UP Amendment To S.106 TP Act Inoperative After Parliamentary Amendment Of 2003 : Supreme Court

The Supreme Court has held that if the Parliament amends a law which is on a subject in the Concurrent List, then an earlier State amendment to the same provision would become inoperative.

Holding so, the Court held that the Uttar Pradesh amendment to Section 106 of the Transfer of Property Act, 1882, which was carried out in 1954, would become inoperative after the Parliament amended Section 106 in the year 2003.

The UP amendment provided for a notice period of thirty days for the termination of a lease. The Parliamentary amendment of 2003 amended Section 106 to provide for fifteen days' notice period.

The issue in the case was which provision would apply in the State of Uttar Pradesh. The appellant approached the Supreme Court after the Allahabad High Court deferred a decision citing the pendency of a larger bench reference.

The Supreme Court noted that the Transfer of Property Act was traceable to Entry 6 of List III of the Seventh Schedule of the Constitution- "Transfer of property other than agricultural land; registration of deeds and documents."

The Court also referred to Article 254 of the Constitution which provides that the Parliamentary law will prevail over a State law in the event of a repugnancy between the two.

The UP amendment would become inoperative due to the application of Article 254(2). The bench comprising Justice BV Nagarathna and Justice NK Singh held :

"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. 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."

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with effect from 31.12.2002, the substitution in Section 106 made by the Legislature of the State of U.P. is impliedly repealed and Section 106 as amended with effect from 31.12.2002 by the Parliament, would apply.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.

With this declaration, the matter was remitted back to the High Court for decision on merits.

Case : Naeem Bano Alias Gaindo vs Mohammad Rahees

Citation : 2024 LiveLaw (SC) 1011

Click here to read the judgment

https://scourtapp.sci.gov.in/supremecourt/2023/26039/26039_2023_8_53_57424_Judgement_22-Nov-2024.pdf