M.V.R. Sharma Vs. State of A.P. and Others - Court Judgment

Excerpt:
constitution - policy decision - article 226 of constitution of india - matter relating to methodology for generating revenue is matter of policy decision - high court cannot interfere with matter in exercise of power of judicial review - high court cannot direct municipal corporation to frame rules for grant of concession to women or physically handicapped persons in relation to parking fees as sought for by petitioner - where it is found that parking fees is collected by unauthorized person a separate writ has to be filed in that regard. - 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. - according to the petitioner a busy person like him who has to go to several places may have to pay parking fee for parking his vehicle many times a day, which is illegal. 5/-,but no concession has been shown for women and physically handicapped persons, nor any separate rate has been fixed for ac luxury cars like premier ne 118, maruti 1000 cc, esteem doshi ford, opel astra, tata safari, sumo, ceilo, new honda citi, fiat uno etc.orders.b. sinha, cj1. the petitioner herein has filed this writ application, which has been treated as public interest litigation, alleging inter-alia that the respondent no.2 herein has not adopted any norms for collecting the parking fee. according to the petitioner a busy person like him who has to go to several places may have to pay parking fee for parking his vehicle many times a day, which is illegal. according to the petitioner, various persons are collecting the said parking fee without any authority. it has been stated that parking fee in case of two wheelers is charged at the rate of rs.2/- and in case of four wheelers at rs.5/-, but no concession has been shown for women and physically handicapped persons, nor any separate rate has been fixed for ac luxury cars like premier ne 118, maruti 1000 cc, esteem doshi ford, opel astra, tata safari, sumo, ceilo, new honda citi, fiat uno etc., which occupy more parking space.2. it is stated that although lot of money is being collected, which may be to the tune of rs.20 lakhs per day, it is not accounted for properly.3. it is really unfortunate that despite the fact that the learned government pleader for gad mr. y. rama rao, intimated to the learned standing counsel for the 2nd respondent, mr. ganta rama rao, nobody appears on its behalf nor any counter-affidavit has been filed.4. a counter-affidavit has been filed on behalf of the 3rd respondent wherein the allegations made by the petitioner have been denied and disputed.5. it appears that certain parking spaces have been earmarked in the twin cities in relation to which parking fee is being collected. it is not in dispute that rs.2/- is being charged for two wheelers, rs.5/- for the four wheelers for the first two hours of parking and thereafter the rates are fixed proportionately for every extra hour and a maximum of rs.15/- for the entire day towards parking fee in respect of specified earmarked space on the road margins is charged.6. the question as to how and in what manner the 2nd respondent would generate its revenue is a matter of policy decision and this court in exercise of its power of judicial review cannot interfere therewith. this court, in a petition of this nature, cannot also direct the mch to take a policy decision or frame certain rules for grant of concession to women or physically handicapped persons in relation to charging of parking fee and further directing that the owners of luxury cards will have to pay more parking fee. how the classification should be made for the purpose of levy of parking fee, as indicated hereinbefore, is a matter of policy decision, which cannot be interfered with by this court unless the same is found to be patently arbitrary. however, there cannot be any doubt whatsoever that the 2nd respondent cannot allow collection of parking fee by the persons who are not authorized therefor. respondents 2 and 3 arc, therefore, directed to see that if any person had been collecting parking fee without any authority therefor, they should initiate requisite legal proceedings against them.7. it is stated by mr. m. rama rao, learned government pleader for home and mr. y. rama rao, learned government pleader for gad, that parking space situated in an area is auctioned every year. if that be the position, unless and until some illegality is found therein, there is noscope of passing any order in this writ application.8. as regards the maintenance of the accounts is concerned, there cannot be any doubt whatsoever that the accounts of all taxes and fee collected have to be maintained in accordance with law. however, if it is found later that despite this order some unauthorised persons are collecting parking fee, it will be open for the petitioner or anybody affected to bring the same to the notice of this court by a separate writ application.9. this writ petition is disposed of with the abovementioned directions. no costs.

Judgment:
ORDER

S.B. Sinha, CJ

1. The petitioner herein has filed this writ application, which has been treated as Public Interest Litigation, alleging inter-alia that the respondent No.2 herein has not adopted any norms for collecting the parking fee. According to the petitioner a busy person like him who has to go to several places may have to pay parking fee for parking his vehicle many times a day, which is illegal. According to the petitioner, various persons are collecting the said parking fee without any authority. It has been stated that parking fee in case of two wheelers is charged at the rate of Rs.2/- and in case of four wheelers at Rs.5/-, but no concession has been shown for women and physically handicapped persons, nor any separate rate has been fixed for AC luxury cars like Premier NE 118, Maruti 1000 CC, Esteem Doshi Ford, Opel Astra, Tata Safari, Sumo, Ceilo, New Honda Citi, Fiat Uno etc., which occupy more parking space.

2. It is stated that although lot of money is being collected, which may be to the tune of Rs.20 lakhs per day, it is not accounted for properly.

3. It is really unfortunate that despite the fact that the learned Government Pleader for GAD Mr. Y. Rama Rao, intimated to the learned Standing Counsel for the 2nd respondent, Mr. Ganta Rama Rao, nobody appears on its behalf nor any counter-affidavit has been filed.

4. A counter-affidavit has been filed on behalf of the 3rd respondent wherein the allegations made by the petitioner have been denied and disputed.

5. It appears that certain parking spaces have been earmarked in the twin cities in relation to which parking fee is being collected. It is not in dispute that Rs.2/- is being charged for two wheelers, Rs.5/- for the four wheelers for the first two hours of parking and thereafter the rates are fixed proportionately for every extra hour and a maximum of Rs.15/- for the entire day towards parking fee in respect of specified earmarked space on the road margins is charged.

6. The question as to how and in what manner the 2nd respondent would generate its revenue is a matter of policy decision and this Court in exercise of its power of judicial review cannot interfere therewith. This Court, in a petition of this nature, cannot also direct the MCH to take a policy decision or frame certain rules for grant of concession to women or physically handicapped persons in relation to charging of parking fee and further directing that the owners of luxury cards will have to pay more parking fee. How the classification should be made for the purpose of levy of parking fee, as indicated hereinbefore, is a matter of policy decision, which cannot be interfered with by this Court unless the same is found to be patently arbitrary. However, there cannot be any doubt whatsoever that the 2nd respondent cannot allow collection of parking fee by the persons who are not authorized therefor. Respondents 2 and 3 arc, therefore, directed to see that if any person had been collecting parking fee without any authority therefor, they should initiate requisite legal proceedings against them.

7. It is stated by Mr. M. Rama Rao, learned Government Pleader for Home and Mr. Y. Rama Rao, learned Government Pleader for GAD, that parking space situated in an area is auctioned every year. If that be the position, unless and until some illegality is found therein, there is noscope of passing any order in this writ application.

8. As regards the maintenance of the accounts is concerned, there cannot be any doubt whatsoever that the accounts of all taxes and fee collected have to be maintained in accordance with law. However, if it is found later that despite this order some unauthorised persons are collecting parking fee, it will be open for the petitioner or anybody affected to bring the same to the notice of this Court by a separate writ application.

9. This writ petition is disposed of with the abovementioned directions. No costs.