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TMI Blog2001 (10) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... ing any proceedings, inter alia, for execution, distress or the like against any of the properties of the company except with the consent and/or approval of the BIFR. No such consent or approval having been obtained by the respondent-society, the certificate proceedings under sections 4 and 6 of the Public Demand Recovery Act are bad in law and liable to be quashed and set aside. 3. On behalf of the respondent-society, an application was filed for vacating the interim order of injunction passed by N.K. Mitra, J. (as his Lordship then was) dated 9-11-1993. It is the case of the respondent-society that the petitioner-company is owing more than Rs. 2 crores taking into account the interest at the rate of 12 per cent per annum although th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the certificate officer under the Public Demands Recovery Act has filed the certificate in his office under section 6 and certificate notice under section 7 of the said Act was served upon the petitioner-company (Annexure H). 5. It was the contention of Mr. Tarun Roy appearing along with Mr. Dinesh Nandy on behalf of the respondent-society that under section 58 of the State Act, the petitioner-company has a statutory liability to make payment to the co-operative society. There is a corresponding right under section 58 of the State Act to recover the amounts due to the society as an arrear of land revenue in terms of section 58 and for that purpose to take resort to the Public Demands Recovery Act, 1913. 6. It was strenuously urged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s recoveries of proceedings in the nature of distress are sought to be taken, the bar under section 22 will operate. Reliance has been placed by Mr. Banerjee upon the judgment of the Supreme Court in Maharashtra Tubes Ltd. v. State Industrial Investment Corpn. of Maharashtra Ltd. [1993] 78 Comp. Cas. 803. 9. It must be stated here that Mr. Tarun Roy, the learned counsel for the society, relied upon the judgments of the Supreme Court in A.S. Krishna v. State of Madras AIR 1957 SC 297 and State of Rajasthan v. Vatan Medical General Store AIR 2001 SC 1937. 10. In Maharashtra Tubes Ltd. s case ( supra ), the purpose and object of suspension of proceedings under section 22 was considered and it was opined that the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Board. The bar of section 22 is directly attracted. 13. Let us now deal with the contentions advanced with regard to the State Act prevailing over the Central Act and the judgments relied upon by the learned counsel for the society. 14. It is not and cannot be disputed that the SICA comes in List I (Union List) and, therefore, in the field of legislation of Parliament to enact by reason of article 246(1). 15. Likewise, it is not in dispute that the Societies Act falls in List II (State List) and, therefore, in the field of legislation of State to enact by virtue of article 246(3). 16. When a question of vires of any enactment is raised, it is to be seen whether looking at the legislation as a whole it can be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll have to be presumed that the respective legislations are valid and intra vires. 18. Under section 58(3) of the Co-operative Societies Act, power has been conferred upon the co-operative society to recover from the employer (company) any amounts if the employer fails to make the deduction or there is default in making payment to the co-operative society. Such amounts are recoverable as an arrear of land revenue and shall rank in priority in respect of the liability of the employer as wages in arrear. In the instant case, full effect has been given to the provisions of section 58(3). The amounts have been determined and the same are sought to be recovered as arrears of land revenue. 19. Under the Public Demands Recovery Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se before the BIFR. 23. In the circumstances, the writ application is liable to be allowed in part and is, therefore, being disposed of with directions as under: The petitioner shall within one month from the date hereof file an affidavit before respondent No. 2, Registrar of Co-operative Societies and also serve a copy thereof upon respondent No. 4 society stating therein whether the proceedings which were initiated before the BIFR are still pending and if so, the stage of the said proceedings (enquiry under section 16, preparation of scheme/implementation of scheme/appeal under section 25 of the SICA). In default, it shall be open to the certificate officer, respondent No. 3 to proceed with recovery in accordance with law. 24. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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