K. Gopaiah Vs. D. Venkateswar Rao - 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. b. subhashan reddy, j.1. this revision petition is directed against the order dated 16.3.1990 passed in e.p. n. 314/89 in o.s. no. 153/76 on the file of the 1st additional district munsif, vijayawada, overruling the objection of the judgment-debtor, who is the petitioner herein, that for execution of the money-decree passed in favour of the late father of the respondent herein, production of succession certificate is a must and the same has to be obtained as contained under section 37 of the indian succession act.2. sri k. ranga rao, learned counsel for the petitioner-judgment-debtor contends that the court below has erred in not acceding to the contention that succession certificate is a must inasmuch as the amount, which is sought to be recovered, did not devolve on the legal representatives of the late decree-holder by survivorship, but it devolves by succession as contained under section 8 of the hindu succession act and as such, as held by the two division benches of this court in l.i.c. of india v. tirupathayya, 1963(1) an. w.r. 124 and k. apparao v. j. venkanna, 1969(2) an. w.r. 479 succession certificate has got to be obtained to execute the decree. he further contends that it is not a case where execution proceedings were initiated and the decree-holder died during the pendency of execution petition. he also contends that the son is not the only legal representative and as the daughters are also the legal representatives and as the succession is governed by section 8 of the hindu succession act, it is incumbent upon the legal heirs of the decree-holder to obtain a succession certificate.3. sri v.s.r. anjaneyulu, learned counsel for the respondent, on the other hand, contends that admittedly, dupaguntal venkateswar rao is the son of the late decree-holder dupaguntia raghavaiah and as the daughters of the late decree-holder had no objection for filing the execution petition by the son of the late decree-holder, no succession certificate is called for.4 here is a case where the decree was passed on 12.7.1976 and the decree-holder died on 14.4.1980 intestate. the execution petition was filed on 12.7.1988 by his son, who is not the only legal representative, but there are other legal representatives i.e., five daughters left behind by the decree-holder. having regard to the judgments of the two division benches referred to above, i find myself bound by the same and accordingly hold that the legal representatives of the late decree-holder viz. dupaguntla raghavaiab have to obtain succession certificate under the provisions of the indian succession act.5. i accordingly allow this revision petition, but no order as to costs.6. i, however, grant four months' time to the respondent-decree-holder to obtain the necessary succession certificate under the provisions of the indian succession act.