The Food Inspector, Anakapalli Municipality Vs. Kapusetti Polipilli - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.muktadar, j.1. the state has preferred this appeal against the acquittal of the accused who was charged with commission of an offence punishable under sections 16(1) and 7 read with section 2(1)(a) of the prevention of food adulteration act. the case of the prosecution is that p. w. 1 the food inspector, anakapalli saw the accused, who was a regular milk vendor, selling milk in the municipal area on 31-5-1976 at 7.30 a. m. he stopped the accused and after noticing that the buffalo milk was adulterated purchased 660 ml., after complying with all the formalities. he paid 66 paise to the accused for the milk purchased and obtained receipt for the same, which is ex. p-1. the food inspector then divided the milk into three parts, poured the sample into three clean, dry and empty bottles, added 16 drops of formal in to each of the bottles, corked them and sealed them. he gave one bottle to the accused under acknowledgment, ex. p-3 and sent another bottle to the chemical analyst, and kept. one bottle with him. this procedure actually was followed by p. w. 1, the food inspector according to the old prevention of food adulteration act. the new act which came into force on 1-4-1976 has amended the formalities which have to be followed by the food inspector and this is provided under section 11 of the amended prevention of food adulteration act. according to section 11(1)(b) of the act, the food inspector has to divide the sample then and there into three parts, mark and seal in such manner as its nature permits and take signature or thumb-impression of the person from whom the same has been taken in such place and in such manner as may be prescribed. according to section 11(1)(b) of the act, he should send one of the parts for analysis to the public analyst under intimation to the local health authority and send the remaining two parts to the local health authority for purpose of preserving the same. in the instant case, the food inspector has not complied with these provisions of section 11(1)(b) in spite of fact that two months have elapsed after the coming into force of the amended act, as the new act came into force on 1-4-1976, and the date of occurrence is 31-5-1976. the food inspector ought not to have given the second sample bottle to the accused but ought to have sent the 2nd and 3rd bottles to the local health authority. moreover, the food inspector ought to have also taken signature or thumb-impression of the accused on these samples which he has not done so. in these circumstances, to my mind, the trial court was correct in acquitting the accused.2. hence, this appeal is dismissed.