Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration
Date: 13.08.2026
Supreme Court Strikes Down West Bengal Housing Industry Regulation Act, 2017: Repugnancy with RERA and the Primacy of Central Real Estate Regulation
This Short Article has been prepared & written by Advocate Narendra Singh. The views expressed are based on his interpretation of the law. He can be reached at his email id amitnaren@outlook.com .
The Supreme Court of India, in a landmark judgment, declared the West Bengal Housing Industry Regulation Act, 2017 (WB-HIRA) unconstitutional due to its repugnancy with the central Real Estate (Regulation and Development) Act, 2016 (RERA). This article provides a detailed analysis of the case, the legislative background, the core legal issues, and the implications for real estate regulation in India.
Background: The Challenge to WB-HIRA
The Forum for Peopleβs Collective Efforts (FPCE) challenged the constitutional validity of WB-HIRA, arguing that:
- Both WB-HIRA and RERA fall under the Concurrent List (Entries 6 and 7) of the Constitution.
- WB-HIRA did not receive Presidential assent as required under Article 254(2).
- WB-HIRA contains provisions inconsistent with RERA or is a virtual replica of it.
- Parliament, having legislated on the subject, precludes the State from enacting parallel legislation.
Legislative History: From State Laws to a National Framework
Before RERA, several states, including West Bengal, had their own real estate laws. Notably:
- West Bengal enacted the WB 1993 Act, which received Presidential assent.
- Maharashtra and Kerala also had their own acts, later repealed after RERA’s enactment.
- RERA was introduced to address the lack of consumer protection, transparency, and standardization in the real estate sector.
RERA: Salient Features
RERA was designed as a comprehensive, uniform framework for real estate regulation across India. Key features include:
- Mandatory Registration: All real estate projects and agents must register with the regulatory authority before advertising or selling.
- Transparency: Promoters must disclose project details, approvals, and progress on a public website.
- Consumer Protection: Limits on advance payments, model agreements, and clear refund/compensation mechanisms.
- Dispute Resolution: Establishment of Real Estate Regulatory Authorities and Appellate Tribunals for speedy redressal.
- Overriding Effect: RERA explicitly states its provisions override any inconsistent state laws (Section 89).
WB-HIRA: Overlap and Variance with RERA
While WB-HIRA closely mirrored RERA, several key differences and inconsistencies were identified:
- Definitions: WB-HIRA’s definitions of ‘car parking area’, ‘garage’, and ‘force majeure’ differed from RERA, often to the detriment of homebuyers.
- Scope: WB-HIRA applied to all projects in West Bengal, not just those in planning areas.
- Regulatory Powers: WB-HIRA lacked certain consumer safeguards present in RERA, such as the power to refer monopoly issues to the Competition Commission of India.
- Advisory Councils: WB-HIRA established a State Advisory Council, whereas RERA provided for a Central Advisory Council.
- Compounding of Offences: RERA allowed for compounding; WB-HIRA did not.
- Adjudication: RERA required a judicial officer for compensation claims; WB-HIRA vested this in the regulatory authority.
The Supreme Court’s Analysis
1. Legislative Competence
- Both RERA and WB-HIRA fall under the Concurrent List (Entries 6 and 7: transfer of property and contracts).
- The State’s initial claim that WB-HIRA was an ‘industry’ law under the State List was abandoned during arguments.
2. Repugnancy under Article 254
- The Court applied three tests for repugnancy:
- Direct conflict between provisions.
- Parliament’s intent to occupy the entire field.
- Both laws covering the same subject matter.
- WB-HIRA was found to be repugnant on all counts: it was a near-verbatim copy of RERA, with some provisions directly conflicting or omitting key consumer protections.
3. Presidential Assent
- WB-HIRA did not receive Presidential assent, a requirement for state laws repugnant to central laws in the Concurrent List.
4. Sections 88 and 89 of RERA
- Section 88 (“in addition to and not in derogation of”) does not permit parallel state regimes on the same subject.
- Section 89 gives RERA overriding effect over inconsistent state laws.
The Verdict and Its Implications
- WB-HIRA Struck Down: The Supreme Court declared WB-HIRA unconstitutional and void due to repugnancy with RERA.
- No Revival of Old State Law: The earlier WB 1993 Act, already repealed, does not revive as a result of this judgment.
- Protection of Past Actions: Registrations, sanctions, and permissions granted under WB-HIRA before the judgment remain valid (by virtue of Article 142 powers).
- Uniformity Restored: RERA now applies uniformly across West Bengal, ensuring consistent consumer protection and regulatory standards.
Conclusion
The Supreme Court’s decision in FPCE v. State of West Bengal reinforces the primacy of central legislation in the real estate sector and ensures that homebuyers across India are protected by a uniform regulatory framework. States cannot enact parallel laws that duplicate or dilute central protections without Presidential assent. This judgment is a significant step towards transparency, accountability, and consumer rights in Indian real estate.
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Source: Supreme Court
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