# Rakesh Kumar & Anr. /Defendants (Tenants) v. The Addl. District Judge Court No. 2, Bulanshahar & Ors

- **Citation:** (2019) 2 ILRA 1071
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-03-07
- **Case number:** Matter Under Article. 227 No. 5718 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rakesh-kumar-anr-defendants-tenants-v-the-addl-district-judge-court-no-2-44560
- **Pages:** 11

## Headnote

A. Transfer of Property Act, 1882 -
Section 106 - Determination of tenancy and
demand for arrears of rent- 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? (Paras 10, 13, 19, 20 & 24).

Matter is referred to a larger bench (E-8)

List of Cases Cited: -

## Text

2 All. Rakesh Kumar & Anr. Vs. The Addl. District Judge Court No. 2, Bulandshahr & Ors. 1071
the Department that any part of the
turnover of a dealer for any assessment
year
or
part
thereof
has
escaped
assessment to tax, it is only on the basis of
the audit objection that the proceedings
for reassessment has been initiated by
passing
orders
of
authorisation
by
respondent no. 2 against the petitioner
firm.

10.

It
is
well
settled
that
reassessment cannot be made on the same
material by the same authority nor if there
is any change of opinion, as in the present
case there was no fresh material on record
on which the authorities proceeded for
reassessment, thus the order authorising
for reassessment only on the basis of audit
objection cannot be sustained. Thus we
are of the considered view that the order
dated 07.03.2019 passed by respondent
no.
2
under
Section
29(7)
for
reassessment of assessment year 2010-11
and notice dated 07.03.2019 issued by
respondent no. 3 are unsustainable and are
hereby quashed.

11. Writ Petition stands allowed.
----------

(2019)10ILR A 1071

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.09.2019

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Matter Under Article. 227 No. 5718 of 2019
(Civil)

Rakesh Kumar & Anr.
 ...Petitioners/Defendants (Tenants)
Versus
The Addl. District Judge Court No. 2,
Bulanshahar & Ors.
 ...Respondents/Plaintiffs

Counsel for the Petitioners:
Sri Some Narayan Mishra

Counsel for the Respondents:
Sri Nitin Kumar Agarwal

A. Transfer of Property Act, 1882 -
Section 106 - Determination of tenancy and
demand for arrears of rent- 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? (Paras 10, 13, 19, 20 & 24).

Matter is referred to a larger bench (E-8)

List of Cases Cited: -

1. Mohd. Afzal Vs. Smt. Ramesh Kumari,
2014(3) ARC 864

2. Hardoi Zila Sahkari Bank Limited, Hardoi Vs.
Smt. Sarla Gupta and another, 2010(2) A.R.C. 144

3. Dharam Pal Vs. Harbans Singh, 2006 (9)
SCC 216

4. Parwati Bai Vs. Radhika, (2003) 12 SCC 551

5. Food Corporation of India and another Vs.
Smt. Nisha Agnihotri, 2016 (9) ADJ 452

6. Sri Janki Devi Bhagat Trust, Agra Vs. Ram
Swarup Jain (Dead) by LRs., (1995) 5 SCC 314

7. Bradley vs. Atkinson, ILR (1885) 7 All 596:
1885 SCC OnLine All 89

8. Pt. Rishikesh and another vs. Salma Begum
(Smt.), (1995) 4 SCC 718
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Engineering Kamgar Union vs. Electro Steel
Castings Ltd. and another (2004) 6 SCC 36

10. Dharappa vs. Bijapur Coop. Milk Producers
Societies Union Ltd., (2007) 9 SCC 109

11. Animal Welfare Board of India vs. A
Nagaraja and others, (2014) 7 SCC 547

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Some Narayan Mishra,
learned
counsel
for
the
defendanttenants/petitioners and Sri Nitin Kumar
Agrawal, learned counsel for the plaintifflandlady/respondent no.3.

Facts:-

2. Briefly stated facts of the present
case are that undisputedly, the plaintiffrespondent 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 plaintifflandlady/respondent no.3, the defendanttenants/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 defendanttenants/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 defendantstenants/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 01-012010 ls fdjk;k ckdh o ckftc gS vkSj izfroknh
}kjk fdjk;k vnk djus esa pwd dh gS\

4- D;k izfroknh /kkjk 201⁄441⁄2 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
plaintifflandlady/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\**
2 All. Rakesh Kumar & Anr. Vs. The Addl. District Judge Court No. 2, Bulandshahr & Ors. 1073

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
plaintiffrespondent 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
plaintifflandlord/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
1074 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Rakesh Kumar & Anr. Vs. The Addl. District Judge Court No. 2, Bulandshahr & Ors. 1075
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.
1076 INDIAN LAW REPORTS ALLAHABAD SERIES

(4) Every notice under subsection (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 subSection 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 subsection.
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:
2 All. Rakesh Kumar & Anr. Vs. The Addl. District Judge Court No. 2, Bulandshahr & Ors. 1077

"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 coincidentally 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
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Rakesh Kumar & Anr. Vs. The Addl. District Judge Court No. 2, Bulandshahr & Ors. 1079
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
1080 INDIAN LAW REPORTS ALLAHABAD SERIES
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
2 All. Arvind Rajak @ Vasu Vs State of U.P.
1081
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.
----------

(2019)10ILR A 1081

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2019

BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.

Crl. Misc. Bail Application (IIND) No. 32155
of 2019

Arvind Rajak @ Vasu ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Qazi Vakil Ahmad

Counsel for the Opposite Party:
A.G.A.