JUDGMENT [ENTITY], C.J.
1. The [SECTION] of the [ACT], as amended by [ACT], which imposes a pre-condition of depositing the difference in the amount of duty determined by the Collector under [SECTION] on reference from the Registering Officer under Subsection (1) thereof, for preferring an appeal under [SECTION] of the Act against the order of the Collector passed under Sub-section (2), is challenged in this writ petition as illegal, arbitrary and unconstitutional.
2. The fact of the matter is as follows:
3. The petitioners entered into various conveyance deeds for purchase of property at Municipal Nos-8-2-592, 593 and 592/1 situated at Mehid Nawaz Jung Road, Hyderabad. Seven documents in relation thereto were presented for registration before the 3rd respondent in the month of December, 1996. The 3rd respondent directed the petitioners to pay an amount of Rs. 12,06,970 being the deficit stamp duty on an assessment of the market value of the property. On reference to the 2nd respondent-The District Registrar (R & S) Registration and Stamps Department-cum-Collector by the Registering Officer under [SECTION] of the [ACT], the same was confirmed by proceedings dated 27.3.2000 in terms of [SECTION] The petitioners filed an appeal as provided under [SECTION] of the Act before the Chief Judge, City Civil court, Hyderabad. The said appeal was, however, returned by the court on 20.4.2000 with an endorsement that the petitioners must deposit into court the deficit stamp duty amount of Rs.12,06,970/-, in terms of the proviso appended to [SECTION] of the Act as a pre-condition for entertaining the appeal. Challenging the constitutionality of the said proviso, the present writ petition is filed.
4. A Division of this Court in [PRECEDENT], while considering the validity of the proviso to [SECTION] whereby a pre-condition of depositing of fifty per cent of the deficit duty arrived at by the Registering Officer was imposed for making reference to the Collector for determination of the market value of the property under Sub-section (2), held:
The object and amendment of the [ACT] is to collect the proper stamp duty and such proper stamp duty is dependent upon the determination of market value of the subject-matter of the document and such determination is only made by the Collector and until such determination is made by the Collector, the document which is received for registration even after collection of whatever stamp duty deposited and the registration fee is paid by the party, is not released to the party, but is kept pending registration and such document kept pending registration is not having any evidentiary value and is not entered into the books of registration and no certified copy of the same can be granted and no rights flow from such document, be it sale, exchange, gift, mortgage, lease etc. By keeping the document pending registration, there is enough safeguard for collecting the deficit stamp duty, as in the event of the Collector accepting the valuation suggested by the Registering Officer and the party not paying the said stamp duty, the document remains under pending registration and even may be returned to the party for want of the payment of the differential stamp duty. This being the aim and intendment of the stamp duty protecting the public exchequer, there is absolutely no nexus for calling upon the party to deposit fifty per cent of the differential stamp duty as a condition for making reference. It is not that a party seeks a reference on his own, but the Registering Officer is duly bound to refer the moment party does not accept the valuation suggested by him. The party presenting a document is the master of his choice as to whether he should deposit the deficit stamp after determination of the collector or not. If he feels that the market value determined by the Collector is exorbitant, then he may resile from going ahead with the registration of the document and may take return of the document. the authority under the [ACT] cannot force upon the party to compulsorily pay the stamp duty. Such compulsion is imposed only upon the party's insistence for registration of the document and not otherwise. In such circumstances, the imposition of deposit of fifty per cent of the amount towards differentia stamp duty as a condition for referring the matter to the Collector runs beyond the scope intendment and object of the Act and, thus, offends equal protection of laws guaranteed under [SECTION] of [ACT] and thus, is arbitrary and the said proviso to [SECTION] of [ACT] is unconstitutional and is accordingly struck down.
5. Doubting the correctness of the aforesaid decision, a reference was made to this bench.
6. Before the Full Bench, however, Mr. [ENTITY], the learned counsel appearing on behalf of the petitioners has raised a short question. He submitted that having regard to the fact that the sale deeds were executed in December, 1996 and reference to the 2nd respondent herein by the 3rd respondent for calculation of the proper stamp duty having been made in January, 1997, the un-amended provisions of the Act would apply in the instant case. The learned counsel in support of the said submission has strongly placed reliance on the decisions of the Supreme Court in [PRECEDENT], and in [PRECEDENT], .
7. Mr. [ENTITY], learned Government Pleader for Revenue, on the other hand, would urge that the amended [SECTION] is valid and constitutional.
8. Having regard to the submissions made by the learned counsel appearing for the petitioner, it is not necessary for us to consider the constitutionality or otherwise of the amended provisions of [SECTION] of the Act. The only question which arises for consideration is, that the reference by 3rd respondent to 2nd respondent under [SECTION] having been made in January, 1997 i.e. prior to the coming into force of the [ACT], wherein the order was passed on 27.3.2000, whether the unamended provisions of [SECTION] should apply or the amended provisions inserted by reason of [ACT].
9. The requirement of payment of stamp duty and compulsory registration of documents is governed by the [ACT] and [ACT]. The object of the [ACT] is to collect revenue whereas that of the [ACT] is to prevent people being duped in purchasing property who do not own it. [SECTION] has been enacted how to deal with the under-valued documents when presented before the Registering Officer for registration of the documents. [SECTION] has been inserted by way of [ACT] w.e.f 16.8.1975. By reason of [ACT], Sub-sections (1), (2) and (6) were Substituted with effect from 1.5.1998. [SECTION] was amended by [ACT].
10. In terms of [SECTION], where the Registering Officer appointed under the Act has reason to believe that the market value of the property in relation to any instrument like conveyance, gift, partition, settlement, agreement relating to construction, development or sale of any immovable property, presented before him for registration, has not been truly set forth in the instrument or if the value arrived at by him as per the guidelines prepared or caused to be prepared by the Government from time to time has not been adopted by the parties, he may, while keeping such instrument pending, refer the matter to the Collector for determination as to true market value of the property and the proper duty payable thereon. Proviso appended to Sub-section (1) provides that such reference shall be made only upon deposit of fifty per cent of the deficit duty arrived at by the Registering Officer. Under Sub-section (2), the Collector has to determine the market value of property in relation to the document after holding an enquiry as may be prescribed by rules made under the Act after giving the parties an opportunity of making their representations. Sub-section (4) provides for an appeal against the order passed by the Collector to the appellate authority as provided under Sub-section (5). However, proviso to Sub-section (2) imposes a prerequisite of depositing of the difference, if any, in the amount of duty arrived at by the Collector, upon determination of the market value of the property under Sub-section (2), before the appellate authority for filing the appeal.
11. By reason of [ACT], Sub-sections (1), (2) and (6) were amended with effect from 1.5.1998. The unamended provisions of [SECTION] to the extent relevant reads as follows:
47-A. Instruments of conveyance etc. under-valued how to be dealt with : (1) Where the Registering Officer appointed under the [ACT], while registering any instruments of Conveyance, exchange, gift, partition, settlement or release reason to believe that the market value of the property which is the subject-matter of such instrument has not been truly set forth in the instrument he may, keep pending such instrument and refer the matter to the Collector for determination of market value of such property and proper duty payable thereon.
(2) On receipt of a reference under Sub-section (1) the Collector shall, after giving the parties an opportunity of making their representation and after holding an enquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject-matter of such instrument and the duty as aforesaid. The difference, if any, in the amount of duty, shall be payable by the person liable to pay the duty.
12. Therefore, by reason of the amendment of [SECTION], a pre-condition of deposit of the differential amount of stamp duty determined by the Collector was imposed for preferring an appeal under Sub-section (5) against such determination made by the Collector under Sub-section (2).
13. It is not in dispute that an order has been passed by the 2nd respondent on 27.3.2000 confirming the order of the 3rd respondent directing the petitioners to pay deficit stamp duty of Rs.12,06,970 by which date, the amendment has come into force. There is no dispute that the documents in question alleged to be executed in the month of December, 1996 were presented before the Registering Officer - 3rd respondent on various dates in December, 1996 and reference by 3rd respondent to the 2nd respondent was made in January, 1997. Admittedly, as on the date the reference was made, the old provisions of [SECTION] exist and in fact the 3rd respondent must have made reference to the 2nd respondent by reason of the unamended provisions of [SECTION] and, therefore, the said provisions would only govern the case of the petitioners. The petitioners' memorandum of appeal has not been accepted by the Civil Court, inter alia on the ground that they had not complied with the pre-condition of depositing of the deficit stamp duty determined by the 2nd respondent for filing the appeal in terms of the first proviso to [SECTION] of the Act.
14. An appeal is the right of entering a superior Court and invoking its aid and interposition to redress an error of the Court below. In [PRECEDENT], , the Apex Court referred to the decisions of [PRECEDENT], and held:
The only difference between a suit and an appeal is this that an appeal "only reviews and corrects the proceedings in a cause already constituted but does not create the cause". As it is intended to interfere in the cause by its means, it is a part of it, and in connection with some matters and some statutes it is said that an appeal is a continuation of a suit. In the present Act the intention is to give relief in respect of excessive interest in a suit, which is pending, and a preliminary decree in a suit of this kind not terminate the suit. The appeal is a part of the cause because the preliminary decree, which emerges from the appeal, will be the decree, which can be a final decree. Such an appeal cannot have an independent existence.
15. A right of appeal is a substantive right and it is a creature of a statute. In [PRECEDENT], , it has been held: 568.
Right of appeal and revision, it is now well settled, is a creature of statute and there can be no inherent right either of appeal or of revision against a judgment or order of a Court.
16. A right of appeal vests in a suitor at the time of institution of original proceedings. In [PRECEDENT], the Privy Council held:
To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right, is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case, there is an interfere with existing rights contrary to the well known general principle that statutes are not be held to act retrospectively unless a clear intention to that effect is manifested.
17. In [PRECEDENT] (supra), the appellant therein submitted to the Sales Tax Officer, Akola for assessment on 28.11.1947 and the case in turn was submitted to the Assistant Commissioner, Sales Tax, Amravati and assessment orders were passed by the Assistant Commissioner on 8.4.1950. The appellant filed an appeal before the Sales Tax Commissioner, Madhya Pradesh under [SECTION] of [ACT], but the Commissioner had declined to admit appeal on the ground that the appeal had not been accompanied by any proof of the payment of the tax in respect of which the appeal had been preferred as required under the Amendment Act 57 of 1949 which came into force w.e.f. 25.11.1949. As per the unamended [SECTION], as it stood prior to the amendment, an aggrieved assessee had only to pay such amount of tax as he might admit to be due from him, but by the [ACT], the appeal has to be accompanied by satisfactory proof of payment of the tax in respect of which the appeal had been preferred. The Supreme Court referring to the decisions in [PRECEDENT], and the decision in [PRECEDENT]., (supra) held:
a right appeal is not merely a matter of procedure. It is a matter of substantive right. This right of appeal from the decision of an inferior tribunal to a superior tribunal becomes vested in a party when proceedings are first initiated in, and before decision is given by, the inferior Court. In the language of [ENTITY] C.J, in [PRECEDENT], to disturb an existing right of appeal is not a mere alteration in procedure. Such a vested right cannot b e taken a way except by express enactment or necessary intendment. An intention to interfere with or to impair or imperil such a vested right cannot be presumed unless such intention be clearly manifested by express words or necessary implication,
18. The contention to the effect that the requirement as to depositing of the amount does not affect the right of appeal was repelled stating:
Further this argument cannot prevail in view of the decision of the Calcutta High Court in [PRECEDENT]. No cogent argument has been adduced before us to show that that decision is not correct. There can be no doubt that the new requirement "touches" the substantive right of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended section gives is certainy less than the right, which was available before. A provision which is calculated to deprive the appellant of the unfettered right of appeal cannot be regarded as a mere alteration in procedure. Indeed the new requirement cannot be said merely to regulate the exercise of the appellant's pre-existing right but in truth whittles down the right itself and cannot be regarded as a mere rule of procedure.
19. In [PRECEDENT] (supra), [ENTITY], C.J (as his Lordship then was) has laid down the following propositions:
1. The legal pursuit of a remedy, suit, appeal land second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding;
2. The right of appeal is not a mere matter of procedure but is a substantive right;
3. The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrier of the suit;
4. The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the list commences and although it may be actually exercised when the adverse judgment is pronounced, such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of appeal; and
5. This vested right of appeal can be taken away only by a subsequent enactment if it so provides expressly or by necessary intendment and not otherwise.
20, In [PRECEDENT], the apex Court referring to the decisions in [PRECEDENT] AND [PRECEDENT] (supra) held:
Before ascertaining the effect of the enactments aforesaid passed by the Central Legislature on pending suits or appeals, it would be appropriate to bear in mind two well-established principles. The first is that "while provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them, provisions which touch a right in existence at the passing of the statute re not to be applied retrospectively in the absence of express enactment or necessary intendment. (See [PRECEDENT]). The second is that a right of appeal being a substantive right the institution of a suit carries with it the implication that all successive appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the career of the suit. There are two exceptions to the application of this rule, viz, (1) when by competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect and (2) when the court to which appeal lay at the commencement of the suit stands abolished.
21. To the same effect is the decision of the Apex Court in [PRECEDENT], .
22. Reference in this connection may also be made to [PRECEDENT], . The principle that a right of appeal vests in the suitor at the time of institution of the suit is applicable not only in cases where the change in law abolishes altogether the right of appeal available at the date of initiation of original proceedings or whether it merely hampers its exercise by imposing restrictions.
23. We may notice that in [PRECEDENT] (supra) the decision of Calcutta High Court in [PRECEDENT] and the decision of the Madras High Court in IN RE, [PRECEDENT], wherein the question related to the effect of change in law in Letters Patent restricting the right of appeal from judgment of a single Judge by putting condition of leave to be obtained from that judge, and the decision of the Calcutta High Court in [PRECEDENT], wherein change in law imposing condition of deposit of decretal amount before exercise of right of appeal for setting aside an execution sale, were noticed and approved. The decision of the Apex Court in [PRECEDENT] (supra) was approved in [PRECEDENT], and [PRECEDENT], .
24. [PRECEDENT] IS A CASE, which squarely covers the case of the petitioners herein.
25. The question that arose for consideration before the Apex Court was whether right of appeal accrue to a claimant under the [ACT] notwithstanding its repeal by the [ACT]. There the claim petition for compensation was filed on 23.12.1988 and thereafter the new Act came into force with effect from 1.7.1989. The claim petition, which was instituted under the 1939 Act was disposed of on 29.6.1992 after the new Act came into force. (In the present case also the reference was made by the Registering Officer to the 3rd respondent in January, 1997 and orders were passed by the 3rd respondent on 27.3.2000 i.e. after [ACT] came into force from 1.5.1998). However, the [SECTION] of the 1988 Act requires the appellant to deposit twenty five thousand or fifty percent of the amount awarded whichever is less as a pre-condition for entertaining the appeal by the High Court. The High Court dismissed the appeal on the ground that the appellant had not deposited the amount as required under the [SECTION] of the new Act. Referring to the decisions of the Apex Court in [ENTITY]'s case, [PRECEDENT], and [PRECEDENT], , the Apex Court held:
In all these decisions, the view taken is that that unless the New act expressly or by necessary implication makes the provision applicable retrospectively, the right to appeal will crystallise in the appellant on the institution of the application in the Tribunal of first instance and that vested right of appeal would not be dislodged by the enactment of the [ACT]. In other words, the appellant would be entitled to file the appeal without being required to make the deposit under the [SECTION] of the [ACT]. The law, therefore, seems to be fairly well settled by the said three decisions of this Court.
26. As already noticed hereinbefore, the facts in the present case are similar to those in the aforementioned case before the Supreme Court. The same principle, in our opinion, is squarely applicable to the facts of the present case and thus we have no hesitation to hold that the first proviso I appended to [SECTION] of the Act inserted by [ACT] cannot be said to have any application' whatsoever in the instant case as the cause of action had arisen prior thereto. The right of the petitioners had been crystallised on the date when the Registering Officer had referred the matter to the Collector for determination of the market value of the property. The fact that orders were passed by the Collector on the reference subsequent to the came into force of [ACT] is (sic not) of any significance as the appeal preferred by the petitioners is in continuation of the reference proceedings initiated by the Registering Officer under the unamended provisions of the [ACT] and their right to prefer appeal is a pre-existing right conferred on them under the unamended provisions of the Act at the time the reference was made by the Registering Officer. Such right of appeal of the petitioners, crystallised under the provisions as it stood prior to amendment of the Act, cannot be taken away or dislodged by the amendment Act. Therefore, the Chief Judge, City Civil Court, Hyderabad is not correct in refusing to entertain the appeal filed by the petitioners on the ground that the differentia amount of stamp duty determined by the 2nd reference in the reference proceedings had not been deposited into Court.
27. There is another aspect of the matter, which must also be noticed. The registering officer had made the reference in the instant case to the 3rd respondent in January, 1997 itself and had the 3rd respondent disposed of the matter expeditiously or at least within a reasonable period of one year, the matter would have been settled prior to the coming into force of the amendment Act and the question of Civil Court declining to entertain the appeal for non-deposit of the deficit stamp duty would not have arisen.
28. For the reasons aforementioned, the Writ petition is allowed and the Chief Judge, City Civil Court, Hyderabad is hereby directed to entertain the appeal preferred by the petitioners under [SECTION] of the [ACT]. There shall be no order as to costs.