✦ Supreme Court of India

FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) & Anr. v. THE STATE OF WEST BENGAL & Anr.

Case Details Supreme Court of India

Court

Supreme Court of India

Bench

DHANANJAYA Y CHANDRACHUD M R SHAH

Length

44,565 words

Acts & Sections

A B C D E F G 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 Ancient Monuments and Archaeological Sites and Remains Act 1958 Ancient Monuments Preservation Act 1904 Antiquities and Art Treasurers Act 1972 Arbitration Act §35 and 37 Arbitration Act §37 Arbitration and Conciliation Act 1996 Bihar Finance Act 1981 Chapter X of the Motor Vehicles Act 1988 Chit Funds Act 1982 Companies Act 1956 Constitution Bench dealt with the question as to whether the Kerala Chitties Act 1975 Constitution of India §88 and 89 Constitution of India Consumer Protection Act 1986 Consumer Protection Act 2019 Contract Act Customs Act 1962

Cited in this judgment

(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. Hence, A B C D E F G H 630 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H a valuable safeguard to protect home buyers in the RERA has been omitted. (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). The functions of the Central Advisory Council are provided in Section 42 of the RERA. WB-HIRA on the other hand, provides for the constitution of a State Advisory Council under Section 41. Section 42 of WB-HIRA, which defines the functions of the State Advisory Council. 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; (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 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL 631 cannot gloss over the fact that the valuable safeguard of appointing judicial officers as adjudicating officers for determining compensation under the RERA has not been enacted in WB-HIRA; and (viii) Section 80(2) of the RERA provides that no Court inferior to a Metropolitan Magistrate or JMFC shall try an offence punishable under the Act. No such provision is contained in WB-HIRA. [Para 77][781-F-H; 782-A-H; 783- A-D; 784-A-B; 785-D-H; 786-A-C]

6.5 The 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 said 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 legislature in critical areas, indicates that important safeguards which have been enacted by Parliament in the public interest have been omitted in the State enactment. There is not only a direct conflict of certain provisions between the RERA and WB-HIRA but there is also a failure of the State legislature to incorporate statutory safeguards in WB-HIRA, which have been introduced in the RERA for protecting the interest of the purchasers of real estate. 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. [Para 78][786-C-F]

7. 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 was given up before this Court, and it is admitted that it comes under List III (the same as RERA). Further, it has also been clarified by this Court, 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 A B C D E F G H 632 SUPREME COURT REPORTS [2021] 5 S.C.R. presidential assent and was repugnant to RERA under Article 254.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. Evidently, this was not done. However, since WB-HIRA is held to be repugnant to RERA, this issue becomes moot. [Para 81][787-E-F; 788-G-H; 789-A] Rajiv Sarin v. State of Uttarakhand (2011) 8 SCC 708 : [2011] 9 SCR 1012 – referred to.

8. 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 9.03.94. The provisions-Section 3 to 17 of the WB 1993 Act 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, it is clarified that 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. [Para 82][789-B; 790-B-D]

9. 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, this Court directs that the striking down of WB-HIRA would not affect the registrations, sanctions and permissions previously granted under the legislation prior to the date of this judgment. [Para 84][790-E-F] Accountant and Secretarial Services Pvt. Ltd. v. UOI (1988) 4 SCC 324 : [1988] 1 Suppl. SCR 493; Ashoka A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL 633 Marketing Ltd. v. Punjab National Bank (1990) 4 SCC 406 : [1990] 3 SCR 649; Indu Bhushan Bose v. Rama Sundari Debi. (1969) 2 SCC 289 : [1970] 1 SCR 443; M D Frozen Foods Exports Private Limited v. Hero Fincorp Limited (2017) 16 SCC 741: [2017] 13 SCR 800; Transcore v. Union of India (2008) 1 SCC 125 : [2006] 9 Suppl. SCR 785; KSL and Industries Limited v. Arihant Threads Limited (2015) 1 SCC 166 : [2014] 14 SCR 1097; Pioneer Urban Land and Infrastructure Limited v. Union of India (2019) 8 SCC 416 : [2019] 10 SCR 381 – referred to. Case Law Reference [1988] 1 Suppl. SCR 493 referred to [1990] 3 SCR 649 [1970] 1 SCR 443 [2019] 10 SCR 381 [1956] SCR 393 [2002] 1 SCR 441 [1956] SCR 393 [1962] Suppl. SCR 1 [2002] 1 SCR 441 [1955] 1 SCR 799 AIR 1939 Cal 628 referred to referred to referred to referred to referred to referred to referred to referred to referred to referred to [1959] 2 Suppl. SCR 8 referred to [1964] 4 SCR 461 [1979] 3 SCR 254 [1983] 3 SCR 130 [2012] 4 SCR 448 referred to referred to referred to referred to Para 16 Para 16 Para 16 Para 17 Para 18 Para 19 Para 24 Para 25 Para 25 Para 31 Para 33 Para 34 Para 35 Para 36 Para 37 Para 38 A B C D E F G H 634 SUPREME COURT REPORTS [2021] 5 S.C.R. A [2017] 8 SCR 33 [2017] 13 SCR 800 relied on. referred to B C [2006] 9 Suppl. SCR 785 referred to [2014] 14 SCR 1097 [2019] 10 SCR 381 referred to referred to [1980] 3 SCR 1209 relied on [1999] 3 Suppl. SCR 461 relied on [1999] 5 Suppl. SCR 403 relied on [2013] 15 SCR 1 relied on [2003] 3 Suppl. SCR 452 relied on D [2019] 4 SCR 273 [2011] 16 SCR 166 relied on relied on Para 74 Para 60 Para 61 Para 62 Para 63 Para 64 Para 65 Para 66 Para 67 Para 68 Para 69 Para 71 [2011] 9 SCR 1012 referred to Para 79, 81 CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 116 of 2019. Petition Under Article 32 of The Constitution of India Devashish Bharuka, Mrs. Jaya Bharuka, Ravi Bharuka, Ms. Sarvshree, Justine George, Ms. Shrishti Agarwal, Ankit Agarwal, Ms. Taniya Bansal, Advs. for the Petitioners. Ms. Aishwarya Bhati, ASG., Rakesh Dwivedi, Sr., Adv., Kanu Agarwal, Ms. Ameyavikrama Thanvi, Rajat Nair, Mohd. Akhil, Navanjay Mahapatra, Raj Bahadur Yadav, Mrs. Anil Katiyar, Suhaan Mukerji, Vishal Prasad, Nikhil Parikshit, Eklavya Dwivedi, Abhishek Manchanda, Sayandeep Pahari, Arya Tripathy, M/S. Plr Chambers & Co., Advs. for the Respondents. E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL 635 The Judgment of the Court was delivered by DR JUSTICE DHANANJAYA Y CHANDRACHUD, J. 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 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 A B C D E F G H 636 SUPREME COURT REPORTS [2021] 5 S.C.R. A 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. 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: B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 637 (i) (ii) The Maharashtra Housing (Regulation and Development) Act, 2012 (the “Maharashtra Act”), which received Presidential assent on 2February 2014; and 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 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 1993Act5. 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. 1 Sections 2, 20 to 39, 41 to 58, 71 to 78 and 81 to 92. 2 Sections 3 to 19, 40, 59 to 70, 79 to 80. 3 “Section 92. Repeal: The Maharashtra Housing (Regulation and Development) Act, 2012 is hereby repealed.” 4 Its Statement of Objects and Reasons noted “… As per clause (1) of article 254 of the Indian Constitution, if any provision of a law made by the legislature of a State is repugnant to any law made by the Parliament, the law made by the legislature of a State shall become void. Therefore the Government have decided to repeal the Kerala Real Estate (Regulation and Development) Act, 2015.” 5 “86. Repeal and Savings. (1) The West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 is hereby repealed.” 6 No. 18-HIV/3M-3/17 (PART-2) A B C D E F G H 638 SUPREME COURT REPORTS [2021] 5 S.C.R. A 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 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.” B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 639

6. Upon being introduced in the Rajya Sabha, the RERA Bill 2013 was referred to a twenty-one member Select Committee, on a motion adopted by the House on 6 May 2015. The Committee held seventeen sittings –nine in Delhi and the remaining in different parts of the country. As many as 445 persons appeared before the Select Committee drawn from different categories and groups of stakeholders - representatives of consumers; resident welfare associations; promoter – builders; banks and financial institutions; Housing Ministries of all the States and Union Territories; law firms and independent experts in the field of real estate. Following a 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 the project was delayed. Submitting their views on the Bill, they highlighted the following points:- A B C D E F G H 640 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H 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, FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 641 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. 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 years, it has been largely unregulated, with absence of professionalism and standardization and lack of adequate consumer protection. Though A B C D E F G H 642 SUPREME COURT REPORTS [2021] 5 S.C.R. 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 specific inadequacies in the development of the real estate sector which were a A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 643 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: (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 A B C D E F G H 644 SUPREME COURT REPORTS [2021] 5 S.C.R. 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. 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 A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 645 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 Chapter II Preliminary Registration of Real Estate Projects and Registration of 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; d. Promoters are required to make a mandatory public disclosure of all registered projects on the web-site of A B C D E F G H 646 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H 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; 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; FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 647 (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 real-estate 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; 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 A B C D E F G H 648 SUPREME COURT REPORTS [2021] 5 S.C.R. 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 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 A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 649 separately. However, at this stage, a sampling of some of the crucial provisions would indicate that theyare 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 from the RERA), while it is flanked with its relevant Section number and title from RERA and WB-HIRA on both sides: A B C D E F G H 650 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 651 A B C D E F G H 652 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 653 A B C D E F G H 654 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 655 A B C D E F G H 656 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 657 A B C D E F G H 658 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 659 A B C D E F G H 660 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 661 A B C D E F G H 662 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 663 A B C D E F G H 664 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 665 A B C D E F G H 666 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 667 A B C D E F G H 668 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 669 A B C D E F G H 670 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 671 A B C D E F G H 672 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 673 A B C D E F G H 674 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 675 A B C D E F G H 676 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 677 A B C D E F G H 678 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 679 A B C D E F G H 680 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 681 A B C D E F G H 682 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 683 A B C D E F G H 684 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 685 A B C D E F G H 686 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 687 A B C D E F G H 688 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 689 A B C D E F G H 690 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 691 A B C D E F G H 692 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 693 A B C D E F G H 694 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 695 A B C D E F G H 696 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 697 A B C D E F G H 698 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 699 A B C D E F G H 700 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 701 A B C D E F G H 702 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 703 A B C D E F G H 704 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 705 A B C D E F G H 706 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 707 A B C D E F G H 708 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 709 A B C D E F G H 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: 710 SUPREME COURT REPORTS [2021] 5 S.C.R. “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.”

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 1993Act. FRERA 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: A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 711 A B C D E F G H 712 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 713 A B C D E F G H

15. Now, it is in this backdrop that it becomes necessary to consider the submission made by the parents. G Submissions G.1 For the petitioners

16. Mr Devashish Bharuka, learned Counsel appearing on behalf of the petitioner surged 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, 714 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H 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 d. WB-HIRA covers the identical field of regulating the contractual behavior of promoters and buyers in real-estate projects. The state law is a ‘copy-and paste’ replica of the central legislation (except for certain provisions which are inconsistent with RERA) and covers the field which is occupied by the central enactment. (II) WB-HIRA is repugnant to RERA a. The subjects of both sets of legislations are contained in Entries 6 and 7 of the Concurrent List; b. The state law does not fall either under the subject of land (Entry 18, List 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’ FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 715 • Indu Bhushan Bose v Rama Sundari Debi, (1969) 2 SCC 289 [5-Judges] A 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:

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. B C D E F G H 716 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H

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;

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 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 717 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 Maharashtra Ownership Flats (Regulation of the promotion of Construction, Sale, management and Transfer) Act, 1963 Karnataka Ownership Flat (Regulation of the promotion of Construction, Sale, Management and Transfer) Act, 1972 Gujarat Ownership Flats Act, 1973 Andhra Pradesh Apartments (Promotion of Construction and Ownership) Act, 1987 West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 Punjab Apartment and Property Regulation Act, 1995 Date of Presidential assent 12.12.1963

29.06.1973

28.06.1973 15.05.1987

09.03.1994

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 Section 89 gives overriding force and effect to RERA notwithstanding A B C D E F G H 718 SUPREME COURT REPORTS [2021] 5 S.C.R. 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 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: A B C D E F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 719 A B C D E F G H 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. 720 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H (VI) Upon the declaration of WB-HIRA as unconstitutional, the 1993 legislation in West Bengal may also be declared as repealed in view of the following: a. Section 89 of the RERA impliedly repeals all earlier state acts with Presidential assent under the proviso to Article 254(2); and b. In the alternative, Section 86 of WB-HIRA which repeals WB 1993 Act may be severed by applying the doctrine of severability. On the above grounds, it has been submitted that WB-HIRA is void for want of legislative competence. G.2 For the Union of India

17. Ms Aishwarya Bhati, learned Additional Solicitor General appearing on behalf of the Union of India urged the following submissions: (I) Background and Statement of objects of RERA a. The legislative background before the enactment of the RERA in 2016 indicates that a comprehensive exercise was carried out by the Select Committee of the Rajya Sabha which heard the views of stakeholders from across the country; b. Parliament has enacted RERA, as the Statement of Objects and Reasons indicates, having due regard to

1. The necessity of a central legislation to provide effective protection to real estate buyers and protect them from exploitation;

2. The need to ensure uniformity and standardization of business practices;

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. FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 721 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)); 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 WB-HIRA 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 8 WP 2737 of 2017, decided on 6 December 2017 A B C D E F G H 722 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D 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 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 E RERA and WB-HIRA:

1. Under the RERA open car parking areas are covered by the definition of ‘common areas’ in Section 2(n), indicating therefore that they cannot be sold; on the other hand in the State enactment, Section 2(i) allows the car parking area to be prescribed 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; F G H FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 723

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;

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. 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. A B C D E F G H 724 SUPREME COURT REPORTS [2021] 5 S.C.R. A 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 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; B C D E F G H 9 (2019) 8 SCC 416 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 725

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-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 A B C D E F G H 726 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H construction projects. This is supported by references to the planning area (Section 2(zh)) and appropriate government (Section 2(g) of RERA); and c. The provisions of Sections 88 and 89 of RERA indicate that the central legislation is not a complete or exhaustive code on the subject matter legislated upon by Parliament. (II) Constitutional validity a. While enacting RERA in exercise of its legislative powers under Articles 245 and 246 of the Constitution, Parliament has enacted the legislation on the subjects assigned to it under Entries 6 and 7 of List III of the Seventh Schedule which pertain to transfer of property and contracts not relating to agricultural land. Since the enactment in the State of West Bengal follows the provisions of RERA “broadly and substantially”, the state enactment would also be covered by Entries 6 and 7 of List III of the Seventh Schedule; b. In the Counter Affidavit filed by the State of West Bengal it was contended that the State enactment falls under Entry 24 of List II, as it deals with the housing industry. This contention is not correct and is not being pressed. 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 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. 10 (1956) SCR 393 11 (2002) 9 SCC 232 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 727 (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 WB- HIRA 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 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 co-exist 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 A B C D E F G H 728 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H well as in Section 89. This supports the contention of the State of West Bengal; e. Parliament has chosen to repeal only the Maharashtra Act by way of Section 92 of RERA. Prior to WB-HIRA, in the State of West Bengal, the WB 1993 Act was operating. Parliament did not repeal this Act. The WB 1993 Act was repealed only by Section 86 of WB-HIRA to align the State Act with the RERA. The fact that Parliament repealed only the Maharashtra Act indicates that RERA does not evince any intention to shut out other state enactments. On the contrary the Parliamentary intent is to make RERA permissive and accommodative of state legislation; f. The fact that other states had not enacted a law like WB- HIRA does not take away the plenary legislative powers of the State of West Bengal; g. In exercise of the rule making power under Section 80(1) of the WB-HIRA, the State of West Bengal has framed rules on 5 June 2018. A dedicated web-site has been made operational. The regulatory authority 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 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 729 ‘Adjudicating Officer’. Under WB-HIRA, the Authority decides and there 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; 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 A B C D E F G H 730 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G H g. Article 256 of the Constitution does not enable the Union Executive to give directions to the State legislature. Federalism is a basic feature of the Constitution. WB- HIRA follows the principle of cooperative federalism. The Union government has no authority to direct the State legislature to repeal its law. These submissions will now fall for analysis. H Analysis H.1 Entry 24, List II – West Bengal’s ‘housing industry’ defense

19. The interesting feature of the case with which we commence the discussion is that when it was enacted, WB-HIRA was intended to cover the field of ‘housing industry’ under Entry 24 of List II. The Statement of Objects and Reasons to the WB-HIRA Bill notes that: “2. Since the ‘housing’ comes under the periphery of ‘industry’, it is contemplated that the State Government should go for its own State Legislation… …”

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. FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 731 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 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 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.” A B C D E F G H 732 SUPREME COURT REPORTS [2021] 5 S.C.R. A B C D E F G reiterated that even in the case of a declaration under Entry 52 by the Central Government, “industry” as a whole is not taken out of Entry 24 of the State List.

17. That, in furtherance of the above, it is further submitted that a perusal of RERA exhibits that there is no declaration even in the abstract that the Union intends to assume control over the real estate sector.” (emphasis supplied)

22. As a matter of fact, it has also been urged that Entries 6 and 7 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 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 H 14 1956 SCR 393 FORUM FOR PEOPLE’S COLLECTIVE EFFORTS (FPCE) v. THE STATE OF WEST BENGAL [DR DHANANJAYA Y CHANDRACHUD, J.] 733 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 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

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