Calcutta High Court: Rajasekhar Mantha, J. disposed of a petition observing that the Supreme Court is the only authority to clarify whether the orders passed under a repealed Act can be executed or not.
Petitioner had approached the West Bengal Housing Industry Regulation Authority (WBHIRA) against the private respondents (promoters) for damages arising due to delay in delivery of possession of flat booked, and for money for the same paid by her. The complaint was allowed by WBHIRA and an order was passed and it was put into execution 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.
The WBHIRA was constituted under the West Bengal Housing Industry Regulation Authority under the provisions of WBHIRA Act, 2017 which was struck down by the Supreme Court as being ultra vires the Constitution of India and repugnant to the provisions of Real Estate (Regulation and Development) Act, 2016, in the case of Forum for People’s Collective Efforts (FPCE) v. State of West Bengal, (2021) 8 SCC 599. The Supreme Court had disposed of the Special Leave Petition holding that WB-HIRA was repugnant to RERA, and was hence unconstitutional.
The Court noted that it was evident from the Supreme court judgment 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 The orders already passed under the said Repealed Act, have not been specifically mentioned to have been saved.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 thus observed 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 (Supra) or whether the execution should be carried out under the Real Estate Regulation Authority Act, 2016 keeping in view the decision of the Supreme Court in State of Manipur v. Surjakumar Okram, 2022 SCC OnLine SC 130.
[Saptaparna Ray v. District Magistrate and Collector, 2022 SCC OnLine Cal 436, decided on 28-02-2022]
For the petitioner: Ms Priyanka Agarwal
For the private respondent: Mr Pratip Mukherjee, Mr Ranjit Rajak
For the State: Mr Raha Saha, Mr Biswabrata Basu Mallick
Suchita Shukla, Editorial Assistant has put this report together