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Pandurang Ganpati Chaugule vs Vishwasrao Patil Murgud Sahakari … on 5 May, 2020

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE/ORIGINAL JURISDICTION

CIVIL APPEAL NO. 5674 OF 2009

PANDURANG GANPATI CHAUGULE … APPELLANT

VERSUS

VISHWASRAO PATIL MURGUD SAHAKARI
BANK LIMITED … RESPONDENT

WITH

CIVIL APPEAL NO. 5684 OF 2009
CIVIL APPEAL NO. 5682 OF 2009
CIVIL APPEAL NO. 5681 OF 2009
CIVIL APPEAL NO. 10871 OF 2010
CIVIL APPEAL NO. 5675 OF 2009
CIVIL APPEAL NO. 2384 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 25930 OF 2009)

CIVIL APPEAL NO. 4391 OF 2010
CIVIL APPEAL NO. 2385 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 24309 OF 2010)
CIVIL APPEAL NO. 7410 OF 2010
CIVIL APPEAL NO. 2386 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 29859 OF 2010)
WRIT PETITION (CIVIL) NO. 318 OF 2010
Signature Not Verified

Digitally signed by
JAYANT KUMAR ARORA
CIVIL APPEAL NOS. 2387­90 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 7295­7298 OF 2011)
Date: 2020.05.05
14:48:48 IST
Reason:

WRIT PETITION (CIVIL) NO. 41 OF 2011
WRIT PETITION (CIVIL) NO. 220 OF 2011
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WRIT PETITION (CIVIL) NO. 293 OF 2011
WRIT PETITION (CIVIL) NO. 306 OF 2011
CIVIL APPEAL NOS. 2391­92 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 22304­22305 OF 2011)
WRIT PETITION (CIVIL) NO. 338 OF 2011
WRIT PETITION (CIVIL) NO. 375 OF 2011
CIVIL APPEAL NOS. 2393­94 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 24479­24480 OF 2011)
WRIT PETITION (CIVIL) NO. 122 OF 2012
WRIT PETITION (CIVIL) NO. 199 OF 2012
CIVIL APPEAL NO. 2395 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 24276 OF 2012)
WRIT PETITION (CIVIL) NO. 250 OF 2012
WRIT PETITION (CIVIL) NO. 291 OF 2012
WRIT PETITION (CIVIL) NO. 386 OF 2012
WRIT PETITION (CIVIL) NO. 487 OF 2012
WRIT PETITION (CIVIL) NO. 537 OF 2012
WRIT PETITION (CIVIL) NO. 554 OF 2012
WRIT PETITION (CIVIL) NO. 36 OF 2013
WRIT PETITION (CIVIL) NO. 146 OF 2013
WRIT PETITION (CIVIL) NO. 138 OF 2013
WRIT PETITION (CIVIL) NO. 179 OF 2013
WRIT PETITION (CIVIL) NO. 192 OF 2013
WRIT PETITION (CIVIL) NO. 191 OF 2013
WRIT PETITION (CIVIL) NO. 112 OF 2013
WRIT PETITION (CIVIL) NO. 111 OF 2013
WRIT PETITION (CIVIL) NO. 151 OF 2013
WRIT PETITION (CIVIL) NO. 175 OF 2013
WRIT PETITION (CIVIL) NO. 181 OF 2013
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CIVIL APPEAL NOS. 2396­97 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NOS. 15634­15635 OF 2013)
CIVIL APPEAL NO. 2398 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 12916 OF 2013)
WRIT PETITION (CIVIL) NO. 201 OF 2013
WRIT PETITION (CIVIL) NO. 233 OF 2013
WRIT PETITION (CIVIL) NO. 236 OF 2013
WRIT PETITION (CIVIL) NO. 238 OF 2013
WRIT PETITION (CIVIL) NO. 253 OF 2013
WRIT PETITION (CIVIL) NO. 250 OF 2013
WRIT PETITION (CIVIL) NO. 248 OF 2013
WRIT PETITION (CIVIL) NO. 271 OF 2013
WRIT PETITION (CIVIL) NO. 265 OF 2013
WRIT PETITION (CIVIL) NO. 270 OF 2013
CIVIL APPEAL NO. 2399 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 17054 OF 2013)
CIVIL APPEAL NO. 2400 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 18777 OF 2013)
CIVIL APPEAL NO. 2401 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 18775 OF 2013)
WRIT PETITION (CIVIL) NO. 279 OF 2013
WRIT PETITION (CIVIL) NO. 266 OF 2013
WRIT PETITION (CIVIL) NO. 280 OF 2013
WRIT PETITION (CIVIL) NO. 284 OF 2013
WRIT PETITION (CIVIL) NO. 353 OF 2013
WRIT PETITION (CIVIL) NO. 469 OF 2013
WRIT PETITION (CIVIL) NO. 452 OF 2013
WRIT PETITION (CIVIL) NO. 588 OF 2013
CIVIL APPEAL NO. 2402 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 29720 OF 2013)
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CIVIL APPEAL NO. 2403 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 29721 OF 2013)
WRIT PETITION (CIVIL) NO. 758 OF 2013
WRIT PETITION (CIVIL) NO. 762 OF 2013
WRIT PETITION (CIVIL) NO. 761 OF 2013
WRIT PETITION (CIVIL) NO. 800 OF 2013
WRIT PETITION (CIVIL) NO. 753 OF 2013
WRIT PETITION (CIVIL) NO. 819 OF 2013
CIVIL APPEAL NO. 2404 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 35137 OF 2013)
WRIT PETITION (CIVIL) NO. 922 OF 2013
WRIT PETITION (CIVIL) NO. 1007 OF 2013
WRIT PETITION (CIVIL) NO. 5 OF 2014
WRIT PETITION (CIVIL) NO. 10 OF 2014
WRIT PETITION (CIVIL) NO. 1037 OF 2013
WRIT PETITION (CIVIL) NO. 1044 OF 2013
WRIT PETITION (CIVIL) NO. 1043 OF 2013
WRIT PETITION (CIVIL) NO. 1045 OF 2013
WRIT PETITION (CIVIL) NO. 40 OF 2014
WRIT PETITION (CIVIL) NO. 142 OF 2014
WRIT PETITION (CIVIL) NO. 169 OF 2014
WRIT PETITION (CIVIL) NO. 168 OF 2014
WRIT PETITION (CIVIL) NO. 352 OF 2014
CIVIL APPEAL NO. 2405 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 17935 OF 2015)
CIVIL APPEAL NO. …………… OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. ……….. OF 2020)
(@ CC NO. 7586 OF 2014)

WRIT PETITION (CIVIL) NO. 408 OF 2014
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WRIT PETITION (CIVIL) NO. 420 OF 2014
WRIT PETITION (CIVIL) NO. 421 OF 2014
WRIT PETITION (CIVIL) NO. 492 OF 2014
WRIT PETITION (CIVIL) NO. 712 OF 2014
WRIT PETITION (CIVIL) NO. 714 OF 2014
WRIT PETITION (CIVIL) NO. 795 OF 2014
WRIT PETITION (CIVIL) NO. 754 OF 2014
WRIT PETITION (CIVIL) NO. 827 OF 2014
WRIT PETITION (CIVIL) NO. 849 OF 2014
WRIT PETITION (CIVIL) NO. 838 OF 2014
CIVIL APPEAL NO. 2406 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 32589 OF 2014)
WRIT PETITION (CIVIL) NO. 26 OF 2015
WRIT PETITION (CIVIL) NO. 1020 OF 2014
WRIT PETITION (CIVIL) NO. 86 OF 2015
CIVIL APPEAL NO. 2407 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 7694 OF 2015)
WRIT PETITION (CIVIL) NO. 186 OF 2015
WRIT PETITION (CIVIL) NO. 733 OF 2015
WRIT PETITION (CIVIL) NO. 131 OF 2015
WRIT PETITION (CIVIL) NO. 264 OF 2015
WRIT PETITION (CIVIL) NO. 247 OF 2016
CIVIL APPEAL NO. 2408 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 27645 OF 2015)
WRIT PETITION (CIVIL) NO. 868 OF 2015
WRIT PETITION (CIVIL) NO. 858 OF 2015
WRIT PETITION (CIVIL) NO. 14 OF 2018
WRIT PETITION (CIVIL) NO. 68 OF 2018
WRIT PETITION (CIVIL) NO. 1062 OF 2018
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WRIT PETITION (CIVIL) NO. 1173 OF 2018
WRIT PETITION (CIVIL) NO. 1231 OF 2018
WRIT PETITION (CIVIL) NO. 1437 OF 2018
CIVIL APPEAL NO. 2409 OF 2020
(@ SPECIAL LEAVE PETITION (CIVIL) NO. 1877 OF 2019)
CIVIL APPEAL NO. 6662 OF 2019
CIVIL APPEAL NO. 1980­1983 OF 2019
WRIT PETITION (CIVIL) NO. 253 OF 2019
WRIT PETITION (CIVIL) NO. 254 OF 2019
WRIT PETITION (CIVIL) NO. 439 OF 2019
WRIT PETITION (CIVIL) NO. 431 OF 2019
WRIT PETITION (CIVIL) NO. 567 OF 2019
WRIT PETITION (CIVIL) NO. 736 OF 2019
WRIT PETITION (CIVIL) NO. 752 OF 2019
WRIT PETITION (CIVIL) NO. 910 OF 2019
WRIT PETITION (CIVIL) NO. 1027 OF 2019
WRIT PETITION (CIVIL) NO. 1043 OF 2019
WRIT PETITION (CIVIL) NO. 1035 OF 2019
WRIT PETITION (CIVIL) NO. 1232 OF 2019
WRIT PETITION (CIVIL) NO. 1355 OF 2019
WRIT PETITION (CIVIL) NO. 1331 OF 2019
WRIT PETITION (CIVIL) NO. 1339 OF 2019
WRIT PETITION (CIVIL) NO. 1353 OF 2019
WRIT PETITION (CIVIL) NO. 31 OF 2020
WRIT PETITION (CIVIL) NO. 62 OF 2020
WRIT PETITION (CIVIL) NO. 72 OF 2020
WRIT PETITION (CIVIL) NO. 134 OF 2020
WRIT PETITION (CIVIL) NO. 207 OF 2020
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WRIT PETITION (CIVIL) NO. 271 OF 2020
WRIT PETITION (CIVIL) NO. 289 OF 2020
WRIT PETITION (CIVIL) NO. 292 OF 2020
WRIT PETITION (CIVIL) NO. 373 OF 2020

JUDGMENT

Arun Mishra, J.

1. The matters have been referred in view of conflicting decisions in

Greater Bombay Coop. Bank Ltd. v. United Yarn Tex (P) Ltd. and Ors. 1,

Delhi Cloth General Mills Co. Ltd. v. Union of India and Ors. 2,

T. Velayudhan Achari and Anr. v. Union of India and Ors. 3, and Union

of India and Anr. v. Delhi High Court Bar Association and Ors. 4. The

question relates to the scope of the legislative field covered by Entry 45

of List I viz. ‘Banking’ and Entry 32 of List II of the Seventh Schedule

of the Constitution of India, consequentially power of the Parliament to

legislate. The moot question is the applicability of the Securitisation

and Reconstruction of Financial Assets and Enforcement of Security

Interest Act, 2002 (for short, ‘the SARFAESI Act’) to the co­operative

banks.

1. The Parliament’s competence to amend Section 2(c) of the

SARFAESI Act by adding sub­clause ‘(iva) ­ a multi­State co­operative

1 (2007) 6 SCC 236
2 (1983) 4 SCC 166
3 (1993) 2 SCC 582
4 (2002) 4 SCC 275
8

bank’ has also been questioned. The issue arises whether the

definition of ‘banking company’ contained in Section 5(c) of the

Banking Regulation Act, 1949 (for short, ‘the BR Act, 1949’) covers co­

operative banks registered under the State law and also multi­State

co­operative societies under the Multi­State Co­operative Societies Act,

2002 (for short, ‘the MSCS Act’). Consequently, (i) whether co­

operative banks at State and multi­State level are co­operative banks

within the purview of the SARFAESI Act ? and (ii) whether provisions

of the SARFAESI Act apply to the co­operative banks registered under

the MSCS Act ?

2. Section 56(c)(i)(cci) is contained in Part V of the BR Act, 1949,

and was brought into force on 1.3.1966. It defines ‘co­operative bank’

to mean a ‘state co­operative bank,’ a ‘central co­operative bank,’ and

a ‘primary co­operative bank.’ By the notification issued in 2003, the

co­operative bank was brought within the class of banks entitled to

seek recourse to the provisions of the SARFAESI Act. Section 2(1)(c)

(iva) was inserted into the SARFAESI Act, w.e.f. 15.1.2013. Before

that, the co­operative bank and the multi­State co­operative bank took

recourse to the SARFAESI Act under the notification issued in 2003.

3. Writ petitions were filed questioning vires of the notification

dated 28.1.2003 issued under Section 2(1)(c)(v) of the SARFAESI Act

and the insertion of Section 2(1)(c)(iva) to the SARFAESI Act in 2013.
9

The backdrop history of litigation indicates that in Narendra Kantilal

Shah v. Joint Registrar, Co­operative Societies5, a Full Bench of the

Bombay High Court opined that term ‘banking company’ also means

co­operative bank within the meaning of Section 2(d) of the RDB Act,

1993. Hence, with effect from the date of constitution of Debts

Recovery Tribunal under RDB Act, 1993, the courts and authorities

under the Maharashtra Co­operative Societies Act, 1960, as also the

MSCS Act would cease to have jurisdiction to entertain the

applications submitted by the co­operative banks for recovery of their

dues. The decision in Narendra Kantilal Shah (supra) was set aside by

this Court in Greater Bombay Coop. Bank Ltd. (supra). This Court

opined that the co­operative banks established under the Maharashtra

Co­operative Societies Act, 1960 and Andhra Pradesh Co­operative

Societies Act, 1964, transacting the business of banking do not fall

within the meaning of ‘banking company’ as defined in Section 5(c) of

the BR Act, 1949. Therefore, the provisions of the Recovery of Debts

Due to Banks and Financial Institutions Act, 1993, now renamed as

The Recovery of Debts and Bankruptcy Act, 1993 (for short, ‘the RDB

Act, 1993’), by invoking the doctrine of incorporation do not apply to

the recovery of dues by co­operative banks from their members. The

field of co­operative societies cannot be said to have been covered by

the Central legislation by reference to Entry 45 of List I of the Seventh

5 AIR 2004 Bom 166
10

Schedule of the Constitution of India. Co­operative banks constituted

under the Co­operative Societies Acts enacted by the respective States

would be covered by ‘co­operative societies’ by Entry 32 of List II of the

Seventh Schedule of the Constitution of India. In the year 2004, the

Banking Regulation (Amendment) and Miscellaneous Provisions Act,

2004, was passed by the Union of India, amending various provisions

contained in the BR Act, 1949 retrospectively, w.e.f. 1.3.1966. On the

same anvil, the question posed is whether provisions can be applied to

recovery provisions carved out in the SARFAESI Act.

4. Writ Petition No.2672 of 2007 was filed by Khaja Industries,

challenging the invocation of the SARFAESI Act by Jalgaon Peoples

Co­operative Bank. The Bombay High Court dismissed the same. The

recourse to the proceedings under the SARFAESI Act was upheld. In

Rama Steel v. Union of India6, the decision in Khaja Industries was

followed. Against the decision of Bombay High Court, appeals have

been filed.

5. On 13.8.2008, Pandurang Ganpati Chougule – appellant,

questioned the action of Vishwasrao Patil Murgud Sahakari Bank

Limited under the SARFAESI Act before the Civil Judge in Spl. Civil

Suit No.226 of 2007. Deciding the preliminary issue, the Trial Court

held that it did not have the jurisdiction to decide the suit. The first

6 (2007) 6 Mah. L.J. 387
11

appeal preferred was dismissed. Against that, the appeal has been

preferred before this Court. A separate writ petition under Article 32

of the Constitution of India has also been filed, questioning the

invocation of the SARFAESI Act by issuing notices under Section 13

by co­operative banks. During the pendency of the matters, the

Central Government brought into force the Enforcement of Security

Deposit and Debts Law (Amendment) Act, 2012 (Act 1 of 2013),

amending the definition of Section 2(1)(c) of the SARFAESI Act; the

amendment has also been questioned in the writ petition filed in this

Court.

6. In Administrator, Shri Dhakari Group Co­operative Cotton Seal

Ors. v. Union of India, (Special Civil Application No.930 of 2001), the

Gujarat High Court struck down the notification dated 28.1.2003,

relying upon Greater Bombay Coop. Bank Ltd. (supra), same has also

been questioned in the appeal. Later on, Gujarat High Court in Neel

Oil Industries v. Union of India 7, rejected the challenge to the

Constitutional validity of clause (iva) ‘multi­State co­operative bank’

inserted by way of Amendment Act, 2013.

7. On 30.7.2015, the matter was referred to a larger Bench. After

that, on 26.2.2016, a three­Judge Bench referred the matter to a

larger Bench, due to conflicting decisions mentioned earlier of the

7 AIR 2015 Gujarat 171
12

three­Judge Bench of this Court.

ARGUMENTS:

8. Shri Devansh A. Mohta, learned counsel appearing on behalf of

the appellants, raised the following arguments:

(a) The scope of banking under Entry 45 of List I is to be interpreted

in light of the definition of expression ‘banking’ in terms of Section 5(b)

of the BR Act, 1949. He has referred to Rustom Cavasjee Cooper v.

Union of India8 in which this Court held that ‘banking’ under Entry 45

did not include ‘banker’ or ‘bank.’ Banking is an activity. Entry

pertains to the activity of banking alone. Section 5(b) read with

Section 6(1) of the BR Act, 1949, recognizes two kinds of activities that

a bank may undertake: (1) the banking business, i.e., ‘core banking

business’; and (2) any other business as provided in Section 6(1). He

has also referred to the decision in Mahaluxmi Bank Ltd. v. Registrar of

Companies, West Bengal9 in which the court considered the meaning

of ‘banking,’ and held that the essence of banking was the relationship

brought into existence, i.e., the core of banking.

(a) As to the scope of Entry 45 List I, he has further referred to the

decision in ICICI Bank Limited v. Official Liquidator of APS Star

Industries Limited and Ors.10, wherein it was emphasised that even if a

8 (1970) 1 SCC 248
9 AIR 1961 Calcutta 666
10 (2010) 10 SCC 1
13

company was doing different businesses in addition to clause (a) to (o)

of Section 6(1), it would remain a banking company as long as it was

performing the core banking functions under Section 5(b). The core

banking function is the sine qua non for being regulated by the BR Act,

1949. Therefore, ‘banking’ in Entry 45 of List I is essentially meant to

be confined to ‘core banking business’. At the time when the

Constitution of India was promulgated, a well­defined and well­

established meaning of the expression ‘banking’ prevailed in the form

of the definition of ‘banking’ under Section 5(b) of the BR Act, 1949.

The same expression was borrowed by the Framers of the Constitution

of India, and same meaning was to be given to the expression

‘banking’ in the Entry as defined in the BR Act, 1949 as observed by

this Court in The State of Madras v. Gannon Dunkerley Co., (Madras)

Ltd.11 and Diamond Sugar Mills Ltd. and Anr. v. State of Uttar Pradesh

and Anr.12.

(b) There is a difference between ‘entity’ and ‘activity’. Section 6(1)

and 6(2) of the BR Act, 1949, enable only a banking entity to perform

certain additional business/functions. The performance of additional

business/functions does not confer any status of a banking company

upon such an entity. He also referred to Sections 32 and 33 of the

State Bank of India Act, 1955 (for short, ‘the SBI Act’). Section 32

11 AIR 1958 SC 560
12 AIR 1961 SC 652
14

recognises that the State Bank of India can carry ‘agency business’ on

behalf of Reserve Bank of India, that is not a banking business

performed by the State Bank of India as apparent from the perusal of

Section 33, which categorically enables the State Bank of India to

carry on banking business under Section 5(b) and other forms of

business under Section 6(1) of the BR Act, 1949. Thus, it was

submitted that every activity performed by a bank is not a banking

activity.

(c) That Entry 43 of List I of the Seventh Schedule of the

Constitution of India confers upon the Parliament the competence to

pass law pertaining to ‘incorporation, regulation and winding up’ of a

trading corporation, more particularly a banking corporation.

However, ‘co­operative societies’ are expressly excluded from the

purview of the Parliament’s competence being a State subject under

Entry 32 of List II. He argued that the legislative history of the BR Act,

1949, made a difference between ‘entity’ and ‘activity.’ The expression

‘banking’ was defined in Chapter X­A of the Companies Act (VII of

1913). Sections 277F to 277N were inserted vide Amendment Act

No.22 of 1936. After that, the BR Act, 1949, was enforced, providing a

comprehensive definition of ‘banking’ to bring within its scope all

institutions which receive deposits repayable on demand or otherwise

for lending or investment. At that time, the relevant entries of the

Government of India Act, 1935, which dealt with the subject of
15

banking as well as trading corporation, were in List I (Federal

Legislative List). Entry 38 and Entry 33 were in relation to ‘banking’

and ‘corporation’ respectively. In the Constitution of India, Entry 38

and Entry 33 have been substituted. Entry 38 is substituted as Entry

45 of List I and Entry 33 has been bifurcated into Entry 43, and 44 of

List I. Until 1965 before the amendment was inserted in the BR Act,

1949, it dealt with ‘banking companies.’ The word ‘companies’ was

omitted in the year 1965. The function of the State Bank of India was

governed by a separate statute such as the State Bank of India Act,

1955. In the year 1965, the Central Government passed the Banking

Laws [Application of Cooperative Societies Act, 1965 (Act No.23 of

1965)]. He has referred to the Statement of Objects and Reasons,

which brings out that the BR Act, 1949, was only to regulate the

banking business relatable to Entry 45 and not to regulate the co­

operative societies.

(d) Section 2(10) of the Maharashtra Co­operative Societies Act,

1960, is related to the management and business of co­operative

societies. Under Section 91 of the Maharashtra Act, any dispute

touching the constitution, management or business is required to be

referred to a co­operative court.

(e) Similarly, Section 3(f) of the MSCS Act defines ‘co­operative

bank’ to mean a multi­State co­operative society, which undertakes

the banking business. Under Section 84(2) of the MSCS Act, a dispute
16

can be raised. The power of Parliament is confined to specific

provisions of the BR Act, 1949 (a legislation referable to Entry 45 of

List I), and the Reserve Bank of India Act (a legislation referable to

Entry 38 of List I). The Parliament lacks legislative competence to

regulate any other business, function, or facets of co­operative

societies. It could have extended the provisions of said Act only. The

Parliament cannot regulate these co­operative societies like a company

performing banking functions or a banking corporation.

(f) The object of the SARFAESI Act is to regulate securitisation and

reconstruction of financial assets and enforcement of security

interests. The business of securitisation is not a banking business.

Under Section 2(1)(l) of the SARFAESI Act, a ‘financial asset’ means

debt or receivable and includes inter alia any financial asset. Section

2(1)(ha) defines ‘debt’ to mean the same as defined in clause (g) of

Section 2 of the RDB Act, 1993. Financial assistance to members is

another form of business that is not a banking business. Therefore,

an attempt to regulate the assets of a co­operative bank by bringing

them within the purview of the SARFAESI Act is contrary to the

original intent of the extending provisions of the BR Act, 1949 and

that would amount to exercising control over the entities which are

beyond the purview of competence of Parliament.

(g) The Parliament lacks legislative competence to regulate financial
17

assets related to the non­banking activity of a co­operative society as

they are expressly excluded from the purview of Entry 43 of List I. The

regulation cannot be based upon an interpretation of only Entry 45

without any regard to Entry 43. The legislative action would be

inconsistent with the limitation inherent in the federal scheme of

distribution of legislative powers between the Union and the State. It

would amount to regulation of co­operative society which subject

matter is covered under Entry 32 of List II and also confer upon them

a status of a banking corporation or a banking company. It would

render an entity falling under Entry 32 of List II subject to the control

of the Parliament, which would be contrary not only to the text but

also to the constitutional intendment as opined in I.T.C. Ltd. v.

Agriculture Produce Market Committee and Ors.13

(h) Notification No.105(E) dated 28.1.2003 is ultra vires as the

Parliament has included only two classes of entities, i.e., banking

company and banking corporation within its purview. The definition

of ‘bank’ under Section 2(1)(c)(v) means ‘such other bank which the

Central Government may by notification, specify for this Act.’ The

power of the Central Government is confined to the entity of the kind

referred under Clauses (i) to (iv) and not beyond that, i.e., a banking

company or a banking corporation only and not co­operative

societies/banks. The co­operative bank is neither a banking company

13 (2002) 9 SCC 232
18

nor a banking corporation; thus, it falls outside the purview of Section

2(1)(c)(v) of the SARFAESI Act. The notification is ultra vires and

violative of not only the parent statute but also the Constitution of

India. For this purpose, learned counsel relied upon Hinsa Virodhak

Sangh v. Mirzapur Moti Kuresh Jamat and Ors.14. Recovery of debts

due is essential for the bank, i.e., entity and not for the banking

business, i.e., activity. In Greater Bombay Coop. Bank Ltd. (supra), the

argument based upon the banking business of the co­operative bank

to be covered by Entry 45, was rejected. Therefore, recovery of dues

was held to be outside the purview of Entry 45 of List I. The Central

legislation seeking to regulate banks can only bring within its purview

entities falling in Entry 43, i.e., banking corporation and banking

companies. Thus, the Parliament is not competent to enact a law

concerning the subject matter of Entry 32 of List II.

(i) The amendment incorporated is a colourable exercise. The

notification dated 28.1.2003 is ultra vires in view of the decisions in

K.C. Gajapati Narayan Deo and Ors. v. State of Orissa 15 and State of

Tamil Nadu and Ors. v. K. Shyam Sunder and Ors 16. Once entities are

excluded by Entry 43, the Union of India cannot control it by an

indirect method. The Multi­State Co­operative Bank is a primary co­

operative bank that is, in turn, a co­operative society. In Apex

14 (2008) 5 SCC 33
15 AIR 1953 SC 375
16 (2011) 8 SCC 737
19

Cooperative Bank of Urban Bank of Maharashtra Goa Ltd. v.

Maharashtra State Cooperative Bank Ltd. and Ors. 17, it was observed

that co­operative societies are in the purview of the State List.

(j) The MSCS Act is relatable to Entry 44. This Court is not

required to pronounce upon the validity of the said Act. The source of

legislative authority to regulate such banks would be Entry 43. The

purpose of Act No.23 of 1965 was to regulate the banking business of

certain co­operative societies. They do not cease to be co­operative

societies as held in Virendra Pal Singh and Ors. v. District Assistant

Registrar, Cooperative Societies, Etah, and Anr. 18. There is a difference

in the Entries 43, 44 and 32 as held in S.S. Dhanoa v. Municipal

Corporation, Delhi and Ors.19, Daman Singh and Ors. v. State of Punjab

and Ors.20, and Dalco Engineering Private Limited v. Satish Prabhakar

Padhye and Ors.21. The decision in Greater Bombay Coop. Bank Ltd.

(supra) laid down the law correctly.

(k) There has to be harmonious construction of the Entries in List I

and List II. Any argument of alarm relating to an adverse effect on the

banking sector would be of no consequence or relevance to the

question of construction of the constitutional entry as held in I.T.C.

17 (2003) 11 SCC 66
18 (1980) 4 SCC 109
19 (1981) 3 SCC 431
20 (1985) 2 SCC 670
21 (2010) 4 SCC 378
20

Ltd. (supra).

9. Shri Vijay Kumar, learned counsel appearing on behalf of

petitioners, submitted that Parliament is not competent to enact laws

concerning co­operative societies/banks. Banking business for a co­

operative society is merely an incidental/ancillary business. A co­

operative society doing business remains a co­operative society and is

covered under Entry 32 of List II. He has placed reliance on Iqbal

Naseer Usmani v. Central Bank of India and Ors. 22. There is complete

mechanism provided under the State Co­operative Societies Acts and

MSCS Act; thus, the amendment to the SARFAESI Act and the

notification deserve to be struck down.

10. Shri Vishwas Shah, learned counsel appearing on behalf of

appellants, has argued that it is not necessary to question the 1965

Amendment made to the BR Act, 1949. The validity of the notification

and the provisions of the SARFAESI Act have to be tested on their

own. The co­operative banks differ from other banks. Entities are

basically co­operative societies, and it incidentally trenches on

banking. The dominant legislation on the subject is State legislation

under Entry 32. The co­operative banks are different from banking

companies to the extent that they advance loans to their members

only. The banking companies/corporations deal with the public. The

22 (2006) 2 SCC 241
21

co­operative banks do not carry the business as defined in the BR Act,

1949. The Doctrine of Pith and Substance has to be applied, co­

operative society engaged in banking does not cease to be a co­

operative society. In Entry 45 of List I, ‘banking’ does not include co­

operative banks. He relied upon Gannon Dunkerley Co. (Madras)

Ltd. (supra) and I.T.C. Ltd. (supra).

11. Shri Satpal Singh, learned counsel, has re­emphasised that

amendment made by inserting the definition of ‘multi­State co­

operative bank’ is colourable legislation and deserves to be struck

down. The Co­operative Acts are comprehensive. The meaning of the

expression ‘bank’ could not have been enlarged.

12. Per contra, Shri Shekhar Naphade, learned senior counsel,

appearing on behalf of Cosmos Bank, raised the following arguments:

(a) Section 2(1)(c) of the SARFAESI Act defines ‘bank’ to mean

‘banking company’ as defined in Section 5(c) of the BR Act, 1949.

Thus, the definition of ‘bank’ contained in Section 5(c) of the BR Act,

1949 stands incorporated in Section 2(d) of the SARFAESI Act, that

came into existence on 21.6.2002; hence, it is necessary to examine

Section 5(c) of the BR Act, 1949, as it stood on 21.6.2002. It is

covered by way of incorporation, w.e.f. 1.3.1966. Section 56(a)

became part of Statute since 1.3.1966, the reference to a ‘banking

company’ or a ‘company’ shall be construed as a reference to a co­
22

operative bank. Section 56(a) becomes part of Section 5(c) of the BR

Act, 1949, and stands incorporated in Section 5(c) of the BR Act,

1949. Thus, a reference to the banking company has to be read as a

reference to the co­operative bank.

(a) Section 56(a) becomes part of Section 5(c) of the BR Act, 1949.

Although Section 56(a) is located in a separate place, its impact on

Section 5(c) results in a co­operative bank both on State level as well

as multi­State level becoming part of a banking company. Therefore,

the SARFAESI Act covers in its purview co­operative banks and multi­

State co­operative banks.

(b) The insertion of a ‘multi­State co­operative bank’ in Section 2(1)

(c)(iva) is ex majori cautela as multi­State co­operative bank comes

under the ambit of ‘banking company’ mentioned in Section 2(1)(c)

and as defined in Section 2(d) of the SARFAESI Act. In Daman Singh

(supra), this Court held that expression ‘corporation’ occurring under

Article 31A(1)(3) of the Constitution of India is required to be given a

broad interpretation and takes within its compass a registered co­

operative society.

(c) He relied on The Majoor Sahakari Bank Ltd. v. N.N. Majmudar

and Anr.23 in which the Bombay High Court observed that co­operative

society doing business of banking is a company. The question

23 AIR 1957 Bom 36
23

mentioned above arose as the Government of Bombay issued a

notification and directed that all the provisions of the Bombay

Industrial Disputes Act shall apply to the business of banking

companies registered under any of the enactments relating to the

companies for the time being in force.

(d) Article 246 distributes legislative powers between the Union and

the State regarding three lists in the Seventh Schedule. Under Article

246(1), the Parliament has exclusive power to make laws in respect of

97 matters enumerated in List I notwithstanding anything contained

in clauses (2) and (3). As per Article 246(3), the State legislature has

legislative powers to make laws with respect to 66 matters enumerated

in List II. The exclusive power of the State legislature to legislate with

respect to any of the matters enumerated in List II has to be exercised

subject to Article 246(1), i.e., the exclusive power of the Parliament to

legislate concerning matters enumerated in List I. As a consequence if

there is a conflict in an Entry in List I and an Entry in List II, which is

not capable of reconciliation, the power of Parliament to legislate

concerning matters enumerated in List I must supersede pro tanto the

power of the State legislature. Both the Parliament and the State

legislatures have concurrent power of legislation for 47 matters

enumerated in List III.

(e) Reliance has been placed on Virendra Pal Singh (supra), in which
24

the Court examined the powers of the State legislature relating to the

service conditions of employees. The Court held that the State

legislature was competent to legislate concerning employees of the

bank. This Court did not deal with the banking business of the co­

operative societies. He argued that regulating the non­banking affairs

of society and regulating the banking business of society are two

different things. Entry 32 of List II deals with regulation of non­

banking affairs of the co­operative society, on the other hand, Entry

45 of List I deals with banking; hence, any legislation dealing with

regulation of banking will be traceable to Entry 45 of List I and only

the Parliament will be competent to legislate. The SARFAESI Act does

not deal with incorporation, regulation, and winding up of the

corporation, company, or co­operative societies. It does not regulate

the working of a corporation, company, or co­operative society. It only

provides for the recovery of dues of banks, including co­operative

banks, the procedure for recovery, the authority competent to recover

the loan, and the judicial forum to deal with disputes arising out of

recovery. Thus, the Act does not touch upon Entry 32 of List II. The

decision in Greater Bombay Coop. Bank Ltd. (supra) requires

reconsideration and clarification. There is no in­depth consideration

of its provisions and, more particularly, Section 56 of the BR Act,

1949.

(f) The ratio of the judgment is material. The obiter relates to the
25

finding of court on an issue that arises in the matter but is not

required to be decided for the final decision of the case. Thus, the

finding of an issue is considered as an obiter. In contrast to ratio and

obiter, the opinion of the court on an issue that does not arise is a

casual or passing observation. The question in Greater Bombay Coop.

Bank Ltd. (supra) was whether the court and authorities constituted

under the State Co­operative Societies Act and the MSCS Act continue

to have jurisdiction to consider applications/disputes submitted

before them by State level and multi­State co­operative banks for

recovery of debts due to them. The question was of the applicability of

the RDB Act, 1993 to debts due to co­operative banks constituted

under the MCS Act, 1960, the MSCS Act, and the APCS Act, 1964.

The question whether the State legislature was competent to legislate

law concerning co­operative societies transacting business of banking

in the light of Entry 32 of List II of the Seventh Schedule, did not arise

in the matter; hence, any observation made by this Court, concerning

the said issue, cannot be considered as the ratio of the judgment in

Greater Bombay Coop. Bank Ltd. (supra).

(g) He relied upon the decision of a Division Bench of the Bombay

High Court in The Shamrao Vithal Co­operative Bank Ltd., Mumbai,

and Anr. v. M/s. Star Glass Works, Mumbai and Ors. 24 in which

meaning of incorporation by reference was considered. The same has

24 AIR 2003 Bom 205
26

to be taken to a logical end. The Parliament has provided an

additional remedy to co­operative banks to recover their dues by

recourse to the Co­operative Societies Act. The Court did not consider

the said aspect in Greater Bombay Coop. Bank Ltd. (supra). The

distinction between co­operative banks serving the members and the

corporate bank doing commercial transactions would make no

difference. The activity remains banking merely by the fact that co­

operative banks are co­operative societies doing banking business; it

does not make the banking activity carried out by them incidental one.

It remains their activity. It was observed that the definition of

‘banking company’ in Section 5(c) had not been altered by Act No.23 of

1965. The incorporation, by reference, has the effect of changing the

definition of ‘banking company.’ Even if in the RDB Act, 1993, the co­

operative bank is not included right from the beginning, nothing came

in the way of Parliament to enact a law that provides for an additional

remedy to co­operative banks.

13. Shri Jaideep Gupta, learned senior counsel appearing on behalf

of the Reserve Bank of India, raised the following arguments:

(a) The matter is covered by Entry 45 of List I of the Seventh

Schedule of the Constitution of India. For the very reason, the

Parliament has the right to legislate in respect of the banking business

as defined in Section 5(b) of the BR Act, 1949.
27

(a) Banking operations would inter alia include accepting of loans

and deposits, the grant of loans and recovery of debts due to the bank.

There can be little doubt that the Parliament can enact a law about

the conduct of the business by a bank. Recovery of dues is an

essential function of a banking institution. Entry 45 of List I would

mean legislation regarding all aspects of banking, including ancillary

or subsidiary matters relating to that. The SARFAESI Act falls within

the ambit of Entry 45 of List I.

(b) The Parliament can enact a law in respect of matters contained

in Entry 45 of List I, even if the bank in question is a co­operative

society. Entry 45 of List I makes no difference whether an entity

carrying business of banking is a company or statutory corporation or

a co­operative society.

(c) The 1965 amendment to the BR Act, 1949, brought within its

ken co­operative banks, is not under challenge and has never been

successfully questioned. The Parliament has the power to legislate

concerning matters referred to in the SARFAESI Act under Entry 45 of

List I, even if the entity which carries out the activity of banking, is a

co­operative society. It is permissible for the Parliament to include

multi­State co­operative banks within the definition of ‘bank.’

Similarly, the Government could have notified co­operative banks

under the purview of Section 2(1)(c)(v) of the SARFAESI Act, more so,

in view of the definition in clause (cci) of Section 56 of the BR Act,
28

1949.

(d) The argument of the appellant that Section 2(1)(c) of the

SARFAESI Act refers to an entity and not the activity, therefore, it

cannot be justified under Entry 45 of List I, is misconceived. Section

2(1)(c) is only a definition provision. The subject matter of legislation

is securitisation, reconstruction of financial assets and enforcement of

security interest of banks or financial institutions. The subject matter

of legislation is not based on the entity.

(e) The SARFAESI Act is not a legislation relating to incorporation,

regulation, and winding up of the co­operative societies or multi­State

co­operative society engaged in banking. The same is traceable to

Entry 45 of List I, i.e., the activity of banking.

(f) The Statement of Objects and Reasons of the SARFAESI Act

indicates that it relates to the business of banking and matters

incidental to it. It confers the power upon the bank and financial

institutions to take possession of security and sell them to overcome

the slow pacing of recovery of default loans and mounting levels of

non­performing assets of banks and financial institutions. It was

based on the recommendation of the Narasimham Committee I and II

and the Andhyarujina Committee formed by the Central Government

to examine the banking sector reforms. The legislation in question,

thus, relates to the business of banking.

29

(g) The argument of the appellant that ‘such other banks’ cannot

include co­operative banks, is also without basis, and the Parliament

has the power to legislate. Certain observations made in Greater

Bombay Coop. Bank Ltd. (supra) are incorrect and required to be

overruled. The questions which arose in the said case were different.

14. Shri Vijay Hansaria, learned senior counsel appearing on behalf

of Maharashtra State Co­operative Bank, reiterated the aforesaid

arguments and additionally urged that the Maharashtra State Co­

operative Bank has 41 branches in the State of Maharashtra. As on

31.3.2015, it had deposits of Rs.9,992 crores and has granted loans

and advances to the extent of Rs.12,006 crores and has working

capital to the extent of Rs.20,947 crores. There are total 2115

members including 1818 co­operative institutions, 296 individuals

and individual societies and 1 State Government and the number of

total shares held by them is 45,67,280 (35,66,104 are held by co­

operative institutions, 1176 are held by individuals and individual

societies, and 10,00,000 are held by the State Government). The MSC

Bank advances various terms loans and working capital loans to co­

operative processing units like Sugar Factories, Private Sugar Mills,

Spinning Mills, Oil Mills, Marketing Co­operatives, Educational

Institutions, and other co­operative Industrial Units. It is the apex

institution of all District Central Co­operative Banks, Urban Co­
30

operative Banks, and Primary Agricultural Co­operative Societies. It

has a network of co­operative banks and the agricultural co­operative

societies in the State of Maharashtra on 31.3.2015 as under:

Total number of District Central Co­operative Banks 31
Number of branches of District Central Co­operative 3,734
Banks
Number of Primary Agriculture Credit Societies 21,124
Number of members of Primary Agriculture Credit 1,14,54,704
Societies

He further pointed out that out of 31 District Co­operative

Banks, 30 primarily cater to the financial needs of the agriculture

sector. MSC Bank provides re­finance facilities to the District Central

Co­operative Bank, and it also takes care of the financial needs of the

non­farming sector by providing re­finance facilities to the District Co­

operative Banks under the NABARD’s general re­finance to enable

them to help rural artisans and small­scale industries. It has also

introduced the crop loan system in the State in association with

District Co­operative Banks. Thus, the notification issued and the

amendment are appropriate, more so, in light of the amendment

incorporated in 1965. The matter is covered under Entry 45 of List I

of the Seventh Schedule.

15. On behalf of the Indian Banks Association, Shri P.V. Yogeswaran

learned counsel, supported the arguments raised on behalf of the

Banks. He further argued that the enactment of the SARFAESI Act is

within the legislative competence of the Parliament. It does not
31

deprive borrowers’ right to challenge the action under Section 13 of

the SARFAESI Act as well as under the Maharashtra Co­operative

Societies Act and is not violative of Article 14. It only provided an

additional remedy. This Court upheld the validity of Sections 13 and

17 of the SARFAESI Act. The Parliament can legislate concerning co­

operative banks within the purview of Entry 45 of List I.

16. Shri Vinay Navre, learned senior counsel appearing on behalf of

Co­operative Banks, vehemently argued that:

(a) The expression ‘incorporation, regulation and winding up’ in

Entries 43 and 44 of List I and Entry 32 of List II refers only to

organisational aspects of the corporations. It does not have any

bearing on the business/transactional aspects. He has relied upon

decisions in Hindustan Lever and Anr. v. State of Maharashtra and

Anr.25, Kerala State Electricity Board v. Indian Aluminium Co. Ltd. 26 and

Sita Ram Sharma and Ors. v. State of Rajasthan and Ors. 27. The

framers of the Constitution deliberately did not define many terms

used in the Lists in the Seventh Schedule. Wherever it was required,

they defined such terms. Some of the subjects enumerated in Lists of

the Seventh Schedule are defined in Article 366 of the Constitution,

for instance, Agricultural Income (List I, Entry 82), Corporation Tax

(List I, Entry 85), Debt (List II, Entry 42), Pension (List I, Entry 71) and

25 (2004) 9 SCC 438
26 (1976) 1 SCC 466
27 (1974) 2 SCC 301
32

(List II, Entry 42). The framers of the Constitution avoided defining

the term ‘banking’ in Article 366. The intention was not to restrict its

meaning. For certain Entries, the framers of the Constitution

specified the meaning, such as in Entry 71 of List I and Entries 5, 8,

13, 17, 18 of List II.

(a) There was a purpose for the framers not to define as an Entry

has to be given meaning as per changes in society, science, and

technology. When the American Constitution was framed more than

200 years before the Indian Constitution, space science and

technology were unknown to the human. The Entry ‘defence’ in the

Union List was interpreted to include even space science and

technology. He argued that the internet was unknown in 1950. Today

Entry 31 of List I of the VII Schedule of the Constitution of India can

include the internet. The courts interpreted an Entry taking into

account the changing perspectives of the time, retaining the

substance.

(b) The term ‘banking’ as understood in 1950 was too narrow, and

after 70 years, the banking industry has undergone significant

changes. Today it includes portfolio management, underwriting of

shares, and investment banking. There are grey areas like credit card

companies, i.e., VISA or American Express. The definition in the BR

Act, 1949, cannot be used to restrict the scope of the term ‘banking’ in
33

Entry 45 of List I.

(c) If the argument of the appellants that co­operative banks are not

covered by Entry 45 of List I is accepted, the consequences will be

disastrous. Entire Part V of the BR Act, 1949, would become

unconstitutional. The Parliament can amend Section 84 of the MSCS

Act, and it could enact the SARFAESI Act. Similarly, power can be

provided to recover dues under the SARFAESI Act also. The argument

raised on behalf of appellants as to ‘occupied field’ cannot be accepted

as the question of ‘occupied field’ is germane concerning the

Concurrent List as held in State of A.P. and Ors. v. Mcdowell Co. and

Ors.28. The recovery of dues is an essential function of a bank. The

argument to the contrary cannot be accepted. The purpose of the

SARFAESI Act is the enforcement of security interests. The

consequence thereof is a recovery, which is an incidental one.

(d) The SARFAESI Act is for enforcement of security, and it is

referable to Entry 6 of List III also, more so, because of the provisions

contained in Sections 69 and 69A of the Transfer of Property Act,

1882. Section 13 or other provisions of the SARFAESI Act do not

interfere with the legislative field occupied by Entry 32 of List II. The

Maharashtra Co­operative Societies Act, 1960, provides two remedies

to the co­operative banks for recovery of their dues. Section 91 is akin

28 (1996) 3 SCC 709
34

to a civil suit, and Section 101 provides a summary procedure for

issuance of a revenue recovery certificate. The SARFAESI Act does not

take away the remedies of the co­operative banks under Section 91 or

101 of the said Act; it provides additional remedy under Section 13 to

co­operative banks to recover the dues and enforce security interest.

It is a classic case of co­operative/collaborative federalism.

17. Shri Abhijet Sengupta, learned counsel appearing on behalf of

Jana Seva Sahakari Bank Ltd., urged that petition under Article 32 of

the Constitution cannot be said to be maintainable, given the

decisions in Dewan Bahadur Seth Gopal Das Mohta v. Union of India

and Ors.29, and Khyerbari Tea Co. Ltd. and Ors. v. State of Assam 30.

Entry 45 of List I and Entry 32 of List II are to be read harmoniously.

18. Following questions arise for consideration:

(1) Whether ‘co­operative banks’, which are co­operative societies

also, are governed by Entry 45 of List I or by Entry 32 of List II of

the Seventh Schedule of the Constitution of India, and to what

extent?

(2) Whether ‘banking company’ as defined in Section 5(c) of

the BR Act, 1949 covers co­operative banks registered under the

State Co­operative Laws and also multi­State co­operative

29 (1955) 1 SCR 773
30 (1964) 5 SCR 975
35

societies?

(3)(a) Whether co­operative banks both at the State level and

multi­State level are ‘banks’ for applicability of the SARFAESI

Act?

(3)(b) Whether provisions of Section 2(c) (iva) of the SARFAESI

Act on account of inclusion of multi­State co­operative banks

and notification dated 28.1.2003 notifying cooperative banks in

the State are ultra vires?

IN REFERENCE QUESTION NO.1:

19. In order to appreciate the rival submissions, we have to consider

Entries 43, 44 and 45 of List I and Entry 32 of List II of the Seventh

Schedule of the Constitution of India. The Entries are reproduced

hereunder:

“43. Incorporation, regulation and winding up of
trading corporations, including banking, insurance
and financial corporations but not including co­
operative societies.

44. Incorporation, regulation and winding up of
corporations, whether trading or not, with objects
not confined to one State, but not including
universities.

45. Banking.

***

32. Incorporation, regulation and winding up of
corporation, other than those specified in List I, and
universities; unincorporated trading, literary,
scientific, religious and other societies and
associations; co­operative societies.”
36

20. In the BR Act, 1949, ‘banking’ has been defined under Section

5(b) thus:

“5. Interpretation. — In this Act, unless there is
anything repugnant in the subject or context,—

(b) “banking” means the accepting, for the purpose
of lending or investment, of deposits of money from
the public, repayable on demand or otherwise, and
withdrawable by cheque, draft, order or otherwise;”

21. Under Section 5(c) of the BR Act, 1949, the term ‘banking

company’ has been defined thus:

“5. Interpretation.— In this Act, unless there is
anything repugnant in the subject or context,—

(c) “banking company” means any company which
transacts the business of banking in India;
Explanation.— Any company which is engaged in
the manufacture of goods or carries on any trade
and which accepts deposits of money from the
public merely for the purpose of financing its
business as such manufacturer or trader shall not
be deemed to transact the business of banking
within the meaning of this clause;”

22. Section 6 in Part II of the BR Act, 1949 deals with forms of

business in which banking companies may engage, is extracted

hereunder:

“6. Forms of business in which banking
companies may engage.— (1) In addition to the
business of banking, a banking company may
engage in any one or more of the following forms of
business, namely:—

(a) the borrowing, raising, or taking up of money;
the lending or advancing of money either upon or
without security; the drawing, making, accepting;

discounting, buying, selling collecting and dealing in
bills of exchange, hoondees, promissory notes,
coupons, drafts, bills of lading, railway receipts,
warrants, debentures, certificates, scrips and other
37

instruments, and securities whether transferable or
negotiable or not; the granting and issuing of letters
of credit, traveller’s cheques and circular notes; the
buying, selling and dealing in bullion and specie;
the buying and selling of foreign exchange including
foreign bank notes; the acquiring, holding, issuing
on commission, underwriting and dealing in stock,
funds, shares, debentures, debenture stock, bonds,
obligations, securities and investments of all kinds;
the purchasing and selling of bonds, scrips or other
forms of securities on behalf of constituents or
others, the negotiating of loans and advances; the
receiving of all kinds of bonds, scrips or valuables
on deposits or for safe custody or otherwise; the
providing of safe deposit vaults: the collecting and
transmitting of money and securities;

(b) acting as agents for any Government or local
authority or any other person or persons; the
carrying on of agency business of any description
including the clearing and forwarding of goods,
giving of receipts and discharges and otherwise
acting as an attorney on behalf of customers, but
excluding the business of a managing agent or
secretary and treasurer of a company;

(c) contracting for public and private loans and
negotiating and issuing the same;

(d) the effecting, insuring, guaranteeing,
underwriting, participating in managing and
carrying out of any issue, public or private, of State,
municipal or other loans or of shares, stock,
debentures, or debenture stock of any company,
corporation or association and the lending of money
for the purpose of any such issue;

(e) carrying on and transacting every kind of
guarantee and indemnity business;

(f) managing, selling and realising and property
which may come into the possession of the company
in satisfaction or part satisfaction of any of its
claims;

(g) acquiring and holding and generally dealing with
any property or any right, title or interest in any
such property which may form the security or part
38

of the security for any loans or advances or which
may be connected with any such security;

(h) undertaking and executing trusts;

(i) undertaking the administration of estates as
executor, trustee or otherwise;

(j) establishing and supporting or aiding in the
establishment and support of associations,
institutions, funds, trusts and conveniences
calculated to benefit employees or ex­employees of
the company or the dependents or connections of
such persons; granting pensions and allowances
and making payments towards insurance;

subscribing to or guaranteeing moneys for
charitable or benevolent objects or for any exhibition
or for any public, general or useful object;

(k) the acquisition, construction, maintenance and
alteration of any building or works necessary or
convenient for the purposes of the company;

(l) selling, improving, managing, developing,
exchanging, leasing, mortgaging, disposing of or
turning into account or otherwise dealing with all or
any part of the property and rights of the company;

(m) acquiring and undertaking the whole or any part
of the business of any person or company, when
such business is of a nature enumerated or
described in this sub­section;

(n) doing all such other things as are incidental or
conducive to the promotion or advancement of the
business of the company;

(o) any other form of business which the Central
Government may, by notification in the Official
Gazette, specify as a form of business in which it is
lawful for a banking company to engage.

(2) No banking company shall engage in any form of
business other than those referred to in sub­section
(1).”
39

23. Initially, the provisions of the BR Act, 1949, applied only to

banking companies. The provisions of the BR Act, 1949, were

extended to co­operative banks by Act No.23 of 1965, w.e.f. 1.3.1966.

Earlier Section 56 was repealed by Act No.36 of 1957, w.e.f.

17.9.1957. Bill No.85 of 1964 was introduced in Parliament on

17.12.1964 to amend the Reserve Bank of India Act, 1934 and the

Banking Companies Act, 1949 to regulate the banking business of

certain co­operative societies and for matters connected in addition to

that.

24. Before we come to the amendments made, it is necessary to

consider the Statement of Objects and Reasons. It was considered

necessary to extend provisions of the BR Act, 1949 to State co­

operative banks, the central co­operative banks, and, more

importantly, to primary non­agriculture credit societies, which were

relatable to banking. The Statement of Objects and Reasons is

extracted hereunder:

“STATEMENT OF OBJECTS OF REASONS
The provisions of the Banking Companies Act, 1949
are not now applicable to or in relation to co­
operative banks. The deposits and working funds of
co­operative banks are now so large that the
extension of the more important provisions of the
Banking Companies Act, 1949 (and of certain other
allied provisions of the Reserve Bank of India, Act,
1934) to these banks will be in the public interest.
The Bill seeks accordingly to extend to the State co­
operative banks, the central co­operative banks and
the more important primary non­agricultural co­
operative banks certain provisions of the existing
Central laws which are relatable to “banking”.

40

2. The notes on clauses explain in detail the various
provisions of the Bill.”
(emphasis supplied)

The President’s recommendation under Article 117 of the

Constitution contained in appended Notes on clauses is also

significant. The State or apex co­operative banks, all central co­

operative banks, and primary non­agricultural credit societies, which

have paid­up capital and reserves of a nominal value of Rs.1 lakh or

more, were to be deemed to be co­operative banks. Consequential

change in the qualifications of directors was proposed to be made.

Clause 6 provided to keep reserve at 3 per cent for apex co­operative

banks. It was proposed to control co­operative banks effectively under

the provisions of the Reserve Bank of India Act and Banking

Companies Act. It would not be necessary to make separate

provisions concerning them, as such the Banking Companies Act was

to be renamed as Banking Regulation Act, and it would not be

confined any longer to companies incorporated under the Companies

Act carrying on the business of banking.

25. What is of utmost significance is that extensive amendments and

omissions of several provisions of the BR Act, 1949 became necessary

concerning matters covered under Entry 32 of List II; as such various

amendments were separately reflected in a separate chapter,

amendments were incorporated under various provisions of the Act in
41

Parts IIA, III and IIIA. The provisions relatable directly or indirectly to

incorporation, management and winding up of co­operative banks

were proposed to be omitted as these Parts or provisions were not in

pith and substance within the scope of any entry in the Central or

Concurrent List of subjects in the Seventh Schedule of the

Constitution of India. Following is the relevant extract of the Notes

appended to President’s recommendation under Article 117 of the

Constitution of India:

“According to the scheme of control as it is
envisaged in the Reserve Bank of India Act and in
the Banking Companies Act, (a) all the State or apex
co­operative banks, (b) all central co­operative
banks and (c) such of the primary non­agricultural
credit societies, including in particular urban co­
operative banks, as have paid­up capital and
reserves of a nominal value of Rs. 1 lakh or more,
will be deemed to be co­operative banks. The
definition of the expression “co­operative bank” will
exclude (a) all primary agricultural credit societies,
whatever the nominal value of their paid­up capital
may be, (b) primary non­agricultural credit societies
with paid­up capital and reserves of a nominal value
of less than rupees one lakh, even though they may
be accepting deposits from non­members and (c) all
other co­operative societies which do not obtain, or
may hereafter cease to obtain, deposits from non­
members.

Clauses 8 and 9 provide for the modification of the
definition of (a) financial institutions and (b) non­
banking insitutions for the purposes of Chapter IIIB
of the Reserve Bank of India Act. It is proposed that

(a) all co­operative banks, (b) all agricultural credit
societies and (c) all primary non­agricultural credit
societies which are not co­operative banks should
be excluded from the scope of the statutory
provisions relating to the Reserve Bank’s control
over the loan investment or other allied policies of
financial and non­banking institutions. Co­
operative banks will be effectively controlled in
42

accordance with other provisions which are being
made for this purpose in the Reserve Bank of India
Act and the Banking Companies Act and it will not,
therefore, be necessary to make any separate
provision in regard to them. Agricultural credit
societies have been excluded generally from the
scope of the various provisions of the present Bill.
The working funds and turnover of primary non­
agricultural credit societies which are not co­
operative banks are relatively insignificant, with the
result that the trouble or expense involved in
controlling their loans or advances or investment
policies may not be worthwhile.

Clauses 10 and 11.— Chapter III provides for the
amendments necessary to Banking Companies Act.
Clauses 10 and 11 seek to alter the description of
this Act and to make certain consequential changes
in the long title and the preamble. The Act, it is
proposed, should be known in future as the
Banking Regulation Act, 1949. This will be
appropriate, as its application will not be confined
any longer to companies incorporated under the
Companies Act and carrying on the business of
banking.

Parts IIA, III and IlIA and such of the provisions in
the other Parts of the Act as are relatable either
directly or indirectly to the incorporation,
management and winding up of co­operative banks
are proposed to be omitted, as these Parts or
provisions are not in pith and substance within the
scope of any entry in the Central or Concurrent List
of subjects in the Seventh Schedule to the
Constitution.”
(emphasis supplied)

The provisions of Bankers’ Books Evidence Act, 1891 were also

proposed to be suitably modified to apply to the co­operative banks

thus:

“The provisions of the Bankers’ Books Evidence Act,
1891 and the Banking Companies (Legal
Practitioners’ Clients’ Accounts) Act, 1949 are
proposed to be modified suitably, so that the special
procedure as to evidence or the protection in respect
of certain accounts may be extended to or be
43

available in future in relation to co­operative banks
[clause (zk)].

The Third Schedule as proposed to be amended
provides for the prescribed Forms in which the
ba1ance­sheets and profit and loss accounts of co­
operative banks will have to be maintained. The
Forms may, if necessary, be modified in future in
the light of further experience and in accordance
with the procedure which is already prescribed in
the Act for this purpose.”

The co­operative banks were also required to submit the balance

sheet and profit and loss account to the Reserve Bank of India.

26. Various amendments were carried out in the Reserve Bank of

India Act to make it applicable to the co­operative banks. The ‘central

co­operative bank’ was defined by substituting clause (bi) to Section 2

of the Reserve Bank of India Act, 1934. Similarly, ‘co­operative bank’,

‘co­operative credit society’ and ‘co­operative society’ were defined by

substituting Section 2(bii), Section 2(biii) and Section 2(biv)

respectively. The relevant definitions as inserted in the Reserve Bank

of India Act, 1934 are extracted hereunder:

“(bi) “central co­operative bank” means the principal
co­operative society in a district in a State, the
primary object of which is the financing of other co­
operative societies in that district:
Provided that in addition to such principal society
in a district or where there is no such principal
society in a district, the State Government may
declare any one or more co­operative societies
carrying on the business of financing other co­
operative societies in that district to be a central co­
operative bank or banks within the meaning of this
definition;

(bii) “co­operative bank” means a State co­operative
bank, a central co­operative bank and a primary co­
44

operative bank;

(biii) “co­operative credit society” means a co­
operative society, the primary object of which is to
provide financial accommodation to its members
and includes a co­operative land mortgage bank:

(biv) “co­operative society” means a society
registered, or deemed to be registered, under the
Co­operative Societies Act, 1912 or any other law
relating to co­operative societies for the time being
in force in any State;”

The ‘primary co­operative bank’ has been defined in Section

2(ciii), and ‘primary credit society’ has been defined in Section 2(civ).

The definitions are extracted hereunder:

“(ciii) “primary co­operative bank” means a co­
operative society, other than a primary agricultural
credit society,—
(1) the primary object or principal business of
which is the transaction of banking business;
(2) the paid­up share capital and reserves of
which are not less than one lakh of rupees; and
(3) the bye­laws of which do not permit admission
of any other co­operative society as a member;

(civ) “primary credit society” means a co­operative
society, other than a primary agricultural credit
society,—
(1) the primary object or principal business of
which is the transaction of banking business;
(2) the paid­up share capital and reserves of
which are less than one lakh of rupees; and
(3) the bye­laws of which do not permit admission
of any other co­operative society as a member;

Explanation.— If any dispute arises to the primary
object or principal business of any co­operative
society referred to in this clause or clause (cii) or
clause (ciii), a determination thereof by the Bank
shall be final.’;”

Other corresponding changes were brought in the provisions to

apply the Reserve Bank of India Act to co­operative banks.
45

(a) Various amendments have been carried out in the Banking

Companies Act, 1949, it was renamed as the BR Act, 1949. The

‘primary agricultural credit society’ was excluded from the purview of

the Reserve Bank of India Act and the BR Act, 1949. Co­operative

land mortgage banks and any other co­operative society except in the

manner and to the extent specified in Part V were also excluded.

Section 3 of the BR Act, 1949 was substituted as under:

“3. Nothing in this Act shall apply to­

(a) a primary agricultural credit society;

(b) a co­operative land mortgage bank; and

(c) any other co­operative society, except in the
manner and to the extent specified in Part V.”

(b) As it became necessary to apply certain provisions of the BR Act,

1949 to the co­operative banks in the modified form without inserting

the amendments/omissions in the various provisions, as that would

have made the understanding of provisions a little complicated.

Entire amendments made which applied to or about the co­operative

societies concerning co­operative banks were specified in Section 56,

Chapter V, though they had the effect of amending the main

provisions of the Act wherever they occurred.

(c) It was provided by Section 56(a) of the BR Act, 1949 that

throughout the Act, unless the context otherwise requires, references

to a banking company or the company or such company shall be

construed as references to a co­operative bank. Section 56(a)(i) and
46

(ii) is extracted hereunder:

“56. The provisions of this Act, as in force for the
time being, shall apply to, or in relation to, co­
operative societies as they apply to, or in relation to
banking companies subject to the following
modifications, namely:—

(a) Throughout this Act, unless the context
otherwise requires,—

(i) references to a “banking company” or,
“the company” or “such company” shall be
construed as references to a co­operative
bank,

(ii) references to “commencement of this
Act” shall be construed as references to
commencement of the Banking Laws
(Application to Co­operative Societies) Act,
1964”

By virtue of Section 56(b) in Section 2, the words and figures ‘the

Companies Act, 1956’ were omitted. After clause (cc) in Section 5

definition of ‘central co­operative banks’ in clause (ccc) was added as

under:

“(ccc) “central co­operative bank”, “co­operative
bank”, “co­operative society”, “director”, “primary
agricultural credit society”, “primary co­operative
bank”, “primary credit society” and “State co­
operative bank” shall have the meanings
respectively assigned to them in the Reserve Bank of
India Act, 1934.”

(d) Section 5A was modified concerning the co­operative banks.

Section 5A provided that the provisions of Part V shall prevail and

override bye­laws of a co­operative society or any agreement executed

by it, whether the same be registered, executed or passed, before or

after the commencement of the Banking Laws (Application to Co­

operative Societies) Act, 1964. Section 5A is extracted hereunder:

47

“5A. (1) The provisions of this Part shall have effect,
notwithstanding anything to the contrary contained
in the bye­laws of a co­operative society, or in any
agreement executed by it, or in any resolution
passed by it in general meeting, or by its Board of
directors or other body entrusted with the
management of its affairs, whether the same be
registered, executed or passed, as the case may be,
before or after the commencement of the Banking
Laws (Application to Co­operative Societies) Act,
1964.

(2) Any provision contained in the bye­laws,
agreement or resolution aforesaid shall, to the
extent to which it is repugnant to the provisions of
this Part, become or be void, as the case may be.”;”

(e) By virtue of provisions contained in Section 56(e) in Part V of the

BR Act, 1949 so far as it extends to co­operative society/banks, the

modification has been made in Section 6(1)(b) to the extent ‘but

excluding the business of a managing agent or secretary and treasurer

of the company’ shall be omitted. In clause (d) after the word

‘company,’ the words ‘or co­operative society’ shall be inserted.

(f) In Section 6(1) in clause (d), the words ‘co­operative society’ were

inserted after the word ‘company.’ For co­operative society to be

named as a co­operative bank, the following section was substituted:

“7. (1) No co­operative society other than a co­
operative bank shall use as part of its name any of
the words “bank”, “banker” or “banking” and no co­
operative society shall carry on the business of
banking in India unless it uses as part of its name
at least one of such words.

(2) Nothing in this section shall apply to­

(a) a primary credit society, or

(b) a co­operative society formed for the protection
48

of the mutual interests of co­operative banks or
co­operative land mortgage banks.;”
(emphasis supplied)

(g) Section 11 was substituted in application to co­operative banks.

The relevant portion of Section 11(1) is extracted hereunder:

“11. (1) Notwithstanding any law relating to co­
operative societies for the time being in force, no co­
operative bank shall commence or carry on the
business of banking in India unless the aggregate
value of its paid­up capital and reserves is not less
than one lakh of rupees:”

(h) Section 18 was substituted, which provided for maintaining cash

reserve. Every co­operative bank not being a State co­operative bank

included in the Second Schedule to the Reserve Bank of India Act,

1934, shall maintain in India by way of cash reserve of 3 per cent of

the amount. The relevant portion of Section 18 is extracted hereunder:

“18. Every co­operative bank, not being a State co­
operative bank ∙for the time being included in the
Second Schedule to the Reserve Bank of India Act,
1934, shall maintain in India, by way of cash
reserve with itself or in current account opened with
the Reserve Bank or the State Bank of India or the
State co­operative bank of the State concerned or
with any other bank notified by the Central
Government in this behalf or, in the case of a
primary co­operative bank, with the central co­
operative bank of the district concerned or partly in
cash with itself and partly in such account or
accounts, a sum equivalent to at least three per cent
of the total of its time and demand liabilities in India
and shall submit to the Reserve Bank before the
15th day of every month a return showing the
amount so held on Friday of each week of the
preceding month with particulars of its time and
demand liabilities in India on each such Friday, or,
if any such Friday is a public holiday under the
Negotiable Instruments Act, 1881, at the close of
business on the preceding working day.”
49

(i) Section 19 was substituted concerning the application to the co­

operative societies. The relevant portion of Section 19 is as under:

“19. No co­operative bank shall hold shares in any
other co­operative society except to such extent and
subject to such conditions as the Reserve Bank may
specify in that behalf: …”

The restriction was imposed under Section 19 on holding shares

in other co­operative societies except as provided by the Reserve Bank

of India.

(j) Section 22 of the BR Act, 1949, as amended in its application

with respect to the co­operative banks, provides that no co­operative

society shall carry on banking business in India unless it is a primary

credit society or a co­operative bank and holds a licence issued in that

behalf by the Reserve Bank. Thus, it was necessary that only primary

credit society could involve in the banking business in India and to

hold a licence from the Reserve Bank of India. The provisions of sub­

Sections (1) and (2) of Section 22 were also substituted in their

application to the co­operative bank as under:

“(0) in section 22,—

(i) for sub­sections (1) and (2), the following sub­
sections shall be substituted, namely:­
“(1) Save as hereinafter provided, no co­operative
society shall carry on banking business in India
unless—

(a) it is a primary co­operative society, or

(b) it is a co­operative bank and holds a licence
issued in that behalf by the Reserve Bank, subject
to such conditions, if any, as the Reserve Bank
may deem fit to impose:

50

Provided that nothing in this sub­section shall
apply to a co­operative society, not being a primary
credit society or a co­operative bank carrying on
banking business at the commencement of the
Banking Laws (Application to Co­operative Societies)
Act, 1964, for a period of one year from such
commencement.

(2) Every co­operative society carrying on business
as a co­operative bank at the commencement of the
Banking Laws (Application to Cooperative Societies)
Act, 1964, shall before the expiry of three months
from such commencement, every primary credit
society which becomes a primary co­operative bank
after such commencement shall before the expiry of
three months from the date on which it so becomes
a primary co­operative bank and every co­operative
society other than a primary credit society shall
before commencing banking business in India,
apply in writing to the Reserve Bank for a licence
under this section:

Provided that nothing in clause (b) of sub­section
(1) shall be deemed to prohibit a co­operative society
carrying on business as a co­operative bank at the
commencement of the Banking Laws (Application to
Co­operative Societies) Act, 1964, and a primary
credit society which becomes a primary co­operative
bank after such commencement, from carrying on
banking business until it is granted a licence in
pursuance of this section or is by notice in writing
informed by the Reserve Bank that a licence cannot
be granted to it.;”
(emphasis supplied)

(k) The embargo has also been created by sub­Section (1) of Section

23, to open a new place of business insofar as it applies to the co­

operative banks thus:

“(1) Without obtaining the prior permission of the
Reserve Bank, no co­operative bank shall open a
new place of business or change otherwise than
within the same city, town or village, the location of
an existing place of business:”

It has been made necessary by substituting Sections 29 and 30
51

for every co­operative bank to submit accounts and balance sheets to

the Reserve Bank of India. Reserve Bank of India has also been given

power under Section 35 to inspect primary co­operative banks. In

Section 35A(1)(c), after the words ‘banking company’, the words

‘banking business of any co­operative bank’ has been substituted.

Forms have also been prescribed for submitting balance sheet,

property, and assets, and profit and loss account.

Thus, it is apparent that deep and pervasive control by the

Reserve Bank of India is provided on primary credit society, which is

involved in banking. As per the provisions of the BR Act, 1949, no

business can be done by any co­operative society without obtaining a

licence from the Reserve Bank of India. The very existence of the co­

operative banks is dependent and is governed by the Reserve Bank of

India Act as well as the BR Act, 1949. The aforesaid legislations are

under Entry 38 and Entry 45, respectively, of List I of the Constitution

of India.

27. Before proceeding further, it is necessary to consider the

provisions contained in the SARFAESI Act. The SARFAESI Act has

been enacted to regulate securitisation and reconstruction of financial

assets and enforcement of security interest and for matters connected

therewith and incidental to that. It was considered that banks do not

have the power to take possession of the property and sell them. The
52

legal system related to commercial transactions has not kept pace

with the changing commercial practices and financial sector reforms.

The relevant portion of the Statement of Objects and Reasons of the

SARFAESI Act is extracted hereunder:

“STATEMENT OF OBJECTS AND REASONS
The financial sector has been one of the key drivers
in India’s efforts to achieve success in rapidly
developing its economy. While the banking industry
in India is progressively complying with the
international prudential norms and accounting
practices there are certain areas in which the
banking and financial sector do not have a level
playing field as compared to other participants in
the financial markets in the world. There is no legal
provision for facilitating securitisation of financial
assets of banks and financial institutions. Further,
unlike international banks, the banks and financial
institutions in India do not have power to take
possession of securities and sell them. Our existing
legal framework relating to commercial transactions
has not kept pace with the changing commercial
practices and financial sector reforms. This has
resulted in slow pace of recovery of defaulting loans
and mounting levels of non­performing assets of
banks and financial institutions. Narasimham
Committee I and II and Andhyarujina Committee
constituted by the Central Government for the
purpose of examining banking sector reforms have
considered the need for changes in the legal system
in respect of these areas. These Committees, inter
alia, have suggested enactment of a new legislation
for securitisation and empowering banks and
financial institutions to take possession of the
securities and to sell them without the intervention
of the court. Acting on these suggestions, the
Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest
Ordinance, 2002 was promulgated on the 21st
June, 2002 to regulate securitisation and
reconstruction of financial assets and enforcement
of security interest and for matters connected
therewith or incidental thereto. The provisions of the
Ordinance would enable banks and financial
institutions to realise long­term assets, manage
problem of liquidity, asset liability mismatches and
53

improve recovery by exercising powers to take
possession of securities, sell them and reduce non­
performing assets by adopting measures for
recovery or reconstruction.

2. It is now proposed to replace the Ordinance by a
Bill, which, inter alia, contains provisions of the
Ordinance to provide for—

(g) defining ‘security interest’ as any type of
security including mortgage and charge on
immovable properties given for due repayment of
any financial assistance given by any bank or
financial institution;

(h) empowering banks and financial institutions
to take possession of securities given for financial
assistance and sell or lease the same or take over
management in the event of default, i.e.
classification of the borrower’s account as non­
performing asset in accordance with the
directions given or guidelines issued by the
Reserve Bank of India from time to time;”

28. Under Section 13 of the SARFAESI Act, it is open to the Bank to

enforce the security interest without intervention of the court or

tribunal in accordance with the provisions of the Act, and the appeal

to Debts Recovery Tribunal is provided. The Appellate Tribunal has

been defined to mean Debts Recovery Appellate Tribunal, and the right

to appeal/application against the action has been provided in Section

17 to the Debts Recovery Tribunal. Thus, Debts Recovery Tribunal is

constituted under the RDB Act, 1993.

29. What is of significance is the definitions of ‘bank’ and ‘banking’

which have been provided in the SARFAESI Act in Section 2(1)(c) and

2(1)(d) respectively thus:

54

“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—

(c) “bank” means—

(i) a banking company; or

(ii) a corresponding new bank; or

(iii) the State Bank of India; or

(iv) a subsidiary bank; or
(iva) a multi­State co­operative bank; or

(v) such other bank which the Central
Government may, by notification, specify for
the purposes of this Act;

***

(d) “banking company” shall have the meaning
assigned to it in clause (c) of section 5 of the
Banking Regulation Act, 1949 (10 of 1949);”

30. In exercise of power conferred under Section 2(1)(c)(v) of the

SARFAESI Act, a notification was issued by the Ministry of Finance

and Company Affairs on 28.1.2003 specifying co­operative banks as

defined in clause (cci) of Section 5 of the BR Act, 1949 for the purpose

of the SARFAESI Act. Following notification was issued:

“S.O.105 (E).— In exercise of the powers
conferred under item (v) of clause (c) of Sub­
section (1) of Section 2 of the Securitisation and
Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (54 of
2002), the Central Government hereby specifies
“Co­operative Bank” as defined in clause (cci) of
Section 5 of the Banking Regulation Act 1949 (10
of 1949) as ‘bank’ for the purpose of the
Securitization and Reconstruction of Financial
Assets and Enforcement of Security Interest Act,
2002 (54 of 2002).”

31. In Section 2(1)(c) of the SARFAESI Act, further amendments have

been made by incorporating a ‘multi­State co­operative bank,’ w.e.f.

15.1.2013 by way of Enforcement of Security Interest and Recovery of
55

Debts Laws (Amendment) Act, 2012 (No.1 of 2013). Other provisions

of the SARFAESI Act were also amended. A similar amendment was

made to the RDB Act, 1993, in Section 2(d) by inserting clause (vi) ‘a

multi­State co­operative bank.’ Section 2(d) is extracted hereunder:

“2. Definitions.—In this Act, unless the context
otherwise requires,—

(d) “bank” means—

(i) a banking company;

(ii) a corresponding new bank;

(iii) State Bank of India;

(iv) a subsidiary bank; or

(v) a Regional Rural Bank;

(vi) a multi­State­co­operative bank;”

32. We have to examine the legislative competence of the Parliament

with respect to co­operative banks within the State as the MSCS Act,

2002 is enacted in exercise of power under Entry 44 List I of the

Seventh Schedule of the Constitution of India. The legislative

competence of Parliament regarding the MSCS Act, 2002 is not in

issue.

MEANING OF ‘BANKING’

33. The main issue is as to the meaning of ‘banking’ used in Entry

45 of List I of the Seventh Schedule of the Constitution of India. It is

necessary to understand the meaning of ‘bank’ and ‘banking.’ Before

the Constitution was promulgated, banking was dealt with by the

erstwhile Banking Companies Act, 1949. Upon its extension to co­

operative banks run by co­operative societies, it was renamed as the
56

BR Act, 1949. Before we consider the definition of ‘banking’ under the

BR Act, 1949, it is necessary to understand the meaning of ‘bank’ and

‘banking.’ The bank ordinarily means any establishment which

carries the business of banking. The expression ‘bank’ has been

defined in several enactments. In Concise Oxford English Dictionary,

‘bank’ has been defined thus:

“bank • n. 1 a financial establishment that uses
money deposited by customers for investment, pays
it out when required, makes loan at interest, and
exchanges currency.”

In Concise Oxford English Dictionary, the word ‘banking’ has

been defined thus:

“banking • n. the business conducted or services
offered by a bank.”

In Black’s Law Dictionary, Ninth Edition ‘banking’ means the

business carried on by or with a bank. ‘Bank’ is defined thus:

“bank. (15c) 1. A financial establishment for the
deposit, loan, exchange, or issue of money and for
the transmission of funds; esp., a member of the
Federal Reserve System. • Under securities law, a
bank includes any financial institution, whether or
not incorporated, doing business under federal or
state law, if a substantial portion of the institution’s
business consists of receiving deposits or exercising
fiduciary powers similar to those permitted to
national banks and if the institution is supervised
and examined by a state or federal banking
authority; or a receiver, conservator, or other
liquidating agent of any of the above institutions.
15USCA § 78c(a)(6). [Cases: Banks and Banking 2,
232, 289, 359.].

2. The office in which such an establishment
conducts transactions.”
57

Banks can be of different kinds such as Co­operative Bank,

Collecting Bank, Commercial Bank, Correspondent Bank, Custodian

Bank, Depository Bank, Drawee Bank, Federal Home Loan Bank,

Federal Land Bank, Intermediary Bank, Investment Bank, Mutual

Savings Bank, Nationalised Banks, Negotiable Bank, Non­Member

Bank, Payor Bank, Savings and Loan Bank, Saving Bank.

The expression ‘bank’ has been defined in various enactments

relating to it.

34. The ‘Reserve Bank’ has been defined in Section 5(l) to mean

Reserve Bank of India constituted under Section 3 of the Reserve

Bank of India Act, 1934 (2 of 1934). Section 5(ha) defines the

‘National Bank’ to mean the National Bank for Agriculture and Rural

Development established under Section 3 of the National Bank for

Agriculture and Rural Development Act, 1981. The ‘State Bank of

India’ is defined in Section 5(nc) to mean the State Bank of India

constituted under Section 3 of the State Bank of India Act, 1955 (23 of

1955).

35. The term ‘banking’ used in Entry 45 List I, came up for

consideration in Rustom Cavasjee Cooper (supra), in which 11­Judge

Bench of this Court considered the question of ‘banking’ and observed:
58

“27. The argument raised by Mr Setalvad,
intervening on behalf of the State of Maharashtra
and the State of Jammu and Kashmir, that the
Parliament is competent to enact Act 22 of 1969,
because the subject­matter of the Act is “with
respect to” regulation of trading corporations and
matters subsidiary and incidental thereto, and on
that account is covered in its entirety by Entries 43
and 44 of List I of the Seventh Schedule, cannot be
upheld. Entry 43 deals with incorporation,
regulation and winding up of trading corporations
including banking companies. Law regulating the
business of a corporation is not a law with respect
to regulation of a corporation. In List I entries
expressly relating to trade and commerce are
Entries 41 and 42. Again several entries in List I
relate to activities commercial in character. Entry 45
“Banking”; Entry 46 “Bills of exchange, cheques,
promissory notes and other like instruments”; Entry
47 “Insurance”; Entry 48 “Stock Exchanges and
future markets”; Entry 49 “Patents, inventions and
designs”. There are several entries relating to
activities commercial as well as non­commercial in
List II — Entry 21 “Fisheries”; Entry 24 “Industries
X X X” ; Entry 25 “Gas and Gas works”; Entry 26
“Trade and commerce”; Entry 30 “Money­lending
and money­lenders”; Entry 31 “Inns and Inn­
keeping”; Entry 33 “Theatres and dramatic
performances, cinemas etc.”. We are unable to
accede to the argument that the State Legislatures
are competent to legislate in respect of the subject­
matter of those entries only when the commercial
activities are carried on by individuals and not when
they are carried on by corporations.

31. The expression “banking” is not defined in any
Indian statute except in the Banking Regulation Act,
1949. It may be recalled that by Section 5(b) of that
Act “banking” means “the accepting for the purpose
of lending or investment of deposits of money from
the public repayable on demand or otherwise, and
withdrawable by cheque, draft or otherwise”. The
definition did not include other commercial activities
which a banking institution may engage in.

32. In support of his contention Mr Palkhivala relied
upon the observation of Lord Porter in
Commonwealth of Australia v. Bank of New South
Wales, LR (1950) AC 235 that banking consists of
59

the creation and transfer of credit, the making of
loans, purchase and disposal of investments and
other kindred transactions; and upon the statement
in Halsbury’s Laws of England, 3rd Edn., Vol. 2,
Article 270 at pp. 150 and 151 that:

“A ‘banker’ is an individual partnership or
corporation, whose sole or predominating
business is banking, that is the receipt of money
on current or deposit account and the payment of
cheques drawn by and the collection of cheques
paid by a customer.”
and in the footnote (g) at p. 151 that:

“Numerous other functions are undertaken at
the present day by banks such as the payment of
domiciled bills, custody of valuables, discounting
bills, executor and trustee business, or acting in
relation to stock exchange transactions, and
banks have functions under certain financial
legislation, X X X .”
These functions are not strictly banking business.

33. The Attorney­General said that the expression
“banking” in Entry 45, List I means all forms of
business which since the introduction of western
methods of banking in India, banking institutions
have been carrying on in addition to banking as
defined in Section 5(b) of the Banking Regulation
Act, and on that account all forms of business
described in Section 6(1) of the Banking Regulation
Act in clauses (a) to (n) are, if carried on in addition
to the “hard­core of banking” banking and the
Parliament is competent to legislate in respect of
that business under Entry 45, List I. In support of
his contention that apart from the business of
accepting money from the public for lending or
investment, and withdrawable by cheque, draft or
otherwise, banking includes many allied business
activities which banking institutions were engaged
in, the Attorney­General invited our attention to
clause 21 of the Charter of the Bank of Bengal (Act
6 of 1839); Section 27 of Act 4 of 1862; to Sections
36 and 37 of the Presidency Banks Act 11 of 1876;
to Section 91(15) of the British North America Act;
to Paget’s Law of Banking, 7th Edn., at p. 5; to the
Standard Form of Memorandum of Association of a
Banking Company in Palmer’s Company Precedents
Form 138; and to the Statement of Objects and
60

Reasons in support of the Bill which was enacted as
the Indian Companies (Amendment) Act, 1936.

34. The Charter of the Bank of Bengal, the
Presidency Banks Act 4 of 1862, Ch. X­A of the
Indian Companies Act, 1913, as incorporated by the
Indian Companies (Amendment) Act, 1936, merely
described the business which a banking institution
could carry on. It was not intended thereby to
include those activities within the expression
“banking”. The Acts enacted after the Banking
Regulation Act, 1949, also support that inference.
Under Section 33 of the State Bank of India Act,
1955, the State Bank is entitled to carry on diverse
business activities beside banking. Similarly the
Banks subsidiary to the State Bank were by Section
36 of Act 38 of 1959 to act as agents of the State
Bank, and also to carry on and transact business of
banking as defined in Section 5(b) of the Banking
Regulation Act, 1949, and were also competent to
engage in such one or more other forms of business
specified in Section 6(1) of that Act. These
provisions do not aid in construing the Entry
“Banking” in Entry 45, List I.

35. In modern times in India as elsewhere, to attract
business, banking establishments render, and
compete in rendering, a variety of miscellaneous
services for their constituents. If the test for
determining what “banking” means in the
constitutional entry is any commercial activity
which bankers at a given time engage in, great
obscurity will be introduced in the content of that
expression. The coverage of constitutional entry in a
Federal Constitution which carves out a field of
legislation must depend upon a more satisfactory
basis.

36. The legislative entry in List I of the Seventh
Schedule is “Banking” and not “Banker” or “Banks”.
To include within the connotation of the expression
“Banking” in Entry 45, List I, power to legislate in
respect of all commercial activities which a banker
by the custom of bankers or authority of law
engages in, would result in re­writing the
Constitution. Investment of power to legislate on a
designated topic covers all matters incidental to the
topic. A legislative entry being expressed in a broad
61

designation indicating the contour of plenary power
must receive a meaning conducive to the widest
amplitude, subject however to limitations inherent
in the federal scheme which distributes legislative
power between the Union and the constituent units.
The field of “banking” cannot be extended to include
trading activities which not being incidental to
banking encroach upon the substance of the entry
“trade and commerce” in List II.

148. Counsel for the petitioner contended that the
word “banking” would have the same meaning as
the definition of “banking” occurring in Section 5(b)
of the Banking Regulation Act of 1949 hereinafter
referred to for the sake of brevity as the 1949 Act.
This contention was amplified to exclude four types
of business from the banking business and
therefore the Act of 1969 was said to be not within
the legislative competence of Banking under Entry
45 in List I. These four types of business are: (1) the
receiving of scrips or other valuables on deposit or
for safe custody and providing of safe deposit vaults,
(2) agency business, (3) business of guarantee,
giving of indemnity and underwriting and (4)
business of acting as executors and trustees.
“Banking” was defined for the first time in the 1949
Act as meaning the acceptance for the purpose of
lending or investments of deposits of money from
the public repayable on demand or otherwise and
withdrawable by cheque, draft or otherwise. In
England there is no statutory definition of banking
but the Courts have evolved a meaning and
principle as to what the legitimate business of a
bank is.

152. Keeping valuables for safe custody, the
providing of safe deposit vaults occur in clause (a) of
Section 6(1) along with various types of business
like borrowing, raising or taking up of money, or
lending or advancing of money. It will appear from
clause (n) of Section 6(1) of the 1949 Act that in
addition to the forms of business mentioned in
clauses (a) to (m) a banking company may engage in
“doing all such other things as are incidental or
conducive to the promotion or advancement of the
business of the company”. The words “other things”
appearing in clause (n) after enumeration of the
various types of business in clauses (a) to (m) point
to one inescapable conclusion that the businesses
62

mentioned in clauses (a) to (m) are all incidental or
conducive to the promotion or advancement of the
business of the company. Therefore these
businesses are not only legitimate businesses of the
banks but these also come within the normal
business activities of commercial banks of repute.
Entry 45 in List I of the 7th Schedule of the
Constitution, namely, “banking” will therefore have
the wide meaning to include all legitimate
businesses of a banking company referred to in
Section 5(b) as well as in Section 6(1) of the 1949
Act. The contention on behalf of the petitioner that
the four disputed businesses are not banking
businesses is not supportable either on logic or on
principle when businesses mentioned in the sub­
clauses of Section 6(1) of the 1949 Act are
recognised to be legitimate business activities of a
banking company by statute and practice and usage
fully supports that view.

158. It was suggested by counsel for the petitioner
that by banking business is meant only the hard
core of banking as defined in Section 5(b) of the
1949 Act. It is unthinkable that the business of
banks is only confined to that aspect and not to the
various forms of business mentioned in Section 6(1)
of the 1949 Act. Receiving valuables on deposit or
for safe custody and providing for safe custody
vaults which are contemplated in clause (a) of
Section 6(1) of the 1949 Act cannot be dissociated
from other forms of unchallenged business of a
bank mentioned in that clause because any such
severance would be illogical particularly when
deposit for safe custody and safe deposit vaults are
mentioned in the long catalouge of businesses in
clause (a). The agency business which is mentioned
in clause (b) of Section 6(1) is one of the recognised
forms of business of commercial banks with regard
to mercantile transactions and payment or
collection of price. Agency is after all a
comprehensive word to describe the relationship of
appointment of the bank as the constituent’s
representative. The forms of agency transactions
may be varied. It may be acting as collecting agent
or disbursing agent or as depository of parties. The
categories of agency can be multiplied in terms of
transactions. That is why the business of agency
mentioned in clause (b) is first in the general form of
acting as an agent for any Government or local
63

authority, secondly carrying on of agency business
of any description including the clearing and
forwarding of goods and thirdly acting as attorney
on behalf of the customers. The business of
guarantee is in the modern commercial word
practically indissolubly connected with a bank and
forms a part of the business of the bank. It is almost
common place for Courts to insist on bank
guarantee in regard to furnishing of security. There
may be so many instances of guarantee. As to the
business of trusteeship and executorship it may be
said that this is the wish of the settler who happens
to be a constituent of the bank appointing the bank
as executor or trustee because of the utmost faith
and confidence that the constituent has in the
solvency and stability of the bank and also to
preserve the continuity of the trustee or the
executor irrespective of any change by reason of
death or any other incapacity. It is needless to state
that these four disputed forms of business all spring
out of the relation between the bank on the one
hand and the customer on the other and the bank
earns commission on these transactions or charges
fees for the services rendered. Although trust
accounts may be kept in a separate account all
moneys arising out of the trust money go to the
general pool of the bank and the bank utilises the
money and very often trust moneys may be kept in
fixed deposit with the trustee bank and expenses on
account of the trust are met out of the general funds
of the trustee bank. Payments to beneficiaries are
made by crediting the beneficiaries accounts in the
trustee bank and if they are not constituents other
modes of payment through other banks are adopted.
The position of the banks as executor is similar to
that of a trustee. Whatever moneys the bank may
spend are recouped by the bank out of the accounts
of the trust estate.

160. There are various provisions in the 1949 Act to
indicate that a banking company cannot carry on
business of a managing agent or Secretary and
treasurer of a company and that it cannot acquire,
construct, maintain, alter any building or works
other than those necessary or convenient for the
purpose of the company. A banking company
cannot acquire or undertake the whole or any
portion of any business unless such business is of
one of those enumerated in Section 6(1) of the 1949
64

Act. A bank cannot deal in buying or selling or
bartering of goods except in connection with certain
purposes related to some of the businesses
enumerated in the aforesaid Section 6(1). These
provisions also establish that businesses mentioned
in Section 6 of the 1949 Act are incidental and
conducive to banking business. A bank cannot
employ any person whose remuneration is in the
form of a commission or a share in the profits of the
banking company or whose remuneration is in the
opinion of the Reserve Bank excessive. One of the
most important provisions is Section 35 of the 1949
Act, which states that the Reserve Bank at any time
may and on being directed so to do by the Central
Government cause an inspection to be made by one
or more of its officers of the books of account and to
report to the Central Government on any inspection
and the Central Government thereafter if it is of
opinion after considering the report that the affairs
of the banking company are being conducted to the
detriment of the interests of its depositors, may
prohibit the banking company from receiving fresh
deposits or direct the Reserve Bank to apply under
Section 38 for the winding up of the banking
company. Another important provision in the 1949
Act, is found in Section 27 which provides for
monthly returns in the prescribed form and manner
showing assets and liabilities. The power of the
Reserve Bank under Sections 27 and 35 of the 1949
Act relates to the affairs of the banking company
which comprehend the various forms of business of
the bank mentioned in Section 6 of the 1949 Act.
Then again Section 29 of the 1949 Act contemplates
accounts relating to accounts of all business
transacted by the bank. Section 35­A of the 1949
Act confers power on the Reserve Bank to give
directions with regard to the affairs of a bank. These
provisions indicate beyond any measure of doubt
that all forms of business mentioned in Section 6(1)
of the 1949 Act are lawful, legitimate businesses of a
bank as these have grown along with increase of
trade and commerce. The word “banking” has never
had any static meaning and the only meaning will
be the common understanding of men and the
established practice in relation to banking. That is
why all these disputed forms of business come
within the legitimate business of a bank.”
(emphasis supplied)
65

The submission raised by the petitioner that banking business

meant only the hardcore of banking, was not accepted. It was held

that the word ‘banking’ has never had any static meaning, and the

only meaning will be the common understanding of men and the

established practice about banking. Various forms of business come

within the legitimate business of a bank.

36. It was argued on behalf of appellants that the BR Act, 1949

recognises two categories of finance activity which a bank may

undertake such as (1) the banking business under Section 5(b), i.e.,

core banking business; and (2) any other business as provided in

Section 6(1). For the purpose, reliance has been placed on Rustom

Cavasjee Cooper (supra). The decision of the High Court of Calcutta in

Mahaluxmi Bank Ltd. (supra), is pressed into service, wherein it was

held:

“5. After this an application was made to this Court for
sanction of the special resolution effecting the said
alterations. The Court directed certain advertisements
to issue and also directed service of the usual notices as
required by Sec.17 of the Companies Act, 1956. The
Registrar of Joint Stock Companies filed an affidavit­in­
opposition and at the hearing opposed the application
but no creditor or share­holder of the company opposed
the application. P. B. Mukharji, J., before whom the
application was heard, gave effect to the contentions
raised by the Registrar and dismissed the application.
In dismissing the application the learned Judge made
inter alia the following observations in his judgment:

“At the outset it must be said that it is a curious
application. If the object is “to lend money to such
person or persons or firms and at such terms as
may seem expedient,” then it may amount to
some kind of a banking in disguise. It is quite
66

true that under the Banking Companies Act,
banking’ is defined to mean the acceptance, “for
the purpose of lending or investment of deposits
of money from the public, repayable on demand
or otherwise, and withdrawable by cheque, draft,
order or otherwise.” With a little clever
manipulation, the petitioner might go on doing
the banking business under the proposed
amendment although by allowing such
amendment it will put on the garb of a non­
banking company.”

It has been argued that these observations of the
learned Judge are due to a misconception of the true
nature and character of a banking business. Reliance is
placed by the learned counsel for the appellant
company on the definition of the word ‘banking’ as
given in Sec.5 (1)(b) of the Banking Companies Act,
1949, which is as follows:

“‘Banking’ means the accepting, for the purpose
of lending or investment, of deposits of money
from the public, repayable on demand or
otherwise, and withdrawable by cheque, draft,
order or otherwise.”

Now this definition makes it clear that receiving money
on deposit from customers and honouring their
cheques is the essential characteristic of banking. The
money deposited by the customers can be utilised by
the banker for lending it or for investing it but the bank
also undertakes the obligation to repay the deposit on
demand or otherwise and the mode by which the
withdrawal of the deposit can be effected is by the issue
of cheques, drafts, orders or otherwise, that is, by like
methods.

6. In Hart’s Law of Banking, a banker or bank is
defined as one who, in the ordinary course of his
business, receives money which he pays by honouring
the cheques of persons from or on whose account he
receives it. Sir John Paget in his book On Banking has
pointed out that “no person or body corporate or
otherwise can be a banker who does not (1) take deposit
accounts, (2) take current accounts, (3) issue and pay
cheques, and (4) collect cheques crossed and uncrossed
for his customers.” Sheldon in his book on the Practice
and Law of Banking, seventh edition at page 183,
formulates the following definition of a banker.

“A person cannot claim to be carrying on the
67

business of banking unless he receives money or
instruments representing money on current
account, honours cheques drawn thereon, and
collects the proceeds of cheques which his
customers place into his hands for collection.”

In the case of Re Bottomgate Industrial Co­operative
Society, (1891) 65 LT 712 at p. 714, Smith, J. defines
the business of bankers thus:

“The principal part of the business of a banker is
receiving money on deposit, allowing the same to
be drawn against as and when the depositor
desires, and paying interest on the amounts
standing on deposit.”

7. Then Sec.6 (1) of the Banking Companies Act, 1949,
provides that in addition to the business of banking, a
banking company may engage in any one or more of the
different kinds of business specified in the various sub­
clauses of sub­sec. (1) of Sec. 6. This indicates that the
main or real business of a banking company is as
stated in Sec. 5 (1)(b) of the Act but banking companies
usually carry on and are permitted to carry on other
kinds of business which are auxiliary or incidental to
the main business. Sub­section (2) of Sec. 6 Iays down
that no banking company shall engage in any form of
business other than those referred to in sub­section (1).

So the banking company is expressly prohibited from
carrying on any kind of incidental or allied business
other than those enumerated in sub­clauses (a) to (o) of
sub­section (1) of Sec. 6 of the Act. Thus it is
abundantly clear that the essence of banking is the
relationship which is brought into existence at the time
of the deposit; that is the core of banking. It is true that
the business of banking covers every possible phase or
combination of deposit, custody, investment, loan,
exchange, issue and transmission of money, creation
and transfer of credit and other kindred activities but if
the essential characteristic of banking, namely, the
power to receive deposits from the public which are
repayable in the manner indicated in Sec. 5 (1) (b) of
the Banking Companies Act is absent and merely the
power of granting loans is retained and exercised that,
in my view, does not make the company a banking
company. Lending of money may be one phase of a
banking business but it is not the main phase or the
distinguishing phase. In the case of Bank of Commerce
Ltd. v. Kunja Behari Kar, 1944 FCR 370: (AIR 1945 FC

2) it was argued before the Federal Court that Bengal
68

Money Lenders’ Act, 1940, was a legislation which fell
within the item of banking in entries Nos. 33 and 38 of
List 1 of Schedule VII of the Government of India Act,
1935 inasmuch as lending money to customers or
advancing money on promissory notes is a principal
part of the banking business and the case of Tennant v.
Union Bank of Canada, 1894 AC 31 was referred to, but
the Federal Court did not accept the contention. It was
pointed out that money lending by a bank qua bank
might make such money lending part of a banking
business but not otherwise (per Spens, C. J. at page

389).”

37. The decision in ICICI Bank Ltd. (supra) has been relied upon in

which the Court emphasised that even if different businesses under

clause (a) to (o) of section 6(1) are shut down, the company would still

be a banking company as long as it is performing the core banking

functions under Section 5(b). The Court observed:

“37. The point we are trying to make is that apart
from the principal business of accepting deposits
and lending the said 1949 Act leaves ample scope
for the banking companies to venture into new
businesses subject to such businesses being subject
to the control of the regulator viz. RBI. In other
words, the 1949 Act allows banking companies to
undertake activities and businesses as long as they
do not attract prohibitions and restrictions like
those contained in Sections 8 and 9. In this
connection we need to emphasise that Section 6(1)

(n) enables a banking company to do all things as
are incidental or conducive to promotion or
advancement of the business of the company.
Section 6(1) enables banking companies to carry on
different types of businesses. Under Section 6(1),
these different types of businesses are in addition to
business of banking viz. core banking. The
importance of the words “in addition to” in Section
6(1) is that even if different businesses under
clauses (a) to (o) are shut down, the company would
still be a banking company as long as it is in the
core banking of accepting deposits and lending so
that its main income is from the spread or what is
called as “interest income”. Thus, we may broadly
69

categorise the functions of the banking company
into two parts viz. core banking of accepting
deposits and lending and miscellaneous functions
and services. Section 6 of the BR Act, 1949 provides
for the form of business in which banking
companies may engage. Thus, RBI is empowered to
enact a policy which would enable banking
companies to engage in activities in addition to core
banking and in the process it defines as to what
constitutes “banking business”.”

38. Learned counsel urged that performing core banking function is

the sine qua non for being regulated by the BR Act, 1949. The BR Act,

1949 applies to a primary credit society which has been brought

within its purview, leaving out primary agricultural credit society and

a co­operative land mortgage bank. The business of banking cannot

be carried out in India as per Section 22 of the BR Act, 1949 as

applicable to the co­operative banks/societies, unless it is a primary

credit society, and it is a co­operative bank and holds a licence issued

by the Reserve Bank of India. It is not in dispute that all co­operative

banks run by cooperative societies hold the licence, and all co­

operative banks are doing the business within the purview of the BR

Act, 1949. We are unable to accept the submission that banking

under Entry 45 of List I does not cover ‘co­operative banks’. The

activity of the co­operative bank is covered under Section 5(1)(b). A

similar submission was not accepted in Rustom Cavasjee Cooper

(supra). No doubt about it that every commercial activity cannot be

brought within the scope of ‘banking’ in Entry 45 of List I. ‘Banking’

itself has a wide meaning, and the activity of co­operative banks is
70

definitely, beyond an iota of doubt, covered by Entry 45 of List I.

39. It was argued on behalf of appellants that banking’s legal term

‘nomen juris’ is defined under Section 5(b) of the BR Act, 1949. When

the Constitution was being drafted, the definition of ‘banking’ in the

said Act prevailed. The makers of the Constitution adopted the same

expression. Thus, intent bore the precise and definite meaning it had

in law and, therefore, must be construed having regard to its known

legal import. For this purpose, reference has been made to the

observations made by this Court in Gannon Dunkerley Co., (Madras)

Ltd. (supra), in which it was held:

“(36) The principle of these decisions is that when,
after the enactment of a legislation, new facts and
situations arise which could not have been in its
contemplation, the statutory provisions could
properly be applied to them if the words thereof are
in a broad sense capable of containing them. In that
situation, “it is not,” as observed by Lord Wright in
1936 AC 578 (H), “that the meaning of the words
changes, but the changing circumstances illustrate
and illuminate the full import of that meaning”. The
question then would be not what the framers
understood by those words, but whether those
words are broad enough to include the new facts.
Clearly, this principle has no application to the
present case. Sales tax was not a subject which
came into vogue after the Government of India Act,
1935. It was known to the framers of that statute
and they made express provision for it under Entry

48. Then it becomes merely a question of
interpreting the words, and on the principle, already
stated, that words having known legal import
should be construed in the sense which they had at
the time of the enactment, the expression “sale of
goods” must be construed in the sense which it has
in the Sale of Goods Act.

71

(37) A contention was also urged on behalf of the
respondents that even assuming that the expression
“sale of goods” in Entry 48 could be construed as
having the wider sense sought to be given to it by
the appellant and that the provisions of the Madras
General Sales Tax Act imposing a tax on
construction contracts could be sustained as within
that entry in that sense, the impugned provisions
would still be bad under S. 107 of the Government
of India Act, and the decision in Dukhineswar
Sarkar v. Commercial Tax Officer, (S) AIR 1957 Cal
283 (Z19) was relied on in support of this
contention. Section 107, so far as is material, runs
as follows:

S. 107 — (1) “If any provision of a Provincial
law is repugnant to any provision of a Dominion
law which the Dominion Legislature is competent
to enact or to any provision of an existing law
with respect to one of the matters enumerated in
the Concurrent Legislative List, then, subject to
the provisions of this section, the Dominion law,
whether passed before or after the Provincial law,
or, as the case may be, the existing law, shall
prevail and the Provincial law shall, to the extent
of the repugnancy, be void.

(2) Where a Provincial law with respect to one
of the matters enumerated in the Concurrent
Legislative List contains any provision repugnant
to the provisions of an earlier Dominion law or an
existing law with respect to that matter, then, if
the Provincial law, having been reserved for the
consideration of the Governor­General has
received the assent of the Governor­General, the
Provincial law shall in that Province prevail, but
nevertheless the Dominion Legislature may at any
time enact further legislation with respect to the
same matter.”

Now, the argument is that the definition of “sale”
given in the Madras General Sales Tax Act is in
conflict with that given in the Sale of Goods Act,
1930, that the sale of goods is a matter falling
within Entry 10 of the Concurrent List, and that, in
consequence, as the Madras General Sales Tax
(Amendment) Act, 1947, (Mad. 25 of 1947) under
which the impugned provisions had been enacted,
had not been reserved for the assent of the
Governor­General as provided in S. 107 (2). Its
provisions are bad to the extent that they are
72

repugnant to the definition of “sale” in the Sale of
Goods Act, 1930. The short answer to this
contention is that the Madras General Sales Tax Act
is a law relating not to sale of goods but to tax on
sale of goods, and that it is not one of the matters
enumerated in the Concurrent List or over which
the Dominion legislature is competent to enact a
law, but is a matter within the exclusive competence
of the Province under Entry 48 in List II. The only
question that can arise with reference to such a law
is whether it is within the purview of that Entry. If it
is, no question of repugnancy under S. 107 can
arise. The decision in (S) AIR 1957 Cal 283 (Z19) on
this point cannot be accepted as sound.”

In Diamond Sugar Mills Ltd. (supra), it was held:

“(10) In considering the meaning of the words “local
area” in entry 52 we have, on the one hand to bear
in mind the salutary rule that words conferring the
right of legislation should be interpreted liberally
and the powers conferred should be given the widest
amplitude; on the other hand we have to guard
ourselves against extending the meaning of the
words beyond their reasonable connotation, in an
anxiety to preserve the power of the legislature. In
Re the Central Provinces Berar Sales of Motor
Spirit and Lubricants Taxation Act, 1938, 1939 FCR
18 at p. 37: (AIR 1939 FC 1 at p. 4) Sir Maurice
Gwyer, C.J., observed:

“I conceive that a broad and liberal spirit
should inspire those whose duty it is to interpret
it; but I do not imply by this that they are free to
stretch or pervert the language of the enactment
in the interests of any legal or constitutional
theory, or even for the purpose of correcting any
supposed errors.”
Again, in Navinchandra Mafatlal v. Commissioner
of Income Tax, Bombay City, 1955 1 SCR 829: ( (S)
AIR 1955 SC 58) Das, J. (as he then was) delivering
the judgment of this Court observed: —
“………. The cardinal rule of interpretation
however, is that words should be read in their
ordinary, natural and grammatical meaning
subject to this rider that in construing words in a
constitutional enactment conferring legislative
power the most liberal construction should be put
upon the words so that the same may have effect
in their widest amplitude.”
73

(25) It is true that when words and phrases
previously interpreted by the courts are used by the
Legislature in a later enactment replacing the
previous statute, there is a presumption that the
Legislature intended to convey by their use the same
meaning which the courts had already given to
them. This presumption can however only be used
as an aid to the interpretation of the later statute
and should not be considered to be conclusive. As
Mr Justice Frankfurter observed in Federal
Communication Commissioner v. Columbia
Broadcasting System of California, (1940) 311 U.S.
132 when considering this doctrine, the persuasion
that lies behind the doctrine is merely one factor in
the total effort to give fair meaning to language. The
presumption will be strong where the words of the
previous statute have received a settled meaning by
a series of decisions in the different courts of the
country; and particularly strong when such
interpretation has been made or affirmed by the
highest court in the land. We think it reasonable to
say however that the presumption will naturally be
much weaker when the interpretation was given in
one solitary case and was not tested in appeal. After
giving careful consideration to the view taken by the
learned Judge of the Allahabad High Court in ILR
(1942) All 302: (AIR 1942 All 156) (supra) about the
meaning of the words “local area” proper weight to
the rule of interpretation mentioned above, we are of
opinion that the Constitution makers did not use
the words “local area” in the meaning which the
learned Judge attached to it. We are of opinion that
the proper meaning to be attached to the words
“local area” in Entry 52 of the Constitution, (when
the area is a part of the State imposing the law) is
an area administered by a local body like a
municipality, a district board, a local board, a union
board, a Panchayat or the like. The premises of a
factory is therefore not a “local area”.

40. In our opinion, the framers of the Constitution cannot be said to

have confined the meaning of ‘banking’ to a particular definition, as

given in the BR Act, 1949. The word ‘banking’ has been incorporated in

Entry 45 of List I. The decision in Rustom Cavasjee Cooper (supra)
74

vividly leaves no room for doubt that banking done by the co­operative

bank is covered within the ambit of Entry 45 of List I. The decision in

Gannon Dunkerley Co., (Madras) Ltd. (supra) stands neutralised by

introduction of Article 366(29A) of the Constitution of India and the

meaning of the said term has been redefined. Entries have to be given

full effect in pith and substance considering forms of business of co­

operative banks performing the activities of banking under a licence.

The same is covered within the purview of Entry 45 of List I.

41. On the strength of Sections 32 and 33 of the State Bank of India

Act, 1955, learned counsel on behalf of appellants argued that Section

32 recognises that State Bank of India can carry on ‘agency business’

on behalf of Reserve Bank of India. Section 33 enables the State Bank

of India to carry on banking business under Section 5(b) and other

forms of business under Section 6(1) of the BR Act, 1949. The

argument is of no avail. The State Bank of India Act, 1955, is

independent and is not co­related with the co­operative banks, and

the State Bank of India has been established as a corporation under

the Act. Thus, the provision is of no help to take home the submission

espoused on behalf of appellants to take them out of the purview of

Entry 45 of List I.

42. Learned Counsel on behalf of appellants argued that there is a

difference between entity and activity. On a plain reading of Section
75

6(1) of the BR Act, 1949, it becomes evident that there is a distinction

between the business of banking and entity that performs the banking

functions. Section 6(1) and 6(2) enable only an entity to perform

certain additional business functions. It does not confer any such

status upon such an entity.

43. In our opinion, Section 6 deals with the forms of business in

which banking companies may engage. There cannot be any form of

activity/business of banking without there being an entity. Section 6

is not a provision of the conferral of the status of the banking

company. The definitions of ‘banking’ and ‘banking company’ are

contained in Section 5(b) and 5(c) of the BR Act, 1949 respectively,

and when reading with Section 56(a), it means co­operative banks

also. The co­operative bank falls within the definition of Section 5(c),

and its activity is of banking, and in addition to the business of

banking, a co­operative bank may engage in any of the business as

enumerated in Section 6.

EFFECT OF ENTRIES 43 AND 45 OF LIST I AND ENTRY 32 OF
LIST II OF THE SEVENTH SCHEDULE OF THE CONSTITUTION OF
INDIA

44. Entry 43 of List I of the Seventh Schedule of the Constitution of

India has been pressed into service on behalf of appellants. It confers

upon the Parliament the competence to pass the law pertaining to

‘incorporation, regulation and winding up’ of the trading corporation,
76

more particularly, a banking corporation. However, co­operative

societies are expressly excluded from the purview of the Parliament’s

competence. No doubt about it that in Entry 43 of List I

‘incorporation, regulation and winding up’ of the co­operative societies

have been kept out of the purview of the Union List by specifically

excluding the co­operative societies, otherwise, they would have been

included for ‘incorporation, regulation and winding up’ in Entry 43 of

List I. The terms “incorporation, regulation and winding up of co­

operative societies” were reserved as State subjects under Entry 32 of

List II, it was so omitted from List 43 of List I. But the exclusion from

Entry 43 of List I taking out ‘incorporation, regulation and winding up’

of co­operative societies out of the purview of the Parliament, does not

advance the cause of the co­operative banks. As a corollary to the

aforesaid submission, it was also urged that the banking company

was defined and governed by Sections 277F to Section 277N under

Chapter X­A of the Companies Act (VII of 1913). It was inserted vide

Amendment Act No.22 of 1936. On 10.3.1949, the Banking

Companies Act, 1949, was enforced. The primary objective of the

Banking Companies Act, 1949, was to provide a comprehensive

definition of ‘banking’ to bring within its scope all the institutions

which receive deposits repayable on demand or otherwise for lending

or investment. At the relevant time, the Government of India Act,

1935, which dealt with the subject of ‘banking’ as well as ‘trading
77

corporation,’ was in List I (Federal Legislative List), thus:

“Entry 38 in relation to “banking”: “Banking,” that is
to say, the conduct of banking business by
corporations other than corporations owned and
controlled by a federated state and carrying on
business only within that State.

Entry 33 in relation to corporation: “Corporations,”
that is to say, the incorporation, regulation, and
winding­up of trading corporations, including
banking, insurance, and financial corporations, but
not including corporations owned or controlled by a
Federated State and carrying on business only
within that State or co­operative societies, and of
corporations, whether trading or not, with objects
not confined to one unit (but not including
Universities).”

Entry 38 of the Government of India Act was re­enacted as

‘banking’ in Entry 45 of List I, while Entry 33 was bifurcated in

Entries 43 and 44. Learned Counsel further argued that up to 1965,

the primary entity which was regulated by the Parliament was a

company that found a place in Entry 43. Thus, both in its function,

i.e., banking and as an entity, fell in List I (banking under Entry 45

and company under Entry 43). Therefore, it was within the control of

the Parliament. Up to 1965, Banking Companies Act, 1949, only dealt

with a juristic entity called banking companies. Then from the

Preamble, the word “company” was omitted. The banking corporation

was governed by the State Bank of India Act, 1955. Thus, the

question of regulating the banking business of an entity outside the

purview of List I never arose. In 1965, the Government enacted

Banking Laws (Application to Co­operative Societies Act, 1965 (Act
78

No.23 of 1965) and extended the provisions of Banking Companies

Act, 1949, and Reserve Bank of India Act to co­operative banks. Thus,

learned counsel urged that the Statement of Objects and Reasons of

the said Amendment Act was only to regulate relatable Entry 45 and

not to regulate the co­operative societies. The provisions relatable

either directly or indirectly to ‘incorporation, management and winding

up’ of co­operative banks were omitted as they were not covered under

Entry 45 of List I.

45. Shri Devansh A. Mohta, learned counsel, further argued that

Section 2(10) of the Maharashtra Co­operative Societies Act, 1960 has

defined ‘co­operative bank’ thus:

“Section 2 ­ Definitions
In this Act, unless the context otherwise requires, —
(10) “co­operative bank” means a society which is
doing the business of banking as defined in clause

(b) of sub­section (1) of section 5 of the Banking
Companies Act, 1949 and includes any society
which is functioning or is to function as a Co­
operative Agriculture and Rural Multipurpose
Development Bank under Chapter XI;”

Under Section 91 of the Maharashtra Act, any dispute relating to

constitution, management or business is required to be referred to a

co­operative court. Similarly, Section 2(f) of the Multi­State Co­

operative Society Act defines ‘co­operative bank’ to mean multi­State

co­operative society, which undertakes the banking business. Under

Section 84(2), a claim for any debt or demand due shall be deemed to

be a dispute touching the constitution, management, or business of a
79

multi­State co­operative society. The Parliament has extended specific

provisions of the BR Act, 1949, and the Reserve Bank of India Act,

1934, which legislations are relatable to Entry 45 of List I and Entry

38 of List I, respectively. The Parliament lacks legislative competence

to regulate any other business, function, or facet of co­operative

societies. It could not have provided a recovery procedure as that is

within the domain of the State legislature. We cannot accept the

aforesaid submission raised by the learned Counsel.

46. In Delhi High Court Bar Association (supra), this Court in the

context of the RDB Act, 1993 held that Parliament has the legislative

competence to enact the Act. ‘Banking’ in Entry 45 of List I would

comprehend legislation in respect of matters ancillary or subsidiary to

it. The Parliament can enact a law regarding the conduct of the

banking business, which includes recovery of banks’ dues, and for

that purpose, set up the adjudicatory body like the Banking Tribunal

is permissible. Thus, the establishment of Debts Recovery Tribunal

under the RDB Act, 1993, was upheld. The Court opined:

“14. The Delhi High Court and the Guwahati High
Court have held that the source of the power of
Parliament to enact a law relating to the
establishment of the Debts Recovery Tribunal is
Entry 11­A of List III which pertains to
“administration of justice; constitution and
organisation of all courts, except the Supreme Court
and the High Courts”. In our opinion, Entry 45 of
List I would cover the types of legislation now
enacted. Entry 45 of List I relates to “banking”.
Banking operations would, inter alia, include
80

accepting of loans and deposits, granting of loans
and recovery of the debts due to the bank. There
can be little doubt that under Entry 45 of List I, it is
Parliament alone which can enact a law with regard
to the conduct of business by the banks. Recovery of
dues is an essential function of any banking
institution. In exercise of its legislative power
relating to banking, Parliament can provide the
mechanism by which monies due to the banks and
financial institutions can be recovered. The
Tribunals have been set up in regard to the debts
due to the banks. The special machinery of a
Tribunal which has been constituted as per the
preamble of the Act, “for expeditious adjudication
and recovery of debts due to banks and financial
institutions and for matters connected therewith or
incidental thereto” would squarely fall within the
ambit of Entry 45 of List I. As none of the items in
the lists are to be read in a narrow or restricted
sense, the term “banking” in Entry 45 would mean
legislation regarding all aspects of banking including
ancillary or subsidiary matters relating to banking.
Setting up of an adjudicatory body like the Banking
Tribunal relating to transactions in which banks
and financial institutions are concerned would
clearly fall under Entry 45 of List I giving Parliament
specific power to legislate in relation thereto.”

47. In view of the aforesaid discussion, we are of the opinion that

recovery of dues would be an essential function of any banking

institution and the Parliament can enact a law under Entry 45 of List I

as the activity of banking done by co­operative banks is within the

purview of Entry 45 of List I. Obviously, it is open to the Parliament to

provide the remedy for recovery under Section 13 of the SARFAESI

Act. Co­operative bank’s entire operation and activity of banking are

governed by a law enacted under Entry 45 of List I, i.e., the BR Act,

1949, and the RBI Act under Entry 38 of List I.
81

48. In UCO Bank and Anr. v. Dipak Debbarma and Ors. 31, the

question arose under the SARFAESI Act vis­a­vis the provisions of

Section 187 of Tripura Land Revenue and Land Reforms Act, 1960 as

under the Tripura Act there was a legislative embargo on the sale of

mortgaged properties by the bank to any person who is not a member

of a Scheduled Tribe. The auction purchasers in the case were not

members of the Scheduled Tribe. This Court observed that provisions

of the SARFAESI Act enable the bank to take possession of any

property where a security interest has been created in its favour and

sell such property to any person to realise dues. This Court observed

that the Parliament enacted the law traceable to Entry 45 dealing

exclusively with activities relating to the sale of secured assets, which

being Central legislation would prevail, thus:

“15. In the present case the conflict between the
Central and the State Act is on account of an
apparent overstepping by the provisions of the State
Act dealing with land reform into an area of banking
covered by the Central Act. The test, therefore,
would be to find out as to which is the dominant
legislation having regard the area of encroachment.

18. The 2002 Act is relatable to the entry of banking
which is included in List I of the Seventh Schedule.

Sale of mortgaged property by a bank is an
inseparable and integral part of the business of
banking. The object of the State Act, as already
noted, is an attempt to consolidate the land revenue
law in the State and also to provide measures of
agrarian reforms. The field of encroachment made
by the State Legislature is in the area of banking. So
long there did not exist any parallel Central Act
dealing with sale of secured assets and referable to

31 (2017) 2 SCC 585
82

Entry 45 of List I, the State Act, including Section
187, operated validly. However, the moment
Parliament stepped in by enacting such a law
traceable to Entry 45 and dealing exclusively with
activities relating to sale of secured assets, the State
law, to the extent that it is inconsistent with the
2002 Act, must give way. The dominant legislation
being the Parliamentary legislation, the provisions of
the Tripura Act, 1960, pro tanto, (Section 187)
would be invalid. It is the provisions of the 2002 Act,
which do not contain any embargo on the category
of persons to whom mortgaged property can be sold
by the bank for realisation of its dues that will
prevail over the provisions contained in Section 187
of the Tripura Act, 1960.”

49. In State Bank of India v. Santosh Gupta and Anr. 32, the question

arose concerning the rights of banks to enforce security interests

outside the court’s process by acting under Section 13 of the

SARFAESI Act and its applicability to the State of Jammu and

Kashmir. The recovery of debts and adjudicatory mechanisms

provided in the SARFAESI Act, therefore, it comes within the purview

of subject ‘banking’ in Entry 45 of List I of the Seventh Schedule. The

Presidential order under Article 370 empowered the Parliament to

legislate on the Seventh Schedule List I Entry 45 read with Entry 95 in

respect of the State of Jammu and Kashmir. The SARFAESI Act can

be validly applied to the State of Jammu and Kashmir even if Section

140 of the Transfer of Property Act of JK, 1920, conflicts with the

SARFAESI Act. Thus, the transfer of property by way of sale or

assignment is only one of the several ways for recovery of debts and,

32 (2017) 2 SCC 538
83

thus, the SARFAESI Act as a whole cannot be said to be in pith and

substance an Act relatable to the subject of transfer of property. The

sale and mortgage of property for recovering loans/debts is also an

integral part of ‘banking’. The setting up of an adjudicatory body like

the banking tribunal would also fall under Entry 45 of List I of the

Seventh Schedule. Thus, State law can operate if there is no Central

law regarding the same. The State law cannot encroach upon the

Central law by operation of the principle of repugnancy if there is a

Central law. The Parliament is qualified with exclusive power to make

law concerning banking. It is not possible to dissect the provisions of

the SARFAESI Act and attach them to different entries under different

lists. In pith and substance, the SARFAESI Act does not deal with the

transfer of property in Entry 6 of List III of the Seventh Schedule but

deals with the recovery of debt owing to banks and financial

institutions. It was observed:

“30. When it came to SARFAESI itself, this Court
has held in Central Bank of India v. State of Kerala,
(2009) 4 SCC 94: (SCC p. 116, para 36)
“36. Undisputedly, the DRT Act and the
Securitisation Act have been enacted by
Parliament under Schedule VII List I Entry 45
whereas the Bombay and Kerala Acts have been
enacted by the State Legislatures concerned
under Schedule VII List II Entry 54. To put it
differently, two sets of legislations have been
enacted with reference to entries in different lists
in the Seventh Schedule. Therefore, Article 254
cannot be invoked per se for striking down State
legislations on the ground that the same are in
conflict with the Central legislations. That apart,
as will be seen hereafter, there is no ostensible
overlapping between two sets of legislations.

84

Therefore, even if the observations contained in
Kesoram Industries case, (2004) 10 SSC 201, are
treated as law declared under Article 141 of the
Constitution, the State legislations cannot be
struck down on the ground that the same are in
conflict with Central legislations.”

34. A judgment of the Privy Council in Attorney
General for Canada v. Attorney General for the
Province of Quebec, 1947 AC 33 (PC) also throws
some light on what is the correct meaning to be
given to the expression “banking”. A Quebec Statute
deemed as vacant property, without an owner,
(which will now belong to His Majesty) all deposits
or credits in credit institutions and other
establishments which received funds or securities
on deposit where for 30 years or more such deposits
or credits are not the subject of any operation or
claim by the persons entitled thereto. In an appeal
from the Court of King’s Bench of the Province of
Quebec, the Bank of Montreal argued that the State
Act was beyond the powers of the Quebec
Legislature as “banking” was one of the subjects
allotted exclusively to Parliament of Canada. Lord
Porter, in an illuminating judgment, posed the
question and answered it thus: (AC p. 44)
“Is then, the repayment of deposits to depositors
or their successors­in­title under the law as
existing a part of the business of banking or
necessarily incidental thereto, or is it primarily
concerned with property and civil rights or
incidental to those subjects? Their Lordships
cannot but think that the receipt of deposits and
the repayment of the sums deposited to the
depositors or their successors as defined above is
an essential part of the business of banking.”
In this view of the matter, the Privy Council further
held: (AC p. 46)
“… In their view, a Provincial Legislature enters
on the field of banking when it interferes with the
right of depositors to receive payment of their
deposits, as in their view it would if it confiscated
loans made by a bank to its customers. Both are
in a sense matters of property and civil rights, but
in essence they are included within the category
of banking.”
85

37. Applying the doctrine of pith and substance to
SARFAESI, it is clear that in pith and substance the
entire Act is referable to Entry 45 List I read with
Entry 95 List I in that it deals with recovery of debts
due to banks and financial institutions, inter alia
through facilitating securitisation and
reconstruction of financial assets of banks and
financial institutions, and sets up a machinery in
order to enforce the provisions of the Act. In pith
and substance, SARFAESI does not deal with
“transfer of property”. In fact, insofar as banks and
financial institutions are concerned, it deals with
recovery of debts owing to such banks and financial
institutions and certain measures which can be
taken outside of the court process to enforce such
recovery. Under Section 13(4) of SARFAESI, apart
from recourse to taking possession of secured assets
of the borrower and assigning or selling them in
order to realise their debts, the banks can also take
over the management of the business of the
borrower, and/or appoint any person as manager to
manage secured assets, the possession of which has
been taken over by the secured creditor. Banks as
secured creditors may also require at any time by
notice in writing, any person who has acquired any
of the secured assets from the borrower and from
whom money is due or payable to the borrower, to
pay the secured creditor so much of the money as is
sufficient to pay the secured debt. It is thus clear
that the transfer of property, by way of sale or
assignment, is only one of several measures of
recovery of a secured debt owing to a bank and this
being the case, it is clear that SARFAESI, as a
whole, cannot possibly be said to be in pith and
substance, an Act relatable to the subject­matter
“transfer of property”.

50. In Delhi Cloth General Mills Co. Ltd. (supra), the question came

up for consideration concerning legislation whether it falls within one

entry or the other. However, some portion of the subject­matter of the

legislation incidentally trenched upon and might enter a field under

another list; then, it must be held to be valid in its entirety, even
86

though it might incidentally trench on matters which are beyond its

competence. It was observed:

“33. Mr O.P. Malhotra raised a contention as to the
legislative competence of the Parliament to enact
Section 58­A and the Deposits Rules enacted in
exercise of the power conferred by Section 58­A read
with Section 642 of the Companies Act, 1956. This
is only to be mentioned to be rejected. Mr Malhotra
urged that when a company invites and accepts
deposits, there comes into existence a lender­
borrower relationship between the depositor and the
company, and therefore the legislation dealing with
the subject squarely falls under Entry 30 of the
State List, ‘money lending and moneylenders’. If this
submission were to carry conviction, every depositor
in the bank would be a moneylender and the
transaction would be one of moneylending. Is the
banking industry to be covered under Entry 30? On
the other hand, Entry 45 in Union List is a specific
Entry ‘Banking’ and therefore any legislation
relating to banking would be referable to Entry 45 in
the Union List. Entry 43 in the Union List is:
“Incorporation, regulation and winding up of trading
corporations, including banking, insurance and
financial corporations but not including cooperative
societies”. Entry 44 refers to “incorporation,
regulation, and winding up of corporation whether
trading or not when business is not confined to one
State but not including universities”. Obviously the
power to legislate about the companies is referable
to Entry 44 when the objects of the company are not
confined to one State and irrespective of the fact
whether it is trading or not. When a law is
impugned on the ground that it is ultra vires the
powers of the legislature which enacted it, what has
to be ascertained is the true character of the
legislation. To do that one must have regard to the
enactment as a whole, to its objects and to the
scope and effect of its provisions (see A.S. Krishna v.
State of Madras, 1957 SCR 399, 410). To resolve the
controversy if it becomes necessary to ascertain to
which entry in the three Lists, the legislation is
referable, the court has evolved the doctrine of pith
and substance. If in pith and substance, the
legislation falls within one entry or the other but
some portion of the subject­matter of the legislation
incidentally trenches upon and might enter a field
87

under another List, then it must be held to be valid
in its entirety, even though it might incidentally
trench on matters which are beyond its competence
(see Ishwari Khaetan Sugar Mills (P) Ltd. v. State of
U.P., (1980) 3 SCR 331, 343, Union of India V.H.S.
Dhillon, (1972) 2 SCR 33, Kerala State Electricity
Board v. Indian Aluminium Company, (1976) 1 SCR
552 and State of Karnataka v. Ranganatha Reddy,
(1978) 1 SCR 641). Applying this doctrine of pith
and substance, Section 58­A which is incorporated
in the Companies Act is referable to Entries 43 and
44 in the Union List and the enactment viewed as a
whole cannot be said to be legislation on
moneylenders and moneylending or being referable
to Entry 30 in the State List. Undoubtedly, therefore
Parliament had the legislative competence to enact
Section 58­A.”

51. Reliance has also been placed on the decision of a Constitution

Bench in I.T.C. Ltd. (supra). The question involved in the said case

was to the applicability and validity of Bihar Agricultural Produce

Markets Act, 1960 and the Karnataka Agricultural Produce Marketing

(Regulation) Act, 1966, to the extent these State legislations deal with

the sale of tobacco in market areas with particular reference to the

levy thereupon of market fee after enactment of Tobacco Board Act,

1975 ­ parliamentary legislation. The scope of Entry 52 in the Union

List of the Seventh Schedule of the Constitution of India with

particular reference to the meaning of the expression ‘Industries’ as

also in Entry 24 in the State List of the Seventh Schedule of the

Constitution came up for consideration. The Court relied on the

decision of Constitution Bench in Belsund Sugar Co. Ltd. v. State of
88

Bihar33, in which it was held that merely because the industry is

controlled by a declaration under Section 2 of the IDR Act enacted by

Entry 52 of the Union List, the State Legislature would not be denied

of its power to regulate the products of such industry by the exercise

of its legislative power under the State List. The Court ultimately held

that State Legislation and the Tobacco Board Act, 1975 to the extent

they relate to the sale of tobacco in market areas, cannot co­exist. The

State legislatures were competent to pass legislation concerning such

goods. In I.T.C. Ltd. (supra), it was observed:

“87. Further, in Belsund Sugar Co., (1999) 9 SCC
620, the Constitution Bench cited with approval the
decision in SIEL case, (1998) 7 SCC 26 and
reiterated that merely because the industry is
controlled by a declaration under Section 2 of the
IDR Act enacted by Entry 52 of the Union List, the
State Legislature would not be denied of its power to
regulate the products of such an industry by
exercise of its legislative power under the State List.
It would be useful to extract para 119 of Belsund
Sugar Co. case, (1999) 9 SCC 620, as under: (SCC
pp. 670­71)
“119. However, so far as the IDR Act is concerned,
it is enacted under Entry 52 of the First Schedule
which deals with industries in general.
Simultaneously in the State List itself there is
Entry 24 which deals with industries subject to
the provisions of Entries 7 and 52 of List I.
Consequently, the products of such controlled
industries would necessarily not be governed by
the sweep of the general legislation pertaining to
such industries as per Entry 52 of the Union List.

The aforesaid Constitution Bench judgment was
not concerned with any State legislation enacted
under Entry 24. On the contrary, it dealt with
legislation of the Union Parliament under Entry 54
of the Union List read with Entry 23 of the State

33 (1999) 9 SCC 620
89

List. The scheme of the aforesaid legislative entries
is entirely different from the scheme of Entry 52 of
List I read with Entry 24 of List II with which we
are concerned. On a conjoint reading of the
aforesaid two entries, therefore, the ratio of the
decision of the Constitution Bench in the
aforesaid case cannot be effectively pressed into
service by Shri Ranjit Kumar for supporting his
contention. In this contention, we may usefully
refer to a decision of this Court in SIEL Ltd.,
(1998) 7 SCC 26, where one of us, Sujata V.

Manohar, J. was a Member. It has rightly
distinguished the ratio of the Constitution Bench
decision in the case of Hingir Rampur Coal Co.
Ltd., AIR 1961 SC 459 and taken the view that
merely because an industry is controlled by a
declaration under Section 2 of the IDR Act
enacted by Entry 52 of the Union List, the State
Legislature would not be denied of its powers to
regulate the products of such an industry by
exercise of its legislative powers under Entry 24 of
the State List. In that case the question was
whether the U.P. Sheera Niyantran Adhiniyam,
1964 could be said to be repugnant to the
Molasses (Control) Order issued by the Central
Government under Section 18­G of the IDR Act
imposing restrictions on the sale of molasses and
fixing the maximum price of molasses. Answering
the question in the negative, it was held that the
term ‘industry’ in Entry 24 would not take within
its ambit trade and commerce or production,
supply and distribution of goods which are within
the province of Entries 26 and 27 of List II.

Similarly, Entry 52 in List I which deals with
industry also would not cover trade and commerce
in, or production, supply and distribution of, the
products of those industries which fall under Entry
52 of List I. For the industries falling in Entry 52
of List I, these subjects are carved out and
expressly put in Entry 33 of List III. It was also
held that since the Molasses (Control) Order of
1961 passed by the Central Government in
exercise of powers conferred by Section 18­G was
not extended at any point of time to the State of
U.P. or the State of Bihar, the question of
repugnancy between the Molasses Control Order,
1961 and the U.P. Sheera Niyantran Adhiniyam,
1964 does not arise. Consequently, it must be
held that in the absence of a statutory order
90

promulgated under Section 18­G of the IDR Act, it
cannot be said that the field for regulation of sale
and purchase of products of the flour industry
like atta, maida, suji, bran, etc. would remain
outside the domain of the State Legislature.”

93. That the legislative power of Parliament in
certain areas is paramount under the Constitution
is not in dispute. What is in dispute is the limits of
those areas as judicially defined. Broadly speaking,
parliamentary paramountcy is provided for under
Articles 246 and 254 of the Constitution. The first
three clauses of Article 246 of the Constitution
relate to the demarcation of legislative powers
between Parliament and the State Legislatures.
Under clause (1), notwithstanding anything
contained in clauses (2) and (3), Parliament has
been given the exclusive power to make laws with
respect to any of the matters enumerated in List I or
the Union List in the Seventh Schedule. Clause (2)
empowers Parliament, and the State Legislatures
subject to the power of Parliament under clause (1),
to make laws with respect to any of the matters
enumerated in List III in the Seventh Schedule
described in the Constitution as the “Concurrent
List” notwithstanding anything contained in clause
(3). Under clause (3) the State Legislatures have
been given exclusive powers to make laws in respect
of matters enumerated in List II in the Seventh
Schedule described as the “State List” but subject to
clauses (1) and (2). The three lists while
enumerating in detail the legislative subjects
carefully distribute the areas of legislative authority
between Parliament (List I) and the State (List II).
The supremacy of Parliament has been provided for
by the non obstante clause in Article 246(1) and the
words “subject to” in Articles 246(2) and (3).
Therefore, under Article 246(1) if any of the entries
in the three lists overlap, the entry in List I will
prevail (M.P.V. Sundararamier Co. v. State of A.P.,
AIR 1958 SC 468). Additionally some of the entries
in the State List have been made expressly subject
to the power of Parliament to legislate either under
List I or under List III. Entries in the lists of the
Seventh Schedule have been liberally interpreted,
nevertheless courts have been wary of upsetting this
balance by a process of interpretation so as to
deprive any entry of its content and reduce it to
“useless lumber” (Calcutta Gas Co. (Proprietary) Ltd.
91

v. State of W.B., AIR 1962 SC 1044). The use of the
word “exclusive” in clause (3) denotes that within
the legislative fields contained in List II, the State
Legislatures exercise authority as plenary and
ample as Parliament.

“276. The fact that under the scheme of our
Constitution, greater power is conferred upon the
Centre vis­à­vis the States does not mean that
States are mere appendages of the Centre. Within
the sphere allotted to them, States are supreme.
The Centre cannot tamper with their powers.
More particularly, the courts should not adopt an
approach, an interpretation, which has the effect
of or tends to have the effect of whittling down the
powers reserved to the States.”

126. To sum up: the word “industry” for the
purposes of Entry 52 of List I has been firmly
confined by Tika Ramji, AIR 1956 SC 676 to the
process of manufacture or production only.
Subsequent decisions including those of other
Constitution Benches have reaffirmed that Tika
Ramji case, AIR 1956 SC 676 authoritatively defined
the word “industry” — to mean the process of
manufacture or production and that it does not
include the raw materials used in the industry or
the distribution of the products of the industry.
Given the constitutional framework, and the weight
of judicial authority it is not possible to accept an
argument canvassing a wider meaning of the word
“industry”. Whatever the word may mean in any
other context, it must be understood in the
constitutional context as meaning “manufacture or
production”.

130. It was held that: (AIR pp. 94­95, para 10)
“Market no doubt ordinarily means a place
where business is being transacted. That was
probably all that it meant at a time when trade
was not developed and when transactions took
place at specified places. But with the
development of commerce, bargains came to be
concluded more often than not through
correspondence and the connotation of the word
‘market’ underwent a corresponding expansion. In
modern parlance the word ‘market’ has come to
mean business as well as the place where
business is carried on.”
92

163. As noticed earlier the majority view in ITC
case, 1985 Supp SCC 476 has been upheld in the
judgment of Brother Pattanaik, on slightly different
reasoning and the decisions of this Court in M.A.
Tulloch, AIR 1964 SC 1284 and Baijnath Kadio,
(1969) 3 SCC 838 dealing with legislation on mining
and relied upon in the majority judgment of ITC
case, 1985 Supp SCC 476 have been found to be
not relevant for the decision. It is true, while
legislating on any subject covered under an entry of
any list, there can always be a possibility of
entrenching upon or touching the field of legislation
of another entry of the same list or another list for
matters which may be incidental or ancillary
thereto. In such eventuality, inter alia, a broad and
liberal interpretation of an entry in the list may
certainly be required. An absolute or watertight
compartmentalization of heads of subject for
legislation may not be possible but at the same time
entrenching into the field of another entry cannot
mean its total sweeping off even though it may be in
the exclusive list of heads of subjects for legislation
by the other legislature. As in the present case the
relevant heads of subject in List II, other than Entry
24, cannot be made to practically disappear from
List II and assumed to have crossed over in totality
to List I by virtue of declaration of the tobacco
industry under Entry 52 of List I, in the guise of
touching or entrenching upon the subjects of List
II.”

52. In Calcutta Gas Company (Proprietary) Ltd. v. State of West

Bengal and Ors.34, a Constitution Bench of this Court considered the

meaning of ‘industry’ in Entry 52 of List I and Entries 24 and 25 of

List II and observed that having regard to the principles, while giving

the most extensive scope to both the entries, the interpretation which

harmonizes has to be adopted. It was held:

“9. With this background let us construe the
aforesaid entries. There are three possible

34 AIR 1962 SC 1044
93

constructions, namely, (1) Entry 24 of List II, which
provides for industries generally, covers the
industrial aspect of gas and gas­works leaving Entry
25 to provide for other aspects of gas and gas­
works; (2) Entry 24 provides generally for industries,
and Entry 25 carves out of it the specific industry of
gas and gas­works, with the result that the industry
of gas and gas­works is excluded from Entry 24; and
(3) the industry of gas and gas­works falls under
both the entries, that is, there is a real overlapping
of the said entries. Having regard to the aforesaid
principle, while giving the widest scope to both the
entries, we shall adopt the interpretation which
reconciles and harmonizes them.”

53. In Central Bank of India v. State of Kerala and Ors. 35, the

question came up for consideration concerning Entry 45 of List I and

Entry 54 of List II. The question arose whether Section 38­C of the

Bombay Sales Tax Act, 1959 and Section 26­B of the Kerala General

Sales Tax Act, 1963 and similar provisions contained in other State

legislation by which a first charge was created on the property of the

dealer or such other person, who was liable to pay sales tax, were

inconsistent with the provisions contained in the RDB Act, 1993 and

the SARFAESI Act and whether central legislations would have

primacy over the state legislations. It was observed:

“92. An analysis of the abovenoted provisions makes
it clear that the primary object of the DRT Act was
to facilitate creation of special machinery for speedy
recovery of the dues of banks and financial
institutions. This is the reason why the DRT Act not
only provides for establishment of the Tribunals and
the Appellate Tribunals with the jurisdiction, powers
and authority to make summary adjudication of
applications made by banks or financial institutions
and specifies the modes of recovery of the amount

35 (2009) 4 SCC 94
94

determined by the Tribunal or the Appellate
Tribunal but also bars the jurisdiction of all courts
except the Supreme Court and the High Courts in
relation to the matters specified in Section 17. The
Tribunals and the Appellate Tribunals have also
been freed from the shackles of procedure contained
in the Code of Civil Procedure. To put it differently,
the DRT Act has not only brought into existence
special procedural mechanism for speedy recovery of
the dues of banks and financial institutions, but
also made provision for ensuring that defaulting
borrowers are not able to invoke the jurisdiction of
civil courts for frustrating the proceedings initiated
by the banks and financial institutions.

93. The enactment of the Securitisation Act can be
treated as one of the most radical legislative
measures taken by the Government for ensuring
that dues of secured creditors including banks,
financial institutions are recovered from the
defaulting borrowers without any obstruction. For
the first time, the secured creditors have been
empowered to take measures for recovery of their
dues without the intervention of the courts or
tribunals.

110. The DRT Act facilitated establishment of two­
tier system of tribunals. The tribunals established at
the first level have been vested with the jurisdiction,
powers and authority to summarily adjudicate the
claims of banks and financial institutions in the
matter of recovery of their dues without being
bogged down by the technicalities of the Code of
Civil Procedure. The Securitisation Act drastically
changed the scenario inasmuch as it enabled banks,
financial institutions and other secured creditors to
recover their dues without intervention of the courts
or tribunals. The Securitisation Act also made
provision for registration and regulation of
securitisation/reconstruction companies,
securitisation of financial assets of banks and
financial institutions and other related provisions.

116. The non obstante clauses contained in Section
34(1) of the DRT Act and Section 35 of the
Securitisation Act give overriding effect to the
provisions of those Acts only if there is anything
inconsistent contained in any other law or
95

instrument having effect by virtue of any other law.
In other words, if there is no provision in the other
enactments which are inconsistent with the DRT Act
or the Securitisation Act, the provisions contained
in those Acts cannot override other legislations.
Section 38­C of the Bombay Act and Section 26­B of
the Kerala Act also contain non obstante clauses
and give statutory recognition to the priority of the
State’s charge over other debts, which was
recognised by Indian High Courts even before 1950.
In other words, these sections and similar
provisions contained in other State legislations not
only create first charge on the property of the dealer
or any other person liable to pay sales tax, etc. but
also give them overriding effect over other laws.”

This Court found no conflict in the provisions of the Central Act

and that of the State.

54. Learned counsel on behalf of appellants relying on the decisions

in S.S. Dhanoa, Daman Singh, and Dalco Engineering Private Limited

(supra), argued that the Parliament was conscious of the distinction

between a corporation falling under Entries 43 and 44 of List I and a

co­operative society falling under Entry 32 of List II. In S.S. Dhanoa

(supra), this Court considered the distinction between corporation

created by law and a body or society created by an act of individual in

accordance with provisions of the statute and observed:

“8. A corporation is an artificial being created by law
having a legal entity entirely separate and distinct
from the individuals who compose it with the
capacity of continuous existence and succession,
notwithstanding changes in its membership. In
addition, it possesses the capacity as such legal
entity of taking, holding and conveying property,
entering into contracts, suing and being sued, and
exercising such other powers and privileges as may
be conferred on it by the law of its creation just as a
96

natural person may. The following definition of
corporation was given by Chief Justice Marshall in
the celebrated Dartmouth College case, 4 Wheat 518,
636: 4 L Ed 629 (1819):

“A corporation is an artificial being, invisible,
intangible, and existing only in contemplation of
law. Being the mere creature of law, it possesses
only those properties which the charter of its
creation confers upon it, either expressly or as
incidental to its very existence. These are such as
are supposed best calculated to effect the object
for which it was created. Among the most
important are immortality, and, if the expression
may be allowed, individuality; properties, by
which a perpetual succession of many persons
are considered as the same, and may act as a
single individual. They enable a corporation to
manage its own affairs, and to hold property,
without the perplexing intricacies, the hazardous
and endless necessity, of perpetual conveyances
for the purpose of transmitting it from hand to
hand. It is chiefly for the purpose of clothing
bodies of men, in succession, with these qualities
and capacities, that corporations were invented,
and are in use. By these means, a perpetual
succession of individuals are capable of acting for
the promotion of the particular object, like one
immortal being.”
The term ‘corporation’ is, therefore, wide enough to
include private corporations. But, in the context of
clause Twelfth of Section 21 of the Indian Penal
Code, the expression ‘corporation’ must be given a
narrow legal connotation.

9. Corporation, in its widest sense, may mean any
association of individuals entitled to act as an
individual. But that certainly is not the sense in
which it is used here. Corporation established by or
under an Act of Legislature can only mean a body
corporate which owes its existence, and not merely
its corporate status, to the Act. For example, a
Municipality, a Zilla Parishad or a Gram Panchayat
owes its existence and status to an Act of
Legislature. On the other hand, an association of
persons constituting themselves into a company
under the Companies Act or a society under the
Societies Registration Act owes its existence not to
the Act of Legislature but to acts of parties though,
97

it may owe its status as a body corporate to an Act
of Legislature.”

In Daman Singh (supra), a Constitution Bench of this Court

considered Entry 43 of List I and Entry 32 of List II of the Seventh

Schedule of the Constitution of India and observed:

“5. What is a corporation? In Halsbury’s Laws of
England, Fourth Edition, Volume 9, Paragraph 1201, it is
said,
A corporation may be defined as a body of persons
(in the case of a corporation aggregate) or an office (in
the case of a corporation sole) which is recognised by
the law as having a personality which is distinct from
the separate personalities of the members of the body
or the personality of the individual holder for the time
being of the office in question.

A corporation aggregate has been defined in paragraph
1204 as,
[A] collection of individuals united into one body
under a special denomination, having perpetual
succession under an artificial form, and vested by the
policy of the law with the capacity of acting in several
respects as an individual, particularly of taking and
granting property, of contracting obligations and of
suing and being sued, of enjoying privileges and
immunities in common and of exercising a variety of
political rights, more or less extensive, according to
the design of its institution, or the powers conferred
upon it, either at the time of its creation or at any
subsequent period of its existence.

This Court in Board of Trustees, Ayurvedic and Unani
Tibia College, Delhi v. State of Delhi, 1962 Supp 1 SCR
156 was required to answer the question whether the
Board of trustees which was originally registered under
the Societies Registration Act, 1860 and a new Board of
trustees which was incorporated by an Act of the
legislature called the Tibbia College Act, 1952 by which
the old Board was dissolved and a new Board constituted
were corporations. The Court held that the old Board
was not but the new Board was. Posing the question
what is a corporation, the Court answered it with the
statements contained in Halsbury’s Laws of England
already extracted by us and added,
A corporation aggregate has therefore only one
capacity, namely, its corporate capacity. A corporation
aggregate may be a trading corporation or a non­
trading corporation. The usual examples of a trading
corporation are (1) charter companies, (2) companies
98

incorporated by special Acts of Parliament, (3)
companies registered under the Companies Act, etc.
Non­trading corporations are illustrated by (1)
municipal corporations, (2) district boards, (3)
benevolent institutions, (4) universities etc. An
essential element in the legal conception of a
corporation is that its identity is continuous, that is,
that the original member or members and his or their
successors are one. In law the individual corporators,
or members, of which it is composed are something
wholly different from the corporation itself; for a
corporation is a legal persona just as much as an
individual. Thus, it has been held that a name is
essential to a corporation; that a corporation aggregate
can, as a general rule, only act or express its will by
deed under its common seal; that at the present day
in England a corporation is created by one or other of
two methods, namely, by Royal Charter of
incorporation from the Crown or by the authority of
Parliament that is to say, by or by virtue of statute.
There is authority of long standing for saying that the
essence of a corporation consists in (1) lawful
authority of incorporation, (2) the persons to be
incorporated, (3) a name by which the persons are
incorporated, (4) a place, and (5) words sufficient in
law to show incorporation. No particular words are
necessary for the creation of a corporation; any
expression showing an intention to incorporate will be
sufficient.

The Court then noticed the various provisions of the
Societies Registration Act, 1860 which according to them
contained no sufficient words to indicate an intention to
incorporate but on the contrary contained provisions
showing that there was an absence of such intention.
Therefore, they observed, “We have, therefore, come to
the conclusion that the provisions aforesaid do not
establish the main essential characteristic of a
corporation aggregate, namely, that of an intention to
incorporate the society”. Considering next the question
whether the new Board was a corporation, the Court had
no difficulty in answering the question with reference to
sub­section (2) of Section 3 which stated that the Board
shall be a body corporate having perpetual succession
and common seal and shall by the said name sue and be
sued. The Court observed, “Sub­section (2) of Section 3
says in express terms that the new Board constituted
under the impugned Act is given a corporate status; in
other words, the new Board is a corporation in the full
sense of the term”.

6. We have already extracted Section 30 of the Punjab
Act which confers on every registered cooperative society
the status of a body corporate having perpetual
99

succession and a common seal, with power to hold
property, enter into contracts, institute and defend suits
and other legal proceedings and to do all things
necessary for the purposes for which it is constituted.
There cannot, therefore, be the slightest doubt that a
cooperative society is a corporation as commonly
understood. Does the scheme of the Constitution make
any difference? We apprehend not.

7. … According to Mr Ramamurthi the express exclusion
of cooperative societies in Entry 43 of List I and the
express inclusion of cooperative societies in Entry 32 of
List II separately and apart from but along with
corporations other than those specified in List I and
universities, clearly indicated that the constitutional
scheme was designed to treat cooperative societies as
institutions distinct from corporations. On the other
hand one would think that the very mention of
cooperative societies both in Entry 43 of List I and Entry
32 of List II along with other corporations gave an
indication that the Constitution makers were of the view
that cooperative societies were of the same genus as
other corporations and all were corporations. In fact the
very express exclusion of cooperative societies from Entry
43 of List I is indicative of the view that but for such
exclusion, cooperative societies would be comprehended
within the meaning of expression “corporations”.”

In Dalco Engineering Private Limited (supra), the Court followed

the decision in S.S. Dhanoa (supra) and opined that there is a

difference between a corporation established by law and established

under the law. However, the question involved in the instant case is

different.

55. In Hindustan Lever (supra), question was considered, whether

there was an encroachment on the field of the Parliament reserved

under Entry 43 of List I of the Seventh Schedule of the Constitution of

India, which empowers the Union Government to make law relating to

‘incorporation, regulation and winding up of trading corporations
100

including banks, insurance, and finance corporations’. It was held

that the levy of stamp duty and prescribing rate of stamp duty on

such documents is a different aspect. The Bombay Stamp Act does

not provide for ‘incorporation, regulation and winding up of

corporations’. The Court held:

“42. It was next contended that provisions of
Section 2(g)(iv) read with Section 34 of the Bombay
Stamp Act which provide that an instrument not
duly stamped would be inadmissible in evidence are
repugnant to Section 394 of the Companies Act and
that the State legislation cannot prevail over the
provisions of the Companies Act. It was also
contended that in the guise of stamp duty the State
Legislature is in reality imposing a tax on the
amalgamation of companies and has therefore
encroached on the field of Parliament under Entry
43 List I of the Constitution. We do not find any
substance in this submission as well. Stamp duty is
levied on the instrument and the measure is the
valuation of the property transferred. There is no
question of encroachment on the field of Parliament
under Entry 43 List I of the Constitution which
empowers the Union to make laws re: incorporation,
regulation and winding up of trading corporations
including banks, insurance and finance
corporations but not including cooperative societies.
The follow­up legislation under Entry 43 List I is
totally different from the levy of stamp duty and of
prescribing rate of stamp duty on such documents.
The Bombay Stamp Act does not provide for any
legislation with regard to incorporation, regulation
and winding up of corporations. It only levies the
stamp duty and prescribes the rate of stamp duty in
respect of documents by compromise or
arrangement.”

56. In Kerala State Electricity Board (supra), a Constitution Bench,

while considering the Doctrine of Pith and Substance and dominant

purpose, opined:

101

“5. In view of the provisions of Article 254, the
power of Parliament to legislate in regard to matters
in List III, which are dealt with by clause (2), is
supreme the Parliament has exclusive power to
legislate with respect to matters in List 1. The State
Legislature has exclusive power to legislate with
respect to matters in List II. But this is subject to
the provisions of clause (1) [leaving out for the
moment the reference to clause (2)]. The power of
Parliament to legislate with respect to matters
included in List I is supreme notwithstanding
anything contained in clause (3) [again leaving out
of consideration the provisions of clause (2)]. No
what is the meaning of the words “notwithstanding”
in clause (1) and “subject to” in clause (3)? They
mean that where an entry is in general terms in List
II and part of that entry is in specific, terms in List I,
the entry in List I takes effect notwithstanding the
entry in List II. This is also on the principle that the
“special” excludes the “general” and the general
entry in List II is subject to the special entry in List

1. For instance, though house accommodation and
rent control might fall within either the State list or
the concurrent list, Entry 3 in List I of Seventh
Schedule carves out the subject of rent control and
house accommodation in Cantonments from the
general subject of house accommodation and rent
control (see Indu Bhusan v. Sundari Devi, (1970) 1
SCR 443). Furthermore, the word “notwithstanding”
in clause (1) also means that if it is not possible to
reconcile the two entries the entry in List I will
prevail. But before that happens attempt should be
made to decide in which list a particular legislation
falls. For deciding under which entry a particular
legislation falls the theory of “pith and substance”
has been evolved by the courts. If in pith and
substance a legislation falls within one list or the
other but some portion of the subject­matter of that
legislation incidentally trenches upon and might
come to fall under another list, the Act as a whole
would be valid notwithstanding such incidental
trenching. These principles have been laid down in a
number of decisions.

16. It would be obvious that one part of the Act does
deal with the constitution of the Board, the
incorporation of the Board and the regulation of its
activities. But the main purpose of the Act is for
rationalising the production and supply of
102

electricity. The regulation contemplated in Entries
43 and 44 is not regulation of the business of
production, distribution and supply of electricity of
the corporation. As the 1910 and 1948 Acts together
form a complete code, with respect to Entry 38 in
List 111 the Board is only an instrument fashioned
for carrying out this object. The provision regarding
the incorporation and regulation of the Electricity
Board should be taken to be only incidental to the
provision regarding production, supply and
distribution of electricity.

18. In Ramtanu Housing Society v. Maharashtra,
(1970) 1 SCC 248, this Court had dealt with the
Maharashtra Industrial Development Act, 1961 and
the question whether the Maharashtra Development
Corporation formed under the Act was a trading
corporation. In holding that the legislation fell under
Entry 24 of the State list and not under Entry 43 of
the Union list this Court observed: [SCC pp. 324,
325, 326, 327­328, paras 3, 4, 8, 11 15]
The Act is one to make a special provision for
securing the orderly establishment in industrial
areas and industrial estates of industries in the
State of Maharashtra, and to assist generally in
the organisation thereof, and for that purpose to
establish an Industrial Development Corporation,
and for purposes connected with the matters
aforesaid.

The corporation is established for the purpose
of securing and assisting the rapid and orderly
establishment and organisation of industries in
industrial areas and industrial estates in the
State of Maharashtra.

Broadly stated the functions and powers of the
corporation are to develop industrial areas and
industrial estates by providing amenities of road,
supply of water or electricity, street lighting,
drainage … or otherwise transfer any property
held by the corporation on such conditions as
may be deemed proper by the corporation ….
The principal functions of the corporation in
regard to the establishment, growth and
development of industries in the State are first to
establish and manage industrial estates at
selected places and secondly to develop industrial
areas selected by the State Government. When
industrial areas are selected the necessity of
acquisition of land in those areas is apparent. The
103

Act, therefore, contemplates that the State
Government may acquire land by publishing a
notice specifying the particular purpose for which
such land is required …. Where the land has been
acquired for the corporation or any local
authority, the State Government shall, after it has
taken possession of the land, transfer the land to
the corporation or that local authority ….

* * * *
It is in the background of the purposes of the
Act and powers and functions of the corporation
that the real and true character of the legislation
will be determined …. Industries come within
Entry 24 of the State list. The establishment,
growth and development of industries in the State
of Maharashtra does not fall within Entry 7 and
Entry 52 of the Union list. Establishment, growth
and development of industries in the State is
within the State list of industries …. Acquisition
or requisition of land falls under Entry 42 of the
concurrent list. In order to achieve growth of
industries it is necessary not only to acquire land
but also to implement the purposes of the Act.
The corporation is therefore established for
carrying out the purposes of the Act, The pith and
substance of the Act is establishment, growth and
organisation of industries, acquisition of land in
that behalf and carrying out the purposes of the
Act by setting up the corporation as one of the
limbs or agencies of the Government. The powers
and functions of the corporation show in no
uncertain terms that these are all in aid of the
principal and predominant purpose of
establishment, growth and establishment of
industries. The corporation is established for that
purpose …. We, therefore, hold that the Act is a
valid piece of legislation.

19. In the present case the incorporation of the
State Electricity Boards is merely for the
rationalisation of the production and supply of
electricity, for taking measures conducive to
electrical development and for all matters incidental
thereto. The incorporation of the Electricity Boards
being incidental to the rationalisation of the
production and supply of electricity and for being
conducive to electrical development, the 1948 Act in
pith and substance should be deemed to be one
falling under Entry 38 of List III. Furthermore,
104

Electricity Boards are not trading corporations. They
are public service corporations. They have to
function without any profit motive. Their duty is to
promote coordinated development of the generation,
supply and distribution of electricity in the most
efficient and economical manner with particular
reference to such development in areas not for the
time being served or adequately served by any
licensee (Section 18). The only injunction is that as
far as practicable they shall not carry on their
operations at a loss (Section 59). They get
subventions from the State Governments (Section

63). In the discharge of their functions they are
guided by directions on questions of policy given by
State Governments (Section 78­A). There are no
shareholders and there is no distribution of profits.
This is another reason why the 1948 Act cannot be
said to fall under Entry 43 of List I.

20. The question, therefore, is whether the
impugned legislation falls under Entry 38 of List III
or Entries 26 and 27 of List II and if the former,
whether it is repugnant to the existing law on the
subject, that is, the 1910 and 1948 Acts and if that
were so, whether that repugnancy has been cured
by Presidential assent?

21. Even assuming that part of the 1948 Act is
legislation with respect to incorporation and
regulation of a trading corporation, falling under
Entry 43 of List I of Schedule VII, the rest of it will
fall under Entry 38 of List III. That part of the Act
relating to the regulation of the activities regarding
production and distribution of electricity would, as
we have shown, fall under the entry “Electricity”.
The Kerala Act has nothing to do with the
incorporation and regulation of the Electricity Board
and, therefore, it can only relate to Entry 38 of List
III, if at all.”

It was held that repugnancy could only arise if both the

legislations of Parliament and State fell within List III.

57. In Sita Ram Sharma and Ors. (supra) the question concerning
105

Entry 43 of List I and Entries 35 and 42 of List III was considered. It

was held:

“9. The main argument is that the subject­matter of
Section 4 falls within Item 43 of List I of the Seventh
Schedule to the Constitution. So the State
Legislature could not enact Section 4. The rival
contention of Dr L.M. Singhvi, Advocate­General of
Rajasthan, is that the subject­matter of Section 4 in
its true nature and character falls within Items 35
and 42 of List III of the Seventh Schedule to the
Constitution.

10. Item 43 of List I reads: “Incorporation,
regulation and winding up of trading corporation,
including banking, insurance and financial
corporation but not including cooperative societies.”
Item 35 of List III reads: “Mechanically propelled
vehicles including the principles on which taxes on
such vehicles are to be levied.” Item 42 of List III
reads: “Acquisition and requisitioning of property.”

15. It is not disputed by the appellant that the
subject­matter of Chapter IV­A falls within Items 35
and 42 of List III. It would accordingly follow that
Section 68­A the definition clause, also is a law with
respect to those very items. Section 4 of the
Ordinance declares that any scheme prepared and
published under Section 68­C by the General
Manager of State Transport Undertaking shall be
deemed to have been prepared or published by the
State Transport Undertaking. It also provides that
the scheme shall not be questioned in any court or
before any authority merely on the ground that the
same has been prepared or published by the
General Manager. It may be observed that Section 4
makes no amendment in the Road Transport
Corporation Act. It does not directly affect the power
of the Road Transport Corporation under Section
19(2)(c) of the said Act. It has attempted to insert a
new Section 68­CC in Chapter IV­A of the Motor
Vehicles Act. By this new section it has validated the
scheme prepared and published by the General
Manager of a State Transport Undertaking as
defined in Section 68­C.

106

16. We have little doubt in our mind that the
subject­matter of Section 4 clearly falls within Items
35 and 42 of List III and not within Item 43 of List I.
The subject­matter is the conferment of power of
acquisition of a road transport undertaking by the
General Manager of the State Transport
Undertaking. It has direct concern with acquisition.
It has no concern with incorporation, regulation and
winding up of trading corporations. The
constitutionality of the law is to be determined by its
real subject­matter and not by the incidental effect
which it may have on any topic of legislation in List
I. (See Prafulla Kumar Mukherjee v. Bank of
Commerce Ltd., 1947 FCR 28: AIR 1947 PC 60: 74
IA and Kannan Devan Hills Produce Company Ltd. v.

State of Kerala, (1973) 1 SCR 356).”
(emphasis supplied)

It is apparent that ‘incorporation, regulation and winding up’ of

the co­operative societies are covered under Entry 32 of List II of the

Seventh Schedule of the Constitution of India, whereas ‘banking’ is

covered by Entry 45 of List I. Thus, aspect of ‘incorporation,

regulation and winding up’ would be covered under Entry 32 of List II.

However, banking activity of such co­operative societies/banks shall

be governed by Entry 45 of List I. The said banks are governed and

regulated by legislation related to Entry 45 of List I, the BR Act, 1949

as well as the Reserve Bank of India Act under Entry 38 of List I. In

the matter of licencing and doing business, a deep and pervasive

control is carved out under the provisions of the BR Act, 1949 and

banking activity done by any entity, primary credit societies, is a bank

and is required to submit the accounts to the Reserve Bank of India,

and there is complete control under the aforesaid Act. For activity of

banking, these banks are governed by the legislation under Entry 45
107

of List I. Thus, recovery being an essential part of the banking, no

conflict has been created by providing additional procedures under

Section 13 of the SARFAESI Act. It is open to the bank to adopt a

procedure which it may so choose. When banking in pith and

substance is covered under Entry 45 of List I, even incidental

trenching upon the field reserved for State under Entry 32 List II is

permissible.

58. There can be various aspects of an activity. The co­operative

societies may be formed under the provisions of the State Co­operative

Acts. The State law provides for ‘incorporation, regulation and

winding up’ under Entry 32 of List II, a membership registration, and

other matters can be governed by Entry 32 of List II, and, at the same

time, the aspects relating to the banking, licensing, accounts, etc. can

be covered under Entry 45 List I.

59. In State of W.B. v. Kesoram Industries Ltd. and Ors. 36, a

Constitution Bench considered the aspects’ theory and considered the

field of taxation under Lists I and II and opined that there might be

overlapping in fact, but there would be no overlapping in law. Simply

because the methodology or mechanism adopted for assessment and

quantification is similar, the two taxes cannot be said to be

overlapping. It was held that Entries 52, 53, and 54 are not heads of

taxation. The field of taxation is covered by Entries 49 and 50 of List

36 (2004) 10 SCC 201
108

II. It was held that the same transaction might involve two or more

taxable events in its different aspects. Merely because the aspects

overlap, such overlapping does not detract from the distinctiveness of

the aspects. There was no question of conflict solely on account of two

aspects of the same transaction being utilized by two legislatures for

two levies. The Court held:

“141. As held in Goodricke Group Ltd., 1995 Supp
(1) SCC 707 which we have held as correctly
decided, this Court has noted the principle of law
well established by several decisions that the
measure of tax is not determinative of its essential
character. The same transaction may involve two or
more taxable events in its different aspects. Merely
because the aspects overlap, such overlapping does
not detract from the distinctiveness of the aspects.

In our opinion, there is no question of conflict solely
on account of two aspects of the same transaction
being utilised by two legislatures for two levies both
of which may be taxes or fees or one of which may
be a tax and the other a fee falling within two fields
of legislation respectively available to the two.”

The legislation and entries are to be considered in pith and

substance is the settled principles of law, and incidental trenching is

permissible. Thus, we are of the opinion that section 2(c)(iv)(a) of the

SARFAESI Act and the notification dated 28.2.2003 cannot be said to

be ultra vires. They are within the ken of Entry 45 List I of the Seventh

Schedule to the Constitution of India.

EFFECT OF CONSTITUTIONAL PROVISIONS

60. Our aforesaid conclusion finds support by the Constitutional

provisions inserted by way of the Constitution (Ninety Seventh
109

Amendment) Act, 2011. Article 43B has been added concerning the

management of co­operative societies. Article 43B is extracted

hereunder:

“43B. Promotion of co­operative societies.— The
State shall endeavour to promote voluntary
formation, autonomous functioning, democratic
control and professional management of co­
operative societies.”

61. Article 243ZI provides that the legislature of a State may, by law,

make provisions with respect to ‘incorporation, regulation and winding

up’ of co­operative societies. Article 243ZI is extracted hereunder:

“243ZI. Incorporation of co­operative societies. —
Subject to the provisions of this Part, the Legislature
of a State may, by law, make provisions with respect
to the incorporation, regulation and winding up of
co­operative societies based on the principles of
voluntary formation, democratic member­control,
member­economic participation and autonomous
functioning.”

62. The Ninety Seventh Amendment also incorporated Article 243ZL

dealing with supersession and suspension of the board and interim

management. Article 243ZL is extracted hereunder:

“243ZL.—Supersession and suspension of board
and interim management.— (1) Notwithstanding
anything contained in any law for the time being in
force, no board shall be superseded or kept under
suspension for a period exceeding six months:
Provided that the board may be superseded or
kept under suspension in case—

(i) of its persistent default; or

(ii) of negligence in the performance of its duties;
or

(iii) the board has committed any act prejudicial
to the interests of the co­operative society or its
members; or
110

(iv) there is stalemate in the constitution or
functions of the board; or

(v) the authority or body as provided by the
Legislature of a State, by law, under clause (2) of
article 243ZK, has failed to conduct elections in
accordance with the provisions of the State Act:

Provided further that the board of any such co­
operative society shall not be superseded or kept
under suspension where there is no Government
shareholding or loan or financial assistance or any
guarantee by the Government:

Provided also that in case of a co­operative society
carrying on the business of banking, the provisions
of the Banking Regulation Act, 1949 shall also
apply:

Provided also that in case of a co­operative
society, other than a multi­State co­operative
society, carrying on the business of banking, the
provisions of this clause shall have the effect as if
for the words “six months”, the words “one year”
had been substituted.

(2) In case of supersession of a board, the
administrator appointed to manage the affairs of
such co­operative society shall arrange for conduct
of elections within the period specified in clause (1)
and handover the management to be elected board.

(3) The Legislature of a State may, by law, make
provisions for the conditions of service of the
administrator.”
(emphasis supplied)

The third proviso to Article 243ZL(1) clarifies that in case of a co­

operative society carrying on the business of banking, the provisions

of the BR Act, 1949 shall also apply besides the State Act. The fourth

proviso to clause (1) of Article 243ZL also contains an exception with

respect to multi­State co­operative society carrying on the business of

banking, the provisions of this clause shall have the effect as if for the
111

words ‘six months’, had been substituted by words ‘one year.’ Thus,

the constitutional provision itself makes a distinction between a co­

operative bank and other co­operative societies and applied law

enacted under Entry 45 of List I of the Seventh Schedule. It set at rest

any controversy concerning the applicability of the BR Act, 1949 to

banks run by co­operative societies. It also makes it clear that such

banks are governed by Entry 45 of List I of the Seventh Schedule.

63. A three­Judge Bench decision in Greater Bombay Coop. Bank

Ltd. (supra) is heavily relied upon by the appellants, and due to

conflict noted by a three­Judge Bench, the matter has been referred.

In Greater Bombay Coop. Bank Ltd. (supra) the question arose whether

co­operative banks constituted under the Co­operative Societies Act

would have the right to recover the amount from debtors under the

Co­operative Societies Act, or they could proceed under the RDB Act,

1993, and whether pending proceedings were to be transferred to the

Debt Relief Tribunal. In other words, whether the tribunals and the

authorities constituted under the Maharashtra Co­operative Societies

Act, 1960 and the Multi­State Co­operative Societies Act, 2002,

continue to have jurisdiction to entertain applications/disputes

submitted before them by the co­operative banks incorporated under

the 1960 Act and 2002 Act for recovery of debts after the

establishment of a Debts Recovery Tribunal under the RDB Act, 1993.
112

The High Court opined that after the establishment of Debts Recovery

Tribunal under the 1993 Act, the courts and authorities under the

1960 Act as well as the 2002 Act would cease to have jurisdiction to

entertain the applications submitted by the co­operative banks for

recovery of their dues. However, at the same time, the High Court

upheld the competence of the State legislature to enact the

Maharashtra Co­operative Societies Act, 1960.

64. In another matter, namely A.P. State Coop. Bank v. Samudra

Shrimp (P) Ltd., the High Court of Andhra Pradesh, struck down

Sections 61 and 71 of the APCS Act, 1964 on the ground of

constitutional incompetence. It was held that subject matter was

excluded from the State legislative field in Entry 32 of List II of the

Seventh Schedule, and the recovery of monies fell within the core and

substantive area of banking in Entry 45 of List I of the Seventh

Schedule of the Constitution. A co­operative bank, as defined in

Section 56(cci) of the BR Act, 1949, is a bank and a banking company

within the meaning of Section 2 (d) (e) of the RDB Act, 1993. The

Debts Recovery Tribunal constituted under the Act of 1993 had

exclusive jurisdiction.

65. In Greater Bombay Coop. Bank Ltd. (supra) as to the scope of

Entries 43, 44 and 45 of List I and Entry 32 of List II of the Seventh

Schedule of the Constitution of India, it was observed:
113

“88. Entry 43 of List I speaks of banking, insurance
and financial corporations, etc. but expressly
excludes cooperative societies from its ambit. The
constitutional intendment seems to be that the
cooperative movement was to be left to the States to
promote and legislate upon and the banking
activities of cooperative societies were also not to be
touched unless Parliament considered it imperative.
The BR Act deals with the regulation of the banking
business. There is no provision whatsoever relating
to proceedings for recovery by any bank of its dues.
Recovery was initially governed by the Code of Civil
Procedure by way of civil suits and after the RDB
Act came into force, the recovery of the dues of the
banks and financial institutions was by filing
applications to the Tribunal. The Tribunal has been
established with the sole object to provide speedy
remedy for recovery of debts of the banks and
financial institutions since there has been
considerable difficulties experienced therefor from
normal remedy of civil court.

89. In R.C. Cooper v. Union of India, (1970) 1 SCC
248, this Court observed that power to legislate for
setting up corporations to carry on banking and
other business and to acquire, hold and dispose of
property and to provide for administration of the
corporations is conferred upon Parliament by
Entries 43, 44 and 45 of the Constitution. Therefore,
the express exclusion of cooperative societies in
Entry 43 of List I and the express inclusion of
cooperative societies in Entry 32 of List II separately
and apart from but along with corporations other
than those specified in List I and universities,
clearly indicated that the constitutional scheme was
designed to treat cooperative societies as
institutions distinct from corporations. Cooperative
societies, incorporation, regulation and winding up
are State subjects in the ambit of Entry 32 of List II
of the Seventh Schedule to the Constitution of India.
Cooperatives form a specie of genus “corporation”
and as such cooperative societies with objects not
confined to one State are read in with the Union List
as provided in Entry 44 of List I of the Seventh
Schedule of the Constitution; the MSCS Act, 2002
governs such multi­State cooperatives. Hence, the
cooperative banks performing functions for the
public with a limited commercial function as
opposed to corporate banks cannot be covered by
114

Entry 45 of List I dealing with “banking”. The
subject of cooperative societies is not included in the
Union List rather it is covered under Entry 32 of List
II of the Seventh Schedule appended to the
Constitution.”

The Court distinguished the decision in Delhi High Court Bar

Association (supra) thus:

“95. Union of India v. Delhi High Court Bar Assn.,
(2002) 4 SCC 275, relied upon on behalf of the
respondents in support of the judgments and orders
of the High Court of Bombay and the High Court of
Andhra Pradesh, does not consider the issue of
cooperative banks’ adjudication and recovery
provisions under Entry 32 of List II. The Court was
only considering Entry 45, List I vis­à­vis Entry II­A,
List III “administration of justice”. As such, the
decision of this case is of no assistance or of help to
the proposition of law involved in the present cases.”

66. In Greater Bombay Coop. Bank Ltd. (supra), the Court relied

upon the decisions in Sant Sadhu Singh v. State of Punjab37, and

Nagpur District Central Cooperative Bank Ltd. v. Divisional Joint

Registrar, Cooperative Societies38. In Sant Sadhu Singh (supra), the

amendment made to the Punjab Co­operative Societies Act, 1961,

which curtailed the rights and powers of the shareholders in managing

the co­operative society, was under challenge. Thus, the question

involved was related to the management aspect of the bank governed

by the Co­operative Societies Act for which State had the exclusive

legislative competence under Entry 32 of List II. Whereas in Nagpur

District Central Cooperative Bank Ltd. (supra), the question arose

37 AIR 1970 PH 528
38 AIR 1971 Bom 365
115

whether Registrar had the power under Section 78 of the Maharashtra

Co­operative Societies Act to issue show cause notice to any

committee of the society or any member of such committee including

the Directors in respect of any default or negligence in the

performance of the duties imposed on it or him by the Act or the rule

or the bye­laws and power of the Registrar to remove the Committee or

the members thereof if any such action is called for. The argument

was rejected that the co­operative societies indulged in the banking

business, hence, the State did not have the legislative competence

under Entry 32 of List II, and only the Parliament had the legislative

competence under Entry 45 of List I. The question involved as to

management was clearly covered under Entry 32 of List II. It was with

respect to incorporation, management, and winding up of a society.

Thus, both the abovementioned decisions could not be said to be

applicable with regard to the aspect of banking and were wrongly

relied upon while forming an opinion in Greater Bombay Coop. Bank

Ltd. (supra).

67. At the same time, we are unable to accept the argument raised

on behalf of the respondents. The SARFAESI Act is relatable to Entry 6

of List III considering the provisions contained in Sections 69 and 69A

of the Transfer of Property Act, 1882. We are of the opinion that it

relates to Entry 45 of List I of the Seventh Schedule of the

Constitution of India.

116

68. Learned Counsel for the appellants has also placed reliance on

Virendra Pal Singh (supra), in which the provisions relating to the

recruitment, emoluments, terms, and conditions of service, including

disciplinary control of employees working in the co­operative societies

involved in the banking were considered. Thus, the question of

management/regulation of the co­operative societies was involved. The

aspect of the banking business of the co­operative banks was not

involved. A question was raised as to the legislative competence of the

State to enact. In that context, the Court held that, in pith and

substance, the U.P. Co­operative Societies Act dealt with

incorporation, management and winding up and that if it incidentally

trenches upon banking, would not take the legislation beyond the

competence of the State Legislature. For the proper financing and

effective functioning of co­operative societies, there must also be co­

operative societies that do banking business to facilitate the working

of other co­operative societies merely because they do banking

business, they do not cease to be co­operative societies. It was opined:

“10. We do not think it necessary to refer to the
abundance of authority on the question as to how to
determine whether a legislation falls under an entry
in one list or another entry in another list. Long ago
in Prafulla Kumar Mukherjee v. Bank of Commerce
Ltd., 74 IA 23, the Privy Council was confronted
with the question whether the Bengal Money­
Lenders Act fell within Entry 27 in List II of the
Seventh Schedule to the Government of India Act,
1935, which was “money­lending”, in respect of
which the provincial legislature was competent to
117

legislate, or whether it fell within Entries 28 and 38
in List I which were “promissory notes” and
“banking” which were within the competence of the
Central Legislature. The argument was that the
Bengal Money­Lenders Act was beyond the
competence of the provincial legislature insofar as it
dealt with promissory notes and the business of
banking. The Privy Council upheld the vires of the
whole of the Act because it dealt, in pith and
substance, with money­lending. They observed:

Subjects must still overlap, and where they do
the question must be asked what in pith and
substance is the effect of the enactment of which
complaint is made, and in what list is its true
nature and character to be found. If these
questions could not be asked, much beneficent
legislation would be stifled at birth, and many of
the subjects entrusted to provincial legislation
could never effectively be dealt with.
Examining the provisions of the U.P. Cooperative
Societies Act in the light of the observations of the
Privy Council we do not have the slightest doubt
that in pith and substance the Act deals with
“cooperative societies”. That it trenches upon
banking incidentally does not take it beyond the
competence of the State Legislature. It is obvious
that for the proper financing and effective
functioning of cooperative societies there must also
be cooperative societies which do banking business
to facilitate the working of other cooperative
societies. Merely because they do banking business
such cooperative societies do not cease to be
cooperative societies, when otherwise they are
registered under the Cooperative Societies Act and
are subject to the duties, liabilities and control of
the provisions of the Cooperative Societies Act. We
do not think that the question deserves any more
consideration and, we, therefore, hold that the U.P.

Cooperative Societies Act was within the competence
of the State Legislature. This was also the view
taken in Nagpur District Central Cooperative Bank
Ltd. v. Divisional Joint Registrar, Cooperative
Societies, AIR 1971 Bom 365 and Sant Sadhu Singh
v. State of Punjab, AIR 1970 P H 528.”

In the aforesaid decision, it was held that under the U.P. Co­

operative Societies Act, the State was competent under Entry 32 of
118

List II to deal with incorporation, regulation and winding up of co­

operative banks. However, the main aspect of the activity of the co­

operative bank relating to banking was covered by the BR Act, 1949,

and the Reserve Bank of India Act, which legislations are related to

Entries 45 and 38 of List I of the Seventh Schedule. The aspects of

‘incorporation, regulation and winding up’ are covered under Entry 32

of List II of the Seventh Schedule. In our opinion, the activity of

banking by such bankers is covered by Entry 45 of List I considering

the Doctrine of Pith and Substance, and also considering the

incidental encroachment on the field reserved for State is permissible.

69. The concept of regulating non­banking affairs of society and

regulating the banking business of society are two different aspects

and are covered under different Entries, i.e., Entry 32 of List II and

Entry 45 of List I, respectively. The law dealing with regulation of

banking is traceable to Entry 45 of List I and only the Parliament is

competent to legislate. The Parliament has enacted the SARFAESI

Act. It does not intend to regulate the incorporation, regulation, or

winding up of a corporation, company, or co­operative bank/co­

operative society. It provides for recovery of dues to banks, including

co­operative banks, which is an essential part of banking activity. The

Act in no way trenches on the field reserved under Entry 32 of List II

and is a piece of legislation traceable to Entry 45 of List I. The
119

decision in Virendra Pal Singh (supra) has been rendered regarding

service regulations. It does not apply to the instant case concerning

the regulation of ‘banking’ covered under Entry 45 of List I. The Court

did not deal with the aspect of the regulation of banking in the said

decision as it was not required to be decided. Thus, the ratio of the

decision operates in a different field. Moreover, the U.P. Co­operative

Services Act was saved on the ground of incidental trenching on the

subject of another list, i.e., Entry 45 List I, which is permissible.

IN REFERENCE QUESTION NO.2:

70. The next question is of the effect of Section 56(a) on the

definition of ‘banking company’ as defined in Section 5(1)(b) of the BR

Act, 1949. It is necessary to consider the definition of ‘banking’ as

contained in the SARFAESI Act. The term ‘bank’ has been defined in

Section 2(1)(c) to mean ‘banking company’, a corresponding new bank,

a subsidiary bank or a multi­State co­operative bank or such other

bank which the Central Government may by notification specify for

the Act. The term ‘banking company’ under Section 2(d) shall have

the meaning assigned to it in Section 5(c) of the BR Act, 1949. Thus,

the definition of ‘banking company’ stands incorporated in Section 2(1)

(d) of the SARFAESI Act, which came into force on 21.6.2002. Section

56(a) was incorporated in the BR Act, 1949 by Act No.23 of 1965,

w.e.f. 1.3.1966. On that date, Section 56(a) became part of the

statute. Section 5(c) of the BR Act, 1949 defines ‘banking company’
120

means any company which transacts the business of banking. By

virtue of Section 56(a), a reference to a ‘banking company’ or ‘the

company’ or ‘such company’ shall be construed as references to a co­

operative bank for the application of the Act to the co­operative banks.

Section 5(c) was not amended, and other provisions were also not

amended where they were placed. However, amendments were

incorporated by a different Chapter V by way of various provisions

incorporated in Section 56 as it was necessary to retain certain

provisions in the existing form as they applied to other banks and

companies considering that the amendments and certain

modifications which were necessary and were extensively required.

The provisions in amended form in their application to the co­

operative banks were separately provided. When the BR Act, 1949

was applied to the co­operative bank, all the provisions under the Act

concerning ‘incorporation, regulation and winding up’ were omitted

insofar as the Act of 1949 is applied to co­operative banks, though

they continue to exist in the Act for other entities but not concerning

co­operative banks. It was mentioned in the advice given to the

President under Article 117 that these matters were specifically not

covered under Entry 45 of List I of the Seventh Schedule and formed

the subject­matter of Entry 32 of List II. Thus, when we apply the

provisions of the Act of 1949 to a co­operative bank, the definition of

‘banking company’ has to be read to include a co­operative bank.
121

Section 56(a) becomes part of Section 5(c), although it is located in a

separate place. As only Part V of the Act applies to the co­operative

banks, Section 56(a) amends the definition of the ‘banking company,’

and it becomes an integral part of Section 5(c), as the full effect is

required to be given.

71. The aspect of incorporation by reference of earlier Act into later

has been dealt with in the ‘Principles of Statutory Interpretation’, 12 th

Edition 2010 by Justice G.P. Singh at pages 318­320 thus:

“Incorporation of an earlier Act into a later Act is a
legislative device adopted for the sake of
convenience in order to avoid verbatim reproduction
of the provisions of the earlier Act into the later.39
When an earlier Act or certain of its provisions are
incorporated by reference into a later Act, the
provisions so incorporated become part and parcel
of the later Act as if they had been “bodily
transposed into it”.40 The effect of incorporation is
admirably stated by LORD ESHER, M.R.: “If a
subsequent Act brings into itself by reference some
of the clauses of a former Act, the legal effect of that,
as has often been held, is to write those sections
into the new Act as if they had been actually written
in it with the pen, or printed in it.”41 The result is to
constitute the later Act along with the incorporated

39 Mary Roy v. State of Kerala, (1986) 2 SCC 209, p. 216 : AIR 1986 SC 1011;

Nagpur Improvement Trust v. Amrik Singh, AIR 2002 SC 3499, p. 3512 : (2002) 7
SCC 657.

40 Ramsarup v. Munshi, AIR 1963 SC 553, p. 558 : 1963 (3) SCR 858 ; Nagpur
Improvement Trust v. Amrik Singh, AIR 2002 SC 3499, p. 3512 : (2002) 7 SCC 657.

41 Re, Wood’s Estate, Ex parte, Works and Buildings Commrs., (1886) 31 Ch D
607, p. 615; Ram Kripal Bhagat v. State of Bihar, AIR 1970 SC 951, p. 957 : (1969)
3 SCC 471; Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17, p. 29 : 1975 (2)
SCR 138 : (1974) 2 SCC 777 ; Mahindra and Mahindra Ltd. v. Union of India, AIR
1979 SC 798, pp. 810, 811 : (1979) 2 SCC 529 ; Onkarlal Nandlal v. State of
Rajasthan, (1985) 4 SCC 404, p. 415 : AIR 1986 SC 2146; Surana Steels Pvt. Ltd.
v. Dy. Commissioner of Income­tax, AIR 1999 SC 1455, p. 1459 : (1999) 4 SCC 306
(p. 233 of 7th edition of this book is approvingly quoted).
122

provisions of the earlier Act, an independent
legislation which is not modified or repealed by a
modification or repeal of the earlier Act. 42 As
observed by BRETT, J.: “Where a statute is
incorporated, by reference, into a second statute,
the repeal of the first statute by a third does not
affect the second.”43 To the same effect is the
statement by SIR GEORGE LOWNDES: “It seems to
be no less logical to hold that where certain
provisions from an existing Act have been
incorporated into subsequent Act, no addition to the
former Act, which is not expressly made applicable
to the subsequent Act, can be deemed to be
incorporated in it, at all events if it is possible for
the subsequent Act to function, effectually without
the addition.44 Ordinarily if an Act is incorporated in
a later Act, the intention is to incorporate the earlier
Act, with all the amendments made in it up to the
date of incorporation.45 The rule that the repeal or
amendment of the Act which is incorporated by
reference in a later Act is not applicable for
purposes of the later Act is subject to qualifications
and exceptions.46 A distinction is in this context
drawn between incorporation and mere reference of
an earlier Act into a later Act.47 Further, a
42 Narottamdas v. State of M.P., AIR 1964 SC 1667, p. 1670 : (1964) 7 SCR 820;
Bolani Ores Ltd. v. State of Orissa, supra; Mahindra and Mahindra Ltd. v. Union of
India, supra; Nagpur Improvement Trust v. Amrik Singh, supra ; Sneh Enterprises
v. Commr. of Customs, (2006) 7 SCC 714 (para 13) : (2006) 8 JT 587 : (2006) 7 SLT
615 (passage from 10th edition of this book is approvingly quoted).

43 Clarke v. Bradlaugh, (1881) 8 QBD 63, p. 69; referred to in Ramsarup v.
Munshi, AIR 1963 SC 553, p. 558 : (1963) 3 SCR 858; Collector of Customs,
Madras v. Nathelal Sampathu Chetty, AIR 1962 SC 316, p. 334 : (1962) 3 SCR 786.
See further Jethanand Betab v. State of Delhi, AIR 1960 SC 89, pp. 91, 92 : (1960)
1 SCR 755; Bolani Ores Ltd. v. State of Orissa, supra; Mahindra and Mahindra Ltd.
v. Union of India, supra; Nagpur Improvement Trust v. Amrik Singh, supra .

44 Secretary of State v. Hindustan Co­operative Insurance Society Ltd., AIR 1931
PC 149, p. 152. Referred to in Chairman of the Municipal Commrs. of Howrah v.
Shalimar Wood Products (Private) Ltd., AIR 1962 SC 1691, p. 1694 : 1963 (1) SCR
47; Bolani Ores Ltd. v. State of Orissa, AIR 1975 SC 17, p. 29 : 1974 (2) SCC 777 ;
Mahindra and Mahindra Ltd. v. Union of India, AIR 1979 SC 798, pp. 810, 811 :
(1979) 2 SCC 529.

45 State of Maharashtra v. Madhavrao Damodar Patil, AIR 1968 SC 1395, p. 1400 :
1968 (3) SCR 712.

46 See text and notes 9­41, pp. 324­332.

47 See text and notes 14­21, pp. 326­328.

123

distinction is also drawn when what is referred to is
not an earlier Act or any provision from it but law on
a subject in general.48 There is, however, no
controversy on the point that when any Act or rules
are adopted in any later Act or rules, such adoption
normally whether by incorporation or mere
reference takes in all the amendments in the earlier
Act or rules till the date of adoption.49”

The present one is a case of incorporation by reference in the

same Act by a subsequent amendment in the application to co­

operative banks. When we apply the provisions of Section 5(c) to the

co­operative banks, we have to read the co­operative banks as part

and parcel of said definition as mandated statutorily. In case a

company is not taken as a reference to the co­operative

societies/banks in Section 5(c), several problems as to the

interpretation of Section 56 would arise. It would have become

necessary to amend all the provisions wherever words ‘banking

company’ occur in the BR Act, 1949 in the application to co­operative

banks.

72. With respect to legislative device of incorporation by reference in

Mary Roy, etc. v. State of Kerala and Ors.50, the Court held:

“7. … The legislative device of incorporation by
reference is a well­known device where the
legislature instead of repeating the provisions of a
particular statute in another statute incorporates
48 See text and notes 10­13, pp. 325, 326.

49 Rajasthan State Road Transport Corporation Jaipur v. Poonam Pahwa, AIR 1997
SC 2951, p. 2957 : 1997 (6) SCC 100. Also see text and note 80, supra.

[For convenience, citations have been renumbered.]
50 AIR 1986 SC 1011: (1986) 2 SCC 209
124

such provisions in the latter statute by reference to
the earlier statute. It is a legislative device adopted
for the sake of convenience in order to avoid
verbatim reproduction of the provisions of an earlier
statute in a later statute. But when the legislature
intends to adopt this legislative device the language
used by it is entirely distinct and different from the
one employed in S.29 sub­sec.(2) of the Indian
Succession Act, 1925. The opening part of S.29 sub­
sec. (2) is intended to be a qualificatory or excepting
provision and not a provision for incorporation by
reference. We have no hesitation in rejecting this
contention urged on behalf of the respondents.”

73. In U.P. Avas Evam Vikas Parishad v. Jainul Islam and Anr. 51, it

was observed:

“The determination if a legislation was by way of
incorporation or reference is more a matter of
construction by the Courts keeping in view the
language employed by the Act, the purpose of
referring or incorporating provision of an existing
Act and the effect of it on the day­to­day working.
Reason for it is the Courts prime duty to assume
that any law made by the Legislature is enacted to
serve public interest.”

74. In Portsmouth Corporation v. Smith52, it was opined:

“Where a single section of an Act of Parliament is
introduced into another Act, I think, it must be read
in the sense which it bore in the original Act from
which it is taken, and that consequently it is
perfectly legitimate to refer to all the rest of that Act
in order to ascertain what the section meant,
though those other sections are not incorporated in
the new Act.”

Lord Blackburn further observed thus:

“I do not mean that if there was in the original Act a
section not incorporated, which came by way of a
proviso or exception on that which is incorporated,
that should be referred to, but all others, including
the interpretation clause, if there be one, may be

51 AIR 1998 SC 1028
52 (1885) 10 AC 364
125

referred to. It is dangerous mode of draftsmanship
to incorporate a section from a former Act, for
unless the draftsman has a much clearer
recollection of the whole of the former Act than can
always be excepted, there is great risk that
something may be expressed which was not
intended.””

75. In Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income Tax and

Ors.53, it was held that provision is bodily listed and stands

incorporated and plain rule of interpretation to be applied:

“12. Once we have ascertained the object behind the
legislation and held that the provisions of Section
205 quoted hereinabove stand bodily lifted and
incorporated into the body of Section 115J of the
Income Tax Act, all that we have to do is to read the
provisions plainly and apply rules of interpretation if
any ambiguity survives. Section 205(1) first proviso
Clause (b), of the Companies Act brings out the
unabsorbed portion of the amount of depreciation
already provided for computing the loss for the year.
The words “the amount provided for depreciation”
and “arrived at in both cases after providing for
depreciation” make it abundantly clear that in this
clause “loss” refers to the amount of loss arrived at
after taking into account the amount of depreciation
provided in the profit and loss account.”

(emphasis supplied)

76. In Secretary of State v. Hindustan Cooperative Insurance Society

Ltd.54, the Privy Council held:

“……….In this country it is accepted that where a
statute is incorporated by reference into a second
statute, the repeal of the first statute does not affect
the second: see the cases collected in “Craies on
Statute Law”. This doctrine finds expression in a
common form section which regularly appears in the
Amending and Repealing Acts which are passed

53 (1999)4 SCC 306
54 AIR 1931 PC 149
126

from time to time in India. The section runs.
“The repeal by this Act of any enactment shall not
affect any Act in which such enactment has been
applied, incorporated or referred to;”

The independent existence of the two Acts is
therefore recognized, despite the death of the parent
Act, its offspring survives in the incorporating Act.
Though no such saving clause appears in the
General Clauses Act, their lordships think that the
principle involved is as applicable in India as it is in
this country.

It seems to be no less logical to hold that where
certain provisions from an existing Act have been
incorporated into a subsequent Act which is not
expressly made applicable to the subsequent Act,
can be deemed to be incorporated in it, at all events
if it is possible for the subsequent Act to function
effectually without the addition.”

77. In Ram Sarup and Ors. v. Munshi and Ors.55, it was opined:

“(11) The problem here raised is dependent upon
the construction which the several provisions
which we have set out earlier would bear after the
repeal of the Punjab Alienation of Land Act, 1900.
One thing is clear and that is that the authority
which enacted the repeal of the Punjab Alienation
of Land Act did not consider that Punjab Act 1 of
1913 had itself to be repealed. We shall now
consider the effect of the repeal of the Punjab
Alienation of Land Act with reference to each of the
provisions:—

(1) Definition of ‘agricultural land’ under S. 3(1):
Where the provisions of an Act are incorporated
by reference in a later Act the repeal of the earlier
Act has, in general, no effect upon the construction
or effect of the Act in which its provisions have
been incorporated. The effect of incorporation is
stated by Brett, L.J. in Clarke v Bradlugh, (1881) 8
QBD 63:

“Where a statute is incorporated, by
reference, into a second statute the repeal of the

55 AIR 1963 SC 553
127

first statute by a third does not affect the
second.”

In the circumstances, therefore, the repeal of the
Punjab Alienation of Land Act of 1900 has no effect
on the continued operation of the Pre­emption Act
and the expression ‘agricultural land’ in the later
Act has to be read as if the definition in the
Alienation of Land Act had been bodily transposed
into it. Section 2 of the Punjab Alienation of Land
Act, 1900, as amended by Act 1 of 1907 defined
‘land’ as follows:

“The expression ‘land’ means land which is
not occupied as the site of any building in a
town or village and is occupied or let for
agricultural purposes or for purposes
subservient to agriculture or for pasture, and
includes…………………………………………..
………………………..”
It is not in dispute that the land concerned in
the claim for pre­emption made in the appeal
satisfies this definition.”

78. It is apparent that in order to avoid verbatim reproduction of the

earlier provisions, which did not apply to a co­operative bank, a device

was carved out in Section 56(a) to read ‘company’ as ‘banking

company’ or ‘the company’ or ‘such company’ as references to a co­

operative bank. If the definition in Section 5(c) and interpretation

clause are not read as incorporated and having been amended, the

interpretation clause and the entire amendment of Part V will become

unworkable. It was not practical to amend the entire Act of 1949 as it

dealt with ‘incorporation, regulation and winding up’ of other entities

relatable to List I, as such the provisions were required to be retained,

and such matters concerning co­operative societies/banks, relatable
128

subject­matter under Entry 32 of List I of the Seventh Schedule of the

Constitution of India, were to be excluded. As various provisions were

to be omitted in their application to the co­operative societies and

other provisions were to apply in a modified form, the amendments

were made in the provisions in their application to the co­operative

banks by providing a separate Chapter. Thus, it was not considered

necessary nor would have been appropriate to amend the definition of

Section 5(c) where it existed, in fact it was so amended in Section

56(a). Entire Chapter V was enacted concerning the application of the

Act to the co­operative banks and has to be given full effect. Merely

because the procedure for recovery of dues is provided in the Co­

operative Societies Act, could not have come in the way of

interpretation of that expression ‘co­operative bank’ which was

included in the definition and interpretation clause of Section 5 of the

BR Act, 1949. It was open to the Parliament to deal with the subject

of ‘banking’ in Entry 45 of List I and this Court in Greater Bombay

Coop. Bank Ltd. (supra) itself opined that the BR Act, 1949 applies to

co­operative banks which is the enactment related to Entry 45 of List I

and third proviso to Article 243­ZL(1) of the Constitution of India also

provides that the BR Act shall also apply. Thus, the Parliament

considered it appropriate to provide additional remedy for speedy

recovery which is an alternative even if there is an incidental

encroachment on the field reserved for the State under Entry 32 of
129

List II, as in pith and substance, the ‘banking’ is part of Entry 45 of

List I and recovery procedure is covered within the ken of Entry 45 of

List I. Thus, considering the Doctrine of Pith and Substance and

incorporation by amendment made, we are of the considered opinion

that co­operative banks are included in the definition of ‘bank’ and

‘banking company’ under Section 2(1)(c) and 2(1)(d) of the SARFAESI

Act.

79. In Greater Bombay Coop. Bank Ltd. (supra) concerning the BR

Act, 1949, it was held:

“39. Chapter V of the BR Act was inserted by Act 23
of 1965 w.e.f. 1­3­1966. Section 56 of the Act
provides that the provisions of this Act, as in force
for the time being, shall apply to, or in relation to,
banking companies subject to the following
modifications, namely:

“56. (a) throughout this Act, unless the context
otherwise, requires,—

(i) references to a ‘banking company’ or ‘the
company’ or ‘such company’ shall be construed as
references to a cooperative bank;

(ii)* * *”
The purpose and object of modifications were to
regulate the functioning of the cooperative banks in
the matter of their business in banking. The
provisions of Section 56 itself start with the usual
phrase “unless the context otherwise requires” is to
make the regulatory machinery provided by the BR
Act to apply to cooperative banks also. The object
was not to define a cooperative bank to mean a
banking company, in terms of Section 5(c) of the BR
Act. This is apparent from the fact that instead of
amending the original clause (c) of Section 5
separate clause (cci) was added to cover the
“cooperative bank” to mean “a State cooperative
bank, a Central cooperative bank and a primary
cooperative bank”. In clause (ccv) “primary
130

cooperative bank” means “a cooperative society,
other than a primary agricultural credit society”.
The primary object or principal business of the
“cooperative bank” should be the transaction of
banking business.

40. The modifications given in clause (a) of Section
56 are apparently suitable to make the regulatory
machinery provided by the BR Act to apply to
cooperative banks also in the process of bringing the
cooperative banks under the discipline of Reserve
Bank of India and other authorities. A cooperative
bank shall be construed as a banking company in
terms of Section 56 of the Act. This is because the
various provisions for regulating the banking
companies were to be made applicable to
cooperative banks also. Accordingly, Section 56
brought cooperative banks within the machinery of
the BR Act but did not amend or expand the
meaning of “banking company” under Section 5(c).

On a plain reading of every clause of Section 56 of
the BR Act, it becomes clear that what is contained
therein is only for the purpose of application of
provisions that regulate banking companies to
cooperative societies. According to the expression
“cooperative societies” used in Section 56 means a
“cooperative society”, the primary object or principal
business of which is the transaction of banking
business. In other words, first it is a cooperative
society, but carrying on banking business having
the specified paid­up share capital. Other definitions
also make it clear that the entities are basically
cooperative societies.”

(a) Concerning the SARFAESI Act, following observations were

made:

“41. Parliament had enacted the Securitisation and
Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 (“the Securitisation
Act”) which shall be deemed to have come into force
on 21­6­2002. In Section 2(d) of the Securitisation
Act same meaning is given to the words “banking
company” as is assigned to it in clause (e) of Section
5 of the BR Act. Again the definition of “banking
company” was lifted from the BR Act but while
defining “bank”, Parliament gave five meanings to it
131

under Section 2(c) and one of which is “banking
company”. The Central Government is authorised by
Section 2(c)(v) of the Act to specify any other bank
for the purpose of the Act. In exercise of this power,
the Central Government by notification dated 28­1­
2003, has specified “cooperative bank” as defined in
Section 5(cci) of the BR Act as a “bank” by lifting the
definition of “cooperative bank” and “primary
cooperative bank” respectively from Section 56,
clauses 5(cci) and (ccv) of Part V. Parliament has
thus consistently made the meaning of “banking
company” clear beyond doubt to mean “a company
engaged in banking, and not a cooperative society
engaged in banking” and in Act 23 of 1965, while
amending the BR Act, it did not change the
definition in Section 5(c) or even in Section 5(d) to
include cooperative banks; on the other hand, it
added a separate definition of “cooperative bank” in
Section 5(cci) and “primary cooperative bank” in
Section 5(ccv) of Section 56 of Part V of the BR Act.

Parliament while enacting the Securitisation Act
created a residuary power in Section 2(c)(v) to
specify any other bank as a bank for the purpose of
that Act and in fact did specify “cooperative banks”
by notification dated 28­1­2003.

42. The context of the interpretation clause plainly
excludes the effect of a reference to banking
company being construed as reference to a
cooperative bank for three reasons: firstly, Section 5
is an interpretation clause; secondly, substitution of
“cooperative bank” for “banking company” in the
definition in Section 5(c) would result in an
absurdity because then Section 5(c) would read
thus: “cooperative bank” means any company,
which transacts the business of banking in India;
thirdly, Section 56(c) does define “cooperative bank”
separately by expressly deleting/inserting clause
(cci) in Section 5. Parliament in its wisdom had not
altered or modified the definition of “banking
company” in Section 5(c) of the BR Act by Act 23 of
1965.

43. As noticed above, “cooperative bank” was
separately defined by the newly inserted clause (cci)
and “primary cooperative bank” was similarly
separately defined by clause (ccv). The meaning of
“banking company” must, therefore, necessarily be
132

strictly confined to the words used in Section 5(c) of
the BR Act. If the intention of Parliament was to
define the “cooperative bank” as “banking
company”, it would have been the easiest way for
Parliament to say that “banking company” shall
mean “banking company” as defined in Section 5(c)
and shall include “cooperative bank” and “primary
cooperative bank” as inserted in clauses (cci) and
(ccv) in Section 5 of Act 23 of 1965.”

(b) Concerning incorporation by reference to Section 56 (a) of the BR

Act, 1949, it was opined:

“70. The dues of cooperatives and recovery
proceedings in connection therewith are covered by
specific Acts, such as the MCS Act, 1960 and the
APCS Act, 1964, which are comprehensive and self­
contained legislations. Similarly, for multi­State
cooperatives there is a specific enactment in the
form of the MSCS Act, 2002 comprehensively
providing the legal framework in respect to issues
pertaining to such cooperatives. Therefore, when
there is an admittedly existing legal framework
specifically dealing with issues pertaining to
cooperatives and especially when the cooperative
banks are, in any case, not covered by the
provisions of the RDB Act specifically, there is no
justification of covering the cooperative banks under
the provisions of the RDB Act by invoking the
doctrine of incorporation.”

(c) Regarding the definition of ‘banking company’ in the BR Act,

1949, it was observed:

“73. The RDB Act was passed in 1993 when
Parliament had before it the provisions of the BR Act
as amended by Act 23 of 1965 by addition of some
more clauses in Section 56 of the Act. Parliament
was fully aware that the provisions of the BR Act
apply to cooperative societies as they apply to
banking companies. Parliament was also aware that
the definition of “banking company” in Section 5(c)
had not been altered by Act 23 of 1965 and it was
kept intact, and in fact additional definitions were
133

added by Section 56(c). “Cooperative bank” was
separately defined by the newly inserted clause (cci)
and “primary cooperative bank” was similarly
separately defined by clause (ccv). Parliament was
simply assigning a meaning to words; it was not
incorporating or even referring to the substantive
provisions of the BR Act. The meaning of “banking
company” must, therefore, necessarily be strictly
confined to the words used in Section 5(c) of the BR
Act. It would have been the easiest thing for
Parliament to say that “banking company” shall
mean “banking company” as defined in Section 5(c)
and shall include “cooperative bank” as defined in
Section 5 (cci) and “primary cooperative bank” as
defined in Section 5(ccv). However, Parliament did
not do so. There was thus a conscious exclusion
and deliberate omission of cooperative banks from
the purview of the RDB Act. The reason for
excluding cooperative banks seems to be that
cooperative banks have comprehensive, self­
contained and less expensive remedies available to
them under the State Cooperative Societies Acts of
the States concerned, while other banks and
financial institutions did not have such speedy
remedies and they had to file suits in civil courts.

80. As already pointed out, the RDB Act is
consistent with the general banks and their
creditors/loanees while the MCS Act, 1960, the
APCS Act, 1964 and the MSCS Act, 2002 are
concerned with the regulation of societies only. The
language of the sections in these enactments
defining “banking company” is plain, clear and
explicit. It does not admit any doubtful
interpretation as the intention of the legislature is
clear as aforesaid. It is well settled that the language
of the statutes is to be properly understood. The
usual presumption is that the legislature does not
waste its words and it does not commit a mistake. It
is presumed to know the law, judicial decisions and
general principles of law. The elementary rule of
interpretation of the statute is that the words used
in the section must be given their plain grammatical
meaning. Therefore, we cannot afford to add any
words to read something into the section, which the
legislature had not intended.

134

81. Finally, it could not be said that amendments in
Chapter V, Section 56 of the BR Act by Act 23 of
1965 inserting “cooperative bank” in clause (cci) and
“primary cooperative bank” in clause (ccv) either
expressly or by necessary intendment (sic make the
RDB Act) apply to the cooperative banks transacting
business of banking.”

(d) The questions were answered thus:

“97. For the reasons stated above and adopting
pervasive and meaningful interpretation of the
provisions of the relevant statutes and Entries 43,
44 and 45 of List I and Entry 32 of List II of the
Seventh Schedule of the Constitution, we answer
the reference as under:

“Cooperative banks” established under the
Maharashtra Cooperative Societies Act, 1960 (the
MCS Act, 1960), the Andhra Pradesh Cooperative
Societies Act, 1964 (the APCS Act, 1964), and the
Multi­State Cooperative Societies Act, 2002 (the
MSCS Act, 2002) transacting the business of
banking, do not fall within the meaning of
“banking company” as defined in Section 5(c) of
the Banking Regulation Act, 1949 (the BR Act).

Therefore, the provisions of the Recovery of Debts
Due to Banks and Financial Institutions Act,
1993 (the RDB Act) by invoking the doctrine of
incorporation are not applicable to the recovery of
dues by the cooperatives from their members.”

No doubt about it that certain observations made in the

aforesaid decision support the case set up by the appellants.

80. Before we deal with the decision, in Greater Bombay Coop. Bank

Ltd. (supra), it was noted that ‘co­operative bank’ was defined in

Section 56(cci) of the BR Act, 1949; thus, the object was not to define

co­operative bank to mean banking company; that is why the original

Section 5(c) was not amended. Another ground employed concerning

the definition of the ‘co­operative bank’ was that the modifications
135

made by way of Section 56 were apparently suitable to make the

regulatory machinery provided by the BR Act, 1949, to apply to co­

operative banks also. It was opined that a co­operative bank to be

construed as a banking company in terms of Section 56 of the BR Act,

1949, because various provisions were made applicable to co­operative

banks also. At the same time, it was held that Section 56 brought co­

operative banks within the machinery of the BR Act, 1949, but it did

not amend or expand the meaning of ‘banking company’ under Section

5(c). It was further observed that the entities doing banking are

basically co­operative societies. Regarding the SARFAESI Act, it was

observed in paragraph 41 of the decision quoted above that meaning

of ‘banking company’ is a company engaged in banking and not a ‘co­

operative society’ engaged in banking. The Parliament did not alter or

modify the meaning of ‘banking company’ under Section 5(c) of the BR

Act, 1949 by Act No.23 of 1965. The meaning of ‘banking company’

has to be confined to the words used in Section 5(c) of the BR Act,

1949. It was emphasised that there was already a procedure

prescribed for recovery of dues by banks under the Co­operative

Societies Act. The RDB Act, 1993, refers to the transfer of ‘every suit

or other proceeding pending before any court.’ The word ‘court’ in the

context of the RDB Act, 1993, signifies ‘civil court.’ It is clear that the

Registrar or an officer designated by him or an arbitrator under

Sections 61, 62, 70, and 71 of the Andhra Pradesh Co­operative
136

Societies Act, 1964 and under Section 91 and other provisions of

Maharashtra Co­operative Societies Act, 1960 are not ‘civil courts.’

Thus, it was opined that the RDB Act, 1993 is consistent with the

general banks and their creditors/loaners where the Maharashtra Co­

operative Societies Act, 1960; the Andhra Pradesh Co­operative

Societies Act, 1964 and the MSCS Act are concerned with the

regulation of co­operative societies only. Due to the amendments in

Chapter V of the BR Act, 1949 inserting ‘co­operative bank’ in clause

(cci) to Section 56 and ‘primary co­operative bank’ in clause (ccv) to

Section 56 it could not be said that RDB Act, 1993 applies to the co­

operative banks transacting the business of banking.

81. In Greater Bombay Coop. Bank Ltd. (supra), the provisions of the

BR Act, 1949 were simply noted; there was no in­depth consideration

of the various provisions and, more particularly of those contained in

Section 56 of the Act. The main issue was whether the court had

jurisdiction or Debts Recovery Tribunal to recover the amount from

the debtor. In that connection, the question of application of RDB Act,

1993 to the co­operative societies constituted under MSCS Act as well

as State Co­operative Acts arose and also whether the State legislature

was competent to enact legislation concerning co­operative societies

incidentally transacting the business of banking in the light of Entry

32 of List II. The findings were recorded on various aspects with which

we are unable to agree. The discussion on various issues was not in­
137

depth, could not be said to be binding. We have dealt with the various

questions with the help of various decisions of this Court, and we find

ourselves unable to agree with the conclusions recorded therein. The

co­operative banks are doing the banking business, it could not be

said to be an incidental activity but main and only activity. We are

unable to subscribe to the view taken in Greater Bombay Coop. Bank

Ltd. (supra) as the provisions were not correctly appreciated.

82. The reason is given in Greater Bombay Coop. Bank Ltd. (supra)

that comprehensive machinery is provided in the State Act, could not

have come in the way of Parliament enacting a law as to recovery

within the purview of ‘banking’ in Entry 45 of List I as the same is its

essential part. Even incidental trenching upon other fields cannot

invalidate legislation. Equally futile is the argument that the

Parliament did not amend Section 5(c) of the BR Act, 1949; in fact, the

Parliament did so under Section 56(a) concerning its application to co­

operative banks. A large number of provisions added in Chapter V by

way of amending Section 56 cannot be ignored and set at naught. The

extensive amendments made in Part V of the BR Act, 1949, have to be

given full effect. In case co­operative banks are kept outside the

purview of the BR Act, 1949, and other legislation under Entry 45 and

RBI Act, no licence can be granted, and they cannot do banking as

that is not permissible without compliance of various provisions as

provided in the BR Act, 1949. They would have to close down and
138

stop the business forthwith.

83. The co­operative banks, which are governed by the BR Act,

1949, are involved in banking activities within the meaning of Section

5(b) thereof. They accept money from the public, repayable on

demand or otherwise and withdrawal by cheque, draft, order or

otherwise. Merely by the fact that lending of money is limited to

members, they cannot be said to be out of the purview of banking.

They perform commercial functions. A society shall receive deposits

and loans from members and other persons. They give loans also, and

it is their primary function. Thus, they are covered under ‘banking’ in

Entry 45 of List I.

IN REFERENCE QUESTION NOS. 3(a) AND 3(b)

84. Learned Counsel appearing on behalf of appellants argued that

securitisation is not a banking business. The SARFAESI Act is to

regulate securitisation and reconstruction of financial assets.

Emphasis was laid on the financial assets and financial assistance.

The definition of ‘debt’ in Section 2(1)(ha) of the SARFAESI Act is the

same as defined in Section 2(g) of the RDB Act, 1993, the ‘debt’ is

defined as any liability which is claimed as due during any business

activity undertaken by the bank or the financial institution. In our

opinion, the submission ignores and overlooks the purpose of the

SARFAESI Act, i.e., enforcement of security interest, and that is
139

precisely sought to be achieved by Section 13 without the intervention

of the court. Since the activity of a co­operative bank is banking

regulated by the law enacted within the relatable Entry 45 of List I, we

find no reason as to why the Parliament lacked the competence to

enact the SARFAESI Act and to provide a procedure for the speedy

recovery of dues. The SARFAESI Act also covers the activities

undertaken by the co­operative banks. The co­operative banks are

doing banking business under Section 5(b) of the BR Act, 1949, and

the exclusion of the co­operative societies from Entry 43 of List I, does

not have any bearing regarding the interpretation of Entry 45 of List I.

85. Even assuming for the time being that definition of ‘bank’ in

Section 5(c) of the BR Act, 1949 did not cover the co­operative banks;

the expression ‘bank’ has been defined in the SARFAESI Act under

Section 2(1)(c), and the provisions contained in Section 2(1)(c)(v)

authorises the Central Government to specify ‘such other bank’ for

that Act. Thus, the notification issued on 28.1.2003 notifying ‘co­

operative bank’ as the ‘bank’ is covered by Entry 45 of List I as they

are regulated by the BR Act, 1949, and the RBI Act. For the ‘banking’

activity under Entry 45 of List I, the Parliament had the power to

enact such a provision defining ‘bank’ to authorise and prescribe the

recovery procedure for such a bank as provided in Section 13 of the

SARFAESI Act; However, we are of the view that co­operative

societies/banks stand included by incorporation in Section 5(1)(c) of
140

the BR Act and the notification was issued ex abundanti cautela. By

virtue of Section 56(a), co­operative banks, as defined in Section

56(cci) of the BR Act, 1949, are included in Section 5(1)(c). Similarly,

multi­State co­operative banks were also covered.

86. The earlier procedure for recovery of dues was differently

provided for general banks and the co­operative banks through the

Civil Court or Tribunal. In the SARFAESI Act, a procedure has been

prescribed under Section 13 without the intervention of the

court/tribunal to keep pace with the time. Thus, the malady of

inordinate delay with which the order of civil court suffered as well as

of the co­operative tribunals or summary procedure under the Co­

operative Societies Act, was sought to be redressed. Apart from that,

it is permissible for the Parliament to enact the law to provide recovery

procedures for bank dues that have been done by providing speedy

recovery of secured interest without intervention of the court/tribunal.

87. In Soma Suresh Kumar v. Government of Andhra Pradesh and

Ors.56, it was observed that there were several occasions when the laws

enacted by the State as well as by the banking regulation carved out

by Central Government acted in their field. This Court considered the

Andhra Pradesh Protection of Depositors of Financial Establishments

Act, 1999, and the effects of the BR Act, 1949. It was held that ambit

56 (2013) 10 SCC 677
141

of respective Acts and field covered is required to be considered and it

was permissible for the State legislature also to enact the provisions

notwithstanding the BR Act, 1949 with respect to the matters which

were not covered by the said Act to protect the interest of the

investors. It was held that Andhra Pradesh Protection of Depositors of

Financial Establishments Act, 1999, did not create any repugnancy to

any Central law. It was observed:

“6. Further, it is also pointed out that the Banking
Regulations Act, enacted by the Central
Government, to regulate the operation of banking
companies or organisations, enables RBI to give
licence to banking companies to carry out the
functions of the Bank. It was pointed out that it
covered different areas which are not common to the
area covered by the Andhra Act. Further, it was
pointed out that both the Acts have applicability to
different aspects of refund to the depositors. The
Banking Regulations Act, it is pointed out, was
enacted to regulate the functioning of the banking
companies, including Vasavi Cooperative Urban
Bank Ltd. and that the petitioners have approached
this Court challenging the validity of the Act so as to
wriggle out of the clutches of law.”

88. In K.K. Baskaran v. State Represented by its Secretary, Tamil

Nadu, and Ors.57, the question arose concerning T.N. Protection of

Interests of Depositors (in Financial establishments) Act, 1997. The

said Act provided for a remedy to evils caused by fraudulent activities

of financial establishments for which no redressal mechanism was

provided in Central enactments. It was held that T.N. Protection of

Interests of Depositors (in Financial establishments) Act, 1997, did not

57 (2011) 3 SCC 793
142

entrench the field occupied by Section 58­A of Companies Act, 1956

as the object of the 1997 Act was completely different. The Doctrine of

Pith and Substance and its effect on the overlapping of fields occupied

by Central and State Lists was considered. The relevant discussion is

extracted hereunder:

“18. It often happens that a legislation overlaps both
List I as well as List II of the Seventh Schedule. In
such circumstances, the doctrine of pith and
substance is applied. We are of the opinion that in
pith and substance the impugned State Act is
referable to Entries 1, 30 and 31 of List II of the
Seventh Schedule and not Entries 43, 44 and 45 of
List I of the Seventh Schedule.

19. It is well settled that incidental trenching in
exercise of ancillary powers into a forbidden
legislative territory is permissible vide the
Constitution Bench decision of this Court in State of
W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201
[vide SCC paras 31(4), (5) (6) and 129(5)]. Sharp
and distinct lines of demarcation are not always
possible and it is often impossible to prevent a
certain amount of overlapping vide ITC Ltd. v. State
of Karnataka, 1985 Supp SCC 476 (SCC para 17).
We have to look at the legislation as a whole and
there is a presumption that the legislature does not
exceed its constitutional limits.

21. The doctrine of pith and substance means that
an enactment which substantially falls within the
powers expressly conferred by the Constitution
upon a legislature which enacted it cannot be held
to be invalid merely because it incidentally
encroaches on matters assigned to another
legislature. The Court must consider what
constitutes in pith and substance the true subject­
matter of the legislation. If on such examination it is
found that the legislation is in substance one on a
matter assigned to the legislature then it must be
held to be valid even though it incidentally trenches
on matters beyond its legislative competence, vide
143

Union of India v. Shah Goverdhan L. Kabra Teachers’
College, (2002) 8 SCC 228 (SCC para 7).

22. For applying the doctrine of pith and substance
regard is to be had to the enactment as a whole, its
main objects and the scope and effect of its
provisions vide Special Reference No. 1 of 2001, In
re, (2004) 4 SCC 489 (SCC para 15). For this
purpose the language of the entries in the Seventh
Schedule should be given the widest scope of which
the meaning is fairly capable, vide State of W.B. v.
Kesoram Industries Ltd., (2004) 10 SCC 201, [SCC
para 31(4)], Union of India v. Shah Goverdhan L.
Kabra Teachers’ College, (2002) 8 SCC 228 (SCC
para 6) and ITC Ltd. v. State of Karnataka, 1985
Supp SCC 476 (SCC para 17).”

89. In M/s. Ujagar Prints and Ors. (II) v. Union of India and Ors. 58, it

was laid down that entries in the State legislature should be liberally

construed and the Doctrine of Pith and Substance was considered

thus:

“48. Entries to the legislative lists, it must be
recalled, are not sources of the legislative power but
are merely topics or fields of legislation and must
receive a liberal construction inspired by a broad
and generous spirit and not in a narrow pedantic
sense. The expression “with respect to” in Article
246 brings in the doctrine of “Pith and Substance”
in the understanding of the exertion of the
legislative power and wherever the question of
legislative competence is raised the test is whether
the legislation, looked at as a whole, is substantially
“with respect to” the particular topic of legislation. If
the legislation has a substantial and not merely a
remote connection with the entry, the matter may
well be taken to be legislation on the topic.”

90. In Keshavlal Khemchand and Sons Private Limited and Ors. v.

58 (1989) 3 SCC 488
144

Union of India and Ors. 59, the object of the SARFAESI Act was

explained thus:

“30. The person advancing the money is generally
called a creditor and the person receiving the money
is generally called a borrower. The most simple form
of a loan transaction is a contract by which the
borrower agrees to repay the amount borrowed on
demand by the creditor with such interest as
stipulated under the agreement. Such a loan
transaction may be attended by any arrangement of
a security like a mortgage or pledge, etc. depending
upon the agreement of the parties.

31. The Act provides for a mode of speedy recovery
of the monies due from the borrowers to one class of
creditors who are banks and financial institutions
(creditors). Advances/Loans made by creditors to
businessmen and industrialists are generally not
repayable on demand but repayable in accordance
with a fixed time schedule agreed upon by the
parties known as “term loans”:

“Term loans.—A loan may be made for a specified
period (a term loan). In such a case repayment is
due at the end of the specified period and, in the
absence of any express provision or implication to
the contrary, no further demand for repayment is
necessary.”
— Chitty on Contracts, Vol. II, 30th Edn., p. 913.

In other words, such loans are repayable in
instalments over a period of time the terms of which
are evidenced by a written agreement between the
parties. A default in the repayment (in terms of the
agreed schedule) generally provides a cause of
action for the creditor to initiate legal proceedings
for the recovery of the entire amount due and
outstanding from the borrower. Normally such term
loans are also accompanied by some “security
interest” in a “secured asset” of the borrower. Such
a recovery is to be made normally by instituting a
suit for recovery of the amounts by enforcing the
“security interest”. The Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 created
an exclusive forum for a speedy ascertainment of
the amounts actually due from the defaulting

59 (2015) 4 SCC 770
145

borrower and also provided for a mechanism for
speedy recovery of the amounts so ascertained from
such borrowers.

32. Since such a system was also found to be
inadequate for the speedy recovery of the monies
due from the borrowers to the creditors, Parliament
made the Act under which the process of
ascertainment of the amounts due from a borrower
by an independent adjudicatory body is dispensed
with. The secured creditor is made the sole judge of
the amount due and outstanding from a borrower
subject to an appeal under Section 17 of the Act. Be
that as it may, such an ascertainment of amount
due and outstanding is not the only criterion on the
basis of which the secured creditor is entitled to
initiate proceedings under Section 13(4) of the Act,
but the secured creditor is also required to classify
the account of the borrower (asset of the creditor) as
an NPA. Dehors the Act, when the borrower of a
term loan defaults in the repayment, the creditor
can initiate legal proceeding straightaway for
recovery of the amounts due and outstanding from
the borrower. The Act places an additional legal
obligation on the creditor to examine and decide
whether the account of the borrower has become an
NPA before initiating action under the Act.”

91. The Bombay High Court in The Majoor Sahakari Bank Ltd.

(supra) considered the question whether co­operative society carrying

on the banking business, considering its activity, could be termed as

industry to which Bombay Industrial Disputes Act would apply.

Though co­operative society was doing the business of banking, it was

submitted that nonetheless, it was a co­operative society to which the

provisions of the Bombay Industrial Disputes Act could not apply.

Considering the activity and definition of the ‘company’ as defined in

Halsbury’s Laws of England as an association of a number of
146

individuals formed with a common purpose. The High Court opined

that in the wide and proper legal sense, the petitioners were a

company although they may choose to call themselves a society or

even if Co­Operative Societies Act requires that they should call

themselves a society. However, in the eye of the law, they are a

company when they were doing the business of banking. Though

registered as a co­operative society, the provisions of industrial law

were held to be applicable. The High Court also observed that there

was no special charm or magic in a company registered under the

Companies Act or the Co­operative Societies Act as far as the result of

registration is concerned. The High Court observed:

“(4) Now turning to the language of the notification
what is urged by Mr. Parpia is that the notification
only contemplates the Indian Companies Act and
Acts similar to that Act. In our opinion, there is no
reason why such a limited interpretation should be
put upon the general words used in the notification.
If the intention of the State Government was, that
the notification should only apply to the companies
registered under the Indian Companies Act or Acts
corresponding to Indian Companies Act nothing was
easier than for the Government to have stated so. If
the intention was to exclude the banking companies
registered under the Co­operative Societies Act that
also could have been set out in the notification
itself. Neither counsel has been able to draw our
attention to any Indian Legislation under which an
association doing banking business can be
registered other than the Indian Companies Act and
the Co­operative Societies Act. Therefore, nothing
was simpler or easier than for the State Government
to have stated “doing business of Banking
Companies registered under enactments other than
the Co­operative Societies Act”. When a Court is
called upon to interpret a notification which is
capable of more than one meaning it is not amiss to
consider the reason and principle underlying the
147

notification. There is no reason or principle why a
co­operative society doing banking business should
be put on a different footing with regard to
industrial law from other companies doing identical
business. There is no reason why a co­operative
banking society should treat its employees otherwise
than as laid down under the industrial law. If we
were satisfied that there was some reason or
principle which would lead us to put upon this
notification the interpretation which Mr. Parpia
suggests we might have put such an interpretation
on the notification, but all the considerations are in
favour of the interpretation suggested by Mr. Rane.
There is nothing in the notification which prevents
us from giving the interpretation which we have
ultimately decided to give to this notification.
Therefore, we are of the opinion that the petitioners
are doing business of Banking and are registered
under an enactment relating to companies, which is
the Co­operative Societies Act. The learned Judge
was right in taking the view that he had jurisdiction
to deal with the matter. The petition fails and is
dismissed with costs.”

92. In Jayant Verma and Ors. v. Union of India and Ors. 60, the

question arose concerning the applicability of Section 21A of the B.R.

Act, 1949. In that context, the provisions of the B.R. Act, 1949, were

considered and it was held that enactment to be relatable to Entry 45

of List I and has to be given a wide meaning. It was observed:

“16. There can be no doubt that the Banking
Regulation Act deals with the subject “banking”
insofar as it licenses banking companies, as defined,
and cooperative banks, and seeks to regulate them.

Section 21­A, though by way of amendment, is
undoubtedly an integral part of the aforesaid Act
relating to the interdict on the reopening of loan
transactions between a banking company and its
debtor, on the ground that the rate of interest
charged is excessive. There can be no doubt that a
law relating to indebtedness of a debtor to a banking
company and the interdict against a court reopening

60 (2018) 4 SCC 743
148

any such transaction, on the ground that interest
charged by the banking company is excessive,
would relate to the business of banking. We must
not forget that the entries in the Lists to the Seventh
Schedule have to be read in the widest possible
manner, and we have seen from the judgments
quoted by us above that the expression “banking”
contained in List I Entry 45 is to be given a wide
meaning. There can be no doubt that the statute as
a whole and the aforesaid section does fall within
List I Entry 45.”
(emphasis supplied)

93. In Federation of Hotel Restaurant Association of India, etc. v.

Union of India and Ors.61, the question of overlapping of the law was

considered with respect to a subject which might incidentally affect

another subject in some way or the other and held that that is not the

same thing as the law being on the latter subject. The same

transaction may involve two or more taxable events in its different

aspects.

94. In Apex Cooperative Bank of Urban Bank of Maharashtra Goa

Ltd. (supra) the question arose concerning licensing of co­operative

societies by the Reserve Bank of India to carry on banking business

under the provisions of the BR Act, 1949. It was held that co­

operative banks, which are not State co­operative banks or Central co­

operative banks or primary co­operative banks as defined in Section

56(cci) of B.R. Act, 1949, were not eligible for licensing. The grant of

licence by Reserve Bank of India to co­operative banks, which were

61 (1989) 3 SCC 634
149

not registered under the Multi­State Co­operative Societies Act, 1984,

was not justified. The powers of Reserve Bank of India under the

Multi­State Co­operative Societies Act were exercisable only for co­

operative banks, not to any other co­operative societies not doing

business of banking. It was opined:

“25. Another aspect which must be noticed is that
in the Constitution of India, the subject pertaining
to co­operative societies is in the State List i.e. Entry
32 of List II of Schedule VII. The Union List has
Entry 44 of List I of Schedule VII which deals with
corporations. In this case we are not concerned with
the validity of a Central legislation and thus do not
deal with that aspect. For purpose of the judgment
we will take it that a co­operative society with
objects not confined to one State would fall within
the term corporation, and thus a Central legislation
may be saved. However, from the constitutional
provisions it is clear that matters pertaining to co­
operative societies are in the State List. Thus many
States have enacted laws relating to co­operative
societies. We have not seen other Acts. However, as
this case concerns a society in Maharashtra, the
Maharashtra Cooperative Societies Act was shown
to us. Significantly, this law does not define a co­
operative society. It did not need to, as a society
registered under it would be automatically covered.
The need to define a co­operative society arises only
in a Central legislation which does not cover all co­
operative societies and thus needs to indicate to
which society it applies.”

95. In Bharat Coop. Bank (Mumbai) Ltd. v. Coop. Bank Employees

Union62, the question arose concerning the Industrial Disputes Act,

1947 and the B.R. Act, 1949. There was a reference in Section 2(bb)

of Industrial Disputes Act, 1947, to the definition of ‘banking

company’ as defined in Section 5 of the B.R. Act, 1949. It was held

62 (2007) 4 SCC 685
150

that same was instance of legislation by incorporation and not

legislation by reference. It was further opined that amendment to BR

Act, 1949 after Section 5 was incorporated in Section 2(bb), would not

have any effect on the expression ‘banking company’. This Court

further held that the I.D. Act was a complete and self­contained code

in itself, and its working was not dependent on the BR Act, 1949.

96. In Reserve Bank of India v. M. Hanumaiah and Ors.63, the

question arose of supersession of the Committee of the management of

Co­operative Bank. There was a written requisition from the Reserve

Bank of India to the Registrar, Co­operative Societies, to supersede the

management under Section 30(5) of the Karnataka Co­operative

Societies Act, 1959. It was held that principles of natural justice were

not applicable, and the Committee of the management had no right of

hearing. Thus, there are various instances where the Central

legislation has controlled co­operative societies’ aspects relating to

banking.

97. In State of Gujarat and Anr. v. Shri Ambica Mills Ltd.,

Ahmedabad, and Anr.64, the definition clause in a provision when it is

under inclusion and over­inclusive was considered, thus:

“54. A reasonable classification is one which
includes all who are similarly situated and none
who are not. The question then is: what does the

63 (2008) 1 SCC 770
64 (1974) 4 SCC 656
151

phrase “similarly situated” mean? The answer to the
question is that we must look beyond the
classification to the purpose of the law. A reasonable
classification is one which includes all persons who
are similarly situated with respect to the purpose of
the law. The purpose of a law may be either the
elimination of a public mischief or the achievement
of some positive public good.

55. A classification is under­inclusive when all who
are included in the class are tainted with the
mischief but there are others also tainted whom the
classification does not include. In other words, a
classification is bad as under­inclusive when a State
benefits or burdens persons in a manner that
furthers a legitimate purpose but does not confer
the same benefit or place the same burden on
others who are similarly situated. A classification is
over­inclusive when it includes not only those who
are similarly situated with respect to the purpose
but others who are not so situated as well. In other
words, this type of classification imposes a burden
upon a wider range of individuals than are included
in the class of those attended with mischief at which
the law aims. Herod ordering the death of all male
children born on a particular day because one of
them would some day bring about his downfall
employed such a classification.”

98. In Girnar Traders (3) v. State of Maharashtra and Ors. 65, the

question of incorporation by reference and Doctrine of Pith and

Substance were considered thus:

“87. However, since this aspect was argued by the
learned counsel appearing for the parties at great
length, we will proceed to discuss the merit or
otherwise of this contention without prejudice to the
above findings and as an alternative plea. These
principles have been applied by the courts for a
considerable period now. When there is general
reference in the Act in question to some earlier Act
but there is no specific mention of the provisions of
the former Act, then it is clearly considered as
legislation by reference. In the case of legislation by
65 (2011) 3 SCC 1
152

reference, the amending laws of the former Act
would normally become applicable to the later Act;

but, when the provisions of an Act are specifically
referred and incorporated in the later statute, then
those provisions alone are applicable and the
amending provisions of the former Act would not
become part of the later Act. This principle is
generally called legislation by incorporation. General
reference, ordinarily, will imply exclusion of specific
reference and this is precisely the fine line of
distinction between these two doctrines. Both are
referential legislations, one merely by way of
reference and the other by incorporation. It,
normally, will depend on the language used in the
later law and other relevant considerations. While
the principle of legislation by incorporation has well­
defined exceptions, the law enunciated as of now
provides for no exceptions to the principle of
legislation by reference. Furthermore, despite strict
application of doctrine of incorporation, it may still
not operate in certain legislations and such
legislation may fall within one of the stated
exceptions.

88. In this regard, the judgment of this Court in
M.V. Narasimhan, (1975) 2 SCC 377, can be usefully
noticed where the Court after analysing various
judgments, summed up the exceptions to this rule
as follows: (SCC p. 385, para 15)
“(a) where the subsequent Act and the previous
Act are supplemental to each other;

(b) where the two Acts are in pari materia;

(c) where the amendment in the previous Act, if
not imported into the subsequent Act also,
would render the subsequent Act wholly
unworkable and ineffectual; and

(d) where the amendment of the previous Act,
either expressly or by necessary intendment,
applies the said provisions to the subsequent
Act.”

148. Having perused and analysed the various
judgments cited at the Bar we are of the considered
view that this rule is bound to have exceptions and
it cannot be stated as an absolute proposition of law
that wherever legislation by reference exists,
subsequent amendments to the earlier law shall
stand implanted into the later law without analysing
153

the impact of such incorporation on the object and
effectuality of the later law. The later law being the
principal law, its object, legislative intent and
effective implementation shall always be of
paramount consideration while determining the
compatibility of the amended prior law with the later
law as on relevant date.

173. The doctrine of pith and substance can be
applied to examine the validity or otherwise of a
legislation for want of legislative competence as well
as where two legislations are embodied together for
achieving the purpose of the principal Act. Keeping
in view that we are construing a federal
Constitution, distribution of legislative powers
between the Centre and the State is of great
significance. Serious attempt was made to convince
the Court that the doctrine of pith and substance
has a very restricted application and it applies only
to the cases where the court is called upon to
examine the enactment to be ultra vires on account
of legislative incompetence.

174. We are unable to persuade ourselves to accept
this proposition. The doctrine of pith and substance
finds its origin from the principle that it is necessary
to examine the true nature and character of the
legislation to know whether it falls in a forbidden
sphere. This doctrine was first applied in India in
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.,
(1946­47) 74 IA 23 : AIR 1947 PC 60. The principle
has been applied to the cases of alleged repugnancy
and we see no reason why its application cannot be
extended even to the cases of present kind which
ultimately relates to statutory interpretation
founded on source of legislation.”

99. We find that ‘banking’ relating to co­operatives can be included

within the purview of Entry 45 of List I, and it cannot be said to be

over inclusion to cover provisions of recovery by co­operative banks in

the SARFAESI Act. It cannot be said to be over­inclusion on the anvil

of the principles laid down by this Court.

154

100. Learned Counsel on behalf of appellants argued that notification

dated 28.1.2003 is ultra vires and beyond the purview of the parent

statute, i.e., the SARFAESI Act. The amendment is colourable

legislation, and it encroaches upon a field outside its scope and is also

an indirect method of achieving the result of bringing ‘co­operative

banks’ within the purview of the SARFAESI Act and RDB Act, 1993

and is an attempt to regulate entities expressly excluded by Entry 43

of List I. Reliance has been placed on K.C. Gajapati Narayan Deo

(supra), in which it was held:

“(9) It may be made clear at the outset that the
doctrine of colourable legislation does not involve
any question of ‘bona fides’ or ‘mala fides’ on the
part of the legislature. The whole doctrine resolves
itself into the question of competency of a particular
legislature to enact a particular law. If the
legislature is competent to pass a particular law, the
motives which impelled it to act are really irrelevant.
On the other hand, if the legislature lacks
competency, the question of motive does not arise at
all. Whether a statute is constitutional or not is thus
always a question of power Vide Cooley’s
Constitutional Limitations, Vol. 1, p.379. A
distinction, however, exists between a legislature
which is legally omnipotent like the British
Parliament and the laws promulgated by which
could not be challenged on the ground of
incompetence, and a legislature which enjoys only a
limited or a qualified jurisdiction.

If the Constitution of a State distributes the
legislative powers amongst different bodies, which
have to act within their respective spheres marked
out by specific legislative entries, or if there are
limitations on the legislative authority in the shape
of fundamental rights, questions do arise as to
whether the legislature in a particular case has or
has not, in respect to the subject­matter of the
155

statute or in the method of enacting it, transgressed
the limits of its constitutional powers. Such
transgression may be patent, manifest or direct, but
it may also be disguised, covert and indirect and it
is to this latter class of cases that the expression
“colourable legislation” has been applied in certain
judicial pronouncements. The idea conveyed by the
expression is that although apparently a legislature
in passing a statute purported to act within the
limits of its powers, yet in substance and in reality it
transgressed these powers, the transgression being
veiled by what appears, on proper examination, to
be a mere pretence or disguise. As was said by Duff,
J. in — ‘Attorney­General for Ontario v. Reciprocal
Insurers’, 1924 A C 328 at p. 337 (B):

“Where the law making authority is of a limited or
qualified character it may be necessary to
examine with some strictness the substance of
the legislation for the purpose of determining
what is that the legislature is really doing.”

In other words, it is the substance of the Act that
is material and not merely the form or outward
appearance, and if the subject­matter in substance
is something which is beyond the powers of that
legislature to legislate upon, the form in which the
law is clothed would not save it from condemnation.
The legislature cannot violate the constitutional
prohibitions by employing an indirect method. In
cases like these, the enquiry must always be as to
the true nature and character of the challenged
legislation and it is the result of such investigation
and not the form alone that will determine as to
whether or not it relates to a subject which is within
the power of the legislative authority — ‘Vide 1924 A
C 328 p. 337 (B)’. For the purpose of this
investigation the court could certainly examine the
effect of the legislation and take into consideration
its object, purpose or design — ‘Vide Attorney­
General for Alberta v. Attorney­General for Canada’,
1939 A C 117 at p. 130 (C). But these are only
relevant for the purpose of ascertaining the true
character and substance of the enactment and the
class of subjects of legislation to which it really
belongs and not for finding out the motives which
induced the legislature to exercise its powers.
156

It is said by Lefroy in his well­known work on
Canadian Constitution that even if the legislature
avow on the face of an Act that it intends thereby to
legislate in reference to a subject over which it has
no jurisdiction, yet if the enacting clauses of the Act
bring the legislation within its powers, the Act
cannot be considered ‘ultra vires’ See Lefroy on
Canadian Constitution page 75.”
(emphasis supplied)

By applying the aforesaid principle, the provision in

question/notification cannot be said to be colourable legislation.

101. In State of Tamil Nadu and Ors. v. K. Shyam Sunder and Ors. 66,

the concept of colourable legislation was considered and it was

observed that the doctrine of malafides does not involve any question

of bonafide or malafide on the part of the legislature, and the Court is

concerned with a limited issue of competence of the particular

legislature to enact a particular law. The motive of the legislature

while enacting a law is inconsequential. It was observed:

“37. It has consistently been held by this Court that
the doctrine of mala fides does not involve any
question of bona fide or mala fide on the part of
legislature as in such a case, the Court is concerned
to a limited issue of competence of the particular
legislature to enact a particular law. If the
legislature is competent to pass a particular
enactment, the motives which impelled it to an act
are really irrelevant. On the other hand, if the
legislature lacks competence, the question of motive
does not arrive at all. Therefore, whether a statute is
constitutional or not is, thus, always a question of
power of the legislature to enact that statute. Motive
of the legislature while enacting a statute is
inconsequential: “Malice or motive is beside the
point, and it is not permissible to suggest
parliamentary incompetence on the score of mala

66 (2011) 8 SCC 737
157

fides.” The legislature, as a body, cannot be accused
of having passed a law for an extraneous purpose.
This kind of “transferred malice” is unknown in the
field of legislation. (See K.C. Gajapati Narayan Deo v.
State of Orissa, AIR 1953 SC 375, STO v. Ajit Mills
Ltd., (1977) 4 SCC 98, SCC p. 108, para 16, K.

Nagaraj v. State of A.P., (1985) 1 SCC 523, Welfare
Assn., A.R.P. v. Ranjit P. Gohil, (2003) 9 SCC 358
and State of Kerala v. Peoples Union for Civil
Liberties, (2009) 8 SCC 46).”

We find that the SARFAESI Act qualifies the test of legislative

competence, as well as the definition, cannot be said to be colourable

piece or over­inclusive or beyond the competence of the Parliament.

102. Resultantly, we answer the reference as under:

(1)(a) The co­operative banks registered under the State

legislation and multi­State level co­operative societies registered

under the MSCS Act, 2002 with respect to ‘banking’ are governed

by the legislation relatable to Entry 45 of List I of the Seventh

Schedule of the Constitution of India.

(b) The co­operative banks run by the co­operative societies

registered under the State legislation with respect to the aspects

of ‘incorporation, regulation and winding up’, in particular, with

respect to the matters which are outside the purview of Entry 45

of List I of the Seventh Schedule of the Constitution of India, are

governed by the said legislation relatable to Entry 32 of List II of

the Seventh Schedule of the Constitution of India.

158

(2) The co­operative banks involved in the activities related to

banking are covered within the meaning of ‘Banking Company’

defined under Section 5(c) read with Section 56(a) of the Banking

Regulation Act, 1949, which is a legislation relatable to Entry 45

of List I. It governs the aspect of ‘banking’ of co­operative banks

run by the co­operative societies. The co­operative banks cannot

carry on any activity without compliance of the provisions of the

Banking Regulation Act, 1949 and any other legislation applicable

to such banks relatable to ‘Banking’ in Entry 45 of List I and the

RBI Act relatable to Entry 38 of List I of the Seventh Schedule of

the Constitution of India.

(3)(a) The co­operative banks under the State legislation and

multi­State co­operative banks are ‘banks’ under section 2(1)(c) of

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002. The recovery is an

essential part of banking; as such, the recovery procedure

prescribed under section 13 of the SARFAESI Act, a legislation

relatable to Entry 45 List I of the Seventh Schedule to the

Constitution of India, is applicable.

(3)(b) The Parliament has legislative competence under Entry 45 of

List I of the Seventh Schedule of the Constitution of India to

provide additional procedures for recovery under section 13 of the
159

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 with respect to co­

operative banks. The provisions of Section 2(1)(c)(iva), of

Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002, adding “ex abundanti

cautela”, ‘a multi­State co­operative bank’ is not ultra vires as well

as the notification dated 28.1.2003 issued with respect to the co­

operative banks registered under the State legislation.

The civil appeals, writ petitions and the pending applications, if

any, are disposed of accordingly. No costs.

…………………………J.

(Arun Mishra)

………………………….J.

(Indira Banerjee)

………………………….J.

(Vineet Saran)

………………………….J.

(M.R. Shah)

New Delhi; ………………………….J.
May 05, 2020. (Aniruddha Bose)

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