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TMI Blog2017 (4) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter of providing such remedies, it is open to legislate different remedies which may be inconsistent. It is a question of electing a remedy. Election of a remedy for recovery of the amount would depend upon the choice of the award-holder. Both the provisions i.e. section 36 of the Act of 1996 as well as Rule 5 of the Rules of 2006 intend to recover the amount though by different procedures. Intendment of provisions is same. There is no question of any prejudice being caused to the judgment debtor. Thus, the submission raised by learned senior counsel on behalf of the appellant that Rule 5 is inconsistent and repugnant to the provisions of section 36 of the Act of 1996 cannot withstand judicial scrutiny and is liable to be rejected on the anvil of the aforesaid reasoning. The submission was raised on behalf of the appellant that Order 21 of the CPC provides more safeguards under different rules, which are referred to above, to a judgment debtor to raise various kinds of objections to file suits and has a right to object also at various stages. No doubt that a detailed procedure is provided under the CPC. But by now it is well known that after a decree is obtained, it has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 1,04,96,746/- towards interest up to 10.1.2013. Payment of actual amount of interest was @ three times of the bank rate as notified by the Reserve Bank of India to be paid within 30 days of the award. The award was passed on 15.1.2014. 4. The Collector, Noida, initiated recovery of the amount as per letter dated 2.4.2016 issued by the Madhya Pradesh Micro and Small Enterprises Facilitation Council under the Rules. The recovery citation was served upon the appellant on 20.4.2016 purported to be one under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. Another citation was received by the appellant on 16.5.2016 which was issued on 20.4.2016. Thereafter, appellant filed a writ petition before the Allahabad High Court for quashing the recovery proceedings. However, Tehsildar of Dadri, Gautam Buddha Nagar on 23.5.2016 withdrew an amount of ₹ 1,18,78,588.14/- from the appellant s bank account with ICICI Bank pursuant to the recovery citation. On 24.5.2016, it is averred by the appellant that a further amount of ₹ 2,12,33,618.57/- was recovered from the bank account of the appellants with the State Bank of India. The appellant filed Writ Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Rule 5 of the Rules does not contain the aforesaid safeguards and the amount can be recovered outrightly as arrears of land revenue. Thus, the remedy is harsh under Rule 5 and thus could not have been resorted to. It was also strenuously urged on behalf of the appellants that in the four States only, i.e., West Bengal, Madhya Pradesh, Punjab Haryana and Andhra Pradesh recovery is made as per the CPC provided under section 36 of Act of 1996. Thus, there is a discriminatory provision made by the four States which is quite arbitrary and impermissible. States could not have enacted a provision in derogation to what is contained in the Central legislation. 7. It was contended on behalf of the respondents that the rule has been framed within the purview of section 30 of the Act of 2006. It is in furtherance of the objective of the Act to provide speedy recovery. There is no repugnancy with the provisions of the Act of 2006 or that of the Act of 1996. It is impermissible to provide inconsistent remedies also. In such matters there is no question of conflict of provisions. It is open to elect one of the remedies out of the available ones. 8. Before adverting to the rival sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the matters connected therewith or incidental thereto. Section 18 of the Act of 2006 is extracted hereunder : 18. Reference to Micro and Small Enterprises Facilitation Council.-(1) Notwithstanding anything contained in any other law for the time being in force, any party to a dispute may, with regard to any amount due under Section 17, make a reference to the Micro and Small Enterprises Facilitation Council. (2) On receipt of a reference under sub-section (1), the Council shall either itself conduct conciliation in the matter or seek the assistance of any institution or centre providing alternate dispute resolution services by making a reference to such an institution or centre, for conducting conciliation and the provisions of Sections 65 to 81 of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to such a dispute as if the conciliation was initiated under Part III of that Act. (3) Where the conciliation initiated under sub-section (2) is not successful and stands terminated without any settlement between the parties, the Council shall either itself take up the dispute for arbitration or refer it to any institution or centre providing alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f sub-section (3), on a separate application made for that purpose. (3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing: Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908). No doubt about it that by virtue of the provisions contained in section 18(3) of the Act of 2006, the provisions contained in section 36 of the Act of 1996 are clearly applicable and it is permissible to execute the arbitral award in accordance with the procedure prescribed for execution of a decree under the CPC. 12. However, the question in the instant case is whether it was permissible to the State Government to enact Rule 5 of the Rules for recovery of the amount as arrears of land revenue and whether speedy remedy could have been provided under the Rules framed under the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt for recovery of the loss. This Court in Bihar State Cooperative Marketing Union Ltd. (supra) has laid down thus : 6. Validity of plural remedies, if available under the law, cannot be doubted. If any standard book on the subject is examined, it will be found that the debate is directed to the application of the principle of election, where two or more remedies are available to a person. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them, commencing an action accordingly. In the present case there is no such problem as no steps under Section 40 were ever taken by the appellant. The provisions of Section 48 must, therefore, be held to be available to the appellant for recovery of the loss. 7. Our view that a matter which may attract Section 40 of the Act will continue to be governed by Section 48 also if the necessary conditions are fulfilled, is consistent with the decision of this Court in Prem Jeet Kumar v. Surender Gandotra arising under the Delhi Co-operative Societies Act, 1972. The two Acts are similar and Sections 40 and 48 of the Bihar Act and Sections 59 and 60 of the Delhi Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Parliament had given with one hand what it took away with the other . The provisions of one section of a statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them . The same rule applies in regard to sub-sections of a section. In the words of Gajendragadkar, J. The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible to do so, and to avoid repugnancy . As stated by Venkatarama Aiyer, J., The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possible, effect should be given to both. This is what is known as the rule of harmonious construction . That, effect should be given to both, is the very essence of the rule. Thus a construction that reduces one of the provisions to a useless lumber or dead letter is not harmonious construction. To harmonise is not to destroy. A familiar approach in all such cases is to find out which of the two apparently conflicting provisions is more g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 in the field. This Court has laid down that given the level of indebtedness and NPAs on the balance-sheets of banks and financial institutions, the time taken for recovery of debts via the civil courts, the importance of liquid and solvent banks and financial institutions to economic progress, especially in the present day global economy with a need to give up old and conventional methods of financing and recovery of debts, and the failure of the 1993 Act to bring about the desired results, it could not be said that a step taken towards securitization of debts and to evolve means for faster recovery of NPAs was not called for. This Court has also laid down that primacy is to be given to public interest over private interest. Thus, the provision of recovery outrightly, without recourse to the Civil Court, was upheld. In the instant case, the recovery of arrears of land revenue has been resorted to after adjudication process when arbitral award had been passed and when it is not objected to within the time prescribed under section 34 of the Act of 1996. Thus, the procedure cannot be said to be illegal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in another case, namely, The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, AIR (1968) SC 1232 as also in an earlier decision in In Re : The Delhi Laws Act, 1912, The Ajmer-Merwara (Extension of Laws) Act, 1947, and The Part C States (Laws) Act, 1950, [1951] SCR 747 has laid down the principle that the Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act concerned. 25. In Avinder Singh v. State of Punjab, [1979] 1 SCC 137, Krishna Iyer, J. laid down the following tests for valid delegation of legislative power. These are : (1) the legislature cannot efface itself : (2) it cannot delegate the plenary or the essential legislative function; (3) even if there be delegation, Parliamentary control over delegated legislation should be a living continuity as a constitution-al necessity. It was further observed as under : While what constitutes an essential feature cannot be delineated in detail it certainly cannot include a change of policy. The leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Tenth Schedule. The rules being delegated legislation are subject to certain fundamental factors. Underlying the concept of delegated legislation is the basic principle that the legislature delegates because it cannot directly exert its will in every detail. All it can in practice do is to lay down the outline. This means that the intention of the legislature, as indicated in the outline (that is the enabling Act), must be the prime guide to the meaning of delegated legislation and the extent of the power to make it. The true extent of the power governs the legal meaning of the delegated legislation. The delegate is not intended to travel wider than the object of the legislature. The delegate s function is to serve and promote that object, while at all times remaining true to it. That is the rule of primary intention. Power delegated by an enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself and will cover what is incidental to the execution of its specific provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zation of the matters/topics has to be construed as merely illustrative and not limiting the scope of the general power. Consequently, even if the specific enumerated topics in Section 23(1-A) may not empower the Central Government to make the impugned rule (Rule 44-I), making of the rule can be justified with reference to the general power conferred on the Central Government under Section 23(1), provided the rule does not travel beyond the scope of the Act. But even a general power to make rules or regulations for carrying out or giving effect to the Act, is strictly ancillary in nature and cannot enable the authority on whom the power is conferred to extend the scope of general operation of the Act. Therefore, such a power will not support attempts to widen the purposes of the Act, to add new and different means to carrying them out, to depart from or vary its terms . Considering the question of power of food authority under section 7(iv) to ban a food article in interest of public vis- -vis power of the Central Government under section 23 to make rule, it was held that the Central Government cannot exercise power under section 23 to ban use of non-iodised salt for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson similarly situated be deprived of it. The ratio of said decision has no application to the instant case, provision in question being remedial one and no substantial or valuable privilege is being deprived of by Rule 5. It is only procedural provision and intends to simplify the procedure of execution, once arbitral award is passed. 27. Reliance has also been placed on Shree Meenakshi Mills Ltd., Madurai etc. v. Sri A.V. Visvanatha Sastri Anr. AIR 1955 SC 13 in which this Court has laid down thus : 3. The procedure prescribed by the Act for making the investigation under its provisions is of a summary and drastic nature. It constitutes a departure from the ordinary law of procedure and in certain important aspects is detrimental to the persons subjected to it and as such is discriminatory. The substantial differences in the normal procedure of the Income Tax Act for catching escaped income and in the procedure prescribed by Act 30 of 1947, were fully discussed by this Court in Suraj Mal Mohta v. Sri A.V. Visvanatha Sastri AIR 1954 SC 545 and require no further discussion here. In said case, there was substantial difference in the normal procedure of the income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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