Holding

The parliamentary amendment to Section 106, made after the Uttar Pradesh amendment, prevails under Article 254(1) and its proviso, rendering the State amendment void to the extent of repugnancy.

Summary

The appellant landlord sought relief against a tenant's revision petition under Section 106 of the Transfer of Property Act, 1882, contending that the notice of ejectment issued on 24 July 2015 was valid. The dispute centered on whether the Uttar Pradesh State amendment of 1954, which changed the notice period from fifteen to thirty days, remained applicable after the Parliament amended the same provision by the Transfer of Property (Amendment) Act, 2002 (effective 31 December 2002). The Court examined the repugnancy rules under Article 254 of the Constitution, noting that while a State law with Presidential assent can prevail over an earlier Union law, the proviso to clause 2 allows a later parliamentary amendment to override the State law. Applying this principle, the Court held that the parliamentary amendment superseded the Uttar Pradesh amendment, rendering the latter void to the extent of the inconsistency. Consequently, the notice issued under the reinstated fifteen‑day period was deemed valid, the High Court's order to stay the case pending a larger bench reference was set aside, and the High Court was directed to dispose of the tenant's petition on its merits.

Issues considered

Whether a subsequent parliamentary amendment to a provision in the Concurrent List overrides a prior State amendment to the same provision under Article 254.
Whether the Uttar Pradesh amendment to Section 106 of the Transfer of Property Act is repugnant and therefore void to the extent of inconsistency.
Whether the notice of ejectment issued on 24 July 2015, relying on the parliamentary amendment, is valid.

Legislation cited

Constitution of Indias. Article 254
Transfer of Property Act, 1882s. 106
Transfer of Property (Amendment) Act, 2002

Headnote

Issue for Consideration Inconsistency between the U.P. State amendment and the subsequent Parliamentary amendment to Section 106, Transfer of Property Act, 1882. Whether in view of the Parliament amending a provision subsequent to a State legislature’s amendment of a provision of law List, the Parliamentary amendment would apply. Headnotes† Constitution of India – Article 254; Entry 6, List III, Concurrent List of the Seventh Schedule – Transfer of Property Act, 1882 – s.106 – Legislature of State of U.P. amended Section 106 by amendment

Subjects

Article 254 of the Constitution of IndiaClause 2 of Article 254Section 106, Transfer of Property Act, 1882AmendmentU.P. State amendment to Section 106Parliamentary amendment to Section 106Concurrent ListEntry 6, List IIIRepugnancyInconsistencyState amendmentParliamentary amendmentSubstitutionRepealedAmendedLaw made by the ParliamentLaw made by the Legislature of a Statefifteen days’ noticethirty days’ noticeRepugnant State lawSubstituted clauseNotice for ejectment

Judgment

[2024] 11 S.C.R. 1492 : 2024 INSC 1000

Naeem Bano Alias Gaindo
v.
Mohammad Rahees & Anr.
(Civil Appeal No. 13050 of 2024)
22 November 2024
[B.V. Nagarathna and
Nongmeikapam Kotiswar Singh, JJ.]

Issue for Consideration
Inconsistency between the U.P. State amendment and the
subsequent Parliamentary amendment to Section 106, Transfer of
Property Act, 1882. Whether in view of the Parliament amending
a provision subsequent to a State legislature’s amendment of
a provision of law in the Concurrent List, the Parliamentary
amendment would apply.

Headnotes†
Constitution of India – Article 254; Entry 6, List III, Concurrent
List of the Seventh Schedule – Transfer of Property Act, 1882 –
s.106 – Legislature of State of U.P. amended Section 106 by
amendment dated 30.11.1954 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 – Parliament by Act 3 of 2003 amended
Section 106 w.e.f 31.12.2002 – In view thereof, the substitution
in Section 106 made by the Legislature of the State of U.P., if
stood repealed and Section 106 as amended w.e.f 31.12.2002
by the Parliament, would apply:
Held: Yes – Article 254 is an instance of Parliamentary supremacy –
When there is an inconsistency between a law made by the
Parliament and a law made by the Legislature of a State, Article
254 would apply – 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’ – The subject “transfer of property other than
agricultural land” is one which falls within Entry 6, List III and both the
[2024] 11 S.C.R. 1493

Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr.

Parliament and the State Legislatures have legislative competence
to make laws on the said subject including enacting an amendment
to any provision of the Transfer of Property Act, 1882 – Proviso
to Clause 2 of Article 254 applies to the present case – W.e.f
31.12.2002, the Parliamentary amendment would apply – 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 – 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 – Impugned order set aside – High Court
to dispose of the respondent-tenants revision petition in view of
the observations made and on merits as expeditiously as possible.
[Paras 8.1, 8.4, 9.4-9.8]

Case Law Cited
T. Barai v. Henry Ah Hoe [1983] 1 SCR 905 ; Hoechst
Pharmaceuticals Ltd. v. State of Bihar [1983] 3 SCR 130; Zaverbhai
Amaidas v. State of Bombay [1955] 1 SCR 799; Gauri Shankar
Gaur v. State of UP [1993] Supp. 1 SCR 667; Innoventive Industries
Ltd. v. ICICI Bank [2017] 8 SCR 33 – referred to.

List of Acts
Constitution of India; Transfer of Property Act, 1882; Transfer of
Property (Amendment) Act, 2002.

List of Keywords
Article 254 of the Constitution of India; Clause 2 of Article 254;
Section 106, Transfer of Property Act, 1882; Amendment; U.P. State
amendment to Section 106; Parliamentary amendment to Section
106; Concurrent List; Entry 6, List III; Repugnancy; Inconsistency;
State amendment; Parliamentary amendment; Substitution;
Repealed; Amended; Law made by the Parliament; Law made by
the Legislature of a State; “fifteen days’ notice”; “thirty days’ notice”;
Repugnant State law; Substituted clause; “transfer of property
1494 [2024] 11 S.C.R.

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other than agricultural land”; Legislative competence; President;
Presidential assent; Parliamentary supremacy; Notice for ejectment.

Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13050 of 2024
From the Judgment and Order dated 18.11.2022 of the High Court
of Judicature at Allahabad in MUA227 No. 8207 of 2017

Appearances for Parties
S. K. Verma, Chandra Shekhar, Prashant Shekhar, Ashwani Saini,
Pawan Silmana, Advs. for the Appellant.
Irshad Ahmad, Sanobar Ali Qureshi, Neeraj Kumar, Abdul Mannan,
Mrs. Shobhna Sharma, Advs. for the Respondents.

Judgment / Order of the Supreme Court

Order

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 appeal.
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
[2024] 11 S.C.R. 1495

Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr.

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. 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.
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7. Section 106 of the T.P. Act, as it stood prior to 31.12.2002, read as
under:
“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
[2024] 11 S.C.R. 1497

Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr.

lease from year to year, terminable, on the part of
either 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?
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:
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“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 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
[2024] 11 S.C.R. 1499

Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr.

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 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
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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 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.
[2024] 11 S.C.R. 1501

Naeem Bano Alias Gaindo v. Mohammad Rahees & Anr.

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.
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 inconsistency
between the U.P. State amendment and the Parliamentary
1502 [2024] 11 S.C.R.

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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 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
[2024] 11 S.C.R. 1503

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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 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.

Result of the case: Appeal disposed of.

†
Headnotes prepared by: Divya Pandey