TaxTMI 
TaxTMI 
1994 (7) TMI 368
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....adu are against the judgment of the Madras High Court. 2. Section 52-A of the Act reads as under : - -A. Recovery of sums due to the Tamil Nadu Agro- Industries Corporation and other Corporations, etc. - Without prejudice to any other mode of recovery which is being taken or may be taken, all loans granted and all advances made to any person- (i) by the Tamil Nadu Agro-Industries Corporation Limited, Madras, or (ii) by such other Corporation (the shares of which have been contributed, underwritten or guaranteed by the State Government) as may be notified in this behalf by the State Government in the Tamil Nadu Government Gazette, or (iii) from out of the Amalgamated Tamil Nadu Shares of the Post War Services Reconstruction Fund and the Special Fund for Reconstruction and Rehabilitation of Ex- servicemen, together with interest on such loans and advances, and all sums due to the Corporations mentioned in Clauses (i) and (ii) may be recovered in the same manner as arrears of land revenue under the provisions of this Act. 3. In exercise of the powers under Section 52-A(ii) the Tamil Nadu Government have from time to time notified vari....
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....re the High Court relied upon the following Entries in List II and III, Seventh Schedule, Constitution of India in support of his contention that the Tamil Nadu Legislature was competent to enact Section 52-A of the Act: - Entry 3 List II (As it was before Constitution (Forty-second Amendment) Act, 1976). Administration of justice; Constitution and organisation of all Courts, except the Supreme Court and the High Court; Officers and servants of the High Court; procedure in rent and revenue Courts; fees taken in all Courts except the Supreme Court. Entry 43 List II: Public debt of the state. Entry 45 List II: Land revenue, including the assessment and collection of revenue, the maintenance of land records survey for revenue purposes and records of rights, and alienation of revenues. Entry 43 List III: Recovery in State of Claims in respect of land-revenue and sums recoverable as such arrears, arising outside that State. 8. So far as Entry 3 List II is concerned the Advocate-General relied upon the judgment of the Calcutta High Court in Mukherjee and Co. v. Union of India [1964]51ITR366(Cal) . The question of competenc....
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.... (supra) was whether the Legislature of the State of Bombay had jurisdiction to create an additional civil court for Greater Bombay having jurisdiction to try, receive and dispose of all suits and other proceedings of a civil nature not exceeding a certain value. The precise contention raised was that the Act was ultra vires the Legislature of the State of Bombay because it conferred jurisdiction on the new court not only in respect of the matters which the Provincial Legislature was competent to legislate upon, but also in regard to matters in respect of which only the Central or the Federal Legislature could legislate. Mehr Chand Mahajan, J. interpreted the expression "administration of justice and Constitution and organisation of all courts" in the following words:- It seems to me that the legislative powers conferred on the Provincial Legislature by Item of List II has been conferred by use of language which is of the widest amplitude (administration of justice and Constitution and organisation of all courts). It was not denied that the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of courts established for the purpose ....
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....ncial subject on which only the Provincial Legislature can legislate. The same remark applies to "constitution and organisation of all courts except the Federal Court." The expression "administration of justice" has a wide meaning, and includes administration of civil as well as criminal justice, and in my opinion entry 1 in List II, which I have quoted, is a complete and self contained entry. In this entry, no reference is made to the jurisdiction and powers of courts, because the expressions "administration of justice" and "constitution and organisation of courts", which have been used therein without any qualification or limitation, are wide enough to include the power and jurisdiction of courts, for how can justice be administered if courts have no power and jurisdiction to administer it, and how can courts function without any power or jurisdiction. Once this fact is clearly grasped, it follows that, by virtue of the words used in entry 1 of List II, the Provincial Legislature can invest the courts constituted by it with power and jurisdiction to try every cause or matter that can be dealt with by a court of civil or criminal jurisdiction, and that the expression "administrati....
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.... functions and can legitimately claim corresponding powers which are described as legislative, executive and judicial powers. Under our Constitution, the judicial functions and powers of the State are primarily conferred on the ordinary courts which have been constituted under its relevant provisions. The Constitution recognised a hierarchy of courts and to their adjudication are normally entrusted all disputes between citizens and citizens as well as between the citizens and the State. These courts can be described as ordinary courts of civil judicature. They are governed by their prescribed rules of procedure and they deal with questions of fact and law raised before them by adopting a process which is described as judicial process. The powers which these courts exercise, are judicial powers, the functions they discharge are judicial functions and the decisions they reach and pronounce are judicial decisions.... The main and the basic test however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State's inherent power exercised in discharging its judicial funct....
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....lding that Section 52-A of the Act was enacted by the Tamil Nadu Legislature under Entry 11-A List III Schedule 7 Constitution of India. 16. We may examine the question from another angle. Section 52-A of the Act specifically provides for the recovery of "all loans granted and all advances made to any person" by the corporations covered under the Act. The proceedings initiated under the Act are only for recovery of loans granted to the respondents by various corporations. Section 52-A of the Act, therefore, is a legislation on the subject "money lending" and "money lenders" under Entry 30 of the State List which is in the following terms :- Money-lending and money-lenders; relief of agricultural indebtedness. 17. Section 52-A of the Act is passed with the object of providing a speedier remedy to the State-owned corporations to realise the loan advanced by them. While advancing loans the corporations do not act as ordinary bankers with a view to earn interest. The loans are advanced as a financial assistance to establish an industry, develop agriculture or any other purpose which would advance the well being of the people. Ordinarily the amounts so advanced are repayable in....
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....s before the High Court. The appellant shall be entitled to costs which we quantify as Rs. 5,000 to be paid by each of the respondents- petitioners in the writ petitions before the High Court. 20. Special leave granted. 21. We have, today, pronounced judgment in C.A. Nos. 2620-64 of 1981. Since we have allowed those appeals this appeal has to be allowed. For the reasons recorded and the conclusions reached in C.A. Nos. 2620-64 of 1981 we allow this appeal, set aside the impugned judgment of the learned single Judge and of the Division Bench of the High Court and dismiss the writ petition filed by the respondent-petitioner before the High Court with costs. We quantify the costs as Rs. 5,000. 22. We have pronounced judgment today in C.A. Nos. 2620-64 of 1981. For the reasons recorded therein these transferred cases have to be dismissed. We may, however, briefly deal with the controversy involved in these cases. 23. Bihar and Orissa Public Demands Recovery Act, 1914 (the Bihar Act) was amended by Act IV of 1974 thereby incorporating "any money payable to the State Bank of India" within the list of Public Demands set out in Schedule 1 to the Bihar Act. In these transferred ....
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....slate. In view of the interpretation given to this phrase by the Supreme Court, this power must necessarily include the power of enlarging or diminishing the jurisdiction of the Courts. The Bihar Legislature by the Amending Act IV of 1974 has merely enlarged the jurisdiction of the Certificate Officer so as to enable the State Bank of India and other Banks specified in the Schedule to take recourse to the speedier remedy provided under the Bihar and Orissa Public Demands Recovery Act. Possibly, this was done to enable the Banks to avoid the proverbial law's delay and to realise their claims speedily by the expeditious remedy provided by that Act. Whatever may be the reason for passing this legislation there cannot be any doubt that the amendment clearly comes under the Entry 11-A of the Concurrent List. The Amending Act 4 of 1974 has merely brought a dispute relating to money payable to the State Bank of India within the jurisdiction of the Certificate Officer. In effect, what has been done is to enlarge the jurisdiction of the Revenue Court. 25. The learned Judge dealt with the argument that the impugned provision of the Bihar Act was in relation to banking and, therefore, ....
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....e Concurrent List. If in pith and substance, it is a legislation in respect of a matter which comes within the ambit of the power of the State Legislature, then even though, it incidentally trenches upon a field reserved for the Parliament, the legislation will not be bad. In the instant case, there is an additional fact that the Act was reserved and has received the assent of the President"...." In my opinion, the legislation comes squarely within Entries 11-A and 13 of the Concurrent List. In pith and substance, the Amending Act 4 of 1974 passed by the Bihar Legislature had the effect of merely enlarging the jurisdiction of the Certificate Officer. By this amendment, the Bihar Legislature made an already existing speedy procedure of a Court established by it available to the State Bank of India and some other Banks. This legislation was within the competence of the Bihar Legislature and will not be bad even if it incidentally trenches upon the field reserved for the Parliament under List I of the Seventh Schedule. 26. We agree with the above quoted reasoning and the conclusions reached by the learned Judge of the Calcutta High Court and approve the same 27. In Sawar Mal Cho....