The RERA question in West Bengal: Calcutta HC puts the ball in SC’s court

The judgment of the Supreme Court of India (SC) in Forum for People’s Collective Effort s (FPCE) & Anr v The State of West Bengal & Anr (WP (C) No 116 of 2019) (FPCE judgment)- vide which it declared the West Bengal Housing Industry Regulation Act, 2017 (WBHIRA) as unconstitutional and repugnant to the provisions of the Real Estate (Regulation and Development) Act, 2016 (RERA)- cast a pall of uncertainty on RERA implementation the State of West Bengal for quite some time. While the High Court of Judicature at Calcutta (Calcutta HC) has now intervened to facilitate the de facto implementation of RERA in the State, on Monday, it stopped short of answering another significant question which arises from the FPCE judgment.

The FPCE judgment makes it clear in no uncertain terms that striking down of WBHIRA shall not affect the registrations, sanctions and permissions previously granted under WBHIRA prior to the date of the said judgment. Relying on the relevant paragraph of the said judgment, a plea was preferred before the Calcutta HC that orders passed by the erstwhile WBHIRA be executed under RERA as applied subsequently to the State of West Bengal.?

The Calcutta HC- in its judgment dated 28 February 2022 in Saptaparna Ray v District Magistrate and Collector, North 24 Parganas (WPA No 19940 of 2021)- observed that while the SC has expressly saved the registrations, sanctions and permissions already granted under WBHIRA, the FPCE judgment does not make a specific mention of the orders passed under the erstwhile unconstitutional legislation.

Having made the aforesaid observation, the Calcutta HC declined to provide any clarity as to whether the orders passed under the erstwhile WBHIRA are saved and the execution thereof can be continued post the FPCE judgment. The Calcutta HC respectfully shifted the onus of answering the said question to the SC, while noting that the mandate to provide clarifications on the said question has only been awarded to the SC under the Constitutional scheme (See Art. 142, Constitution of India, 1950). ??

This judgment by the Calcutta HC paves the way for concerned petitioners to prefer a clarification petition before the SC and seek answers to the said question. It would be interesting to see if the SC would give a wide meaning to the phrase ‘registrations, sanctions and permissions already granted under WBHIRA’, as was employed by it in the FPCE judgment, so as to also include ‘orders’ passed under the erstwhile legislation. If judicial precedent is anything to go by, there also exists a scenario wherein the SC may direct that orders passed under WBHIRA be executed under the provisions of RERA as applicable to West Bengal. The stakeholders, in the meantime, have no option but to wait for the SC’s directions in this regard.