SOMA SURESH KUMAR Vs GOVERNMENT OF ANDHRA PRADESH .
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: W.P.(C) No.-000614-000614 / 2007
Diary number: 29453 / 2007
Advocates: A. VENAYAGAM BALAN Vs
D. BHARATHI REDDY
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.614 OF 2007
Soma Suresh Kumar …. Petitioner
Versus
Government of Andhra Pradesh & Ors. …. Respondents
WITH
WRIT PETITION (CIVIL) NO.637 OF 2007
J U D G M E N T
K.S. RADHAKRISHNAN, J.
1. The petitioners, who were erstwhile Directors of Vasavi
Cooperative Urban Bank Limited, have approached this
Court seeking a declaration that Sections 3, 5, 8 and 9 of the
Andhra Pradesh Protection of Depositors of Financial
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Establishments Act, 1999 (in short “the Andhra Act”) are
unconstitutional and violative of fundamental rights
guaranteed to them under Articles 14 and 21 of the
Constitution of India and also other consequential reliefs.
2. The petitioners were Directors of the above-mentioned
bank during the period from 1996 to 2002. Large number of
complaints were received from the depositors stating that
the Board of Directors of the bank had swindled away the
money of the depositors by creating false documents,
amounting to crores of rupees. On receipt of the complaints,
enquiry was conducted and, ultimately, Joint Registrar of
Cooperative Societies and Chief Executive Officer of the
bank registered Crime No.8 of 2003 on the file of the CID,
Police Station under Section 120(b), 420, 409, 468, 477(A),
Indian Penal Code and under Section 5 of the Andhra Act.
Criminal case was later investigated by the Deputy
Superintendent of Police, STD-II, CID Hyderabad and charge-
sheet was filed against several persons, including the
petitioners. The Charge-sheet was registered as C.C. No.4 of
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2003 before the Special Court-cum-Metropolitan Sessions
Judge, Hyderabad. It is at this juncture, the petitioners have
approached this Court seeking the above-mentioned reliefs
and also for a writ of certiorari to quash all proceedings or
orders passed by the competent authority and by the Special
Court constituted under the Andhra Act. Petitioners have
also sought for a writ of mandamus directing the
respondents not to arrest the petitioners or to attach their
properties for the offences alleged to have been committed
by them under Sections 3 and 5 of Andhra Act.
3. The State of Andhra Pradesh filed a detailed counter-
affidavit explaining the circumstances under which the
petitioners were charge-sheeted. It was stated that, while
they were in the Board of Directors of bank, they had
entered into a criminal conspiracy with the borrowers of the
bank and created fake proprietary concerns,
firms/companies and swindled away money of the depositors
by accepting defective, fake, forged title deeds and
committed default in making payment of dues to the
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depositors. It was pointed out that the petitioners were
rightly charge-sheeted for the various offences under the
Indian Penal Code as well as Section 5 of the Andhra Act.
4. Union of India, in its counter affidavit, submitted that
the petitioners were rightly charge-sheeted by the State
Government and, over and above, the provisions under
which they were charge-sheeted, even the provisions of
Sections 11 to 11-D of Chapter IV of the Securities and
Exchange Board of India Act, 1992 (15 of 1992) would also
be applicable as amended by the Amendment Act 2002 (59
of 2002). Further, it was also stated that the Andhra Pradesh
Cooperative Societies Act, 1964 did not fall within the
meaning of the “banking company” as defined by Section
5(b) of the Banking Regulations Act, 1949. Union of India
has taken up that stand by placing reliance on the Judgment
of this Court in R.C. Cooper Vs. Union of India (1970) 1
SCC 248, wherein this Court held that all activities falling
under Section 5(b) of the Banking Regulations Act, 1949
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would fall under Entry 45 of the List I of the Seventh
Schedule of the Constitution of India.
5. The Union of India had earlier filed a counter affidavit to
the interlocutory application No.2 of 2010, filed to implead
the Union of India as a party to Writ Petition (C) No.614 of
2007. In that, it was stated that the provisions of Sections 3,
5, 8 and 9 of the Andhra Act were not opposed to the public
policy or unconstitutional or violative of the fundamental
rights guaranteed to the petitioners. Further, it is also
pointed out that the Banking Regulations Act, enacted by the
Central Government, to regulate the operation of banking
companies or organizations, enables the 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 the
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Vasavi Cooperative Urban Bank Limited and that the
petitioners have approached this Court challenging the
validity of the Act so as to wriggle out of the clutches of law.
6. Vasavi Cooperative Bank was registered as a
cooperative society on 29.05.1982. The bank was issued a
licence to carry on the business on June 16, 1982 and was
accorded the Scheduled Status in the Banking Regulations
Act w.e.f. May 22, 1999. The Bank was placed under the
directive of Section 35A of the Banking Regulations Act,
1949 with effect from the close of business on March 7,
2003. Bank is having 17 branches all over the State of
Andhra Pradesh.
7. We notice that the State of Andhra Pradesh was
contemplating a legislation similar to one enacted in the
State of Tamil Nadu, for a long time. On many occasions,
the State’s attention was drawn, to the large scale diversion
of money by many financial institutions in the State, by
cheating the depositors of their hard-earned savings,
misappropriating the same and then later vanishing from the
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scene. Several cases were booked against the persons
responsible for the same, but the presence of a
comprehensive legislation to curb such unfair practice was
lacking. This was the reason for the State of Andhra
Pradesh to enact the Andhra Act. The Statement of Objects
& Reasons of the Act read as under :-
“Instances have come to the notice of the State Government, wherein a number of unscrupulous financial establishments in the State are cheating innocent, gullible depositors by offering very attractive rates of interest, collecting huge deposits and then vanishing suddenly. The depositors are being cheated and are put to grave hardship by losing their hard earned savings. To curb these malpractices, the State Government has decided to bring a law to protect the interests of depositors of the financial establishment in the State and for matters connected therewith or incidental thereto. The above issue was also discussed in a conference of the State Chief Ministers and Finance Ministers presided by the Union Finance Minister on 14.9.1998 at Vigyan Bhavan, New Delhi. The Union Finance Minister also desired that States should take expeditious steps for enacting legislation on the lines of “Tamil Nadu Protection of Depositors (in Financial Establishments) Act, 1997, “to restore the confidence amongst the innocent depositors and also to serve as a deterrent against malpractices by such establishments during the course of acceptance of public deposits.
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To achieve the above object, the Government has decided to make separate law by undertaking legislation.”
8. The above mentioned Act was reserved by the
Governor on 13th April, 1999 for consideration and assent of
the President and on 23rd June, 1999, the same was granted
and the Act was published on 1st July, 1999, in the Andhra
Pradesh Gazette for general information.
9. The petitioners have raised an objection that the State
Legislature does not have the competence to enact the
Andhra Act since the subject “banking” is covered under
Entry 45 of List I of Seventh Schedule. Hence, only the
Central Government is entitled to enact the law relating to
subject “accepting of deposit from the public and repayment
of the same on demand”. Referring to the judgment of this
Court in R.C. Cooper’s case (supra), it was contended that
the scope, ambit and definition of the term “banking” under
Entry 45 List I of the Seventh Schedule appended to Article
246 would include all activities falling under Section 5(b) of
the Banking Regulation Act, 1949. Consequently, only the
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Parliament alone has the power to frame the law relating to
acceptance of deposits or its return or making the same as
an offence. Further, it was pointed out that the powers
conferred on State Legislature to legislate “corporate
societies” as falling under Entry 32 List II of the Seventh
Schedule appended to Article 246 of the Constitution can be
confined to incorporation, registration, administration,
amalgamation, winding-up of the cooperative societies.
Further, it was pointed out that the power under that Entry
can be stretched to encompass all the activities of banking
under Entry 45 of List I of the Seventh Schedule. It was
pointed out that under the guise of legislation with respect
to Entry 32 of List I, the State Legislature cannot legislate
with respect to the matters falling under Entry 45 of List I of
the Seventh Schedule. Consequently, it was submitted that
the Andhra Act is constitutionally invalid. Reference was
also made to the judgment of this Court in Greater
Bombay Cooperative Bank & Ors. Vs. United Yarn Tex
(P) Ltd. & Ors., (2007) 7 SCC 236.
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10. We notice that the question of law raised in this case
had come up for consideration before this Court while
challenging the constitutional validity of the Tamil Nadu
Protection of Interests of Depositors (in Financial
Establishments) Act, 1997 (for short “the Tamil Nadu Act”),
the Maharashtra Protection of Interests of Depositors (in
Financial Establishments) Act, 1999 (for short “the
Maharashtra Act”) as well as the Pondicherry Protection of
Interests of Depositors in Financial Establishments Act, 2004
(for short “the Pondicherry Act”). This Court in K. K.
Baskaran Vs. State, represented by its Secretary,
Tamil Nadu and Others (2011) 3 SCC 793, while
examining the constitutional validity of the Tamil Nadu Act,
held that the enactment by the State Legislature is not in
pith and substance referable to the legislative heads
contained in List I of the Seventh Schedule to the
Constitution though there may be some overlapping. The
Court held that in pith and substance, the Act comes under
the Entries in List II of the Seventh Schedule. In the said
judgment, this Court placed specific reference to the Full
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Bench judgment of the Bombay High Court in Vijay C.
Puljal Vs. State of Maharashtra (2005) 4 CTC 705. After
scanning through the various provisions of the Tamil Nadu
Act, this Court held as follows:-
“15. We have carefully perused the judgment of the Full Bench of the Bombay High Court in Vijay V. Puljal v. State of Maharashtra (2005) 4 CTC 705 (Bom) and we respectfully disagree with the view taken by the Bombay High Court. It may be noted that though there are some differences between the Tamil Nadu Act and the Maharashtra Act, they are minor differences, and hence the view we are taking herein will also apply in relation to the Maharashtra Act.
16. The Bombay High Court has taken the view that the Maharashtra Act transgressed into the field reserved for Parliament. We do not agree. It is true that Section 58-A of the Companies Act has been upheld by this Court in Delhi Cloth and General Mills Co. Ltd. v. Union of India (1983) 4 SCC 166 and the provisions of Chapter III-C of the Reserve Bank of India Act, 1934 were upheld by this Court in T. Velayudhan Achari v. Union of India (1993) 2 SCC 582. However, we are not in agreement with the Full Bench decision of the Bombay High Court that the subject-matter covered by the said Act falls squarely within the subject-matter of Sections 58-A and 58-AA of the Companies Act.
17. We are of the opinion that the impugned Tamil Nadu Act enacted by the State Legislature is not in pith and substance referable to the legislative heads contained in List I of the Seventh Schedule to
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the Constitution though there may be some overlapping. In our opinion, in pith and substance the said Act comes under the entries in List II (the State List) of the Seventh Schedule.”
Further, in para 33 of the judgment, this Court expressed the
following view:
“33. The State being the custodian of the welfare of the citizens as parens patriae cannot be a silent spectator without finding a solution for this malady. The financial swindlers, who are nothing but cheats and charlatans having no social responsibility, but only a lust for easy money by making false promise of attractive returns for the gullible investors, had to be dealt with strongly. The small amounts collected from a substantial number of individual depositors culminated into huge amounts of money. These collections were diverted in the name of third parties and finally one day the fraudulent financers closed their financial establishments leaving the innocent depositors in the lurch.”
11. Later, the constitutional validity of the Pondicherry Act
came for consideration before this Court in New Horizon
Sugar Mills Ltd. Vs. Government of Pondicherry (2012)
10 SCC 575, wherein this Court has exhaustively considered
the various contentions raised on the constitutional validity
of the Pondicherry Act in the light of the judgment in K.K.
Baskaran’s case (supra). Contention was raised that the
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State lacked the legislative competence to enact the
Pondicherry Act on the ground that the subject would fall
under the Union jurisdiction. This Court, while deciding the
constitutional validity of the Pondicherry Act, held as
follows :-
“49. The entries relating to the State List referred to above, and in particular Entry 30, appear to be a more appropriate source of legislative authority of the State Assembly for enacting laws in furtherance of such entry. The power to enact the Pondicherry Act, the Tamil Nadu Act and the Maharashtra Act is relatable to Entries 1, 30 and 32 of the State List, which involves the business of unincorporated trading and money lending which falls within the ambit of Entries 1, 30 and 32 of the State List.
50. In addition to the above, it has also to be noticed that the objects for which the Tamil Nadu Act, the Maharashtra Act and the Pondicherry Act were enacted, are identical, namely, to protect the interests of small depositors from fraud perpetrated on unsuspecting investors, who entrusted their life savings to unscrupulous and fraudulent persons and who ultimately betrayed their trust.
53. Even if it is to be accepted that the Pondicherry Act is relatable to List I Entries 43, 44 and 45, it can be equally said that the said enactment is also relatable to List II Entries 1, 30 and 32 thereby leaving the field of legislation open, both to the Central Legislature as well as the State Legislature. In such a situation, unless there
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is anything repugnant in the State Act in relation to the Central Act, the provisions of the State Act will have primacy in determining the lis in the present case. Apart from the above, the provisions of the Pondicherry Act are also saved by virtue of Article 254(2) of the Constitution.”
12. We notice in New Horizon Sugar Mills Ltd.’s case
(supra), this Court held that the objects of the Tamil Nadu
Act, Maharashtra Act and the Pondicherry Act are the same
and/or of similar nature. In our view, the object and
purpose as well as the provisions of the Andhra Act are pari
materia with that of Tamil Nadu, Maharashtra and
Pondicherry Acts, the constitutional validity of those
legislation has already been upheld. We also fully concur
with the views expressed by this Court in those Judgments
and uphold the constitutional validity of the Andhra Act.
13. Learned counsel for the petitioner raised a further
contention that Vasavi Cooperative Bank Ltd. does not come
within the definition of “financial establishment” under
Section 2(c) of the Andhra Act. We find it difficult to accept
that contention. What has been excluded from that
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definition is a Company registered under the Companies Act
or a Corporation or a Cooperative Society owned and
controlled by any State Government or the Central
Government. The Society in question does not fall in that
category. Consequently, the Co-operative Bank in question
is also governed by the provisions of the Andhra Act.
14. In the circumstances, we find no merit in these Writ
Petitions and the same are accordingly dismissed.
……………………………..J. (K. S. Radhakrishnan)
….………………………...J. (A. K. Sikri)
New Delhi, September 12, 2013.