Naeem Bano Alias Gaindo vs Mohammad Rahees

Court: Supreme Court
Case type: Civil Appeal
Decided on: 22-11-2024

<pre> REPORTABLE 
IN THE SUPREME COURT OF INDIA
2024 INSC 1000
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. 
2

Act may be sustained.
5. Per contra, l earned 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 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? 
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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 
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 
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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 
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. 
13
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