RIGHT TO APPEAL

[Mr. M. GOVINDARAJAN]

In 'Maria Cristina De Souza Sadder V. Amria Zurana Periera Pirite' (1979) 1 SCC 92 the Supreme Court held that it is not doubt well settled that the right of appeal is a substantive right and it gets vested in a litigant no sooner the lis is commenced in the Court of first instance, and such right or any remedy in respect thereof will not be affected by any repeal of the enactment conferring such right unless the repealing enactment either expressly or by necessary implication takes away such right or remedy in respect thereof.

In 'Gujarat Agro Industries Co., Limited V. Municipal Corporation of the City of Ahmadabad' - (1999) 4 SCC 468 it was held that the right of appeal is neither a natural or inherent right vested in a party. It is a substantive statutory right regulated by the statute creating it.

In 'Super Cassettes Industries Limited V. State of UP (2009) 10 SCC 531, the State of UP through its Collector had preferred an appeal under Sec. 13 of the UP Imposition of Ceilings of Land Holdings Act, 1960 against an order passed by the authority cancelling the notice which had been issued under Sec. 9(2) of the Act. Sec. 13 of the said Act deals with appeals. Sec. 13(1) provides that any party aggrieved by an order under Sec. 11(2) or Sec. 12, may within thirty days of the date of the order prefer an appeal to the Commissioner within whose jurisdiction the land or any part thereof is situate. An order passed under Sec. 11(2) of the Act in furtherance of the statement prepared by the tenure holder has final and conclusive and could not be called in question in any Court of Law.  

The Court while interpreting the provisions of Sec. 13(1) held that it is only the specific order passed under Sec. 11(2) and Sec. 12 of the Act which could be appealed against.  While applying its rule, it was held that it is well known that the right of appeal is not a natural or inherent right. It cannot be assumed to exist unless expressly provided by statute.  Being a creature of statute, remedy of appeal must be legitimately traceable to the statutory provision. Sec. 13 provides a right of appeal to a party aggrieved by an order under Sec. 11(2) or Section12 and no other. In other words, any order passed by the prescribed authority other than the order under Sec. 11(2) or Sec. 12 is not appealable. From any reckoning the order dated 17.12.2003 is neither an order under Sec. 11(2) nor an order under Sec. 12. The Act does not make the order of prescribed authority cancelling the notice issued under Sec. 9(2) amenable to appeal.  Such order does not fall within the ambit of Sec. 13.

In 'Competition Commission of India V. Steel Authority of India Limited and another' - (2010) 98 CLA 278 (SC) the Supreme Court held that the right to appeal is a creation of statute and does require application of rule of plain construction. Such provision should neither be construed too strictly nor too liberally, if given either of these extreme interpretations, it is bound to adversely affect the legislative object as well as hamper the proceedings before the appropriate forum.

The principle of 'appeal being a statutory right and no party having a right to appeal except in accordance with the prescribed procedure is now settled. The right of appeal may be lost to a party in face of relevant provisions of law in appropriate cases. It being a creation of statute, legislature has to decide whether the right to appeal should be unconditional or conditional.   Such law does not violate Article 14 of the Constitution of India. An appeal to be maintainable must have its genesis in the authority of law.

The Supreme Court further held that the right to appeal is not a right which can be assumed by logical analysis much less by exercise of inherent jurisdiction. It essentially should be provided by the law in force. In absence of any specific provision creating a right to file an appeal such right can neither be assumed nor inferred in favor of the party. 

In this case the Supreme Court framed the issue as to whether the directions passed by the Commission in exercise of its power Section 26(1) of the Competition Act forming prima facie opinion would be appealable in terms Section 53A (1) of the Act. The Supreme Court held that in terms of Section 53A (1)(a) of the Act appeal shall be only against the directions, decisions or orders passed under the provisions of Sec. 53A(1)(a). The orders, which have not been specifically made appealable, cannot be treated appealable by implication. Taking a prima facie view and issuing a direction to the Director General for investigation would not be an order appealable under Section 53A.  Right to appeal, being a statutory right is controlled by the provisions and the procedure prescribing such a right.