Bonam Krishnamurthy and anr. Vs. Mirza Nallaparaju Venkata Prabhakara Rama Bhadra Raju and ors. - Court Judgment

Excerpt:
trust and societies - public trust - section 110 of andhra pradesh charitable and hindu religious institutions and endowments act, 1966, section 92 of code of civil procedure, 1908, section 97 of civil procedure (amendment) act, 1976 and article 254 of constitution of india - suit filed for declaration that certain choultry was public trust with prayer to grant leave under section 92 to file suit - application barred under section 110 - section 92 cannot be invoked - application and suit dismissed. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter. scientifically or common sense point of view, even though ghee is not directly obtained from milk (which is certainly a product of cow/buffalo), it is certainly a product of a product of livestock i.e., cow or buffalo. it would be rather illogical or irrational to say that ghee is not a milk/dairy product or to say that it is not a product of livestock. section 2(x) and 2(iv) of the act used the plural products of livestock. the legislative intention is very clear that not only a product of livestock like milk (when notified by government), butter etc., are products of livestock but even derivative items (derived from a product of livestock) are intended to be product of livestock for the purpose of the act. thus the term ghee is to be interpreted on the basis of expression products of livestock as defined in section 2(xv) of the act. whatever products are declared as such by the government by notification, they become products of livestock for purpose of the act. consequently it was held that ghee is the product of livestock and by reason of power conferred under section 3(1) read with section 3(3) of the act on them it is competent for the government to declare ghee as product of livestock for the purpose of regulating its purchase and sale, in any notified market area. [per p.s. narayana, j,(dissenting)]if livestock or agricultural produce and the categories thereof had been specified in the statute itself by appending in the schedule or otherwise, that would stand on a different footing from the present provisions of the act which contemplate the issuance of notifications in accordance with the procedure ordained by the provisions specified supra. in view of the clear definition of the livestock and products of livestock, the ghee being derivative of butter or cream, if the language employed in definition to be taken as they stand, the only conclusion would be is that the ghee would not fall within ambit 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. section 7: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] levy of market fee element of quid pro quo - held, levying fees and tax are two forms of exercise of sttaes taxing power. there is no quid pro quo between tax payer and public authority as tax is a part of common burden. it is also well settled that fee is charge for special service or a benefit given to a class of individual fee payers and fee collected need not have correlation with actual service in exactitude but if it is shown that substantial portion of the fee is expended or the purpose for which it is levied, it would be justified. expressum facit cessare tacitum sections 4 & 3: [v.v.s. rao, n.v. ramana & p.s. narayana, jj] meaning when there is express mention of certain things, then anything not mentioned is excluded. - charitable and hindu religious institutions and endowments act and hence dismissed the application as well as the suit. the endowments act being a special enactment clearly fretted out the coverage of .section 92 c. 21) :the incorporation effectively operates as bodily lifting of provision of one enactment and making it as integral part of another statute and the consequence of such incorporation is that the provision in another statute becomes a part of the present statute and in view of the same this statute along with its added provision will become a self-contained statute without being affected or percolated by any amendments in the other statute from which this provision is borrowed.rama rao, j. 1. the plaintiffs are appellants. this appeal arises out of the order declining to grant leave to the plaintiffs to file the suit for the relief stated in the plaint under section 92 c. p. c. and the consequential dismissal of the suit. the suit is filed for a declaration that the choultry standing in r. s. no. 244/5 in about 0.20 cents at siddhantham is a public trust and to settle a scheme for its administration after evicting the defendants 1 to 3 from the suit property. the case of the plaintiffs is that venkata suryanarayana srihariraju, the father of defendants 1 and 2 and the husband of the 3rd defendant settled the land in favour of his mother subhadramma on 10-5-1929 with a view to have a choultry constructed at sidhantham. the husband of the 4th defendant is said to have collected funds and constructed the choultry in 1947 and was managing the same. about six years ago the defendants appear to have trespassed on the premises under the pretext of getting it repaired. but the son of the 4th defendant filed an application before asst. commissioner. hr. & c. e. department to take over records from the 4ht defendant to manage the choultry. the suit is filed for the relief with a prayer to grant leave under section 92 c. p. c. for petitioners to file the suit. the defendants 1 to 3 denied that it is a public charitable trust created for public purpose. under the terms of the settlement deed dated 10-5-1929 defendants 1 to 3 are entitled for possession and management of the suit property. it is also stated that the court has no jurisdiction to entertain the suit and also application as sections 92 and 93 c. p. c. are repealed by section 110 of the a. p. charitable and endowments act, 1966. the application for granting leave under section 92 c. p. c. was heard and the court below held that the petitioners plaintiffs cannot invoke section 92 c. p. c. when this application is barred under section 110 of a. p. charitable and hindu religious institutions and endowments act and hence dismissed the application as well as the suit. 2. the learned counsel for the appellant contended that the bar to applicability of section 92 c. p. c. under section 110 of h. r. & c. e. act is with respect to unamended provision only and in the absence of provision in the endowments act precluding the applicability of the amended section 92 c. p. c. section 110 of the endowments act, being inconsistent with the amended section 92 c. p. c. stands repealed as provided under section 97 of c. p. c. amendment act 1976 and in view of such repugnancy, the central act namely the amended section 92 c. p. c. prevails in consonance with art. 254 of the constitution. to get at the involved issues projected, it is necessary to have a glimpse of the relevant provisions touching the same. section 110 of the andhra pradesh charitable and hindu religious institutions and endowments act (17 of 1967) is as follows; '110. the enactments mentioned below shall cease to apply to charitable institutions and hindu religious institutions and the endowments thereof to which this act applies; and section 8 of the andhra pradesh general clauses act, 1981, shall apply upon such cesser as if those enactments had been repealed by an andhra pradesh act: a) the andhra pradesh (andhra area) endowments and escheats regulation, 1817; b) the religious endowments act, 1863; c) the charitable endowments act, 1890; d) the charitable and religious trusts act, 1920 and e) sections 92 and 93 of the code of civil procedure, 1908'. section 92(i) c. p. c. before amendment to the extent relevant is as follows: '92(1) in the case of any alleged breach of any express or constructive trust created for public purpose of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the advocate general, or two or more persons having an interest in the trust and having obtained the consent in writing of the advocate general may institute a suit;section 92(1) c. p. c. after amendment substituted 'leave of court' in the place of consent in writing of the 'advocate general'. section 97 of the c. p. c. amendment act of 1976 is as follows : '97. repeal and savings.- (1) any amendment made or any provision inserted in the principal act by a state legislature before the commencement of this act shall except in so far as such amendment or provision is inconsistent with the provisions of the principal act as amended by this act stand repealed.'section 92 c. p. c. anterior to amendment provides that the clearance of the advocate general is imperative to file a suit concerning the reliefs enumerated therein. section 92 c. p. c. is amended by act of 1976 wherein the sanction of advocate general for filing the suit is substituted by leave of the court. . section 92 of the c. p. c. amendment act, 1970 envisages that any amendment or provision at the instance of the state legislature or the high court to the exstent it is inconsistent with the amended provisions of c. p. c. withers away. the learned counsel stressed that, in the absence of section 110 interdicting the applicabiilty of amended . section 92 c. p. c., section 110 providing for prohibition of the applicability of the bygone . section 92 c. p. c. only is inconsistent with new provisions under c. p. c. and as such stands repealed. the fallacy in this contention is transparent for more than one reason, . section 97 c. p. c. should be read down as pertaining to the amendments to c. p. c. made byt eh state legislature or the high court so as to be conducive to local situations and exigencies. the amendments visualised are in the nature of modulating certain angularities or pruning edges or insertion of a suitable provision without doing violence to the substratum and without bordering on the fringe of the ouster of applicability. the amendments contemplated thereunder are not susceptible to be stretched to preclusion or untouchability of any of the provisions of c. p. c. the endowments act being a special enactment clearly fretted out the coverage of . section 92 c. p. c. this aspect can be considered from another perspective. section 110 is concerned with the non-applicability of . section 92 c. p. c. as such, and, s. 92 takes in its fold the contents at the time when section 110 of the h. r. & c. e. act was enacted and also the variations of amendments subsequent thereto provided the mould continues to be the same. the non-applicability is brought by merely reference to . section 92 c. p. c. the distinction between reference and incorporation of provision of another statute is highlighted by a division bench of this court consisting of ramanujulu naidu, j. and rama rao, j. in an unreported decision in cma. 613 of 1980 dt. 8-4-1983 (since reported in : air1984ap14 ) in the context of considering applicability of the provisions of the new limitation act notwithstanding the mention of applicability of the provisions of limitation act, 1908 in section 37 of the arbitration act. one of us (rama rao, j.) speaking for the court observed as follows (at p. 21) : 'the incorporation effectively operates as bodily lifting of provision of one enactment and making it as integral part of another statute and the consequence of such incorporation is that the provision in another statute becomes a part of the present statute and in view of the same this statute along with its added provision will become a self-contained statute without being affected or percolated by any amendments in the other statute from which this provision is borrowed. but in a case of a reference to provision or enactment the subsequent amendment or substitution by way of repeal or otherwise must be implied to have been the part of the present statute as the reference refers to only the provision as such and implies the applicability of the provision as amended from time to time. but in the case of incorporation the provision itself is taken out and merged in the provisions of the statute and unless there is an amendment in this statute there will not be any impact of an amendment or otherwise made in the other statute as there is no continuing link between the two statutes. section 8 of the general clauses act provides that in the event of reference to any other enactment or provisions it must be construed that the re-enactment provisions pursuant to repeal or otherwise will apply unless different intention can be spelt out from the provisions of the statute. bearing in mind these cardinal principle it has to be considered whether section 37 of the arbitration act makes a reference to the provisions of limitation act or the entirety of the provisions of the limitation act are incorporated in the statute. it is apparent from the perusal of sec. 37 of the arbitration act that a reference to the provisions of the limitation act, 1908 has been made and it cannot be interpreted that the provisions of limitation act have been incorporated or merged into the provisions of the statute. therefore, when section 37 of the arbitration act has made a reference to the provisions of the limitation act, 1908 and when 1908 act has been substituted by 1963 act by repeal the new provisions of 1963 act are applicable.'3. the contention founded upon the repugnancy and consequent invocation of art. 254 of the constitution is devoid of substance. the foregoing discussion cleared the clouds sought to be cast on the subsistence and validity of section 110 of the h. r. & c. e. act leading to the conclusion that there is no repugnancy. the decision of the supreme court in state of orissa v. m. a. tulloch & company, : [1964]4scr461 is concerned with the collision of the provisions of orissa mining areas development fund act with orissa mines and minerals act, 1957. the supreme court held that a state act is superseded in view of art. 254 of the constitution. in uligappa v. mohan rao, (1971) 2 andh wr 298 this court was seized of the issue whether a. p. buildings (lease, rent and eviction) control act prevails over chapter v of the transfer of property act. it was held that in view of the assent of the president with regard to the subject in the concurrent list the state law prevails over the central law on the same subject. both these decisions are far removed from the facts and issues in this case. 4. in the result, the judgment and decree of the court below is confirmed. appeal dismissed. no costs. 5. appeal dismissed.