Gujarat High Court Case Information System Print SCA/8358/2012 5/ 5 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8358 of 2012 [ENTITY] - Petitioner(s) Versus [ENTITY] & 3 - Respondent(s) Appearance : MR [ENTITY] for Petitioner(s) : 1, None for Respondent(s) : 1 - 2. GOVERNMENT PLEADER for Respondent(s) : 3, MR [ENTITY] for Respondent(s) : 4, CORAM : HONOURABLE THE ACTING CHIEF JUSTICE [ENTITY] and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 29/06/2012 ORAL ORDER
(Per : HONOURABLE THE ACTING CHIEF JUSTICE [ENTITY]) By this writ-application, the writ-petitioner prays for issue of writ in the nature of mandamus or any other order or direction against the respondent to reconnect electric connection in the residential house of the petitioner, without implementing the order dated 8th June 2012 to pay a sum of Rs.2,41,611=64ps. as additional bill and to pay Rs.9,274=00 as the charge to compound the offence.
In this Application, the petitioner has further prayed for declaration that [SECTION] and [SECTION] of the [ACT] are void and ultra vires [SECTION], [SECTION] and [SECTION] of the [ACT].
As the writ-petitioner challenged the aforesaid provisions of the [ACT] as ultra vires the [ACT], the matter has been placed before us.
As it appears from the record that a Division Bench in the case of [PRECEDENT] and other allied matters decided on April 26, 2011) has already held that the provision contained in [SECTION] of the Act is not ultra vires the [ACT].
We, therefore, find no reason to deal with the above question again in this Application.
So far as the other prayer regarding validity of [SECTION] of the [ACT] which imposes a condition for deposit of amount as precondition for preferring appeal is concerned, we find that such provision cannot be held to be ultra vires.
In various Acts, this type of provision has been incorporated imposing deposit of amount as a condition of preferring statutory appeal. There is no dispute that the provision of appeal is a creature of statute and the Legislature has the right to impose condition for preferring an appeal. Even there are Acts where there is no provision of appeal against order of the adjudicating authority. Therefore, merely because condition is imposed for deposit of some amount as pre-requisite condition of preferring appeal, we do not find any reason to declare such provision as arbitrary so as to strike down such provision.
In this connection, we may profitably refer to the recent decision of the Supreme Court in the case of Government of Andhra Pradesh and Ors. [PRECEDENT] where the Apex Court, while considering a similar provision contained in [SECTION] of the [ACT] requiring pre-deposit of amount as condition of preferring appeal, considered various other earlier decisions of the said court dealing with similar provisions. The following observations in that case are relevant and quoted below:
"23. In [PRECEDENT], this Court referred to its earlier decision in [PRECEDENT] wherein this Court observed :
"The 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."
24. In [PRECEDENT] this Court held that the right of appeal is a creature of the 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. The right to appeal which is a statutory right can be conditional or qualified.
25. In [PRECEDENT], the question before the Bombay High Court was as to the validity of [SECTION] of the [ACT] which required pre-deposit of the disputed tax for the entertainment of the appeal. The Bombay High Court upheld the said provision and its judgment has been referred to with approval in the decision of this Court in [PRECEDENT]. (supra). This Court has also referred to its decision in [PRECEDENT] in which a similar provision was upheld.
26. It may be noted that in [PRECEDENT]. (supra) the appellant had challenged the constitutional validity of [SECTION] of the [ACT] which required the deposit of the tax as a precondition for entertaining the appeal. The [SECTION] permitted waiver of only 25% of the tax. In other words a minimum of 75% of the tax had to be deposited before the appeal could be entertained.
The Supreme Court held that the provision did not violate [SECTION] of the [ACT].
27. In view of the above, we are clearly of the opinion that [SECTION] of the [ACT] as amended by [ACT] is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct."
(Emphasis supplied by us.) In view of the above observations of the Supreme Court, there is, in our opinion, hardly any further scope of argument that the provisions of pre-deposit as condition precedent for maintaining an appeal is ultra vires the provisions of the [ACT].
Since we find that neither [SECTION] of the [ACT] can be branded as ultra vires the [ACT], we propose not to entertain this Application. So far as prayers other than those contained in paragraph 20(C) of the petition are concerned, the matter should go before the learned Single Judge having jurisdiction.
We make it clear that apart from prayer 20(C) of this Application, we have not gone into the other portion of the petition and dismissal of this prayer will not stand in the way of the petitioner in seeking appropriate remedy before appropriate forum, in accordance with law.
In view of disposal of prayer (C) of paragraph 20, the further presence of the Union of India is not necessary.
([ENTITY], Actg. C.J.) ([ENTITY], J.) /moin