Ranjit Singh v. State Of Haryana And Others

Ajay Tewari, J. (for Mukul Mudgal, C.J, Adarash Kumar Goel, J. Ajay Kumar Mittal, J., Ranjit Singh, J. Concrring):— The present writ petition was filed challenging the order dated 25.8.2000 (Annexure P-7) passed by the Assistant Page: 355Collector First Grade, Yamuna Nagar whereby while directing the eviction of the petitioner under Section 7(2) of the Punab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as “the Act”), imposed a penalty of Rs. 10,000/- per hectare per year upon him from the year 1993. The petitioner has also challenged the order dated 22.7.2003 (Annexure P-8), passed by the Collector Yamuna Nagar declining to entertain the appeal, in view of the default of the petitioner in depositing the penalty in view of Section 13B of the Act. The challenge is to the provisions of Section 13 of the Punjab Village Common Lands (Regulations) Act, 1961 (for short “the Act”).

2. Initially, the Division Bench hearing the writ petition referred the matter to a Full Bench in view of conflict of opinion by two Division Benches of this Court. In CWP No. 15930 of 2008, Satbir Singh v. The Collector, Jhajjar, decided on 8.9.2008, it was held that the provision of pre-deposit of en tire penalty is a mandatory provision. In CWP No. 13468 of 2007, Sehaj Ram v. The Collector, Jamnuna Nagar, decided on 28.8.2007, another Division Bench held that the pre-deposit is not a mandatory provision. When the matter came up for hearing he fore the Full Bench, the Additional Advocate General, Haryana placed reliance on a Full Bench judgment of this Court rendered in CWP No. 5877 of 1992, Jai Singh v. State of Haryana, decided on 13.3.2003 In the said decision, the view taken in Satbir Singh case (supra), was endorsed in the following terms:

“xx xx xx

The position of law being so settle that where in so far as Mr. Veneta is concerned, he raised the contention only half heartedly, galaxy of lawyers, apearing in various matters, do not raise any argument with regard to invalidity of Section 7 and proviso to Section 13(b) of the Amending Act.”

3. Noticing that the decision in Jai Singh case (supra), was based largely on the fact that most of the Lawyers appearing for the petitioners therein did not raise ally argument with regard to the validity of Section 13B of the Act, the Full Bench referred the matter to a Larger Bench consisting of five Judges, and this is how the matter is before this Bench.

4. Before proceeding further, it would be apposite to have a brief overview of the Act. The Act has been promulgated to consolidate and amend the law regulating the rights in shamilat deh and abadi deh. Section contains definitions, while Section 3 details the land to which the Act applies. Section 4 is the vesting Section whereby shamilat deh vests in the Panchayats and non-proprietors (in some cases). Section 5 regulates use and occupation etc of lands vested or deemed to have been vested in panchayats. Section 5A permits disposal of such lands in certain circumstances while Section 5B voids transfers of Panchayat land which may have been made in contravention of the prescribed terms and conditions. Section 6 provides for appeal against any action or decision taken by the Panchayat under Section 5 of the Act. Section 7 deals with eviction of unauthorized occupants and is necessary to be quoted herein below for proper appreciation of the issue involved:

“7. Power to put Panchayat in possession of certain lands. - (1) An assistant Collector of the first grade having jurisdiction in the village may, either suo moto or an application made to him by a Panchayat or inhabitant of the village or the Block Development and Panchayat Officer or Social Education and Panchayat Officer, or any other Officer authorised by the Block Development and Panchayat Officer, after making such summary enquiry as he may deem fit and in accordance with such procedure as may be prescribed eject any person who is in wrongful or unauthorised possession of the land or other immovable property in the shamilat deh of that village which vests or is deemed to have been vested in the panchayat under this Act and put the panchayat in possession thereof and for so doing the Assistant Collector of the first grade may exercise the powers of a revenue court in relation to the execution of a decree for pbssessien of land under the Punjab Tenancy Act, 1887:

Provided that if in any such proceedings the question of title is raised and proved prima facie on the basis of documents that, the question of title is really involved, the assistant Collector of the first grade shall record a finding to that effect and first decide the question of title in the manner laid down hereinafter.

(2) The Assistant Collector of the first grade shall by an order, in writing, require any person Page: 356to pay a penalty, in respect of the land or other immovable property which was or has been in his wrongful or unauthorised possession, at a rate not less than five thousand rupees and not more than ten thousand rupees per hectare per annum, having regard to the benefit which could be derived from the land or other immovable property. If the penalty is not paid within the period of thirty days from the date of the order, the same shall be recoverable as arrears of land revenue.

(3) The procedure for deeding the question of title under proviso to sub-section (1) shall be the same as laid down in the Code of Civil Procedure, 1908.

(4) If any person refuses ails to comply with the order of eviction passed under sub-section (1) within ten days of the date of such order, the Assistant Collector of the first grade may use such force, including police force, as maybe necessary for putting the panchayat in possession.

(5) Any person who is found in wrongful or unauthorised possession of the land or other immovable property in shamlat deh and is ordered to be ejected under sub-section (1), shall be punishable with imprisonment for a term which may extend to two years.”

5. Sections 7A and 7B deal with the cognizance of offences under the Act and the procedure for their prosecution. Section 8 is the transitory provision which need not be referred to in detail. Section 9 lays down that the income accruing would be credited to the Panchayat fund and shall be utilized in the manner prescribed. Section 10 bars the grant of any compensation to any person for any loss suffered as a result of corning into force of the Act. Section 10A is analogous to Section 5B and deals with the powers of the Assistant Collector First Grade to cancel or vary transfers of Panchayat lands. Section 11 exempts sale of land in shamilat deli from the provisions of the Punjab Preemption Act, 1913. Section 12 lays down that arrears of rent would be recoverable as arrears of land revenue. Section 13 bars the jurisdiction of the Civil Court. Section 13A deals with adjudication of a title suit with regard to land alleged to be shamilat land. Section 13AA provides for an appeal to the Commissioner against an order passed under Section 13A of the Act. Section 13B provides for rights of appeal against an order passed by the Assistant Collector First Grade under Section 7, and is the other Section which requires to be quoted herein below:—

“13-B. Appeal and revision. - (1) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date or order passed under sub-section (1) or sub-section (2) of Section 7 prefer an appeal to the Collector in such forth and manner, as may be prescribed, and the Collector may after hearing the appeal, confirm, vary or reverse the order as he deems fit:

Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7, is deposited with the Collector.

(2) The Commissioner may. Suo moto (or on an application made to him by any person aggrieved by an order passed under the proviso to sub-section (1) of section 7 at anytime) call for the record of any proceedings pending before, or orders passed by, any authority subordinate to him for the purpose of satisfying himself as to the legality or propriety of the proceedings or order and pass such order in relation thereto as he may deem fit:

Provided that no order adversely affecting any person shall be passed unless he has been afforded an opportunity of being heard.”

6. Section 13C lays down that the orders passed under the Act shall be final and Section 13D lays down that the provisions of the Act would override anything to the, contrary contained in in law, agreement, instruments etc. Section 13E mandates that every officer or employee acting under the Act shall be deemed to be a public servant. Section 14 Indemnifies the State Government or any person or authority for anything done or intended to be done in good faith in pursuance to the provisions of the Act. Section 14A is the Saving section, while Section 15 gives powers to the State Government to make ales. Section 16 is Repealing and Saving Section, and Section 17 validates action taken under the Act.

7. Since the dispute relates to the right to appeal, it would also be appropriate to go through various parameters of the right to appeal as brought out by the judgments of the Hon'ble Apex Court. In State of Gujarat v. Salimbhai Abdulgaffar Shaikh, 2003 (4) RCR (Criminal) 488, the Hon'ble Supreme Court defined what is an appeal in the following terms:—

“A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority, specially the submission of a lower Court's decision to higher Court for review and possible reversal.

An appeal strictly so called is one in which the question is, whether the order of the Court from which the appeal is brought was right on the material which the Court had before it.

An appeal is removal of the case from an inferior to inferior to one of superior jurisdiction for the purposes of obtaining a review or retrial.

An appeal generally speaking is a rehearing by a superior Court on both law and fact.”

8. As regards the nature of the right to appeal, the Hon'ble Supreme Court in James Joseph v. State Of Kerala., 2011 (5) R.C.R (Civil) 150: Civil Appeal No. 7207 of 2010, held as follows:— “16. We may, therefore, formulate the following principles with reference to appeals:

(i) An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to confirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions.

(ii) The appellate jurisdiction can he limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute conferring the appellate jurisdiction.

(iii) The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does not depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute conferring the right of appeal.

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9. It is against this background that the arguments of the parties have to be tested.

10. Learned counsel for the petitioner has relied upon Shyam Kishore v. Municipal Corporation of Delhi, 1992 (2) R.R.R 566 : (1993) 1 SCC 22 : AIR 1992 SC 2279, Anant Mills Co. Ltd v. State of Gujarat, 1975 (3) SCR 220, Mardia Chemi cals Ltd v. Union of India, 2004 (2) R.C.R (Civil) 665 : 2004 (4) SCC 311, Income Tax, Officer, Income Tax Officer, Cannanore. v. M. K. Mohammed Kunhi, AIR 1969 SC 430, and Site Ram v. State of U.P, (1979) 2 SCC 656 : AIR 1979 SC 745.

11. In Shyam Kishore's case (supra), the relevant provisions were were Sections 169 and 170 of the Delhi Municipal Corporation Act, 1957, which thus:—

169. Appeal against assessment, etc.

(1) An appeal against the levy of assessment of any tax under this Act shall lie to the court of the District Judge of Delhi.

(2) to (6)……………

170. Conditions of right to appeal.

No appeal shall be heard or determined under S. 169 unless—

(a) the appeal is, in the case of a property tax, brought within thirty days next after the date of authentication of the assessment list under S. 124 (exclusive of the time requisite for obtaining a copy of the relevant entries therein) or, as the case may be, within thirty days of the date on which an amendment is finally made under S. 126, and, in the case of any other tax, within thirty days next after the date of the receipt of the notice of assessment or of alteration of assessment or, if no notice has been given, within thirty days after the date of the presentation of the first bill or, as the case may be, the first notice of demand in respect thereof:

Provided that an appeal may be admitted after the expiration of the period prescribed therefor by this section if the appellant satisfies the court that he had sufficient cause for not preferring the appeal within that period:

(b) the amount, if any, in dispute in the appeal has been deposited' by the appellant in the office of the Corporation.”

12. The Hon'ble Supreme Court held as follows:

“Para 33. The contention before us on behalf of the assessee, however, is that the answer to the issue of constitutional validity of S. 170(b) will considerably depend upon the interpretation that is placed on the scope of the powers of the appellate authority. It is argued that if S. 170(b) is interpreted as mandating that an appeal cannot be entertained but will have to be dismissed in limine if the tax in dispute is not paid along with the memorandum of appeal that would place a very onerous condition on the right of appeal Page: 358particularly in cases where there is a substantial amount involved in the appeal and the points raised in the appeal are really contentious and debatable. It should not also be forgotten that, once the assessment list is amended after hearing the assessee, it may stand adopted for several subsequent years and demands for all these years will have to be met until the assessment for the first year is altered in appeal. It is argued that the might of appeal itself becomes illusory, if subjected to such a rigid and absolute condition. The provision will, therefore, be invalid, it is said, as imposing., an unreasonable restriction on the fundamental rights of the appellant assessee.

34. As against this, it is contended for the Corporation that the validity of similar provisions have been upheld in the cases discussed earlier. It is submitted that even though an appeal, in such cases, may have to be thrown out, the assessee is not without redress. We will always have the alternative remedy of taking recourse tout/(iii) If the notice was received by the taxpayer but he could not file objection on account of reasons beyond his control.”

It is said that the above decision and guidelines provide adequate safeguards to p: event any real hardship or harassment to the assessee and that S. 170(b) is not ultra vires for the reasons adduced on behalf of the assessee.

Para 35. The decisions of the Bombay and Calcutta High Courts earlier referred to (Ellora and Chatter Singh) (AIR 1980 Born 162 and AIR 1984 Cal 283) have upheld the validity of a rigid provision banning the entertainment of an appeal altogether where the taxes are not paid. However, the Supreme Court decisions in Anant Mills ((1975) 2 SCC 175 : AIR 1975 SC 1234), Vijay Prakash Mehta ((1988) 4 SCC 402 : AIR 1988 SC 2010) and Batra(sic) had occasion to consider only the vires of a milder provision which permitted the appellate authority to waive or relax the condition of deposit. As explained in Nandlal v. State of Haryana (1980) 3 SCR 1181 at 1207 : (1980 Supp SCC 574 : AIR 1980 SC 2097 at p. 2109) these decisions settle the principle “that the right of appeal is a creature of statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory”. The court in those cases had no occasion to consider what the position would be if the conditions placed on the right of appeal were unduly onerous or such as to render the right of appeal totally illusory.

Para 41. It seems to us the words of S. 170(b) are capable of a broader interpretation. A perusal of S. 170 shows that the section uses three different expressions “heard or determined”, “brought” and “admitted” in relation to an appeal and some significance is to be attached to the use of the expression “heard and determined”. In like situations, other statutes such as the one considered by this Court in Lakshmi Rattan Engineering Works Ltd. v. Assistant Commr. of Sales Tax (AIR 1968 SC 488) and those contained in certain other enactments like the Bombay and Calcutta Municipal Acts specifically prohibit the very entertainment of the appeal if the tax is not paid. When the DMC Act has carefully avoided the use of that word, we must give full effect to the differential wording. Also, the absence of a language in Cl. (b) of the proviso similar to that in Cl. (a) which indicates that an appeal filed beyond the period of limitation will not stand admitted unless the delay is condoned also warrants an inference that the payment of disputed tax is not a condition precedent to the (iii) If the notice was received by the taxpayer but he could not file objection on account of reasons beyond his control.”

It is said that the above decision and guidelines provide adequate safeguards to prevent any real hardship or harassment to the assessee and that S. 170(b) is not ultra wires for the reasons adduced on behalf of the assessee.

Para 35. The decisions of the Bombay and Calcutta High Courts earlier revered to (Ellora and Chatter Singh) (AIR 1980 Born 162 and AIR 1984 Cal 283) have upheld the validity of a rigid provision banning the entertainment of an appeal altogether where the taxes are not paid. However, the Supreme Court decisions in Anant Mills ((1975) 2 SCC 175 : AIR 1975 SC 1234), Vijay Prakash Mehta ((1988) 4 SCC 402 : AIR 1988 SC 2010) and Batra(sic) had occasion to consider only the vires of a milder provision which permitted the appellate authority to waive or relax the condition of deposit. As Page: 359explained in Nandlal v. State of Haryana (1980) 3 SCR 1181 at 1207 : (1980 Supp SCC 574 : AIR 1980 SC 2097 at p. 2109) these decisions settle the principle “that the right of appeal is a creature of statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory”. The court in those cases had no occasion to consider what the position would be if the conditions placed on the right of appeal were unduly onerous or such as to render the right of appeal totally illusory.

Para 41. It seems to us the words of S. 170(b) are capable of a broader interpretation. A perusal of S. 170 shows that the section uses three different expressions “heard or determined”, “brought” and “admitted” in relation to an appeal and some significance is to be attached to the use of the expression “heard and determined”. In like situations, other statutes such as the one considered by this Court in Lakshmi Rattan Engineering Works Ltd. v. Assistant Commr. of Sales Tax (AIR 1968 SC 488) and those contained in certain other enactments like the Bombay and Calcutta Municipal Acts specifically prohibit the very entertainment of the appeal if the tax is not paid. When the DMC Act has carefully avoided the use of that word, we must give full effect to the differential wording. Also, the absence of a language in Cl. (b) of the proviso similar to that in Cl. (a) which indicates that an appeal filed beyond the period of limitation will not stand admitted unless the delay is condoned also warrants an inference that the payment of disputed tax is not a condition Precedent to the f; Y4YFa entertainment or admission, of the appeal. In the present statutory context, it sounds plausible to say that such an appeal can be admitted or entertained but only cannot be heard or disposed of without re-deposit of the disputed tax. Such an interpretation will provide some much needed relief from the harshness of the provision. These are not days in which the calculation of the property tax is simple and uncomplicated the determination of the annual value of the property, except when based on the actual rent received from the property, involves various subjective factors and, not unoften, there is a wide gulf between the tax admitted to be due and the tax demanded. Sometimes, to compel the assessee to pay up the demanded tax for several years in succession might very well cripple him altogether. This apart, an assessee may not be able to deposit the tax while filing the appeal but may be able to pay it up within a short time, or at any rate, before the appeal comes on for hearing in the normal course. There is no reason to construe the provision so rigidly as to disable him from doing this. Again, when an appeal comes on for hearing, the appellate judge, in appropriate cases, where he feels there is some great hardship or injustice involved, may be inclined to adjourn the appeal for some time to enable the assessee to pay up the tax. Though it will not be expedient or proper to encourage adjournment of an appeal, where it is ripe for hearing otherwise, only on this ground and as a matter of course, an interpretation which leaves some room for the exercise of a judicial discretion in this regard, where the equities of the case deserve it, may not be inappropriate. The appellate judge's incidental and ancillary powers should not be curtailed except to the extent specifically precluded by the statute. We see nothing wrong in interpreting the provision as permitting the appellate authority to adjourn the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or instalments to enable the assessee to deposit the disputed ‘tax where the case merits it, so long as it does not unduly interfere with the appellate Court's calendar of hearings. His powers, however, should stop short of staying the recovery of the tax till the disposal of the appeal. We say this because it is one thing for the-judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can, in accordance with his directions before the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish to do so. He is only giving a chance to the assessee to pay up the tax if he wants the’ appeal to he heard. It is, however, a totally different thing for the judge to stay the recovery till the disposal of the appeal; that would result in modifying the language of Page: 360the proviso to read: “no appeal shall be disposed of until the tax is paid”. Short of this, however, there is no reason to restrict the powers unduly; all he has to do is to ensure that the entire tax in dispute is paid up by the time the appeal is actually heard on its merits. We would, therefore, read Cl. (b) of S. 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself.

Para 42. If the provision is interpreted in the mariner above suggested, one can steer clear of all problems of constitutional validity. The contention on behalf of the Corporation to read the provision rigidly and seek to soften the rigour by reference to the availability of a recourse to the High Courts by way of a petition under Arts. 226 and 227 in certain situations and the departmental instructions referred to earlier does not appear to be a satisfactory solution. The departmental instructions may not always be followed ‘and the resort to Arts. 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself. The construction of the section approved by us above vests in the appellate authority a power to deal with the appeal otherwise than by way of final disposal even if the disputed tax is not paid. It enables the authority to exercise a judicial discretion to allow the payment of the disputed tax even after the appeal is filed but, no doubt, before the appeal is taken up for actual’ hearing. The interpretation will greatly ameliorate the genuine grievances of, and hardships faced by, the assessee in the payment of the tax as determined. Though an assessee may not be able to acquire an absolute stay of the recovery of the tax until the dispute is resolved, he will certainly be able to get breathing time to pay up the same where his case deserves it. If this interpretation is placed on the provision, no question of unconstitutionality can at all arise.

Para 43. We only wish that the statute itself is soon amended to make this position clear. After all, under the DMC Act, the appellate authority is a high judicial officer, being the District Judge, and there is no reason why the Legislature should not trust such a high judicial officer to exercise his discretion in such away as to safeguard the interests of both she revenue and the assessee. We think that, until this is done, the provision requires a liberal interpretation so as to preserve such interests and should not be so rigidly construed as to warrant the throwing our of an appeal in limine merely because the tax is not paid before the appeal is filed.”

13. In Anant Mills Co. Ltd's case (supra), the statutory provision in question was Section 406 of the Bombay Provincial Municipal Corporations Act, 1949. Section 406 of the said Act reads as follows:

“406(1). Subject to the provisions hereinafter contained appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Judge.

(2) No such appeal shall be entertained unless

(a) it is brought within fifteen days after the accrual of the cause of complaint;

(b) in the case of an appeal against a rateable value a complaint has previously been made to the Commissioner as provided under this Act and such complaint has been disposed of,

(c) in the case of an appeal against any tax in respect of which provision exists under this Act for a complaint to be made to the Commissioner against the demand, such complaint has previously been made and disposed of,

(d) in the case of an appeal against any amendment made in the assessment book for property taxes during the official year, a complaint has been made by the person aggrieved within fifteen days after, he first received notice of such amendment and his complaint has been disposed of;

(e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value, the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing the appeal, has been deposited by the appellant with the Commissioner:

Provided that where in any particular case the Judge is of the opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion, either unconditionally or subject to Page: 361such conditions as he may think fit to impose, dispense with a part of the amount deposited so however that the part of the amount so dispensed with shall not exceed twenty five per cent of the amount deposited or required to be deposited.”

14. The Hon'ble Supreme Court held as follows:

“40. After hearing the learned counsel for the parties, we are unable to subscribe to the view taken by the High Court, Section 406(2)(e) as amended states that no appeal against a rateable value or tax fixed or charged under the Act shall be entertained by the Judge in the case of an appeal against a tax or in the case of an appeal made against a rateable value of after a bill for any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from the appellant has been deposited by him with the Commissioner. According to the provision to the above clause, where in any particular case the judge is of opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part there of, either unconditionally or subject to such conditions as he may deem fit. The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in case he seeks to file an appeal against a tax or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The requirement about the deposit of the amount claimed as a condition precedent to the entertainment of an appeal which seeks to challenge the imposition or the quantum of that tax, in our opinion, has not the effect of nullifying the right of appeal, especially when we keep in view the fact that discretion is vested in the appellate Judge to dispense with the compliance of the above requirement. All that the statutory provision seeks to do is to regulate the exercise of the right of appeal. The object of the above provision is to keep in balance the right of appeal, which is conferred upon a person who is aggrieved against with the demand of tax made from him, and the right of the Corporation to speedy recovery of the tax. The impugned provision accordingly confers a right of appeal and at the same time prevents the delay in the payment of the tax. We find ourselves unable to accede to the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution. It is significant that the right of appeal is conferred upon all persons who are aggrieved against the determination of tax or rateable value. The bar created by Section 406(2)(e) to the entertainment of the appeal by a person who has not deposited the amount of tax due from him and who is not able to show to the appellate Judge that the deposit of the amount would cause him undue hardship arises out of his own omission and default. The above provision, in our opinion, has not the effect of making invidious distinction or creating two classes with the object of meting out differential treatment to them; it only spells out the consequences flowing from the omission and default of a person who despite the fact that deposit of the amount found due from him would cause him no hardship, declines of his own volition to deposit that amount. The right of appeal is the creature of a statute. Without a statutory provision creating such a right the person aggrieved is not entitled to file an appeal. We fail to understand as to why the legislature while granting the right of appeal cannot impose conditions for the exercise of such right. In the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions. It is permissible, for example, to prescribe a condition in criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against the sentence of imprisonment would be entertained. Likewise, it is permissible to enact a law that no appeal shall lie against an order relating to an assessment of tax unless the tax had been paid. Such a provision was on the statute bock in Section 30 of the Indian Income-tax Act, 1922. The proviso to that section provided that”, ……no appeal shall lie against an order under sub-section (1) of section 46 unless the tax had been paid”. Such conditions merely regulate the exercise of the right of appeal so Page: 362that the same is not abused ‘by a recalcitrant party and, there is no difficulty in the enforcement of the order appealed against in case the appeal is ultimately dismissed. It is open to the legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the right. Any requirement for the discharge of that liability or the fulfillment’ of that condition in case the party concerned seeks to avail of the said right is a valid piece of legislation, and we can discern no contravention of Article 14 in it. A disability or disadvantage arising out of a party's own default or omission cannot be taken to be tantamount to the creation of two classes offensive to Article 14 of the Constitution, especially when that disability or disadvantage operates upon all persons who make the default or omission,”

15. In Mardia Chemicals Ltd's case (supra), the Hon'ble Supreme-court held as follows:

55. We may then turn to the arguments raised on behalf of the petitioners that the remedy before the Debt Recovery Tribunal under Section 17 of the Act, is illusory burdened with onerous and oppressive condition of deposit of 75% of the amount of the demand notice before an appeal can be entertained by the Tribunal. We feel that it would be difficult to brush aside the challenge made to the condition of such a deposit. Sub-section (2) of Section 17 itself says that no appeal shall be entertainable unless the borrower has deposited the aforesaid sum of amount claimed. Much stress has been given in reply to the proviso to Sub-section (2) of Section 17, according to which the Tribunal has power to waive or reduce the amount. While waiving the condition of deposit the amount or reducing it, the Tribunal is required to record reasons for the same. It is submitted for the respondents that in an appropriate case, the DRT which is presided over by a Member of a Higher Judicial Service, would exercise its discretion and may waive or reduce the amount required to be deposited in deserving cases. It is, therefore, not an absolute condition which must in all cases and all circumstances be fulfilled irrespective of the special features of a particular case.

56. The contention of the petitioners is that in the first place such an oppressive provision should not have been made at all. It works as a deterrent or as a disabling provision impeding access to a Forum which is meant for redressal of the grievance of a borrower. It is submitted where the possession of the secured assets has already been taken over or the management of the secured assets of the borrower including the right to transfer the same, in that event it would not at all be necessary to burden the borrower doubly with deposit of 75% of the demand amount. In a situation where the possession of the secured assets have already been taken over or its management, it is highly unreasonable further to ask for 75% of the amount claimed before entertaining the grievance of the borrower.

57. Secondly, it is submitted that, it would not be possible for a borrower to raise funds to make deposit of the huge aniount of 75% of the demand, once he is deprived of the possession/management of the property namely, the secured assets. Therefore, the condition of deposit is a condition of impossibility which renders the remedy made available before the DRT as nugatory and illusory. The learned Attorney General refutes the aforesaid contention. It is further submitted that such a condition of pre-de-posit has been held to be valid by this Court earlier and a reference has been made to a decision reported in 1975 (2) SCC 175 at p. 202, Anant Mills Co. Ltd. v. State of Gujarat, to submit that such a provision is made to regulate the exercise of the right of an appeal conferred upon a person. The purpose is that right of appeal may not be abused by any recalcitrant party and there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed and there may be speedy recovery of the amount of tax due to the Corporation.

58. In another decision relied upon reported in 1980 (Supp) SCC 574, Seth Nandlal v. State of Haryana, there was no provision for a waiver or reduction of amount of pre-de-posit, it is submitted, even that the provision was held to be valid as the purpose was to prevent frivolous appeals and revisions which impedes the implementation of the ceiling policy. Referring to yet another decision, reported in 1988 (4) SCC 402, Vijay Prakash D. Mehta v. Collector Page: 363of Customs (Prevention), Bombay, it is submitted that right to appeal is neither an absolute right nor an ingredient of natural justice which principles are to be followed in judicial and quasi-judicial proceedings. A right of appeal is a statutory right and it can be circumscribed by the conditions. We also find that there are further observations to the effect that the condition is for the purpose to act in terrorem to make the people comply with the provisions of the law. 1993 (1) SCC 22, Shyam Kishore v. Municipal Corporation of Delhi, has been referred to submit that a similar provision was upheld without there being any provision for waiver of the condition. The submission is that such a provision as that of pre-deposit before maintaining an appeal is not unknown to law and there are several other statutes containing similar provisions. Emphasis is on the provision of waiver or reduction of the amount required to be paid which, it is submitted, strikes a balance between the right of a person to appeal and the right of the person appealed against for speedy recovery of his dues.

59. We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact that it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like tiling a suit in Civil Court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in (1974) 2 SCC 393, Smt Ganga Bai v. Vijay Kumar, where in respect of original and appellate proceedings a distinction has been drawn as follows:

“There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and, therefore, an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.”

60. The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive more particularly when the secured as sets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on basis of one sided claim alone, cannot be said to be a reason able condition at the first instance itself be fore start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce, the amount, does not cure the inherent infirmity leaning one-sidedly in favour of the pare, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as' “PAs; without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the concerned authority. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the de posit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.

61. In the case of Seth Nandlal (supra), while considering the question of validity of pre-deposit before availing the “right of appeal the Court held”…… right, appeal is a creature of the statute and while granting the right the Legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory…. ….” While making said observation this Court referred to the decision in the case of Anant Mills Co. Ltd. (supra). Page: 364In both the above-noted decisions this Court had negated the plea raised against pre-deposit but in the case of Seth Nandlal (supra) it was found that the condition was not so onerous since the amount sought to be deposited was meagre and that too was confined to the landholding tax payable in respect of the disputed area i.e the area or part thereof which is declared surplus by the Prescribed Authority, after leaving the permissible area to the appellant. In the above circumstances it was found that even in the absence of a provision conferring discretion on the appellate authority to waive or reduce the amount of pre-deposit, it was considered to be valid, for the two reasons indicated above. The facts of the case in hand are just otherwise.

62. As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the Court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.

63. Yet another justification which has been sought to be given for the requirement of de posit is that the secured assets which may be taken possession of or sold may fall short of the dues therefore such a deposit may be necessary. We find no merit in this submission too. In such an eventuality the recourse may have to be taken to sub-section (10) of Section 13 where a petition may have to be filed before the Tribunal for the purpose of making up of the short-fall.

64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii) there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, Sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.

16. In Income Tax Officer, Cannanore's case (supra), the Hon'ble Supreme Court held as follows:

3. The relevant provisions of the Act may be first noticed. Section 156 provides that when any tax interest, penalty, fine or any other sum is payable in consequence of any order passed under the Act, the Income tax Officer shall serve upon the assessee a notice of demand in the prescribed form specifying the sum so payable. Under Section 220(1) any amount specified in the notice of demand under Section 156 has to be paid within 35 days of the service of the notice or within such lesser periods as may be specified under the proviso to sub-section (1). If the amount is not paid within the period limited or extended (the assessee can ask for an extension) the assessee shall be deemed to be in default. Sub-section (6) of Section 220 provides that where an assessee has presented an appeal under Section 246 the Income-tax Officer may, in his discretion and subject to such conditions as he may think fit, treat the assessee as not being in default so long as the appeal remains pending. Section 221 provides for the imposition of penalty when the assessee is in default. Sections 222 to 224 relate to the issuance of a certificate to the Tax Recovery Officer. Under Section 225 the Income-tax Officer can order stay of proceedings, even after the certificate has been issued to the Tax Recovery Officer. It may be mentioned that the last four section in terms relate to recovery of tax, but by virtue of Section 229 any penalty imposed is also recoverable in the same manner. Section 246 to which reference has been made in Section 220(6) gives the appealable orders against which an assessee may appeal to the Appellate Assistant Commissioner. Appeals to the Tribunal are dealt with by Sections 252 to Page: 365255. Section 252 provides merely for constitution of the tribunal. Section 253 says that any assessee aggrieved by the orders set out in Clauses (a), (b) and (c) of sub-section (1) may appeal to the tribunal. The Commissioner is also entitled to direct the Income Tax Officer to the an appeal against the order of an Appellate Assistant Commissioner made under Section 250. Section 254 specifies the orders which the tribunal can make. Sub-section (1) which is material may be reproduced below:—

“254. Orders of Appellate Tribunal - (1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.”

Section 255 gives the procedure of the Appellate ‘Tribunal. Sub-sections (5) and (6) of this section need alone be noticed:

‘255(1)………………

(2)………………

(3)……………

(4)……………

(5) subject to the provisions of this Act, the Appellate Tribunal shall have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the places at which the Benches shall hold their sittings.

(6) The Appellate Tribunal shall for the purpose of discharging its functions, have all the powers which are vested in the Income-tax authoritites referred to in Section 131, and any proceeding before the Appellate Tribunal shalll be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Indian Penal Code (XLV of 1860) and the Appellate Tribunal shall be deemed to be a civil court for all the purposes of Section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (V of 1898).’

Section 131 may at this stage be referred to. It gives to the Income-tax Officer, the Appellate Assistant Commissioner and the Commissioner the same powers as are vested in the court under the Code of Civil Procedure when trying a suit in repeat of the matters specified in the section. But these powers relate to discovery an inspection; enforcing the attendance of witness compelling production of books of account etc. (sick) commissions and allied matters.’

4. There can be no manner of doubt that by provisions of the Act or the Income-tax Appel Tribunal Rules 1963 powers have not been expressly conferred upon the Appellate Tribunal to stay proceedings relating to the recovery of penalty or tax due from an assessee. At the same time it is significant that under Section 220(6) the power of stay by treating the assessee as not being in default during the pendency of an appeal has been given to the Income-tax Officer only when an appeal has been presented under Section 246 which will be to the Appellate Assistant Commissioner and not to the Appellate Tribunal. There is no provision in Section 220 under which the Income-tax officer or any of his superior departmental officers can be moved for granting stay in the recovery of penalty or tax. It may be that under Section 225 notwithstanding that a certificate has been issued to the Tax Recovery Officer for the recovery of any tax (the position will be the same with regard to penalty) the Income-tax Officer may grant time for the payment of the tax. In this manner he can probably keep on granting extensions until the disposal of the appeal by the tribunal. It may also be that as a matter of practice prevailing in the department the Commissioner or the Inspecting Assistant Commissioner in exercise of administrative powers can give the necessary relief of staying recovery to the assessee but that can hardly be put at par with a statutory power as is contained in Section 220(6) which is confined only to the stage of pendency of an appeal before the Appellate Assistant Commissioner. The argument advanced on behalf of the appellant before us that in the absence of any express provisions in Sections 254 and 255 of the Act relating to stay of recovery during the pendency of an appeal it must be held that no such power can be exercised by the tribunal, suffers from a fundamental infirmity in as much as it assumes and proceeds on the premise that the statute confers such a power on the Income-tax Officer who can give the necessary relief to an assessee. The right of Page: 366appeal is a substantive right and the questions of fact and law are at large and are open to review by the appellate tribunal. Indeed the tribunal has been given very wide powers under Section 254(1) for it may pass such orders as it thinks fit after giving full hearing to both the parties to the appeal. If the Income-tax Officer and the Appellate Assistant Commissioner have made assessments or imposed penalties raising very large demands and if the appellate tribunal is entirely helpless in the matter of stay of recovery the entire purpose of the appeal can be defeated if ultimately the orders of the departmental authorities are set aside. It is difficult to conceive that the legislature should have left the entire matter to the administrative authorities to make such orders as they choose to pass in exercise of unfettered discretion. The assessee, as has been pointed out before, has no right to even move an application when an appeal is pending before the appellate tribunal under Section 220(6) and it is only at the earlier stage of appeal before the Appellate Assistant Commissioner that the statute provides for such a matter being dealt with by the Income-tax Officer. It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Southland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary ‘implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. 1 at page 88 it has been stated:

“It is the duty of the Judges to apply the laws, not only to what appears to be regulated by then-express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it.”

Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that “where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, ea quoqe concessa esse vindentur, sine quibus jurisdictio explicari non potuit.” An instance is given based on Ex Parte, Martin, (1879) 4 QBD 212 at p. 491 that “where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedy conveyed by the enactment, for the power would be useless if it could not be enforced.”

17. In Sita Ram's case (supra), the Hon'ble Supreme Court held as follows:—

“42. Going to the basics, an appeal “is the right of entering a superior court and invoking its aid and interposition to redress the error of the court below…An appeal, strictly so called, is one “in which the question is, whether the order of the court from which the appeal is brought was right on the materials which that court had before it” (per Lord Davey, Ponnamma v. Arumogam, (1905) A.C 383 at P. 390)…A right of appeal, where it exists, is a matter of substance, and not of procedure (Colonial Sugar Refining Co. v. Irving, (1905) AC 369; Newman v. Klausner, (1922) 1 K.B 228”. 3 Thus the right of appeal is paramount, the procedure for hearing canalise so that extravagant prolixity or abuse of process can be avoided and a fair workability provided. Amputation is not procedure while pruning may be.

43. Of course, procedure is within the Court's power but where it pares down pre-judicially the very right, carving the kernel out, it violates the provision creating the right. Appeal is a remedial right and if the remedy is reduced to a husk by procedural excess, the right became a casualty. That cannot be.”

18. Learned counsel for the petitioner has also re lied upon the findings of the earlier Full Bench of this Court in Jai Singh v. State of Haryana, 1995 (1) RRR 623 : 1995 (1) PLR 614, wherein it was held as follows:

“78. In order to appropriate the contention of the counsel that right of appeal is illusory, it would be expedient to notice the impugned provisions regarding appeal provided by the Act of 1992 which runs as under:

‘(1) Any person aggrieved by an order of Assistant Collector of the First Grade may, within a period of thirty days from the date of order Page: 367passed under sub-section (1) or sub-section (2) of Section 7 prefer an appeal to the Collector in such form and manner, an may be prescribed, and the Collector, may, after hearing the appeal, confirm, vary or reverse the order as he deems fit:

Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7 is deposited with the Collector’.

The Statute confers a right of appeal against the order of ejectment under Section 7(1) or imposition of penal damages under Section 7(2) to the Collector. After conferring a right of an appeal in categorical terms an (sick) has been added by providing a proviso to the effect that no appeal shall lie unless the penalty implied is deposited.”

19. Learned counsel for the respondents has, on the other hand, has relied upon Gujarat Agro Industries Co. Ltd v. Municipal Corporation of he City of Ahmedabad, (1999) 4 SCC 468 : AIR 1999 SC 1818, Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive) Bombay, (1988) 4 SCC 402 : AIR 1988 SC 2010, Seth Nand Lal v. State of Haryana, 1980 PLJ 470 and Emerald International Ltd v. The State of Punjab, (1997-2) 116 PLR 797.

20. In Gujarat Agro Industries Co. Ltd's case (supra), the Hon'ble Supreme Court held as follows:

“By the Amending Act I of 1979 discretion of the Court in granting interim relief has now been limited to the extent of 25% of the tax required to be deposited. It is, therefore, contended that earlier decision of this Court in Anant Mills case may not have full application. We, however, do not think that such a contention can be raised in view of the law laid by this Court in Anant Mills case. This Court said that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal which is statutory right can be conditional or qualified. It cannot be said that such a law would be violative of Article 14 of the Constitution. If the statute does not create any right of appeal, no appeal can be filed. There is a clear distinction between a suit and an appeal. While every person has an inherent right to bring a suit of a civil nature unless the suit is barred by statute. However, in regard to an appeal, position is quite opposite. The right to appeal inheres in no one and, therefore, for maintainability of an appeal there must be authority of law. When such a law authorises filing of appeal, it can impose conditions as well [see Smt. Canga Bai v. Vijay Kumar ((1974) 2 SCC 393)]”.

21. In Vijay Prakash D. Mehta and Jawahar D. Mehta's case (supra), the Hon'ble Supreme Court held as follows:

“9. Right to appeal is neither an absolute right nor an ingredient of natural justice the principles of which must be followed in all judicial and quasi-judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant.”

22. In Seth Nand Lal's case (supra), the Hon'ble Supreme Court held as follows:

“19 The next provision challenged as unconstitutional is the one contained in s. 18(7) imposing a condition of making a deposit of a sum equal to 30 times the land holdings tax payable in respect of the disputed area before any appeal or revision is entertained by the appellate or revisional authority a provision inserted in the Act by Amending Act 40 of 1976. Section 18(1) and (2) provide for an appeal, review and revision of the orders of the prescribed authority and the position was that prior to 1976 there was no fetter placed on the appellate/revisional remedy by the statute. However, by the amendments made by Haryana Act No. 40 of 1976, sub-ss. (7) and (8) were added and the newly inserted sub-s. (7) for the first time imposed a condition that all appeals under sub-s. (1) or sub-s. (2) and revisions under sub-s. (4) would be entertained only on the appellant or the petitioner depositing with the appellate or the re-visional authority a sum equal to 30 times the land holdings tax payable in respect of the 1207 disputed surplus area. Under sub-s. (8) it was provided that if the appellant or the petitioner coming against the order declaring the land surplus failed in his appeal or revision, he shall be liable to pay for the period he has at any time been in possession of the land declared surplus to which he was not entitled under the law, a licence fee equal to 30 times the land holdings tax recoverable in Page: 368respect of this area. On 6th June, 1978. the Act was further amended by Amending Act 18 of 1978 whereby the rigour of the condition imposed under sub-s. (7) was reduced by permitting the appellant or the petitioner to furnish a bank guarantee for the requisite amount as an alternative to making cash deposit and while retaining sub-s. (8) in its original form, a new sub-s. (9) inserted under which it has been provided that if the appeal or revision succeeds, the amount deposited or the bank guarantee furnished shall be refunded or released, as the case may be be if the appeal or revision fails the deposit or the guarantee shall be adjusted against the licence fee recoverable under sub-s.

(8) In the High Court, two contentions were urged: first, that s. 18(1) and (2), as originally enacted in 1972, gave an unrestricted and unconditional right of appeal and revision against the orders of the prescribed authority or the appellate authority but by inserting sub-ss. (7) and (8) by Act 40 of 1976, a fetter was put on this unrestricted right which was unconstitutional; secondly, even the mellowing down of the condition by Act 18 of 1978 did not have the effect of removing the vico of unconstitutionality, inasmuch as even the conditions imposed under the amended sub-s. (7) were so onerous in nature that they either virtually took away the vested right of appeal or in any event rendered it illusory. Both these contentions were rejected by the High Court and in our view rightly.

23. It is well settled by several decisions of this Court that the right of appeal is a creature of a statute and there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory (vide the latest decision in Anant Mills Ltd. v. State of Gujarat (1) Counsel for the appellants, however, urged that the conditions imposed should be regarded as unreasonably onerous especially when no discretion has been left with the appellate or revisional authority to relax or waive the condition or grant exemption in respect thereof in fit and proper cases and, therefore, the fetter imposed must be regarded as unconstitutional and struck down. It is not possible to accept this contention for more than one reason. In the first place, the object of imposing the condition is obviously to prevent frivolous appeals and 1208 revision that impede the implementation of the ceiling policy; secondly, having regard to sub-ss. (8) and (9) it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit or the guarantee is co-related to the land holdings tax (30 times the tax) which, we are informed, varies in the State of Haryana around a paltry amount of Rs. 8/- per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the land holdings tax payable in respect of the disputed area i.e, the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to these aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to s. 18(7) must, therefore, fail.”

24. With regard to the reference to the earlier decision of the Full Bench in Jai Singh's case (supra), learned Additional Advocate General, Haryana has argued that since the decision was set aside by the Hon'ble supreme Court, reliance on the same cannot be made.

25. Learned counsel for the petitioner has, however, countered by pointing out that the said decision in Jai Singh's case (supra) was over-ruled by the Hon'ble Supreme Court in State of Haryana v. Jai Singh, 2001 (1) CP (Civil) 579 on the ground that certain facets of Article 31A of the Constitution were not considered by the Full Bench and the reasoning adopted with regard to Section 13B of the Act was not discussed or commented upon.

26. On a conspectus of the decisions, relied upon by the learned counsel on both sides, it can be concluded that while a right of appeal is a pure and simple statutory right yet once such a right has been conferred its applicability cannot be rendered illusory. By way of random illustration, it may be mentioned that in the present case, the petitioner Page: 369has already incurred a penalty of 1.70 lac per hectare, in the present fragile situation of the agricultural economy with cases of indebted farmers suicides on the rise, the question before a Court would be ‘whether the exercise of such a right could prove to be so onerous as to render it a mirage.’ In this context, He Hon'ble ‘Supreme Court in Shyam Kishore's case (supra) has said “sometimes, to compel the assessee to pay up the demanded tax for several years in succession might very well cripple him altogether.” Even as regards the judgments cited by the Additional Advocate General, Haryana, it must be noticed that Gujarat Agro Industries, Co. Ltd's (supra) dealt with property tax, Vijay Prakash D. Mehta and Jawahar D. Mehta's case (supra) dealt with a case under the Customs Act, while only Seth Nand Lal's case (supra) related to pre-deposit of penalty by an agriculturist. Seth Nand Lal's case (supra) may be the closest case in point. The Additional Advocate General, Haryana has strenuously argued that in the said case, the Hon'ble Supreme Court had specifically upheld the validity of pre appeal deposit. In the said judgment what weighed with the Hon'ble Supreme Court was the following passage:

“Para 20……………… In the first place, the object of imposing the condition is obviously to prevent frivolous appeals and 1208 revision that impede the implementation of the ceiling policy; secondly, having regard to sub-ss. (8) and (9) it is clear that the cash deposit or bank guarantee is not by way of any exaction but in the nature of securing mesne profits from the person who is ultimately found to be in unlawful possession of the land; thirdly, the deposit or the guarantee is co-related to the land holdings tax (30 times the tax) which, we are informed, varies in the State of Haryana around a paltry amount of Rs. 8/- per acre annually; fourthly, the deposit to be made or bank guarantee to be furnished is confined to the land holdings tax payable in respect of the disputed area i.e the area or part thereof which is declared surplus after leaving the permissible area to the appellant or petitioner. Having regard to these aspects, particularly the meagre rate of the annual land tax payable, the fetter imposed on the right of appeal/revision, even in the absence of a provision conferring discretion on the appellate/revisional authority to relax or waive the condition, cannot be regarded as onerous or unreasonable. The challenge to s. 18(7) must, therefore, fail.”

27. A distinction has to be drawn among cases which deal with taxes and duties as in the case of property tax and the Customs Act and those which relate to a penalty in respect of an agricultural land of the farmers. Both classes cannot be judged by the same yardstick, more so in a country like ours where land holdings are shrinking while a large section of the populace is still rural and dependent on agriculture. Against this backdrop, we have no hesitation in holding that imposition of blanket liability of pre-deposit of the penalty is an onerous condition In any event, penalty can not be judged by the yardstick of initial amount of tax liability.

28. The next issue which arises is whether the above finding would render the provision ultra vires. In Sunil Batra (Ii); v. Delhi Administration., (1978) 4 SCC 494 : AIR 1978 SC 1675, the Hon'ble Supreme Court recognized the principle of reading down the provision so as to render it constitutional in the following terms:

“40. The jurisprudence of statutory construction, especially when a vigorous break with the past and smooth reconciliation with a radical constitutional value-set are the object, uses the art of reading down and reading wide, as part of interpretational engineering. Judges are the mediators between the societal tenses. This Court in R.L Arora v. State of Uttar Pradesh (AIR 1964 SC 1230) and in a host of other cases, has lent precendential support for this proposition where that Process renders a statute constitution, The learned Additional Solicitor General has urged upon us that the Prisons Act (Sections 30 and 56) can be a vehicle of enlightened values if we pour into seemingly fossilized words a freshness of sense. “It is well settled that if certain provisions of law construed in one way will be consistent with the Constitution, and if another interpretation would render them unconstitutional, the Court would lean in favour of the former construction.

218. If sub-section (2) of Section 30 enables the prison authority to impose solitary confinement on a prisoner under sentence of death not as a consequence of violation of prison discipline but on the sole and solitary ground that the prisoner is a prisoner under sentence of death, the provision contained in sub-section (2) would offend Article 20 in the first place as also Articles 14 and 19. If Page: 370by, imposing solitary confinement there is total deprivation of camaraderie amongst co-prisoners, co-mingling and talking and being talked to, it would offend Article 21. The learned Additional Solicitor General while not adopting any dogmatic position, urged that it is not the contention of the respondents that sub-section (2) empowers the authority to impose solitary confinement, but it merely permits statutory segregation for safety of the prisoner in prisoners' own interest and instead of striking down the provision we should adopt the course of so reading down the section as to denude it of its ugly inhuman features.”

29. Resultantly, by reading down the provision, it is held that Section 13B of the Act would be read down to incorporate within it the power in appellate authority to grant interim relief in an appropriate case where, the grounds so exist by passing a speaking order, even while normally insistence may be made on pre-deposit of penalty. In adjudicating the whether in a particular case interim relief of stay of a portion or the entire penalty has to be granted, the appellate authority would have to give r-cons why it proposes to dispense with the normal procedure of insistence of pre-deposit. Consequently, this writ petition is allowed and the matter is remitted back to the appellate authority to consider the appeal in terms of the law set down above.

No costs.

I agree Sd/- Ajay Tewari, J.

I agree Sd/- Mukul Mudgal, C.J

I agree Sd/- Adarsh Kumar Goel, J.

I agree Sd/- Ajay Kumar Mittal, J.

I agree with the conclusions of the Full Bench, even while indicating reasons in the separate accompanying judgment.

30. I have had the privilege of going through the judgement prepared in this case and have felt the urge of expressing myself in view of the importance of issues involved in this case.

31. The writ petition was filed simply to challenge the order passed on 25.8.2000 (Annexure P-7) by Assistant Collector 1st Grade, vide which the Assistant Collector has not only directed eviction of the petitioner but has imposed a penalty of Rs. 10,000/- per hectare per year upon him from 1993 onwards. The petitioner filed an appeal against the same, as per his rights under Section 13-B of the Punjab Village Common Lands (Regulation) Act, 1961 (for short, “the Act), which was dismissed primarily on the ground that the petitioner had not deposited the compensation, as ordered, before filing the appeal. It is observed that the appeal, as such, could not be heard.

32. The writ petition is filed for quashing of orders dated 22.7.2003 and 25.8.2000 Additional prayer is to issue a writ, order or direction, which this Court may deem just fit and proper in the facts and circumstances of the case. Thus, there is no challenge made to the provisions of Section 13-B of the Act or the proviso contained therein, which lays down the requirement of pre-deposit of the penalty, as imposed, as an essential condition to file the appeal. Apparently, the challenge to the impugned orders is only based on the facts as urged in the petition.

33. The need to consider the issue arose because of the reference made by the Division Bench before which the writ petition came up for hearing on 18.11.2008 Even though there was no challenge to that part of Section 13-B of the Act, which required the petitioner to deposit the penalty, yet the Division Bench apparently felt that the issue in regard to interpretation of Section 13-B of the Act confronted the Court. Since two earlier Division Benches of this Court had taken different views, the Bench, noticing this conflict admitted the case for decision by a Full Bench. The admission order is as under:—

“Through the instant writ petition, the petitioner has impugned the order passed by the Assistant Collector, First Grade, Yamuna Nagar, dated 25.8.2000 (Annexure P-7), whereby the Assistant Collector, First Grade, Yamuna Nagar, while ordering the eviction of the petitioner under Section 7(2) of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Village Common Lands Act) imposed a penalty of Rs. 10,000/- per hectare per year on the petitioner from the year 1993. Through the instant writ petition, the petitioner has also impugned the order dated 22.7.2003 passed by the Collector, Yamuna Nagar, declining to entertain the appeal preferred by the petitioner on account of the fact, that the petitioner had not deposited the penalty imposed by the Assistant Collector First Grade, Yamuna Nagar, vide his order dated 25.8.2000

The issue that confronts this Court in the disposal of the instant writ petition is the interpretation of Section 13-B of the Village Common Lands Act. A Division Bench of this Court in Satbir Singh v. The Collector, Jhajjar (Civil Writ Petition No. 15930 of 2008, decided on 8.9.2008) has held, that it is imperative for an individual who desires to raise a challenge by preferring an appeal under Section 13-B of the Village Common Lands Act, to deposit the entire penalty amount. As against the aforesaid determination in Satbir Singh's case (supra), a Division Bench of this Court in Sehaj Ram v. The Collector, Yamuna Nagar (Civil Writ Petition No. 13468 of 2007, decided on 28.8.2007) has concluded, that it is not necessary for a person aggrieved by an order passed under Section 7(2) of the Village Common Lands Act to deposit the penalty amount as a prerequisite for preferring an appeal under Section 13-B of the Village Common Lands Act.

In view of an apparent conflict in the views expressed by two Division Benches of this Court, we consider it just and appropriate to require Hon'ble the Chief Justice to constitute a Full Bench for resolving the controversy. Admitted to Full Bench.

It has been noticed in the order passed by the Assistant Collector, First Grade, Yamuna Nagar, that the petitioner is in arrears of rent from the year 1993. The appellate order in the present case is dated 22.7.2003 It is, therefore, apparent that the petitioner has continued in possession without paying any rent to respondent No. 4 i.e The Gram panchayat, Tajewala. Since it is not possible for us to express any view, one way or the other at the present juncture, we consider it just and appropriate to direct the petitioner to file an affidavit in this Court, that in case, the instant writ petition is decided against the petitioner, he will deposit the arrears of rent as have been determined by the Assistant Collector, First Grade, Yamuna Nagar (vide his order dated 25.8.2000) within two months of the said decision. Affidavit be filed within two weeks from today. In case, an affidavit as stated hereinabove, is filed by the petitioner duly authenticated by his counsel, the interim order passed in favour of the petitioner on 17.12.2004 shall continue till further orders, failing which the petitioner shall hand over the vacant possession of the land in question to the Gram panchayat, Tajewala, forthwith (after the expiry of the period of two weeks afforded to the petitioner to file an affidavit).”

34. Accordingly, a Full Bench was constituted and the writ petition came up for hearing before three Judges Bench on 5.3.2010 The need to constitute a Larger Bench was felt, when reliance was placed on some observations made by Full Bench of this Court in Jai Singh v. State of Haryana (Civil Writ Petition No. 5877of 1992). In this regard, it is observed:—

“We have gone through the of the Full Bench in Jai Singh's case (supra) and found that the reasoning given in the to uphold the condition of deposit of penalty amount as a prerequisite for preferring an appeal under Section 13(B) of the Act of 1961 is largely based on the facts that most of the lawyers appearing for the petitioners did not raise any arguments with regard to the validity of that condition. In our view, the condition imposed under Section 13(B) of the Act of 1961 regarding deposit of the entire penalty amount as a condition precedent for filing an appeal requires to be examined independently because the interpretation would effect the rural population of the State as the said condition is a stringent condition of the deposit of the entire penalty amount which in number of cases cannot be afforded by poor farmers. Mere reference to s relating to deposit of entire house tax, excise, custom duty, income tax or even house tax cases before filing the appeal under various fiscal legislation's may not have a direct bearing on the issue involved in this Full Bench reference which relates to the Agrarian Community. There is no power given to the appellate authority in appropriate cases to reduce the amount of penalty to be deposited or waive the deposit in a suitable case. This issue of the fettering of the jurisdiction of the appellate authority has not received the attention of the Full Bench. Accordingly, we are of the view that the findings recorded by a Full Bench in Jai Singh's case (supra) qua Section 13(B) of the Act of 1961 requires reconsideration by a Larger Bench of five Hon'ble Judges of this Court.

We order accordingly refer the issue involved in the present writ petition to a larger Bench consisting of five Hon'ble Judges.”

35. This is how the issue has now been considered by a Larger Bench.

36. Counsel appearing for the parties stuck to their different stands. The counsel for the petitioner and the amicus-curiae maintained that the proviso under Section 13-B of the Act being unreasonably onerous must be regarded as unconstitutional and struck down. On the other hand, the State counsel, by making reference to number of precedents, maintained that such or similar provisions have been upheld by the Hon'ble Supreme Court in large number of cases and, thus, the same is constitutionally valid and would not call for any interference. Both sides have cited number of precedents in support of their respective stands and accordingly it has been viewed that this proviso would need to be read down to incorporate within it the power of the Appellate Authority to grant interim relief in appropriate cases where the ground so exists by passing a speaking order while normally insistence may be made on pre-deposit of penalty.

37. Apparently, there would be no need to read down Section 13-B of the Act as such, and need would only be to read down the proviso contained under the Section. That need would also arise only if it is considered that this proviso is either unfair, harsh or otherwise making the right of appeal, as such, illusionary. To save the proviso from being invalidated, the aid of the concept of reading down the provision may have to be adopted.

38. It would be appropriate to consider the rigors of the proviso. The amicus-curiae has submitted with lot of stress that this provision has sufficiently negated the right of appeal and is a fetter imposed on the right and, thus, is unconstitutional.

39. In view of the precedents cited and noticed like of State of Gujarat v. Salimbhai Abdulgaffar Shaikh, 2003 (4) RCR (Criminal) 488 SC and James Joseph v. State Of Kerala., Civil Appeal No. 7207of 2010, it can be stated that right to appeal is not a natural, inherent or a vested right but exists only as a legislative privilege to be granted or withheld as seems best to the law making body. It is also true that under common law, appeal is a right conferred by a statute and does not exist unless so provided. It is required to be kept in mind that despite being a right having arisen in equity, it is not inalienable. Once provided, it is valuable, substantial and guarded in law. In Vijay Prakash D. Mehta and Jawahar D. Mehta v. Collector of Customs (Preventive) Bombay, (1988) 4 SCC 402 : AIR 1988 Supreme Court 2010, it is observed that right to appeal is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial adjudications. The right to appeal is a statutory right and it can be circumscribed by the conditions in the grant. Even in Gujarat Agro Industries Co. Ltd. v. Municipal Corporation of the City of Ahmedabad, (1999) 4 SCC 468 : AIR 1999 SC 1818, it is observed that right of appeal is the creature of a statute and it is for the legislature to decide whether the right of appeal should be unconditionally given to an aggrieved party or it should be conditionally given. Right of appeal, which is a statutory right, can be conditional or qualified.

40. From the above, the right of appeal and its nature is clearly made out. It can not be a matter of dispute that it being a right under the statute, can be a conditional one. That being a legal position, it would require consideration if the condition imposed while providing a right of appeal could be so unreasonable so as to defeat the very right, which is being provided by a statute. This issue, in the present case, is required to be examined in the background that the right of appeal has been provided by the statute is a conditional one and, thus, it is not a case where the statute has not made a provision for appeal. Section 13-B of the Act has made a provision for appeal and revision and this right is created by a statute in the following terms:—

“13-B. Appeal and revision:— (1) Any person aggrieved by an order of the Assistant Collector of the first grade may, within a period of thirty days from the date of order passed under sub-section (1) or sub-section (2) of Section 7 prefer an appeal to the Collector in such form and manner, as case may be prescribed, and the Collector may after hearing the appeal, confirm, vary or reverse the order as he deems fit.

41. After providing this right, the same is made conditional by the proviso made thereunder, which reads as under:—

“Provided that no such appeal shall lie unless the amount of penalty, if any, imposed under sub-section (2) of Section 7, is deposited Page: 373with the Collector.”

42. The issue is, thus, about the proviso. The right to make the appeal being conditional perhaps is not disputed. The submission is that this condition as imposed through this proviso is onerous and has rendered the right of appeal provided by the statute to be illusionary.

43. The proviso has been worded to say that appeal shall not lie, unless the amount of penalty is deposited with the Collector. It is the very maintainability of the appeal, which is put to question and in a way, this proviso may lead to taking away the right of appeal and revision, which is provided under the statute.

44. Mr. Rahul Sharma, Amicus-curiae, has made reference not only to the principle with regard to interpretation of right to appeal but has cited number of precedents to support his contention that the proviso is harsh and is taking away the right of appeal provided by the statute and hence, should be struck down. Reference is made to the Corpus Juris Secundum and it is urged that statutory provision relating to appeal must be interpreted in a manner that the Court perceive the legislature intended, and under applicable general rules of construction, a statute or a constitutional provision conferring, extending or regulating the right of appeal, should be liberally construed in favour of the right so as to preserve and maintain the right to appeal. It can further be observed that the provisions conferring the right to appeal must, in the interest of justice, be liberally construed in favour of the right. The substantial requirements of the statute must be complied with. While it is important to preserve the right, the legislative intend reflects itself in the procedure as well. Therefore, the sanctity of the procedure must be preserved to. It is the prerogative of the legislature to impose condition to avail the remedy but such conditions must be reasonable and must not be to the detrimental of the right or the litigant. It has also been observed that while the statute prescribing time and manner of procedure are to be strictly construed but still it is held that construction causing unnecessarily expense to litigant is not to be adopted. These being the parameters available under law, the sweep of the proviso made under Section 13-B of the Act may have to be tested in this background.

45. Mr. Sharma has made reference to some precedents in support of his submission. In Shyam Kishore v. Municipal Corporation of Delhi, (1993) 1 SCC 22 : AIR 1992 Supreme Court 2279, the provisions of Section 169 and 170 of Delhi Municipal Corporation Act were under consideration. Section 170 of the said Act lays down the conditions regarding right to appeal, which is provided under Section 169. As per Section 170, no appeal is to be ‘heard’ or ‘determined’ unless the amount, if any, in dispute in appeal has been deposited by the appellant in the office of Corporation. This was besides some other conditions for bringing the appeal within 30 days etc. The contention raised before the Hon'ble Supreme Court was that as per the provisions noted above, the appeal will have to be dismissed in limine if the tax in dispute is not paid alongwith the memorandum of appeal and that would place a very onerous condition on the right of appeal particularly in cases where there is substantial amount involved in appeal and the points raised in appeal are really contentious and debatable.

46. Against this, the plea of the Corporation was that validity of similar provisions have been upheld in number of cases. After making reference to the decision in Anant Mills Co. Ltd. v. State of Gujarat, 1975 (3) SCR 220 and Vijay Prakash Mehta's case (supra), the Supreme Court has observed that it had occasion to consider only the vires of milder provisions which permitted the Appellate Authority to waive or relax the condition of deposit. Reference is also made to Nand Lal v. State of Haryana, 1980 Supp SCC 574 : AIR 1980 Supreme Court 2097, in regard to the proposition that the right of appeal is a creature of statute and there is no reason why the legislature while granting the right can not impose condition for exercise of such rights so long as the conditions are not so onerous as to amount to unreasonable restriction rendering the right almost illusionary. It is also noticed that the Courts in these cases had no occasion to consider what the position would be if the conditions placed on the right to appeal were unduly onerous or such as to render the appeal totally illusionary. Having made reference to these cases, the words used in Section 170 (b) of the Delhi Municipal Corporation Act were held capable of broader interpretation. The expression used in the Section ‘heard’ or ‘determined’ ‘brought’ and ‘admitted’ were held to have some significance. It is held that it would sound plausible to say that such an appeal can be admitted or entertained but only can not be heard or disposed of without pre-deposit of the disputed tax. Such an interpretation was held to provide Page: 374some much needed relief from the harshness of the provisions. In this regard, the following observations would need notice:—

“It seems to us the words of S. 170(b) are capable of a broader interpretation. A perusal of S. 170 shows that the section uses three different expressions “heard or determined,” brought and “admitted in relation to an appeal and some significance is to be attached to the use of the expression” heard and determined. In like situations, other statutes such as the one considered by this Court in Lakshmi Rattan Engineering Works Ltd. v. Assistant Commr. Of Sales Tax, AIR 1968 SC 488 and those contained in certain other enactments like the Bombay and Calcutta Municipal Acts specifically prohibit the very entertainment of the appeal if the tax is not paid. When the DMC Act has carefully avoided the use of that word, we must give full effect to the differential wording. Also, the absence of a language in Cl. (b) of the proviso similar to that in Cl. (a) which indicates that an appeal filed beyond the period of limitation will not stand admitted unless the delay is condoned also warrants an inference that the payment of disputed tax is not a condition precedent to the entertainment or admission of the appeal. In the present statutory context, it sounds plausible to say that such an appeal can be admitted or entertained but only cannot be heard or disposed of without re-deposit of the disputed tax. Such an interpretation will provide some much needed relief from the harshness of the provision. These are riot days in which the calculation of the property tax is simple and uncomplicated the determination of the annual value of the property, except when based on the actual rent received from the property, involves various subjective factors and, not unoften, there is a wide gulf between the tax admitted to be due and the tax demanded. Sometimes, to compel the assessee to pay up the demanded tax for several years in succession might very well cripple him altogether. This apart, an assessee may not be able to deposit the tax while filing the appeal but may be able to pay it up within a short time, or at any rate, before the appeal comes on for hearing in the normal course. There is no reason to construe the provision so rigidly as to disable him from doing this. Again when an appeal comes on for hearing, the appellate judge, in appropriate cases, where he feels there is some great hardship or injustice involved, may be inclined to adjourn the appeal for some time to enable the assessee to pay up the tax. Though it will not be expedient or proper to encourage adjournment of an appeal, where it is ripe for hearing otherwise, only on this ground and as a matter of course, an interpretation which leaves some room for the exercise of a judicial discretion in this regard, where the equities of the case deserve it, may not be inappropriate. The appellate judge's incidental and ancillary powers should not be curtailed except to the extent specifically precluded by the statute. We see nothing wrong in interpreting the provision as permitting the appellate authority to adjourn the hearing of the appeal thus giving time to the assessee to pay the tax or even specifically granting time or instalments to enable the assessee to deposit the disputed ‘tax where the case merits it, so long as it does not unduly interfere with the appellate Court's calender of hearings. His powers, however, should stop short of staying the recovery of the tax till the disposal of the appeal. We say this because it is one thing for the judge to adjourn the hearing leaving it to the assessee to pay up the tax before the adjourned date or permitting the assessee to pay up the tax, if he can, in accordance with his directions before the appeal is heard. In doing so, he does not and cannot injunct the department from recovering the tax, if they wish to do so. He is only giving a chance to the assessee to pay up the tax if he wants the appeal to be heard. It is, however, a totally different thing for the judge to stay the recovery till the disposal of the appeal; that would result in modifying the language of the proviso to read: “no appeal shall be disposed of until the tax is paid. Short of this, however, there is no reason to restrict the powers unduly; all he has to do is to ensure that the entire tax in dispute is paid up by the time the appeal is actually heard on its merits. We would, therefore, read Cl. (b) of S. 170 only as a bar to the hearing of the appeal and its disposal on merits and not as a bar to the entertainment of the appeal itself.

47. It may need a notice here that the Hon'ble Supreme Court has observed that the Appellate Judges incidental and ancillary power should not Page: 375be curtailed except to the extent specifically precluded by the statute. The Hon'ble Supreme Court, thus, interpreted the provision in the manner as above suggested and observed that while doing so, one can steer clear of above problems of constitutional validity. The contention raised on behalf of the Corporation to read the provision rigidly and to soften the rigors by reference to the availability of recourse to the High Court by way of petition under Articles 226 and 227 in certain situations was not considered satisfactory solution. The Hon'ble Supreme Court ultimately wished that the statute itself be amended to make this provision clear.

48. In Anant Mills Co. Ltd.'s case (supra), Section 406 of the Bombay Provincial Municipal Corpo ration Act, 1949, was under consideration. The provision in regard to deposit of the amount in dispute for entertaining the appeal as contained in Section 406(2)(e) is as under:—

“(e) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value, the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing the appeal, has been deposited by the appellant with the Commissioner: Provided that where in any particular case the Judge is of the opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof, either un-conditionally or subject to such conditions as he may deem fit.”

49. The Hon'ble Supreme Court did not accept the argument that the impugned provision has the effect of creating a discrimination as is offensive to the principle of equality enshrined in Article 14 of the Constitution. It is observed that requirement about the deposit of amount claimed as a condition precedent to the entertainment of an appeal, which seeks to engage the imposition or the quantum of that tax was not found to have an effect of nullifying the right of appeal, especially when the discretion is vested in the Appellate Judge to dispense with the compliance of above requirement. Thus, the reason which primarily weighed with the Court to uphold the requirement of pre-deposit of the tax was the discretion which had been given to the Appellate Judge to relieve the appellant from the rigor of the above provision in case the Judge was of the opinion that it would cause undue hardship to the appellant.

50. Reference here may also be made to the case of Gujarat Agro. Industries Co. Ltd. (supra). In this case, the decision of Division Bench of Gujarat High Court, holding Section 406(2)(e) of the Bombay Provincial Municipal Corporation Act, in its application to Ahmedabad in the State of Gujarat to be valid piece of legislation was under challenge.

51. Reference is made to the earlier decision of Division Bench of Gujarat High Court dated October 27, 1969, where Clause (e) was held violative of Article 14 of the Constitution. The proviso accordingly was added to Clause (e) reproduced above, which came to be challenged before the Gujarat High Court on the same very plea that it is violative the provisions of Article 14 of the Constitution. The Division Bench, held that Clause (e) violated Article 14 of the Constitution. This decision of the High Court was challenged before the Supreme Court in Anant Mills Co. Ltd.'s case (supra) and the decision of the High Court was reversed and Clause (e) with added proviso was held not violative of Article 14 of the Constitution. The amended Clause (e) and the proviso, which were subject matter of constitutional challenge in the High Court and the High Court holding the same to be constitutionally valid, was challenged before the Supreme Court in this case. Here again, it is the proviso which saved the provision of appeal being rendered illusionary. In this case, the conditions imposed to the maintainability of the appeal were not considered so harsh to make the right of appeal illusionary while upholding the provisions of pre-deposit in this regard.

52. From the above, it would be reasonable to construe that the right of appeal may be a statutory right but can not be rendered illusionary. Right of appeal is more or less a universal requirement of guarantee of life and liberty routed in the conception that the men are fallible and Judges are men and that making assurance doubly C.W.P No. 20161 of 2004 (O & M):(19): assured before irrevocable deprivation of life and liberty come to pass, a full scale re-examination of the facts and the law is made an integral part of fundamental fairness or procedure. Even Article 39A requires of a State to secure the operation of the legal system to promote justice on the basis of equal opportunity and to ensure that the opportunity Page: 376of securing justice are not denied to any citizen by reasons of economic or other disabilities. Easy access to justice is an integral part of the right to move the Courts and it flows from the benevolent mandate of Article 39A. This Article expressly contemplates the existence of class of people who suffer from economic disabilities and has mandated the State to ensure that people belonging to that class are not deprived of access to justice. Accordingly, the provisions of Court Fees Act having classified litigants into those who are economically disabled and those who are not was held reasonable and permissible. Nobody is to be denied entry on account of huge court fees, particularly payable by the poorer section of the people. Doors of justice are not to be closed on ground of money. As observed in Central Coal Fields Ltd. v. Jaiswal Coal Co., 1980 Supp SCC 471 : AIR 1980 Supreme Court 2125, the right of effective access to justice has emerged in the third world countries as the first amongst the new social rights what with public interest litigation community based action and pro-bono public proceedings. Effective access to justice, thus, can be seen as the most basic requirement, the most basic human right of a system which proposed to guarantee legal rights.

53. While dealing with the absence of appeal, it has been observed that if the absence of appeal makes the whole procedure oppressive and arbitrary, the same can be condemned as unconstitutional. (See Prakash Amichand Shah v. State of Gujarat, (1986) 1 SCC 581 : AIR 1986 SC 468). Having made a provision for appeal, the same can not be rendered illusionary by providing some stringent conditions. Since the right of appeal is a statutory right and as per various authoritative pronouncements, the same can be made a conditional right. It is only to be seen whether such conditions imposed are reasonable or would render the right to be illusionary. It is also to be kept in view that the liability in this case is due to not any tax or such like liability where pre-deposit may have to be insisted upon. The distinction has to be drawn where the cases relate to tax liability or the liability under the Custom Act and the one where penalty is imposed in respect of use or occupation of agriculture land. One has also to keep in mind that the provisions have been made under the Act while taking away the jurisdiction of the Civil Court to deal with such matters and had it not been so, the right of appeal may have been available irrespective of any condition. The harshness of the provision can also be judged from the fact that when appeal is filed against an order in favour of the occupant or the person in possession of the land purported to be that of the Panchayat etc., no such stringent condition would apply.

54. In Central Coal Fields Ltd.'s case (supra), the Hon'ble Supreme Court had observed that it may have to consider from the point of view of policy and constitutionality whether inflated price for access to Court justice is just or legal. These observations came to be made because even the Central Government itself found the pinch of the excessive court fee that it was required to pay and to circumvent the same, had adopted an indirect way to directly approach the Supreme Court. It was in this context observed by the Hon'ble Supreme Court that while it is deplorable that some speculators gamble in litigation using the stratagem of pauperism, it is more deplorable that culture of magna carta, notwithstanding the anglo-Indian forensic system - and currently free India's Court process-should insist on payment of court fee on such a profiteering scale without co-related expenditure on the administration of civil justice that the levies often smack of sale of justice in the Indian reguaran-teed Constitutional, fundamental and legal system.

55. The penalty, as prescribed, lays down the minimum amount and the maximum, thus, taking away the discretion of the authorities dealing with the case and the right of appeal made conditional would lead to the provision being harsh in nature. This Section also has not made any provision as to what is to happen to the amount so deposited for entertaining the appeal, if ultimately appellant succeeds. The Section not only bars the jurisdiction of the Civil Court but has given finality to the order passed and the same can not be questioned in any manner in any Civil Court.

56. In order to save the validity of this proviso, it may have to be read down for which there are precedents. As observed in Shyam Kishore's case (supra), the appellate Judge would have incidental and ancillary power, which should not be curtailed except to the extent specifically excluded by the statute. There is no indication in the proviso that jurisdiction of the appellate Judge is excluded altogether to waive the penalty and, thus, the inherent rights of the appellate Judge to waive the condition in appropriate case can be read into the provision. Some interpretation, Page: 377which leaves some room for exercise of a judicial discretion, where equities deserve it, may be appropriate. The golden rule that in a statute dealing with ordinary people in every day life, the language is presumed to be used in its primary, ordinary sense, unless this stultifies the purpose of the statute or otherwise produces some injustice absurdities, anomaly or a contradiction in which case some secondary ordinary sense may be preferred so as to obviate the injustice, absurdity, anomaly or contradiction or fulfill the purpose of the statute. One of the principle of construction of provision in such like cases, as already noticed, causing unnecessary expense to litigant, is not to be adopted. Thus, to avoid injustice and unnecessary expense, the proviso to the Section may have to be read down to include the right to waive the condition by the appellate Judge in an appropriate case.