1991 (2) TMI 413 - HC - Indian Laws

Summary

Issues Involved:
1. Condition precedent for hearing or determination of the appeal under Section 170(b) of the Delhi Municipal Corporation Act, 1957.
2. Discretion of the District Judge to grant stay or dispense with the pre-deposit condition.
3. Constitutionality of Section 170(b) if it is mandatory for maintainability of the appeal.

Detailed Analysis:

1. Condition Precedent for Hearing or Determination of the Appeal:
The primary issue was whether the deposit of the tax amount under Section 170(b) of the Delhi Municipal Corporation Act, 1957 is a condition precedent for hearing or determination of the appeal and for filing the memorandum of appeal. The court held that there is no restriction for filing a memorandum of appeal without depositing the disputed amount. The law distinguishes between the filing of an appeal and its hearing or adjudication. Therefore, the deposit is mandatory only for the hearing or determination of the appeal and not for its filing.

2. Discretion of the District Judge:
The court examined whether the District Judge has the discretion to grant stay of the disputed amount or dispense with the condition of pre-deposit. It was concluded that the District Judge does not have such discretion. The provision under Section 170(b) is specific and overrides the general provisions of the Code of Civil Procedure. The court emphasized that invoking Order 41 Rule 5 of the Code of Civil Procedure is not applicable as it conflicts with Section 170(b) of the Act. Therefore, the District Judge cannot hear or adjudicate the appeal unless the pre-deposit condition is met.

3. Constitutionality of Section 170(b):
The court addressed the constitutionality of Section 170(b) if it is mandatory for the maintainability of the appeal. The majority held that the provision is intra vires the Constitution. They reasoned that the right of appeal is a statutory right and can be conditioned by the statute. The court cited several precedents, including the Supreme Court's judgment in Anant Mills Co. Ltd. v. State of Gujarat, which upheld similar provisions requiring pre-deposit before an appeal could be entertained. The court found that the provision does not violate Article 14 of the Constitution as it applies equally to all appellants and serves the purpose of ensuring the collection of taxes.

Separate Judgments:
- Nag, J.: Held that Section 170(b) is unconstitutional as it imposes an onerous condition making the right to appeal almost illusory and nugatory. Suggested that the legislature should amend the provision to allow the District Judge discretion to waive or dispense with the pre-deposit in cases of financial hardship.
- Bansal and Seth, JJ.: Disagreed with Nag, J. on the constitutionality issue. They upheld the validity of Section 170(b), emphasizing that the right of appeal is a statutory right and can be conditioned by the statute. They dismissed the writ petitions, affirming that the provision is not violative of Article 14.

Conclusion:
The court concluded that:
1. The deposit of the tax amount under Section 170(b) is a condition precedent for hearing or determination of the appeal, but there is no restriction on filing the memorandum of appeal.
2. The District Judge has no discretion to grant stay or dispense with the pre-deposit condition.
3. Section 170(b) of the Delhi Municipal Corporation Act, 1957 is intra vires the Constitution of India.

The writ petitions were dismissed with no order as to costs.