The Allahabad High Court's ruling in Inder Bhushan Sawhney v. Kanchan Kumari Jain (Dead) and 2 Other, 2026:AHC:177234‑DB, raises two distinct constitutional questions: (i) whether State rent‑control laws are repugnant to the Transfer of Property Act, 1882; and (ii) whether provisions of a statute expressly repealed by the legislature can revive once parts of the successor legislation are declared unconstitutional. The decision also partly undoes the reform of urban tenancy law in Uttar Pradesh.

From the 1972 Act to the 2021 Act

Constitutional challenges to the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (1972 Act) have swung back and forth. In Milap Chandra Jain v. State of U.P., 2001 (2) ARC 488, the Allahabad High Court struck down rent fixation provisions of the 1972 Act as arbitrary under Article 14 relying upon the Supreme Court's judgment in Malpe Vishwanath Acharya v. State of Maharashtra, 1997 INSC 831. However, in Neena Jain v. State of U.P., 2014:AHC:54311‑DB, the same court reversed course, restoring those very clauses and disregarding Malpe's binding force. In Neena Jain, the Court also upheld the constitutional validity of the 1972 Act.

Thereafter, Neena Jain filed Civil Appeal Nos. 1082 & 1083 of 2017 in the Supreme Court. However, the Supreme Court avoided direct ruling on constitutionality of the 1972 Act, it instead urged the State of U.P. to undertake legislative reform. That nudge resulted in first an Ordinance and then enactment of the U.P. Regulation of Urban Premises Tenancy Act, 2021 (2021 Act). Section 46 of the 2021 Act expressly repealed the 1972 Act, thereby closing the chapter on the earlier regime – at least until the controversy was reopened in Inder Bhushan Sawhney.

In Inder Bhushan Sawhney, the Allahabad High Court declared Sections 8, 9, 10, 38 and 42 of the 2021 Act ultra vires from date of the judgement i.e. 21.08.2026. The main ground for striking down these provisions was that these provisions were repugnant to the Transfer of Property Act or Provincial Small Causes Court Act, 1887 read with U.P. Civil Laws (Amendment) Act, 1972; and Presidential assent as required to be taken under Article 254(2) of the Constitution by a state before commencing a law whose provisions may be repugnant to an existing central law was not taken.

Yet, instead of confining its ruling to declaring the offending provisions of the 2021 Act ultra vires and severing them from the statute, the High Court went further and held that their invalidation revived the corresponding provisions of the repealed 1972 Act.

Repugnancy Misapplied

A seven-judge Bench ruling of the Supreme Court in V. Dhanapal Chettiar v. Yesodai Ammal, 1979 INSC 156, had already settled that urban tenancy laws fall in Entry 6, List III of the Seventh Schedule i.e. Concurrent List. The Allahabad High Court's elaborate reconciliation of two five-judge Bench judgement on this issue was therefore unnecessary. The State of U.P. also erred in contending that tenancy laws fall within the State List, rather than acknowledging that the transfer of non‑agricultural property falls in the Concurrent List.

Certain provisions of prevailing state rent control laws are repugnant to sections of the Transfer of Property Act, since rent control regimes necessarily curtail freedom of contract. In Sawhney, the best course for the State of U.P. would have been to argue absence of repugnancy; or alternatively to secure Presidential assent even at a later stage to cure the alleged defect. Indeed, several states – including Tamil Nadu and Andhra Pradesh – have enforced rent acts without prior Presidential assent, thereby making the Allahabad High Court's finding of repugnancy itself contestable. Yet, irrespective of that debate, the question of revival stands apart and cannot be justified.

Revival Without Authority

On revival of provisions of 1972 Act the Court observes in Sawhney:

“Coming to issue No. (vi), we are in agreement with the submission advanced by learned AAG that though the Impugned Act, in part …, is ultra vires, it does not leave a vacuum. Section 46 had repealed the Repealed Act. Once the Impugned Act itself is declared ultra vires, the Repealed Act would spring back to life, of its own to the extent required. That is the plain effect caused by the decisions of the Supreme Court in Property Owners Association … and K. Shyam Sunder …”

On this point, the Bench's conclusions are legally untenable. In Property Owners Association v. State of Maharashtra, 2024 INSC 835 and State of Tamil Nadu v. K. Shyam Sunder, 2011 INSC 555, the Supreme Court was dealing with amendments, not repeal. Revival followed only because the amending provisions were struck down. Neither precedent applies to a statute expressly repealed, as was the case in U.P.

Section 46 of the 2021 Act, which expressly repealed the 1972 Act, was not struck down by the High Court. Nevertheless, the Court assumed that once parts of the 2021 Act were declared unconstitutional, the repealed statute could revive. This reasoning is flawed: the 2021 Act itself was not invalidated, only certain provisions were. Once repeal has taken effect, the 1972 Act is extinguished. Its revival would amount to legislating – a power courts do not possess.

The Supreme Court has consistently affirmed repeal as extinction. In State of U.P. v. Hirendra Pal Singh, 2010 INSC 845, it was held by SC that: “It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed.” In M/s S.R.S. Travels v. KSRTC Workers, 2025 INSC 152, it held that “A repeal statute does not recreate the legal framework anew but rather extinguishes the earlier Act's operative provisions…”

Therefore, repeal of an enactment is absolute and leaves no dormant statute waiting to re‑emerge. A repealed statute cannot be judicially resurrected. Revival of a statute requires explicit legislative action.

No Vacuum, No Revival

The High Court justified revival on grounds of avoiding a vacuum. No such vacuum existed. Where State law is repugnant, Article 254(1) of the Constitution ensures that Parliamentary law operates. In this case, the Transfer of Property Act would have governed landlord‑tenant relations to the extent of repugnancy. Revival of provisions of the 1972 Act was therefore unnecessary and unconstitutional.

Needed – Certainty in Tenancy Law

The history of rent law in U.P. illustrates cyclical failure of rent‑law reform in India, a persistent problem across other states as well. Landlords and tenants remain locked in disputes; statutes are enacted, challenged, repealed, and revived; still the underlying problem persists. The irony is compounded by the Court's willingness to undo legislative repeal, thereby perpetuating uncertainty. The appeal in Sawhney is bound to be protracted, with resolution in the Supreme Court likely to take years. Petitions challenging the standard‑rent provisions of the Maharashtra Rent Control Act, 1999 have remained pending in the Supreme Court since 2000. Even after the nine‑judge Bench ruling in Property Owners Association (2024), the matter is yet to be placed before a regular three‑judge Bench. In Sawhney, moreover, the State is unlikely to appeal, given that the Assistant Advocate General acquiesced to the revival of the 1972 Act.

What is urgently required is certainty in landlord‑tenant law. As far back as 1987, the Supreme Court in Prabhakaran Nair v. State Of Tamil Nadu, 1987 INSC 237, observed: “The laws of the landlord and tenant must be made rational, humane, certain and capable of being quickly implemented.” Since then, the Centre has circulated successive Model Rent Acts and linked tenancy law reform to urban renewal schemes. However, only a handful of States have enacted balanced tenancy laws. Even in Delhi, where Centre itself has the power to act, it has failed to enforce the Delhi Rent Act, 1995, which would have replaced the archaic Delhi Rent Control Act, 1958.

In the case of U.P., a constitutionally sound legislative solution is required. One option is for the State Government to re‑notify the 2021 Act after securing Presidential assent without delay, leaving no loopholes for further challenges. Larger questions, however, remain: (i) does the State of U.P. possess the political will to reform its urban tenancy law; and (ii) why are courts willing to go the extra mile to undo tenancy‑law reforms?

Author is a Lawyer practicing at Delhi High Court. Views are personal.