S.H. Sheth, J.
1. The petitioners in all these petitions are property owners in the city of Ahmedabad. They are liable to pay property tax levied under the provisions of the Bombay Provincial Municipal Corporations Act, 1949. The property tax is revisable every four years. During 1979-80, the last revision of the property tax took place. As a result thereof, assessments of properties for the purpose of tax were raised very high. Therefore, the petitioners challenged those assessments in appeals which they filed before the Court of Small Causes under Section 40 (1) of the Bombay Provincial Municipal Corporations Act, 1949 after the bills were presented by the Corporation to them.
2. During the pendency of those appeals, the petitioners prayed for interim relief staying the recovery of the tax assessed by the Municipal Corporation. The Court of Small Causes could not give effective interim relief to the petitioners on account of the provisions of Clause (e) of Sub-section (2) of Section 406.
3. Therefore, in this group of petitions, the petitioners challenge the vires of Clause (e) of Sub-section (2) of Section 4G6. It is their contention that it is violative of Article 14 of the Constitution.
4. Before we turn to examine the contention which has been raised on behalf of the petitioners by Mr. K.M. Desai, it is necessary to note, in brief, the legislative history of this clause. The Bombay Provincial Municipal Corporations Act, 1949, came to be applied to the city of Ahmedabad in 1951. Clause (e) as it originally stood read as follows:
No such appeal shall be heard unless:
in the case of an appeal against a tax. or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, the amount claimed from the appellant has been deposited by him with the Commissioner.
This clause came to be challenged in this Court in Special Civil Application No. 662 of 1968 and Others decided by P.N. Bhagawati, C.J. and N.K. Vakil, J. on 27th October 1969. This Court held that it violated Article 14 of the Constitution. We shall refer hereinafter to the reasons which weighed with this Court in reaching that conclusion. In 1970, Gujarat Legislature added a proviso to Clause (e). It read as follows:
Provided that 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 thereof, either unconditionally or subject to such conditions as he may deem fit.
This proviso was also challenged before this Court on the ground that it violated the provisions of Article 14 of the Constitution.
5. In The Anant Mills Co. Ltd. and Ors. v. State of Gujarat and Ors. 14 GLR 826, a Division Bench of this Court consisting of P.N. Bhagwati, C.J. and T.U. Mehta, J., held that Clause (e) with the proviso violated Article 14 of the Constitution and was therefore, void. That decision was challenged in appeal before the Supreme Court. The Supreme Court in The Anant Mills Co. Ltd. etc. v. The Municipal Corpn. of City of Ahmedabad and Ors. : 3SCR220 , reversed the decision of this Court and held that Clause (e) with the proviso did not violate Article 14 of the Constitution.
6. Thereafter the Gujarat Legislature further amended Clause (c) and the proviso by Gujarat Act I of 1979. It may be stated that Gujarat Act I of 1979 was preceded by an Ordinance which was replaced by the said Act. The amended Clause (e) and the proviso read as under:
No such appeal shall be entertained unless:
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, upto 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 such 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 percent of the amount deposited required to be deposited. It is this amended Clause (e) and the proviso which are the subject-matter of the constitutional challenge in this group of petitions.
7. In support of his argument, Mr. K.M. Desai has relied upon the unreported decision of this Court in Special Civil Application No. 662 of 1968 and others decided on 14th 21st, 22nd, 23rd, 24th and 27th October 1969 by P.N. Bhagwati, C.J. and N.K. Vakil, J. It may be stated that there was no appeal against this decision to the Supreme Court. In relation to Clause (e) as it originally stood, this is what this Court said in the context of Article 14 of the Constitution. It created a clog on the right of appeal by providing that an appeal against tax or even an appeal against rateable value preferred after the municipal bill was presented shall not be heard unless the amount claimed from the appellant was deposited with the Commissioner. Such a clog made the right of appeal infructuous in case of those assessees who did not or could not deposit the amount of tax claimed from them, howsoever illegally, improperly or excessively the amount might have been assessed by the Commissioner. Clause (e) classified the appellants against property tax and rateable value into two classes (i) those who deposited the amount of tax assessed by the Commissioner, and (ii) those who could not do so. Whatever might be the reason for non-deposit, the clause gave different treatment to two classes. Those who belong to the former class were entitled to have their appeals heard, while those who belonged to the latter class were not given such right. In effect, they were deprived of the right of appeal. This Court thereafter, proceeded to examine whether such a classification had any rational nexus with the object of the provision for the appeal and observed as follows. It is difficult to see what nexus the deposit of the tax assessed had with this object. The legality or propriety of the tax which was to be tested in the appeal did not depend on the deposit of the tax nor did the deposit of the tax in any way facilitate the disposal of the appeal. The deposit of the tax which was impugned in an appeal had no relation to the object for which the appeal was provided. This Court thereafter tried to illustrate its proposition and stated as follows:. there are two appellants who own identical properties and who are assessed by the Commissioner on the same basis in respect of their properties. Suppose one of them has deposited the tax while the other has not. Though the appeals of both involve identical points and if one succeeds, the other logically must, the appeal of the appellant who has deposited tax will succeed while the appeal of the appellant who has not deposited the tax will be dismissed.
This Court thereafter observed that it did not serve the object of providing an appeal in or on to enable an assessee to have the legality, propriety or correctness of the tax decided in a judicial forum. In the opinion of this Court, as a matter of fact, that object would be defeated for the appellant who had not deposited the tax because he would not be able to upset the illegal, improper or excessive assessment made against him, not because there was no merit in his appeal but because he has not paid the tax which was illegal, improper or unjust and the propriety or legality of which was to be adjudicated upon in appeal. This Court, therefore, held that the provision for deposit of tax as a condition of hearing of appeal was, therefore, discriminatory and violative of equal protection clause in the Constitution. While so holding, this Court also turned down the argument that such a condition ensured speedy recovery of the tax and its reasonableness in the context of a fiscal statute like the present one. After having observed that speedy recovery of the tax, the legality or propriety of which was yet to be tested, could not be a germane consideration so far as the appeal was concerned, this Court stated that the provision for deposit of tax could not be said to be necessary for hearing and deciding the appeal. This decision was not challenged before the Supreme Court and, therefore, it has not been expressly overruled.
8. However, the decision of this Court in Anant Mills' case (supra) in which the vires of Clause (e) and the proviso added to it in 1970 were challenged was challenged before the Supreme Court. In observations which the Supreme Court has made in that decision are apposite and require to be seriously considered. We may state that what the Supreme Court was concerned with that case was Clause (e) and the proviso which was added to it in 1970. We have quoted both of them earlier in this judgement. The Supreme Court has observed as follows. Power 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 the tax does not have the effect of nullifying the right of appeal especially because the direction is vested in the appellants Judge to dispense with the compliance of the above requirement. This is first part of the reasoning which the Supreme Court has given in that decision. The Supreme Court has further observed as follows:
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 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 datermination of tax or rateable value. The bar created by Section 40(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 the 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 condition.
Reference has been made in that decision to Section 30 of the Indian Income Tax Act, 1922. Proviso to that section laid down '... no appeal shall lie against an order under Sub-section (1) of Section 46 unless the tax had been paid.' Such conditions, in the opinion of the Supreme Court, merely regulate the exercise of the right of appeal so that it 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 in a valid piece of legislation and contravention of Article 14 can not be discerned 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 liability or disadvantage operates upon all persons who make the default or omission. The Supreme Court in paragraph 41 of the report has quoted with approval the observations made by the United States Supreme Court in Hannah Cohen v. Beneficial Industrial Loan Corporation (1949) 337 US 541.
9. There are two propositions which emerge from this decision, Clause (e) and the proviso as they were before they were amended by Gujarat Act I of 1979 conferred upon the appellate Judge full discretion, in a case of hardship, power to dispense with in part or in full the deposit of tax demanded of an appellant and therefore that Clause (e) with the proviso did not violate Article 14 as it created no two classes. The second reason which weighed with the Supreme Court was that the right of appeal is the creature of a statute and it is for the Legislature to decide whether the right of appeal should be uncondition ally given to an aggrieved party or should be conditionally given. If the Legislature which creates a right of appeal, makes it conditional or qualified, the action of the Legislature cannot be said to be violative of Article 14.
10. Mr. Shelat who appears on behalf of the Corporation has invited our attention to two decisions of this Court in which it has been held that the decision of the Supreme Court in Annant Mills' case has impliedly overruled the decision of this Court in Special Civil Application No. 662 of 1968 and others.
11. The first decision is in The Kalol Municipality and another v. The Ahmedabad . and Anr. Special Civil Application No. 169 of 1976 and three others, decided by S. Obul Reddi, C.J. and A.M. Ahmadi J. on 14th October 1976. In that case, vires of Section 138(2)(c) of the Gujarat Municipalities Act, 1963 were challenged. For the purpose of ready reference, we reproduce the relevant provision of Section 138. It reads as follows:
No such appeal shall be entertained unless-the amount claimed from the appellant has been deposited by him in the municipal office.
Section 138 of the Gujarat Municipality Act, 1963, of which the above extract forms a part provides for an appeal to the Magistrate against any tax which is claimed by the Municipality from an assessee. It may be noted that the provision extracted above from Section 138 of the Gujarat Municipalities Act, 1963 is similar to Clause (e) of Sub-section (2) of Section 406 of the Bombay Provincial Municipal Corporations Act, 1949, as it originally stood. In the unreported decision in Kalol Municipality's case this Court in the context of the decision recorded in Special Civil Application No. 662 of 1968 and Others has made reference to another unreported decision of this Court in Anant Mills' case (supra). After having quoted the observations made by the Supreme Court in paragraph 40 of its judgment in Anant Mills' case (supra), it has been observed that the Supreme Court has impliedly overruled it.
12. Next decision to which Mr. Shelat has made reference is in Haji Aliyas Yakub since deceased by his heirs Haji Abdulgani Haji Aliyas and Anr. v. Ayasabai Ismail, First Appeal No. 612 of 1973 and others, decided by Mr. Justice J.B. Mehta and Mr. Justice A.M. Ahmadi on 21st December 1976. A similar question arose in that case under the second proviso to Section 30(1) of the Workmen's Compensation Act, 1923. It was contended in that case that the second proviso to Sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923, which laid down the mandatory condition of deposit being made as a condition precedent to the entertainment of the appeal was ultra vires Article 14. In that context, this Court has observed as follows. The Supreme Court in Anant-Mills case (supra) has pointed out that the right of appeal is the creature of a statute. Unless a statute creates such a right, a person aggrieved is not entitled to file an appeal. Therefore, since it is the Legislature which creates a right of appeal, the Legislature can impose conditions on the exercise of such a right. Therefore, second proviso to Sub-section (1) of Section 30 of the Workmen's compensation Act, 1923, was not ultra vires Article 14.
13. In order to fortify his contention further, Mr. Shelat has invited our attention to two more decisions. One is in M/s. Narandas Hargovinddas and Ors. v. Gujarat Sales Tax Tribunal and Ors. 17 GLR 977. In that case, the question which a Full Bench of this Court considered was whether the provisions of the Bombay Sales-tax Act and the Gujarat Sales-tax Act by which a condition is imposed upon the appellant that he should deposit the amount of the tax assessed before his appeal can' be entertained violated Article 14 of the Constitution. This Court has held, relying upon the decision of the Supreme Court in Anant Mills' case (supra) that it did not violate Article 14. In paragraph 3 of the report, it has been observed that in view of that decision of the Supreme Court, it was clear that the view which this Court took in the same matter against which the appeal was taken to the Supreme Court no longer survived and was, therefore, no longer a good law.
14. In Smt. Ganga Bai v. Vijay Kumar and Ors. : 3SCR882 , the Supreme Court has pointed out distinction between a suit and an appeal. While every person has an inherent right to bring suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. However, in regard to an appeal, position is quite 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 the creature of a statute.
15. We are bound by the decisions of this Court which say that the reasoning of this Court in Special Civil Application No. 662 of 1968 and Others and in Anant Mills case (supra) is no longer good law. We are also bound by the decisions of this Court which say that a condition which requires an appellant to deposit the entire amount of tax or compensation before his appeal can be heard, such as one found in Section 138'(2)-(c) in the Gujarat Municipalities Act, 1963, or in the second proviso to Sub-section (1) of Section 30 of the Workmen's Compensation Act, 1923, is valid and does not violate Article 14. Following these decisions, we are of the opinion that Clause (e) and the proviso to Sub-section (2) of Section 406 as they are after their amendment by Gujarat Act 1 of 1979 are valid and do not offend Article 14. The Legislature which has created the right of appeal has, in our opinion, the competence to qualify that right or make it conditioned. In that view of the matter, the only contention which Mr. Desai has raised in this group of petitions fails.
16. All the petitions, therefore, fail and are dismissed. Rule in each one of them is discharged with no order as to costs in the circumstances of the case.
17. Mr. K.M. Desai who appears on behalf of the petitioners applies for a certificate of fitness under Article 133 (1) of the Constitution to appeal against our decision in all these cases to the Supreme Court. We have applied the principles laid down by the Supreme Court in Anant Mills' case (supra). Therefore, in our opinion, no substantial question of law arises which is required to be decided by the Supreme Court. The oral application made by Mr. Desai is, therefore, rejected.
Mr. K.M. Desai orally applies for stay of further proceedings in the petitioners' appeals pending before the Court of Small Causes at Ahmedabad for some time pending the institution of the Special Leave Petitions in the Supreme Court against this decision. We direct that the further proceedings in the appeals preferred by the petitioners pending before the Court of Small Causes at Ahmedabad shall be stayed for a period of three weeks.