Sections 8, 9, 10, 38 and 42 of the UP Tenancy Act, 2021 Declared Ultra Vires — Allahabad HC in Inder Bhushan Sawhney

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Overview

On 21 August 2026 a Division Bench of the Allahabad High Court declared Sections 8, 9, 10, 38 and 42 of the Uttar Pradesh Regulation of Urban Premises Tenancy Act, 2021 (U.P. Act No. 16 of 2021) ultra vires the Constitution. The Court held that the State legislature had, without the prior assent of the President under Article 254(2) of the Constitution of India, enacted provisions repugnant to the Transfer of Property Act, 1882 (TPA) in substantive law and to the Provincial Small Cause Courts Act, 1887 read with the U.P. Civil Laws (Amendment) Act, 1972 in procedural law.

Rent fixation by the Rent Authority, and eviction on the statutory grounds created by the 2021 Act, thereby lose their legislative foundation. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 — repealed by Section 46 of the 2021 Act — revives “to the extent required”.

Case Metadata

Case: Inder Bhushan Sawhney v. Kanchan Kumari Jain (Dead) and 2 Other, Writ - A No. 13349 of 2024, heard along with fifteen connected writ petitions
Court: High Court of Judicature at Allahabad (Court No. 39), Division Bench
Bench: Justice Saumitra Dayal Singh and Justice Swarupama Chaturvedi
Reserved: 22 May 2026 · Delivered: 21 August 2026 (reportable, AFR)
Neutral citation (as reported): 2026:AHC:177234-DB · Reported as: 2026 LiveLaw (AB) 615

Facts

The batch challenged the validity of the 2021 Act and, consequentially, orders passed by Rent Authorities under Section 10 of that Act enhancing or determining rent at the instance of landlords. In several petitions the challenge extended to execution and eviction proceedings instituted under the Act. The lead petition arose from orders of the Rent Authority, Agra dated 22 July 2022 and 27 May 2024, and from Execution Case No. 127 of 2023.

The 2021 Act had repealed the 1972 rent control legislation by Section 46 and substituted a contract-centred scheme: a written tenancy agreement to be jointly notified to the Rent Authority (Section 4), a chapter on rent (Sections 8 to 10), statutory grounds of eviction adjudicated by the Rent Authority, an appellate Rent Tribunal, and an overriding clause in Section 42.

Issues Framed

The Court framed six issues, of which four were decided and two rendered academic:

Whether Rajendra Diwan v. Pradeep Kumar Ranibala is consistent with the earlier decision in Indu Bhusan Bose v. Rama Sundari Devi, both being benches of equal strength.
If the two conflict, which is to be applied.
Whether the 2021 Act is repugnant to the substantive provisions of the TPA.
Whether it is repugnant to the procedural provisions of the Small Cause Courts Act read with the Civil Laws Act.
Whether, on the test of Article 246, the Act is otherwise valid.
Whether, if the Act is declared ultra vires, the repealed 1972 Act would revive.

What the Court Held

1. Legislative competence is traceable to the Concurrent List, not the State List. Relying on the five-Judge decision in Indu Bhusan Bose v. Rama Sundari Devi, (1969) 2 SCC 289, the Bench held that the power to legislate on the relationship of landlord and tenant in respect of buildings is referable to Entries 6, 7 and 13 of List III of the Seventh Schedule — not to Entry 18 of List II. The Court recorded that “[t]he only legislative entry to which the Impugned Act and the Repealed Act may relate or from which they may be born is Entry 6 in the List III”. Because the field is concurrent, Article 254 applies and repugnancy with a Parliamentary law must be cured by Presidential assent.

2. No conflict between Indu Bhusan Bose and Rajendra Diwan. On issue (i) the Court held that the true ratio of Rajendra Diwan v. Pradeep Kumar Ranibala, 2019 SCC OnLine SC 1586, does not run contrary to Indu Bhusan Bose: the two were rendered on different questions, Rajendra Diwan having been confined to whether Section 13(2) of the Chhattisgarh rent control legislation was ultra vires for want of State legislative competence. Applying Union of India v. Dhanwanti Devi, (1996) 6 SCC 44 — a decision is authority only for what it decides — the Bench held Indu Bhusan Bose to be the only direct decision on the point and therefore the only law to be applied. Issue (ii) was answered by reference to Union Territory of Ladakh v. Jammu & Kashmir National Conference, 2023 SCC OnLine SC 1140, which directs that where benches of equal strength conflict, the earlier decision is to be followed by High Courts.

3. Sections 8, 9 and 10 are repugnant to Chapter V of the TPA. Sections 8 to 10 create a statutory scheme for rent payable, revision of rent by a compounding formula, and determination of revised rent by the Rent Authority in case of dispute. Read with the statutory grounds of eviction, the Bench held that these “conflict with the rights and liabilities or lessees and lessors as created under Chapter V of the TPA”. Central to the reasoning is Section 111 of the TPA, which enumerates the modes by which a lease determines — efflux of time, happening of a condition, termination of the lessor’s interest, merger, express surrender, implied surrender, forfeiture, and expiry of a notice to quit. The Court held: “Those being the only modes to determine the lease, provisions of the Impugned Act, are not reconcilable with the same, on their own. To that extent, repugnancy exists.”

4. The procedural repugnancy is “even more pronounced”. The 2021 Act creates a Rent Authority and a Rent Tribunal as a complete forum for adjudication of landlord-tenant disputes. Under the Small Cause Courts Act read with the Civil Laws Act, that adjudicatory function is vested in the Small Cause Courts. The Bench held there is “no room under those provisions of law to allow for Rent Authority to intervene and adjudicate disputes between lessors and lessees”.

5. Section 42 could not confer overriding effect without Presidential assent. Section 42 provides that the Act “shall have effect notwithstanding anything inconsistent therewith contained in any other law of the State of Uttar Pradesh for the time being in force”. The Court held that to the extent the Act seeks to override the TPA and the Small Cause Courts Act read with the Civil Laws Act — all referable to List III — “clearly that effect in law may arise only through the route of Presidential assent. In absence of that essential constitutional requirement being fulfilled, the Impugned Act to the extent it is repugnant to the laws made by the Parliament must remain unenforceable.” The repealed 1972 Act, by contrast, had been enacted with prior Presidential assent, which is what had given it overriding force.

6. The Madras High Court’s contrary view was distinguished. The decision in Balaji v. Principal Secretary to Government, upholding the Tamil Nadu tenancy legislation, was distinguished on the strength of Section 33 of that Act, whose proviso requires the Rent Court to “give due regard to the provisions of the Transfer of Property Act, 1882, the Indian Contract Act, 1872 or any other substantive law applicable”. The 2021 Act contains no provision pari materia, and Section 42 pulls in the opposite direction.

7. Severability limited the declaration. Applying R.M.D. Chamarbaugwalla v. Union of India, (1957) 1 SCC 650, the Bench confined the declaration to provisions directly conflicting with the constitutional scheme, observing that other provisions “though at variance with the pre-existing laws … may not be declared ultra vires to the extent they may not be creating direct repugnancy.” Issue (v) was rendered academic: the Act being legislation under List III rather than List II, the Article 246 test did not survive for consideration.

8. The 1972 Act revives. On issue (vi) the Court accepted the Additional Advocate General’s submission that the declaration leaves no vacuum: Section 46 having repealed the 1972 Act, “[o]nce the Impugned Act itself is declared ultra vires, the Repealed Act would spring back to life, of its own to the extent required.” That conclusion rests on Property Owners Association v. State of Maharashtra, (2024) 18 SCC 1 and State of Tamil Nadu v. K. Shyam Sunder, (2011) 8 SCC 737.

The Operative Order

Paragraph 110 records the declaration and its temporal limits. Sections 8, 9, 10, 38 and 42 were declared ultra vires “from today”. To give effect to that declaration prospectively:

All matters or proceedings conducted and concluded up to the end of the day of the judgment remain protected from the vice of ultra vires, if no challenge had been raised to them till that date — including tenancy agreements executed and rent revised or determined under the 2021 Act. Those revised terms govern the substantive rights of the parties in such cases.
Those saved rights remain enforceable under the repealed 1972 Act and the TPA read with the Small Cause Courts Act and the Civil Laws Act, with effect from the following day.
The individual orders impugned in each of the sixteen writ petitions were quashed, with no order as to costs.

Significance

The decision turns on a distinction that recurs whenever a State legislates in a concurrent field already occupied by a Central enactment. A State law is not saved merely because the subject matter is one the State may legislate upon; where the law departs from a Parliamentary statute in the same field, Article 254(2) supplies the only route to enforceability, and that route requires assent obtained with the President’s knowledge of the specific repugnancy. The 1972 Act had taken that route. The 2021 Act did not.

Three points of doctrine emerge:

A non obstante clause cannot substitute for assent. Section 42’s overriding language operated on “any other law of the State of Uttar Pradesh”. It could not, of its own force, displace a Central Act in the Concurrent List.
Procedural repugnancy is independently fatal. The creation of the Rent Authority and Rent Tribunal conflicted with the forum scheme of the Small Cause Courts Act read with the Civil Laws Act — a defect distinct from, and “even more pronounced” than, the substantive conflict with the TPA.
A saving provision in the State law changes the analysis. The Madras precedent was distinguished purely on the presence of a proviso preserving the application of the TPA. Whether a comparable amendment could rehabilitate the 2021 Act is a question the judgment does not decide.

The declaration is expressly prospective. Proceedings pending on the date of the judgment, and matters in which the validity of the provisions had already been put in issue, fall outside the protection recorded in paragraph 110.

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