Allahabad High Court
Rakesh Kumar And Another vs The Additional District Judge And 2 ... on 9 September, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD (Judgment reserved on 07.08.2019) (Judgment delivered on 09.09.2019) Court No. - 05 Case :- MATTERS UNDER ARTICLE 227 No. - 5718 of 2019 Petitioner :- Rakesh Kumar And Another Respondent :- The Additional District Judge And 2 Others Counsel for Petitioner :- Some Narayan Mishra Counsel for Respondent :- Nitin Kumar Agrawal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Some Narayan Mishra, learned counsel for the defendant-tenants/petitioners and Sri Nitin Kumar Agrawal, learned counsel for the plaintiff-landlady/respondent no.3.
Facts:-
2. Briefly stated facts of the present case are that undisputedly, the plaintiff-respondent no.3 is the owner and landlady of a shop bearing Municipal No.185/1, Railway Road, Dibai, Pargana and Tehsil Dibai, District Bulandshahr, which she had purchased by a registered sale-deed dated 5.12.1991. She built three shops in it. First assessment of the disputed property was made in the year 1993. By a registered sale-deed dated 25.2.1997, the plaintiff-landlady/respondent no.3 had sold one shop to one Sri Suresh Chand Gupta, son of Sri Nand Kishore Gupta. She had let out the second shop to Sri Yogendra. The third shop was let out by her to the defendant-tenant/petitioners nos.1 and 2.
3. According to the plaintiff-landlady/respondent no.3, the defendant-tenants/petitioners defaulted in payment of rent from 01.01.2010. Therefore, the plaintiff-landlady/respondent no.3 issued a notice dated 31.3.2010 to the defendant-tenants/petitioners, under Section 106 of the Transfer of Property Act, 1882 (hereinafter referred to as 'the Act 1882') whereby she determined the tenancy and demanded arrears of rent. The defendants-tenants/petitioners did not comply with notice. Therefore, she filed S.C.C. Suit No.15 of 2010 (Smt. Maya Devi v. Rakesh Kumar and others) in the court of Judge Small Cause, Bulandshahr. In the aforesaid suit five issues were framed as under:
^^1- D;k fookfnr nqdku ij mRrj izns'k vf/kfu;e la[;k 13 lu 1972 ds izkfo/kku ykxw ugha gksrs gS\ 2- D;k nkok oknh es vko';d i{kdkj u cuk;s tkus dk vla;kstu dk nks"k gS\ 3- D;k izfroknh ds mij fnukad 01-01-2010 ls fdjk;k ckdh o ckftc gS vkSj izfroknh }kjk fdjk;k vnk djus esa pwd dh gS\ 4- D;k izfroknh /kkjk 20¼4½ mRrj izns'k vf/kfu;e la[;k 13 lu 1972 dk ykHk ikus dk vf/kdkjh gS\ 5- vuqrks"k\**
4. Issue nos. 1,2 and 4 were decided by the Judge Small Cause Court, Bulandshahr by judgment dated 14.1.2016 in favour of the plaintiff-landlady/respondent no.3, while Issue No.3 was decided against her and accordingly the relief was declined.
5. Aggrieved with this judgment, the plaintiff-landlady/respondent no.3 filed S.C.C. Revision No.10 of 2016 (Smt. Maya Devi alias Radha Devi v. Suresh Kumar and another), which was allowed by the District Judge, Bulandshahr by judgment dated 31.10.2017 and the matter was remanded to the court below to decide Issue no.3 afresh and also to decide issue No.6 framed by the revisional court as under:
^^D;k okfnuh }kjk fuxZr uksfVl fnukafdr 31-03-2010 oS/k o izHkkoh gS\**
6. On remand, the aforesaid S.C.C. Suit No.10 of 2010 was decreed by the Judge Small Causes Court, Bulandshahr by the impugned judgment dated 24.9.2018.
7. Aggrieved with that judgment the defendant-tenants/petitioners filed S.C.C. Revision No.17 of 2018 (Rakesh Kumar and another v. Smt. Maya Devi alias Radha Devi), which has been dismissed by the Additional District Judge (Court No.2), Bulandshahr by the impugned judgment and order dated 23.05.2019.
8. Aggrieved with these two judgments, the defendant-petitioners have filed the present petition under Article 227 of the Constitution of India.
Submissions:-
9. Learned counsel for the defendant-petitioners submits as under:
(i) After giving notice dated 31.3.2010, the S.C.C. suit was filed on 20.4.2010. Section 106 of the Transfer of Property Act, as applicable in the State of Uttar Pradesh, provides for 30 days notice for filing a suit. Since, the S.C.C. Suit was filed by the plaintiff-landlady/respondent no.3 prior to expiry of 30 days, therefore, the suit itself was not maintainable. Reliance is placed upon the Single Judge judgment of this Court in Mohd. Afzal v. Smt. Ramesh Kumari, 2014(3) ARC 864 (Paragraph-10).
(ii) The findings recorded by the courts below on Issue No.2 regarding non-payment of rent is incorrect, inasmuch as, the rent was being regularly paid by the defendant-tenants/petitioners to the plaintiff-landlady/respondent no.3 and on refusal by her the rent was sent by money-order.
(iii) Since there is conflict between two Single Judge judgments of this Court in Mohd. Afzal Vs. Smt. Ramesh Kumari, 2014(3) ARC 864 (Paragraph-10) and in Hardoi Zila Sahkari Bank Limited, Hardoi Vs. Smt. Sarla Gupta and another, 2010(2) A.R.C. 144 (Paragraph Nos. 25 to 29) on the point of period of notice under Section 106 of the Transfer of Property Act, 1882, therefore, the matter deserves to be referred to a larger Bench.
10. Sri Nitin Kumar Agrawal, learned counsel for the plaintiff-respondent no.3 submits as under:
(i) Section 106 of the Transfer of Property Act, 1882, was amended by Parliament by Transfer of Property (Amendment) (Act No.3 of 2003), providing for period of notice of 15 days. Thus, the period of notice provided by U.P. Act No.24 of 1954 for 30 days is not relevant. Since, 15 days notice was given on 31.3.2010 and the suit was filed on 20.4.2010, therefore, the suit was filed well after expiry of the statutory period of notice. Reliance is placed upon a judgment of learned Single Judge in Hardoi Zila Sahkari Bank Limited, Hardoi v. Smt. Sarla Gupta and another, 2010(2) A.R.C. 144.
(ii) The judgment in the case of Mohd. Afzal (supra) relied by the learned counsel for the plaintiff-landlord/respondent no.3 has no reference to the case of Hardoi Zila Sahkari Bank Limited (supra) in which the issue of the period of notice was settled after detail discussion.
(iii) Besides above, the case of the plaintiff-landlady/respondent no.3 is protected by the provisions of Section 106(3) of the Transfer of Property Act.
(iv) In his written submission the defendant-petitioner no.1 Rakesh Kumar, had admitted non payment of rent after 31.12.2009 whereas in his written statement the defendant-petitioner no.2 Suresh Kumar, had alleged the rent was paid for the period from 1.1.2010 to 31.3.2010. Thus, conflicting stand was taken by the defendant-petitioners.
(v) An objection to the period of notice under Section 106 of the Transfer of Property Act, 1882 must be specifically raised in the written statement by a tenant and since the petitioners have not raised this point either in the reply to the notice or in the written statement, therefore, this plea can not be entertained at this stage. Reliance is placed upon the judgments of Hon'ble Supreme Court in Dharam Pal Vs. Harbans Singh, 2006 (9) SCC 216 (para 7) and Parwati Bai Vs. Radhika, (2003) 12 SCC 551 (Para 5).
(vi) The tenancy was on month to month basis in view of the provisions of Section 106 of the Transfer of Property Act, 1882 and also in view of the law laid down by a Division Bench of this Court in Food Corporation of India and another Vs. Smt. Nisha Agnihotri, 2016 (9) ADJ 452 (paras 30 and 33), therefore, the period of notice would be 15 days as provided by the amended provisions of Section 106 of the Act, 1882. Reliance is placed upon the judgments of Hon'ble Supreme Court in Sri Janki Devi Bhagat Trust, Agra Vs. Ram Swarup Jain (Dead) by LRs., (1995) 5 SCC 314 (para 6), Dharam Pal Vs. Harbans Singh (2006) 9 SCC 216 (paras 5 & 6) and the single Judge judgment of this Court in Rakesh Kumar Vs. Rakesh Gupta, (2018) 2 ARC 393 (paras 37 and 39).
(vii) The Central Amendment would prevail as to the period of notice to be 15 days under Section 106 of the Transfer of Property Act. Reliance is placed upon the Single Judge Judgment of this Court in Hardoi Zila Sahkari Bank Limited, Hardoi Vs. Smt. Sarla Gupta and another, 2010 (2) A.R.C. 144 (Paragraph Nos. 19 to 25), wherein the period of notice with reference to the amendment made by Transfer of Property (Amendment) Act, (Act No.3 of 2003) as well as the U.P. Amendment made by U.P. Act No.24 of 1954, were specifically considered and it was held that in case of conflict between the Central Act and the U.P. Amendment, the Central Act would prevail in view of the provisions of Article 254 of the Constitution of India. The subsequent amendment made by the Transfer of Property (Amendment) Act (Act No.3 of 2003) would prevail.
Questions:-
11. With the consent of learned counsels for the parties, the following questions are framed for determination in this petition:-
(a) Under the facts and circumstances of the case what would be the period of notice under Section 106 of the Transfer of Property Act, 1882 ?
(b) Whether the amendment made by Transfer of Property (Amendment) Act (Act No.3 of 2003), would prevail over the U.P. Amendment by U.P. Act No.24 of 1954 and consequently, the minimum period of notice would be 15 days after the amendment in Section 106 of the Act, 1882 by Central Act No.3 of 2003?
(c) Whether under the facts and circumstances of the case and in view of Section 21 of the Civil Procedure Code, the defendant-tenant/petitioners can be allowed to raise the question of period of notice when this objection was not taken by them either in their reply to the notice of the landlady or in the written statement filed in SCC Suit No.15 of 2010?
DISCUSSION AND FINDINGS
12. Before I proceed to examine the questions as framed above, it would be appropriate to reproduce the provision of Section 106 of the Transfer of Property Act, 1882 as existed prior to the substitution of a new Section 106 by Act No.3 of 2003, the amendment made by U.P. Act XXIV of 1954 in Section 106 of the Transfer of Property Act, 1882 and newly substituted Section 106 by Parliament in the Transfer of Property Act, 1882 by Act No.3 of 2003:-
Originally enacted Section 106 of the Transfer of Property Act, 1882 "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 a 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 part 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."
The amendment made by Section 2 of the U.P. Act No.XXIV of 1954 in Section 106 of the Transfer of Property Act, 1882
1. The words "expiring with the end of a year of the tenancy" and "expiring with the end of a month of the tenancy", shall be omitted.
2. For the words "fifteen days' notice" the words "thirty days' notice" shall be substituted.
Section 106 of the Transfer of Property Act, 1882 as substituted by Central Act No.3 of 2003
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 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 part 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."
13. In the case of Hardoi Zila Sahkari Bank Ltd., Hardoi vs. Smt. Sarla Gupta, 2010 (80) ALR 799, an Hon'ble Single Judge referred to the provision of Section 106 of the Act, 1882 as originally enacted, the amendment by U.P. Act No.XXIV of 1954 and the newly substituted Section 106 by Central Act No.3 of 2003 and held that after amendment by the Central Act, the minimum period of notice under Section 106 of the Act, 1882, is fifteen days. The relevant portion of the judgment of Hardoi Zila Sahkari Bank Ltd. (supra) (Paras-20, 21, 22 and 26), are reproduced below:
"20. Presumably, the Parliament with a view to introduce a uniform law throughout the country avoiding defect found in practice passed the Transfer of Property (Amendment) Act, 2002. This object would be frustrated if the argument that both the U.P. Act No. No.24 of 1954 and the Amending Act, 2002 should co-exist as the U.P. Act No. of 1954 has not been omitted. By State Amendment i.e. U.P. Act No. 24 of 1954 the period of notice of "fifteen days" as prescribed in Section 106 of the Transfer of the Property Act was substituted by the words "thirty days" but by the Transfer of Property (Amendment) Act, 2002 the entire 106 Section occurring in the Transfer of Property Act, 1882 has been substituted by a new Section prescribing therein the period of notice as fifteen days. Therefore, in view of the settled law, the Central Amendment Act would prevail over the U.P. Act No. 24 of 1954.
21. It may also be noted that though the notice to quit was sent by the respondents to the revisionist on 4.11.2004 providing 15 days time to vacate the premises but, admittedly, the suit was instituted by the revisionists in the year 2005, which is admittedly, much after 15 days time, provided in the notice.
22. Even otherwise as sub-Section 3 of Section 106 has been brought on the statute book by means of Amendment Act, 2002, it specifically provides that the notice under sub-Section 3 of Section 106 of the Act shall not deem to be not valid 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. Thus by fixation of law, proceedings cannot be vitiated on the ground of defective notice.
26. In view of the above discussions, the provisions of the U. P. Act No. 24 of 1954 cannot be allowed to operate only because it has received the Presidential assent when the entire provision of Section 106 of the Transfer of Property Act has been substituted in question is directly in conflict with the Central Act."
(Emphasis supplied by me)
14. A contrary view has been taken by a coordinate bench of this court in Mohammad Afzal vs. Smt. Ramesh Kumari, 2014 (3) ARC 864 (Paras-9, 10 and 11), as under:
"9. The revised section 106 of the TP Act still provides for 15 days notice for determination of monthly tenancy. Therefore, the notice period for determining the tenancy under Section 106 of the T.P. Act remains the same/unchanged despite the amendment of 2002.
10. The said notice period as provided under Section 106 of the TP Act was amended to 30 days in its application to the State of U.P. Since there is no change in the notice period by the Transfer of Property Amendment Act of 2002, the notice period as it stood originally and amended in its applicability to the State of U.P. would continue to hold the field. In other words, in the State of U.P. 30 days notice is mandatory for determining the month to month tenancy.
11. In the instant case, the notice gives only 15 days time for determining the tenancy of the petitioner. Therefore, the notice ex-facie appears to be invalid."
(Emphasis supplied by me)
15. Thus, in the aforesaid two judgments, conflicting views have been taken on the point of minimum period of notice under Section 106 of the Act, 1882. Therefore, the matter deserves to be referred to a larger bench, on the following questions:
(a) Under the facts and circumstances of the case what would be the minimum period of notice under Section 106 of the Transfer of Property Act, 1882 as substituted by the Central Act No.3 of 2003?
(b) Whether the amendment made by Transfer of Property (Amendment) Act (Act No.3 of 2003), would prevail over the U.P. Amendment by U.P. Act No.24 of 1954 and consequently, the minimum period of notice would be 15 days?
16. While referring the above noted two questions to a larger bench, it would be appropriate to mention some judgments of this Court and of Hon'ble Supreme Court.
17. Section 106 of the Act, 1882 as originally enacted, is in two parts. The first part is not relevant for the purposes of the present case. The second part provides for notice of fifteen days "expiring with the end of a month of the tenancy" in respect of lease of immovable property for any purpose other than agricultural or manufacturing purposes. The words "by fifteen days' notice" is qualified by the words "expiring with the end of a month of the tenancy". This provision was considered by a Division Bench of this Court in Bradley vs. Atkinson, ILR (1885) 7 All 596 : 1885 SCC OnLine All 89 in which His Lordship Hon'ble Mr. Justice Mahmood, interpreted the words "fifteen days" to imply a fixation of the shortest period allowed by the Section; and the word "expiring" to mean the terms of notice must be such as to make it capable of expiring according to law at the right time, so as to render it safe for the tenant to quit co-incidentally with the end of a month of the tenancy, without incurring any liability to payment of rent for any subsequent period. The Division Bench found that as per Section 106 of the Act 1882, the notice to quit dated 11th December, 1882 was expiring on 10th January, 1883.
18. It appears that because of two phrases as afore-noted used in Section 106 of the Act, 1882, there was confusion with respect to the minimum period of notice, therefore, Section 106 of the Act, 1882 was amended by U.P. Act No.XXIV of 1954 whereby the words "fifteen days' notice" were substituted by the words "thirty days' notice" and the phrase "expiring with the end of a month of the tenancy" was omitted. Section 106 of the Act, 1882 as then existing, was substituted by a new Section 106 by Central Act No.3 of 2003 enacted by Parliament, which received assent of the President on 31.12.2002 and published in the Gazette of India Extra., Part-II, Section 1, dated 1st January, 2003. Thus, this amended provision uniformly provides for minimum fifteen days' notice in the matter of month to month tenancy of an immovable property for the purposes other than agricultural or manufacturing purposes. After substitution of new Section 106 of the Act, 1882, no amendment has been brought by Uttar Pradesh legislature as was brought to amend the originally enacted Section 106 of the Act, 1882 by U.P. Act No.XXIV of 1954.
19. In Pt. Rishikesh and another vs. Salma Begum (Smt.), (1995) 4 SCC 718 (Paras-15, 18 and 21), Hon'ble Supreme Court considered provisions of Article 254 of the Constitution of India, amendment of Order XV Rule 5, C.P.C. by U.P. Civil Laws (Reforms and Amendment) Act, 1976, U.P. Civil Laws (Amendment) Act 37 of 1972 and U.P. Civil Laws (Amendment) President's Act 19 of 1973 and the amendment made by Parliament in C.P.C. by Central (Amendment) Act 104 of 1976 and held, as under:
"15. Clause (2) of Article 254 is an exception to Clause (1). If law made by the State Legislature is reserved for consideration and received assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central Law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended Law, both Central law and the State Law cannot co-exist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State Law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and received the assent of the President. Full Bench of the High Court held that since U.P. Act 57 of 1976 received the assent of the President on 30.12.1976, while the Central Act was assented to on 09.09.1976, the U.P. Act made by the State Legislature, later in point of time it is a valid law.
18. It is true that CPC, the principal Act No. 5 of 1908 as amended by the Central Act and the pre-existing State amendment or a provision made by a High Court was intended to be consistent so that the procedure would uniformly be efficacious and expeditious in adjudicating the substantive civil rights of the parties. It, thereby manifested its intention that there should be amendment to the Principal Act by the Central Act to a particular Section or a Rule or sub-rule or a provision in an Order in the Schedule. If the Principal Act, as so amended, and the pre-existing State amendment or a provision made by the High Court is found to be inconsistent with the amendment brought under the Central Act, then to the extent of inconsistent pre-existing amendments made by State Legislature or a provision made by the High Court becomes void by operation of clause (1) of Art. 254. By operation of sub-section (1) of section 97 of the Central Act, it stands repealed unless State Act is passed, reserved for consideration and received the assent of the President under clause (2) of Article 254. Section 1(2) of the Central Act visualises that the Central Government may bring into operation different provisions in the Central Act at different dates by a notification published in a Gazette. As a matter of fact, three different notifications were published in the official gazette bringing diverse provisions of the Amendment Act into operation from three different dates. All the provisions except amended Sections 28, 34 and 148A were brought into force on 01.02.1977. Sections 28 and 148A were brought into force with effect from 01.02.1977 and Section 34 was brought into force with effect from 01.07.1977. The legislative business done by the appropriate State Legislature cannot be reduced to redundance by the executive inaction or choice by the Central Government by issuing different dates for the commencement of different provisions of the Central Act. The Constitution, therefore, made a clear demarcation between making the law and commencement of the law which, therefore, bears relevance for giving effect to Article 254.
21. The condition precedent to bring about repugnancy should be that there must be an amendment made to the Principal Act under the Central Act and the previous amendment made by a State legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by the Act 57 of 1976, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central Law and the State Law or a provision made by the High Court occupy the same field and operate in collision course, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Act was made by the Parliament i.e. 10.09.1976."
(Emphasis supplied by me)
20. The aforesaid judgment in the case of Pt. Rishikesh (supra) has been affirmed by a Constitution Bench of Hon'ble Supreme Court in State of Kerla and others vs. Mar Appraem Kuri Comapny Limited, (2012) 7 SCC 106 (paras-5, 78, 79 and 97.1), as under:
"5. The statement of law laid down in Pt. Rishikesh (supra) was as under (SCC P.729. para-17):
"17... As soon as assent is given by the President to the law passed by the Parliament it becomes law. Commencement of the Act may be expressed in the Act itself, namely, from the moment the assent was given by the President and published in the Gazette, it becomes operative. The operation may be postponed giving power to the executive or delegated legislation to bring the Act into force at a particular time unless otherwise provided. The Central Act came into operation on the date it received the assent of the president and shall be published in the Gazette and immediately on the expiration of the day preceding its commencement it became operative. Therefore, from the mid-night on the day on which the Central Act was published in the Gazette of India, it became the law. Admittedly, the Central Act was assented to by the President on 9-9-1976 and was published in the Gazette of India on 10-9-1976. This would be clear when we see the legislative procedure envisaged in Articles 107 to 109 and assent of the President under Article 111 which says that when a Bill has been passed by the House of the People, it shall be presented to the President and the President shall either give his assent to the Bill or withhold his assent therefrom. The proviso is not material for the purpose of this case. Once the President gives assent it becomes law and becomes effective when it is published in the Gazette. The making of the law is thus complete unless it is amended in accordance with the procedure prescribed in Articles 107 to 109 of the Constitution. Equally is the procedure of the State Legislature. Inconsistency or incompatibility in the law on concurrent subject, by operation of Article 254, clauses (1) and (2) does not depend upon the commencement of the respective Acts made by the Parliament and the State Legislature. Therefore, the emphasis on commencement of the Act and inconsistency in the operation thereafter does not become relevant when its voidness is required to be decided on the anvil of Article 254(1). Moreover the legislative business of making law entailing with valuable public time and enormous expenditure would not be made to depend on the volition of the executive to notify the commencement of the Act. Incompatibility or repugnancy would be apparent when the effect of the operation is visualised by comparative study."
78. To sum up, Articles 246(1), (2) and 254(1) provide that to the extent to which a State law is in conflict with or repugnant to the Central law, which Parliament is competent to make, the Central law shall prevail and the State law shall be void to the extent of its repugnancy. This general rule of repugnancy is subject to Article 254(2) which inter alia provides that if a law made by a State legislature in respect of matters in the Concurrent List is reserved for consideration by the President and receives his/ her assent, then the State law shall prevail in that State over an existing law or a law made by the Parliament, notwithstanding its repugnancy.
79. The proviso to Article 254(2) provides that a law made by the State Legislature with the President's assent shall not prevent Parliament from making 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 a State Legislature. Thus, Parliament need not wait for the law made by the State Legislature with the President's assent to be brought into force as it can repeal, amend, vary or add to the assented State law no sooner it is made or enacted. We see no justification for inhibiting Parliament from repealing, amending or varying any State Legislation, which has received the President's assent, overriding within the State's territory, an earlier Parliamentary enactment in the concurrent sphere, before it is brought into force. Parliament can repeal, amend, or vary such State law no sooner it is assented to by the President and that it need not wait till such assented to State law is brought into force. This view finds support in the judgment of this Court in State of Orissa v. M.A. Tulloch and Co. reported in (1964) 4 SCR 461.
97.1. On timing, we hold that, repugnancy arises on the making and not commencement of the law, as correctly held in the judgment of this Court in Pt. Rishikesh and Another v. Salma Begum (Smt) [(1995) 4 SCC 718]."
(Emphasis supplied by me)
21. In Engineering Kamgar Union vs. Electro Steel Castings Ltd. and another, (2004) 6 SCC 36 (Paras-15 to 24), Hon'ble Supreme Court considered the question of repugnancy and the provisions of Section 254 of the Constitution of India and held that two different Acts produce two different legal results, a conflict will arise.
22. In Dharappa vs. Bijapur Coop. Milk Producers Societies Union Ltd., (2007) 9 SCC 109 (Para-12), Hon'ble Supreme Court held that repugnancy is said to arise when : (i) there is clear and direct inconsistency between the Central and the State Act; (ii) such inconsistency is irreconcilable, or brings the State Act in direct collision with the Central Act or brings about a situation where obeying one would lead to disobeying the other.
23. In Animal Welfare Board of India vs. A Nagaraja and others, (2014) 7 SCC 547 (Paras-75 to 79), Hon'ble Supreme Court held that in order to decide the question of repugnancy, it must be shown that the two enactments contain inconsistent and irreconcilable provisions, therefore, they cannot stand together or operate in the same field.
24. For all the reasons afore-stated, particularly in view of afore-noted conflicting views taken by two Benches of this Court in two decisions namely Mohd. Afzal (supra) and Hardoi Zila Sahkari Bank Limited (supra), the matter is referred to a larger bench to answer the following questions:
(a) Under the facts and circumstances of the case what would be the minimum period of notice under Section 106 of the Transfer of Property Act, 1882 as substituted by the Central Act No.3 of 2003?
(b) Whether the amendment made by the Transfer of Property (Amendment) Act (Central Act No.3 of 2003), would prevail over the U.P. Amendment by U.P. Act No.24 of 1954 and consequently, the minimum period of notice would be 15 days?
25. Let the papers be placed before Hon'ble the Chief Justice to constitute a larger bench to decide the afore-noted questions.
Order Date :- 09.09.2019 NLY