Summary
The Supreme Court held that once Parliament substituted Section 106 of the Transfer of Property Act by Act 3 of 2003 (w.e.f. 31.12.2002), the earlier Uttar Pradesh amendment of 1954 to that section stood impliedly repealed by virtue of the proviso to Article 254(2). The validity of an ejectment notice issued in 2015 was therefore no longer controversial, and the High Court should not have kept the tenant's Article 227 petition pending a larger Bench reference on the notice period.
Issues
- Whether the High Court was justified in deferring the tenant's petition under Article 227 until a larger Bench answered a reference on the notice period under Section 106 of the Transfer of Property Act.
- Whether, after Parliament substituted Section 106 of the Transfer of Property Act by Act 3 of 2003, the 1954 Uttar Pradesh amendment to Section 106 continued to govern notices to quit in Uttar Pradesh.
Provisions considered
- Section 106, Transfer of Property Act, 1882The Court set out the pre-2002 text, the 1954 U.P. amendment (thirty days' notice and omission of the words requiring notice to expire with the end of the tenancy month or year) and the section as substituted by Parliament w.e.f. 31.12.2002. It held that the substituted Parliamentary provision governs the notice dated 24.07.2015. (¶¶ 4, 7, 7.1, 7.2, 9.6, 9.7)
- Article 254, including the proviso to clause (2), Constitution of IndiaUnder clause (1), Union law prevails over repugnant State law on a Concurrent List subject; under clause (2), a State law reserved for and assented to by the President prevails in that State; but the proviso lets Parliament later add to, amend, vary or repeal such a State law. The proviso was held to apply squarely to the later Parliamentary substitution of Section 106. (¶¶ 8.1, 8.2, 8.3, 8.4, 9, 9.1, 9.2, 9.3, 9.4, 9.6)
- Seventh Schedule, List III, Entry 6, Constitution of IndiaTransfer of property other than agricultural land is a Concurrent List subject, so both Parliament and the State Legislature could amend the Transfer of Property Act, which as an adapted pre-Constitution law is read within this Entry. (¶¶ 8, 9.3, 9.5)
- Article 227, Constitution of IndiaThe tenant had invoked the High Court's supervisory jurisdiction against an order of ejectment after failing before two courts; the Supreme Court directed the High Court to decide that petition on merits instead of awaiting the reference. (¶¶ 6, 9.7, 9.8)
Held
- Under Article 254(1), where a State law on a Concurrent List subject is repugnant to a Union law, the Union law prevails whether earlier or later, and the State law is void to the extent of repugnancy. Under clause (2), a State law reserved for and assented to by the President prevails in that State over an earlier Union law, but only to the extent of inconsistency. (¶¶ 8.1, 8.2, 8.3)
- The proviso to Article 254(2) qualifies that exception: Parliament may later enact a law on the same matter adding to, amending, varying or repealing the State law, and the State law then gives way even if it had received Presidential assent and was not expressly repealed. Article 254 is an instance of Parliamentary supremacy. (¶¶ 8.4, 9, 9.1, 9.2, 9.4)
- Because transfer of property other than agricultural land falls under Entry 6 of List III, the U.P. Legislature could amend Section 106 in 1954 and that amendment operated in the State. But on Parliament substituting Section 106 by Act 3 of 2003 w.e.f. 31.12.2002, the U.P. amendment stood impliedly repealed under the proviso to Article 254(2), and the Parliamentary Section 106 applies. (¶¶ 9.3, 9.4, 9.5, 9.6)
- Since the validity of the notice dated 24.07.2015 in light of the conflict between the U.P. amendment and the later Parliamentary amendment could no longer be in controversy, the High Court ought to have decided the tenant's revision petition on its merits rather than await the larger Bench's answer to the reference. (¶ 9.7)
Result
Appeal disposed of; the High Court's order deferring the matter set aside; the High Court requested to decide the tenant's petition under Article 227 on merits, in light of the observations made, as expeditiously as possible.