Dr. D.A. David Vs. Alle Chinna Mallaiah - 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. - 2. the contention of the learned counsel for the petitioner is that the lower court failed to see that the government have already issued notification in exercise of power under section 2(iv) of the act to each area to exercise powers thereunder. ' a reading thereof clearly indicates that other than those covered in clauses (a) and (b) of section (2), a specific notification is to issue by the government constituting rent controller to entertain the application under the act.orderk. ramaswamy, j.1. the petitioner raises an objection in the execution regarding the jurisdiction of the court to pass a decree in o.s.no. 2 of 1983 on the file of the district munsif, andole at jogipet, medak district. his contention is that andole is a municipality by exercising power under section 2(b) of the andhra pradesh buildings (lease, rent and eviction) control act xv of 1961 (in short the act) extending the provisions of the act to andole, therefore the civil court is devoid of jurisdiction to pass decree; the only competent court is the rent controller appointed and in this case the decree is passed by the civil court thereby the decree is void, inexecutable and without jurisdiction. the. executing court dismissed the application against which this revision is filed. 2. the contention of the learned counsel for the petitioner is that the lower court failed to see that the government have already issued notification in exercise of power under section 2(iv) of the act to each area to exercise powers thereunder., the revenue divisional officer, medak was constituted as rent controller for the municipality of andole; therefore the rent controller constituted under the act would be the authority. no doubt in the notification dated 31-1-1961 andole was declared to be a municipality and the revenue divisional officer, medak was appointed as rent controller under the act. thereafter andole has been denotified and declared as gram panchayat, under section 3 of the a.p. gram panchayat act, 1964. therefore andole no longer continues to be a municipality attracting section 2(b) of the act.3. section 1(2)(c) of the act postulates thus:'the state government may, by notification in the andhra pradesh gazette, apply all or any of the provisions of this act except under sub-section (2) of section 3 to any other area in the state of andhra pradesh with effect from such date as may be specified in the notification, and may cancel or modify any such notification.'a reading thereof clearly indicates that other than those covered in clauses (a) and (b) of section (2), a specific notification is to issue by the government constituting rent controller to entertain the application under the act. but in this case there is no such notification issued by the government thereon so the rent controller does not have any jurisdiction to entertain the applications under the act. thus it is clear that the only forum available t the parties is civil court having competent jurisdiction to entertain and pass the decree. in this case admittedly the district munsif court has got jurisdiction. accodingly the district munsif granted the decree and it is being passed in accordance with law thereby i hold it is not a case of void decree, nor a decree without jurisdiction declaring inexecutable. the c.r.p. is therefore dismissed. no costs. time for ejectment: three months from the date of receipt of this order.

Judgment:
ORDER

K. Ramaswamy, J.

1. The petitioner raises an objection in the execution regarding the jurisdiction of the Court to pass a decree in O.S.No. 2 of 1983 on the file of the District Munsif, Andole at Jogipet, Medak district. His contention is that Andole is a Municipality by exercising power under Section 2(b) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act XV of 1961 (in short the Act) extending the provisions of the Act to Andole, therefore the civil court is devoid of jurisdiction to pass decree; the only competent court is the Rent Controller appointed and in this case the decree is passed by the civil court thereby the decree is void, inexecutable and without jurisdiction. The. executing court dismissed the application against which this revision is filed.

2. The contention of the learned counsel for the petitioner is that the lower court failed to see that the Government have already issued Notification in exercise of power under Section 2(iv) of the Act to each area to exercise powers thereunder., The Revenue Divisional Officer, Medak was constituted as Rent Controller for the Municipality of Andole; therefore the Rent Controller constituted under the Act would be the authority. No doubt in the Notification dated 31-1-1961 Andole was declared to be a Municipality and the Revenue Divisional Officer, Medak was appointed as Rent Controller under the Act. Thereafter Andole has been denotified and declared as Gram Panchayat, under Section 3 of the A.P. Gram Panchayat Act, 1964. Therefore Andole no longer continues to be a Municipality attracting Section 2(b) of the Act.

3. Section 1(2)(c) of the Act postulates thus:

'The State Government may, by notification in the Andhra Pradesh Gazette, apply all or any of the provisions of this Act except under Sub-section (2) of Section 3 to any other area in the State of Andhra Pradesh with effect from such date as may be specified in the notification, and may cancel or modify any such notification.'

A reading thereof clearly indicates that other than those covered in Clauses (a) and (b) of Section (2), a specific notification is to issue by the Government constituting Rent Controller to entertain the application under the Act. But in this case there is no such notification issued by the Government thereon so the Rent Controller does not have any jurisdiction to entertain the applications under the Act. Thus it is clear that the only forum available t the parties is civil court having competent jurisdiction to entertain and pass the decree. In this case admittedly the District Munsif Court has got Jurisdiction. Accodingly the District Munsif granted the decree and it is being passed in accordance with law thereby I hold it is not a case of void decree, nor a decree without jurisdiction declaring inexecutable. The C.R.P. is therefore dismissed. No costs. Time for ejectment: three months from the date of receipt of this order.