Naeem Bano Alias Gaindo vs Mohammad Rahees

REPORTABLE 2024 INSC 1000 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2024 (@ SPECIAL LEAVE PETITION (C) NO. 16460 OF 2023)

NAEEM BANO ALIAS GAINDO ...APPELLANT(S)

VERSUS

MOHAMMAD RAHEES & ANR. ….RESPONDENT(S)

O R D E R

Leave granted.

2. Being aggrieved by the Order dated 18.11.2022 passed in

Matters under Article 227 No.8207 of 2017, the

appellant/landlord is before this Court. By the impugned

order, the High Court stated that since there is a matter

under Article 227 No.5718 of 2019, which has to be answered by

a larger Bench of the High Court by way of a reference and

which has a bearing on the case, the interim order is

continued until further orders. A direction was issued that

the matter may be considered after the answer is given by the

larger Bench, referred to above. Being aggrieved by the said

order, the appellant, who is the landlord, has preferred this Signature Not Verified

appeal.

Digitally signed by NEETU SACHDEVA Date: 2024.12.18 16:39:45 IST Reason: 1

3. We have heard learned counsel for the respective parties

and perused the material on record.

4. Learned counsel for the appellant submitted that it is

not known as to when the larger Bench would answer the

questions referred to it on a reference. However, having

regard to Article 254 of the Constitution of India,

particularly the proviso to Sub-clause 2 of Article 254, the

amendment made by the Parliament by Section 2 of Act 3 of

2003, whereby Section 106 of the Transfer of Property Act,

1882 (for short, “the T.P. Act”) has been substituted with

effect from 31.12.2002, would apply and the provision of the

Uttar Pradesh Amendment would no longer be applicable to the

present case. It was submitted that the notice for ejectment

was issued on 24.07.2015 under Section 106 of the T.P. Act.

The said notice was issued having regard to the Parliamentary

amendment referred to above and hence the earlier amendment

made to Section 106 by the Uttar Pradesh State Legislature

vide 30.11.1954 would pale into insignificance on the

principle of implied repeal. Therefore, on the aforesaid

premise, the High Court may be requested to consider the

present case without reference to the aspect regarding the

validity of the notice. In the alternative, it was submitted

that the proviso to Article 254 may be applied and the

validity of the notice issued under Section 106 of the T.P.

2 Act may be sustained.

5. Per contra, learned counsel for the respondent(s)

submitted that as a reference was pending before the High

Court, the impugned order was correctly passed and the case

has to be heard subsequent to the answer given by the larger

Bench on the reference order. In the circumstance, there is

no merit in this appeal

6. We have perused the impugned order, which reads as under:

“It is agreed between the parties that the matter involved in this case qua period of notice under Section 106 of Transfer of Properties Act is pending decision by Larger Bench under the reference order of a concurrent Bench of this Court dated 9.9.2019 passed in Matter under Article 227 No. 5718 of 2019 and so this matter may either be connected with the said matter or be listed after judgment of the larger Bench.

In the circumstances I direct the office to list this matter after the reference made in Matter under Article 227 No.5718 of 2019 stands answered by the larger Bench.

Interim order, if any, shall continue to operate in the meanwhile until further orders.”

The aforesaid order has been passed in a revision petition

filed under Article 227 of the Constitution by the respondent-

tenant against an order of ejectment.

7. Section 106 of the T.P. Act, as it stood prior to

31.12.2002, read as under:

3

“106. Duration of certain leases in absence of written contract or local usage.— In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice expiring with the end of year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.

Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”

7.1 As far as the State of U.P. is concerned, by amendment

dated 30.11.1954, Section 106 was amended as under -

“(i) omit the word “expiring with the end of a year of the tenancy” and “expiring with the end of a month of the tenancy”;

(ii) for the words “fifteen days’ notice” substitute the words “thirty days’ notice”

7.2 However, the Parliament, by Act 3 of 2003, substituted

Section 106 with effect from 31.12.2002. As a result, the

substituted Section 106 reads as under:

“106. Duration of certain leases in absence of written contract or local usage.— (1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either

4 lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice.

(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.

(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.

(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”

8. Entry 6, List III - Concurrent List of the Seventh

Schedule of the Constitution of India reads as under -

“Transfer of property other than agricultural land; registration of deeds and documents.”

Entry 6, List III being in the Concurrent List both the

Parliament as well as the State Legislature have concurrent

legislative competence to enact laws on the said subject.

However, there could be an inconsistency in the laws made by

the Parliament and the State Legislature. How would such

inconsistency be resolved?

5 8.1 When there is an inconsistency between a law made by

the Parliament and a law made by the Legislature of a State,

Article 254 of the Constitution would apply, which reads as

under:

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States. – (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

8.2 Article 254 of the Constitution makes provision

firstly, as to what would happen in case of a conflict between

a Central and a State law with regard to subjects enumerated

in the Concurrent List, and secondly, for resolving such

conflict. Clause (1) to Article 254 lays down the general

6 rule. As discussed in T.Barai vs. Henry Ah Hoe, [1983] 1 SCR

905, clause (1) lays down that if a State law relating to a

Concurrent subject is 'repugnant' to a Union law relating to

that subject, then, whether the Union law is prior or later in

time, the Union law will prevail and the State law shall, to

the extent of such repugnancy, be void.

8.3 Clause (2) is an exception to clause (1). As held in

Hoechst Pharmaceuticals Ltd. vs. State of Bihar, [1983] 3 SCR

130, clause (2) provides that if the President assents to a

State law which has been reserved for her consideration, it

will prevail notwithstanding its repugnancy to an earlier law

of the Union, both laws dealing with a concurrent subject. In

such a case, the Central Act will give way to the State Act

only to the extent of inconsistency between the two.

8.4 The Proviso to clause (2) qualifies the exception

provided in Clause (2) to Article 254. It empowers the

Parliament to repeal or amend a repugnant State law, either

directly, or by itself enacting a law repugnant to the State

law with respect to the ‘same matter’.

9. In Zaverbhai Amaidas vs. State of Bombay, [1955] SCR 799,

this Court noted that Article 254(2) is in substance, a

reproduction of section 107(2) of the Government of India Act,

1935 and that the proviso in Article 254(2) was incorporated

7 as a further addition. This Court further noted that, by

incorporating the proviso, the Constitution has enlarged the

powers of Parliament. That a State law will be void if it

conflicts with a later “law with respect to the same matter”

that may be enacted by Parliament even if it did not expressly

repeal the State law.

9.1 Further, in Gauri Shankar Gaur vs. State of UP, [1993]

Supp.1 SCR 667, this Court held as follows:

“An exception has been engrafted to this rule by Cl.2 thereof, namely, if the state law has been reserved for consideration and the President gives assent to a State Law, it will prevail, notwithstanding it repugnance to a earlier law made by the Union, though both laws are dealing with concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President of the State Act which is inconsistent with the Union Law prevails in that State and overrides the provisions of the Union Law in its application to that State only. However, if the Parliament, in exercising its power under proviso to Art. 254(2) makes a law adding, amending or repealing the union law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of President's assent, would be void either directly of by its repugnance with respect to the same matter.”

[emphasis supplied]

9.2 The judgment of this Court in Innoventive Industries

Ltd. vs. ICICI Bank, [2017] 8 SCR 33 examined the case law on

8 Article 254 and summarised the position of law. As regards the

case at hand, the following points are relevant:

50. The case law referred to above, therefore, yields the following propositions:

XXX

vi) Repugnancy may be direct in the sense that there is inconsistency in the actual terms of the competing statutes and there is, therefore, a direct conflict between two or more provisions of the competing statutes. In this sense, the inconsistency must be clear and direct and be of such a nature as to bring the two Acts or parts thereof into direct collision with each other, reaching a situation where it is impossible to obey the one without disobeying the other. This happens when two enactments produce different legal results when applied to the same facts.

XXX

viii) A conflict may arise when Parliamentary law and State law seek to exercise their powers over the same subject matter. This need not be in the form of a direct conflict, where one says "do" and the other says "don't". Laws under this head are repugnant even if the rule of conduct prescribed by both laws is identical. The test that has been applied in such cases is based on the principle on which the rule of implied repeal rests, namely, that if the subject matter of the State legislation or part thereof is identical with that of the Parliamentary legislation, so that they cannot both stand together, then the State legislation will be said to be repugnant to the Parliamentary legislation. However, if the State legislation or part thereof deals not with the matters which formed the subject matter of Parliamentary legislation but with other and distinct matters though of a cognate and allied nature, there is no repugnancy.

ix) Repugnant legislation by the State is void only to the extent of the repugnancy. In other words, only that portion of the State's statute which is found to be repugnant is to be declared void.

9 x) The only exception to the above is when it is found that a State legislation is repugnant to Parliamentary legislation or an existing law if the case falls within Article 254(2), and Presidential assent is received for State legislation, in which case State legislation prevails over Parliamentary legislation or an existing law within that State.

Here again, the State law must give way to any subsequent Parliamentary law which adds to, amends, varies or repeals the law made by the legislature of the State, by virtue of the operation of Article 254(2) proviso.” (underlining by us)

9.3 It is noted that the T.P. Act, 1882, which is a pre-

Independence statute, has been adopted vide Adaptation of Laws

Order, 1950. Consequently, the said Act has to be read within

the scope and ambit of Entry 6 List III which is in the

Concurrent List. When any subject is within the scope and

ambit of the concurrent list, both the Parliament as well as

the State Legislature have the legislative competence to make

laws on the said subject. In the instant case, by virtue of

the said legislative competence to make laws on the said

subject, the U.P. Legislature amended Section 106 with effect

from 30.11.1954, which had been in operation. However, with

effect from 31.12.2002, the Parliamentary amendment would

apply. This is because of the proviso to Clause 2 of Article

254 which would apply to the facts of the present case.

9.4 Consequently, the U.P. amendment to Section 106 would

pale into insignificance owing to implied repugnancy and

10 inconsistency between the U.P. State amendment and the

Parliamentary amendment to Section 106 of the T.P. Act in the

year 2003 even if the earlier U.P. amendment had been reserved

for consideration of the President and had received the

Presidential assent. Thus, on the Parliament amending a

provision subsequent to a State legislature’s amendment of a

provision of law found in the Concurrent List, the

Parliamentary amendment would apply. Article 254 is an

instance of Parliamentary supremacy.

9.5 Thus, the subject “transfer of property other than

agricultural land” is one which falls within the scope and

ambit of Entry 6, List III as noted above and both the

Parliament and the State Legislatures have legislative

competence to make laws on the said subject including enacting

an amendment to any provision of the T.P. Act. If an amendment

is made to a provision of T.P. Act such as Section 106 in the

instant case, by a State Legislature and the mandate of sub-

clause (2) of Article 254 is complied with by the State, then

any inconsistency between the State law and the Parliamentary

law would result in State law prevailing in the State.

9.6 In the instant case, it is noted that the Legislature of

State of U.P. amended Section 106 by amendment dated

30.11.1954 by which the words “fifteen days’ notice” in

11 Section 106 of the T.P. Act were substituted by “thirty days’

notice” and the substituted clause prevailed in the State of

U.P. However, in view of the amendment made to Section 106 by

the Parliament by Act 3 of 2003 with effect from 31.12.2002,

the substitution in Section 106 made by the Legislature of the

State of U.P. is impliedly repealed and Section 106 as amended

with effect from 31.12.2002 by the Parliament, would apply.

This is on the strength of the proviso to clause (2) of

Article 254 of the Constitution. This position could be better

understood by referring to Article 254 of the Constitution and

the relevant judicial dicta on the said Article as discussed

above. The proviso to clause (2) of Article 254 of the

Constitution squarely applies in the instant case.

9.7 In the circumstance, we are of the opinion that the issue

with regard to the validity of the notice dated 24.07.2015 in

light of the inconsistency between the amendment made by the

State Legislature of U.P. and the subsequent Parliamentary

amendment to Section 106 of the T.P. Act can no longer be a

point of controversy. Therefore, the High Court ought to have

considered the case i.e. the tenant’s revision petition, on

its own merits and disposed of the same rather than awaiting

the opinion of the larger Bench on a reference made. It is

noted that the respondent(s)/tenant having been unsuccessful

before two Courts has filed the petition under Article 227 of

12 the Constitution of India.

9.8 In the circumstance, the impugned order is set aside.

The High Court is requested to dispose of the petition filed

by the respondent(s)/tenants bearing the observations made

above and on merits as expeditiously as possible.

The appeal is disposed of in the aforesaid terms.

……………………………………………………………………J. [B.V. NAGARATHNA]

……………………………………………………………………J. [NONGMEIKAPAM KOTISWAR SINGH]

NEW DELHI NOVEMBER 22, 2024.

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