Supreme Court of India
Naeem Bano Alias Gaindo vs Mohammad Rahees on 22 November, 2024
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:
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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.
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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:
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“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 either4
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?
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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
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rule. As discussed in T.Barai vs. Henry Ah Hoe, [1983] 1 SCR905, 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
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as a further addition. This Court further noted that, byincorporating 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
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Article 254 and summarised the position of law. As regards thecase 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.
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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
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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
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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
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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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