Holding

SARFAESI is a valid central law within Parliament’s competence, relates to banking and debt recovery, and its provisions, including Sections 17A and 18B, apply in Jammu & Kashmir, overriding the State's Transfer of Property Act.

Summary

The Supreme Court examined whether the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI) could be applied in the State of Jammu & Kashmir. The High Court had held that key provisions of SARFAESI were ultra‑vires Parliament because they conflicted with Section 140 of the Jammu & Kashmir Transfer of Property Act and because Sections 17A and 18B dealt with administration of justice, a State subject. The Court applied the pith‑and‑substance test, held that SARFAESI relates to banking and debt recovery (Entry 45, List I) and also to the jurisdiction of courts (Entry 95, List I), both of which are within Parliament’s competence even in Jammu & Kashmir under the Constitution (Arts. 1, 246, 370, 368). Consequently, the Jammu & Kashmir law must give way to SARFAESI, and the Act is valid and enforceable in the State. The appeals were allowed, setting aside the High Court judgment.

Issues considered

The legislative competence of Parliament to enact SARFAESI for Jammu & Kashmir under Article 370 and the Constitution of India
Whether SARFAESI, in pith and substance, relates to 'transfer of property' or to 'banking' and debt recovery
Whether Sections 17A and 18B of SARFAESI, which modify the jurisdiction of district courts and high courts, encroach upon the State subject of administration of justice
Whether Section 140 of the Jammu & Kashmir Transfer of Property Act overrides SARFAESI provisions

Legislation cited

Constitution Application to Jammu & Kashmir Order, 1954 (as amended)
Constitution of Indias. Art. 1, s. Art. 246, s. Art. 248, s. Art. 254, s. Art. 368 proviso, s. Art. 370, s. Schedule VII Entries 45, 95, 97
Constitution of Jammu & Kashmir, 1956s. Sec. 3, s. Sec. 5
Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002s. 13(1), s. 13(4), s. 17A, s. 18B
Security Interest (Enforcement) Rules, 2002s. Rule 8(5) proviso
Transfer of Property Act (Jammu & Kashmir)s. 140

Subjects

SARFAESIArticle 370legislative competencebankingtransfer of propertyJammu & Kashmirpith and substanceadministration of justiceconstitutional lawfederalism

Judgment

[2016] 9 S.C.R. 985

STATE BANK OF INDIA A
v.
SANTOSH GUPTA AND ANR. ETC.
(Civil Appeal Nos. 12237-12238 of2016)
DECEMBER 16, 2016 B

[KURIAN JOSEPH AND R. F. NARIMAN, JJ.]
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
c
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.17A and
18B of the Act being the provisions relatable to administration of
;ustice (which is purely a State subject) would also be ultra vires D
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
E
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 F
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.17A
G
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
H
985
986 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 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)
B
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.
Art. 368 proviso and Art.370 - Constitutional amendment -
Application of - To the State of Jammu and Kashmir - Held: As per
E 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
F terms.
Allowing the appeals, the Court
HELD: 1.1 It is not correct to say that the Constitution of
India and that of Jammu & Kashmir have equal status. Article 1
- of the Constitution of India and Section 3 of the Jammu &
G Kashmir Constitution make it clear that India shall be a Union of
'States, and that the State of Jammu & Kashmir is and shall be an
integral part of the Union oflndia. The State of Jammu & Kashmir,
though a State within the meaning of Article 1 of the Constitution
of India, has been accorded a special status from the very
beginning because of certain events that took place at the time
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 987

that the erstwhile Ruler of Jammu & Kashmir acceded to the A
Indian Union. The legislative scheme illustrates that the State of
Jammu & Kashmir is to be dealt with separately owing fothe
special conditions that existed· at the time of the Instrument of
Accession. [Paras 10, 11 and 13][1004-G-H; 1005-A-B; 1009-E]
Prem Nath Kaul v. State of Jammu & Kashmir (1959) B
Supp. 2 SCR 270 - relied on.
Sampat Prakash v. the State ofJammu & Kashmir (1969)
2 SCR 365 - referred to.
1.2 The State of Jammu and Kashmir does have its own
separate Constitution by which it is governed in all matters, except c
those surrendered to the Union of India. Amendments that are
made in the Constitution of India are made to apply to the State
of Jammu & Kashmir only if the President, with the concurrence
of the State Government, applies such amendments to the State
of Jammu & Kashmir. The distribution of powers between the D
Union and the State of Jammu & Kashmir reflects that matters of
national importance, in which a uniform policy is desirable, is
retained with the Union of India, and matters of local concern
remain with the State of Jammu & Kashmir. Even though the
Jammu & Kashmir Constitution sets up the District Courts and
the High' Court in the State, yet, the supreme authority ~f courts E
to interpret the Constitution of India and to invalidate action
violative of the Constitution is found to be fully present. Appeals
from the High Court of Jammu & Kashmir lie to the Supreme
Court of India, and shorn of a few minor modifications, Articles
124 to 147 all apply to the State of Jammu & Kashmir, with Articles F
135 and 139 being omitted. The effect of omitting Articles 135
and 139 has a very small impact, in that Article 135 only deals
with jurisdiction and powers of the Federal Court to be exercised
by the Supreme Court, and Article 139. deals wi_th Parliament's
power to confer on the Supreme Court the power to issue
directions, orders, and writs for purposes other than those G
mentioned in Article 32(2) of Constitution of India. Permanent
residents of the State of Jammu & Kashmir are citizens of India,
and that there is no dual citizenship as is contemplated by some
other federal Constitutions in other parts of the world. All this
leads to conclude that even qua the State of Jammu & Kashmir, H
988 SUPREME COURT REPORTS (2016] 9 S.C.R.

A the quasi federal structure of the Constitution of India continues,
but with the aforesaid differences. [Para 10][1004-B-G]
State of West Bengal v. Union of India 1964 (1) SCR
371 - relied on.
1.3 Under sub-clause (l)(d) of Article 370, other provisions
B of the Indian Constitution shall apply in relation to the State of
Jammu & Kashmir subject to such exceptions and modifications
as the President may by order spec,ify. [Para 14)(1009-F)
1.4 It is not correct to say that a Constitutional amendment
does not ipso facto apply to the State of Jammu & Kashmir under
c the proviso to Article 368 as applicable in the said State unless
there is concurrence of the State Government and therefore,
Parliamentary legislation would also require concurrence of the
State Government before it can be said to apply in the State of
Jammu & Kashmir. A constitutional amendment is different in
D quality from an ordinary law and the language of Article 368
proviso and the language of Article 370 are different and have to
be applied according to their terms. Article 370 makes it clear
that once a matter in either the Union List or the Concurrent
List is specified by a Presidential Order, no further concurrence
of the State of Jammu and Kashmir is needed. [Para 15][1011-F-
E H]
1.5 The Constitution Application to Jammu & Kashmir
Order, 1954 adopts all the provisions of the Constitution of India
as in force on the 20'h June, 1964, together with certain
amendments and modifications. The argument that Article
F · 370(1)(b) 'limits' the power of Parliament is answered by the
fact that the entire Constitution of India, as it exists in 1964, has
been made applicable by Presidential order to the State of Jammu
& Kashmir, availing both Articles 370(l)(b) and (d) for this
purpose. And the expression 'limited to' does not occur in Article
G 370(1)(d),under which it is open to adopt the entire Constitution
of India subject to exceptions and modifications.[Para 18][1013-
F-G)
1.6 By the 1954 Order, in Part XI of the Constitution of
India, in Article 246 for the words, brackets, and figures "clauses
(2) and (3)" occurring in clause (1), the word, brackets and figuri:
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 989

"clause (2)" shall be substituted, and the words, brackets and A
figure "Notwithstanding anything in clause (3)," occurring in
clause (2), and the whole of clauses (3) and (4) shall be omitted.
Equally, Article 248 and Entry 97 List I of Seventh Schedule of
the Constitution of India have been modified so that Parliament
has the residuary power to make laws only with respect to three
B
subjects - (1) the prevention of activities involving terrorist acts,
(2) the prevention of activities_ directed towards questioning or
disrupting the sovereignty and territorial integrity of India or
bringing about cession of any part of the territory of India, and
(3) taxes on three specified subjects. Significantly, clause (t),
which contained Article 254 in a modified form, was omitted by c
C.O. No.66, by which it has become clear that after 1963, Article
254 in its current form in the Constitution of India will apply to
t_he State of Jammu & Kashmir. Equally, in the 7•h Schedule Union
List, the omission of Entries has now come down to only four i.e.
Entries 8, 9, 34, and 79, with a few other Entries being modified
D
or substituted. Significantly, Entries 45 and 95,of List I continue
to apply to the State of Jammu & Kashmir. The State List
continues to be. omitted altogether, and from 1963 onwards, the
Concurrent List applies to the State of Jammu & Kashmir with a
number of Entries being omitted. Entry 6 dealing with the transfer
of property and Entry llA of the Concurrent List do not apply to E
the State of Jammu & Kashmir. •Entry 6 does not apply because
it has not been extended to the State, and Entry. llA does '!-Ot
apply because the 42•d Amendment to the Constitution of India,
which introduced Entry llA into the Concurrent List, is itself
not applicable. (Paras 18, 19)(1014-G; 1015-C-F]
F
1.7 A combined reading of Article 370 of the Constitution
of India, the 1954 Presidentiaf Order as amended .from time to
time, and the Constitution of Jammu & Kashmir, 1956 wo.uld
lead to the following position insofar as the legislative competence
of the Parliament oflndia vis-a-vis the State of Jammu & Kashmir
is concerned: G

1. All entries specified by the 1954 Order contained in List
I of the 7•h Schedule to the Constitution of India would clothe
Parliame.nt with exclusive jurisdiction to make laws in
relation to the subject matters set out in those entries.
H
990 SUPREME COURT REPORTS [20 I6] 9 S.C.R.

A 2. Equally, under the residuary power contained in Entry
97 List I read with Article 248, the specified subject matters
set out would indicate that the res id nary power of
Parliament to enact exclusive laws relating to the aforesaid
subject matters would extend only to the aforesaid subject
matters and no further.
B
3. Parliament would have concurrent power with the State
of Jammu & Kashmir with respect to the entries that are
specified in the Presidential Order of 1954 under List III
of the 7'h Schedule of the Constitution of India. This would
mean that all the decisions of this Court on principles of
c repugnancy applicable to Article 254 would apply in full force
to laws made which are relatable to these subject matters.
4. Every other subject matter which is not expressly
referred to in either List I or List III of the 7'h Schedule of
the Constitution oflndia, as applicable in the State of Jammu
D & Kashmir, is within the legislative competence of the State
Legislature of Jammu & Kashmir.[Para 21][1016-E-H;
1017-A-B]
1.8 It is not correct to say that the subjects mentioned in
the State List of the 7th Schedule to the Constitution of India as
E originally adopted were frozen and can never be delegated or
conferred on the Parliament so long as Article 370 remains, since
under Article 370(1)(b), the President could declare that the
Parliament shall have power to make laws for the State of Jammu
& Kashmir only on the fields oflegislation mentioned in the Union
F List and the Concurrent List. Article 368 proviso, as applicable
to the State of Jammu & Kashmir, expressly allows any
Constitutional amendment to the Constitution of India to be
applied with the concurrence of the State of Jam mu & Kashmir.
This would include within its ken, an amendment which either
adds to or subtracts from the State List and confers upon
G Parliament, either exclusively under List I or concurrently under
List III, a subject matter hitherto in the State List. The word
"modification" occuring in Article 370(l)(d) of the Constitution
of India must be given the widest meaning and would include all
amendments which either limit or restrict or extend or enlarge
H the provisions of the Constitution of India. For this reason also
STATE B~NK OF JNDJA v. SANTOSH GUPTA AND ANR. ETC. 991

it is clear that nothing can ever be frozen so long as the drill of A
Article 370 is followed. [Para 22][1017-C-G]
Puranlal Lakhanpal v. President of India (1962) 1 SCR
688; Sampat Prakash v. the State of Jammu & Kashmir
(1969) 2 SCR 365 - relied on.
1.9 Section 3 of the Constitution of Jammu & Kashmir, which B
was framed by a Constituent Assembly elected on the basis of
universal adult franchise, makes a ringing declaration that the
State of Jammu & Kashmir is and shall be an integral part of the
Union of India. And this provision is beyond the pale of
amendment. The opening paragraph of the Constitution of India, c
namely "WE THE PEOPLE OF INDIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens ... "
has been wholly omitted in the Constitution of Jam mu & Kashmir.
There is no reference to sovereignty. Neither is there any use of
the expression "citizen" while referring to its people. The people · D
of Jammu & Kashmir for whom special rights are provided in the
Constitution are referred to as "permanent residents" under Part
III of the Constitution of Jammu & Kashmir. Above all, the
Constitution of Jam mu & Kashmir has been made to further define
the existing relationship of the State with the Union of India!!..!!!! E
integral part thereof. It is thus clear that the State of Jammu &
Kashmir has no vestige of sovereignty outside the Constitution
of India and its own Constitution, which is subordinate to the
Constitution of India. It is therefore wholly incorrect to describe
it as being sovereign in the sense o.f its residents constituting a
separate and. distinct class in themselves. The residents of F
Jammu & Kashmir are first and foremost citizens of India.
Indeed, this is recognized by Section 6 of the Jammu & Kashmir
Constitution. They are governed first by the Constitution of India
and also by the Constitution of Jammu & Kashmir. This is made
clear by Section 10 of the Jammu & Kashmir Constitution. [Paras G
41, 42 and 43][1029-C-D; 1030-F-H; 1031-A-CJ
2.1 Recovery of debts by banks has been held to fall within
Entry 45 List I. Securitisation and Reconstruction of Financial
Assets and Enforcement of Security Interest Act, 2002
(SARFAESI) is relatable to Entry 45 List I and that any enactment H
992 SUPREME COURT REPORTS [2016] 9 S.C.R.

A made under the State List would have to give way to SARFAESI
by virtue of the application of Article 246 of the Constitution of
India. [Paras 24, 27][1018-B; 1020-E]
Union of India v. Delhi High Court Bar Association
2002 (2) SCR 450 : (2002) 4 SCC 275; Central Bank
B of India v. State of Kera/a 2009 (3) SCR 735 : (2009) 4
SCC 94; UCO Bank & Am: v. Dipak Debbarma & Ors.
2016 (11) JT 251 : 2016 (12) SCALE 301; R. C. Cooper
v. .Union of India 1970 (3) SCR 530 : (1970) 1 SCC
248 - relied on.
c Attorney-General for Canada v. Attorney-General for
the Province of Quebec, 1947 Appeal Cases 33 -
referred to.
2.2 Since List II of the VII Schedule to the Constitution of
India is not operative in the State of Jammu & Kashmir, there is
D no competing-Entry in the said List and this would lead therefore
to the conclusion that Entries 45 and 95 of_ List I must be given ·a
wide meaning. [Para 30)(1022-A-B]
State of Jammu & Kashmir v. MS. Farooqui 1972 (3)
SCR 881 : (1972) 1 SCC 872 - relied on.
E Union of India 1'· H.S. Dhillon 1972(2) SCR 33 -
referred to.
2.3 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
F deals with recovery of debts due to banks and financial
institutions, inter alia through facilitating securitization 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
G not deal with "transfer of property". [Para 32)(1023-G-H; 1024-
A]
2.4 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
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 993

borrower, and/or appoint any person as manager to manage A
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
B
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 subject matter "transfer of c
property". [Para 32][1024-B-D]
2.5 Sections 17A and Section 18B of SARFAESI, which
apply to the State of Jammu & Kashmir, substituted 'District
Judge' and the 'High Court' for the 'Debts Recovery Tribunal'
and the 'Appellate Tribunal' respectively. It would be clear that D
these provisions are referable to Entry 45 as being ancillary to
banking, and expressly to Entry 95 List I inasmuch as the
jurisdiction and power of courts is laid down for the special subject
of recovery of debts due to banks by these provisions. SARFAESI
as a whole would be referable to Entries 45 and 95 of List I. It is
not correct to first dissect an Act into various parts and then E
refer those parts to different Entries in the legislative Lists. It is ·
clear therefore that the entire Act, including Sections 17A and
18B, would in pith and substance be referable to Entries 45 and
95 of List I, and that therefore the Act as a whole would
necessarily operate in the State of Jammu & Kashmir. [Paras 32, F
33 and 37][1024-E; 1025-D; 1027-B]
State of Maharashtra v. Narottamdas Jethabai (1950)
1 SCR 51; Jamshed N. Guzdar v. State of Maharashtra
2005 (1) .SCR 223 : (2005) 2 SCC 591; A.S. Krishna
and others v. State of Madras 1957 SCR 399 - relied G
·on.
2.6 The judgment of the High Court is wholly incorrect in
referring to Entry llA of the Concurrent List. The Entry is not
extended to the State of Jammu & Kashmir. "Administration of
Justice" would come into play only when Entries 45 and 95 of H
994 SUPREME COURT REPORTS [2016] 9 S.C.R.

A List I are not attracted. Even if this were not so, the expression
"administration of justice" is general and must give way to the
special laws that are enacted under Entry 95 List I when coupled
with another Entry in the same List - in this case Entry 45 List I.
Rule 8(5) proviso of the Security Interest (Enforcement) Rules,
2002 makes it amply clear that Section 140 of the Transfer of
B
Property Act of Jammu & Kashmir will be respected in auction
sales that take place within the State. This being the case, it is
clear that there is no collision or repugnancy with any of the
provisions of SARFAESI. [Paras 38, 39 and 40][1027-C-E; 1028-
C, E]
c 2.7 It is wholly incorrect to refer to Entry llA of List 3 of
VII Schedule of the Constitution of India and to state that since it
is not extended to the State of Jammu & Kashmir, Parliament
would have no legislative competence to enact Sections 17A and
18B of SARFAESI. There are at least three errors in this
D conclusion. First and foremost, it is not possible to dissect the
provisions of SARFAESI and attach them to different Entries
under different Lists. The whole of SARFAESI is referable to
Entry 45 and 95 of List I. Secondly, what has been missed by the
impugned judgment is that Entry 95 List I is a source oflegislative
power for Parliament for conferring power and jurisdiction on
E the District Court and the High Court respectively in respect of
matters contained in SARFAESI. And third, the subject
"Administration of Justice" is only general and can be referred
to only if Entry 95 List I read with Entry 45 List I are not attracted.
Even if it is found that Section 140 of the Jammu & Kashmir
F Transfer of Property Act entitles only certain persons to purchase
properties in the State of Jam mu & Kashmir, yet, Rule 8(5) proviso
of Security Interest (Enforcement) Rules, 2002 which recognizes
this provision, has been brushed aside. In any case an attempt
has first to be made to harmonise Section 140 of the Jammu &
Kashmir Transfer of Property Act with SARFAESI, and if such
G harmonization is impossible, it is clear that by virtue of Article
246 read with Section 5 of the Jammu & Kashmir Constitution,
Section 140 of the Jammu & Ka~flniir Transfer of Property Act
has to give way to SARFAESI, and not the other way around.
[Para 44][1032-B-G]
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC.
. 995

State of Maharashtra v. Narottamdas Jethabai (1950) A
1 SCR 51; Jamshed N Guzdar v. State of Maharashtra
2005 (1) SCR 223 : (2005) 2 SCC 591 - relied on.
2.8 The High Court is wrong in 'stating that in terms of
Section 5 of the Constitution of Jammu & Kashmir, the State has
absolute sovereign power to legislate in respect of laws touching B
the rights of its permanent residents qua their immovable
properties. The High Court is also wrong in stating that the State
legislature having enacted Section 140 of the Jammu & Kashmir
Transfer of Property Act, therefore, having clearly stated that
the State's subjects/citizens are by virtue of the said provision
protected, SARFAESI cannot intrude and disturb such protection. c
Entries 45 and 95 of List I clothe Parliament with exclusive power
to make laws _with respect to banking, and the entirety of
SARFAESI can be said to be referable to Entry 45 and 95 of List
I, 7'h Schedule to the Constitution of India. This being the case,
Section 5 of the Jammu & Kashmir Constitution will only operate D
in areas in which Parliament has no power to make laws for the
State. Thus, it is clear that anything that comes in the way of
SARFAESI by way of a Jammu & Kashmir law must necessarily
give way to the said law by virtue of Article 246 of the Constitution
of India as extended to the State of Jammu & Kashmir, read with
E
Section 5 of the Constitution of Jammu & J(ashmir. Thus, Sections
13(1) and ( 4) cannot be held, to be beyond the legislative
competence of Parliament. [Para 40](1028-F-H; 1029-A-B]
3. The High Court having held that the provisions of
SARFAESI cannot be applied to the State of Jammu & Kashmir,
it is a contradiction in terms to state that SARFAESI can be availed F
of by banks which originate from the State of Jammu & Kashmir
for securing monies which are due to them and which have been
advanced to borrowers who are not the residents of the State of
Jammu & Kashmir. [Para 47](1034-C, D]
Case Law Reference G

1964 (1) SCR 371 relied on Paras
(1959) Supp. 2 SCR 270 relied on Para 11
' (1969} 2 SCR 365 referred to Para 12
H
996 SUPREME COURT REPORTS {2016] 9 S.C.R.

A (1962) 1 SCR 688 referred to Para 14
2002 (2) SCR 450 relied on Para24
2009 (3) SCR 735 relied on Para 25
2016 (12) SCALE 301 relied on Para 26
1970 (3) SCR 530 relied on Para 28
B
1947 Appeal Cases 33 referred to Para29
1972(2) SCR 33 referred to Para30
1972 (3) SCR 881 relied on Para 31
(1950) 1 SCR 51 relied on Para 34
c 2005 (1) SCR 223 relied on Para36
1957 SCR 399 relied on Para 37
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1223 7-
12238 of2016 ..
· From the Judgment and Order dated 16.07.2015 of the High Court
D ·of Jammu and Kashmir atJammu in OWPNo. 1031/2004 & 1539/2012
WITH
C. A. Nos. 12240-12246 of2016.
Rakesh Dwivedi, Sr. Adv., Sanjay Kapur, Anmol Chandan,
Ms. Priyanka Das, Ms. Megha Karnwal, Ms. Sanskriti Pathak, Keshav
E Thakur, Rajesh Chauhan, Advs. for the Appellant.
Vijay Hansaria, Bharat Bhushan Par.soon, Sr. Advs., Tusharfohn,
Avnish Pandey, Ms. Sonam Priya, Ms. Sneha Kalita, Ravi Kumar Tomar,
Sunil Fernandes, Ms. Mithu Jain, Arnav Vidyarthi, Advs. for the
Respondents.
F The Judgment of the Court was delivered by
R.F. NARIMAN, J. Leave granted.
I. The Constitution oflndia is a mosaic drawn from the experience
of nations worldwide. The federal structure of this Constitution is largely
reflected in Part XI which is largely drawn from the Government of
·G India Act, 1935. The State of Jammu & Kashmir is a part of this federal
structure. Due to historical reasons, it is a State which is accorded
special treatment within the framework of the Constitution oflndia. This
case is all about the State of Jammu &.Kashmir vis'-a-vis' the Union of
India, in so far as legislative relations between the two are concerned.
H 2. The present appeals arise out of a judgment dated 16.7.2015
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 997
[R. F. NARIMAN, J.] ·

passed by the High Court of Jarrimu & Kashmir at Jammu, in which it A
has been held that various key provisions of the Securitisation. and
Reconstruction of Financial Assets and Enforcement of Security Interest
Act, 2002 (hereinafter referred to as "SARFAESI") were outside the
legislative competence of Parliament, as they would collide with Section
140 of the Transfer of Property Act of Jammu & Kashmir, 1920. The
B
said Act has been held to be inapplicable to banks such as the State
Bank oflndia which are all India banks.
3. Before goihg into the merits of the case, it is important to note
that SARFAESI is an enactment which inter alia entitles banks to enforce
- their security interest outside the court's process by movilig under Section
13 thereof to take possession of secured assets of the borrower and sell
c
them outside the court process. Sections 13 ( 1) and ( 4) and 17 are key
provisions of SARFAESI relevant for the present case and are set out
herein as follows:
"Section 13. Enforcement of security interest.
D
(1) Notwithstanding anything contained in section 69 or
section 69 A of the Transfer of Property Act, I 882 ( 4 of
1882), any security interest created in favour of any
secured creditor may be_. enforced, without the
intervention of court or tribunal, by such creditor in
accordance with the provisions of this Act. E

(4) In case the borrower fails to discharge his liability in full
within the period specified insub-section (2), the secured
creditor may take recourse to one or more of the fol lowing
measures to recover his secured debt, namely:- (a) take
possession of the secured assets of the borrower including F
the right to transfer by way of lease, assignment or sale for
realising the secured asset; (b) take over the management
of the business of the borrower including the rightto transfer
by way oflease, assignment or sale for realising the secured
asset: G
PROVIDED that the right to transfer by way of lease,
assignment or sale shall be .exercised only where the
substantial part of the business of the borrower is held as
security for the debt:
PROVIDED FURTHER that where the management of H
998 SUPREME COURT REPORTS [2016] 9 S.C.R.

A whole of the business or part of the business is severable,
the secured creditor shall take over the management of
such business of the borrower which is relatable to the
security for the debt. ( c) appoint any person (hereafter
referred to as the manager), to manage the secured assets
the 'possession of which has been taken over by the secured
B
creditor; (d) require at any time by notice in writing, any
person who has acquired any of the secured assets from
the borrower and from whom any money is due or may
become due to the borrower, to pay the secured creditor,
so much of the money as is sufficient to pay the secured
c debt.
xxx
Section 17. Right to appeal.
(1) Any person (including borrower), aggrieved by any of
D the measures referred to in sub-section (4) of section 13
taken by the secured creditor or his authorised officer under
this Chapter, may make an application along with such fee,
as may be prescribed to the Debts Recovery Tribunal having
jurisdiction in the matter within forty-five days from the
date on which such measure had been taken:
E
PROVIDED that different fees may be prescribed for
making the application by the borrower and the person other
than the borrower.
.
Explanation: For the removal of doubts, it is hereby declared
.F that the communication of the reasons to the borrower by
the secured creditor for not having accepted his
representation or objection or the likely action of the secured
creditor at the stage of communication of reasons to the
borrower shall not entitle the person (including borrower)
to make an application to' the Debts Recovery Tribunal under
G this sub-section.
(2) The Debts Recovery Tribunal shall consider whether
any of the measures referred to in sub-section (4) of section
13 taken by the secured creditor for enforcement of security
are in accordance with the provisions of this Act and the
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 999
[R. F. NARIMAN, J.]

rules made thereunder. A
(3) If, the Debts Recovery Tribunal, after examining the
facts and circumstances of the case and evidence produced
by the parties, comes to the conclusion that any of the
measures referred to in sub-section ( 4) of section 13, taken
by the secured creditor are not in accordance with the B
provisions of this Act and the rules made thereunder, and
require restoration of the management of the business to
the borrower or restoration of possession of the secured
assets to the borrower, it may by order, declare the recourse
to anyone or more measures referred to in sub-section (4)
of section 13 taken by the secured creditors as invalid and
c
restore the possession of the secured assets to the borrower
or restore the management of the business to the borrower,
as the case may be, and pass such order as it may consider
appropriate and necessary in relation to any of the recourse
taken by the secured creditor under sub-section (..t) of D
section 13.
(4) If, the Debts Recovery Tribunal declares the recourse
taken by a secured creditor under sub-section (4) of section
13, is in accordance with the provisions of this Act and the
rules made thereunder, then, notwithstanding anything E
contained in any other law for the time being in force, the
secured creditor shall be ~ntitled to take recourse to one or
more of the measures specified under sub-section (4) of
section 13 to recover his secured debt.
(5) Any application made under sub-section (l) shall be F
dealt with by the Debts Recovery Tribunal as expeditiously
as possible and disposed of within sixty days from the date
of such application:
PROVIDED that the Debts Recovery Tribunal may, from
time to time, extend the said period for reasons to be G
recorded in writing, so, however, that the total period of
pendency of the application with the Debts Recovery
Tribunal, shall not exceed four months from the date of
making of such application made under sub-section ( 1).
( 6) If the application is not disposed of by the Debts
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1000 SUPREME COURT.REPORTS [2016] 9 S.C.R.

A Recovery Tribunal within the period of four months as
specified in sub-section (5), any party to the application
may make an application, in such fonn as may be prescribed,
to the Appellate Tribunal for directing the Debts Recovery
Tribunal for expeditious disposal of the application pending
before the Debts Recovery Tribunal and the Appellate
B
Tribunal may, on such application, makr.: .in urdcr fo1
e:'l.peditious disposal of the pending applicatiL'I h) the Debts
Recovery Tribunal.
(7) Save as otherwise provided in this Act, the Debts
Reem ery Tribunal shall, as far as may be, dispose of the
c application in accordance with the provisions of the
Recovery of Debts Due to Banks and Financial Institutions
Act, 1993 and the rules made thereunder."
4. Section 34 declares that a Civil Court shall not have jurisdiction
to entertain any suit or proceeding in respect of any matter which a
D Debts Recovery Tribunal or the Appellatt! Tribunal under the Act is
empowered to determine, and Section 35 is a general 1;on··,)bstante clause
declaring that this Act shall have effect, notwithstanding anything
inconsistent therewith contained in any other law.for the time being in
force.
E 5. The bone of contention in the present appeals is whether
SARFAESI in its application to the Stat.e of Jammu & Kashmir would
be held to be within the legislative competence of Parliament. To decide
this question, we have heard wide ranging arguments from the learned
Attorney General Shri Mukul Rohtagi and Shri Rakesh Dwivedi, learned
F Senior Advocate, on behalf of the Appellants. They have referred in
detail to the provisions of Article 370 of the Constitution oflndia, read
with Section 5 of the Jam mu & Kashmir Constitution, 1956. It is their
submission that the Instrument of Accession of Jammu and Kashmir,
l 94 7 itself makes it clear that List l of the 7'h Schedule of the Government
of India Act, 1935 would apply, and that the various Constitution,
G Application to J & K Orders issued from time to time under Article 370
makes it clear that Article 246 (1) read with Entry 45 and 95 List I would
clothe Parliament with power to enact SARFAESI. In fact, according
to them, even the impugned judgment of the Hig:1 Court concedes this.
According to them, once Entry 45 List I has no other competing Entry,
H inasmuch as List II of the 7'h Schedule to the Constitution of India has
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1001
[R. F. NARIMAN, J.]

not been extended to the State of Jammu & Kashmir, and Entry 11 A A
dealing with Administration of Justice contained in List III of the 7'h
Schedule to the Constitution oflndia does not apply to Jammu & Kashmir,
and Entry 6 List III dealing with transfer of property also does not apply, -
it is their case that Entry 45 List I is to be read in its full plenitude and is
not cut down by the provisions of any other Entry. If it is found that the
B
entire SARFAESI is in fact enacted under Entry 45 read with 95 of List
I, it would be clear that no other enquity is necessary, as the Act in pitli ~
and substance would be referable to these two entries. This being the
case, the State's legislative power comes in only if none of the entries of
List I or III are attracted. To refer to Entry 11 A and to Entry 6, and
further to state that Section 140 of the Transfer of Property Act of c
Jammu & Kashmir would render the key prpvisions of SARFAESI
without legislative competence, is wholly incorrect. They referred to a
number of judgments to show that recovery of loans is as much part of
the business of banking as the giving of loans, and that therefore the
entire 2002 Act would fall within Entry 45 read with Entry 95 List I.
D
According to them, therefore, the impugned judgment is wrong on several
fundamentals and needs to be set aside. They referred to and relied
upon a number of other judgments which we will deal with in the course
gfthisjudgment.
6. Shri Vijay Hansaria, learned senior advocate, appearing on behalf
of the private respondent, has argued that since both'the Constitution of E
India and the Constitution of Jammu & Kashmir are expressions of the
sovereign will of the people, they have equal status and none is
subordinate to the other. His basic argument to meet the contentions of
the appellants is that the SARFAESI Act, in pith and substance, relates
to "transfer of property" and not "banking" and wou Id, therefore, be F
outside the competence of Parliament and exclusively within the
competence of the State Legislature. He further argued that the power
of Parliament is e_xpressly "limited" under Article 370(l)(b) of the
Constitution of India whereas under the Constitution of Jammu &
Kashmir, the State Legislature has plenary powers over all matters, except
those where the Parliament has power to make laws. He also-argued G
that the subjects mentioned in the State List of the 7th Schedule under
the Constitution of India were frozen and can never be delegated or
c,unferred on Parliament so long as Article 3 70 remains and therefore
any transference of a State List subject to the Concurrent List later
H
1002 SUPREME COURT REPORTS [2016] 9 S.C.R.

A cannot apply to the State of Jammu & Kashmir. He also argued that it
is not enough under Article 370 to confer power on Parliament by a
Presidential Order, but that every time Parliament enacts a law under
such power, before such law can operate in the State of Jammu &
Kashmir, the State Government's concurrence must be obtained. This
was stated to be also for the reason that an amendment made to the
B
Constitution oflndia will not apply unless the State concurs in applying it
to the State of Jammu & Kashmir, in which case only a Presidential
Order applying such amendment would take effect. Further, according
to him, Section 140 of the Jammu & Kashmir Transfer of Property Act
is in direct conflict with Section 13 ofSARFAESI Act and the Transfer
c of Property Act must prevail. He further argued that Section 17A and
18B of the SARFAESI Act, being Sections relatable to administration
of justice, which is purely a State subject, would also be ultra
vires Parliament. He relied upon Article 35A and supported the
impugned judgment on this score, and further stated that the various
judgments cited on behalf of the appellants were distinguishable as the
D
fact situation in the present case was completely different from the
situation in those judgments.
7. Shri Sunil Fernandes, learned Standing Counsel for the State of
Jammu & Kashmir, referred to Article 370 and the Constitution of Jam mu
& Kashmir in some detail and cited judgments of this Court dealing with
E the same. He also pointed out local statutory laws which prohibit transfer
ofland belonging to State residents to non State residents. His submission
was that though the SARFAESI Act was enacted by Parliament by
virtue of Entry 45 List I, yet Section 13(4) alone incidentally encroaches
upon the property rights of permanent residents of the State of Jammu
F & Ka~hmir and must be read down so that it will not be permissible
under this Section to sell property belonging to a permanent resident of
the State to a person who is not a permanent resident of the State. It
was his further submission that the proviso added to Rule 8(5) of the
SARFAESI Rules must be read along with Section 13 (4) of the
SARFAESI Act and if so read, the State of Jammu & Kashmir would
G have no objection to the SARFAESI ;\ct applying to the State of Jam mu
& Kashmir.
8. As Article 1 of the Constitution oflndia states, India is a Union
of States. In an illuminatingjudgment, namely, State of West Bengal v.
Union oflndia, I 964 (1) SCR 371, Chief Justice Sinha, in the majority
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1003
[R. F. NARIMAN, J.]

judgment, has held that India is quasi-federal with a strong tilt to the A
Centre. In so holding, the learned Judge referred to four indicia of a real
federation, as follows:-
.,'.'( a) A truly federal form of Government envisages a
compact or agreement between independent and sovereign
units to surrender partially their authority in their common B
interest and vesting it in a Union and retaining the residue
of the authority in the constituent units. Ordinarily each
constituent unit has its separate Constitution by which it is
governed in all matters except those surrendered to the
Union, and the Constitution of the Union primarily operates
upon the administration of the units. Our Constitution was
c
not the result of any such compact or agreement: Units
constituting a unitary State which were non-sovereign were
transformed by abdication of power into a Union.
(b) Supremacy of the Constitution which cannot be altered
except by the component units. Our Constitution is D
undoubtedly supreme but it is liable to be altered by the
Union Parliament alone and the units have no power to
alter it.
(c) Distribution of powers between the Union and the
regional units each in its sphere coordinate and independent E
of the other. The basis of such distribution of power is that
in matters ofnational importance in which a uniform policy
is desirable in the interest of the units, authority is entrusted
to the Union, and matters of local concern remain with the
State. F
(d) Supreme authority of the Courts to interpret the
Constitution and to invalidate action violative of the
Constitution. A federal Constitution, by its very nature,
consists of checks and balances and must contain provisions
for resolving conflicts between the executive and legislative G
authority of the Union and the regional units." [at pages
396-397]
9. It was found that so far as States other than the State of Jam mu
& Kashmir are concerned, indicia (a) and (b) were absent whereas
indicia (c) and (d) were present, and this coupled with a reading of
H
1004 SUPREME COURT REPORTS [2016) 9 S.C.R.

A various other Articles of the Constitution led a Constitution Bench of this
Court to decide that the federal structure of the Constitution tilts strongly
towards the Central Legislature and Central Gov\:rnment.
10. Insofar as the State of Jammu & Kashmir is concerned, it is
clear that indicia (b) is absent. Insofar as the other indicia are concerned,
B the State does have its own separate Constitution by which it is governed
in all matters, except those surrendered to the Union of India.
Amendments that are made in the Constitution of India are made to
apply to the State of Jam mu & Kashmir only if the President, with the
concurrence of the State Government, applies such amendments to the
State of Jammu & Kashmir. The distribution of powers between the
c Union and the State of Jammu & Kashmir reflects that matters ofnational
importance, in which a uniform policy is desirable, is retained with the
Union of India, and matters of local concern remain \vith the State of
Jammu & Kashmir. And, even though the Jammu & Kashmir
Constitution sets up the District Courts and the High Court in the State,
D yet, the supreme authority of courts to 'interpret the Constitution ofindia
and to invalidate action violative of the Constitution is found to be fully
present. Appeals from the High Court of Jainmu & Kashmir lie to the
Supreme Court ofindia, and shorn of a few minor modifications, Articles
124 to 14 7 all apply to the State of Jammu & Kashmir, with Articles 135
and 139 being omitted. The effect of omitting Articles 135 and 139 has
E a very small impact, in that Article 135 only deals with jurisdiction and·
powers of the Federal Court to be exercised by the Supreme Court, and
Article 139 deals with Parliament's power to confer on the Supreme
Court the power to issue directions, orders, and writs for purposes other
than those mentioned in Article 32 (2). We may also add that permanent
F residents of the State of Jammu & Kashmir are citizens of India, and
that there is no dual citizenship as is contemplated by some other federal·
Constitutions in other parts of the world. All this leads us to conclude
that even qua the State of Jammu & Kashmir, the quasi federal structure
of the Constitution ofindia continues, but with the aforesaid differences.
It is therefore difficult_ to accept the argument of Shri Hansaria that the
G Constitution of India and that of Jammu & Kashmir have equal status.
Article 1 of the Constitution of India and Section 3 of the Jam mu &
Kashmir Constitution make it clear that India shall be a Union of States,
and that the State of Jammu & Kashmir is and shall be an integral part
of the Union oflndia.
!-I
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1005
[R. F. NARIMAN, J.]

I 1. It is interesting to note that the State of Jammu & Kashmir, 'A
though a state within the meaning of Article 1 of the Constitution of
India, has been accorded a special status from the very beginning because
of certain events that took place at the time that the erstwhile Ruler of
Jammu & Kashmir acceded to the Indian Union. These events have
been set out in detail in Prem Nath Kaul v. State of Jammu &
B
Kashmir, (1959) Supp. 2 SCR 270, to which we will. refer in some
detail. The State of Jammu & Kashmir is dealt with by a special provision,
namely, Article 3 70. At this juncture, it is necessary to set out this Article
which reads as follows:-
Article 370. Temporary provisions with respect to the
State of Jammu and Kashmir.
c
(1) Notwithstanding anything in this Constitution,
(a) the provisions of Article 238 shall not apply in relation
to the State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State D
shall be limited to
(i) those matters in the Union List and the Concurrent List
which, in consultation with the Government of the State,
are declared by the President to correspond to matters
specified in the Instrument of Accession governing the E
accession of the State tb the Dominion of India as the
matters with respect to which the Dominion Legislature
may make laws for that State; and
(ii) such other matters in the said Lists as, with the
concurrence of the Government of the State, the President F
may by order specify,
Explanation.- For the purposes of this article, the
Government of the State means the person for the time
being recognised by the President as the Maharaja of Jammu
. and Kashmir acting on the advice of the Council ofMinisters G
for the time being in office under the Maharaja's
Proclamation dated the fifth day of March, 1948 ;
( c) the provisions of Article 1 and of this article shall apply
in relation to that State;
H
1006 SUPREME COURT REPORTS [2016) 9 S.C.R.

A (d) such of the other provisions of this Constitution shall
apply in relation to that State subject to such exceptions
and modifications as the President may by order specify:
Provided that no such order which relates to the matters
specified in the Instrument of Accession of the State
B referred to in paragraph (i) of sub clause (b) shall be issued
except in consultation with the Government of the State:
Provided further that no such order which relates to matters
other than those referred to in the last preceding proviso
shall be issued except with the concurrence of that
c Government.
(2) If the concurrence of the Government of the State
referred to in paragraph (ii) of sub clause (b) of clause (1)
or in the second proviso to sub clause (d) of that clause be
given before the Constituent Assembly for the purpose of
D framing the Constitution of the State is convened, it shall be
placed before such Assembly for such decision as it may
take thereon.
(3) Notwithstanding anything in the foregoing provisions of
this article, the President may, by public notification, declare
E that this article shall cease to be operative or shall be
operative only with such exceptions and modifications and
from such date as he may specify:
Provided that the recommendation of the Constituent
Assembly of the State referred to in clause (2) shall be
F necessary before the President issues such a notification.
12. The first thing that is noticed in Article 3 70 is that the marginal
note states that it is a temporary provision with respect to the State of
Jammu & Kashmir. However, unlike Article 369, which is also a
temporary provision limited in point of time to five years from the
commencement of this Constitution, no such limit is to be found in Article
G
3 70. Despite the fact that it is, therefore, stated to be temporary in
nature, sub-clause (3) of Article 370 makes it clear that this Article shall
cease to be operative only from such date as the President may by
public notification declare. And this cannot be done under the proviso to
Article 370 (3) unless there is a recommendation of the Constituent
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1007
[R. F. NARIMAN, J.]

Assembly of the State so to do. This takes us to an interestingjudgment A
of this Court, namely, Sampat Prakash v. the State of Jammu &
Kashmir, (1969) 2 SCR 365. In this case, a writ petition under Article
32 was filed challenging the detention of the petitioner, in which it was
contended that Article 370 contained only temporary provisions which
cease to be effective after the Constituent Assembly of the State had
B
completed its work by framing a Constitution for the State. The detention
of the petitioner was continued without making a reference to the Advisory
Board inasmuch as Article 35(c) of the Constitution had given protection
to any law relating to preventive detention in Jammu & Kashmir against
invalidity on the ground of infringement of any of the fundamental rights
guaranteed by Part III of the Constitution initially for a period of five c
years, which was then extended to ten years and fifteen years. These
extensions were the subject matter of challenge, and it was sought to be
contended that the power of the President, depending on the concurrence
of the Government ofthe State of Jammu & Kashmir, must be exercised
under Article 3 70 before dissolution of the Constituent Assembly of the
D
State, and that such power must be held to cease to exist after dissolution
of the Constituent Assembly. This argument was repelled by the
Constitution Bench by giving three reasons. First and foremost, it was
stated that the reason for the Article was that it was necessary to
empower the President of India to exercise his discretion from time to
time in applying the Indian Constitution. This being so, Article 3 70 would E
necessarily have to be invoked every time the President, with the State's
concurrence, feels it necessary that amendments to the Constitution of
India be made applicable to Jammu & Kashmir, given the special proviso
to Article 368 which applies only to the State of Jammu & Kashmir.
Further, it was also held that the Article will cease to operate under sub-
clause (3) only when a recommendation is made by the Constituent
F
Assembly of the State to that effect. It was found that in fact the
Constituent Assembly of the State had made a recommendation that the
Article should be operative with one modification to be incorporated in
the explanation to clause (I) of the Article, namely, that the Maharaja of
Jammu & Kashmir be substituted by the expression "Sadar-I Riyasat of G
Jammu & Kashmir". Also, it is important to note that Article 370 (2)
does not in any manner state that the said Article shall cease on the
completion of the work of the Constituent Assembly or its dissolution.
Having regard to all these factors, this Court clearly held that though the
marginal note refers to Article 370 as only a temporary provision, it is in
H
1008 SUPREME COURT REPORTS [2016] 9 S.C.R.

A fact in current usage and will continue to be in force until the specified
event in sub-clause (3) of the said Article takes place. It was further
held by the Sam pat Prakash judgment that Section 21 of the General
Clauses Act, 1897 was also applicable so that th<;: power under this Article
can be used from time to time to meet with varying circumstances.
B 13. Article 370 begins with a non obstante clause stating that
notwithstanding anything contained in the Constitution, first and foremost,
under sub-clause (!)(a) the provisions of Article 238 shall not apply in
relation to the State of Jammu & Kashmir. Article 238 has since been
repealed and is not of any importance today. It only referred to the·
of the provisions of Part VI to States in Part B of the 1st
c application
Schedule. Since the scheme of Article 370 was different, the said Article
was stated not to apply. But more importantly, the power of Parliament
to make laws for the said State shall be limited, in sub-clause (b)(i), to
the matters in the Union List and the ConcmTent List of the 7th Schedule
to the Constitution oflndia, whi.ch in consultation with the Government
D of the State, are declared by the President to correspond to matters
specified in the Instrument of Accession. If other matters contained in
the said Constitution outside the Instrument of Accession in the said
Lists are to be extended, then they can be extended only with the
concurrence of the State. The difference between consultation and
concurrence was highlighted in Prem Nath Kaul's case, supra. At this
E stage, it is necessary to refer to this case in some detail as it goes into
the legislative history of Article 3 70, and the Presidential Orders made
under the said Article. We are not directly concerned here with the
Jammu & Kashmir Big Landed Estates (Abolition) Act, 1950, whose
validity was cha! lenged in the said judgment. The judgment goes into
F great detail as to how the Instrument of Accession to the Union oflndia
was made byMaharaja Hari Singh. What is of importance is to note that
after the reins of power were handed over to his son Yuvraj Karan
Singh by a proclamation dated 20.6,. 1949, Yuvraj Karan Singh, by a
proclamation dated 25.11.1949, stated that the Constitution oflndia, which
was yet to be promulgated, would apply to the State of Jammu & Kashmir.
G Also, by a proclamation dated 20.4.1951, a Constituent Assembly was
to be set up on the basis of adult franchise in order that this Assembly
give to the State its own Constitution. The judgment then goes on to
refer to the Jammu & Kash1nir Presidential Order of 1950 and its
amendments, which was then supplanted by the 1954 Order. It then
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1009
[R. F. NARIMAN, J.]

goes on to state that, whereas sub-clause (1) (b) (i) of370 requires only A
consultation with the Government of the State, sub-clause (ii) requires
concurrence, which scheme applies under sub-clause (d) of the said
Article in relation to the extension or modification of other provisions of
the Indian Constitution as well. Under sub-clause (d), other.provisions
of the Constitution may, by Presidential Order, be held to apply to the
B
State of Jammu & Kashmir. If matters specified in the Instrument of
Accession are to be applied, then there is only consultation with the
Government of the State, and if not, there must be concurrence. The
scheme of Article 3 70(1 ), therefore, is clear. Since the Instrument of
Accession is an agreement between the erstwhile R11ler of Jammu &
Kashmir and the Union oflndia, it must be respected, in which case if a c
matter is already provided ·for in it, it would become applicable
straightaway without more, and only consultation with the Government
of the State is necessary in order to work out the modalities of the
extension of the provisions of the Government ofindiaAct corresponding
to the Constitution oflndia referred to in it. However, when it .comes to
D
applying the provisions of the Constitution of India which are not so
reflected in the Instrument of Accession, they cannot be so applied
without the concurrence of the Government of the State, meaning thereby
that they can only be applied if the State Government accepts that they
ought to be so applied. Under Article 370(2), the concurrence of the
Government of the State, given before the Constituent Assembly is E
convened, can only be given effect to if ratified by the Constituent
Assembly. This legislative scheme therefore illustrates that the State of
Jammu & Kashmir is to be dealt with separately owing to the special
conditions that existed at the time of the Instrument of Accession.
14. Under sub-clause (l)(d) of Article 370, other provisions of F.
the Indian CGnstitution shall apply in relation to the State of Jammu &
Kashmir subjeCt to such exceptions and modifications as the President
may by order specify. In Puranlal Lakhanpal v. President oflndia,
(1962) 1 SCR 688, this Court held that "modification" in sub-clause ( d)
is a very wide expression which includes amendment by way of change.
This Court held: G

"The question that came for consideration in In re: Delhi
Laws Act case(') was with respect to the power of
delegation to a subordinate authority in making subordinate
legislation. It was in that context that the observations were
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1010 SUPREME COURT REPORTS [2016) 9 S.C.R.

A made that the intention of the law there under consideration
when it used the word "modification" was that the Central
Government would extend certain laws to Part C States
without any radical alteration in them. But in the present
case we have to find out the meaning of the word
"modification" used in Art. 370(1) in the context of the
B
Constitution. As we have said already the object behind
enacting Art. 370(1) was to recognise the special position
of the State of Jammu and Kashmir and to provide for that
special position by giving power to the President to apply
the provisions of the Constitution to that State with such
c exceptions and modifications as the President might by order
specify. We have already pointed out that the power to make
exceptions implies that the President can provide that a
particular provision of the Constitution would not apply to
that State. If therefore the power is given to the President
to efface in effect any provision of the Constitution altogether
D
in its application to the State of Jammu and Kashmir, it seems
that when he is also given the power to make modifications
that power should be considered in its widest possible
amplitude. Ifhe could efface a particular provision of the
Constitution altogether in its application to the State of
E Jammu and Kashmi~, we see no reason to think that the
Constitution did not intend that he should have the power to
amend a particular provision in its application to the State
of Jammu and Kashmir. It seems to us that when the
Constitution used the word "modification" in Art. 3 70( I) the
iiltention was that the President would have the power to
F
amend the provisions of the Constitution ifhe so thought fit
in their application to the State of Jammu and Kashmir. In
the Oxford English Dictionary (Vol. VI) the word 'modify"
means inter alia "to make partial changes in; to change (as
object) in respect of some of its qualities; to alter or vary
G without radical transformation". Similarly the word
"modification" means "the action of making changes in an
object without altering its essential nature or character;
the state of being thus changed; partial alteration".
Stress is being placed on the meaning "to alter or
vary without radical transformation" on behalf of the
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1011
[R. F. NARlMAN, J.]

petitioner; but that is not the only meaning of the words A
"modify" or "modification". The word "modify" also means
"to make partial changes in" and "modification" means
"partial alteration". If therefore the President changed the
method of direct election to indirect election he was in
essence making a partial change or partial alteration in Art.
B
81 and therefore the modification made in the present case
would be even within the dictionary meaning of that word.
But, in law, the word "modify" has even a wider meaning.
In "Words and Phrases" by Roland Burrows, the primary
meaning of the word "modify" is given as "to limit" or
"restrict" but it also means "'to vary" and may even mean ·c
to "extend" or "enlarge". Thus in law the word "modify"
may just mean "vary", i.e., amend; and when Art.
370(1) says that the President may apply the provisions of
the Constitution to the State of Jammu and Kashmir with
such modifications as he may by order specify it means
that he may vary (i.e., amend) the provisions of the
Constitution in its application to the State of Jammu and
Kashmir. We are therefore of opinion that in the context of
the Constitution we must give the widest effect to the
meaning of the word 'modification" used in Art. 370(1) and
in that sense it includes an amendment. There is no reason E
to limit the word "modifications" as used in Art. 3 70( I) only
to such modifications as do not make any "radical
transformation"." [pages 692 - 693]
15. It has been argued that Parliamentary legislation would also
need the concurrence of the State Government· before it can apply to F
the State of Jammu & Kashmir un.d~r Article 370. ·This is a complete
misreading of Article 370 which makes it clear that.once a matter in
eithertl1e Union List or the Concurrent List is specified by a Presidential
Order, no further concurrence is needed. Indeed, the argument is that a
Constitutional amendment does not ipso facto apply to the State of Jammu
& Kashmir under the proviso to Article 368 as applicable in the said G
State unless there is concurrence of the State Governme·nt and therefore,
logically, it must follow that Parliamentary legislation would also require
concurrence of the State Government before it can be said to apply in
the State of Jammu & Kashmir. We fail to understand or appreciate
H
1012 SUPREME COURT REPORTS [2016] 9 S.C.R.

A such an argument. A constitutional amendment is different in quality
from an ordinary law and, as has been held by us, it is clear that the
language of Article 368 proviso and the language of Article 370 are
different and have to be applied according to their terms.
16. The Instrument of Accession of Jammu & Kashmir State is
B dated 26.10.1947, and states, in paragraphs 1, 3, 8, and 9, the following:
"1. I hereby declare that I accede to the Dominion of India
with the intent that the Governor General of India, the
Dominion Legislature, the Federal Court and any other
Dominion authority established for the purposes of the
c Dominion shall by virtue of this my Instrument of Accession
but subject always to the terms thereof, and for the purposes
only of the Dominion, exercise in relation to the State of
Jammu & Kashmir (hereinafter referred to as "this State")
such functions as may be vested in them by or under the
Government ofindiaAct, 1935, as in force in the Dominion
D ofindia, on the 15th day of August 1947, (which Act as so
in force is hereafter referred to as "the Act').
3. I accept the matters specified in the schedule hereto as
the matters with respect to which the Dominion Legislature
may make law for this State.
E
8. Nothing in this Instrument affects the continuance of my
Sovereignty in and over this State, or, save as provided by
or under this Instrument, the exercise of any powers,
authority and rights now enjoyed by me as Ruler of this
State or the validity of any law at present in force in this
F State.
9. I hereby declare that I execute this Instrument on behalf
of this State and that any reference in this Instrument to
me or to the Rukr of the State is to be construed as including
a reference to my heirs and successors."
.1
G
The Schedule which is referred to in clause 3 refers to defence,
external affairs, communications and certain ancillary matters.
17. At this stage, it is necessary to see which of the provisions of
the Constitution ofindia have in fact been applied by Article 370 to the
State of Jammu & Kashmir. First and foremost, in sub-clause (I)( c) of
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1013
[R. F. NARIMAN, J.]

Article 3 70, the provisions of Article I and Article 3 70 itself are said to A
apply by virtue of this sub-clause straightaway. In order to find out what
other provisions of the Constitution have been extended to the State of
Jammu & Kashmir, we have necessarily to go to the Presidential Order
of 1950. This Order, which is called the Constitution Application to.
Jam mu & Kashmir Order, 1950, began rather warily by extending a few
B
Entries in List I of Schedule 7 and applying only certain clauses and
Articles of the Constitution. Since this Order and its amendments are of
historical importance only, it is not necessary to refer to them in any
detail, as it is the Constitution Application to Jam mu & Kashmir Order,
1954, that superseded the 1950 Order, and went on to apply various
provisions of the Constitution oflndia to the State of Jammu & Kashmir c
that we are concerned with. Insofar as this case is concerned, it is
important to note that, in Part XI, in Article 246, it was stated that the
words, brackets, and figures "notwithstanding anything contained in
clauses 2 and 3" occurring in clause I, and clauses :t, 3, and 4 shall be
omitted. Article 254 was also, by sub-clause (f) of paragraph 6, extended
D
with certain modifications and omissions. The 7'h schedule Union List
was extended containing most of the Entries therein except what was
expressly omitted by clause 22. Interestingly enough, Entry 45 and 95
with which we are directly concerned were applied for the first time by
this Order, and have continued to apply to the State since. Significantly,
the State List and the Concurrent List of the 7'h Schedule were omitted E
by the original 1954 Order.
18. This order has been amended repeatedly by a number of
subsequent orders, and the Order with which we are directly concerned
is the 1954 Order as amended from time to time. This Order adopts all
the provisions of the Constitution oflndia as in force on the 20'h June, F
1964, together with certain amendments and modifications. The argument
that Article 370(l)(b) 'limits' the power of Parliament is answered by
the fact that the entire Constitution oflndia, as it exists in 1964, has been
made applicable by Presidential order to the State of Jammu & Kashmir,
availing both Articles 3 70( I )(b) and ( d) for this purpose. And the
expression 'limited to' does not occur in Article 370(1 )(d),under which it G
is open to adopt the entire Constitution oflndia subject to exceptions and
modifications, as has been noted above. The opening paragraphs of this
Order read as follows:-
"ln exercise of the powers conferred by clause (I) ofarticle
H
1014 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 3 70 of the Constitution, the President, with the concurrence
of the Government of the State of Jammu and Kashmir, is
pleased to make the following Order:-
]. (1) This Order may be called the Constitution (Application to
Jammu and Kashmir) Order, 1954.
B (2) It shall come into force on the fourteenth day of May, 1954,
and shall thereupon supersede the Constitution (Application to
Jammu and Kashmir) Order, 1950.
2. The provisions of the Constitution as in force on the 201h
day of June, 1964 and as amended by the Constitution
c (Nineteenth Amendment) Act, 1966, the Constitution
(Twenty-first Amendment) Act, 1967, Section 5 of the
Constitution (Twenty-third Amendment) Act, 1969, the
Constitution (Twenty-fourth Amendment) Act, 1971, section
2 of the Constitution (Twenty-fifth Amendment) Act, 1971,
D the Constitution (Twenty-sixth Amendment) Act, 1971, the
Constitution (Thirtieth Amendment)Act, 1972, section 2 of
the Constitution (Thirty-first Amendment) Act, 1973, section
2 of the Constitution (Thirty-third Amendment) Act, 1974,
sections 2, 5, 6 and 7 of the Constitution (Thirty-eighth
Amendment) Act, 1975, the Constitution (Thirty-ninth
E Amendment) Act, 1975, the Constitution (Fortieth
Amendment) Act, 1976, sections 2, 3 and 6 of the
Constitution (Fifty-second Amendment) Act, 1985 and the
Constitution (Sixty-first Amendment) Act, 1988 which, in
addition to article 1 and article 370, shall apply in relation to
F the State of Jammu and Kashmir and the exceptions and
medifications subject to which they shall so apply shall be
as follows:-"
By this Order, in Part XI of the Constitution of India, in Article
246 for the words, brackets, and figures "clauses (2) and (3)" occurring
G in clause (1 ), the word, brackets and figure "clause (2)" shall be
substituted, and the words, brackets and figure "Notwithstanding anything
in clause (3)," occurring in clause (2), and the whole of clauses (3) and
(4) shall be omitted. This being the case, it is clear that A11icle 246 as
applicable to the State of Jammu & Kashmir would read thus:-
"246. Subject matter oflaws made by Parliament and
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1015
[R. F. NARIMAN, J.]

by the Legislatures. of States A
(1) Notwithstanding anything in clause ( 2 ), Parliament has
exclusive power to make laws with respect to any of the
matters enumerated in List I in the 7th Schedule (in this
Constitution referred to as the Union List)
(2) Parliament, and, subject to clause (1), the Legislature B
of any State also, have power to make laws with respect to
any of the matters enumerated in List III in the 7th Schedule
(in this Constitution referred to as the Concurrent List)"
19. Equally, Article 248 and Entry 97 List I have been modified so
that Parliament has the residuary power to make laws only with respect c
to three subjects -( 1) the prevention of activities involving terrorist acts,
(2) the prevention of activities directed towards questioning or disrupting
the sovereignty and territorial integrity oflndia or bringing about cession
of any part of the territory of India, and (3) taxes on three specified
subjects. Significantly, clause (f), which contained Article 254 in a D
modified form, was omitted by C.O. No.66, by ''hich it has become
clear that after 1963, Article 254 in its current form 111 theC ·onstitution of
India will apply to the State of Jammu & Kashmir. Equally, in the 7'h
Schedule Union List, the omission of Entries has now come down to
only four i.e. Entries 8, 9, 34, and 79, with a few other Entries being
modified or substituted. Significantly, Entries 45 and 95 of List I continue E
to apply to the State of Jammu & Kashmir. The State List continues to
be omitted altogether, and from 1963 onwards, the Concurrent List applies
to the State of Jam mu & Kashmir with a number of Entries being omitted.
What is of importance for the decision of this case is that Entry 6 dealing
with the transfer of property and Entry 11 A of the Concurrent List do F
not apply to the State of Jammu & Kashmir. Entry 6 does not apply
because it has not been extended to the State, and Entry 11 A does not
apply because the 42"d Amendment to the Constitution of India, which
introduced Entry 11 A into the Concurrent List, is itself not applicable.
20. At this stage, it is important to refer'to the Constitution of G
Jammu & Kashmir, 1956. This Constitution came into effect on
17 .11.1956. Section 2(1 )(a), and Sections 3, 4, a11d 5 read as follows:-
"2. Definitions:-
(!) In this Constitution, unless the context otherwise
H
1016 SUPREME COURT REPORTS [2016] 9 S.C.R.

.A requires-(a) "Constitution ofindia" means the Constitution
ofindia as applicable in relation to this State;
3. Relationship of the State with the Union of India:-
The State of Jammu and Kashmir is and shall be an integral
part of the Union ofindia.
B 4. Territory of the State:-The territory of the State shall
comprise all the territories which on the fifteenth day of
August, 194 7, were under the sovereignty or suzerainty of
the Ruler of the State.
5. Extent of executive and legislative power of the
c State:- The executive and legislative power of the State
extends to all matters except those with respect to which
Parliament has power to make laws for the State under the
provisions of the Constitution oflndia."
21. What is important to note in this Constitution, which was drafted
D by a Constituent Assembly elected on the basis of adult franchise, is that
the State of Jammu & Kashmir is stated to be an integral part of the
Union ofindia, and that the executive and legislative power of the State
extends to all matters except those with respect to which Parliament
has power to make laws for the State under Article 3 70 of the Constitution
E of India. A combined reading, therefore, ofArticle 3 70 of the Constitution
oflndia, the 1954 Presidential Order as amended from time to time, and
the Constitution of Jammu & Kashmir, 1956 would lead to the following
position insofar as the legislative competence of the Parliament ofindia
vis-a-vis the State of Jammu & Kashmir is concerned:
I.All entries specified by the 1954 Order contained in List I of the
F
7m Schedule to the Constitution oflndia would clothe Parliament
with exclusive jurisdiction to make laws in relation to the subject
matters set out in those entries.
2.Equally, under the residuary power contained in Entry 97 List I
read with Article 248, the specified subject matters set out would
G
indicate that the residuary power of Parliament to enact exclusive
laws relating to the aforesaid subject matters would extend only
to the aforesaid subject matters and no fmiher.
3.Parliament would have concurrent power with the State of
Jammu & Kashmir with respect to the entries that are specified
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1017
[R. F. NARIMAN, J.]

in the Presidential Order of 1954 under List III of the 7t1i Schedule A
of the Constitution oflndia. This would mean that all the decisions
of this Court on principle's ofrepugnancy applicable to Article
254 would apply in full force to laws made which are relatable to
these subject matters.
4.Every other subject matter which is not expressly referred to in B
either List I or List III of the 7'h Schedule of the Constitution of
India, as applicable in the State of Jammu & Kashmir, is within
the legislative competence of the State Legislature of Jammu &
Kashmir.
22. An argument was made by learned counsel on behalf of the c
respondents that the subjects mentioned in the State List of the 7th
Schedule to the Constitution oflndia as originally adopted were frozen
and can never be delegated or conferred on the Parliament so long as
Article 3 70 remains, since under Article 3 70( I )(b ), the President could
declare that the Par! iament sh al 1have power to make laws for the State
of Jam mu & Kashmir only on the fields of legislation mentioned in the D
Union List and the Concurrent List. We are afraid that this submission
is also without force forthe reason thatArticle 368 proviso, as applicable
to the State of Jammu & Kashmir, expressly allows any Constitutional
amendment to the Constitution oflndia to be applied with the concurrence
of the State of Jammu & Kashmir. This would include within its ken, an E
amendment which either adds to or subtracts from the State List and
confers upon Parliament, either exclusively under List I or concurrently
under List III, a subject matter hitherto in the State List. This has been
so held in Sampat Prakash's case (supra). Also, in Puranlal
Lakhan pal's case (supra), the expression "modifications" occurring in
Article 3 70( I)( d) has been construed not only to mean "to limit or restrict" F
but even "to extend or enlarge." Thus, the word "modification" must be
given the widest meaning and would include all amendments which either
limit or restrict or extend or enlarge the provisions of the Constitution of
India. For this reason also it is clear that nothing can ever be frozen so
long as the drill of Article 3 70 is followed. G
23. Given this legislative scenario, we have now to examine
SARFAESI in its applicability to the State of Jammu & Kashmir. Entries
45 and 95 of List I of the 7th Schedule of the Coristitution oflndia read
as follows:-
H
1018 SUPREME COURT REPORTS [2016] 9 S.C.R.

A "45. Banking.
95. Jurisdiction and powers ofall courts, except the Supreme
Court, with respect to any of the matters in this List;
admiralty jurisdiction."
24. The first significant thing to note is that recovery of debts by
B banks has been held to fall within Entry 45 List I. Thus, in Union of
India v. Delhi High Court Bar Association, (2002) 4 SCC 275, it has
been held:
"The Delhi High Court and the Guwahati High Cow1 have
held that the source of the power of Parliament to enact_ a
c law relating to the establishment of the Debts Recovery
Tribunal is Entry 11-A of List III which pertains to
"administration ofjustice; 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
D types of legislation now enacted. Entry 45 of List I relates
to "banking". Banking operations would, inter alia, include
accepting of Joans and deposits, granting of Joans and
recovery of the debts due to the bank. There can be little
doubt that under Entry 45 of List l, it is Parliament alone
which can enact a law with regard to the conduct of business
E 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
F . 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
G 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 ofbanking including ancillary
or subsidiary matters relating to banking. Setting up of an
adjudicatory body like the Banking Tribunal relating to
H transactions in which banks and financial institutions are
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1019
[R. F. NARIMAN. J.]

concerned would clearly fall under Entry 45 of List I giving A
Parliament specific power to legislate in relation thereto."
[para 14]
25. When it came to SARFAESI itself, this Court has held in
Central Bank of India v. State of Kerala, (2009) 4 SCC 94:
"Undisputedly, the ORT Act and the Securitisation Act have
B
been enacted by Parliament under Entry 45 in List I in the
7th Schedule whereas the Bombay and Kerala Acts have
been enacted by the State Legislatures concerned under
Entry 54 in List II in the 7th Schedule. To put it differently,
two sets of legislations have been enacted with reference c
to entries in different lists in the 7th 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. Therefore, even ifthe observations contained D
in Kesoram Industries case [(2004) I 0 SCC 20 I] are
treated as law declared under Article 141 of the Constitution,
the State legislations cannot be struck down on the ground
thatthe same are in conflict with Central legislations." [para
36] E
26. In a recent judgment, namely, UCO Bank & Anr. V. Dipak
Debbarma & Ors., [Civil Appeal No. 1124 7 of 20 I 6 and Civil Appeal
No. 11250of2016] delivered by this Court on 25'h November, 2016, this
Court has held:
"I 8. The Act of2002 is relatable to the Entry of banking F
which is included in List I of the 7th 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 G
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 Entry 45 of List I, the State
Act, including Section I 87, operated validly. However, the
H
1020 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 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 Act of2002, must give way.
The dominant legislation being the Parliamentary legislation,
the provisions of the TripuraAct of 1960, pro tanto, (Section
B
187) would be invalid. It is the provisions of the Act of
2002, 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 of
c 1960."
27. In this case, a Tripura Land Reform law, which was made
under Entries 18 and 45 of List II, was pitted against SARFAESI which
is made under Entry 45 List I. Despite the fact that the Tripura Act
received the protection of Article 31 Bread with Ninth Schedule, it was
D held that the TripuraAct, Section 187 of which put a legislative embargo
on the sale of mortgaged properties by a bank to any person who is not
a member of Scheduled Tribe, was held to give way to the Parliamentary
enactment SARFAESI made under Entry 45 List I. Though this judgment
does not apply on all fours to the present case, it clearly establishes that
SARFAESI is relatable to Entry 45 List I and that any enactment made
E under the State List would have to give way to SARFAESI by virtue of
the application of Article 246 of the Constitution oflndia.
28. R.C. Cooper v. Union of India, ( 1970) 1 SCC 248, has also
in paragraph 36, stated that the subject matter 'banking' in Entry 45 List
I must be construed so as to comprehend within its scope all matters
F that are incidental to such subject matter. It was held:
"The legislative entry in List I of the 7th 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
G activities which a banker by the custom of bankers or
authority of law engages in, would result in re-writing 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 designation
H indicating the contour of plenary power must receive a - _,_
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1021
[R. F. NARIMAN, J.]

meaning conducive to the widest amplitude, subject A
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
B
and commerce" in List II." [para 36]
29. A judgment of the Privy Council reported in Attorney-General
for Canada v. Attorney-General for the Province of Quebec, 194 7
Appeal Cases 33, 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) c
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 D
Act was beyond the powers of the Quebec legislature as "banking" was
one of the subjects allotted exclusively to the Parliament of Canada.
Lord Porter, in an illuminatingjudgment, posed the question and answered
it th us:-
"Is then, the repayment of deposits to depositors or their E
successors in title under the law as existing a part of the
business of banking or necessarily incidental thereto, or is it
concerned primarily with property and civi I 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 F
defined above is an essential part of the business of
banking."
In this view of the matter, the Privy Council further held:
"In their view, a Provincial legislature enters on the field of
G
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."
H
1022 SUPREME COURT REPORTS [2016] 9 S.C.R.

A (At pages 44 and 46)
30. What is of significance to note is that since List II is not
operative in the State of Jammu & Kashmir, there is no competing Entry
in the said List and this would lead therefore to the conclusion that Entries
45 and 95 of List I must be given a wide meaning. Indeed, in a converse
B situation, this Court, in Union oflndia v. H.S. Dhillon, 1972(2) SCR
33, had this to say:
"It was also said that if this was the intention of the
Constitution makers they need not have formulated List I
at all. This is the point which'was taken by Sardar Hukam
c Singh and others in the debates referred to above and was
answered by Dr. Ambedkar. But apart from what has been
stated by Dr. Ambedkar in his speech extracted above there
is some merit and legal effect in having included specific
items in List I for when there are three lists it is easier to
construe List II in the light of Lists I and II. If there had
D been no List I, many items in List II would perhaps have
been given much wider interpretation than can be given
under the present scheme. Be that as it may, we have the
three lists and a residuary power and therefore it seems to
us that in this context ifa Central Act is challenged as being
E beyond the legislative competence of Parliament, it is enough
to enquire if it is a law with respect to matters or taxes
enumerated in List JI. If it is not, no further question arises."
(At page 67)
31. At this juncture, it is important to advert to State of Jam mu
F & Kashmir v. M.S. Farooqui, (1972) I SCC 872. This judgment dealt
with the interplay between the Jammu & Kashmir Government Servants
Prevention of Corruption (Commission)Act, 1962 as against the All India
Services (Discipline and Appeal) Rules, 1955. In para 7 of the judgment
it was noticed that Parliament could legislate by virtue of Entry 70 List I
on All India Services, and Rules made under Article 309 of the
G Constitution are referable to this Entry. This being the ca,se, the question
that this Court had to answer was as to whether the appellant, who was
a member of the Indian Police Service, which is an All India Service, in
the Jammu & Kashmir cadre, was liable to be governed by the All
India Services Rules or by the Jammu & Kashmir Act. After dealing
H in some detail with judgments of this Court on legislative competence,
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1023
[R. F. NARIMAN, J.]

this Court concluded:- A
"From the perusal of the provisions of the two statutory
laws, namely, the All India Services (Discipline and Appeal)
Rules, I 955, and the Jammu and Kashmir government
servants' Prevention of Corruption (Commission) Act, 1962,
it is impossible to escape from the conclusion that the two B
cannot go together. The impugned Act provides for additional
.punishments not provided in the Discipline and Appeal Rules.
It also provides for suspension and infliction of some
punishments. It seems to us that insofar as the Commission
Act deals with the infliction of disciplinary punishments it is
repugnant to the Discipline and Appeal Rules. Parliament
c
has occupied the field and given clear indication that this
was the onl~nanner in which any disciplinary action should
be taken against the members of the All India Services.
Insofar as the Commission Act deals with a preliminary
enquiry for the purposes of enabling any prosecution to be D
launched it may be within the legislative competence of the
Jammu and Kashmir State and not repugnant to the
provisions of the Discipline and Appeal Rules. But as the
provisions dealing with investigation for possible criminal
prosecution are inextricably intertwined with the provisions
dealing with infliction of disciplinary punishment the whole E
Act must be read down so as to leave the members of the
All India Service outside its purview.
We accordingly hold that the provisions of the Commission
Act do not apply to the members. of the All India Services.
Accordingly we dismiss the appeal. As the respondent was F
not represented there would be no order as to costs. We
thank Mr. G.L. Sanghi for assisting us as amicus curiae."
[paras47 - 48]
32. 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 G
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
securitization 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 H
1024 SUPREME COURT REPORTS [2016] 9 S.C.R.

A of property". In fact, in so far as banks and financial institutions are
concerned, it deals with recovery of debts owing to such banks and
financial institutions and certain measures whi9h 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
8
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
c 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
D
substance, an Act relatable to the subjecl matter "transfer of property".
At this juncture it is necessary to point out that insofar as the State of
Jammu & Kashmir is concerned, Sections 17A and Section 188 of
SARFAESI, which apply to the State of Jam mu & Kashmir, substituted
'District Judge' and the 'High Court' for the 'Debts Recovery Tribunal'
E and the' Appellate Tribunal' respectively. These provisions read as under:-
" Section 17-A. Making of application to Court of
District Judge in certain cases. In the case of a borrower
residing in the State of Jammu and Kashmir, the application
under Section 17 shall be made to the Court of District
F Judge in that State having jurisdiction over the borrower
which shall pass an order on such application.
Explanation.-For the removal of doubts, it is hereby
declared that the communication cf the reasons to the
borrower by the secured creditor for not having accepted
G his representation or objection or the likely action of the
secured creditor at the stage of communication ofreasons
shall not entitle the person (including borrower) to make an
application to the Court of District Judge under this section.
Section 18-B. Appeal to High Court in certain cases.
H
., ETC. 1025
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR.
[R. F. NARIMAN, J.]

Any borrower residing in the State of Jammu and Kashmir A
and aggrieved by any order made by the Court of District
Judge under Section 17-A may prefer an appeal, to the High
Court havingjurisdiction over such Court, within thirty days
from the date of receipt of the order of the Court of District
Judge:
B
Provided that no appeal shall be preferred unless the
borrower has deposited, with the Jammu and Kashmir High
Court, fifty per cent of the amount of the debt due from
him as claimed by the secured creditor or deterrhined by
the C~mrt of District Judge, whichever is less:
c
Provided further that the High Court may, for the reasons
to be recorded in writing, reduce the amount to not less
than twenty-five per cent of the debt referred to in the first
proviso."
33. It would be clear that these provisions are referable to Entry D
45 as being ancillary to banking, and expressly to Entry 95 List I inasmuch
-as the Jurisdiction and power of courts is laid down for the special subject
of recovery of debts due to banks by these provisions.
34. In State of Maharashtra v. Narottamdas Jethabai, (1950)
1 SCR 51, this Court upheld the Bombay City Civil Courts Act, and in so E
doing, referred specifically to the following Entries in the legislative lists
of the Government oflndia Act, 1935.
Entry 53, List I:
"Jurisdiction and powers of all courts except the Federal
Court, with respect to any of the matters in this List ...." F
Entries 1 and 2, List II:
"1 .... the administration of justice; constitution and
organisation of all courts except the Federal Court .... "
"2. Jurisdiction and powers ofall courts except the Federal
Court, with respect to any of the matters in this List .... " G
Entry 15, List III:
"Jurisdi-ction and powers of all courts except the Federal
Court, with respect to any of the matters in this List."
35. Justices Fazal Ali, Mahajan, and Mukherjea held that
H
1026 SUPREME COURT REPORTS [2016] 9 S.C.R.

A 'Administration of Justice' contained in Entry 1 of List 2 of the
Government of India Act, 7'h Schedule, would include jurisdiction and
power of courts generally, but that Entry 53 of List l would refer to
special powers referable to a particular entry in the Union List as opposed
to the general power contained in Entry 1 List 2. It was held, therefore,
that but for an express provision like Entry 53 List l, Parliament may not
B
have been able to confer special jurisdiction on courts in regard to matters
set out in legislative List I. Two learned Judges, namely, Patanjali Sastri
and Das, JJ. also upheld the Bombay Act, but on the basis that the
expression "Administration of Justice" would be cut down by the
expression 'jurisdiction and powerofall courts", and would nottherefore
c include within its ken jurisdiction and power of courts.
36. Similarly in Jamshed N. Guzdar v. State of Maharashtra,
(2005) 2 SCC 591, this Court upheld the constitutional validity of the
Bombay City Civil Court and the Bombay Courts of Small Causes
(Enhancement of Pecuniary Jurisdiction and Amendment) Act, 1986 by
D holding in paragraph 53 as follows:
"Thus, on and after 3-1-1977 the situation appears to be as
under:
(a) Parliament alone has the competence to legislate with
respect to Entry 78 of List I to "constitute and organise"
E the High Court.
(b) Both Parliament and the State Legislature can invest
such a High Court with general jurisdiction by enacting an
appropriate legislation referable to "administration ofjustice"
under Entry 11-A of List m.
F
-(c) Parliament may u1,1der Entry 95 of List I invest the High
Court with jurisdiction and powers with respect to any of
the matters enumerated in List I.
(d) The State Legislature may invest the High Court with
the jurisdiction and powers with respect to any of the matters
G
enumerated in List II.
(e) Both Parliament and the State Legislature may by
appropriate legislation refe:·uoleto Entry 46 of List III invest
the High Court with jurisdiction and pQwers with respect to
any of the matters enumerated in List III." [para 53]
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1027
[R. E NARIMAN, J.]

37. It is thus clear on a reading of these judgments that SARFAESI A
as a whole would be referable to Entries 45 and 95 of List I. We must
remember the admonition given by this Court in A.S. Krishna and others
v. State of Madras, 1957 SCR 399, that it is not correct to first dissect
an Act into various parts and then refer those parts to different Entries
in the legislative Lists. It is dear therefor() that the entire Act, including
B
Sections 17A and I SB, would in pith and substance be referable to Entries
45 and 95 of List I, and that therefore the Act as a whole would
necessarily operate in the State of Jammu & Kashmir.
38. The judgment of the High Court is wholly incorrect in referring
to Entry I IA of the Concurrent List. First and foremost, as has been
noted by us above, the Entry is not extended to the State of Jammu &
c
Kashmir. From this, the counsel for the respondents sought to contend
that Parliament would, therefore, have no power under the Concurrent
List to legislate on the subject matter "Administration of Justice". Under
Section 5 of the Jammu & Kashmir Constitution, we have seen that
"Administration of Justice" would come into play only when Entries 45 D
and 95 of List 1 are not attracted. Even if this were not so, we have seen
in the two judgments cited hereinabove, the expression "administration
of justice" is general and must give way to the special !aws that are
enacted under Entry 95 List I when coupled with another Entry in the
same List- in this case Entry 45 List I. The relevant part of Section 140
of the Jammu & Kashmir Transfer of Property Act, on which great E
reliance has been placed by learned counsel for the respondents,
provides:-·
"140. Exemptions of certain instruments from restriction
irhposed on transfer of immovable property.
F
Nothing contained in Irshad dated 291h Maghar, 1943, or
any law, rule order, notificat_ion, regu)ation, hidyat, ailan,
circular, robkar, yadasht, irshad, State Council resolution or
any other instrument having the force oflaw prohibiting or
restricting the transfer of immovable property in favour of
a person who is not a permanent residenf6fthe State shall G
apply to-
(h) a simple mortgage of immovable property executed or
created in favour of a public financial institution, 1 as
specified in section 4-A of the Companies Act, 1956, a
H
1028 . SUPREME COURT REPORTS [2016) 9 S.C.R.

A Scheduled bank for the time being included in the Second
Schedule to the Reserve Bank of India Act, 1934 and the
Trustees for the holders of debentures to secure the Joans,
guarantees, issue of debentures or other form of financial
assistance provided for d<:velopmental projects in the State ~
of Jammu and Kashmir Like Baghliar Project of Jammu
B
and Kashmir State Power Development Corporation
Limited. Provided that in any suit based on such mortgage,
the mortgaged property shall be sold or transferred only to
a permanent resident of the State or any financial institution
or corporation managed and owned by the Government of
c India;
39. At this juncture, it is necessary to refer to Rule 8(5) proviso of
the Security Interest (Enfor,cement) Rules, 2002, which states as follows:-
" Provided that in case of sale of immovable property in the
State of Jam mu and Kashmir, the provisions of Jammu and
D Kashmir Transfer of Property Act, 1977 shall apply to the
person who acquires such property in the State."
40. This Rule makes it amply clear that Section 140 of the Transfer
of Property Act of Jammu & Kashmir will be respected in auction sales
that take place within the State. This being the case, it is clear that there
E is no collision or repugnancy with any of the provisions of SARFAESI,
and therefore it is clear thatthe High Court is absolutely wrong in finding
that as Section 140 of the Transfer of Property Act will be infracted,
SARFAESI cannot be held to apply to the State of Jammu & Kashmir.
Rule 8 has been noticed but brushed aside by the aforesaid judgment.
F The High court judgment begins from the wrong end and therefore reaches
the wrong conclusion. It states that in terms of Section 5 of the
5
Constitution of Jammu & Kashmfr, the State has absolute sovereign
power to legislate in respect oflaws touching the rights of its permanent
residents qua their immovable properties. The State legislature having
enacted Section 140 of the Jammu & Kashmir Transfer of Property
G Act, therefore, having clearly stated that the State's subjects/citizens
are by virtue of the said provision protected, SARFAESI cannot intrude
and disturb such protection. The whole approach is erroneous. As has
been stated hereinabove, Entries 45 and 95 of List I clothe Parliament
with exclusive power to make Jaws with respect to banking, and the
H entirety ofSARFAESI can be said to be referable to Entry 45 and 95 of
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1029
[R. F. NARIMAN, J.]

' '
List I, 7'h Schedule to the Constitution of India. This being the case, A
Section 5 of the Jammu &Kashmir Constitution will only operate in
areas in which Parliament has no power to make laws for the State
Thus, it is clear that anything that comes in the way of SARFAESI by
way of a Jammu & Kashmir law must necessarily give way to the said
law by virtue of Article 246 of the Constitutiorr-0f India as extended to
B
the State of Jammu & Kashmir, read with Section 5 of the Constitution
ofJammu & Kashmir. This beingthe case, it is clear that Sections 13(1)
and (4) cannot be held to be beyond the legislative competence of
Parliament as has wrongly been held by the High Court.
41. It is rather disturbing to note that various parts of the judgment
speak of the absolute sovereign power of the State of Jammu & Kashmir.
c
It is necessary to reiterate that Section 3 of the Constitution of Jammu
& Kashmir, which was framed by a Constituent Assembly elected on
the basis of universal adult franchise, makes a ringing declaration that
the State of Jammu & Kashmir is and shall be an integral part of the
Union of India. And this provision is beyond the pale of amendment. D
Section 14 7 of the Jammu & Kashmir Constitution states:-
"147. Amendment of the Constitution. -An amendment
of this Constitution may be initiated only by the introduction
of a Bill for the purpose .in the' Legislative Assembly and
when the Bill is passed in each House by a majority ofnot E
less than two-thirds of the total membership of the House,
it shall be pre~ented to the Sadar-i-Riyasat for his assent
and, upon such assent being given to the Bill, the Constitution
shall stand amended in accordance with the terms of the
Bill:
F
Provided that a Bill providing for the abolition of the
Legislative Council may be introduced in the Legislative·
Assembly and passed by it majority of the total membership
of the Assembly and by a majority of not less than two-
thirds of the members of the Assembly present and voting:
G
Provided further that no Bill or amendment seeking to make
any change in:
(a) this section;
(b) the provisions of the sections 3 and 5; or
H
1030 SUPREME COURT REPORTS [2016] 9 S.C.R.

A (c) the provisions of the Constitution oflndia as applicable
in relation to the State;
shall be introduced or moved in either House of the
Legislature."
. 42. It is also significant in this context to refer to the Preamble to
B the Constitution of Jammu & Kashmir, 1957 and compare it to that of
the Constitution oflndia, 1950.
The Preamble of the Constitution of Jammu and Kashmir reads
as follows:

c "WE, THE PEOPLE OF THE STATE OF JAMMU AND
KASHMIR, having solemnly resolved, in pu.rsuance of the
. accession of this State to India which took place on the
twenty-sixth day of Octob'er, 194 7, to further define the
existing relationship of the State with the Union oflndia as
an integral part thereof, and to secure to ourselves-
D
JUSTICE, social, economic•and political;
LIBERTY qfthought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote
among us all;
E
FRATERNITY assuring dignity of the individual and the
unity of the nation;
IN OUR CONSTITUENT ASSEMBLY this seventeenth
day of November, 1956, do HEREBY ADOPT, ENACT
AND GIVE TO OURSELVES THIS CONSTITUTION."
F
Ii is to be noted that the opening paragraph·ofthe Constitution of
India, namely "WE THE PEOPLE OF INDIA, having solemnly resolved
to constitute India into a SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC and to secure to all its citizens ... " has
been wholly omitted in the Constitution of Jammu & Kashmir. There is
G no reference to sovereignty. Neither is there any use of the expression
"citizen" while referring to its people. The people of Jammu & Kashmir
for whom special rights are provided in the Constitution are referred to
as "permanent residents" under Part III of the Constitution of Jammu &
Kashmir. Above all, the Constitution of Jammu & Kashmir has been
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. I 031
[R. F. NARIMAN, J.]

made to further define the existing relationship of the State with the A
Union ofindia as an integral part thereof.
43. It is thus clear that the State of Jammu & Kashmir has no
vestige of sovereignty outside the Constitution of India and its own
Constitution, which is subordinate to the Constitution of India. It is
therefore wholly incorrect to describe it as being sovereign in the sense B
of its residents constituting a separate and distinct class in themselves.
The residents of Jammu & Kashmir, we need to remind the High
Court, are first and foremost citizens oflndia. Indeed, this is recognized
by Section 6 of the Jammu & Kashmir Constitution which st_ates:
"6. Permanent residents:-(!) Every person who is, or is C
deemed to be, a citizen oflndia under the provis'ions of the
Constitution ofindia shall be a permanent resident of the
State, if on the fourteenth day of May, 1954-
(a) he was a State Subject of Class I or of Class II ; or
(b) having lawfully acquired immovable property in the State, D
he has been ordinarily resident in the State for not less than
ten years prior to that date.
(2) Any person who, before the fourteenth day of May,
1954, was a State Subject of Class I or of Class II and who
having migrated after the first day of.March, 194 7, to the E
territory now included in Pakistan, returns to the State under
a permit for resettlement in the State or for pe~anent return'
issued by or under the. authority of any law made by the
State Legislature shall on such return be a permanent
resident of the State.
F
(3) In this section, the expression "State _Subject of Class I
or of Class II" shall have the same meaning as in State
Notification No. l-L/84 dated the twentieth April, 1927, read
with State Notification No. 13/L dated the twenty 7th June,
1932."
G
They a~e governed first by the Constitution of India and also by
the Constitution of Jammu & Kashmir. This is made clear by Section 10
of the Jammu & Kashmir Constitution which states:
"10. Rights of the permanent residents:- The permanent,
H
1032 SUPREME COURT REPORTS [2016] 9 S.C.R.

A residents of the State shall have all the rights guaranteed to
them under the Constitution of India."
We have been constrained to observe this because in at least
three places the High Court has gone out of its way to refer to a
sovereignty which does not exist. ·
B 44. Again it is wholly incorrect to refer to Entry l l A of List 3 and
to state that since it is not extended to the State of Jammu & Kashmir,
Parliament would have no legislative competence to enact Sections 17 A
and 188 ofSARI'AESI. There are at least three errors in this conclusion.
First and foremost, it is not possible to dissect the previsions ofSARFAESI
c and attach them to different Entries under different Lists. As has been
held by us, the whole of SARFAESI is referable to Entry 45 and 95 of
List I. Secondly, what has been missed by the impugned judgment is
that Entry 95 List I is a source of legislative power for Parliament for
conferring power and jurisdiction on the District Court and the High
Court respectively in respect of matters contained in SARFAESI. And
D third, the subject "Administration of Justice" is only general and can be
referred to only if Entry 95 List I read with Entry 45 List I are not
attracted. We are afraid that despite the judgment in Narottamdas
Jcthabai and Jamshed Guzdar's case (supra), the High Court. even
though it refers to Narottamdas Jethabai, has completely missed this
E crucial aspect. :v!ost importantly, even if it is found that Section 140 of
the Jammu & Kashmir Transfer of Property Act entitles only certain
persons 10 purchase prope1ties in the State of Jammu & Kashmir, yet,
as has been held hereinabove, Rule 8(5) proviso which recognizes this
provision, has been brushed aside. In any case an attempt has first to be
made to harmonise Section 140 of the Jammu & Kashmir Transfer of
F Property Act with SARFAESJ, and if such harmonization is impossible,
it is clear that by virtue ofArticle 246 read with Section 5 of the Jammu
& Kashmir Constitution, Section 140 of the Jammu & Kashmir Transfer
of Property Act has to give way to SARFAESI, and not the other way
around.
G 45. Reliance has also been placed on Article 35A ofthe Constitution
as it applies to the State of Jammu & Kashmir. The said Article reads
as follows:
"'35A. Saving of laws with respect to permanent residenrs
"and /heir rights- Notwithstanding anything contained in
H
STATE BANK OF INDIA v. SANTOSH GUPTA AND ANR. ETC. 1033
[R. F. NARIMAN, J.]

this· Constitution, no existing law in force in the State of A
Jammu and Kashmir, and no law hereafter enacted by the
Legislature of the State,-
( a) Defining the classes of persons who are, or shall be, permanent
residents of the State of Jammu and Kashmir; or
(b) Conferring on such permanent residents any special rights B
and privileges or imposing upon other persons any restrictions as
respects-
(i) employment under the State Government;
(ii) acquisition of immovable property in the State; c
(iii) settlement in the State; or
(iv) right to scholarships and such other forms of aid as the
State Government may provide,
Shall be void on the ground that it is inconsistent with or
D
takes away or abridges any rights conferred on the other
citizens oflndia by any provision of this Part."
46. We fail to understand how Article 35Acarries the matter any
further. This Article only states that the conferring on permanent
residents of Jammu & Kashmir special rights and privileges regarding
E
the acquisition of immovable property in the State cannot be challenged
on the ground that it is inconsistent with the fundamental rights chapter
of the Iridian Constitution. The conferring of such rights and privileges
as mentioned in Section 140 of the Jaminu & Kashmir Transfer of
Property Act is not the subject matter of challenge on the ground that it
violates any fundamental right of the Constitution ofindia. Furthermore, F
in view of Rule 8(5) proviso, such rights are expressly preserved.
4 7. We find that the High Court judgment ultimately states:
"It is held thatthe Union Parliament does not have legislative ·
competence to make laws contained in section 13, section
r7(A), section 18(8) section 34, 35 and section 36, so far· G
as they relate to the State of J&K;
It is further held that in view of the aforesaid declaration,
the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 cannot be
H
1034 SUPREME COURT REPORTS (2016] 9 S.C.R.

A enforced in the State of J&K;
It is further held that the provisions of the Securitisation
and Reconstruction of Financial Assets and Enforcement
of Security Interest Act, 2002 can be availed of by the banks,
which originate from the State of J&K for securing the
B monies which are due to them and which have been
advanced to the borrowers, who are not State subjects and
residents of the State of J&K and who are non State
subjects/ non citizens of the State of J&K and residents of
any other State oflndia excepting the State of J&K."
C Having held that the provisions ofSARFAESI cannot be applied
to the State of Jammu & Kashmir, it is a contradiction in terms to state
that SARFAESI can be availed of by banks which originate from the
State of Jammu & Kashmir for securing monies which are due to them
and which have been advanced to borrowers who are not the residents
of the State of Jammu & Kashmir.
D
48. We therefore set aside the judgment of the High Court. As a
result, notices issued by banks in terrns of Section 13 and other coercive
methods taken under the said Section are valid and can be proceeded
with further. The appeals are accordingly allowed with no order as to
costs.
E

Kalpana K. Tripathy Appeals allO\\·ed.