2003 Parliamentary Amendment To Section 106 Transfer Of Property Act Applies In UP; Not The 1954 State Amendment: SC

The Apex Court was considering an appeal filed by a landlord challenging the orders passed in a matter under Article 227. By the impugned order, the High Court stated that since there is a matter under Article 227, 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 are placed.

The Division Bench comprising Justice B.V. Nagarathna and Justice Nongmeikapam Kotiswar Singh said, “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 subclause (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.”

AOR S. K. Verma represented the Appellants while AOR Irshad Ahmad represented the Respondents.

It was the case of the Appellant 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 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 (T.P. Act) has been substituted with effect from December 31,2002 would apply and the provision of the Uttar Pradesh Amendment would no longer be applicable to the present case.

The Bench noted that the aforesaid order had been passed in a revision petition filed under Article 227 of the Constitution by the respondent tenant against an order of ejectment. It was further explained by the Bench that 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. “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”, it added.

The Court stated that 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 7 rule. Moreover, 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.

It was also 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 November 30,1954, which had been in operation. However, with effect from December 31,2002, 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.

“Consequently, the U.P. amendment to Section 106 would pale into insignificance owing to implied repugnancy and 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”, it said.

The Bench further observed, “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.”

In the present matter, the Legislature of State of U.P. amended Section 106 by amendment in 1954 by which the words “fifteen days’ notice” in Section 106 of the T.P. Act were substituted by “thirty days’ notice” and the substituted clause prevailed in the State of U.P. In view of the amendment made to Section 106 by the Parliament with effect from December 31,2002, the substitution in Section 106 made by the Legislature of the State of U.P. was impliedly repealed and Section 106 as amended with effect from December 31,2002 by the Parliament, would apply. “The proviso to clause (2) of Article 254 of the Constitution squarely applies in the instant case”, it added.

“...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 held. Thus, the Bench disposed of the Petition by setting aside the impugned order and requesting the High Court to dispose of the petition filed by the respondent(s)/tenants as expeditiously as possible.

Cause Title: Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr (Neutral Citation: 2024 INSC 1000)

Appearance:

Appellants: AOR S. K. Verma, Advocates Chandra Shekhar, Prashant Shekhar, Ashwani Saini, Pawan Silmana

Respondents: AOR Irshad Ahmad, Advocates Sanobar Ali Qureshi, Neeraj Kumar, Abdul Mannan, Shobhna Sharma

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