Only SC Can Clarify Whether Orders Passed Under Repealed 'WB Housing Industry Regulation Act' Can Be Executed: Calcutta High Court

The Calcutta High Court on Monday observed that only the Supreme Court under Article 142 of the Constitution can clarify whether the orders passed under the repealed legislation, the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA), are saved and the execution thereof can be continued.

The Supreme Court in the case of Forum for People's Collective Efforts (FPCE) and another v. State of West Bengal had declared the WBHIRA Act, 2017 as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016 and thus struck down the legislation. 

Justice Rajasekhar Mantha observed while declining to entertain the plea, 

"..this Court is of the view that it is only the Hon'ble Supreme Court under Article 142 of the Constitution of India, that can clarify as to whether the orders passed under the erstwhile WBHIRA, are saved and the execution thereof can be continued post the decision in the Forum for People's Collective Case or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016."

In the instant case, the petitioner had approached the West Bengal Housing Industry Regulation Authority established under the provisions of WBHIRA Act, 2017 against the respondents for damages arising due to delay in delivery of possession of flat booked and for money for the same paid by her. Thereafter, the compliant had been allowed and disposed of by order dated December 18, 2019. 

The order was put into execution by the Regulation Authority vide order dated March 16, 2021 by directing the District Collector, North 24 Parganas to effect recovery of the amount due as arrears of land revenue in the manner as provided in "Bengal Public Demand Recovery Act, 1913", as per Section 40 of the WBHIRA Act, 2017 read with Rule 27 of WBHIRA Rules, 2018.

Justice Mantha observed that while the Supreme Court has expressly saved the registrations, sanctions and permissions already granted under the WBHIRA, the Forum for People's Collective Efforts (FPCE) and another v. State of West Bengal judgment does not make a specific mention of the orders passed under the repealed legislation. 

"It is clear and evident from the aforesaid paragraph that what has been saved by the Supreme Court under Article 142 under the Struck Down Act, are legislation, sanction and permission already granted. The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved", the Court averred. 

During the proceedings, the counsel for the petitioner argued that the orders of the erstwhile WBHIRA can be executed under the Real Estate Regulation Authority Act 2016 as applied, subsequently to the State of West Bengal. Reference was made to the Supreme Court judgment in State of Manipur and others v. Surjakumar Okram and others in this regard. 

Refusing to entertain such a contention, the Court dismissed the writ petition. 

Case Title: Saptaparna Ray v. District Magistrate and Collector, North 24 Parganas and others

Case Citation: 2022 LiveLaw (Cal) 67

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