The Fisherman Co-op. Society Vs. the State of Andhra Pradesh and ors. - Court Judgment

Excerpt:
trusts and societies - amendment of bye-laws of society - sections 16 (5), 76 (2) and 77 of andhra pradesh co-operative societies act, 1964 - whether order of amendments made by assistant director in bye-laws of society is valid - appellant society was given an opportunity of being heard under section 77 (2) - order was passed upon consideration of representation made by appellant society in counter filed before government - said order is appellable and valid. - 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. - as well as the order of the government which was challenged before him and we have no hesitation in holding that jayachandra reddy, j. he submitted that the government ought to have considered only the representations made by the two societies and not any outsider and the order of the government is vitiated inasmuch as the representation of an outsider like sri narasimha reddy was taken into consideration. bhaskara rao, the then minister, had signed the file approving paragraph 47 wherein the cancellation of the amendment was recommended. these facts clearly reveal that the final order of the government was not passed at the instance of sri ramaswamy or that he was in any way biased against the appellant society. the mere fact that on an earlier occasion he complained against the then chief minister with reference to some orders passed by sri goka ramaswamy in favour of one party or the other, was vitiated by bias.alladi kuppuswami, c.j. 1. we have gone through the judgement of jayachandra reddy. j. as well as the order of the government which was challenged before him and we have no hesitation in holding that jayachandra reddy, j. was right in dismissing the writ petition.2. mr. mirza munawwar ali baig has reiterated many of the contentions urged by him before jayachandra reddy. j. in the writ petition. the first submission is that the dispute was between the two co-operative societies viz., the appellant society of edulabad village and the 4th respondent society of yenkriyal village and such a dispute should have been the subject-matter of a reference under s. 61 of the a. p. co-operative societies act (hereinafter referred to as 'the act') and the appeal against the order of the assistant director of fisheries to the director of fisheries was not maintainable. it is, however, clear from s. 76 (2) r/w s. 16 (5) of the act that the 4th respondent had a remedy by way of appeal against the order of the assistant director. under s. 76 (2) 'any person or society aggrieved by any decision under sec 7, or amendment of the bye-laws of sec. 16 .... may appeal, if such decision, refusal or order is that of (i) the registrar of co-operative societies, to the government (ii) any other person, to the registrar of co-operative societies.' hence by virtue of this provision, the appeal was properly preferred against the order to the assistant registrar amending the bye-laws under sec. 16 (5) of the act.3. it is then contended that under sec. 76 (5) the decision of the appellate authority on appeal shall be final and hence no revision was maintainable before the government. the argument also is untenable in view of sec. 77 which enables the government to call for and examine the record of the registrar in respect of any proceeding to satisfy themselves as to the regularity of such proceeding of the correctness, legality, propriety or of any decision passed or order made therein.4. the next contention is that the government, in coming to the conclusion in the revision petition, relied upon a representation of sri narasimha reddy, m. l. a. he submitted that the government ought to have considered only the representations made by the two societies and not any outsider and the order of the government is vitiated inasmuch as the representation of an outsider like sri narasimha reddy was taken into consideration. we do not agree with this submission. we are of the view that as representing his constituency it was open to sri narasimha reddy, a member of the legislative assembly, to make his representation and it was open to the government to consider the representation along with all other facts and circumstances of the case relevant to the dispute. as jayachandra reddy, j observed, it is not shown that the government was in any way improperly influenced by such representation.5. sri mirza munawwar ali baig also submits that a copy of such a representation was not shown to the appellant society. under the proviso to sec. 77 (2) of the act no order prejudicial to any person shall be passed under, sub-sec. (1) unless such person has been given an opportunity of making his representation. it this case such an opportunity was given and the appellant society filed its counter before the government and the representation contained in the counter was considered. hence the requirements of sec. 77 of the act were fulfilled.6. it is further submitted that the impugned order is vitiated inasmuch as it was passed by sri goka ramaseamy, minister of fisheries, who was biased against the appellant society, jayachandra reddy. j has stated in the judgement that he went through the note file which showed that even by 29-1-1981 the report of the joint director was received and he had given a clear finding that the amendment allowed by the additional director of fisheries was not in order. at that time sri goka ramaswamy was not a member of the cabinet. after the report was received sri n. bhaskara rao, the then minister, had signed the file approving paragraph 47 wherein the cancellation of the amendment was recommended. subsequently on 26-2-1981 sri goka ramaswamy, who by then became the minister for fisheries, agreed with the note of the secretary for rural development for setting aside the order of the assistant director of fisheries. these facts clearly reveal that the final order of the government was not passed at the instance of sri ramaswamy or that he was in any way biased against the appellant society. the mere fact that on an earlier occasion he complained against the then chief minister with reference to some orders passed by sri goka ramaswamy in favour of one party or the other, was vitiated by bias.7. lastly, it is contended that out of ac, 44-25 cents of land which got submerged, ac. 39-30 cents is private land and it is not owned by the government and by virtue of the impugned order, this extent is being included in the area of operation of the 4th respondent society. as rightly observed by jayachandra reddy. j this is a matter which has to be adjudicated upon in separate proceedings and this question cannot be gone into in this writ petition.8. it is also contended that the land which the tank is situate belongs to the gram panchayat and the government has no jurisdiction to pass the impugned order. this contention is without substance as we are now concerned in this writ petition with the validity of an order of the assistant director amending the bye-law of a society which was passed in pursuance of s. 16 (5) of the act. such an order is appealable to the registrar of co-operative societies whose power is in this case, exercised by the director of fisheries and a revision lies therefrom to the government.9. the appeal is, therefore dismissed no costs.10. sri mirza munawwar ali baig makes an oral application for leave to appeal to the supreme court. we do not see any substantial question of law of general importance, which requires to be decided by the supreme court, involved in this case. the oral request is rejected.11. appeal dismissed.