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Title: Discussion on the Transfer of Property (Amendment) Bill, 2002. (Bill passed)
MR. CHAIRMAN : The House shall now take up Item No. 15 of the Agenda.
THE MINISTER OF LAW AND JUSTICE (SHRI K. JANA KRISHNAMURTHY): Sir, I beg to move:
“That the Bill further to amend the Transfer of Property Act, 1882, be taken into consideration.”
It is a very small amendment. This amendment will go a long way in putting an end to the confusion with regard to the notice of termination of leases. There are two varieties of leases, yearly lease and monthly lease. Yearly lease means six months’ time is needed for termination notice and if it is a monthly lease, a 15 days’ notice has to be given.
The whole question that has arisen, throughout all the courts in the country, has been from which the date the notice should be reckoned. Different interpretations have been given. So many cases have come up on that basis. The Supreme Court also has given a verdict. The Law Commission has also made a recommendation that there should be some certainty and fixity with regard to the date from which this six months’ period or 15 days’ period will have to be recorded.
We have brought amendment to section 106 of the Transfer of Property Act just to give a particular time from which the date will have to be fixed. In the (Amendment) Bill that I am now moving, clause 2 reads as;
“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. ”
There are literally thousands of cases pending throughout the country only on this question. What happens is that if it falls short on a day, then the case goes. Then, immediately that is dismissed. A fresh notice is issued. Again another suit is filed. In this way, thousands of cases have been pending. Now, the fixation of the period will solve this. When this amendment comes about, I am quite sure that all these cases will get disposed of properly and there will be no confusion. Since this matter relates to cases, we are also giving retrospective effect to it so that it will also bind the existing cases. It will enable the client. It will not, in any manner, affect the lessee. It will only enable the lessor. It will stop the confusion. This is the amendment. I hope the House will extend its full co-operation in supporting this Bill.
MR. CHAIRMAN (SHRI P.H. PANDIAN): Motion moved:
“That the Bill further to amend the Transfer of Property Act, 1882, be taken into consideration. ”
SHRI E.M. SUDARSANA NATCHIAPPAN (SIVAGANGA): Sir, I support this Bill as it is a timely one. From 1965 onwards, the Supreme Court and other courts have commented upon this particular provision and interpreted it in different ways. Finally, it was settled in the judgement of the Supreme Court. But at the same time, I would like to take this opportunity to draw the attention of the hon. Law Minister that the Law Ministry has worked with some speed. Immediately on submission of the 181st Report of the Law Commission, the hon. Minister has piloted this Bill. The hon. Minister has come forward with this Bill in a very fast way. If the same fastness is applied to all the judgements, then a lot of problems can be solved. This is now coming up as a conflict between the Judiciary and the Legislature. Even many Constitutional provisions were made inapplicable or ultra vires or they were struck down, but all those provisions remain even now in the Statute Book. That should be considered by the Law Commission. It should find out a way whether the judgement can be applied as it is or, as the Legislature feels, the present statute is to be applied by annulling the judgement. This aspect should be considered by the Law Commission and the Law Ministry. When there are cases coming before the High Courts and the Supreme Court, they want to assert their own judgements rather than the statute which is at present without any amendment in force. Therefore, this conflict between the Executive versus Legislature and the Legislature versus Judiciary should be annulled with.
With these submissions, I would like to appreciate the Law Ministry for having taken this step. The Law Minister has come forward to solve the problems which are very much in the rural areas. Section 106 of the Transfer of Property Act is useful only in the mofussil areas. Many statutes have come up before the State Legislatures. By way of Rent Control Act, Agricultural Rent Control Act and so many other enactments, these problems were solved by giving proper notice. A statutory notice was provided in the Acts passed by the State Legislatures. But at the same time, section 106 of the Transfer of Property Act is applicable where there is no building or where there is no superstructure. It is applicable to the vacant site or to the agricultural land or to manufacturing. Manufacturing is very important now. When this enactment had come in 1882, at that time, manufacturing was done in a small way. But now it is done in a bigger way. A lot of investments are made. If there is a contradictory agreement made or there is no mention about the time limit in the agreement between the lessor and the lessee, then this provision will be enforced by the lessor and the lessee will be evicted very quickly.
Therefore, that should be considered and that particular word, “manufacturing” has to be interpreted in a much more general way so that the manufacturing industry is not affected by this new provision.
I am happy that the hon. Minister of Law and Justice has taken into consideration the pending cases. Plenty of pending cases, as the hon. Minister has observed, are going to be settled simply by this enactment.
Under section 106 of the original Act, the provision in the last line: “expiring with the end of a month of tenancy” is now deleted. At the same time, the provision for 15 days’ notice has been made broader. The 15 days’ time starts from the date of receipt of the notice. This gives the right to the lessor. At the same time the provision for sending and receiving notices is given in a broader way, which could be very easily misused by the lessor. Now, it says:
“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 party 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.”
I think, this is a very broad one. There is no registered notice mentioned here. Therefore, they can very easily send the notice under certificate of posting or they could say that they had pasted the notice in a conspicuous place or that they had given it to a servant who had just been removed or to a family member who had come just for dinner. So, there should be some focussing that it should be a registered notice. In the case of registered post, an acknowledgement is also given. Apart from the Postal Department, there are also private couriers who get the signatures and give acknowledgements. The limitation starts from the time of receipt of the notice, which is now made a focussing point. Therefore, the provision that was already in the principal Act should be given much more modernity so that it could be accepted from that date onwards or from that minute onwards the limitation starts.
Along with these observations, I would like to suggest that whenever this type of amendments are brought forward, the new developments should also be included. Now, e-commerce and electronic communications have come up and information technology is improving. So, these modes of sending notices could also be included so that the cost of sending the notices could be reduced.
With these words, I support this Bill.
MR. CHAIRMAN : Mr. Law Minister, please explain to the House what would happen to the judgement delivered in Mangilal vs. Sugan Chand, AIR 1965? For the last 37 years, this judgement has been in force. What would happen to the pending suits? Would the principle of res judicataapply? Can they institute a suit again?
SHRI K. JANA KRISHNAMURTHY: Sir, later on, there has been a Supreme Court judgement, AIR 1965 SC 101, 104. In this case, the Supreme Court has dealt with this particular subject. Once a Supreme Court judgement comes in, all other earlier judgements automatically stand superseded. In the Supreme Court judgement, it has been held that while computing the period of notice the day on which the notice is served is required to be excluded. That was the Supreme Court judgement. They are giving a quitus. In the lower court, they did not give a quitus because it was not known to the lower court advocates and clients. Still the confusion prevails. In order to see that this confusion is removed once and for all, this present amendment is being brought about. I do not think, the present amendment would in any way come in the way of either this judgement or that judgement.
It is because the Parliament makes the position very clear that the period will have to be reckoned with only from … (Interruptions)
MR. CHAIRMAN : Kindly explain to the House what about the fate of the dismissed suits because the policy of res judicata will prevent filing a fresh suit.
… (Interruptions)
: If it is being dismissed only on the question of the date, then, naturally, he has got that opportunity to send a fresh notice and then start a fresh suit. If it has been decided on merits, res judicata applies, but if the court gives a finding that it had to be only on the basis of the notice, this comes to his rescue. … (Interruptions)
SHRI VARKALA RADHAKRISHNAN (CHIRAYINKIL): This is not a correct information. … (Interruptions)
MR. CHAIRMAN: I just wanted the hon. Minister to explain the position.