The second proviso to Section 5(1)(a) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, as amended by the Act 16 of 1968, was constitutionally void under Article 254(1) of the Constitution of India.

A.H. Saikia, J.

1. The instant reference has been placed before the Full Bench by the then Hon'ble the Chief Justice pursuant to an observation made by a Division Bench of this Court on 5-6-2002 while deciding the present Second Appeal in terms of the order of the Apex Court rendered on 10-10-96 in Civil Appeal No. 403/76 which runs as under:

When leave was granted in this case, it was permitted in a manner to raise additional grounds. The ground emerging is that the second proviso to Section 5(1)(a) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, as amended by the Act 16 of 1968, escaped to be applied by the High Court. This seemingly is so because the High Court has proceeded to decide the matter primarily on the main provision without resort to any of the two provisions. On the other hand, a Full Bench decision of the Assam High Court in Surendra Chandra Ghosh v. Sashi Prasad Barooah 1971 ALR 370 goes to say that the introduction of the second proviso, afore referred to, is not a valid legislative exercise and therefore, is not part of the law. The correctness of that view has been challenged. We have therefore thought it prudent that the High Court should examine this matter afresh in view of its not having dealt with the matter in this light earlier. We would therefore, allow this appeal, set aside the impugned order of the High Court and remit the matter back to it for being decided afresh in accordance with law and in the light of the afore-observations. Such of those interim orders, which were operative when the High Court was in seisin of the matter, shall stand revived during the pendency of the appeal before High Court. No costs.

2. However, after passing of the order dated 10-10-96 and before referring the matter to the Full Bench aforesaid, in a petition for Special Leave to Appeal (Civil No. 12750 of 1998), challenging the order dated 2-4-98 passed by a Division Bench of this Court in the related second appeal, the Supreme Court on 19-7-2000 passed the following order:

This is not necessary to wait further regarding the implement of the legal representatives of the deceased party because on a perusal of the impugned order we have noticed that it was an order passed on agreement. It is not an even the final order. The High Court has now to dispose of the second appeal on merits after getting the findings recorded pursuant to the direction issued by the High Court. The SLP, is accordingly dismissed.

3. Thereafter, being dissatisfied with the above order dated 19-7-2000, when an application being I.A. No. 6 in Civil No. 12750/08 was preferred before the Supreme Court for re-calling the order dated 19-2-2000, the Apex Court, being disinclined to pass any such order, on 18-9-2000 ordered as follows:

In the circumstances of this case we do not find any need to recall the order dated 19-7-2000. This I.A. No. 6 is accordingly dismissed.

4. In view of the above noted premises, this second appeal which has been pending since 1966 arising out of a lis between the landlords and tenants has been taken up by this Full Bench for its final resolution in accordance with the Supreme Court's order dated 10-10-96 by way of examination of the correctness of the view taken in the Full Bench of this Court in Surendra Chandra Ghosh v. Sashi Prasad Barooah reported in 1971 Gau 370 wherein the second proviso to Section 5(1)(a) of the Assam Non-Agricultural Urban Areas Tenancy Act, 1955 (for short, 'the Act') was held to be repugnant to the provisions of the Transfer of Property Act and the Contract Act and thereby the same was declared constitutionally void under Article 254(1) of the Constitution of India and also on merit in terms of order dated 19-7-2000 rendered by the Apex Court as already noted above.

5. Although the detailed narration of the facts of the instant case is uncalled for as per observations made in the Supreme Court's orders particularly, the order dated 10-10-96, considering the chequered history of the pr