R. Audiseshaiah Vs. S.M. Mallikarjuna 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. ordern.d. patnaik, j.1. the first respondent filed r.c.c. no. 2/86 under a.p. buildings (lease, rent-and eviction) control act on the file of the principal district munsif-cum-rent controller, tirupathi against the petitioner and respondents 2 and 3 for eviction on four grounds. his case is that he had purchased the property from one, adilakshmamma. respondents 2 and 3 are the legal representatives of one, b. balarami reddy, who was the tenant of the premises. the petitioner is alleged to be the sub-tenant of the premises. the petition for eviction is filed on four grounds:-(1) wilful default in payment of rent;(2) the landlord bonafide requires the premises for his personal occupation;(3) the tenant has sub-let the premises without the consent of the landlord; and(4) the tenants have committed acts of waste.2. the learned rent controller, after an enquiry, accepted the first three grounds, but rejected the contention of the landlord that the tenants have committed acts of waste and ordered eviction of respondents 2 and 3 and the petitioner. against that, an appeal in c.m.a. no. 8/1989 was preferred before the appellate authority who is the principal subordinate judge, tirupathi. the learned principal subordinate judge concurred with the findings of the learned rent controller and dismissed the appeal. against that, this revision petition is filed.3. the main contention of the learned counsel for the petitioner is that a suit o.s. no. 448/72 was filed by the predecessor in title i.e., adilakshmamma for eviction against b. balrami reddy and the petitioner and that suit was dismissed holding that the civil court has no jurisdiction and it has to be filed before the rent controller. as against that, an appeal was preferred. during the pendency of the appeal the purchaser of the property who is the first respondent came on record. that appeal was allowed observing that proceedings may be taken under the rent control legislation. his contention is that subsequently there was a change of law because section 32(b) of the rent control act was struck down. but, by the date when the petition was filed before the rent controller in the year 1986, the rent controller had jurisdiction. the petitioner who is one of the respondents therein did not question the jurisdiction of the rent controller in the counter filed by him. the rent controller and the appellate authority held that the respondents before them are liable to be evicted on the grounds stated above. since the petitioner had not taken any contention before the rent controller or the appellate authority that the rent controller has no jurisdiction to enquire into the matter. i am unable to agree with the contention of the learned counsel for the petitioner that the petitioner can raise that contention in this revision. both the courts below have given concurrent finding of fact on the three grounds and ordered eviction of the tenants and the sub-tenant i.e., the petitioner. therefore, there is no error of jurisdiction and no grounds for interference.4. since the petitioner is carrying on business as a photographer in the premises, he is given a further period of four months from this date to vacate the premises. meanwhile, he shall continue to pay the rent to the first respondent or deposit before the rent controller. with that direction, the revision petition is dismissed.

Judgment:
ORDER

N.D. Patnaik, J.

1. The first respondent filed R.C.C. No. 2/86 under A.P. Buildings (Lease, Rent-and Eviction) Control Act on the file of the Principal District Munsif-cum-Rent Controller, Tirupathi against the petitioner and respondents 2 and 3 for eviction on four grounds. His case is that he had purchased the property from one, Adilakshmamma. Respondents 2 and 3 are the legal representatives of one, B. Balarami Reddy, who was the tenant of the premises. The petitioner is alleged to be the sub-tenant of the premises. The petition for eviction is filed on four grounds:-

(1) Wilful default in payment of rent;

(2) The landlord bonafide requires the premises for his personal occupation;

(3) The tenant has sub-let the premises without the consent of the landlord; AND

(4) The tenants have committed acts of waste.

2. The learned Rent Controller, after an enquiry, accepted the first three grounds, but rejected the contention of the Landlord that the tenants have committed acts of waste and ordered eviction of respondents 2 and 3 and the petitioner. Against that, an appeal in C.M.A. No. 8/1989 was preferred before the appellate authority who is the Principal Subordinate Judge, Tirupathi. The learned Principal Subordinate Judge concurred with the findings of the learned Rent Controller and dismissed the appeal. Against that, this revision petition is filed.

3. The main contention of the learned counsel for the petitioner is that a suit O.S. No. 448/72 was filed by the predecessor in title i.e., Adilakshmamma for eviction against B. Balrami Reddy and the petitioner and that suit was dismissed holding that the Civil Court has no jurisdiction and it has to be filed before the Rent Controller. As against that, an appeal was preferred. During the pendency of the appeal the purchaser of the property who is the first respondent came on record. That appeal was allowed observing that proceedings may be taken under the Rent Control Legislation. His contention is that subsequently there was a change of law because Section 32(b) of the Rent Control Act was struck down. But, by the date when the petition was filed before the Rent Controller in the year 1986, the Rent Controller had jurisdiction. The petitioner who is one of the respondents therein did not question the jurisdiction of the Rent Controller in the counter filed by him. The Rent Controller and the appellate authority held that the respondents before them are liable to be evicted on the grounds stated above. Since the petitioner had not taken any contention before the Rent Controller or the appellate authority that the Rent Controller has no jurisdiction to enquire into the matter. I am unable to agree with the contention of the learned counsel for the petitioner that the petitioner can raise that contention in this revision. Both the courts below have given concurrent finding of fact on the three grounds and ordered eviction of the tenants and the sub-tenant i.e., the petitioner. Therefore, there is no error of jurisdiction and no grounds for interference.

4. Since the petitioner is carrying on business as a photographer in the premises, he is given a further period of four months from this date to vacate the premises. Meanwhile, he shall continue to pay the rent to the first respondent or deposit before the Rent Controller. With that direction, the revision petition is dismissed.