Calcutta High Court (Appellete Side)
R.D.B. Builders Private Limited & Anr vs The State Of West Bengal & Others on 26 February, 2026
IN THE HIGH COURT AT CALCUTTA
(Constitutional Writ Jurisdiction)
APPELLATE SIDE
Present:
The Hon'ble Justice Krishna Rao
WPA No. 28998 of 2023
With
CAN No. 1 of 2024
R.D.B. Builders Private Limited & Anr.
Versus
The State of West Bengal & Others
Mr. Soumya Majumder, Sr. Adv.
Mr. Mainak Ganguly
Mr. Siddharth Shroff
.....For the petitioners.
Mr. Pradip Kumar Dutta, Sr. Adv.
Mr. Chanchal Kumar Dutta
Ms. K. Mallick
.....For the private respondent.
Mr. Amal Kr. Sen, Ld. A.A.G.
Mr. Sabyasachi Mondal
......For the State.
Hearing Concluded On : 04.02.2026
Judgment on : 26.02.2026
2
Krishna Rao, J.:
1. The petitioners have filed the present writ application challenging the
orders passed by the respondent no. 2 on 3rd July, 2023 and 31st July,
2023, which reads as follows:
“4. Therefore, considering all the above and in
continuation of the order dated 03.07.2023 passed
in the matter, it is hereby ordered that:
(i) The promoter shall pay to the petitioners
mentioned in para 3 above, a compensation
which will be the amount equal to 10% of the
purchase value of their respective flats with a
simple interest @12% from the date of making
over possession of the flat to the respective
petitioner to the date of paying the
compensation. This amount may also be set of
against pending payments on the part of the
petitioners, if any, in which case interest will
not be applicable on the amount so set off. The
payment will have to be made within three
months from the date of this order.
(ii) The promoter shall pay to the petitioners
mentioned in para 3 above, further
compensation at the rate of 12% per annum
(simple interest) on the total payment received
from the respective petitioners till the
completion date mentioned in their agreements
for the period commencing from the date
following the date of completion as specified in
the agreement to the actual date of handover
of possession of the flat, and such
compensation may be adjusted against any
pending payment from the respective
petitioner to the promoters. The payment in
this regard will also have to be made within
three months of the date of this order.
(iii) In the event of the promoters not paying
the compensations as determined under
paragraphs (i) and (ii) above within the time
stated therein, the petitioners may file
complaint with the appropriate authority for
taking action against the promoters in terms of
Section 13 of the Promoters Act, 1993, if they
3are so advised, in addition to taking recourse
to any other remedy as may be available
under the laws for realising the compensation
amount.”
2. The ground of filing the present writ petition against the impugned
orders is Coram non-judice. The contention of the petitioners is that the
respondent no.2 has passed the impugned orders under the West
Bengal Building (Regulation of Promotion of Construction and Transfer
by Promoters) Act, 1993 but the Hon’ble Supreme Court in the case of
Forum for People’s Collective Efforts (FPCE) and Another Vs. State
of West Bengal and Another reported in (2021) 8 SCC 599 has
repealed the said Act upon enactment of the Real Estate (Regulation
and Development) Act, 2016 (hereinafter referred to as “RERA”).
3. The petitioner no.1 was registered as a “promotor” in terms of Section
3(5) of the West Bengal Building (Regulation of Promotion of
Construction and Transfer by Promoters) Act, 1993 (hereinafter referred
to as the Act of 1993) and the petitioner no. 2 is the Director of the
petitioner no.1 company.
4. As per permission granted by the Authorized Officer under the Act of
1993 on 30th June, 2005, the petitioners have constructed buildings
consisting of 64 flats and 45 Car parking spaces at the Premises No.
196D/2, Picnic Garden Road, Kolkata- 700039. The private respondent
nos. 4 to 10 have entered into and executed separate individual
agreements with the petitioners for purchase of their respective flats.
4
5. A dispute arose between the petitioners and the private respondents
with regard to the flats delivered to the private respondents. The private
respondents made complaint before the concern authority under
Section 6 of the Act of 1993 on the allegation that the area of the flats
delivered by the petitioners was not according to the agreement and the
common area of 3 cottahs of land was surreptitiously sold by the
petitioners. The concern authority had passed an order under Section 6
of the Act of 1993 by partly allowing the complaint filed by the private
respondents. Being aggrieved with the said order, the private
respondents had filed Revisional Application under Section 6A of the
Act of 1993 and the petitioners had challenged the said order by filing
writ petition being WP No. 7626(W) of 2008. The writ petition filed by
the petitioners was disposed of on 24th September, 2008, giving liberty
to the petitioners to file revisional application before the concern
authority under Section 6A of the Act of 1993.
6. On 19th December, 2008, both revisional applications were disposed of
by the Revisional Authority by a common order. The private
respondents challenged the said order by way of WP No. 3036 (w) of
2009 and the said writ petition was disposed of on 23rd July, 2009, by
setting aside the order passed by the revisional authority and
remanded the matter back to the revisional authority for hearing the
revisional applications afresh.
7. The Revisional Authority disposed of the revisional applications by an
order dated 11th July, 2011. Being aggrieved with the said order, the
5
private respondents have filed a writ petition before this Court being
WPA No. 2470 of 2012. The said writ petition was disposed of by this
Court on 6th January, 2022, by setting aside the order passed by the
Authorized Officer and remanded the matter back to the Authorized
Officer i.e. the Secretary, Government of West Bengal, Housing
Department with the direction to hear both the revisional applications
afresh after giving an opportunity of hearing to all the parties and to
pass a reasoned and speaking order within a period of three months
from the date of communication of the order.
8. The Authorized Officer, i.e. the Principal Secretary after hearing both
the parties, issued a show cause notice on 3rd July, 2023 and had
passed an order dated 31st July, 2023, which are the subject-matter of
the present writ petition.
9. The private respondents have initiated the proceeding under the Act of
1993 in the year 2006 and the same was finally disposed of by the
Principal Secretary on 31st July, 2023.
10. During the pendency of the writ petition before this Court against the
order passed by the Authorized Officer dated 11th July, 2011, the
Hon’ble Supreme Court in the case of Forum for People’s Collective
Efforts (FPCE) (supra), held that:
“183. Before the WB-HIRA, the State
Legislature had also enacted WB Act, 1993. Upon
receiving the assent of the President, the Act was
published in the Calcutta Gazette, Extraordinary on
69-3-1994. Some of the salient provisions of the Act
are detailed below:
(i) Section 3 provides for registration of
promoters who construct or intend to construct
a building and for obtaining permission for
construction.
(ii) Section 4 provides for the validity of
the certificate of registration and for
cancellation.
(iii) Section 5 provides for appeals.
(iv) Section 6 provides for adjudication of
disputes by an officer appointed by the State
Government for adjudication.
(v) Section 7 provides that the promoter
shall before taking any advance payment for
deposit, which shall not be more than 40% of
the sale price, enter into a written agreement
for sale which shall be registered.
(vi) Section 8 restrains additions or
alterations without the consent of the
transferee and for rectification of defects.
(vii) Section 9 contains a prohibition on a
promoter creating a mortgage or charge
without the consent of the purchaser after
entering into an agreement.
(viii) Section 10 requires the formation of
a cooperative society.
(ix) Section 11 provides for the promoter
to covey title to the cooperative society.
(x) Section 12 provides for insurance
against loss or death.
(xi) Section 13 provides for penalties.
(xii) Section 14 provides for offences by
companies.
(xiii) Section 15 provides for rule-making
powers.
(xiv) Section 16 provides for exemption to
constructions by the State Government
Housing Board and by the Housing and Urban
Development Corporation.
(xv) Section 17 provides for repeals and
the earlier legislation of 1972 is repealed.
The above provisions are repugnant to the
corresponding provisions which are contained
7
in RERA. These provisions of the WB Act,
1993 impliedly stand repealed upon the
enactment of RERA in 2016, in accordance
with Sections 88 and 89 read with Article
254(1) of the Constitution. Hence, we clarify
with abundant caution that our striking down
of the provisions of WB-HIRA in the present
judgment-t will not, in any manner, revive WB
Act, 1993, which was repealed upon the
enactment of WB-HIRA since WB Act, 1993 is
itself repugnant to RERA, and would stand
impliedly repealed.
184. For the above reasons, we have come to
the conclusion that WB-HIRA is repugnant to RERA,
and is hence unconstitutional. We also hold and
declare that as a consequence of the declaration by
this Court of the invalidity of the provisions of WB-
HIRA, there shall be no revival of the provisions of
the WB Act, 1993, since it would stand impliedly
repealed upon the enactment of RERA.
185. 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
the jurisdiction of this Court under Article 142 is
necessary. Hence, in exercise of the jurisdiction
under Article 142, we direct that the striking down
of WB-HIRA will not affect the registrations,
sanctions and permissions previously granted
under the legislation prior to the date of this
judgment.”
11. Now, the petitioners have raised the issue that in the year 2021, the
Hon’ble Supreme Court has repealed the Act of 1993, thus the order
passed by the respondent no.2 under the Act of 1993 is without any
jurisdiction and became Corum non- judice.
12. It is the contention of the petitioners that in the judgement, the Hon’ble
Supreme Court has categorically mentioned about registrations,
8
sanctions and permissions previously granted will not affect but the
Hon’ble Court has not mentioned about the pending proceeding, thus
all the proceedings are to be transferred to RERA. He submits that the
respondent no. 2 ought to have transferred the proceeding before the
RERA authorities but instead of the same has proceeded with the
matter and passed the impugned order without any jurisdiction or
authority after repealing of the Act of 1993.
13. Sections 88 and 89 of RERA, reads as follows:
“88. 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.
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.”
14. The Hon’ble Supreme Court in the case of Forum for People’s
Collective Efforts (FPCE) and Another (supra) has dealt with the
provisions of Sections 88 and 89, which reads as follows:
“150. Now, it is in this background that it
becomes necessary to analyse the provisions of
Sections 88 and 89 of the RERA. Section 88
stipulates that the application of other laws is not
barred : the provisions of the legislation “shall be in
addition to, and not in derogation of, the provisions
of any other law for the time being in force”. At the
same time, Section 89 provides for overriding effect
to the provisions of the RERA when it stipulates
that it “shall have effect, notwithstanding anything
inconsistent therewith contained in any other law
for the time being in force”. The interpretation of
these provisions and their interplay will have an
9important bearing on the outcome of the present
controversy. This is because, as we noticed earlier
in this judgment, the State of West Bengal had
originally supported its legislative authority over
the subject governed by WB-HIRA on the ground
that the State enactment falls within the ambit and
purview of List II of the Seventh Schedule.
However, though this submission was specifically
pressed in the counter-affidavit, it has been
expressly given up in the oral and written
submissions tendered before this Court by the
State of West Bengal. The submission now of the
State of West Bengal accepts that in essence and in
substance, WB-HIRA contains a substantial overlap
with the provisions of the RERA and is a law which
the State Legislature enacted in exercise of its
legislative authority under Article 246(2) while
legislating on subjects in the Concurrent List. The
State of West Bengal submitted that WB-HIRA, like
RERA is enacted with reference to the subjects
incorporated in Seventh Schedule List III Entries 6
and 7. Simply put, the submission of the State of
West Bengal is four-fold : firstly, though there is a
substantial overlap between the State and the
Central enactments and both of them govern the
same subject-matter and field, there is no
constitutional prohibition on the State Legislature
enacting legislation on a subject in the Concurrent
List which is virtually identical to Central
legislation in the same list; secondly, Section 88 of
the RERA contains an expression that its provisions
shall be in addition to, and not in derogation of any
other law for the time in force; this being an
indicator that Parliament contemplated that RERA
can coexist with analogous State
legislation; thirdly, the inconsistencies between
WB-HIRA and RERA are of a minor nature and
wherever the State enactment contains provisions
at variance with the Central law, the former will
have to yield to the latter, and fourthly, the
provisions of Section 92 of the RERA demonstrate
that where Parliament intended to repeal a specific
State legislation — Maharashtra Act II of 2014 —
only that legislation was repealed.
151. While considering these submissions
which have been articulated by Mr Rakesh
Dwivedi, learned Senior Counsel, it becomes
necessary to dwell on two lines of precedent of this
10Court. The first line of precedent analyses
provisions analogous to Section 88 of the RERA
and would shed light on what is the ambit of a
provision which states that the statute is in
addition to and not in derogation of any other law
for the time being in force. The second line of
precedent explores the meaning of the expression
“in any other law for the time being in force”. Does
this expression in Section 88 freeze the
applicability of that provision to laws which were in
force when RERA enacted or does it also apply to
laws which may be enacted subsequently?
152. The first line of precedent will facilitate
judicial evaluation of Section 88. In M.D. Frozen
Foods Exports (P) Ltd. v. Hero Fincorp Ltd.
reported in (2017) 16 SCC 741, a Bench of two
Judges of this Court analysed three issues of
which the first is of relevance to the present case.
That issue was :
“11.1. (i) Whether the arbitration
proceedings initiated by the respondent can be
carried on along with
the Sarfaesi proceedings simultaneously?”
The appellant in that case had borrowed
monies from the respondent by creating a mortgage
against deposit of title deeds. The account became
a non-performing asset resulting in the lender
invoking the arbitration clause of the agreement
with the borrower. Prior to it, a notification was
issued under which the provisions of the
Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act,
2002 (“the SARFAESI Act“) were applied to certain
non-banking financial institutions, including the
respondent. The respondent issued a notice under
Section 13(2) of the SARFAESI Act. In the course
of the arbitration proceedings, an interim order was
passed from which proceedings were carried in
appeal under Section 37 of the Arbitration and
Conciliation Act, 1996, resulting in the dispute
travelling to this Court. Sections 35 and 37 of
the SARFAESI Act are in the following terms:
“35. The provisions of this Act to
override other laws.– The provisions of this
Act shall have effect, notwithstanding
11anything inconsistent therewith contained in
any other law for the time being in force or
any instrument having effect by virtue of any
such law.
* * *
37. Application of other laws not
barred.–The provisions of this Act or the
Rules made thereunder shall be in addition to,
and not in derogation of, the Companies Act,
1956 (1 of 1956), the Securities Contracts
(Regulation) Act, 1956 (42 of 1956), the
Securities and Exchange Board of India Act,
1992 (15 of 1992), the Recovery of Debts Due
to Banks and Financial Institutions Act, 1993
(51 of 1993) or any other law for the time
being in force.”
153. Sanjay Kishan Kaul, J. adverted to the
above definition in the course of the judgment. The
Court noted the earlier decision
in Transcore v. Union of India reported in (2008)
1 SCC (Civ) 116 holding that by virtue of Section
37, the 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 (“the RDDB Act”). The “only twist” was that
instead of the recovery process being under the
RDDB Act, the Court was concerned with an
arbitration proceeding. In this context, the Court
observed :
“30. The only twist in the present case is
that, instead of the recovery process under the
RDDB Act, we are concerned with an
arbitration proceeding. It is trite to say that
arbitration is an alternative to the civil
proceedings. In fact, when a question was
raised as to whether the matters which came
within the scope and jurisdiction of the Debts
Recovery Tribunal under the RDDB Act, could
still be referred to arbitration when both
parties have incorporated such a clause, the
answer was given in the affirmative. That
being the position, the appellants can hardly
be permitted to contend that the initiation of
arbitration proceedings would, in any manner,
prejudice their rights to seek relief under
the Sarfaesi Act.”
12
There was, in other words, no question of an
election of remedies and the provisions of
the Sarfaesi Act provide a remedy in addition to
the provisions of the Arbitration
Act. Sarfaesi proceedings, the Court held, are in
the nature of enforcement proceedings, while
arbitration is an “adjudicatory process”.
154. In KSL & Industries Ltd. v. Arihant
Threads Ltd. reported in (2015) 1 SCC (Civ) 462, a
three-Judge Bench of this Court considered a
reference made by a two-Judge Bench following a
difference of opinion on the interpretation of Section
34 of the RDDB Act. In that case, the High Court
had set aside the order of the Debts Recovery
Appellate Tribunal, in view of the bar contained in
Section 22 of the Sick Industrial Companies
(Special Provisions) Act, 1985 (“SICA”). Section 32
of the SICA contained a provision giving overriding
force notwithstanding anything inconsistent
contained in any other law except the Foreign
Exchange Regulation Act, 1973 and the Urban
Land (Ceiling and Regulation) Act, 1976, among
other instruments. Section 32(1) was as follows:
“32. Effect of the Act on other laws.–
(1) The provisions of this Act and of any rules
or schemes made thereunder shall have effect
notwithstanding anything inconsistent
therewith contained in any other law except
the provisions of the Foreign Exchange
Regulation Act, 1973 (46 of 1973) and the
Urban Land (Ceiling and Regulation) Act, 1976
(33 of 1976) for the time being in force or in the
memorandum or articles of association of an
industrial company or in any other instrument
having effect by virtue of any law other than
this Act.”
155. The RDDB Act which was a later
enactment of 1993 contained Section 34 giving it
overriding effect:
“34. Act to have overriding effect.–(1)
Save as provided under sub-section (2), the
provisions of this Act shall have effect
notwithstanding anything inconsistent
therewith contained in any other law for the
13time being in force or in any instrument having
effect by virtue of any law other than this Act.
(2) The provisions of this Act or the Rules
made thereunder shall be in addition to, and
not in derogation of, the Industrial Finance
Corporation Act, 1948 (15 of 1948), the State
Financial Corporations Act, 1951 (63 of 1951),
the Unit Trust of India Act, 1963 (52 of 1963),
the Industrial Reconstruction Bank of India
Act, 1984 (62 of 1984), the Sick Industrial
Companies (Special Provisions) Act, 1985 (1 of
1986) and the Small Industries Development
Bank of India Act, 1989 (39 of 1989).”
156. Now, sub-section (1) of Section 34 gives
overriding effect to the RDDB Act notwithstanding
anything inconsistent contained in any other law
for the time being in force. On the other hand, sub-
section (2) provides that the provisions of the Act
and its Rules would be in addition to and not in
derogation of certain other named statutes.
Adverting to the provisions of Section 34(2), S.A.
Bobde (as the learned Chief Justice then was)
observed:
“36. Sub-section (2) was added to Section
34 of the RDDB Act w.e.f. 17-1-2000 by Act 1
of 2000. There is no doubt that when an Act
provides, as here, that its provisions shall be
in addition to and not in derogation of another
law or laws, it means that the legislature
intends that such an enactment shall coexist
along with the other Acts. It is clearly not the
intention of the legislature, in such a case, to
annul or detract from the provisions of other
laws. The term “in derogation of” means “in
abrogation or repeal of”. Black’s Law
Dictionary sets forth the following meaning for
“derogation”:
‘derogation.–The partial repeal or
abrogation of a law by a later Act that limits
its scope or impairs its utility and force.’It is clear that sub-section (1) contains a
non obstante clause, which gives the
overriding effect to the RDDB Act. Sub-section
(2) acts in the nature of an exception to such
14an overriding effect. It states that this
overriding effect is in relation to certain laws
and that the RDDB Act shall be in addition to
and not in abrogation of, such laws. SICA is
undoubtedly one such law.”
157. The Court held that the effect of sub-
section (2) was to preserve the powers of the
authorities under SICA and save the proceedings
from being overridden by the RDDB Act. The Court
held that both SICA and the RDDB Act were special
laws within their own sphere :
“39. There is no doubt that both are
special laws. SICA is a special law, which
deals with the reconstruction of sick
companies and matters incidental thereto,
though it is general as regards other matters
such as recovery of debts. The RDDB Act is
also a special law, which deals with the
recovery of money due to banks or financial
institutions, through a special procedure,
though it may be general as regards other
matters such as the reconstruction of sick
companies which it does not even specifically
deal with. Thus, the purpose of the two laws
is different.”
158. The Court noticed that Section 34(2) of
the RDDB Act specifically provides that its
provisions would be in addition to and not in
derogation of the other laws mentioned in it,
including SICA. The expression “not in derogation”
was then construed in the following observations:
“49. The term “not in derogation” clearly
expresses the intention of Parliament not to
detract from or abrogate the provisions of the
SICA in any way. This, in effect must mean
that Parliament intended the proceedings
under SICA for reconstruction of a sick
company to go on and for that purpose further
intended that all the other proceedings against
the company and its properties should be
stayed pending the process of reconstruction.
While the term “proceedings” under Section 22
of the SICA did not originally include the
RDDB Act, which was not there in existence.
15
Section 22 covers proceedings under the
RDDB Act.”
Consequently, the Court in KSL & Industries Ltd.
case answered the reference by holding that the
provisions of the SICA, in particular Section 22,
shall prevail over the provisions for the recovery of
debts in the RDDB Act.
159. To complete this trinity of judgments
between 2015 and 2019, there is a three-Judge
Bench decision of this Court in Pioneer Urban Land
& Infrastructure Ltd. v. Union of India. This Court
considered a challenge to the constitutional validity
of the amendments made in 2018 to IBC 2016,
pursuant to a report of the Insolvency Law
Committee. Under the amended provisions,
allottees of real estate projects were deemed to be
financial creditors, triggering the applicability of the
Code to real estate developers. The three-Judge
Bench considered, in the course of its decision, the
provisions of the RERA. The Court adverted to the
provisions of Sections 88 and 89 of the RERA on
the one hand and to Section 238 of IBC which is in
the following terms:
“238. Provisions of this Code to
override other laws.–The provisions of this
Code shall have effect, notwithstanding
anything inconsistent therewith contained in
any other law for the time being in force or
any instrument having effect by virtue of any
such law.”
160. R.F. Nariman, J. speaking for the three-
Judge Bench noted that:
160.1. There is no provision analogous to
Section 88 of the RERA in IBC and the latter is
meant to be a complete and exhaustive statement
of the law insofar as its subject-matter is
concerned.
160.2. While the non obstante clause of
RERA came into force on 1-5-2015, the non
obstante clause of IBC came into force on 1-12-
2016.
16
160.3. The amendments to IBC had come
into force on 6-6-2018.
161. In this backdrop, the Court did not
accept the submission that RERA being a special
enactment would have precedence over IBC which
is a general enactment dealing with insolvency. In
this backdrop, the Court observed:
“25. … From the introduction of the
Explanation to Section 5(8)(f) of the Code, it is
clear that Parliament was aware of RERA,
and applied some of its definition provisions
so that they could apply when the Code is to
be interpreted. The fact that RERA is in
addition to and not in derogation of the
provisions of any other law for the time being
in force, also makes it clear that the remedies
under RERA to allottees were intended to be
additional and not exclusive remedies. Also, it
is important to remember that as the
authorities under RERA were to be set up
within one year from 1-5-2016, remedies
before those authorities would come into effect
only on and from 1-5-2017 making it clear that
the provisions of the Code, which came into
force on 1-12-2016, would apply in addition to
RERA.”
162. The Court noted the decision in KSL &
Industries in which it was held that
notwithstanding the non obstante clause contained
in the RDDB Act which was later in time than the
non obstante clause in SICA and the principle that
the later Act would prevail over the earlier, this
principle was departed from only because of the of
the presence of a provision, like Section 88 of the
RERA, which was contained in the RDDB Act which
made it clear that the Act was meant to be in
addition and not in derogation of other statutes.
Distinguishing the decision, the Court observed:
“27. In view of Section 34(2) of the
Recovery Act, this Court held that despite the
fact that the non obstante clause contained in
the Recovery Act is later in time than the non
obstante clause contained in the Sick Act, in
the event of a conflict, the Recovery Act i.e. the
later Act must give way to the Sick Act i.e. the
17earlier Act. Several judgments were referred to
in which ordinarily a later Act containing a
non obstante clause must be held to have
primacy over an earlier Act containing a non
obstante clause, as Parliament must be
deemed to be aware of the fact that the later
Act is intended to override all earlier statutes
including those which contained non obstante
clauses. This statement of the law was
departed from in KSL & Industries only
because of the presence of a section like
Section 88 of the RERA contained in the
Recovery Act, which makes it clear that the
Act is meant to be in addition to and not in
derogation of other statutes. In the present
case, it is clear that both tests are satisfied,
namely, that the Code as amended, is both
later in point of time than RERA, and must be
given precedence over RERA, given Section 88
of the RERA.”
163. Therefore, the Court in Pioneer Urban
Land & Infrastructure Ltd. case held that RERA
and IBC must be held to coexist and in the event of
a clash, RERA must give way to IBC.
164. The second line of precedent has been
relied upon by Mr Rakesh Dwivedi on behalf of the
State of West Bengal, as an aid to the construction
of the expression “law for the time being in force”.
In the decision of the Constitution Bench
in Sasanka Sekhar Maity v. Union of India, A.P.
Sen, J. construed the provisions of the second
proviso to Article 31-A(1) of the Constitution and the
expression “any law for the time being in force”.
The argument was that this expression must mean
the West Bengal Estate Acquisition Act, 1953 only.
Rejecting the submission, the Constitution Bench
held:
“27. Such a construction, if we may say
so, would create a serious impediment to any
kind of agrarian reform. The ceiling on
agricultural holdings, once fixed cannot be
static, unalterable for all times. The
expression “any law for the time being in
force” obviously refers to the law imposing a
ceiling. Here it is the West Bengal Land
Reforms (Amendment) Act, 1971 (President’s
18Act 3 of 1971) and now the West Bengal Land
Reforms (Amendment) Act, 1971 (W.B. Act 12
of 1972) which introduced Chapter II-B
imposing a new ceiling on agricultural
holdings of raiyats. That is the law for the
time being in force, and no land is being
acquired by the State under Section 14-L
within the ceiling limits prescribed therein.
28. It will be noticed that the second
proviso to Article 31-A(1) refers to the “ceiling
limit applicable to him”, which evidently refers
to the law in question and not earlier law, that
is Section 6(1) of the West Bengal Estates
Acquisition Act, 1953. It will be noticed that
both Section 4(3) and Section 6(2) of the West
Bengal Land Reforms Act, 1955 stood deleted
by the West Bengal Land Reforms
(Amendment) Act, 1971 (President’s Act 3 of
1971) and thereafter by the West Bengal Land
Reforms (Amendment) Act, 1972 with
retrospective effect from 12-2-1971.”
165. In Thyssen Stahlunion GmbH v. SAIL,
a two-Judge Bench of this Court considered the
expression “for the time being in force” in the
context of an arbitration agreement and agreed
with the view of the High Courts of Bombay and
Madhya Pradesh, which had held that the
expression not only refers to the law in force at the
time when the arbitration was entered into but also
to any law that may be in force in the conduct of
the arbitration proceeding. Speaking for the Bench,
D.P. Wadhwa, J. held :
“35. Parties can agree to the applicability
of the new Act even before the new Act comes
into force and when the old Act is still holding
the field. There is nothing in the language of
Section 85(2)(a) which bars the parties from so
agreeing. There is, however, a bar that they
cannot agree to the applicability of the old Act
after the new Act has come into force when
arbitral proceedings under the old Act have
not commenced though the arbitral agreement
was under the old Act. Arbitration clause in
the contract in Rani Constructions (Civil
Appeal No. 61 of 1999) uses the expression
“for the time being in force” meaning thereby
19that provision of that Act would apply to the
arbitration proceedings which will be in force
at the relevant time when arbitration
proceedings are held. We have been referred
to two decisions — one of the Bombay High
Court and the other of the Madhya Pradesh
High Court on the interpretation of the
expression “for the time being in force” and we
agree with them that the expression
aforementioned not only refers to the law in
force at the time the arbitration agreement
was entered into but also to any law that may
be in force for the conduct of arbitration
proceedings, which would also include the
enforcement of the award as well. The
expression “unless otherwise agreed” as
appearing in Section 85(2)(a) of the new Act
would clearly apply in Rani Constructions in
Civil Appeal No. 61 of 1999. Parties were clear
in their minds that it would be the old Act or
any statutory modification or re-enactment of
that Act which would govern the arbitration.
We accept the submission of the appellant
Rani Constructions that parties could
anticipate that the new enactment may come
into operation at the time the disputes arise.
We have seen Section 28 of the Contract Act. It
is difficult for us to comprehend that
arbitration agreement could be said to be in
restraint of legal proceedings. There is no
substance in the submission of the respondent
that parties could not have agreed to the
application of the new Act till they knew the
provisions thereof and that would mean that
any such agreement as mentioned in the
arbitration clause could be entered into only
after the new Act had come into force. When
the agreement uses the expressions “unless
otherwise agreed” and “law in force” it does
give an option to the parties to agree that the
new Act would apply to the pending
arbitration proceedings. That agreement can
be entered into even before the new Act comes
into force and it cannot be said that agreement
has to be entered into only after the coming
into force of the new Act.”
166. The decision of a two-Judge Bench
in MCD v. Prem Chand Gupta, considered
20
Regulation 4(1) of the Services Regulations of 1959
which commenced with the expression “Unless
otherwise provided in the Act or these Regulations,
the rules for the time being in force and applicable
to government servants in the service of the Central
Government shall, as far as may be, regulate the
conditions of service of municipal officers and other
municipal employees”. The Court rejected the
submission that the rules for the time being in force
would be those which were in existence when the
Services Regulations of 1959 were promulgated
and not any later rules. S.B. Majmudar, J. held
that whenever the question of the regulation of
conditions of service of municipal officers comes up
for consideration, the relevant rules in force at that
time have to be looked into. As such, the scope and
ambit could not be frozen as of 1959. Hence, the
phraseology “rules for the time being in force”
would necessarily mean rules in force from time to
time and not the rules in force only at a fixed point
of time in 1959.
167. Another two-Judge Bench of this Court
in Yakub Abdul Razak Memon v. State of
Maharashtra, while construing the provisions of the
Juvenile Justice (Care and Protection of Children)
Act, 2000 and its interplay with the Terrorist and
Disruptive Activities (Prevention) Act, 1987,
speaking through P. Sathasivam, J. (as the learned
Chief Justice was then), held:
“1554. Section 1(4) of the JJ Act was
added by amendment with effect from 22-8-
2006. In fact, this provision gives the
overriding effect to this Act over other statutes.
However, it reads that the Act would override
“anything contained in any other law for the
time being in force”. The question does arise
as to whether the statutory provisions of the
JJ Act would have an overriding effect over
the provisions of TADA which left long back
and was admittedly not in force on 22-8-
2006. Thus, the question does arise as to
what is the meaning of the law for the time
being in force. This Court has interpreted this
phrase to include the law in existence on the
date of commencement of the Act having
overriding effect and the law which may be
21enacted in future during the life of the Act
having overriding effect.”
168. In State (UT of Chandigarh) v. Rajesh
Kumar, Brijesh Kumar, J. considered the
expression “for the time being in force” in the Law
Lexicon and held that it must be interpreted
keeping in mind the context in which it is used :
“10. A perusal of the meaning of the
expression “for the time being” by different
authors, based on decided cases makes it
clear that it cannot be said that it must in
every case indicate a single period of time. It
may be for an indefinite period of time
depending upon the context in which the
phrase is used. It is also evident that
generally it denotes an indefinite period of
time, meaning thereby, the position as existing
at the time of application of the rules, maybe,
amended or unamended. Therefore, to come to
a conclusion as to whether it is for one time or
for indefinite period of time, the context,
purpose and the intention of the use of the
phrase will have to be seen and examined.”
169. Similarly, in Deptt. of
Customs v. Sharad Gandhi, a two-Judge Bench of
this Court considered a case where the respondent
had been discharged of offences under Sections
132 and 175 of the Customs Act, 1962. The
Additional Chief Metropolitan Magistrate allowed
an application for discharge holding that there was
a complete bar with regard to prosecution under
the Customs Act, 1962, and that the Collector of
Customs only had the power to confiscate the
goods and impose a penalty for a breach of Section
3 of the Antiquities and Art Treasurers Act, 1972.
Amongst other issues, the Bench had to interpret
the meaning of Section 30 of the Antiquities and Art
Treasurers Act, 1972, which reads as follows:
“30. Application of other laws not
barred.–The provisions of this Act shall be in
addition to, and not in derogation of, the
provisions of the Ancient Monuments
Preservation Act, 1904 (7 of 1904) or the
Ancient Monuments and Archaeological Sites
22and Remains Act, 1958 (24 of 1958), or any
other law for the time being in force.”
170. K.M. Joseph, J., speaking for the two-
Judge Bench, observed:
“39. We would think that though the
words “any other law for the time being in
force” have been used, the context for the use
of the provision is not to be overlooked. We
have referred to the relevant provisions of the
two specific enactments which show that the
said legislation also deals with antiquities as
it deals with cognate subjects, namely, ancient
monuments and archaeological sites. The
common genus is manifest. The legislative
intention was to declare that the Antiquities
Act should not result in the provision
contained in allied or cognate laws being
overridden upon passing of the Antiquities Act.
Full play was intended for the provisions
contained in relation to antiquities contained
in the two enactments. Despite the passage of
the Antiquities Act, a prosecution for instance
would be maintainable if a case is otherwise
made out under the two enactments in relation
to antiquity. The Antiquities Act in other words
is not to be in derogation of those provisions.
They were to supplement the existing laws. It
is therefore in the same context that we should
understand the words “any other law for the
time being in force”. For instance, there may
be laws made by the State Legislatures which
relate to antiquity. There may be any other
law which deal with a subject with a common
genus of which the specific law would be an
integral part. It is all such laws which
legislature intended to comprehend within the
expression “any other law for the time being in
force”. Take for example, a case where there is
a theft of an antiquity. Can it be said that the
prosecution under Section 379 would not be
maintainable. The answer will be an emphatic
No. Certainly, the prosecution will lie. The Sale
of Goods Act, 1930 which relates to movable
items generally will be applicable, to the
extent that it is not covered by any provision in
the Acts in question. The Contract Act, 1872
may continue to be applicable. But it is not the
23question of applying general laws that engage
the attention of the legislature. The intention
behind Section 30 was as noted is to provide
for any other law which deal with antiquity to
continue to have force and declare its
enforceability even after passing of the
Antiquities Act. In that view of the matter we
are of the view that the words “any other law
for the time being in force” must be construed
as ejusdem generis.
171. These decisions indicate that the
expression “any other law for the time being in
force” does not necessarily mean, such laws as
were in existence when the statutory provision was
enacted. To the contrary, it widely considered to
means not just the laws which were in existence
when the statutory provision was enacted but also
such laws which may come into existence at a later
stage. On the other hand, another line of judicial
precedent also suggests the meaning to be ascribed
to the expression must bear colour from the context
in which it appears, and not devoid of it.
172. For instance, in National Insurance Co.
Ltd. v. Sinitha, in the context of a policy of
insurance, the expression “for the time being in
force” was held to mean provisions then existing.
The decision related to Sections 144 and 163-A of
the Motor Vehicles Act, 1988, in which Section 163-
A was subsequently inserted. In the context of
adjustment of compensation, a two-Judge Bench of
this Court held that Section 144 would not override
Section 163-A because of the use of the expression
“laws for the time being in force” would encompass
only existing provisions of the Motor Vehicles Act,
1988, and not those inserted in the Act later.
Speaking for the Bench, J.S. Khehar, J. (as the
learned Chief Justice was then) observed :
“16. Section 144, it may be pointed out, is
a part of Chapter X of the Motor Vehicles Act,
1988, which includes Section 140. Section 144
of the Act is being extracted herein:
‘144. Overriding effect. — The
provisions of this Chapter shall have effect
notwithstanding anything contained in any
24other provision of this Act or of any other law
for the time being in force.’Even though Section 144 of the Act mandates
that the provisions of Chapter X (which
includes Section 140) have effect
notwithstanding anything to the contrary
contained in any other provision of the Act or
in any other law for the time being in force,
Section 144 of the Act would not override the
mandate contained in Section 163-A for the
simple reason that Section 144 provided for
such effect over provisions “for the time being
in force” i.e. the provisions then existing, but
Section 163-A was not on the statute book at
the time when Section 144 was incorporated
therein. Therefore, the provisions contained in
Chapter X would not have overriding effect
over Section 163-A of the Act.
17. As against the aforesaid, at the time
of incorporation of Section 163-A of the Act,
Sections 140 and 144 of the Act were already
subsisting, as such, the provisions of Section
163-A which also provided by way of a non
obstante clause, that it would have by a legal
fiction overriding effect over all existing
provisions under the Act as also any other law
or instrument having the force of law “for the
time being in force”, would have overriding
effect, even over the then existing provisions in
Chapter X of the Act because the same was
already in existence when Section 163-A was
introduced into the Act.”
This again indicates that it is the statutory context
and scheme which will determine the nature and
ambit of the expression “any other law for the time
being in force”.
173. In the case of RERA, the expression
“law for the time being in force” is used in Section
89 as well as in Section 2(zr) and Section 18(2).
Section 2(zr), as noticed earlier, stipulates that
words and expression used in the Act, but not
defined in it and defined in any law for the time
being in force or in municipal laws or other relevant
25
laws of the appropriate Government, shall have the
meaning assigned to them in those laws. Evidently,
a law for the time being in force in Section 2(zr) is
not frozen in point of time as on the date of the
enactment of RERA. Likewise, Section 18(2) of the
RERA imposes an obligation to the promoter to
compensate allottees for the loss caused due to a
defective title to the land and the provision
stipulates that the claim for compensation shall not
be barred by limitation provided “under any law for
the time being in force”. However, in Section 89,
“law for the time being in force” is used in general
sense of all the provisions of the Act, vis-Ã -vis,
provisions of other Acts.
174. From our analysis of the provisions of
the RERA on the one hand and of WB-HIRA on the
other, two fundamental features emerge from a
comparison of the statutes. First, a significant and
even overwhelmingly large part of WB-HIRA
overlaps with the provisions of the RERA. These
provisions of the RERA have been lifted bodily,
word for word and enacted into the State
enactment. Second, in doing so, WB-HIRA does not
complement RERA by enacting provisions which
may be regarded as in addition to or fortifying the
rights, obligations and remedies created by the
Central enactment. The subject of the provisions of
the State enactment is identical, the content is
identical. In essence and substance, WB-HIRA has
enacted a parallel mechanism and parallel regime
as that which has been entailed under RERA. The
State Legislature has, in other words, enacted
legislation on the same subject-matter as the
Central enactment. Not only is the subject-matter
identical but in addition, the statutory provisions of
WB-HIRA are on a majority of counts identical to
those of RERA. Both sets of statutes are referable
to the same entries in the Concurrent List — Entries
6 and 7 of List III — and the initial effort of the
State of West Bengal to sustain its legislation as a
law regulating “industry” within the meaning of
List II Entry 24 has been expressly given up before
this Court (as we have explained, for valid reasons
bearing on the precedents of this Court).
175. In assessing whether this overlap
between the statutory provisions of WB-HIRA and
RERA makes the former repugnant to the latter
26
within the meaning of that expression in clause (1)
of Article 254, it becomes necessary to apply the
several tests which are a part of our constitutional
jurisprudence over the last seven decades.
Repugnancy can be looked at from three distinct
perspectives. The first is where the provision of a
State enactment is directly in conflict with a law
enacted by Parliament, so that compliance with one
is impossible along with obedience to the other. The
second test of repugnancy is where Parliament
through the legislative provisions contained in the
statute has enacted an exhaustive code. The
second test of repugnancy is based on an intent of
Parliament to occupy the whole field covered by the
subject of its legislation. In terms of the second test
of repugnancy, a State enactment on the subject
has to give way to the law enacted by Parliament
on the ground that the regulation of the subject-
matter by Parliament is so complete as a code, so
as to leave no space for legislation by the State.
The third test of repugnancy postulates that the
subject-matter of the legislation by the State is
identical to the legislation which has been enacted
by Parliament, whether prior or later in point of
time. Repugnancy in the constitutional sense is
implicated not because there is a conflict between
the provisions enacted by the State Legislature
with those of the law enacted by Parliament but
because once Parliament has enacted a law, it is
not open to the State Legislature to legislate on the
same subject-matter and, as in this case, by
enacting provisions which are bodily lifted from
and verbatim the same as the statutory provisions
enacted by Parliament. The overlap between the
provisions of WB-HIRA and RERA is so significant
as to leave no manner of doubt that the test of
repugnancy based on an identity of subject-matter
is clearly established. As the decision
in Innoventive Industries [Innoventive Industries
Ltd. v. ICICI Bank, emphasises, laws under this
head are repugnant even if the rule of conduct
prescribed by both the laws is identical. This
principle constitutes the foundation of the rule of
implied repeal. The present case is not one where
WB-HIRA deals not with matters which form the
subject-matter of the parliamentary legislation but
with other and distinct matters of a cognate and
allied nature. WB-HIRA, on the contrary, purports
to occupy the same subject as that which has been
27
provided in the parliamentary legislation. The State
law fits, virtually on all fours, with the footprints of
the law enacted by Parliament. This is
constitutionally impermissible. What the legislature
of the State of West Bengal has attempted to
achieve is to set up its parallel legislation involving
a parallel regime.
176. But the submission which has been
articulately presented before the Court on behalf of
the State of West Bengal is that Section 88 of the
RERA itself allows for the existence of State
statutes by enacting Sections 88 and 89, which
stipulate that its provisions shall be in addition to
and not in derogation of the provisions of any other
law for time being in force and override only
inconsistent provisions. For the purpose of the
present discussion, we may accept the hypothesis
of the State of West Bengal that the expression
“any other law for the time being in force” does not,
in the context of Section 88, imply the applicability
of the provision only to laws which had been
enacted before RERA. Conceivably, as the
judgments of this Court construing similar
expressions indicate, the trend has been to broadly
configure the meaning of the expression by
extending it to laws which were in existence and
those which may be enacted thereafter. In other
contexts, such an interpretation has not been
accepted but, for the purpose of the discussion, we
will proceed on the hypothesis which has been put
forth by the State of West Bengal that “law for the
time being in force” within the meaning of Section
88 would also include subsequent legislation. The
submission is that since Section 88 allows for the
existence of other laws by adopting the “in addition
to and not in derogation of” formula, Parliament did
not intend to exclude State legislation even though
it is identical to that which has been enacted by
Parliament. This submission is also sought to be
buttressed by adverting to Section 92 of the RERA,
under which only the Maharashtra Act was
repealed.
177. Now, in assessing the correctness of the
submission, it is necessary to construe Section 88
in its proper perspective. Unless this is done, the
Court would be doing violence to the intent of
Parliament and to the constitutional principles
28
which are embodied in Article 254. Parliament
envisaged in Section 88 of the RERA that its
provisions would be in addition to and not in
derogation of other laws for the time being in force.
True enough, this provision is an indicator of the
fact that Parliament has not intended to occupy the
whole field so as to preclude altogether the exercise
of legislative authority whether under other Central
or State enactments. For instance, Section 71 of the
RERA specifically contemplates [in the proviso to
sub-section (1)] that a complaint in respect of
matters covered by Sections 12, 14, 18 and 19 is
pending in the adjudicating fora constituted by the
Consumer Protection Act, 1986. The person who
has moved the consumer forum may withdraw the
complaint and file an application before the
adjudicating officer constituted under RERA. The
effect of Section 88 is to ensure that remedies
which are available under consumer legislation,
including the Consumer Protection Act, 2019, are
not ousted as a consequence of the operation of
RERA. Of course, it is also material to note that
both sets of statutes, namely, the Consumer
Protection Act(s) and RERA, have been enacted by
Parliament and both sets of statutes have to be,
therefore, harmoniously construed. Section 88 of
the RERA does not exclude recourse to other
remedies created by cognate legislation. Where the
cognate legislation has been enacted by a State
Legislature, Section 88 of the RERA is an indicator
that Parliament did not wish to oust the legislative
power of the State Legislature to enact legislation
on cognate or allied subjects. In other words,
spaces which are left in RERA can be legislated
upon by the State Legislature by enacting a
legislation, so long as it is allied to, incidental or
cognate to the exercise of Parliament’s legislative
authority. What the State Legislature in the present
case has done is not to enact cognate or allied
legislation but legislation which, insofar as the
statutory overlaps is concerned is identical to and
bodily lifted from the parliamentary law. This
plainly implicates the test of repugnancy by setting
up a parallel regime under the State law. The State
Legislature has encroached upon the legislative
authority of Parliament which has supremacy
within the ambit of the subjects falling within the
Concurrent List of the Seventh Schedule. The
29
exercise conducted by the State Legislature of
doing so, is plainly unconstitutional.”
15. Section 6 of the General Clauses Act, 1897, reads as follows:
“6. Effect of repeal.–Where this Act, or any
Central Act or Regulation made after the
commencement of this Act, repeals any enactment
hitherto made or hereafter to be made, then, unless
a different intention appears, the repeal shall not–
(a) revive anything not in force or existing at the
time at which the repeal takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder; or
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
(e) affect any investigation, legal proceeding or
remedy in respect of any such right,
privilege, obligation, liability, penalty,
forfeiture or punishment as aforesaid;
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or
Regulation had not been passed.”
16. In the case of Keshavan Madhava Menon Vs. State of Bombay
reported in 1951 SCC 16, the Hon’ble Supreme Court held that:
“5. The High Court considered it unnecessary
to deal with or decide the first question and
disposed of the application only on the second
question. The High Court took the view that the
word “void” was used in Article 13(1) in the sense
30of “repealed” and that consequently it attracted
Section 6 of the General Clauses Act, which Act by
Article 367 was made applicable for the
interpretation of the Constitution. The High Court,
therefore, reached the conclusion that proceedings
under the Indian Press (Emergency Powers) Act,
1931, which were pending at the date of the
commencement of the Constitution were not
affected, even if the Act were inconsistent with the
fundamental rights conferred by Article 19(1)(a)
and as such became void under Article 13(1) of the
Constitution after 26-1-1950. The High Court
accordingly answered the second question in the
affirmative and dismissed the petitioner’s
application.
10. Article 372(2) gives power to the
President to adapt and modify existing laws by
way of repeal or amendment. There is nothing to
prevent the President, in exercise of the powers
conferred on him by that Article, from repealing say
the whole or any part of the Indian Press
(Emergency Powers) Act, 1931. If the President
does so, then such repeal will at once attract
Section 6 of the General Clauses Act. In such a
situation all prosecutions under the Indian Press
(Emergency Powers) Act, 1931, which were
pending at the date of its repeal by the President
would be saved and must be proceeded with
notwithstanding the repeal of that Act unless an
express provision was otherwise made in the
repealing Act.
11. It is, therefore, clear that the idea of the
preservation of past inchoate rights or liabilities
and pending proceedings to enforce the same is not
foreign or abhorrent to the Constitution of India. We
are, therefore, unable to accept the contention
about the spirit of the Constitution as invoked by
the learned counsel in aid of his plea that pending
proceedings under a law which has become void
cannot be proceeded with. Further, if it is against
the spirit of the Constitution to continue the pending
prosecutions under such a void law, surely it
should be equally repugnant to that spirit that men
who have already been convicted under such
repressive law before the Constitution of India
came into force should continue to rot in jail. It is,
therefore, quite clear that the Court should construe
31the language of Article 13(1) according to the
established rules of interpretation and arrive at its
true meaning uninfluenced by an assumed spirit of
the Constitution.
12. Article 13(1) with which we are concerned
for the purposes of this application is in these
terms:
“13. (1) All laws in force in the territory
of India immediately before the
commencement of this Constitution, insofar as
they are inconsistent with the provisions of
this Part, shall, to the extent of such
inconsistency, be void.”
It will be noticed that all that this clause declares is
that all existing laws, insofar as they are
inconsistent with the provisions of Part III shall, to
the extent of such inconsistency, be void.
13. Every statute is prima facie prospective
unless it is expressly or by necessary implications
made to have retrospective operation. There is no
reason why this rule of interpretation should not be
applied for the purpose of interpreting our
Constitution. We find nothing in the language of
Article 13(1) which may be read as indicating an
intention to give it retrospective operation. On the
contrary, the language clearly points the other way.
The provisions of Part III guarantee what are called
fundamental rights. Indeed, the heading of Part III
is “Fundamental Rights”. These rights are given, for
the first time, by and under our Constitution. Before
the Constitution came into force there was no such
thing as fundamental right. What Article 13(1)
provides is that all existing laws which clash with
the exercise of the fundamental rights (which are
for the first time created by the Constitution) shall
to that extent be void. As the fundamental rights
became operative only on and from the date of the
Constitution the question of the inconsistency of the
existing laws with those rights must necessarily
arise on and from the date those rights came into
being. It must follow, therefore, that Article 13(1)
can have no retrospective effect but is wholly
prospective in its operation. After this first point is
noted, it should further be seen that Article 13(1)
does not in terms make the existing laws which are
32
inconsistent with the fundamental rights void ab
initio or for all purposes. On the contrary, it
provides that all existing laws, insofar as they are
inconsistent with the fundamental rights, shall be
void to the extent of their inconsistency. They are
not void for all purposes but they are void only to
the extent they come into conflict with the
fundamental rights.
14. In other words, on and after the
commencement of the Constitution no existing law
will be permitted to stand in the way of the exercise
of any of the fundamental rights. Therefore, the
voidness of the existing law is limited to the future
exercise of the fundamental rights. Article 13(1)
cannot be read as obliterating the entire operation
of the inconsistent laws, or to wipe them out
altogether from the statute book, for to do so will be
to give them retrospective effect which, we have
said, they do not possess. Such laws exist for all
past transactions and for enforcing all rights and
liabilities accrued before the date of the
Constitution.
15. The learned counsel for the appellant has
drawn our attention to Articles 249(3), 250, 357,
358 and 369 where express provision has been
made for saving things done under the laws which
expired. It will be noticed that each of those articles
was concerned with expiry of temporary statutes. It
is well known that on the expiry of a temporary
statute no further proceedings can be taken under
it, unless the statute itself saved pending
proceedings. If, therefore, an offence had been
committed under a temporary statute and the
proceedings were initiated but the offender had not
been prosecuted and punished before the expiry of
the statute, then, in the absence of any saving
clause, the pending prosecution could not be
proceeded with after the expiry of the statute by
efflux of time. It was on this principle that express
provision was made in the several articles noted
above for saving things done or omitted to be done
under the expiring laws referred to therein.
16. As already explained above, Article 13(1)
is entirely prospective in its operation and as it was
not intended to have any retrospective effect there
was no necessity at all for inserting in that article
33
any such saving clause. The effect of Article 13(1)
is quite different from the effect of the expiry of a
temporary statute or the repeal of a statute by a
subsequent statute. As already explained, Article
13(1) only has the effect of nullifying or rendering
all inconsistent existing laws ineffectual or
nugatory and devoid of any legal force or binding
effect only with respect to the exercise of
fundamental rights on and after the date of the
commencement of the Constitution. It has no
retrospective effect and if, therefore, an act was
done before the commencement of the Constitution
in contravention of the provisions of any law which,
after the Constitution, becomes void with respect to
the exercise of any of the fundamental rights, the
inconsistent law is not wiped out so far as the past
act is concerned for, to say that it is, will be to give
the law retrospective effect. There is no
fundamental right that a person shall not be
prosecuted and punished for an offence committed
before the Constitution came into force. So far as
the past acts are concerned the law exists,
notwithstanding that it does not exist with respect
to the future exercise of fundamental rights.
17. We, therefore, agree with the conclusion
arrived at by the High Court on the second
question, although on different grounds. In view of
that conclusion, we do not consider it necessary to
examine the reasons of the High Court for its
conclusion. In our opinion, therefore, this appeal
fails, and is dismissed.”
17. Real Estate (Regulation and Development) Act, 2016, came into force
with effect from 25th March, 2016. The Hon’ble Supreme Court repealed
the Act of 1993 by a judgment dated 4th May, 2021. While repealing the
Act of 1993, the Hon’ble Supreme Court taken into consideration of
Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of the Act
of 1993. The Hon’ble Supreme Court while taking into consideration of
Sections 88 and 89 of RERA and Article 254(1) of the Constitution of
India has repealed the Act of 1993.
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18. The Act of 1993 is repealed by a judgment of the Hon’ble Supreme
Court dated 4th May, 2021. On the said date, a writ proceeding being
WPA No. 2470 of 2012 was pending before this Court against the order
passed by the Authorized Officer under the Act of 1993. The said writ
petition was disposed of on 6th January, 2022, directing the Authorized
Officer i.e. the Secretary Government of West Bengal, Housing
Department to hear the revisional applications of both the parties and
after giving an opportunity of hearing to the parties and to pass
appropriate reasoned and speaking order within a period of three (3)
months from the date of communication of the order. In compliance of
the order of this Court, the Authorized Officer has passed the impugned
order.
19. There is nothing in the judgment passed by the Hon’ble Supreme Court
which takes away the right of the pending proceeding under the Act of
1993. The Hon’ble Supreme Court has not passed any specific order
that the repeal of the Act of 1993 would be effective retrospectively. The
Hon’ble Court also not passed any order for transfer of all pending
cases under the Act of 1993 to the concern authorities under RERA.
20. In these circumstances, it is to be inferred that if there is at all any
expression of intention, it is to keep Section 6 of the General Clauses
Act applicable to the pending litigation.
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21. In the case of State of Punjab & Ors. vs Bhajan Kaur & Ors.
reported in (2008) 12 SCC 112, the Hon’ble Supreme Court held that:
“14. Reference to Section 6 of the General
Clauses Act, in our opinion, is misplaced. Section
217 of the 1988 Act contains the repeal and saving
clause. Section 140 of the 1988 Act does not find
place in various clauses contained in sub-section
(2) of Section 217 of the 1988 Act. Sub-section (4) of
Section 217 of the 1988 Act reads thus:
“217. (4) The mention of particular
matters in this section shall not be held to
prejudice or affect the general application of
Section 6 of the General Clauses Act, 1897 (10
of 1897), with regard to the effect of repeals.”
What is, therefore, otherwise saved in
Section 6 of the General Clauses Act, inter
alia, is the right. It reads as under:
“6. Effect of repeal.–Where this Act, or
any Central Act or Regulation made after the
commencement of this Act, repeals any
enactment hitherto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not–
(a)-(b)***
(c) affect any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed;”
Section 6 of the General Clauses Act,
therefore, inter alia, saves a right accrued
and/or a liability incurred. It does not create a
right. When Section 6 applies, only an existing
right is saved thereby. The existing right of a
party has to be determined on the basis of the
statute which was applicable and not under
the new one. If a new Act confers a right, it
does so with prospective effect when it comes
into force, unless expressly stated otherwise.
16. It is now well-settled that a change in the
substantive law, as opposed to adjective law,
would not affect the pending litigation unless the
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legislature has enacted otherwise, either expressly
or by necessary implication.”
22. Section 8 of the Bengal General Clauses Act, 1899, reads as follows:
“8. Effect of Repeal- Where any Bihar and
Orissa Act (or Bihar Act) repeals any enactment
hitherto made, or hereafter to be made, then,
unless a different intention appears, the repeal
shall not-
a) revive anything not in force or existing at the
time at which the repeal takes effect; or
b) affect the previous operation of any
enactment so repealed or anything duly done
or suffered thereunder; or
c) after any right, privilege, obligation or
liability acquired, accrued or incurred under
any enactment so repealed; or
d) affect any penalty, forfeiture or punishment
incurred in respect of any offence committed
against any enactment so repealed; or
e) affect any investigation, legal proceeding or
remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or
punishment as aforesaid.
and any such investigation, legal proceeding or
remedy may be instituted, continued or enforced,
and any such penalty, forfeiture or punishment
may be imposed as if the repealing Act or
Regulation had not been passed.”
23. The function of Section 8 of the Bengal General Clauses Act, 1899,
which correspondences to Section 6 of the Central General Clauses Act,
1897, is to attach a saving clause in terms of its provisions to even
such repealing Acts as do not contain a saving clause, except where the
repealing Act makes it clear that no saving is contemplated. But the
37
effect of the provision is only to save and not to add or enact anything
new. What it saves from is extinction by the repeal and what it saves
are rights and liabilities accrued under the repealed Act, including the
right under that Act to institute proceedings in respect of them and
proceedings already instituted. The scope of the provision is thus
confined, as the scope of all saving provisions must by their very nature
be, to the original scope of what is saved. It is not wider. The section
does not extend any repealed Act as regards its duration, nor enlarges
any such Act as regards its scope, but only preserves accrued rights
and liabilities as they were under the repealed Act and proceedings, so
far as they might be commenced or continued under it by excluding
from them the operation of the repeal. Such scope of the section is
brought out pointedly by the section itself when it adds to all rights,
liabilities and penalties preserved by it the qualifying words “under any
enactment so repealed” and when, in providing for the enforcement of
accrued rights and liabilities and the institution or continuance of
proceedings, it adds the qualifying words “as if the repealing Act had
not been passed.” The whole effect of the section therefore is only to
keep off the repealing Act from the matters mentioned in it and thereby
make it possible for the repealed Act to take effect in regard to them as
if it had not been repealed. But there is no absolute saving in the sense
that the rights, liabilities, remedies and proceedings saved by the
section are saved altogether, freed even from the limitations which were
attached to them under the repealed Act. Those limitations would
remain, because what is done is only that, for the limited purposes
38
mentioned, the operation of the repealed Act is restored. The rights and
liabilities saved are rights and liabilities as accrued or incurred under
the repealed Act; and remedies can be pursued and proceedings
instituted or continued only so far as that Act would warrant them, if
not repealed.
24. This Court finds that the private respondents initiated proceedings
against the writ petitioners in the month of December, 2006, under
Section 6 of the Act of 1993 and the same was pending when the Act of
1993, is repealed by the order of the Hon’ble Supreme Court dated 4th
May, 2021. The Hon’ble Court has not passed any order that the
pending proceeding under the Act of 1993 is to be transferred or
terminated or cancelled. Taking into consideration of Section 6 of the
General Clauses Act, this Court did not find any illegally in the
impugned order passed by the Principal Secretary dated 3rd July, 2023
and 31st July, 2023.
25. WPA No. 28998 of 2023 is thus dismissed. Accordingly, CAN No. 1
of 2024 is disposed of.
Parties shall be entitled to act on the basis of a server copy of the
Judgment placed on the official website of the Court.
Urgent Xerox certified photocopies of this judgment, if applied for,
be given to the parties upon compliance of the requisite formalities.
(Krishna Rao, J.)
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