Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 17A and 18B - Application of the Act - To the State of Jammu and Kashmir 2002 - ss. !3(1) & (4) |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Securitisation and Reconstructi01~ of Financial Assets and Enforcement of Security Interest Act, 2002 - ss. !3(1) & (4), 17A and 18B - Application of the Act - To the State of Jammu and Kashmir - Whether within legislative competence of Parliament as the Act in pith and substance relates to 'transfer of property' not 'banking' and the same is in direct conflict with s.140 of Transfer of Property Act of Jam mu and Kashmir; and whether ss.17 A and 18B of the Act being the provisions relatable to administration of ;ustice (which is purely a State subject) would also be ultra vires Parliament-:- Held: State of Jammu and Kashmir is an integral part of Union of India - By the Constitution Application to Jammu & Kashmir Order, 1954, the State adapts all the provisions of the Constitution of India together with certain amendments and modifications - Art. 246 and Entries 45 and 95 of List I of VII Schedule have also been made applicable to State of Jammu and Kashmir - Recovery of debts by banks fall within Entry 45 of List I of VII Schedule - The Act is relatable to Entry 45 of List I - Any enactment made under the State List would have to give wiry to the Act by virtue of application of Art. 246 of the Constitution of India - Entire Act in pith and substance is referable to Entry 45 List I rlw Entry 95 List I - The Act does not deal with 'transfer of property' - 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 - It is not correct to first dissect an Act into various parts and then refer those parts to different Entries in the legislative Lists - ss.17 A and 18B are also referable to Entry 45 and expressly to Entry 95 of List I - The Act as a whole including ss.17A and 18B is referable to Entries 45 and 95 of List I - Therefore the Act as a whole would operate in the, State of Jammu and Kashmir - By virtue of Art. 246 rlw s.5 of Jammu and Kashmir Constitution, s.140 of Jammu and Kashmir Transfer of Property Act has to give way to the i111pugned Act - The impugned Act is well within legislative co111petence of Parliament - Constitution of India - Arts. 1, 246 and 370, Schedule VII List I Entries 45 and 95 - Constitution of Ja111111u and Kash111ir - ss. 3 and 5 - Jammu and Kashmir Transfer of Property Act, I977 - s. 140 - Security Interest (Enforcement) Rules, 2002 - r.8(5) proviso. Constitution of lndia: Arts. 368 proviso, 370(1){d), Vil Schedule, State List - Whether the subject 111entioned in the State List as originally adopted by State c of Jammu and Kash111ir, were frozen and can never be delegated or conferred on the Parliament so long as Art. 370 remains - Held: Proviso to Art. 368 as applicable, to the State of Jammu and Kashmir allows any constitutional a111endment to be applied to the State with its concurrence - The amendment would include either 'addition' or 'subtraction' in the State List"- The 'expression 'modifications' D occurring in Art. 370(1)(d) would not onty mean 'to limit or restrict' but even 'to extend or enlarge' - The word 'modification' must be given widest meaning. E F Art. 368 proviso and Art.370 - Constitutional amendment - Application of - To the State of Jammu and Kashmir - Held: As per Art. 370 once a matter from either the Union List or the Concurrent List is specified by a Presidential order, no further concurrence of State is needed - A constitutional amendment is different from an ordinary law - The language of Art. 368 proviso is different from the language of Art. 370 and have to be applied according to their terms. |
Judge | Hon'ble Mr. Justice R.F. Nariman |
Neutral Citation | 2016 INSC 1157 |
Petitioner | State Bank Of India |
Respondent | Santosh Gupta And Anr. Etc. |
SCR | [2016] 9 S.C.R. 985 |
Judgement Date | 2016-12-16 |
Case Number | 12237-12238 |
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