Eashwar Vs. B. Sudershan and anr. - Court Judgment

Excerpt:
tenancy - alteration - sections 2 and 10 of andhra pradesh buildings (lease, rent and eviction control) act, 1960 and section 108 of transfer of property, 1882 - appellant was tenant of respondent - order of permanent injunction restraining appellant from making any construction or repair work passed - appeal preferred against such order - landlord claimed that whole of building had fallen which was reconstructed by tenant - appellant contended that only a part of building was fallen due to natural calamities - appellant further contended that only a part of roof collapsed and he resorted to position to which structure was standing there was no alteration made by appellant - appellant can be deprived of tenancy only under section 10 - putting up of roofing and door as found by courts below does not amount to transgression of any provision of law - held, appellant entitled to continue as tenant. - 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. 1. the defendant is the appellant. the respondents filed the suit for permanent injunction restraining the appellant from making any construction or repairs or any superstructure to the premises bearing no. 4-1-156 situated at subhash road, secunderabad, and also for mandatory injunction directing the defendant to dismantle and remove the construction already made by him on the premises. the trial court decreed the suit and the appellate court confirmed the same. thus the second appeal. 2. the admitted facts are that the premises bearing no. 4-1-156 situated at subhash road secunderabad was let out to the appellant and he has been continuing in possession and enjoyment thereof. on november 5, 1975, the roof portion had fallen down and as a consequence the walls also got damaged and door also has fallen. the appellant has put up the door that was fallen down and he also restored the roof to its original position. 3. the case of the respondents is that the appellant did these things without obtaining their prior permission. therefore, it is unauthorised and unwarranted. according to the respondents, the entire building has been collapsed and the appellant re-constructed the house without their permission which is illegal and unauthorised. therefore, mandatory and perpetual injunctions for the reliefs referred to above can be granted. that was accepted by the courts below. 4. in this appeal, sri krishnamurthy learned counsel for the appellant contends that the approach of the courts below is illegal and requires interference in this appeal. according to him, the ist plaintiff as p.w. 1 admitted in the cross-examination that there is still some roof which has not fallen down. the photographs exs. a-1 and a-2 show the existence of the condition of the building prior to the filing of the suit and that shows that a part of the roof was existing and the walls have not been collapsed. what all the appellant did was that with a view to make it habitable, he put up the roof and he restored to the position to which the structure was standing and that it is not a material alteration and it is not unauthorised. though it is his case that he sought for permission and reconstructed but in view of the findings of the courts below that permission was not given and that by virtue of the definition contained in s.2 (iii) of the a.p. buildings (lease, rent and eviction) control act, 1960 (hereinafter referred to as 'the act') it is a building within the definition of the act and therefore the appellant being admittedly a tenant, entitled to continue in occupation. if that be so no injunction can be granted. though the respondents have been served with notices on 20-12-1980 and 27-13-80 respectively, neither they appeared personally nor through any counsel. i requested sri krishna murthy, to take me through the entire judgments of the appellate court and he read them in extenso. 5. upon the above contentions, the question that arises for consideration is, whether the courts below are justified in granting mandatory and perpetual injunction agnating the appellant? admittedly the appellant is the tenant in occupation of the building and according to the respondents, the entire building collapsed on 5-11-1975. p.w. 1 has admitted in the evidence and also has established by exs. a-1 and a-2 that only part of the roof had collapsed and the walls were also existing. if that be so, then as defined under s.2 (iii) of the act, a part of the building also is a building with super structure standing thereon. the structure standing in the suit premises thus come within the meaning of definition of s.2 (iii) of the act. if the landlord requires the premises for reconstruction or alteration, a right is provided under s.12 of the act to seek permission of the rent controller and make alterations. he is also enjoined thereunder to give an undertaking that on reconstruction he shall deliver the property reconstructed to the tenant. the tenancy of the appellant gets deprived only if he contravenes any of the provisions prescribed under s.10 of the act. otherwise he has got right to continue in occupation as tenant so long as the building exists. in view of the admission made by p.w. 1 only part of the building has been collapsed. the landlord is under an obligation to effect repairs to the part of the building collapsed due to natural calamities. but on that account he has no right to put an end to the tenancy and the occupation of the tenant cannot be said to be unauthorised or illegal so long as he is not ejected under the provisions of the act. the putting up of the roofing and the door way without the permission of the landlord as found by the courts below, it cannot be said to e in transgression of any provision of law. at the most the appellant is forfeited to claim any expenditure he incurred in putting up the superstructure. but that does not disentitle him to continue in possession. a novel theory has been invented to say that the appellant does not continue in occupation of the demised premises and the order of injunction is used as an aid to put an end to the statutory tenancy the appellant has under the act. both the courts have thoroughly misconstrued the scope, power and the jurisdiction of the court and granted the injunction. it is wholly unwarranted. accordingly the judgments of both the courts below are set aside and the suit is dismissed.accordingly, the second appeal is allowed, but since the respondent is not appearing in person or through a counsel no costs.6. appeal allowed.