Presidential Assent as a Precondition for Repugnant State Rent Legislation: Striking Down Core Rent-Fixation/Eviction Provisions of the U.P. Tenancy Act, 2021 and Revival of the 1972 Rent Act

1. Introduction

This batch of writ petitions mounted a constitutional and operational challenge to the U.P. Regulation of Urban Premises Tenancy Act, 2021 (“Impugned Act”). Besides assailing the statute’s validity (and specifically Sections 9 and 10 on rent revision/determination), petitioners also challenged orders of the Rent Authority (including provisional and final rent fixation under Section 10), and, in some petitions, consequential execution/eviction proceedings.

The lead factual narrative (from Writ-A No. 13349 of 2024) presented a familiar post-rent-control transition dispute: a long-standing tenancy at Raja ki Mandi, Agra, with a historically low monthly rent (INR 1,000/-) was subjected to a dramatic escalation via an ex parte provisional rent order under Section 10(4), fixing rent at INR 750 per square feet per month. The litigation then expanded into a systemic challenge: whether the State could constitutionally create a new rent-revision and eviction regime, with its own adjudicatory fora, without Presidential assent despite overlap/repugnancy with existing Parliamentary law.

Key issues:

• Legislative competence/classification: Is such tenancy legislation referable to List II Entry 18 (land/land tenures) or to List III Entries 6/7/13 (transfer of property, contracts, civil procedure, etc.)?
• Repugnancy: Do the Impugned Act’s core provisions conflict with the Transfer of Property Act, 1882 (“TPA”) and with the procedural regime under the Provincial Small Causes Court Act, 1887 (“SCC Act”), as argued with the U.P. Civil Laws (Amendment) Act, 1972?
• Constitutional consequence: If repugnancy exists in the Concurrent List field, does the absence of Article 254(2) assent invalidate the State law (pro tanto)?
• Revival: If invalidation follows, does the repealed 1972 rent law revive?
• Relief design: How to treat concluded/unchallenged proceedings and existing rent agreements under the 2021 Act?

2. Summary of the Judgment

The Court framed and answered the principal questions in a structured sequence:

• No true conflict between Indu Bhushan Bose v. Rama Sundari Devi And Another and Rajendra Diwan v. Pradeep Kumar Ranibala: the latter addressed a different constitutional issue (State competence to confer an appeal to the Supreme Court) and did not decide repugnancy/Entry 6 List III analysis for rent laws.
• Legislative field: Following Indu Bhushan Bose v. Rama Sundari Devi And Another as clarified in Accountant And Secretarial Services Pvt. Ltd. And Another v. Union Of India And Others, tenancy legislation concerning buildings/non-agricultural premises falls within List III Entries 6, 7 and 13 (not List II Entry 18).
• Repugnancy found: The Court held that the Impugned Act created substantive and procedural conflicts with the TPA and SCC Act regime. It particularly identified rent revision/determination and eviction-by-authority mechanisms as incompatible with the general law of lease determination under the TPA and the procedural forum structure.
• Ultra vires declaration (partial): Sections 8, 9, 10, 38 and 42 of the Impugned Act were declared ultra vires “from today”.
• Relief and transition: The Court protected concluded/unchallenged past transactions and proceedings under the Impugned Act, but quashed the impugned orders in the writ petitions. It held that, upon invalidation of the repealing law’s operative effect, the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (“Repealed Act”) revives to the extent necessary, relying on Property Owners Association and others v. State of Maharashtra and State Of Tamil Nadu v. K. Shyam Sunder and others.

3. Analysis

3.1 Precedents Cited (and their influence)

A. Determining the correct constitutional “entry” for rent/tenancy laws

Indu Bhushan Bose v. Rama Sundari Devi And Another (1969) formed the foundation. The High Court treated it as the only direct, authoritative articulation that:

• “land tenures” in List II (Entry 18) is more naturally concerned with vacant lands/agricultural/land tenure relations; and
• leases of non-agricultural property/buildings align with TPA subject matter and thus more appropriately fall under List III Entry 6 read with Entry 7 (and allied concurrent heads).

Accountant And Secretarial Services Pvt. Ltd. And Another v. Union Of India And Others (1988) was used to remove any lingering ambiguity from Indu Bhushan Bose, treating it as having expressed a binding view that premises tenancy legislation relating to houses/buildings is referable to Entries 6, 7 and 13 of List III.

The State attempted to press Rajendra Diwan v. Pradeep Kumar Ranibala (2019) to support Entry 18 List II competence. The High Court distinguished it sharply on the ratio principle: the case concerned the State’s incompetence to confer appellate jurisdiction on the Supreme Court (Entry 77 List I), not a repugnancy analysis or the correct entry for general tenancy legislation. The Court reinforced the methodology of reading judgments for what they “actually decide” using:

• Quinn v. Leathem (1991) A.C. 495
• State Of Orissa v. Sudhansu Sekhar Misra and others
• Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai
• Bachan Singh v. State Of Punjab
• CIT v. Sun Engineering Works (P) Ltd.
• Union of India vs. Dhanwanti Devi

These authorities were deployed not merely as citations, but as interpretive constraints: the High Court refused to treat incidental observations as controlling law for a distinct constitutional question.

B. Tests of repugnancy and the Article 254 framework

The petitioners’ Article 254(2) theory (no Presidential assent; hence invalid to the extent of repugnancy) leaned on:

• Kaisar-I-Hind Pvt. Ltd. And Another v. National Textile Corporation (Maharashtra North) Ltd. And Others—for the proposition that Presidential assent requires conscious “consideration” of the identified repugnancy; it is not a rubber stamp.

On the meaning and limits of repugnancy, the Court cited and applied:

• Hoechst Pharmaceuticals Ltd. And Others v. State Of Bihar And Others—for the proposition that Article 254 repugnancy primarily concerns the Concurrent List; and for the classic repugnancy guides (including those traced to Deep Chand v. State of U.P. and Tika Ramji v. State of U.P.).
• Forum For People's Collective Efforts (fpce) And Another v. State Of West Bengal And Another—for the structural reading of Article 246 and the hierarchy of Lists, reinforcing the analytical order: identify the field/entry first, then apply repugnancy rules.
• State of Uttar Pradesh and others v. Lalta Prasad Vaish and sons—for a nuanced understanding of conflicts that may also arise through the interaction of List I and List III, and for the emphasis that repugnancy focuses on law-making supremacy (making of law, not commencement), drawing from State of Kerala v. Mar Appraem Kuri Co. Ltd..

C. Conflicting Supreme Court decisions and “which to follow”

Although the High Court ultimately held there was no direct conflict between Indu Bhushan Bose and Rajendra Diwan, it still addressed the “conflict-handling” doctrine by referencing:

• Gopal Krishna Indley v. 5Th Addl. District Judge, Kanpur and Others
• U.P. State Road Transport Corporation, Meerut Region, Meerut v. State Transport Appellate Tribunal
• South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai and Others
• Union Territory of Ladakh and others Vs. Jammu & Kashmir National Conference and another

These were used to reinforce that High Courts must apply binding law as it stands, and that precedential discipline prevents declaring Supreme Court rulings per incuriam at the High Court level.

D. Severability, revival, and consequences of invalidation

On partial invalidation, the Court cited:

• R.M.D. Chamarbaugwalla v. Union of India—for the doctrine of severability: courts should preserve valid parts where legislative intent permits.

On “revival” of the repealed statute where the repealing/substituting enactment is struck down, the Court relied on:

• Property Owners Association and others v. State of Maharashtra—particularly the principle that substitution is composite; invalidation of the new text ordinarily restores the original valid expression of legislative intent, avoiding a vacuum.
• State Of Tamil Nadu v. K. Shyam Sunder and others—for crystallising that where an amending/replacing act is struck down for legislative incompetence/Part III violation, the old law revives.

E. Comparative reference: why the Madras High Court decision did not carry the day

Landlords relied heavily on:

• Balaji v. Principal Secretary to Government of Tamil Nadu and another (Madras High Court, 23.04.2024)

The Allahabad High Court distinguished it principally because the Tamil Nadu legislation contained a proviso (quoted in the judgment as Section 33’s proviso) obliging the Rent Court to give due regard to the TPA/Contract Act etc. By contrast, the U.P. statute’s Section 42 was treated as an overriding clause without a comparable harmonising directive, thereby intensifying repugnancy. (The Court also noted the SLP dismissal relating to the Madras decision, but did not treat that as resolving the constitutional question for U.P.’s materially different text.)

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3.2 Legal Reasoning

A. Step 1: Identify the legislative field correctly

The Court’s analysis begins with “pith and substance” identification. It holds that tenancy regulation for buildings/non-agricultural premises is referable to List III (Concurrent List), chiefly Entry 6 (transfer of property other than agricultural land) read with Entry 7 (contracts) and related concurrent heads (including procedural aspects). This classification is decisive because:

• Once in the Concurrent List, Article 254 becomes the controlling conflict rule.
• A State law repugnant to an existing/Parliamentary law in the same field is void pro tanto unless it has Presidential assent under Article 254(2).

B. Step 2: Apply Article 254 repugnancy to the specific provisions

The Court then compares the legal architecture of the TPA with the Impugned Act, identifying several points of incompatibility:

• Rent revision/determination as statutory power: The Court stresses that the TPA does not confer an external, statutory “rent revision/determination” power akin to Sections 8, 9, 10 of the Impugned Act. The Impugned Act creates a public-law mechanism for enhancing and determining rent (including “prevailing market rent” guidance) that displaces the contract-centric rent structure of general lease law.
• Eviction grounds and authority-driven eviction: The Impugned Act’s Chapter V eviction model allows eviction by orders of a Rent Authority on enumerated grounds (including, inter alia, repairs/reconstruction, sale contract, structural alterations, expiry of term, etc.). The Court treats this as conflicting with the TPA’s lease determination scheme (notably Section 111) and with the general civil court/small cause court procedural model.
• Forum substitution and procedure: By creating Rent Authorities/Tribunals and by conferring exclusive/overriding force (especially through Sections 38 and 42), the Impugned Act was held to collide with the procedural regime of the SCC Act (as argued with the Civil Laws Act amendments and the historical rent-control adjudicatory structure).

On this reasoning, the Court concludes that the Impugned Act’s core operative provisions are not merely “supplementary” but displacing of existing rights/remedies and procedural channels in the Concurrent List field—thereby triggering Article 254 invalidity in the absence of Presidential assent.

C. Step 3: Address the “TPA is subject to local law” counter

Landlords/State argued that TPA provisions such as Section 106 operate “in the absence of a contract or local law to the contrary”, suggesting that a State “local law” can validly override. The Court’s answer is structural: that permissive phrasing in the TPA cannot circumvent the Constitution’s command under Article 254 where the State law is in the Concurrent field and is repugnant. In short, a “local law” may override only if it is constitutionally valid—which, in repugnancy cases, means it must satisfy Article 254(2) when required.

D. Step 4: Severability—why only certain sections were struck down

Invoking R.M.D. Chamarbaugwalla v. Union of India, the Court took a targeted severability approach rather than invalidating the entire statute. It confined unconstitutionality to the provisions it found directly repugnant and central to the displaced regime, namely:

• Section 8 (Rent payable)
• Section 9 (Revision of rent)
• Section 10 (Determination of revised rent in case of dispute; provisional rent)
• Section 38 (procedural adjudicatory structure, as treated by the Court)
• Section 42 (overriding effect)

E. Step 5: Revival of the repealed 1972 rent law

Having held that the 2021 Act’s core provisions (including the provisions producing the impugned orders) were invalid, the Court addressed the risk of a legal vacuum. It held that the Repealed Act revives to the extent necessary, relying on:

• Property Owners Association and others v. State of Maharashtra (substitution/invalidation restores original text); and
• State Of Tamil Nadu v. K. Shyam Sunder and others (striking down an amending/replacing Act for incompetence/fundamental-rights violation revives the old Act).

F. Temporal operation: prospective invalidation with saving of unchallenged past actions

The Court declared the identified sections ultra vires “from today”, and created a transitional saving rule:

• Concluded proceedings/transactions under the Impugned Act remain protected if no challenge had been raised till the date of judgment.
• Existing rent agreements and revised/determined rents under the Impugned Act remain “saved” and are to be enforced going forward under the revived/remaining legal framework (the Repealed Act and/or the TPA read with the SCC Act and Civil Laws Act, as applicable).
• The impugned orders in the batch petitions were quashed.

This aspect is practically significant: the Court sought to avoid destabilising settled tenancies and concluded determinations while granting full relief to litigants who had already invoked constitutional review.

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3.3 Impact

A. Immediate consequences in U.P.

• Rent Authorities’ jurisdiction curtailed: Rent revision/determination under Sections 8–10 and the overriding/procedural provisions struck down can no longer be used from the judgment date.
• Pending and future disputes: Landlords/tenants must revert to the pre-2021 framework (revived 1972 rent-control regime and general law), subject to the Court’s saving directions for settled matters.
• Execution/eviction proceedings founded on the quashed orders: In the batch cases, they fall with the quashing; more broadly, proceedings premised on the struck provisions face serious maintainability obstacles unless protected by the saving clause (unchallenged and concluded by the cut-off).

B. Constitutional drafting signal to State legislatures

The judgment’s central message is institutional: where a State tenancy statute (in the Concurrent List field) materially departs from or displaces the TPA/SCC Act framework, Presidential assent is not optional. Any future attempt to recreate rent revision, authority-led eviction, or exclusive rent-court jurisdiction in U.P. will likely require:

• clear identification of repugnancy in the proposal, and
• reservation for Presidential consideration and assent under Article 254(2) (as emphasised in Kaisar-I-Hind Pvt. Ltd. And Another v. National Textile Corporation (Maharashtra North) Ltd. And Others).

C. Doctrinal impact beyond rent law

The decision reinforces three broader doctrinal themes:

• Entry discipline: Courts must locate the correct constitutional entry (List III vs List II) before applying Article 254, using binding precedent and ratio methodology.
• Repugnancy is section-specific: Not every difference is repugnancy; but where a State law constructs a parallel substantive and procedural code displacing Parliamentary law in the concurrent field without assent, invalidation follows.
• Revival avoids vacuums: Striking down a repealing/substituting enactment can revive the prior law, preventing unintended legal vacuums (per Property Owners Association and others v. State of Maharashtra and State Of Tamil Nadu v. K. Shyam Sunder and others).

4. Complex Concepts Simplified

• Legislative competence (Lists I/II/III): The Constitution divides law-making topics. If a topic lies in List III, both Parliament and States can legislate, but conflicts are resolved by Article 254.
• Repugnancy (Article 254): If a State law in the Concurrent List field conflicts with a Parliamentary/existing law on the same subject, the State law is void to the extent of conflict unless it has Presidential assent under Article 254(2).
• “Presidential assent” is not a formality: As explained through Kaisar-I-Hind Pvt. Ltd. And Another v. National Textile Corporation (Maharashtra North) Ltd. And Others, assent presupposes that repugnancy was identified and considered.
• Ratio decidendi vs. obiter: Courts must follow the legal principle necessary to decide a case (ratio), not stray observations. This is why Rajendra Diwan v. Pradeep Kumar Ranibala was read narrowly and not treated as deciding the entry/repugnancy question addressed in Indu Bhushan Bose v. Rama Sundari Devi And Another.
• Severability: If only parts of a statute are unconstitutional, courts can strike only those parts if the remainder can function as intended (per R.M.D. Chamarbaugwalla v. Union of India).
• Revival of repealed law: If the law that repealed an earlier law is itself invalidated, the earlier law can “revive,” avoiding a vacuum (per Property Owners Association and others v. State of Maharashtra; State Of Tamil Nadu v. K. Shyam Sunder and others).

5. Conclusion

The Allahabad High Court’s decision is a constitutionally significant recalibration of U.P.’s post-2021 tenancy framework. It establishes that legislation governing tenancies of buildings/non-agricultural premises is anchored in the Concurrent List, and that creating a comprehensive rent revision/determination and authority-led eviction regime—together with overriding/exclusive procedural machinery—cannot survive if it is repugnant to Parliamentary/existing law without Presidential assent.

By striking down Sections 8, 9, 10, 38 and 42 prospectively while saving unchallenged concluded actions and reviving the 1972 regime to the necessary extent, the Court attempted a balance between constitutional fidelity and legal stability. The practical lesson for future reforms is equally clear: if the State seeks to depart from the TPA/SCC Act baseline in the Concurrent List field, it must legislate through the constitutional gateway of Article 254(2).