Saranga Krishna Murthy Vs. Govt. of A.P., G.A.D. and anr. - Court Judgment

Excerpt:

.....of the definitions aforesaid. sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] declaration of notified area held, it is only under section 3 that government are required to publish draft notification inviting objections and section 3(3) mandates to consider objections and suggestions before issuing declaration order. it is very conspicuous that section 4 does not contemplate any draft notification inviting objections and suggestions before either constituting market committee, establishing notified market area or declaring notified market area for the purpose of levy of market fees. thus, except ordaining government to issue preliminary/draft notification inviting objections at the time of issuing declaration order under section 3(3) of the act nowhere much less under section 4 contemplates issuing a notification inviting objections. when the legislature has chosen to exclude principles of natural justice, the court cannot introduce rule of audi alteram partem and render statutory provisions unworkable. in such a case, maxim, expressum facit cessare tacitum (when there is express mention of certain things, then anything not mentioned is excluded) would apply...........to decide.'10. pursuant to the said observations of the supreme court, the government of andhra pradesh issuedg.o.ms.no. 636, dt.29-12-83 exempting new buildings from the provisions of the act for a period of ten years from the date of construction. the only infirmity, if at all, in the impugned g.o. is mat no limit on the period of exemption is placed. as the period of ten years fixed in g.o.ms.no. 636 dt.29-12-83 is valid, the limit of the period of ten years can be read into the impugned g.o. by reading both the impugned g.o. as well as g.o.ms.no. 636 dt.29-12-1983 together. it has, therefore, to be held that the exemption granted under the impugned g.o. is valid, only for a period of ten years from the date of g.o. i.e., 16-2-1983.11. in the result, the writ petition is accordingly allowed to the extent indicated above, holding that the g.o.ms.no. 100, general administration (accommadation-c) department, dt. 16-2-1983 is valid for a period of ten years from 16-2-83. no o0rder as to costs.

Judgment:

ORDER

Eswara Prasad, J.

1. The petitioner is a tenant of the 2nd respondent in a shop bearing No. 15-6-220, Begum Bazar, Hyderabad, on a monthly rent of Rs. 330/-, as per the lease deed dated 1-12-80. Even prior to the lease deed, the petitioner was a tenant. The 2nd respondent evaded to receive rents and the petitioner filed RP No. 107/83 before the Principal Rent Controller, Hyderabad, for permission to deposit rents. The 2nd respondent contested the petition stating that the building in which the shop is under, the occupation of the petitioner, is exempted from the purview of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, (in short the Act) as per the exemption granted by the first respondent in G.O.Ms.No. 100, General Administration Department (C)dt.l6-2-1983. Consequently, the petition was dismissed by the Rent Controller and the appeal filed by the petitioner in RA No. 216/84 before the Chief Judge, City Small Causes Court, Hyderabad, was dismissed on 8-3-1988.

2. The petitioner questions G.O.Ms.No. 100 dt.16-2-83 on the ground that the petitioner was not given an opportunity before granting exemption to the building. The Government Order is also impugned on the ground that it is arbitrary and violative of Article 14 of the Constitution of India.

3. In the counter-affidavit filed on behalf of the first respondent, it is stated that there are 15 tenants in the building in question and 13 of them of had no objection for the grant of exemption. The petitioner refused to receive the notice and therefore, the process Server affixed the notice on the shutter of the petitioner's shop and the petitioner was duly served. The building in question was very old and dilapidated and the 2nd respondent incurred an expenditure of Rs. 1,75,750/- towards renovation and spent a further amount of Rs. 40,000/- for reconstruction of the building. The concerned officer inspected the building and found that the renovation and reconstruction had been carried out by the landlord, and found the building became a new building. The grant of exemption was justified under such circumstances.

4. Sri P. Ramachandra Reddy, learned Counsel for the petitioner firstly contended that the Government was bound to give notice to the petitioner before granting exemption to the building from operation of the provisions of the aforesaid Act and placed reliance on AN. Dyes Corporation v. State, : AIR1981AP386 . In the counter it is stated that the petitioner refused to receive the notice and the process Server had to serve the notice by affixture. A perusal of the records shows that the statement in the counter is correct. Service by affixture is one of the recognised modes of service, as per Rule 22(4) of the Rules framed under the Act, when the notice was refused. It has therefore to be held that the petitioner is deemed to have been served with notice.

5. The next contention of the learned counsel for the petitioner is that in view of the Supreme Court,holding clause (b) of Section 32 of the Act as violative of Article 14 of the Constitution of India in Motor General Traders v. State of A.P., AIR 1984 SC 121 the grant of exemption is illegal. Sri Subrahmanya Reddy, appearing for the 2nd respondent contended that the question whether new legislation should be initiated to exempt newly constructed buildings for a limited period of time on the pattern of similar legislation undertaken by different States or to exempt such class of buildings for a given number of years from the provisions of the Act by issue of notification under Section 26 of the Act, is one for the State Government to decide; and accordingly, the State Government issued G.O.Ms.No. 636, dt.29-12-83. exempting new buildings for a period of ten years from the date of construction. The learned counsel therefore submits that the impugned CO., should be read along with G.O.Ms. No. 636 dt.29-12-83 and should be held valid for a period of ten years from the date of issuance of impugned G.O.

6. Though clause (b) of Section 32 of the Act was held violative of Article 14 of the Constitution, the power Under Section 26 of the Act to grant exemptions for any building or class of buildings from all or any of the provisions of the Act remained with the Government. It is open to the Government to exempt any building or class of buildings from the provisions of the Act. The impugned G.O. exempted the building in question from the provisions of the Act, on the ground that the building could be treated as a new building. A reading of the counter and the impugned G.O. show that the 2nd respondent spent an amount of Rs. 2,15,150/- for reconstruction and repairs of the building, which was in a dilapidated condition. The building was purchased for Rs. 10,000/- during the year 1940. The Government was not in error in considering the building as a new building and in granting exemption, after the Government was satisfied that exemption should be granted.

7. The only question, which remains to be considered is, whether the exemption granted under the impugned G.O. offends Article 14 of the Constitution.

8. In Mohinder Kumar v. State of Haryana, : [1986]1SCR74 it was held mat exemption of houses for ten years from the provisions of the Act is not arbitrary and not violative of Article 14 of the Constitution and the classification, on basis of construction of houses before and after commencement of the Act, who fair and reasonable.

9. In Motor General Traders v. State of A.P. (supra), the Supreme Court hold 'that the question whether any new legislation should be initiated to exempt newly constructed buildings for a limited period of time on the pattern of similar legislation undertaken by different States or to exempt such class of buildings for a given number of years from the provisions of the Act by the issue of a notification under Section 26 of the Act, is one for the State Government to decide.'

10. Pursuant to the said observations of the Supreme Court, the Government of Andhra Pradesh issuedG.O.Ms.No. 636, dt.29-12-83 exempting new buildings from the provisions of the Act for a period of ten years from the date of construction. The only infirmity, if at all, in the impugned G.O. is mat no limit on the period of exemption is placed. As the period of ten years fixed in G.O.Ms.No. 636 dt.29-12-83 is valid, the limit of the period of ten years can be read into the impugned G.O. by reading both the impugned G.O. as well as G.O.Ms.No. 636 dt.29-12-1983 together. It has, therefore, to be held that the exemption granted under the impugned G.O. is valid, only for a period of ten years from the date of G.O. i.e., 16-2-1983.

11. In the result, the writ petition is accordingly allowed to the extent indicated above, holding that the G.O.Ms.No. 100, General Administration (Accommadation-C) Department, dt. 16-2-1983 is valid for a period of ten years from 16-2-83. No o0rder as to costs.