RIGHT OF APPEAL

[Mr. M. GOVINDARAJAN]

Whether the appeal to be filed against the order of original authority is absolute right?  For this question the Supreme Court gave answer in ‘Vijay Prakash D. Mehta V. Collector of Customs’ – 1988 (8) TMI 109 - SUPREME COURT OF INDIA.   In the said case the Supreme Court held that the right of appeal is neither in absolute right nor an ingredient of Natural Justice, the principle of which must be followed in all judicial or quasi judicial adjudications.

In ‘Anant Mills Company Limited V. State of Gujarat’ – 1975 (1) TMI 62 - SUPREME COURT, the Supreme Court held that the right of appeal is a creature of the statute and it is for the legislature to determine whether that right should be given unconditionally to an aggrieved individual or should be allowed subject to conditions.

Thus the right of appeal is only a statutory right and it is open to the legislature which confers a remedy of an appeal to condition the appeal subject to compliance with conditions.

A fiscal legislation can stipulate a requirement of pre deposit as a condition precedent to an appeal to be entertained.  The restraint on the power of the legislature to do so , is that the condition which is prescribed should not be so onerous so as to restrict or abrogate the right of the appeal altogether.    A condition which is unduly onerous will render the right of appeal illusory and would hence run the risk of being held to be arbitrary and of being violative of the fundamental right conferred by Article 14 of the Constitution.

In ‘Elora Construction Company V. Municipal Corporation of Greater Bombay’ – 1979 (2) TMI 195 - BOMBAY HIGH COURT the High Court upheld the requirement of pre deposit under the provisions of Section 217 of the Bombay Municipal Corporation Act, 1888.  In ‘Gujarat Agro Industries Company Limited V. Municipal Corporation of the City of Ahamedabad’ – 1999 (4) TMI 601 - SUPREME COURT it was held that a limited waiver of tax was contemplated was held not to be violative of Article 14 of the Constitution.  In ‘Government of Andhra Pradesh V. P. Laxmi Devi’ – 2008 (2) TMI 850 - SUPREME COURT the Supreme Court upheld the constitutional validity of Section 47A of Indian Stamp Act as applicable in the State of Andhra Pradesh.   The proviso stipulated that no reference would be made by Registering Officer unless an amount equal to 50% of the deficit duty was deposited.

The next question whether such vested right of appeal can be taken away by the legislation?  In ‘Garikapatti Veeraya V. N. Subbiah Choudhury’ – 1957 (2) TMI 54 - SUPREME COURT  deduced the following principles of law:

• That the legal pursuit of a remedy, suit, appeal and 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;
• The right of appeal is not a mere matter or procedure but is a substantive right;
• The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties hitherto till the rest of the career of the suit;
• 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 lis 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 decision or at the date of the filing of the appeal.
• This vested right of appeal can be taken away by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

Thus the right of appeal can be taken away or curtailed by a subsequent enactment.  In’Pratap Narain Agarwal V. Ram Narain Agarwal and others’ – 1979 (9) TMI 192 - ALLAHABAD HIGH COURT the Court recognized the power of the legislature to enact a new law taking away a vested right of appeal.

Thus an appeal is considered as continuation of the original suit rather as the inception of a new action.   A litigant may have a right to institute a suit unless specifically barred, but there is no right of appeal unless conferred.  For filing a suit right is not required to be conferred by any statute whereas since the right of appeal is the right from the statutory provision by which is created, such a right has got to be conferred.  It does not inhere in a litigant.

Now we may see the effect of new enactment or amendment to the original law in respect of appeal curtailing the rights.  Justice G.P. Singh in his treatise on Statutory Interpretation has elucidated that it is a cardinal principla of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation.   But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations.   Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights it is deemed to be prospective only ‘nova constitution futuris formam imponere debet non praeteritis’. 

Lord Blanesburg noted that the provisions touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.  Lopes L.J. observed that every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect. 

As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it not to be construed so as to have larger retrospective operation than its language renders necessary.  In other words close attention must be paid to the language of the statutory provision for determining the scope of the restrospectivity intended by Parliament.

In ‘Hoosein Kasam Dada (India) Limited V. State of Madhya Pradesh’ – 1953 (2) TMI 35 - SUPREME COURT OF INDIA it was held that the pre existing right of appeal is not destroyed by the amendment if the amendment is not made retrospective by express words or necessary intendment.  The fact that the pre-existing right of appeal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right.   As the old law continues to exist for the purpose of supporting the pre-existing right of appeal that old law must govern the exercise and enforcement of that right of appeal and there can then be no questions of the amended provision preventing the exercise of that right.

In ‘Jose Da Costa and another V. Bascora Sadasiva Sinai Narcornim and others’ – 1976 (4) TMI 192 - SUPREME COURT the Supreme Court held that before ascertaining the effect on the enactments passed by the 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 time of passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment.  The second is that a 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-

• When any competent enactment such right of appeal is taken away expressly or impliedly with retrospective effect; and
• When the court to which appeal lay at the commencement of the suit stands abolished.

From the above discussions it can be inferred that the appeal is not an absolute right and it is a statutory right.   This right may be taken away by the legislature or curtail certain powers by means of new enactment or amendment.   Unless the new Act expressly or by necessary implication makes the provisions applicable retrospectively, the right to appeal  will crystallize 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 new Act.