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Some provisions of the West Bengal Housing Industry Regulation Act (WBHIRA) are in conflict with the Real Estate (Regulation and Development) Act (RERA), a Central Act on the same matter, claim a home-buyers’ group. The ambiguity raises questions on the constitutional validity of WBHIRA, they said.
A point of conflict is whether the proposed regulatory authority should be set-up under the central act or the state one. Similarly, there is ambiguity about whether project registrations are to be made WBHIRA or RERA.
According to the home-buyers’ group, Forum for People’s Collective Efforts (FPCE), West Bengal is the only state to not implement RERA.
The WBHIRA is the state counterpart of the RERA, but allegedly with diluted provisions that favour builders and not home-buyers. “We have apprised the Governor about WBHIRA being in conflict with RERA and demanded its repeal,” Abhay Upadhyay, President, FPCE and Member Central Advisory Council, RERA, Ministry of Housing and Urban Affairs told BusinessLine .
The group has raised apprehensions about the diluted real estate regulation act in West Bengal could become a precedence for other state governments to come up with similar diluted versions.
In fact, they have also claimed that the state government has failed to apprise the Governor Keshari Nath Tripathi about the conflict between the state law and the central law at the time of seeking his assent. In such a scenario, a Presidential assent is required.
Apart from the West Bengal Governor, the home-buyers’ organisation has already written to the Prime Minister Narendra Modi and other Union Ministers like Hardeep Singh Puri apprising them of the matter. Similar letters have also been written to the Lok Sabha Speaker and Chairperson of the Rajya Sabha.
Long legal battle
However, senior lawyer and former Kolkata Mayor, Bikash Ranjan Bhattacharyya points out the possibility of a protracted legal battle on establishing these claims.
Whether a State Act is in conflict with the Central Act has to be decided by the courts. “Of course, there are items on the concurrent list on which the state government has the power to make laws. In case of conflict, Presidential assent is required,” Bhattacharyya said.
According to him, the Governor cannot withdraw an assent given to an Act. “Alternatively, the Legislative Assembly has to pass amendments to the original Act and these can be given assent to by the Governor,” he said.
Incidentally, the Kerala Legislative Assembly recently withdrew a previous law, The Kerala Real Estate (Regulation and Development) Act, 2015, after certain sections of it were found to be repugnant with RERA.
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