B. Mohanlal Naik (Dr.) Vs. District Consumer Forum Constituted Under Consumer Protection Act, 1986 Rep. by Its Presiding Officer and ors. - Court Judgment

Excerpt:
- 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. orderv. eswaraiah, j.1. the writ petition is filed seeking to issue a writ of mandamus, declaring the entertainment of cd. 140/2008 by the 1st respondent-district consumer forum, mahaboobnagar, as illegal and without jurisdiction.2. sri p. veera reddy, learned counsel, appearing for the petitioner, submits that the petitioner is a doctor, practising at kurnool and he has treated the 2nd respondent at kurnool hospital, and even if there is any deficiency of service, no part of cause of action arose at mahabubnagar, as admittedly, the 2nd respondent who is a complainant before the district consumer forum was treated at kurnool and thereafter, he was treated at hyderabad, therefore, it cannot be said that the district consumer forum at mahaboobnagar has territorial jurisdiction to entertain the complaint under section 12 of the consumer protection act.3. a perusal of the complaint goes to show that the complainant issued a legal notice dated 26.04.2008, calling upon the petitioner herein and other doctor to pay a sum of rs. 9 lakhs towards loss and damage sustained by him by reason of deficiency of service and the said notice was received by the petitioner herein and another and replies were also sent and the said replies were received at nagarkurnool of mahaboobnagar district on 09.05.2008 and 05.06.2008 and thus, cause of action arose within the jurisdiction of the district consumer forum of mahaboobnagar.4. under section 11(2)(c) of the consumer protection act, 1986, the district consumer forum will have jurisdiction to entertain the complaint even if part of cause of action arises within its jurisdiction. the fact that the legal notice was emanated within the jurisdiction of the district consumer forum, mahaboobnagar and replies sent by the petitioner and another were also received by the complainant within the territorial jurisdiction of the mahaboobnagar, and therefore, it cannot be said that the district consumer forum at mahaboobnagar has no territorial jurisdiction to entertain the consumer dispute. i do not see any merits in the writ petition.5. the writ petition is, accordingly, dismissed. no order as to costs.

Judgment:
ORDER

V. Eswaraiah, J.

1. The writ petition is filed seeking to issue a Writ of Mandamus, declaring the entertainment of CD. 140/2008 by the 1st respondent-District Consumer Forum, Mahaboobnagar, as illegal and without jurisdiction.

2. Sri P. Veera Reddy, learned Counsel, appearing for the petitioner, submits that the petitioner is a Doctor, practising at Kurnool and he has treated the 2nd respondent at Kurnool Hospital, and even if there is any deficiency of service, no part of cause of action arose at Mahabubnagar, as admittedly, the 2nd respondent who is a complainant before the District Consumer Forum was treated at Kurnool and thereafter, he was treated at Hyderabad, therefore, it cannot be said that the District Consumer Forum at Mahaboobnagar has territorial jurisdiction to entertain the complaint under Section 12 of the Consumer Protection Act.

3. A perusal of the complaint goes to show that the complainant issued a legal notice dated 26.04.2008, calling upon the petitioner herein and other Doctor to pay a sum of Rs. 9 lakhs towards loss and damage sustained by him by reason of deficiency of service and the said notice was received by the petitioner herein and another and replies were also sent and the said replies were received at Nagarkurnool of Mahaboobnagar District on 09.05.2008 and 05.06.2008 and thus, cause of action arose within the jurisdiction of the District Consumer Forum of Mahaboobnagar.

4. Under Section 11(2)(c) of the Consumer Protection Act, 1986, the District Consumer Forum will have jurisdiction to entertain the complaint even if part of cause of action arises within its jurisdiction. The fact that the legal notice was emanated within the jurisdiction of the District Consumer Forum, Mahaboobnagar and replies sent by the petitioner and another were also received by the complainant within the territorial jurisdiction of the Mahaboobnagar, and therefore, it cannot be said that the District Consumer Forum at Mahaboobnagar has no territorial jurisdiction to entertain the Consumer Dispute. I do not see any merits in the writ petition.

5. The Writ Petition is, accordingly, dismissed. No order as to costs.