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Wednesday, April 26, 2017

In Maganlal Chhaganlal (supra), this Court considered the alternative procedure for eviction of unauthorized occupants on Government premises; one by suit and the other by summary procedure alleged to be more drastic and onerous under Chapter V-A of the Bombay Municipal Corporation Act, 1888 or the Bombay Government Premises Act, 1955. The procedure for recovery of land revenue envisaged under Rule 5 of the Rules could not be said to be discriminatory, it being quite reasonable procedure. It cannot be said to be harsh or drastic but is quite a reasonable procedure and it furthers the mandate of the Act. The difference between the procedure of execution of Rule 5 and that of CPC cannot be said to be unconscionable so as to attract the vice of discrimination. Resultantly, the appeal is found to be without any merit and the same is hereby dismissed. IA No. 6 of 2017 has been filed for de-freezing the bank account of the appellant. In case, the appellant has deposited the amount of Rs.5,29,58,937/- as per the fresh recovery citation No.484002 and the interest as well, till the date when the amount was deposited, it would be open to the concerned Tehsildar to de-freeze the account on being satisfied that the amount has been so deposited. The cost is quantified at Rs.50,000/- to be deposited in Advocates on Record Welfare Association within six weeks.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.5317 OF 2017
                 (Arising out of S.L.P.(C) No.29266 of 2016)

POWER MACHINES INDIA LIMITED      …Appellant(s)

                                   VERSUS

STATE OF MADHYA PRADESH & ORS.          …Respondent(s)


                               J U D G M E N T

ARUN MISHRA, J.



1.    Leave granted.


2.    This appeal has been preferred  by  the  appellant  –  Power  Machines
India Ltd.,  aggrieved by the judgment and order dated 18.7.2016  passed  by
the High Court of Madhya Pradesh at Jabalpur, thereby  dismissing  the  Writ
Petition filed by the appellant for  declaring  Rule  5  of  Madhya  Pradesh
Micro and Small Enterprises Facilitation Council  Rules,  2006  (hereinafter
referred to as “the Rules’) ultra  vires,  which  had  been  framed  by  the
Government of Madhya Pradesh in exercise of the power conferred  by  section
30 read with section 21(3)  of  the  Micro,  Small  and  Medium  Enterprises
Development Act, 2006 (hereinafter referred to as “the Act of  2006”).  Rule
5 provides for recovery of the  amount  for  which  award  is  passed  under
section 18(3) of the  Act  of  2006  as  arrears  of  land  revenue  thereby
providing additional remedy for recovery of the awarded  sum  than  the  one
provided in section 36(1) of the  Arbitration  and  Conciliation  Act,  1996
(hereinafter referred to as “the Act of 1996”).

3.    It is pertinent to mention that the award was passed under the Act  of
2006 by which the appellant was directed to pay awarded  sum  to  respondent
No.3 i.e. Lakshmi Engineering Industries (Bhopal) Pvt. Ltd.  The  award  was
passed  by  the  Madhya  Pradesh  Facilitation  Council   for   a   sum   of
Rs.1,15,77,630/- along with an amount of Rs.1,04,96,746/-  towards  interest
up to 10.1.2013.  Payment of actual amount of interest was @ three times  of
the bank rate as notified by the Reserve Bank of India to be paid within  30
days of the award. The award was passed on 15.1.2014.

4.    The Collector, Noida, initiated recovery of the amount as  per  letter
dated 2.4.2016 issued by the Madhya  Pradesh  Micro  and  Small  Enterprises
Facilitation Council under the Rules. The recovery citation was served  upon
the appellant on 20.4.2016 purported to  be  one  under  the  Uttar  Pradesh
Zamindari Abolition  and  Land  Reforms  Act,  1950.  Another  citation  was
received by the appellant  on  16.5.2016  which  was  issued  on  20.4.2016.
Thereafter, appellant filed a writ petition before the Allahabad High  Court
for quashing the recovery proceedings. However, Tehsildar of  Dadri,  Gautam
Buddha Nagar on 23.5.2016 withdrew an  amount  of  Rs.1,18,78,588.14/-  from
the appellant’s bank account  with  ICICI  Bank  pursuant  to  the  recovery
citation. On 24.5.2016, it is  averred  by  the  appellant  that  a  further
amount of Rs.2,12,33,618.57/- was recovered from the  bank  account  of  the
appellants with the State Bank of India. The appellant filed  Writ  Petition
[C] No.11824 of 2016 in the High Court of Madhya Pradesh for declaring  Rule
5 as ultra vires. The appellant filed another W.P. [C] No.12127 of 2016  for
quashing the recovery proceedings on the ground that the  recovery  was  not
in compliance with Rule 5. The said writ petition questioning the  rule  had
been dismissed. Writ Petition [C] No.12127 of 2016 had been allowed  by  the
High Court of Madhya Pradesh and it permitted respondent No. 3  to  initiate
recovery proceedings under the rule de novo and in accordance with law.  The
petition filed in the High Court of Allahabad was dismissed in view  of  the
fact that the aforesaid writ petition had been allowed by the High Court  of
Madhya Pradesh.

5.    The Tehsildar, Dadri issued fresh recovery proceedings  under  Rule  5
for recovery of Rs.5,29,58,937/- as per the  award  dated  15.1.2014.  Fresh
recovery citation was served on the petitioner on 19.9.2016. The High  Court
of Madhya Pradesh in the impugned judgment and order has held  that  Rule  5
is not ultra vires and is  in  strict  conformity  with  the  Act  of  2006.
Aggrieved thereby, the appeal has been preferred.

6.    It was submitted by Mr. P. Chidambram and Dr.  A.M.  Singhvi,  learned
senior counsel representing the  appellant  that  Rule  5  is  ultra  vires,
arbitrary and violative of Article 14 of the Constitution of  India  and  is
repugnant to the provisions contained in section 36 of the Act of 1996  read
with the provisions contained in section 18  of  the  Act  of  2006.  It  is
beyond rule making power conferred under sections 21 and 30 of  the  Act  of
2006. Once the provisions of the Code of Civil Procedure  (for  short,  ‘the
CPC’) had been made applicable, recovery  could  have  been  initiated  only
under Order 21  of  the  CPC  which  provides  adequate  safeguards  to  the
judgment debtor. Order  21  Rule  22  of  the  CPC  provides  that  in  case
execution is made after more than two years,  delay  has  to  be  explained.
There is power with the court to stay execution under Order 21  Rule  26  of
the CPC. Order  21  Rule  58  of  the  CPC  provides  for  an  objection  to
attachment of property and the procedure is  provided  under  Order  21  for
adjudication of objections. In case objection is not entertained,  there  is
a right to file a suit as provided in  Order  21  Rule  58(1)  of  the  CPC.
Elaborate procedure is provided under Order 21 Rules 66, 69, 89  and  92  of
the CPC with respect to sale, if required. The remedy provided under Rule  5
of the Rules does not contain the aforesaid safeguards and  the  amount  can
be recovered outrightly as arrears of land  revenue.  Thus,  the  remedy  is
harsh under Rule 5 and thus could not have been resorted  to.  It  was  also
strenuously urged on behalf of the appellants that in the four States  only,
i.e., West Bengal, Madhya Pradesh,  Punjab  &  Haryana  and  Andhra  Pradesh
recovery is made as per the CPC provided under section 36 of  Act  of  1996.
Thus, there is a discriminatory provision made by the four States  which  is
quite  arbitrary  and  impermissible.  States  could  not  have  enacted   a
provision in derogation to what is contained in the Central legislation.

7.    It was contended on behalf of the respondents that the rule  has  been
framed within the purview of section 30  of  the  Act  of  2006.  It  is  in
furtherance of the objective of the Act to provide  speedy  recovery.  There
is no repugnancy with the provisions of the Act of 2006 or that of  the  Act
of 1996. It is impermissible to provide inconsistent remedies also. In  such
matters there is no question of conflict of provisions. It is open to  elect
one of the remedies out of the available ones.

8.    Before adverting to the rival submissions, it is appropriate to  refer
to the relevant provisions of  Rule  5  of  the  Rules  which  provides  for
recovery of the amount awarded under the Act of 2006 read with  the  Act  of
1996.  Rule 5 is extracted hereunder :

“5.Recovey of amount due as arrears of land revenue:
If a buyer does not file any appeal under section 19 of the Act for  setting
aside any decree, award or other order made either by the Council itself  or
by any institution or centre  or  if  such  appeal  is  dismissed,  in  that
situation such decree, award or order shall be executed by the Collector  of
the District concerned and the amount due shall be recovered as  arrears  of
land revenue.”

9.    The aforesaid Rule  5  has  been  framed  in  exercise  of  the  power
conferred by the State Government to frame the rules  under  section  30  of
the Act of 2006 which enables  the  State  Government  to  make  the  rules.
Section 30 is extracted hereunder :
“30. Power to make rules by State Government.—(1) The State Government  may,
by notification, make rules to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the  foregoing
power, such rules may provide for all  or  any  of  the  following  matters,
namely:—
(a)  the  composition  of  the  Micro  and  Small  Enterprises  Facilitation
Council, the manner of filling vacancies of the members  and  the  procedure
to be followed in the discharge of their functions by  the  members  of  the
Micro and Small Enterprises Facilitation Council under  sub-section  (3)  of
Section 21;
(b) any other matter which is to be or may be, prescribed under this Act.
(3) The rule made under this section shall, as soon as may be  after  it  is
made, be laid before each House of the State  Legislature  where  there  are
two Houses, and where there is one House of the  State  Legislature,  before
that House.”

      Section 30 enables the State Government to make  rules  to  carry  out
the provisions of the Act. The power is general and pervasive in nature.  It
encompasses any other matter which is to be and may be prescribed under  the
Act, and the Rule is  required  to  be  laid  in  the  House  of  the  State
Legislature.

10.   The Act of 2006 has been enacted for the benefit of micro,  small  and
medium enterprises. The object of the Act is  to  provide  for  facilitating
the promotion and  development,  enhancing  the  competitiveness  of  micro,
small  and  medium  enterprises  and  the  matters  connected  therewith  or
incidental thereto. Section 18 of the Act of 2006 is extracted hereunder :

“18. Reference to Micro  and  Small  Enterprises  Facilitation  Council.—(1)
Notwithstanding anything contained in any other law for the  time  being  in
force, any party to a dispute may, with  regard  to  any  amount  due  under
Section  17,  make  a  reference  to  the  Micro   and   Small   Enterprises
Facilitation Council.
(2) On receipt of a reference  under  sub-section  (1),  the  Council  shall
either itself conduct conciliation in the matter or seek the  assistance  of
any institution or centre providing alternate  dispute  resolution  services
by making a reference to such  an  institution  or  centre,  for  conducting
conciliation and the provisions of Sections 65 to 81 of the Arbitration  and
Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if  the
conciliation was initiated under Part III of that Act.
(3)  Where  the  conciliation  initiated  under  sub-section  (2)   is   not
successful  and  stands  terminated  without  any  settlement  between   the
parties,  the  Council  shall  either  itself  take  up  the   dispute   for
arbitration or refer it to any institution  or  centre  providing  alternate
dispute resolution services for such arbitration and the provisions  of  the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall then apply to  the
disputes as if the arbitration was in pursuance of an arbitration  agreement
referred to in sub-section (1) of Section 7 of that Act.”
(4) Notwithstanding anything contained in any other law for the  time  being
in force, the Micro  and  Small  Enterprises  Facilitation  Council  or  the
centre  providing  alternate  dispute   resolution   services   shall   have
jurisdiction to act as an Arbitrator or Conciliator under this section in  a
dispute between the supplier located within its  jurisdiction  and  a  buyer
located anywhere in India.
(5) Every reference made under  this  section  shall  be  decided  within  a
period of ninety days from the date of making such a reference..”

      Section 18(1) of the Act  of  2006  provides  that  the  dispute  with
respect to  any  amount  due  under  section  17  may  be  referred  to  the
Facilitation Council. On  reference  being  made,  the  Council  can  itself
conduct reconciliation  with  the  assistance  of  any  institution  or  ADR
Centre.  In that case provisions of sections 65 to 81 of  the  Act  of  1996
shall apply and in case conciliation under section 18(2) is not  successful,
Council shall either itself take up the dispute for arbitration or refer  it
to some other Centre  or  institution  for  arbitration  and  thereupon  the
provisions of the Act of 1996 shall apply.

11.   Section 36 of the Act of 1996 provides that once the time  for  filing
application to set aside an arbitral award under  section  34  has  expired,
the same shall be enforced in accordance with the provisions of the  CPC  as
if it were a decree of the court. Section 36(1) is extracted hereunder :

“36. Enforcement.— (1) Where the time  for  making  an  application  to  set
aside the arbitral award under section 34 has expired, then, subject to  the
provisions of sub-section (2), such award shall be  enforced  in  accordance
with the provisions of the Code of Civil Procedure, 1908  (5  of  1908),  in
the same manner as if it were a decree of the court.
(2) Where an application to set aside the arbitral award has been  filed  in
the Court under section 34, the filing of such an application shall  not  by
itself render that award unenforceable, unless the Court grants an order  of
stay of the operation of the said arbitral  award  in  accordance  with  the
provisions of sub-section (3), on  a  separate  application  made  for  that
purpose.
(3) Upon filing of an application under sub-section  (2)  for  stay  of  the
operation of the arbitral award, the Court may, subject to  such  conditions
as it may deem fit, grant stay of the operation of such  award  for  reasons
to be recorded in writing:
Provided that the Court shall, while considering the application  for  grant
of stay in the case of an arbitral award for  payment  of  money,  have  due
regard to the provisions for grant of stay  of  a  money  decree  under  the
provisions of the Code of Civil Procedure, 1908 (5 of 1908).”

      No doubt about it that  by  virtue  of  the  provisions  contained  in
section 18(3) of the Act of 2006, the provisions contained in section 36  of
the Act of 1996 are clearly applicable and it is permissible to execute  the
arbitral award in accordance with the procedure prescribed for execution  of
a decree under the CPC.

12.    However,  the  question  in  the  instant  case  is  whether  it  was
permissible to the State Government  to  enact  Rule  5  of  the  Rules  for
recovery of the amount as arrears of land revenue and whether speedy  remedy
could have been provided under the Rules  framed  under  the  Act  of  2006,
notwithstanding the remedy as provided in section 36 of the Act of 1996  for
executing the arbitral award as a decree in accordance with  the  provisions
of the CPC, while providing  remedy  the  State  has  exceeded  its  ken  of
powers.

13.   Section 30 of the Act of 2006 extracted above clearly  authorizes  the
State Government to frame the rules to carry out the provisions of  the  Act
and the power is general, as is apparent  from  reading  of  section  30(1),
30(2) and 30(2)(b). The objective of the Act is  to  provide  protection  to
the  micro,  small  and  medium  enterprises   and   to   facilitate   their
development. In order to carry out the objective of the Act speedy  recovery
mechanism has been provided under Rule 5  of  the  Rule  by  providing  that
amount awarded in an arbitral award can be  recovered  as  arrears  of  land
revenue. No doubt that Rule 5 is inconsistent with the provisions  contained
in section 36(1) of the Act of 1996 which provides recovery mechanism  under
Order 21 of CPC as a decree, but, in the matter of providing such  remedies,
it is open to legislate different remedies which may be inconsistent. It  is
a question of electing a remedy. Election of a remedy for  recovery  of  the
amount  would  depend  upon  the  choice  of  the  award-holder.  Both   the
provisions i.e. section 36 of the Act of 1996 as  well  as  Rule  5  of  the
Rules of 2006 intend to recover the amount though by  different  procedures.
Intendment of provisions is same. There is  no  question  of  any  prejudice
being caused to the judgment debtor.

14.   In Bihar State  Co-operative  Marketing  Union  Ltd.  v.  Uma  Shankar
Sharan & Anr. (1992) 4 SCC 196 question arose of plurality of  the  remedies
provided under sections 40 and  48  of  the  Bihar  and  Orissa  Cooperative
Societies Act, 1935. Both the provisions may be attracted to a case. It  was
held that application of section 40 will not exclude  operation  of  section
48. It is only a question where one of the provisions has to be opted.  This
Court has further held that when two remedies are provided under  a  statute
even if inconsistent, would continue to be in operation until  one  of  them
is  elected  for  application.  Even  if  the  two  remedies  happen  to  be
inconsistent, they continue for the person concerned to choose  from,  until
he elects one of them, for commencing an action. As no action under  section
40 was taken,  this  Court  held  that  section  48  was  available  to  the
appellant for recovery of the loss. This Court in  Bihar  State  Cooperative
Marketing Union Ltd. (supra) has laid down thus :

“6. Validity of plural remedies, if  available  under  the  law,  cannot  be
doubted. If any standard book on the subject is examined, it will  be  found
that the  debate  is  directed  to  the  application  of  the  principle  of
election, where two or more remedies are available to a person. Even if  the
two remedies happen  to  be  inconsistent,  they  continue  for  the  person
concerned to choose from, until he elects one of them, commencing an  action
accordingly. In the present case there is no such problem as no steps  under
Section 40 were ever taken by the appellant. The provisions  of  Section  48
must, therefore, be held to be available to the appellant  for  recovery  of
the loss.
7. Our view that a matter which may attract  Section  40  of  the  Act  will
continue to be governed by Section 48 also if the necessary  conditions  are
fulfilled, is consistent with the decision of this Court in Prem Jeet  Kumar
v. Surender Gandotra arising under the  Delhi  Co-operative  Societies  Act,
1972. The two Acts are similar and Sections 40 and 48 of the Bihar  Act  and
Sections 59 and 60 of the Delhi  Act  are  in  pari  materia.  The  reported
judgment followed an earlier decision of this Court in  Pentakota  Srirakulu
v. Co-operative Marketing Society Ltd. We accordingly  hold  that  the  High
Court was in error  in  assuming  that  the  application  of  provisions  of
Section 48 of the Bihar Act could not be applied to  the  present  case  for
the reason that Section 40 was attracted.”


      It is apparent from the aforesaid dictum of this Court that  providing
of plural remedies is valid when two or more remedies  are  available  to  a
person even if inconsistent, they are valid. It is for the person  to  elect
one of them and there  is  no  question  of  repugnancy  in  providing  such
remedy.

15.   In “Principles of Statutory Interpretation”  by  Justice  G.P.  Singh,
14th Edn. while dealing with the question of inconsistency  and  repugnancy,
it has been observed that harmonious construction has to be adopted and  the
principle  that  special  provision  excludes  the  application  of  general
provision has not been applied when two provisions deal  with  the  remedies
for the reason that the validity of plural remedies cannot be doubted,  even
if  the  two  remedies  are  inconsistent,  court  has  to   harmonize   the
provisions. Following discussion has been made :

“(b)  Inconsistency and repugnancy to be avoided; harmonious construction
      It has already been seen that a statute must be read as  a  whole  and
one provision of the  Act  should  be  construed  with  reference  to  other
provisions in the same Act so as to make consistent enactment of  the  whole
statute.  Such a construction has the merit of  avoiding  any  inconsistency
or repugnancy either within a section or between a section and  other  parts
of the statute.  It is the duty of the courts to avoid  “a  head  on  clash”
between two sections of the same Act and, “whenever it  is  possible  to  do
so,  to  construe  provisions  which  appear  to  conflict  so   that   they
harmonise”. Accordingly, the provisions  of  the  Maharashtra  Regional  and
Town Planning Act, 1966, were read together by the Supreme Court  and  after
noting the purpose of  the  Act.   The  Act  was  held  not  to  envisage  a
situation of conflict, and therefore, the edges were required to  be  ironed
out to read those provisions of the Act which were slightly incongruous,  so
that all of them are read in consonance with the object of  the  Act,  which
is to bring about  orderly  and  planned  development.   It  should  not  be
lightly assumed that “Parliament had given with one hand what it  took  away
with the other”.  The provisions of one section of a statute cannot be  used
to  defeat  those  of  another  “unless   it   is   impossible   to   effect
reconciliation between them”.  The same  rule  applies  in  regard  to  sub-
sections of a section.   In  the  words  of  Gajendragadkar,  J.  “The  sub-
sections  must  be  read  as  parts  of  an  integral  whole  and  as  being
interdependent; an attempt should be made in construing  them  to  reconcile
them if it is reasonably possible to do so, and to  avoid  repugnancy”.   As
stated by Venkatarama Aiyer, J., “The rule of construction is  well  settled
that when  there  are  in  an  enactment  two  provisions  which  cannot  be
reconciled  with  each  other,  they  should  be  so  interpreted  that,  if
possible, effect should be given to both.  This is  what  is  known  as  the
rule of harmonious construction”.  That, effect should be given to both,  is
the very essence of the rule.  Thus a construction that reduces one  of  the
provisions  to  a  “useless  lumber”  or  dead  letter”  is  not  harmonious
construction.  To harmonise is not to destroy.  A familiar approach  in  all
such  cases  is  to  find  out  which  of  the  two  apparently  conflicting
provisions is more general and which is more specific and  to  construe  the
more general one as to exclude the more specific.  The question  as  to  the
relative nature of the provisions general or special has  to  be  determined
with reference to the area and extent of their application either  generally
or specially in particular situations. The principle  is  expressed  in  the
maxims  Generalia  specialibus  non  derogant,   and  Generalibus   specilia
derogant. If a special provisions is made on a certain matter,  that  matter
is excluded from the  general  provision.   Apart  from  resolving  conflict
between two provisions in the Act,  the  principle  can  also  be  used  for
resolving a conflict between a provision in the Act and a  rule  made  under
the Act.  Further, these principles have also been applied  in  resolving  a
conflict between two different Acts and two provisions in  the  Constitution
added by two different Constitutions Amendment Acts and in the  construction
of statutory rules and statutory orders.  But the principle, that a  special
provision on a matter excludes the application of  a  general  provision  on
that matter, has  not  been  applied  when  the  two  provisions  deal  with
remedies, for validity of plural remedies cannot be doubted.   Even  if  the
two remedies happen  to  be  inconsistent,  they  continue  for  the  person
concerned to choose from. Until he elects one of them.”


16.   Thus, the submission raised by learned senior  counsel  on  behalf  of
the appellant that Rule 5 is inconsistent and repugnant  to  the  provisions
of section 36 of the Act of 1996 cannot withstand judicial scrutiny  and  is
liable to be rejected on the anvil of the aforesaid reasoning.

17.   This Court while considering  the  provisions  of  Securitisation  and
Reconstruction of Financial Assets  and  Enforcement  of  Security  Interest
Act, 2002 (SARFAESI Act) in Mardia Chemicals Ltd. & Ors. v. Union  of  India
(2004) 4 SCC 311 has held that secured  interest  can  be  enforced  without
intervention of the court. This Court has also laid down  that  there  is  a
presumption  of  constitutionality  in  favour  of  the  legislation.  While
considering presumption in favour of such legislation it would be  necessary
to see that the person aggrieved gets a fair deal  at  the  hands  of  those
vested with power under such legislation. This  Court  also  considered  the
question whether the SARFAESI Act was uncalled for and a superimposition  of
an undesired law in the light of operation of the Recovery of Debts  Due  to
Banks and Financial Institutions Act, 1993 in  the  field.  This  Court  has
laid down that given the level of indebtedness  and  NPAs  on  the  balance-
sheets of banks and financial institutions, the time taken for  recovery  of
debts via the civil courts, the importance of liquid and solvent  banks  and
financial institutions to economic progress, especially in the  present  day
global economy with a need to  give  up  old  and  conventional  methods  of
financing and recovery of debts, and the failure of the 1993  Act  to  bring
about the desired results, it could not be said that a  step  taken  towards
securitization of debts and to evolve means for faster recovery of NPAs  was
not called for.  This Court has also laid down that primacy is to  be  given
to public interest over private interest. Thus, the  provision  of  recovery
outrightly, without recourse  to  the  Civil  Court,   was  upheld.  In  the
instant case, the recovery of arrears of land revenue has been  resorted  to
after adjudication process when arbitral award had been passed and  when  it
is not objected to within the time prescribed under section 34  of  the  Act
of 1996. Thus, the procedure cannot be said to be illegal  or  arbitrary  in
any manner and cannot  be  said  to  be  violative  of  Article  14  of  the
Constitution, as contended by the appellant.   On  the  basis  of  aforesaid
reasoning it is clear that Code  of  Civil  Procedure  cannot  be  the  only
remedy.  It is open to legislate recovery mechanism without interference  of
Civil Court.

18.   The submission was raised on behalf of the appellant that Order 21  of
the CPC provides more safeguards under different rules, which  are  referred
to above, to a judgment debtor to raise various kinds of objections to  file
suits and has a right to object also at various  stages.  No  doubt  that  a
detailed procedure is provided under the CPC. But by now it  is  well  known
that after a decree is obtained, it has become more difficult to ensure  its
speedy execution due to misuse of the provisions  by  unscrupulous  judgment
debtors of  a detailed procedure prescribed for execution  of  a  decree  in
CPC which was never envisaged. Thus, providing a speedy recovery by  way  of
arrears of land revenue, in fact, was the need of the day  and  Rule  5  has
been rightly enacted to ensure speedy recovery and  to  ensure  that  small,
micro and medium industries do not suffer.

19.   We find no force in the submission  that  the  recovery  procedure  as
arrears of land revenue is harsh. It is quite reasonable and is provided  in
various enactments for recovery of the sums due.  The  procedure  cannot  be
said to be illegal, arbitrary, onerous or harsh in any manner.

20.   Learned counsel appearing  on  behalf  of  the  appellant  has  placed
reliance on the  decision  in  Agricultural  Market  Committee  v.  Shalimar
Chemical Works Ltd. (1997) 5 SCC 516 which has been laid down thus :

“24. The power of delegation is a constituent  element  of  the  legislative
power as a whole under Article 245 of the Constitution  and  other  relative
Articles and when the Legislatures enact laws to meet the challenge  of  the
complex  socio-economic  problems,  they  often  find  it   convenient   and
necessary to delegate subsidiary or ancillary powers to delegates  of  their
choice for carrying out the policy laid down by the  Acts  as  part  of  the
Administrative Law. The Legislature has to lay down the  legislative  policy
and prin-ciple to afford guidance for carrying out the  said  policy  before
it delegates its subsidiary powers in that behalf (See: Vasantlal  Maganbhai
Sanjanwala v. The State of Bombay and Others, [1961] 1 SCR 341.  This  Court
in another  case,  namely, The  Municipal  Corporation  of  Delhi  v.  Birla
Cotton, Spinning and Weaving Mills, Delhi and Another, AIR  (1968)  SC  1232
as also in an earlier decision in In Re : The  Delhi  Laws  Act,  1912,  The
Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part  C  States  (Laws)
Act, 1950, [1951] SCR 747 has laid down the principle that  the  Legislature
must retain in its own hands the essential legislative  functions  and  what
can be delegated is  the  task  of  subordinate  legislation  necessary  for
implementing the purposes and objects of the Act concerned.
25. In Avinder Singh v. State of Punjab, [1979] 1 SCC 137, Krishna Iyer,  J.
laid down the following tests for valid  delegation  of  legislative  power.
These are :
"(1) the legislature cannot efface itself :
(2) it cannot delegate the plenary or the essential legislative function;
(3) even if  there  be  delegation,  Parliamentary  control  over  delegated
legislation should be a living continuity as a constitution-al necessity."
It was further observed as under :
"While what constitutes an essential feature cannot be delineated in  detail
it certainly cannot include a change  of  policy.  The  legislature  is  the
master of legislative policy and if the delegate is free  to  switch  policy
it may be usurpation of legislative power itself."
26. The principle which,  therefore,  emerges  out  is  that  the  essential
legislative function  consists  of  the  determination  of  the  legislative
policy and the Legislature cannot abdicate  essential  legislative  function
in favour of another. Power to make subsidiary legislation may be  entrusted
by the Legislature to  another  body  of  its  choice  but  the  Legislature
should, before delegating, enunciate either  expressly  or  by  implication,
the policy and the principles for  the  guidance  of  the  delegates.  These
principles also apply to Taxing Statutes. The effect of these principles  is
that the delegate which has been authorised to  make  subsidiary  Rules  and
Regulations has to work within the scope of its authority and  cannot  widen
or constrict the scope of the Act or the policy  laid  down  thereunder.  It
cannot, in the garb of making Rules, legislate on the field covered  by  the
Act and has to restrict itself to the mode of implementation of  the  policy
and purpose of the Act.”

      This Court has laid down that the legislature  has  to  lay  down  the
legislative policy to delegate for carrying out the said  policy.  What  can
be delegated is the  task  of  the  subordinate  legislation  necessary  for
implementing the purposes and objects of the Act. In  the  instant  case  by
exercising the rule making power conferred under Section 30, the purpose  of
the Act of 2006 is being  protected.  The  rule  intends  to  implement  the
object. It cannot be said that authority has been exceeded  nor  it  can  be
said that the scope of the Act has been widened  or  constricted  under  the
garb of rule making power. Object of both provisions is to ensure recovery.

21.   Reliance has also been placed on a  decision  of  this  Court  in  Dr.
Mahachandra Prasad Singh v.  Chairman,  Bihar  Legislative  Council  &  Ors.
(2004)  8  SCC  747  in  which  this  Court  has  observed  that   delegated
legislations are subject to certain fundamental factors.  The  delegatee  is
not intended  to  travel  wider  than  the  object  of  the  legislature.  A
delegatee cannot extend the scope or general operation of the enactment  but
power is strictly ancillary. This Court has laid down thus:

“13. It may be noted that under Paragraph 8, the Chairman or the Speaker  of
a House is empowered to make rules for giving effect to  the  provisions  of
the Tenth Schedule. The rules being delegated  legislation  are  subject  to
certain  fundamental  factors.   Underlying   the   concept   of   delegated
legislation is the basic principle that the  legislature  delegates  because
it cannot directly exert its will in every detail. All it  can  in  practice
do is to lay down  the  outline.  This  means  that  the  intention  of  the
legislature, as indicated in the outline (that is the  enabling  Act),  must
be the prime guide to the meaning of delegated legislation  and  the  extent
of the power to make it. The true extent of  the  power  governs  the  legal
meaning of the delegated  legislation.  The  delegate  is  not  intended  to
travel wider than the object of the legislature. The delegate’s function  is
to serve and promote that object, while at all times remaining true  to  it.
That is the rule of primary intention. Power delegated by an enactment  does
not enable the authority by regulations  to  extend  the  scope  or  general
operation of the enactment but is strictly ancillary. It will authorise  the
provision of subsidiary means of carrying into effect  what  is  enacted  in
the statute itself and will cover what is incidental  to  the  execution  of
its specific provision. But such a power will not support attempts to  widen
the purposes of the Act, to add new and different  means  of  carrying  them
out or to depart  from  or  vary  its  ends.  (See  Section  59  in  chapter
“Delegated Legislation” in Francis Bennion’s Statutory  Interpretation,  3rd
Edn.) The aforesaid principle will apply with  greater  rigour  where  rules
have been  framed  in  exercise  of  power  conferred  by  a  constitutional
provision. No rules can be framed which have the effect of either  enlarging
or restricting the content and  amplitude  of  the  relevant  constitutional
provisions. Similarly, the rules should be interpreted consistent  with  the
aforesaid principle.”

      In our opinion Rule 5 of the  Rules  being  a  remedial  provision  is
ancillary. It is open to provide for an additional speedier remedy so as  to
carry out the objective of the Act.

22.   Reliance has also been placed on a decision  of  this  Court  in  B.K.
Srinivasan & Ors. v. State of Karnataka & Ors. (1987) 1  SCC  618  in  which
this Court considered the question that subordinate  legislation,  in  order
to take effect, must be published or promulgated in  some  suitable  manner.
Where the parent statute prescribes the mode of publication or  promulgation
that mode must be followed. Mode of publication of  subordinate  legislation
should be reasonable, which is necessary, only then  it  will  take  effect.
The question was entirely different. Even otherwise procedure  for  recovery
of land revenue is quite reasonable.

23.   Reliance has been placed on Academy of Nutrition  Improvement  &  Ors.
v. Union of India etc. (2011) 8 SCC 274 in which this Court  has  laid  down
thus :

“66. Statutes delegating the power to make rules follow a standard  pattern.
The relevant section would first contain a provision granting the  power  to
make rules to the delegate in general terms, by using the  words  “to  carry
out the provisions of this Act” or “to carry out the purposes of this  Act”.
This  is  usually  followed   by   another   sub-section   enumerating   the
matters/areas in regard to which specific power is delegated  by  using  the
words “in  particular  and  without  prejudice  to  the  generality  of  the
foregoing power, such rules may provide for all  or  any  of  the  following
matters”. Interpreting such provisions, this Court in a number of  decisions
has held that where power is conferred to make  subordinate  legislation  in
general terms, the subsequent particularization of  the  matters/topics  has
to be construed as merely illustrative and not limiting  the  scope  of  the
general power. Consequently, even  if  the  specific  enumerated  topics  in
Section 23(1-A) may not empower the Central Government to make the  impugned
rule (Rule 44-I), making of the rule can be justified with reference to  the
general power conferred on  the  Central  Government  under  Section  23(1),
provided the rule does not travel beyond the scope of the Act.
“But even a general power to make rules or regulations for carrying  out  or
giving effect to the Act, is strictly ancillary in nature and cannot  enable
the authority on whom the power is conferred to extend the scope of  general
operation of the Act. Therefore, such a power ‘will not support attempts  to
widen the purposes of the Act, to add new and different  means  to  carrying
them out, to depart from or vary its terms’.”

      Considering the question of power  of  food  authority  under  section
7(iv) to ban a food article in interest of public  vis-à-vis  power  of  the
Central Government under section 23 to make  rule,  it  was  held  that  the
Central Government cannot exercise power under section 23 to ban use of non-
iodised salt  for  human  consumption.  Thus,  provision  of  Rule  44-I  of
Prevention of Food Adulteration Rules, 1955 was  held  to  be  ultra  vires.
Rule 44-I was wholly outside the scope of the Act. It was held not to  be  a
rule made or required to be made to carry out  the  provisions  of  the  Act
having regard to its object and the  scheme  whereas  the  position  in  the
instant case is juxtaposed.  Hence  the  decision  is  of  no  help  to  the
appellants.

24.   Similarly reliance has been placed on a  decision  of  this  Court  in
General Officer Commanding-in-Chief & Anr. v. Dr. Subhash  Chandra  Yadav  &
Anr. (1988) 2 SCC 351. Rules  were  framed  enabling  the  transfer  of  one
Cantonment Board’s employee to another. It was held  that  service  was  not
transferable as such Rule 5 was ultra vires  of  section  280(2)(c)  of  the
Cantonments Act, 1924. On facts the case has no application.

25.   Reliance has also been placed on International Airports  Authority  of
India v. K.D. Bali & Anr. (1988) 2 SCC 360 in which it has  been  laid  down
that when subordinate legislation is in conflict with the  Parent  Act  then
it  must  give  way  to  the  substantive  statute.  The  principle  has  no
application in the case of remedial statutory  provisions  as  plurality  of
inconsistent remedies can always be provided and only one remedy has  to  be
chosen. In Avinder Singh & Ors. v. State of Punjab & Ors. (1979) 1 SCC  137,
it has been laid down that a delegate is not  free  to  switch  policy  laid
down by the Legislature.   On  the  anvil  of  the  aforesaid  reasons,  the
decision is of no utility to the cause espoused.

26.   Reliance has also been placed on  Suraj  Mall  Mohta  &  Co.  v.  A.V.
Visvanatha Sastri & Anr. (1955) 1 SCR 448 in  which  it  has  been  observed
that if  persons dealt  with  by  the  impugned  Act  are  deprived  of  the
substantial and valuable privileges which they would otherwise have if  they
were dealt with under the Indian Income-Tax Act, in that situation it is  no
defense to say that discriminatory procedure also  advances  the  course  of
justice. The matter has to be judged from the point of view of the  ordinary
reasonable man and not from  the  point  of  view  of  the  Government.  The
ordinary reasonable man would say, when the stakes  are  heavy  and  serious
charge of evasion of  income-tax  are  made  against  him,  why  one  person
similarly placed should have the advantage  substantially of  the  procedure
prescribed by the Indian Income Tax  Act,  while  another  person  similarly
situated be deprived of it. The ratio of said decision  has  no  application
to the instant case,  provision  in  question  being  remedial  one  and  no
substantial or valuable privilege is being deprived of  by  Rule  5.  It  is
only  procedural  provision  and  intends  to  simplify  the  procedure   of
execution, once arbitral award is passed.

27.   Reliance has also been placed on Shree Meenakshi Mills  Ltd.,  Madurai
etc. v. Sri A.V. Visvanatha Sastri & Anr. AIR  1955  SC  13  in  which  this
Court has laid down thus :

“3. The procedure prescribed by the Act for making the  investigation  under
its provisions is  of  a  summary  and  drastic  nature.  It  constitutes  a
departure from the ordinary  law  of  procedure  and  in  certain  important
aspects is detrimental to the  persons  subjected  to  it  and  as  such  is
discriminatory. The substantial differences in the normal procedure  of  the
Income Tax Act for catching escaped income and in the  procedure  prescribed
by Act 30 of 1947, were fully discussed by this Court in Suraj Mal Mohta  v.
Sri  A.V.  Visvanatha  Sastri  AIR  1954  SC  545  and  require  no  further
discussion here.”

       In  said  case,  there  was  substantial  difference  in  the  normal
procedure of the income-tax Act for  catching  escaped  income  and  in  the
procedure  prescribed  by  Act  30  of  Taxation  on  Income  (Investigation
Commission) Act, 1947. The classification made was held to be  impermissible
without any rationale. Such is not the situation in the  instant  case.  The
procedural provision of recovery of arrears of land revenue cannot  be  said
to be prejudicial to the appellants.  Once adjudication  of  dues  has  been
made it was expected  of the appellant to honour  it  after  lapse  of  time
under Section 34 of Act of 1996.

28.    The  decision  in  Maganlal  Chhaganlal  (P)   Ltd.   v.    Municipal
Corporation of Greater Bombay  &  Ors.  (1974)  2  SCC  402  has  also  been
referred to in which this Court has laid down thus :

“14. To summarise: Where a statute providing for a  more  drastic  procedure
different from the ordinary procedure covers the whole field covered by  the
ordinary procedure, as in Anwar Sarkar’s case and Suraj  Mall  Mohta’s  case
without any guidelines as to the class of cases in  which  either  procedure
is to be resorted to, the statute will be hit by  Art.14.   Even  there,  as
mentioned in Suraj Mall Mohta’s case (supra)  a  provision  for  appeal  may
cure  the  defect.  Further,  in  such  cases  if  from  the  preamble   and
surrounding  circumstances,  as  well  as  the  provisions  of  the  statute
themselves explained  and  amplified  by  affidavits,  necessary  guidelines
could be inferred as in Saurashtra case (supra)  and  Jyoti  Pershad’s  case
(supra) the statute will not  be  hit  by  Art.14.   Then  again  where  the
statute itself covers only a class of cases as in Haldar’s case (supra)  and
Bajoria’s case (supra) the statute will not be bad.  The fact that  in  such
cases the executive will choose which  cases  are  to  be  tried  under  the
special procedure will not affect the validity of the  statute.   Therefore,
the contention that the mere availability of  two  procedures  will  vitiate
one of them,  that is the special procedure, is not supported by  reason  or
authority.”

      In Maganlal Chhaganlal (supra), this Court considered the  alternative
procedure for eviction of unauthorized  occupants  on  Government  premises;
one by suit and the other by summary procedure alleged to  be  more  drastic
and onerous under Chapter  V-A of  the  Bombay  Municipal  Corporation  Act,
1888 or the Bombay Government Premises Act, 1955.

      The procedure for recovery of land revenue envisaged under Rule  5  of
the Rules could not be said to be discriminatory, it being quite  reasonable
procedure. It cannot be  said  to  be  harsh  or  drastic  but  is  quite  a
reasonable procedure and it furthers the mandate of the Act. The  difference
between the procedure of execution of Rule 5 and that of CPC cannot be  said
to be unconscionable so as to attract the vice of discrimination.

29.   Resultantly, the appeal is found to be without any merit and the  same
is hereby dismissed. IA No. 6 of 2017 has been  filed  for  de-freezing  the
bank account of the appellant. In case,  the  appellant  has  deposited  the
amount of Rs.5,29,58,937/- as per the fresh recovery citation No.484002  and
the interest as well, till the date when the amount was deposited, it  would
be open to the  concerned  Tehsildar  to  de-freeze  the  account  on  being
satisfied that the amount has been so deposited. The cost is  quantified  at
Rs.50,000/- to be deposited  in  Advocates  on  Record  Welfare  Association
within six weeks.



                                                                ……………………….J.
                                                               (Arun Mishra)



                                              ............................J.
                                                           (S. Abdul Nazeer)
NEW DELHI
APRIL 17, 2017

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