cases where the competent legislation has been enacted by the same legislature,
techniques such as a harmonious construction can be resorted to in order to ensure
that the operation of both the statutes can co-exist. Where, however, the competing
statutes are not of the same legislature, it then becomes necessary to apply the
concept of repugnancy, bearing in mind the intent of Parliament. The primary effort
in the exercise of judicial review must be an endeavour to harmonise. Repugnancy
in other words is not an option of first choice but something which can be drawn
where a clear case based on the application of one of the three tests arises for
determination.
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H.3 Repugnancy – RERA and WB-HIRA
43 While proceeding with the analysis on the basis of the above foundation, two
aspects of the RERA must be noticed at the fore-front. Firstly, the RERA factors in
the existence of municipal or local authorities constituted under State legislation
whose powers and functions in regard to the development of land are regulated by
legislation enacted by the State legislatures. The RERA recognizes that local bodies
constituted under laws enacted by the State legislatures regulate diverse aspects of
construction activity as an incident of the development of land. Secondly, in diverse
provisions, the RERA has imposed the duty of complying with its regulatory
provisions upon the ‘appropriate government’. This expression encompasses, in
respect of matters relating to the State, the State 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.
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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” adverts to a building or
construction permit issued by “the competent authority” to allow or permit the
promoter to begin the development work on an immoveable property in accordance
with the sanctioned plan. This definition incorporates the notion of a “competent
authority” (which is defined in Section 2(p)), and of a sanctioned plan (which is
defined in Section 2(zq)). The expression ‘competent authority’ is defined as follows:
“(p) "competent authority" means the local authority or any
authority created or established under any law for the time
being in force by the appropriate Government which
exercises authority over land under its jurisdiction, and has
powers to give permission for development of such
immovable property;”
The above definition refers to a local authority or an authority created or established
under any law for the time being in force by the appropriate government, exercising
authority over land within its jurisdiction, with powers to permit the development of
immoveable property.
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46 The expression ‘sanctioned plan’ is defined in Section 2(zq) in the following
terms:
“(zq) "sanctioned plan" means the site plan, building plan,
service plan, parking and circulation plan, landscape plan,
layout plan, zoning plan and such other plan and includes
structural designs, if applicable, permissions such as
environment permission and such other permissions, which
are approved by the competent authority prior to start of a
real estate project;”
47 The expression ‘planning area’ is defined in Section 2(zh) in the following
terms:
“(zh) "planning area" means a planning area or a
development area or a local planning area or a regional
development plan area, by whatever name called, or any
other area specified as such by the appropriate Government
or any competent authority and includes any area designated
by the appropriate Government or the competent authority to
be a planning area for future planned development, under the
law relating to Town and Country Planning for the time being
in force and as revised from time to time;”
The above definition of a planning area clearly incorporates a reference to its
designation by an appropriate government or a competent authority including an
area designated for ‘future plannned development’ under the law relating to town
and country plaining for the time being in force, and as revised from time 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.
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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 services, as the case
may be, in respect of areas under its jurisdiction;”
The above definition recognizes the existence of municipal corporations,
municipalities or Panchayats and local bodies constituted under any law for the time
being in force for providing municipal services or basic services in respect of the
areas under its jurisdiction.
50 The definition of “occupancy certificate” in Section 2(zf) is as follows:
“(zf) "occupancy certificate" means the occupancy certificate,
or such other certificate by whatever name called, issued by
the competent authority permitting occupation of any building,
as provided under local laws, which has provision for civic
infrastructure such as water, sanitation and electricity;”
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The above definition recognizes that occupancy certificates are issued by a
competent authority permitting the occupation of the building under local laws upon
being satisfied that the building has provision for civic infrastructure such as water,
sanitation or electricity.
51 Among the definitions provided in Section 2, clause (zr) stipulates that:
“(zr) words and expressions used herein but not defined in
this Act and defined in any law for the time being in force or in
the municipal laws or such other relevant laws of the
appropriate Government shall have the same meanings
respectively assigned to them in those laws”
In other words, those expressions and words which are used in the RERA but for
which there is no definition in Section 2 are to have a meaning ascribed to them “in
any law for the time being in force or in the municipal laws or such other relevant
laws of the appropriate government”.
52 The above provisions of RERA are indicative of the fact that Parliament was
conscious of the position that diverse activities relating to construction projects are
governed by municipal and local legislation. There is an existence in the States of
various regimes of town and country planning governed by State enactments and
regulations have been framed under them. Likewise, municipal and local laws
govern diverse aspects of construction activity in real estate projects including the
application for development, nature and extent of permissible development on land,
issuance of commencement certificates allowing the promoter to begin development
of an immoveable property, completion certificates certifying the completion of the
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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 is that its diverse
provisions are regulated and enforced by the real estate regulatory authority which is
constituted under Section 20 by the appropriate government. The appropriate
government as noticed in Section 2(g) means the State government in respect of
matters relating to the State. The appointment of the real estate regulatory authority
is envisaged to be made by the appropriate government under Section 21. The
power of removal is entrusted to the appropriate government under Section 26. The
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appointment of officers and employees of the authority is entrusted to the
appropriate government under Section 28. Section 32 requires the authority to make
recommendations to the appropriate government or the competent authority, as the
case may be, to facilitate the growth and promotion of a healthy, transparent,
efficient and competitive real estate sector. The authority is entrusted with regulatory
functions to ensure compliance with the substantive norms envisaged from Sections
3 to 19. Section 3 requires the promoter to first register a real estate project with the
real estate regulatory authority before advertising, marketing, booking, selling or
offering for sale or inviting persons to purchase a plot, apartment or building in a real
estate project. The authority receives applications for registration under Section 4
and it has a statutory role under Section 5 in regard to the grant of registration, in
Section 6 for the extension of registration and in Section 7 for the revocation of
registration. Upon the lapsing or revocation of the registration, the authority is
entrusted with certain powers under Section 8. Likewise, in the sphere of regulating
real estate agents, the authority is entrusted with the power of registration under
Section 9. Chapter III of the RERA specifies the functions and duties of promoters.
Section 11 requires the promoter upon the grant of registration to create a web-page
on the website of the authority. Sections 12 and 13 impose positive obligations on
the promoter. Section 14 requires the promoter to adhere to sanctioned plans,
layouts and specifications as approved by the competent authority. Section 18
provides for the return of the amount received by the promoter and payment of
compensation if the promoter has failed to complete and is unable to give
possession of an apartment, flat or building. The rights and duties of allottees are
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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 7129, contemplated the appointment of adjudicating officers for
29 “71. Power to adjudicate.
(1) For the purpose of adjudging compensation under sections 12, 14, 18 and section 19, the Authority
shall appoint in consultation with the appropriate Government one or more judicial officer as deemed
necessary, who is or has been a District Judge to be an adjudicating officer for holding an inquiry in the
prescribed manner, after giving any person concerned a reasonable opportunity of being heard: Provided
that any person whose complaint in respect of matters covered under sections 12, 14, 18 and section 19
is pending before the Consumer Disputes Redressal Forum or the Consumer Disputes Redressal
Commission or the National Consumer Redressal Commission, established under section 9 of the
Consumer Protection Act, 1986, on or before the commencement of this Act, he may, with the permission
of such Forum or Commission, as the case may be, withdraw the complaint pending before it and file an
application before the adjudicating officer under this Act.
(2) The application for adjudging compensation under sub-section (1), shall be dealt with by the
adjudicating officer as expeditiously as possible and dispose of the same within a period of sixty days
from the date of receipt of the application: Provided that where any such application could not be
disposed of within the said period of sixty days, the adjudicating officer shall record his reasons in writing
for not disposing of the application within that period.
(3) While holding an inquiry the adjudicating officer shall have power to summon and enforce the
attendance of any person acquainted with the facts and circumstances of the case to give evidence or to
produce any document which in the opinion of the adjudicating officer, may be useful for or relevant to the
subject matter of the inquiry and if, on such inquiry, he is satisfied that the person has failed to comply
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adjudging compensation under Sections 12, 14, 18 and 19. These adjudicating
officers are to be appointed by the authority in consultation with the appropriate
government.
57 Chapter IX provides for finance, accounts, audits and reports. Under Section
73, the Central government is empowered to make grants and loans to the authority
upon due appropriation by Parliament. A similar power is entrusted to the State
government under Section 74. Section 75 contemplates the constitution of a fund
called the Real Estate Regulatory Fund by the appropriate government. Section 77
requires the preparation of a budget and maintenance of accounts and other records
as well as preparation of an annual statement of accounts by the authority in such
form as is prescribed by the appropriate government in consultation with the
Comptroller and Auditor General of India. The annual report of the authority is under
Section 78(2) required to be placed before each House of Parliament, or as the case
may be, before the State legislature or Union Territory legislature. Section 82
entrusts to the appropriate government the statutory powers to supersede the
authority. Section 83 empowers the appropriate government to issue directions to
the authority. Section 84 entrusts a rule making power to the appropriate
government. This review of the provisions of the RERA emphasizes the second
facet of the law which is that the statutory duty to ensure the implementation of the
legislation is entrusted to the appropriate government which in the case of the states
means the state government.
with the provisions of any of the sections specified in sub-section (1), he may direct to pay such
compensation or interest, as the case any be, as he thinks fit in accordance with the provisions of any of
those sections.”
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58 Now, it is in this background that it becomes necessary to analyze the
provisions of Sections 88 and 89 of the RERA. Section 88 stipulates that the
application of other laws is not barred: the provisions of the legislation “shall be in
addition to, and not in derogation of, the provisions of any other law for the time
being in force”. At the same time, Section 89 provides for overriding effect to the
provisions of the RERA when it stipulates that it “shall have effect, notwithstanding
anything inconsistent therewith contained in any other law for the time being in
force”. The interpretation of these provisions and their interplay will have an
important bearing on the outcome of the present controversy. This is because, as
we noticed earlier in this judgment, the State of West Bengal had originally
supported its legislative authority over the subject governed by WB-HIRA on the
ground that the state enactment falls within the 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
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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 RERA contains an
expression that its provisions shall be in addition to, and not in derogation of any
other law for the time in force; this being an indicator that Parliament contemplated
that the RERA can co-exist with analogous State legislation; thirdly, the
inconsistencies between WB-HIRA and RERA are of a minor nature and wherever
the State enactment contains provisions at variance with the Central law, the former
will have to yield to the latter, and fourthly, the provisions of Section 92 of the RERA
demonstrate that where Parliament intended to repeal a specific State legislation –
Maharashtra Act No II of 2014 - only that legislation was repealed.
59 While considering these submissions which have been articulated by Mr
Rakesh Dwivedi, learned Senior Counsel, it becomes necessary to dwell on two
lines of precedent of this Court. The first line of precedent analyses provisions
analogous to Section 88 of the RERA and would shed light on what is the ambit of a
provision which states that the statute is in addition to and not in derogation of any
other law for the time being in force. The second line of precedent explores the
meaning of the expression ‘in any other law for the time being in force’. Does this
expression in Section 88 freeze the applicability of that provision to laws which were
in force when the RERA enacted or does it also apply to laws which may be enacted
subsequently?
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H.3.1 Meaning of “is in addition to and not in derogation of any other law”
60 The first line of precedent will facilitate judicial evaluation of Section 88. In M
D Frozen Foods Exports Private Limited vs Hero Fincorp Limited30, a Bench of
two judges of this Court analyzed three issues of which the first is of relevance to the
present case. That issue was:
“11.1. (i) Whether the arbitration proceedings initiated by the
respondent can be carried on along with
the SARFAESI proceedings simultaneously”
The appellant in that case had borrowed monies from the respondent by creating a
mortgage against deposit of title deeds. The account became a non-performing
asset resulting in the lender invoking the arbitration clause of the agreement with the
borrower. Prior to it, a notification was issued under which the provisions of the
Securitization and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 (“SARFAESI Act”) 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
30 (2017) 16 SCC 741
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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 Justice Sanjay Kishan Kaul adverted to the above definition in the course of
the judgment. The Court noted the earlier decision in Transcore vs Union of India31
holding that by virtue of Section 37, the SARFAESI Act is in addition to and not in
derogation of the provisions of the Recovery of Debts Due to Banks and Financial
Institutions Act 1993 (“RDDB Act”). The “only twist” was that instead of the recovery
process being under the RDDB Act, the Court was concerned with an arbitration
proceeding. In this context, the Court observed:
“30. The only twist in the present case is that, instead of the
recovery process under the RDDB Act, we are concerned
with an arbitration proceeding. It is trite to say that arbitration
is an alternative to the civil proceedings. In fact, when a
question was raised as to whether the matters which came
within the scope and jurisdiction of the Debt Recovery
Tribunal under the RDDB Act, could still be referred to
arbitration when both parties have incorporated such a
clause, the answer was given in the affirmative. [HDFC Bank
Ltd. v. Satpal Singh Bakshi, 2012 SCC OnLine Del 4815:
(2013) 134 DRJ 566] That being the position, the appellants
can hardly be permitted to contend that the initiation of
arbitration proceedings would, in any manner, prejudice their
rights to seek relief under the SARFAESI Act.”
31 (2008) 1 SCC 125
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There was, in other words, no question of an election of remedies and the provisions
of the SARFAESI Act provide a remedy in addition to the provisions of the
Arbitration Act. SARFAESI proceedings, the Court held, are in the nature of
enforcement proceedings, while arbitration is an “adjudicatory process”.
62 In KSL and Industries Limited vs Arihant Threads Limited32 (“KSL and
Industries”), a three judge Bench of this Court considered a reference made by a
two judge Bench following a difference of opinion on the interpretation of Section 34
of the RDDB Act. In that case, the High Court had set aside the order of the Debts
Recovery Appellate Tribunal, in view of the bar contained in Section 22 of the Sick
Industrial Companies (Special Provisions) Act 1985 (“(SICA”). Section 32 of the
SICA contained a provision giving overriding force notwithstanding anything
inconsistent contained in any other law except the Foreign Exchange Regulation Act
1973 and the Urban Land (Ceiling and Regulation) Act 1976, among 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.”
32 (2015) 1 SCC 166
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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 Financial Corporations Act, 1951 (63 of 1951), the Unit
Trust of India Act, 1963 (52 of 1963), the Industrial
Reconstruction Bank of India Act, 1984 (62 of 1984), the Sick
Industrial Companies (Special Provisions) Act, 1985 (1 of
1986) and the Small Industries Development Bank of India
Act, 1989 (39 of 1989).”
Now, sub-Section (1) of Section 34 gives overriding effect to the RDDB Act
notwithstanding anything inconsistent contained in any other law for the time being
in force. On the other hand, sub-Section (2) provides that the provisions of the Act
and its rules would be in addition to and not in derogation of certain other named
statutes. Adverting to the provisions of Section 34(2), Justice SA Bobde (as the
learned Chief Justice then was) observed;
“36 [Ed.: Para 36 corrected vide Official Corrigendum No.
F.3/Ed.B.J./61/2014 dated 25-11-2014.] . Sub-section (2)
was added to Section 34 of the RDDB Act w.e.f. 17-1-2000 by
Act 1 of 2000. There is no doubt that when an Act provides,
as here, that its provisions shall be in addition to and not in
derogation of another law or laws, it means that the
legislature intends that such an enactment shall coexist along
with the other Acts. It is clearly not the intention of the
legislature, in such a case, to annul or detract from the
provisions of other laws. The term “in derogation of” means
“in abrogation or repeal of”. The Black's Law Dictionary sets
forth the following meaning for “derogation”:
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“derogation.—The partial repeal or abrogation of a law by
a later Act that limits its scope or impairs its utility and force.”
It is clear that sub-section (1) contains a non obstante clause,
which gives the overriding effect to the RDDB Act. Subsection (2) acts in the nature of an exception to such an
overriding effect. It states that this overriding effect is in
relation to certain laws and that the RDDB Act shall be in
addition to and not in abrogation of, such laws. SICA is
undoubtedly one such law.”
The Court held that the effect of sub-Section (2) was to preserve the powers of the
authorities under the SICA and save the proceedings from being overridden by the
RDDB Act. The Court held that both SICA and the RDDB Act were special laws
within their own sphere:
“39. There is no doubt that both are special laws. SICA is a
special law, which deals with the reconstruction of sick
companies and matters incidental 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
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against the company and its properties should be stayed
pending the process of reconstruction. While the term
“proceedings” under Section 22 of SICA did not originally
include the RDDB Act, which was not there in existence.
Section 22 covers proceedings under the RDDB Act.”
Consequently, the Court answered the reference by holding that the provisions of
SICA, in particular Section 22, shall prevail over the provisions for the recovery of
debts in the RDDB Act.
63 To complete this trinity of judgments between 2015 and 2019, there is a three
judge Bench decision of this Court in Pioneer Urban Land and Infrastructure
Limited vs Union of India33. This Court considered a challenge to the constitutional
validity of the amendments made in 2018 to the IBC 2016, pursuant to a report of
the Insolvency Law Committee. Under the amended provisions, allottees of real
estate projects were deemed to be financial creditors, triggering the applicability of
the Code to real estate developers. The three judge Bench considered, in the course
of its decision, the provisions of the RERA. The Court adverted to the provisions of
Sections 88 and 89 of the RERA on the one hand and to Section 238 of the IBC
which is in the following terms:
“238. Provisions of this Code to override other laws.—The
provisions of this Code 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.”
Justice RF Nariman speaking for the three judge Bench noted that
33 (2019) 8 SCC 416
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(i) There is no provision analogous to Section 88 of the RERA in the IBC and the
latter is meant to be a compete and exhaustive statement of the law insofar
as its subject matter is concerned;
(ii) While the non-obstante clause of RERA came into force on 1 May 2015, the
non-obstante clause of IBC came into force on 1 December 2016; and
(iii) The amendments to the IBC had come into force on 6 June 2018.
In this backdrop, the Court did not accept the submission that RERA being a special
enactment would have precedence over the IBC which is a general enactment
dealing with insolvency. In this backdrop, the Court observed:
“25…From the introduction of the Explanation to Section
5(8)(f) of the Code, it is clear that Parliament was aware of
RERA, and applied some of its definition provisions so that
they could apply when the Code is to be interpreted. The fact
that RERA is in addition to and not in derogation of the
provisions of any other 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
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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 clause
contained in the Recovery Act is later in time than the non
obstante clause contained in the Sick Act, in the event of a
conflict, the Recovery Act i.e. the later Act must give way to
the Sick Act i.e. the earlier Act. Several judgments were
referred to in which ordinarily a later Act containing a non
obstante clause must be held to have primacy over an earlier
Act containing a non obstante clause, as Parliament must be
deemed to be aware of the fact that the later Act is intended
to override all earlier statutes including those which contained
non obstante clauses. This statement of the law was departed
from in KSL & Industries [KSL & Industries Ltd. v. Arihant
Threads Ltd., (2015) 1 SCC 166 : (2015) 1 SCC (Civ) 462]
only because of the presence of a section like Section 88 of
RERA contained in the Recovery Act, which makes it clear
that the Act is meant to be in addition to and not in derogation
of other statutes. In the present case, it is clear that both tests
are satisfied, namely, that the Code as amended, is both later
in point of time than RERA, and must be given precedence
over RERA, given Section 88 of RERA.”
Therefore, the Court held that RERA and the IBC must be held to co-exist and in the
event of a clash, RERA must give way to the IBC.
H.3.2 Meaning of “law for the time being in force”
64 The second line of precedent has been relied upon by Mr Rakesh Dwivedi on
behalf of the State of West Bengal, as an aid to the construction of the expression
“law for the time being in force”. In the decision of the Constitution Bench in
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Sasanka Sekhar Maity vs Union of India34, Justice AP Sen construed the
provisions of the second proviso to Article 31-A(1) of the Constitution and the
expression “any law for the time being in force”. The argument was that this
expression must mean the West Bengal Estate Acquisition Act, 1953 only. Rejecting
the submission, the Constitution Bench held:
“27. Such a construction, if we may say so, would create a
serious impediment to any kind of agrarian reform. The ceiling
on agricultural holdings, once fixed cannot be static,
unalterable for all times. The expression “any law for the
time being in force” obviously refers to the law imposing
a ceiling. Here it is the West Bengal Land Reforms
(Amendment) Act, 1971 (President's Act 3 of 1971) and
now the West Bengal Land Reforms (Amendment) 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 India35, 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
34 (1980) 4 SCC 716 35 (1999) 9 SCC 334
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Bombay and Madhya Pradesh, which had held that the expression not only refers to
the law in force at the time when the arbitration was entered into but also to any law
that may be in force in the conduct of the arbitration proceeding. Speaking for the
bench, Justice DP Wadhwa held:
“35. Parties can agree to the applicability of the new Act even
before the new Act comes into force and when the old Act is
still holding the field. There is nothing in the language of
Section 85(2)(a) which bars the parties from so agreeing.
There is, however, a bar that they cannot agree to the
applicability of the old Act after the new Act has come into
force when arbitral proceedings under the old Act have not
commenced though the arbitral agreement was under the old
Act. Arbitration clause in the contract in the case of Rani
Constructions (Civil Appeal No. 61 of 1999) uses the
expression “for the time being in force” meaning thereby
that provision of that Act would apply to the arbitration
proceedings which will be in force at the relevant time
when arbitration proceedings are held. We have been
referred to two decisions — one of the Bombay High
Court and the other of the Madhya Pradesh High Court
on the interpretation of the expression “for the time
being in force” and we agree with them that the
expression aforementioned not only refers to the law in
force at the time the arbitration agreement was entered
into but also to any law that may be in force for the
conduct of arbitration proceedings, which would also
include the enforcement of the award as well. The
expression “unless otherwise agreed” as appearing in Section
85(2)(a) of the new Act would clearly apply in the case of
Rani Constructions in Civil Appeal No. 61 of 1999. Parties
were clear in their minds that it would be the old Act or any
statutory modification or re-enactment of that Act which would
govern the arbitration. We accept the submission of the
appellant Rani Constructions that parties could anticipate that
the new enactment may come into operation at the time the
disputes arise. We have seen Section 28 of the Contract Act.
It is difficult for us to comprehend that arbitration agreement
could be said to be in restraint of legal proceedings. There is
no substance in the submission of the respondent that parties
could not have agreed to the application of the new Act till
they knew the provisions thereof and that would mean that
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any such agreement as mentioned 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 Gupta36, 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 rules. Justice SB Majmudar held that
whenever the question of the regulation of conditions of service of municipal officers
comes up for consideration, the relevant rules in force at that time have to be looked
into. As such, the scope and ambit could not be frozen as of 1959. Hence, the
phraseology “rules for the time being in force” would necessarily mean rules in force
from time to time and not the rules in force only at a fixed point of time in 1959.
36 (2000) 10 SCC 115
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67 Another two judge Bench of this Court in Yakub Abdul Razak Memon vs
State of Maharashtra37, while construing the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000 and its interplay with Terrorist and
Disruptive Activities (Prevention) Act, 1987, speaking through Justice P Sathasivam
(as the learned Chief Justice was then), held:
“1554. Section 1(4) of the JJ Act was added by amendment
with effect from 22-8-2006. In fact, this provision gives the
overriding effect to this Act over other statutes. However, it
reads that the Act would override “anything contained in any
other law for the time being in force”. The question does arise
as to whether the statutory provisions of the JJ Act would
have an overriding effect over the provisions of TADA which
left long back and was admittedly not in force on 22-8-2006.
Thus, the question does arise as what is the meaning of
the law for the time being in force. This Court has
interpreted this phrase to include the law in existence on
the date of commencement of the Act having overriding
effect and the law which may be enacted in future during
the life of the Act having overriding effect. (Vide Thyssen
Stahlunion GmbH v. SAIL [(1999) 9 SCC 334 : AIR 1999 SC
3923] and MCD v. Prem Chand Gupta [(2000) 10 SCC 115 :
2000 SCC (L&S) 404] .)”
(emphasis supplied)
68 In Union Territory of Chandigarh vs Rajesh Kumar Basandhi38, Justice
Brijesh Kumar considered the expression “for the time being in force” in the law
lexicon and held that it must be interpreted keeping in mind the context in which it is
used:
“10. A perusal of the meaning of the expression “for the time
being” by different authors, based on decided cases makes it
37 (2013) 13 SCC 1 38 (2003) 11 SCC 549
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clear that it cannot be said that it must in every case indicate
a single period of time. It may be for an indefinite period of
time depending upon the context in which the phrase 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 Gandhi39, 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 of
this Act shall be in addition to, and not in derogation of, the
provisions of the Ancient Monuments Preservation Act, 1904
(7 of 1904) or the Ancient Monuments and Archaeological
Sites and Remains Act, 1958 (24 of 1958), or any other law
for the time being in force.”
Justice KM Joseph, speaking for the two judge Bench, observed:
“39. We would think that though the words “any other law
for the time being in force” have been used, the context
39 (2020) 13 SCC 521
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for the use of the provision is not to be overlooked. We
have referred to the relevant provisions of the two
specific enactments which show that the said legislation
also deals with antiquities as it deals with cognate
subjects, namely, ancient monuments and archaeological
sites. The common genus is manifest. The legislative
intention was to declare that the Antiquities Act should
not result in the provision contained in allied or cognate
laws being overridden upon passing of the Antiquities
Act. Full play was intended for the provisions contained
in relation to antiquities contained in the two enactments.
Despite the passage of the Antiquities Act, a prosecution
for instance would be maintainable if a case is otherwise
made out under the two enactments in relation to
antiquity. The Antiquities Act in other words is not to be
in derogation of those provisions. They were to
supplement the existing laws. It is therefore in the same
context that we should understand the words “any other
law for the time being in force”. For instance, there may be
laws made by the State Legislatures which relate to antiquity.
There may be any other law which deal with a subject with a
common genus of which the specific law would be an integral
part. It is all such laws which legislature intended to
comprehend within the expression “any other law for the time
being in force”. Take for example, a case where there is a
theft of an antiquity. Can it be said that the prosecution under
Section 379 would not be maintainable. The answer will be an
emphatic No. Certainly, the prosecution will lie. The Sale of
Goods Act, 1930 which relates to movable items generally will
be applicable, to the extent that it is not covered by any
provision in the Acts in question. The Contract Act, 1872 may
continue to be applicable. But it is not the question of applying
general laws that engage the attention of the legislature. The
intention behind Section 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)
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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 Sinitha40, 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 Motor Vehicles Act, 1988, in which Section 163A was subsequently inserted. In
the context of adjustment of compensation, a two judge Bench of this Court held that
Section 144 would not override Section 163A because of the use of the expression
“laws for the time being in force” would encompass only existing provisions of the
Motor Vehicles Act, 1988, and not those inserted in the Act later. Speaking for the
Bench, Justice JS Khehar (as the learned Chief Justice was then) observed:
“16. Section 144, it may be pointed out, is a part of Chapter X
of the Motor Vehicles Act, 1988, which includes Section 140.
Section 144 of the Act is being extracted herein:
“144.Overriding effect.—The provisions of this Chapter shall
have effect notwithstanding anything contained in any other
provision of this Act or of any other law for the time being in
force.”
40 (2012) 2 SCC 356
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Even though Section 144 of the Act mandates that the
provisions of Chapter X (which includes Section 140) have
effect notwithstanding anything to the contrary contained in
any other provision of the Act or in any other law for the time
being in force, Section 144 of the Act would not override the
mandate contained in Section 163-A for the simple reason
that Section 144 provided for such effect over provisions “for
the time being in force” i.e. the provisions then existing, but
Section 163-A was not on the statute book at the time when
Section 144 was incorporated therein. Therefore the
provisions contained in Chapter X would not have overriding
effect over Section 163-A of the Act.
17. As against the aforesaid, at the time of incorporation of
Section 163-A of the Act, Sections 140 and 144 of the Act
were already subsisting, as such, the provisions of Section
163-A which also provided by way of a non obstante clause,
that it would have by a legal fiction overriding effect over all
existing provisions under the Act as also any other law or
instrument having the force of law “for the time being in
force”, would have overriding effect, even over the then
existing provisions in Chapter X of the Act because the same
was already in existence when Section 163-A was introduced
into the Act.”
This again indicates that it is the statutory context and scheme which will determine
the nature and ambit of the expression “any other law for the time being in force”.
72 In the case of the RERA, the expression “law for 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
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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-à-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 WBHIRA on the other, two fundamental features emerge from a comparison of the
statutes. First, a significant and even overwhelmingly large part of WB-HIRA
overlaps with the provisions of RERA. These provisions of the RERA have been
lifted bodily, word for word and enacted into the State enactment. Second, in doing
so, WB-HIRA does not complement the RERA by enacting provisions which may be
regarded as in addition to or fortifying the rights, obligations and remedies created
by the Central enactment. The subject of the provisions of the State enactment is
identical, the content is identical. In essence and substance, WB-HIRA has enacted
a parallel mechanism and parallel regime as that which has been entailed under the
RERA. The State legislature has, in other words, enacted legislation on the same
subject matter as the Central enactment. Not only is the subject matter identical but
in addition, the statutory provisions of WB-HIRA are on a majority of counts identical
to those of the RERA. Both sets of statutes are referable to the same entries in the
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Concurrent List – Entries 6 and 7 of List III – and the initial effort of the State of West
Bengal to sustain its legislation as a law regulating ‘Industry” within the meaning of
Entry 24 of List II has been expressly given up before this Court (as we have
explained, for valid reasons bearing on the precedents of this Court).
74 In assessing whether this overlap between the statutory provisions of WBHIRA and the RERA makes the former repugnant to the latter within the meaning of
that expression in clause (1) of Article 254, it becomes necessary to apply the
several tests which are a part of our constitutional jurisprudence over the last seven
decades. Repugnancy can be looked at from three distinct perspectives. The first is
where the provision of a State enactment is directly in conflict with a law enacted by
Parliament, so that compliance with one is impossible along with obedience to the
other. The second test of repugnancy is where Parliament through the legislative
provisions contained in the statute has enacted an exhaustive code. The second test
of repugnancy is based on an intent of Parliament to occupy the whole field covered
by the subject of its legislation. In terms of the second test of repugnancy, a State
enactment on the subject has to give way to the law enacted by Parliament on the
ground that the regulation of the subject matter by Parliament is so complete as a
code, so as to leave no space for legislation 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
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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 the subject matter of the Parliamentary legislation but with other and distinct
matters of a cognate and allied nature. WB-HIRA, on the contrary, purports to
occupy the same subject as that which has been provided in the Parliamentary
legislation. The state law fits, virtually on all fours, with the footprints of the law
enacted by Parliament. This is constitutionally impermissible. What the legislature of
the State of West Bengal has attempted to achieve is to set up its parallel legislation
involving a parallel regime.
75 But the submission which has been articulately presented before the Court on
behalf of the State of West Bengal is that Section 88 of the RERA itself allows for
the existence of State statutes by enacting Sections 88 and 89, which stipulate that
its provisions shall be in addition to and not in derogation of the provisions of any
other law for time being in force and override only inconsistent provisions. For the
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purpose of the present discussion, we may accept the hypothesis of the State of
West Bengal that the expression “any other law for the time being in force” does not,
in the context of Section 88, imply the applicability of the provision only to laws
which had been enacted before the RERA. Conceivably, as the judgments of this
Court construing similar expressions indicate, the trend has been to broadly
configure the meaning of the expression by extending it to laws which were in
existence and those which may be enacted thereafter. In other contexts, such an
interpretation has not been accepted but, for the purpose of the discussion, we will
proceed on the hypothesis which has been put forth by the State of West Bengal
that ‘law for the time being in force’ within the meaning of Section 88 would also
include subsequent legislation. The submission is that since Section 88 allows for
the existence of other laws by adopting the ‘in addition to and not in derogation of’
formula, Parliament did not intend to exclude State legislation even though it is
identical to that which has been enacted by Parliament. This submission is also
sought to be buttressed by adverting to Section 92 of the RERA, under which only
the Maharashtra Act was repealed.
76 Now, in assessing the correctness of the submission, it is necessary to
construe Section 88 in its proper perspective. Unless this is done, the Court would
be doing violence to the intent 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
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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) and the RERA, have been enacted by the Parliament and both sets of
statutes have to be therefore harmoniously construed. Section 88 of the RERA does
not exclude recourse to other remedies created by cognate legislation. Where the
cognate legislation has been enacted by a State legislature, Section 88 of the RERA
is an indicator that Parliament did not wish to oust the legislative power of the State
legislature to enact legislation on cognate or allied subjects. In other words, spaces
which are left in the RERA can be legislated upon by the State legislature by
enacting a legislation, so long as it is allied to, incidental or cognate to the exercise
of Parliament’s legislative authority. What the State legislature in the present case
has done is not to enact cognate or allied legislation but legislation which, insofar as
the statutory overlaps is concerned is identical to and bodily lifted from the
Parliamentary law. This plainly implicates the test of repugnancy by setting up a
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parallel regime under the State law. The State legislature has encroached upon the
legislative authority of Parliament which has supremacy within the ambit of the
subjects falling within the Concurrent List of the Seventh Schedule. The exercise
conducted by the State legislature of doing so, is plainly unconstitutional.
77 The statutory overlaps between WB-HIRA and the RERA cannot be
overlooked, as noted above. But quite apart from that, there is an additional reason
why the test of repugnancy engrafted in clause (1) of Article 254 is attracted. This is
because several provisions of the WB-HIRA are directly in conflict and dissonance
with the RERA. Where a State enactment in the Concurrent List has enacted or
made a statutory provision which is in conflict with those which have been enacted
by Parliament, it may in a given case be possible to excise the provision of the State
statute so as to bring it into conformity with the Parliamentary enactment. But the
present case, as we shall demonstrate, involves a situation where valuable
safeguards which are introduced by Parliament in the public interest and certain
remedies which have been created by Parliament are found to be absent in WBHIRA. This is indicated from the following provisions:
(i) Section 2(n) of the RERA contains a statutory definition of the meaning of
‘common areas’. Parliament has defined the expression to mean what 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
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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 other calamity caused by nature
affecting the development of the real estate project. The provisions of Section
6 of the WB-HIRA, in contrast, while defining force majeure also incorporate
“any other circumstances prescribed”, thereby giving a wider discretion to the
regulatory authority or the State to give extensions of registration to real
estate projects in a manner which may prejudicially affect the interest of home
buyers;
(iv) Section 38(3) of the RERA empowers the real estate regulatory authority in a
monopoly situation to make a suo motu reference to the Competition
Commission of India. No such provision is made in the State enactment.
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Hence, a valuable safeguard to protect home buyers in the RERA has been
omitted. Section 38(3) of the RERA is in the following terms:
“(3) Where an issue is raised relating to agreement, action,
omission, practice or procedure that— (a) has an appreciable
prevention, restriction or distortion of competition in
connection with the development of a real estate project; or
(b) has effect of market power or monopoly situation being
abused for affecting interest of allottees adversely, then the
Authority, may suo motu, make reference in respect of such
issue to the Competition Commission of India.”
(v) Section 41 of the RERA is a pivotal provision under which the Central
government is to establish a Central Advisory Council. The Minister of the
Central government dealing with Housing is to be the ex officio Chairperson.
The membership of the Central Advisory Council is stipulated in Section
41(3). Section 41 provides as follows:
“41. (1) The Central Government may, by notification,
establish with effect from such date as it may specify in such
notification, a Council to be known as the Central Advisory
Council. (2) The Minister to the Government of India in charge
of the Ministry of the Central Government dealing with
Housing shall be the ex officio Chairperson of the Central
Advisory Council. (3) The Central Advisory Council shall
consist of representatives of the Ministry of Finance, Ministry
of Industry and Commerce, Ministry of Urban Development,
Ministry of Consumer Affairs, Ministry of Corporate Affairs,
Ministry of Law and Justice, Niti Aayog, National Housing
Bank, Housing and Urban Development Corporation, five
representatives of State Governments to be selected by
rotation, five representatives of the 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.”
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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 Advisory
Council under Section 41, which is in the following terms:
“41. Establishment of State Advisory Council.- (1) The State
Government may, by notification, establish with effect from
such date as it may specify in such notification, a Council to
be known as the State Advisory Council.
(2) The Minister to the Government of the State of West
Bengal in charge of the Department dealing ·with Housing
shall be the ex officer Chairperson of the State Advisory
Council.
(3) The State Advisory Council shall consist of
representatives of the Finance Department, Department of
Industry, Commerce & Enterprises, Department of Urban
Development and Municipal Affairs, Department of Consumer
Affairs, Law Department, five representatives of the Real
Estate Regulatory Authorities to be selected by rotations, and
any other State Government department as notified.
(4) The State 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.”
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Section 42 of WB-HIRA, which defines the functions of the State Advisory
Council, is as follows:
“42. Functions of State Advisory Council.- (1) The functions of
the State Advisory Council shall be to advise and recommend
the State 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 State
Government.
(2) The State Government may specify the rules to give effect
to the recommendations of the State Advisory Council on
matters as provided under sub-section (1 ).”
The State legislature while enacting WB-HIRA has replaced the Central
Advisory Council, which has a major policy making role, with the State
Advisory Council. Though the functions of the State Advisory Council are
similar, its power is to advise and recommend to the State government in
distinct in contrast to the functions of the Central Advisory Council, which is to
make policy recommendations to the Central government on the subjects
contemplated in clauses (a) to (e) of Section 42. As a consequence, the
advisory role of the Central 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;
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(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 WBHIRA; and
(viii) Section 80(2) of the RERA provides that no Court inferior to a Metropolitan
Magistrate or JMFC shall try an offence punishable under the Act. No such
provision is contained in WB-HIRA.
78 The above analysis indicates an additional reason why there is a repugnancy
between WB-HIRA and RERA- the above provisions of the State enactment are
directly in conflict with the Central enactment. Undoubtedly, as Article 254(1)
postulates, the legislation enacted by the State legislature is void “to the extent of
the repugnancy”. But the above analysis clearly demonstrates that in material
respects, WB-HIRA has failed to incorporate valuable institutional safeguards and
provisions intended to protect the interest of home-buyers. The silence of the State
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legislature in critical areas, as noted above, indicates that important safeguards
which have been enacted by Parliament in the public interest have been omitted in
the State enactment. There is, in other words, 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. In
failing to do so, the State legislature has transgressed the limitations on its power
and has enacted a law which is repugnant to Parliamentary legislation on the same
subject matter.
H.4 Lack of Presidential Assent for WB-HIRA
79 Finally, another argument raised before us by the petitioner’s was that WBHIRA had not received the President’s assent under Article 254(2) of the
Constitution, which was necessary since it was going the occupy the same field as
the RERA, a law which had been enacted by the Parliament. This becomes
important since a Constitution Bench of this Court in Rajiv Sarin v. State of
Uttarakhand41 (“Rajiv Sarin”), speaking through Justice Mukundakam Sharma, has
held the two requirements for repugnancy under Article 254 to be as follows:
“45. For repugnancy under Article 254 of the Constitution,
there is a twin requirement, which is 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
41 (2011) 8 SCC 708
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of both the legislations 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 that
WB-HIRA did not have presidential assent and was repugnant to RERA under
Article 254.
81 Therefore, this issue of whether presidential assent was needed remains
merely academic. Having said so, we note that issues related to Presidential assent
under Article 254(2) have been settled by a Constitution Bench of this Court in Rajiv
Sarin (supra), wherein it was held:
“Presidential assent and Article 254(2) of the Constitution
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63. It is in this context, that the finding of this Court in
Kaiser-I-Hind (P) Ltd. [(2002) 8 SCC 182] at para 65
becomes important to the effect that “pointed attention”
of the President is required to be drawn to the
repugnancy and the reasons for having such a law,
despite the enactment by Parliament, has to be
understood. It summarises the point as follows at pp.
215-16 as follows:
“65. The result of the foregoing discussion is:
1. It cannot be held that the summary speedier procedure
prescribed under the PP Eviction Act for evicting the tenants,
sub-tenants or unauthorised occupants, if it is reasonable and
in conformity with the principles of natural justice, would
abridge the rights conferred under the Constitution.
2. (a) Article 254(2) contemplates ‘reservation for
consideration of the President’ and also ‘assent’.
Reservation for consideration is not an empty formality.
Pointed attention of the President is required to be drawn
to the repugnancy between the earlier law made by
Parliament and the contemplated State legislation and
the reasons for having such law despite the enactment
by Parliament.
(b) The word ‘assent’ used in clause (2) of Article 254 would
in context mean express agreement of mind to what is
proposed by the State.
(c) In case where it is not indicated that ‘assent’ is qua a
particular law made by Parliament, then it is open to the Court
to call for the proposals made by the State for the
consideration of the President before obtaining assent.
3. Extending the duration of a temporary enactment does not
amount to enactment of a new law. However such extension
may require the assent of the President in case of
repugnancy.”” (emphasis supplied)
As such, it is abundantly clear that the State of West Bengal would have had to seek
the assent of the President before enacting WB-HIRA, where its specific repugnancy
with respect to RERA and its reasons for enactment would have had to be specified.
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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;
(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;
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(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;
(xi) Section 13 provides for penalties;
(xii) Section 14 provides for offences by companies;
(xiii) Section 15 provides for rule making powers;
(xiv) Section 16 provides for exemption to constructions by the State Government
Housing Board and by the Housing and Urban Development Corporation; and
(xv) Section 17 provides for repeals and the earlier legislation of 1972 is repealed.
The above provisions are repugnant to the corresponding provisions which are
contained in the RERA. These provisions of the WB 1993 Act impliedly stand
repealed upon the enactment of the RERA in 2016, in accordance with Sections 88
and 89 read with Article 254(1) of the Constitution. Hence, we clarify with abundant
caution that our striking down of the provisions of WB-HIRA in the present judgment
will not, in any manner, revive the WB 1993 Act, which was repealed upon the
enactment of WB-HIRA since the WB 1993 Act is itself repugnant to the RERA, and
would stand impliedly repealed.
83 For the above reasons, we have come to the conclusion that WB-HIRA is
repugnant to the RERA, and is hence unconstitutional. We also hold and declare
that as a consequence of the declaration by this Court of the invalidity of the
provisions of WB-HIRA, there shall be no revival of the provisions of the WB 1993
Act, since it would stand impliedly repealed upon the enactment of the RERA.
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84 Since its enforcement in the State of West Bengal, the WB-HIRA would have
been applied to building projects and implemented by the authorities constituted
under the law in the state. In order to avoid uncertainty and disruption in respect of
actions taken in the past, recourse to the jurisdiction of this Court under Article 142
is necessary. Hence, in exercise of the jurisdiction under Article 142, we direct that
the striking down of WB-HIRA will not affect the registrations, sanctions and
permissions previously granted under the legislation prior to the date of this
judgment
85 The writ petition is accordingly stand allowed in the above terms.
86 Pending application(s), if any, stand disposed of.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[M R Shah]
New Delhi;
May 4, 2021
