# M/S Ansal Prop. & Infrastructure Ltd v. U.O.I. & Ors

- **Citation:** (2020) 9 ILRA 295
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-12
- **Case number:** Misc Bench No. 5867 of 2020
- **Bench:** Munishwar Nath Bhandari, Manish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-ansal-prop-infrastructure-ltd-v-u-o-i-ors-45938
- **Pages:** 13

## Headnote

Act, 2016 - Section 43 (5)-challenge made
to the section-as condition of pre deposit
to be satisfied-for remedy of Appealclaimed to be unconstitutional-Remedy of
Appeal after adjudication of dispute-after
opportunity of hearing to parties-not
unconstitutional.

Held, If compliance of the order of the Real
Estate Authority is not made, powers exist for
imposition
of
penalty.
Thus,
in
such
circumstances, if a condition of pre deposit has
been imposed by the legislature under their
wisdom, it cannot be considered to be
unconstitutional not being unreasonable or
onerous. (para 28)

The object of the Act of 2016 is quite clear and
Section 43 (5) is for the purpose sought to be
achieved. It is to secure the complainant after
adjudication of the matter by Real Estate
Regulatory Authority. Thus, even on the facts of
this case and in reference to the provisions of
the Act of 2016, we find condition of pre deposit
for hearing of the appeal to be neither
unreasonable nor onerous so as to treat remedy
to be illusory. The challenge to the provision
cannot sustain rather for it, the writ petition is
liable to be dismissed. (para 31)

Writ Petition dismissed. (E-9)

Cases referred: -
296 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

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9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
295
required for this proposition, one may refer
to the decision of this Court in State of
Punjab v. Darshan Singh."
 (emphasis supplied)

14. There is no dearth of cases
wherein the Apex Court has held that an
order can be modified only in a review
proceeding. (See: State of Haryana and
Ors. vs. M.P. Mohla, (2007) 1 SCC 457,
Ram Chandra Singh vs. Savitri Devi and
Ors. (2004) 12 SCC 713, Ram Jethmalani
and Ors. vs. Union of India and Ors.(2011)
9 SCC 751 and Delhi Administration vs.
Gurdip Singh Urban and Ors. (2000) 7
SCC 296)

15. The writ petition filed by the
petitioner for disposal of his suit within a
certain time frame was disposed of by this
Court with a direction to the Court
concerned to dispose of the said suit
expeditiously. The petitioner thereafter
filed a second writ petition with the same
prayer which was withdrawn with liberty to
approach the appropriate forum. Instead of
moving an application before the Civil
Judge (Jr. Div.) for expeditious disposal of
the case in terms of the order passed by this
Court in the second writ petition, the
petitioner has filed the present application
for
amendment
of
the
order
dated
12.02.2020. It is a sheer abuse of the
process of the Court.

16. In view of the settled legal
position the application for amendment is
not
maintainable
and
is
accordingly
dismissed.
----------
(2020)09ILR A295
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2020

BEFORE
THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE MANISH KUMAR, J.

Misc Bench No. 5867 of 2020

M/S Ansal Prop. & Infrastructure Ltd.
 ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Anurag Singh

Counsel for the Respondents:
C.S.C., A.S.G., Shobhit Mohan Shukla

Real estate (Regulation and Development)
Act, 2016 - Section 43 (5)-challenge made
to the section-as condition of pre deposit
to be satisfied-for remedy of Appealclaimed to be unconstitutional-Remedy of
Appeal after adjudication of dispute-after
opportunity of hearing to parties-not
unconstitutional.

Held, If compliance of the order of the Real
Estate Authority is not made, powers exist for
imposition
of
penalty.
Thus,
in
such
circumstances, if a condition of pre deposit has
been imposed by the legislature under their
wisdom, it cannot be considered to be
unconstitutional not being unreasonable or
onerous. (para 28)

The object of the Act of 2016 is quite clear and
Section 43 (5) is for the purpose sought to be
achieved. It is to secure the complainant after
adjudication of the matter by Real Estate
Regulatory Authority. Thus, even on the facts of
this case and in reference to the provisions of
the Act of 2016, we find condition of pre deposit
for hearing of the appeal to be neither
unreasonable nor onerous so as to treat remedy
to be illusory. The challenge to the provision
cannot sustain rather for it, the writ petition is
liable to be dismissed. (para 31)

Writ Petition dismissed. (E-9)

Cases referred: -
296 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Mardia Chemicals Ltd. & ors. Vs. U.O.I.& ors.
: (2004) 4 SCC 311

2. M/s. Tecnimont Pvt. Ltd. Vs St. of Punj. : AIR
2019 SC 4489

3. Seth Nand Lal & ors. Vs St. of Har. & ors. :
1980 (Supp) SCC 574

4.Anant Mills Co. Ltd. Vs St. of Guj. & ors. :
(1975) 2 SCC 175

5. A.P. & ors. Vs P.Laxmi Devi : (2008) 4 SCC
720

6. Hardevi Asnani Vs St. of Raj. : (2011) 14 SCC
160

7.Seth Nand Lal & ors. Vs St. of Har. & ors.
1980 (Suppl) SCC 574

8.Gujarat
Agro
Industries
Vs
Municipal
Corporation by the City of Ahmedabad & ors. :
(1999) 4 SCC 468

(Delivered by Hon'ble Munishwar Nath
Bhandari, J &
Hon'ble Manish Kumar, J.)

1. Shri Shobhit Mohan Shukla,
Advocate appears for respondent no.3.

Shri Manjive Shukla, Advocate
appears for respondent nos.2 and 5.

Shri S.B.Pandey, learned A.S.G.
assisted by Shri Mahendra Mishra appears
for respondent no.1.

2. By this writ petition, a challenge is
made to Section 43(5) of the Real Estate
(Regulation and Development ) Act, 2016 (
for short 'Act of 2016').

3. The challenge is also made to order
dated 25.7.2019 passed by the Real Estate
Regulatory Authority ( in short 'the
authority') and also the recovery certificate
dated 21.11.2019.

4. The writ petition has been pressed
mainly to challenge to Section 43(5) of the
Act of 2016. The order of Real Estate
Regulatory
Authority
has
also
been
challenged, though for which an appeal is
maintainable
before
the
Real
Estate
Appellate Tribunal.

5. Learned counsel submits that a
complaint was filed against the petitioner
before
the
Real
Estate
Regulatory
Authority. An order in pursuance to it was
passed on 25.7.2019 in ignorance of the
jurisdiction under the Act of 2016. In
pursuance to the order aforesaid, recovery
certificate was issued on 21.11.2019. The
petitioner is having a remedy of appeal
against the order dated 25.7.2019 but as per
Section 43 (5) of the Act of 2016, the
condition of pre deposit needs to be
satisfied. The condition under Section 43
(5) of Act of 2016 is hit by Article 14 and
19 of the Constitution of India being
onerous making the provision to be
illusory, thus be declared unconstitutional.
To support the argument, learned counsel
for the petitioner has referred the judgment
of the Apex Court in the case of Mardia
Chemicals Ltd. and others Vs. Union of
India and others : (2004) 4 SCC 311.

6. In the case of Mardia Chemicals
Ltd.
(supra),
Section
17
of
the
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
Security Interest Act, 2002 (for short 'Act
of 2002') was challenged. The Apex Court
declared aforesaid provision to be ultra
vires to the Constitution finding it to be
onerous for maintaining an appeal. Therein
the condition was to deposit 70% of the
demand for maintaining appeal. The
condition aforesaid was taken to be not
only
onerous
and
oppressive
but
unreasonable and arbitrary. It was thus,
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
297
declared to be ultra vires to Article 14 of
the Constitution of India.

In the instant case also, Section 43
(5) of the Act of 2016 mandates deposition of
at least 30% of the penalty or such higher
percentage, as may be determined by the
Tribunal or the total amount payable to the
allottee including interests and compensation
imposed on the promoter or both, before the
appeal is heard. No discretion has been given
to the appellate Tribunal to reduce the total
amount payable to the allottee including
interest and compensation. The discretion lies
on the penalty, where also mandate is to
deposit 30% amount. Thus, in view of the
aforesaid, the present matter may be
governed by the ratio propounded by the
Apex Court in the case of Mardia Chemicals
Ltd. (supra).

7. Learned counsel further submits
that if an appeal is preferred by the
complainant, condition of pre deposit has
not been imposed on him, thus the
provision
under
challenge
is
even
discriminatory in nature offending Article
14 of the Constitution of India. Thus on the
aforesaid ground also, Section 43 (5)
deserves to be struck down.

8. Coming to the facts of the case,
learned counsel for the petitioner submits
that a complaint was maintained by the side
opposite
alleging
that
a
flat
under
BHAROSA Scheme, Lucknow was booked
with the payment of required amount but
possession of the flat has not been given.
The Real Estate Authority has directed to
return a sum of Rs.3,62,581/- with interest.
In pursuance to which the recovery citation
has been issued for a sum of Rs.5,62,738.
40 paisa. If the petitioner is subjected to
deposition of the entire amount payable to
the complainant, then it is nothing but
imposition of onerous condition for hearing
of the appeal. It is despite the fact that the
order passed by the authority is without
jurisdiction. The prayer is accordingly to
first struck down the provision under
challenge and if the prayer aforesaid is not
accepted, then to entertain the writ petition
for quashing the order passed by the
authority and the recovery citation.

No other argument has been
raised for pressing the writ petition.

9. Learned Standing Counsel Shri
Manjive Shukla for the State has opposed
the writ petition so as Shri Shobhit Mohan
Shukla, learned counsel appearing for
respondent no.3 and 4.

Reference of the judgment of the
Apex Court has been given where similar
challenge did not sustain. It is with a
clarification that judgement in the case of
Mardia Chemicals Ltd.(supra) has no
application to the facts of this case.

10. We have considered the rival
submissions of the parties and scanned the
matter carefully.

11. Challenge has been made to
Section 43(5) of the Act of 2016. It would
be gain full to quote Section 43 of the Act
of 2016, which reads hereunder :-

"Section -43. Establishment of
Real Estate Appellate Tribunal.

(1) The appropriate Government
shall, within a period of one year from the
date of coming into force of this Act, by
notification,
establish
an
Appellate
Tribunal to be known as the-- (name of the
State/Union
territory)
Real
Estate
Appellate Tribunal.
298 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) The appropriate Government
may, if it deems necessary, establish one or
more benches of the Appellate Tribunal, for
various jurisdictions, in the State or Union
territory, as the case may be.

(3) Every bench of the Appellate
Tribunal shall consist of at least one
Judicial Member and one Administrative or
Technical Member.

(4) The appropriate Government
of two or more States or Union territories
may, if it deems fit, establish one single
Appellate Tribunal:

Provided
that,
until
the
establishment of an Appellate Tribunal
under
this
section,
the
appropriate
Government shall designate, by order, any
Appellate Tribunal functioning under any
law for the time being in force, to be the
Appellate Tribunal to hear appeals under
the Act:

Provided further that after the
Appellate Tribunal under this section is
established, all matters pending with the
Appellate Tribunal designated to hear
appeals, shall stand transferred to the
Appellate Tribunal so established and shall
be heard from the stage such appeal is
transferred.

(5) Any person aggrieved by any
direction or decision or order made by the
Authority or by an adjudicating officer
under this Act may prefer an appeal before
the Appellate Tribunal having jurisdiction
over the matter:

Provided that where a promoter
files an appeal with the Appellate Tribunal,
it shall not be entertained, without the
promoter first having deposited with the
Appellate Tribunal at least thirty per cent
of the penalty, or such higher percentage as
may be determined by the Appellate
Tribunal, or the total amount to be paid to
the
allottee
including
interest
and
compensation imposed on him, if any, or
with both, as the case may be, before the
said appeal is heard.

Explanation.-For the purpose of
this sub-section "person" shall include the
association of allottees or any voluntary
consumer association registered under any
law for the time being in force."

12. A person aggrieved by any direction or
decision or an order made by the authority or by
an adjudicating officer can prefer an appeal. The
proviso to Section 43(5) imposes condition of
pre deposit if an appeal is preferred by the
promoter. The appeal in the hands of promoter
cannot be entertained without deposition of at
least 30% of the penalty before the appellate
Tribunal, or such higher percentage as may be
determined by the appellate Tribunal or the total
amount to be paid to the allottee including
interests and compensation imposed on him if
any, or both. The proviso aforesaid has been
challenged alleging to be an onerous. It is mainly
on the ground that no discretion has been given
to the appellate Tribunal to suitably exempt or
reduce the amount payable to the allottee in
pursuance to the order of authority. So far as
amount of penalty is concerned, minimum 30%
of it has to be deposited, if amount is not
subjected to higher amount by the Appellate
Tribunal.

13. In the case of Mardia Chemicals Ltd.
and others (supra), the condition was to deposit
75% of the amount demanded by the financial
institution. The Apex Court held it to be
unconstitutional. It was mainly on the ground
that it is putting an onerous and oppressive
condition making provision to be unreasonable
and arbitrary. Whether the facts of this case are
covered by the judgement in the case of Mardia
Chemicals Ltd. and others (supra) is a question
to be determined.

14. We have considered the main
argument of the learned counsel for the
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
299
petitioner in reference to the judgment of
the Apex Court in the case of Mardia
Chemicals Ltd. and others (supra) but could
not
pursue
ourselves
to
accept
the
argument. It is in reference to the other
judgements of the Apex Court where
validity of a provision containing similar
condition of deposit for maintaining appeal
or its hearing was held constitutionally
valid.

15. The recent judgement on the issue
is in the case of M/s. Tecnimont Pvt. Ltd.
Vs. State of Punjab : AIR 2019 SC 4489.
The Apex Court has extensively considered
the issue in reference to a condition of pre
deposit for maintaining appeal.

16. The consideration of the issue was
made in reference to the provision
containing a condition of pre deposit for an
appeal with a discretion to the appellate
authority to suitably exempt or relax the
amount and also where no discretion was
given to reduce or exempt the amount.

17. In the case of M/s Technimont
Pvt. Ltd.(supra), the judgement of the
constitutional Bench of the Apex Court in
the case of Seth Nand Lal and others Vs.
State of Haryana and others : 1980 (Supp)
SCC 574 was also considered. Paras no.9 to
12 and 14 to 18 of the judgement in the
case of M/s technimont Pvt. Ltd. (supra)
are quoted hereunder for ready reference :-

" 9. In Seth Nand Lal and
Another vs. State of Haryana and others5,
the Constitution Bench of this Court was
called upon to consider whether the
condition of pre-deposit for exercise of
right of appeal was valid or not. A
submission was raised that unlike the
provision which was considered in The
Anant Mills Co. Ltd.4, the Appellate
Authority was not empowered to relieve the
appellant of the requirement of pre-deposit.
The submission was considered thus:--

"22. It is well settled by several
decisions of this Court that the right of
appeal is a creature of a statute and there is
no reason why the legislature while
granting the right cannot impose conditions
for the exercise of such right so long as the
conditions are not so onerous as to amount
to unreasonable restrictions rendering the
right almost illusory (vide : the latest
decision in Anant Mills Ltd. v. State of
Gujarat4). Counsel for the appellants,
however, urged that the conditions imposed
should be regarded as unreasonably
onerous especially when no discretion has
been left with the appellate or revisional
authority to relax or waive the condition or
grant exemption in respect thereof in fit and
proper cases and, therefore, the fetter
imposed
must
be
regarded
as
unconstitutional and struck down. It is not
possible to accept this contention for more
than one reason. In the first place, the
object of imposing the condition is
obviously to prevent frivolous appeals and
revision that impede the implementation of
the ceiling policy; secondly, having regard
to sub-sections (8) and (9) it is clear that
the cash deposit or bank guarantee is not
by way of any exaction but in the nature of
securing mesne profits from the person who
is ultimately found to be in unlawful
possession of the land; thirdly, the deposit
or the guarantee is correlated to the
landholdings tax (30 times the tax) which,
we are informed, varies in the State of
Haryana around a paltry amount of Rs. 8
per acre annually; fourthly, the deposit to
be made or bank guarantee to be furnished
is confined to the landholdings tax payable
in respect of the disputed area i.e. the area
or part thereof which is declared surplus
after leaving the permissible area to the
300 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant or petitioner. Having regard to
those aspects, particularly the meagre rate
of the annual land-tax payable, the fetter
imposed on the right of appea1/revision,
even in the absence of a provision
conferring
discretion
on
the
appellate/revisional authority to relax or
waive the condition, cannot be regarded as
onerous or unreasonable. The challenge to
Section 18(7) must, therefore, fail."

10. The principles laid down in
The Anant Mills Co. Ltd.4 and in Seth Nand
Lal5 have consistently been followed, for
instance in (i) Vijay Prakash D. Mehta and
Another

vs.
Collector
of
Customs
(Preventive), Bombay6; (ii) Shyam Kishore
and others vs. Municipal Corporation of
Delhi and another7; (iii) Gujarat Agro
Industries
Co.
Ltd.
v.
Municipal
Corporation of the City of Ahmedabad and
others8; (iv) State of Haryana v. Maruti
Udyog Ltd and others.9; (v) Government of
Andhra Pradesh and others vs. P. Laxmi
Devi (Smt.)10; (vi) Har Devi Asnani v.
State of Rajasthan and others 11; and (vii)
S.E. Graphites Private Limited v. State of
Telangana and Ors.12.

11. The decisions of this Court
can broadly be classified in two categories,
going by the width and extent of the
concerned provisions:--

a) Under the first category are
the cases where, the concerned statutory
provision, while insisting on pre-deposit,
itself gives discretion to the Appellate
Authority to grant relief against the
requirement of pre-deposit if the Appellate
Authority is satisfied that insistence on predeposit would cause undue hardship to the
appellant. The decisions in this category
are The Anant Mills Co. Ltd.4, Vijay
Prakash
D.
Mehta6,
Gujarat
Agro
Industries8 and Maruti Udyog9

b) On the other hand, the
decisions in said Seth Nand Lal5, Shyam
Kishore7, P. Laxmi Devi10, Har Devi
Asnani11 and S.E. Graphites12 dealt with
cases where the statute did not confer any
such discretion on the Appellate Authority
and yet the challenge to the validity of such
provisions was rejected.

12.
The
decision
of
the
Constitution Bench of this Court in Seth
Nand Lal5 did consider whether the
requirement of pre-deposit would cause
undue hardship. However considering that
the liability in question and consequential
requirement of pre-deposit was a meagre
rate of the annual land-tax payable, the
fetter
imposed
on
the
right
of
appeal/revision, even in the absence of a
provision conferring the discretion on the
appellant/revisional authority to relax or
waive the condition was not found to be
onerous or unreasonable.

14. In P. Laxmi Devi10, validity
of the proviso to Section 47A of the Indian
Stamp Act, 1899 was in issue. The High
Court had held said provision to be
unconstitutional, which view was reversed
by this Court. The proviso to said Section
47A reads:--

"Provided that no reference shall
be made by the registering officer unless an
amount equal to fifty per cent of the deficit
duty arrived at by him is deposited by the
party concerned."

The relevant discussion was as
under:--

"18. In our opinion, there is no
violation of Articles 14, 19 or any other
provision of the Constitution by the
enactment of Section 47-A as amended by
A.P. Amendment Act 8 of 1998. This
amendment was only for plugging the
loopholes and for quick realisation of the
stamp duty. Hence it is well within the
power of the State Legislature vide Entry
63 of List II read with Entry 44 of List III of
the Seventh Schedule to the Constitution.
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
301

19. It is well settled that stamp duty
is a tax, and hardship is not relevant in
construing taxing statutes which are to be
construed strictly. As often said, there is no
equity in a tax vide CIT v. V.MR.P. Firm
Muar13. If the words used in a taxing statute
are clear, one cannot try to find out the
intention and the object of the statute. Hence
the High Court fell in error in trying to go by
the supposed object and intendment of the
Stamp Act, and by seeking to find out the
hardship which will be caused to a party by
the impugned amendment of 1998.

20. In Partington v. Attorney
General14 Lord Cairns observed as under:

"If the person sought to be taxed
comes within the letter of the law he must
be taxed, however, great the hardship may
appear to the judicial mind. On the other
hand if the court seeking to recover the tax
cannot bring the subject within the letter of
the law, the subject is free, however,
apparently within the spirit of the law the
case might otherwise appear to be."

The above observation has often
been quoted with approval by this Court,
and we endorse it again. In Bengal
Immunity Co. Ltd. v. State of Bihar15 this
Court held that if there is hardship in a
statute it is for the legislature to amend the
law, but the court cannot be called upon to
discard the cardinal rule of interpretation
for mitigating a hardship.

21. It has been held by a
Constitution Bench of this Court in ITO v.
T.S. Devinatha Nadar16 (vide AIR paras 23
to 28) that where the language of a taxing
provision is plain, the court cannot concern
itself with the intention of the legislature.
Hence, in our opinion the High Court erred
in its approach of trying to find out the
intention of the legislature in enacting the
impugned amendment to the Stamp Act.

22. In this connection we may
also mention that just as the reference
under Section 47-A has been made subject
to deposit of 50% of the deficit duty,
similarly there are provisions in various
statutes in which the right to appeal has
been given subject to some conditions. The
constitutional validity of these provisions
has been upheld by this Court in various
decisions which are noted below.

23. In Gujarat Agro Industries
Co. Ltd. v. Municipal Corpn. of the City of
Ahmedabad8 this Court referred to its
earlier decision in Vijay Prakash D. Mehta
v. Collector of Customs6 wherein this Court
observed: (Vijay Prakash case, SCC p. 406,
para 9)

"9. 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."

 While
dealing
with
the
submission that in terms of said proviso, no
relief could be granted even in cases where
the requirement of pre-deposit may result in
great prejudice, this Court went on to
observe:--

"28. We may, however, consider a
hypothetical case. Supposing the correct
value of a property is Rs. 10 lakhs and that
is the value stated in the sale deed, but the
registering officer erroneously determines
it to be, say, Rs. 2 crores. In that case while
making a reference to the Collector under
Section 47-A, the registering officer will
demand duty on 50% of Rs. 2 crores i.e.
duty on Rs. 1 crore instead of demanding
duty on Rs. 10 lakhs. A party may not be
able to pay this exorbitant duty demanded
under the proviso to Section 47-A by the
registering officer in such a case. What can
be done in this situation?

29. In our opinion in this
situation it is always open to a party to file
302 INDIAN LAW REPORTS ALLAHABAD SERIES
a writ petition challenging the exorbitant
demand made by the registering officer
under the proviso to Section 47-A alleging
that the determination made is arbitrary
and/or based on extraneous considerations,
and in that case it is always open to the
High Court, if it is satisfied that the
allegation is correct, to set aside such
exorbitant demand under the proviso to
Section 47-A of the Stamp Act by declaring
the demand arbitrary. It is well settled that
arbitrariness violates Article 14 of the
Constitution vide Maneka Gandhi v. Union
of India17. Hence, the party is not
remediless in this situation."

15. In Har Devi Asnani11 the
validity of proviso to Section 65(1) of the
Rajasthan Stamp Act, 1998 came up for
consideration in terms of which no revision
application could be entertained unless it
was accompanied by a satisfactory proof of
the payment of 50% of the recoverable
amount. Relying on the earlier decisions of
this Court including in P. Laxmi Devi10,
the challenge was rejected and the thought
expressed in P. Laxmi Devi10 was repeated
in Har Devi Asnani11 as under:--

"27. In Govt. of A.P. v. P. Laxmi
Devi10 this Court, while upholding the
proviso to sub-section (1) of Section 47-A
of the Stamp Act introduced by Andhra
Pradesh Amendment Act 8 of 1998,
observed: (SCC p. 737, para 29)

"29. In our opinion in this
situation it is always open to a party to file
a writ petition challenging the exorbitant
demand made by the registering officer
under the proviso to Section 47-A alleging
that the determination made is arbitrary
and/or based on extraneous considerations,
and in that case it is always open to the
High Court, if it is satisfied that the
allegation is correct, to set aside such
exorbitant demand under the proviso to
Section 47-A of the Stamp Act by declaring
the demand arbitrary. It is well settled that
arbitrariness violates Article 14 of the
Constitution (vide Maneka Gandhi v. Union
of India17). Hence, the party is not
remediless in this situation."

28. In our view, therefore, the
learned Single Judge should have examined
the facts of the present case to find out
whether the determination of the value of
the property purchased by the appellant
and the demand of additional stamp duty
made from the appellant by the Additional
Collector were exorbitant so as to call for
interference under Article 226 of the
Constitution.

16. These decisions show that the
following statements of law in The Anant
Mills Co. Ltd.4 have guided subsequent
decisions of this Court:

"...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.

...It is permissible to enact a law
that no appeal shall lie against an order
relating to an assessment of tax unless the
tax had been paid.

....It is open to the Legislature to
impose an accompanying liability upon a
party upon whom legal right is conferred
or to prescribe conditions for the exercise
of the right. Any requirement for the
discharge of that liability or the fulfilment
of that condition in case the party
concerned seeks to avail of the said right is
a valid piece of legislation."

17. In the light of these
principles, the High Court rightly held
Section 62(5) of the PVAT Act to be legal
and valid and the condition of 25% of predeposit
not
to
be
onerous,
harsh,
unreasonable and violative of Article 14 of
the Constitution of India. Now we turn to
question (c) as framed by the High Court
and consider whether the conclusions
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
303
drawn by the High Court while answering
said question were correct or not.

18. It is true that in cases falling in
second category as set out in paragraph 11
hereinabove, where no discretion was conferred
by the Statute upon the Appellate Authority to
grant relief against requirement of pre-deposit,
the challenge to the validity of the concerned
provision in each of those cases was rejected.
But the decision of the Constitution Bench of
this Court in Seth Nand Lal5 was in the
backdrop of what this Court considered to be
meagre rate of the annual land-tax payable.
The decision in Shyam Kishore7 attempted to
find a solution and provide some succour in
cases involving extreme hardship but was well
aware of the limitation. Same awareness was
expressed in P. Laxmi Devi10 and in Har Devi
Asnani11 and it was stated that in cases of
extreme hardship a writ petition could be an
appropriate remedy. But in the present case the
High Court has gone a step further and found
that the Appellate Authority would have implied
power to grant such solace and for arriving at
such conclusion reliance is placed on the
decision of this Court in Kunhi1.

18. In para 10, a reference of the
judgment of the Apex Court in the case of
Anant Mills Co. Ltd. Vs. State of Gujrat
and others : (1975) 2 SCC 175 and other
judgements has been given.

Para
11
of
the
judgment
bifurcates the issue in two parts. The first
part deals with the provision where
appellate authority is given discretion to
exempt or relax the condition of pre deposit
suitably while in second part, the issue has
been dealt with where no discretion has
been given to the appellate authority.

19. The case in hand is covered by the
judgement referred above. Therein Apex
Court considered the provision for appeal
where discretion was given to the appellate
authority to exempt or relax the condition of
pre deposit and even those cases where no
such discretion was given. We are unable to
accept the argument of learned counsel for
the petitioner that the judgement of the Apex
Court in the case of Technimont Pvt.
Ltd.(supra) is not applicable to the fact of this
case. If section 43(5) of the Act of 2016 is
taken into consideration, it does not direct
deposition of the entire amount of penalty
rather it is only 30% unless higher percentage
is determined by the appellate authority.

20. The condition of pre deposit under
Section
43(5)
cannot
held
to
be
unconstitutional
in
reference
to
the
judgement of Apex Court in the case of
Mardia Chemicals (Supra) because appeal
under Section 43 of the Act of 2016 is after
the adjudication of dispute by the Real
Estate Authority
where
as
no
such
adjudication has been provided under
SERFASI Act of 2002 before an appeal
under Section 17 of the Act of 2002.

21. So far the issue of discrimination in
maintaining appeal by the complainant is
concerned, it is in ignorance of the fact that if the
complaint is dismissed and an appeal is preferred
by him, it cannot be with a condition of pre
deposit as there is no provision for imposition of
penalty, interest or compensation on the
complainant. Thus, the argument aforesaid is
irrational, hence cannot be accepted to hold the
provision to be discriminatory in nature.

22. The reference of the judgement of
the Apex Court in the case of Govt. of A.P.
and others Vs. P.Laxmi Devi : 2008(4)
SCC 720 is relevant where similar issue has
been decided by the Apex court.

23. The other judgement relevant to
the issue is in the case of Hardevi Asnani
304 INDIAN LAW REPORTS ALLAHABAD SERIES
Vs. State of Rajasthan : 2011 ( 14) SCC
160. Therein also the validity of proviso to
Section 65 (1) of Rajasthan Stamps Act of
1998 was challenged. The condition of pre
deposit was held constitutionally valid. The
right of appeal is right given by a statute
thus can be with the conditions of pre
deposit. In the said case, the Apex Court
had even considered the facts of the case. It
was found that the amount so determined
was exorbitant thus condition to deposit
50% of the amount for an appeal was taken
to be onerous on facts but the provision
was not struck down.The writ petition was
entertained as an exception.Therein the
reference of the judgement in the case of
Government of A.P. Vs. P. Laxmi Devi
(supra) was given. Therein also writ
petition was held maintainable if the
amount so determined is found exorbitant
or irrational. A liberty to maintain the writ
petition was given as an exception and in
rarest of the rare case and not as a matter of
course. It can be only when the amount so
determined is found to be exorbitant,
unreasonable or shocking disproportionate,
making condition of pre deposit to be
onerous.

24. In the case of Seth Nand Lal and
others Vs. State of Haryana and others 1980(
Suppl) SCC 574, the constitutional Bench
elaborately discussed the issue regarding
condition of pre deposit for maintaining an
appeal or for its hearing. The condition of pre
deposit for maintaining an appeal was held to
be constitutionally valid. The argument
regarding violation of Article 14 of the
Constitution of India was not accepted. Para
21 and 22 of the judgement in the case (supra)
are quoted herein for ready reference :-

21. The next provision challenged
as unconstitutional is the one contained in
section section 18(7) imposing a condition
of making deposit of a sum equal to 30
times the landholdings tax payable in
respect of the disputed surplus area before
appeal or revision is entertained by the
appellate
or
revisional
authority--
a
provision inserted in the Act by Amending
Act 40 of 1976. Section 18(1) and (2)
provide for an appeal, review and revision
of the orders of the prescribed authority
and the position was that prior to 1976
there was no fetter placed on the
appellate/revisional remedy by the statute.
However, by the amendments made by
Haryana Act 40 of 1976, sub - section (7)
and (8) were added and newly inserted sub
-section (7) for the first time imposed a
condition that all appeals under subsection (1) or sub-section (2) and revisions
under sub-section (4) would be entertained
only on the appellant or the dispute surplus
area. Under Sub-section (8) it was provided
that if the appellant or the petitioner
coming against the order declaring the
land surplus failed in his appeal or
revision, he shall be liable to pay for the
period he has at any time being in
possession of the land declared surplus to
which he was not entitled under the law, a
license
fee
equal
to
30
times
the
landholdings tax recoverable in respect of
this area. On June 6, 1976 the Act was
further amended by Amending Act 18 of
1978 whereby the rigour of the condition
imposed under sub-section (7) was reduced
by
permitting
the
appellant
or
the
petitioner to furnish a bank guarantee for
the requisite amount as an alternative to
making cash deposits and while retaining
sub-section (8) in its original form , a new
sub-section (9) was inserted under which it
has been provided that if the appeal or
revision succeeds, the amount deposited or
bank guarantee furnished shall be refunded
or released, as the case may be , but if the
appeal or revision fails the deposit or the
9 All. M/S Ansal Prop. & Infrastructure Ltd. Vs. U.O.I. & Ors.
305
guarantee shall be adjusted against the
license fee recoverable under sub- section
(8). In the High Court two contentions were
urged: First , section 18(1) and (2) , as
originally enacted in 1972, gave an
unrestricted and unconditional right of
appeal and revision against the orders of
the prescribed authority or the appellate
authority but by inserting sub section (7)
and (8) by Act 40 of 1976, a fetter was put
on this unrestricted right which was
unconstitutional ; secondly, even the
mellowing down of the condition by Act 18
of 1978 did not have the effect of removing
the vice of unconstitutionality, in asmuch as
even the conditions imposed under the
amended sub section (7 ) were so onerous
in nature that they either virtually took
away the vested right of appeal or in any
event rendered it illusory. Both these
contentions were rejected by the High
Court and in our view rightly.

22. It is well settled by several
decisions of this Court that the right of
appeal is creature of statute and there is no
reason why the legislature while granting
the right cannot impose conditions for the
exercise of such right so long as the
conditions are not so onerous as to amount
to unreasonable restrictions rendering the
right almost illusory ( vide the latest
decisions in Anant Mills Ltd. Vs. State of
Gujarat). Counsel for the appellants,
however urged that the conditions imposed
should be regarded as unreasonable
onerous especially when no discretion has
been left with the appellate or revisional
authority to relax or waive the condition or
grant exemption in respect thereof in fit and
proper cases, and therefore, the fetter
imposed
must
be
regarded
as
unconstitutional and struck down. It is not
possible to accept this contention for more
than one reason. In the first place, the
object of imposing the condition is
obviously to prevent frivolour appeal and
revision that impede the implementation of
the ceiling policy. Secondly, having regard
to sub section (8) and (9), it is clear that
the cash deposit or bank guaranteee is not
by way of any exaction but in the nature of
securing mesne profits from the person who
is ultimately found to be in unlawful
possession of the land ; thirdly the deposit
or the guarantee is co related to the land
holdings tax ( 30 times the tax) which, we
are informed, varies in the state of Haryana
around a paltry amount of Rs.8 per acre
annually ; fourthly, the deposit to be made
or bank guarantee to be furnished is
confined to the land holdings tax payable in
respect of the disputed area i.e. the area or
part thereof which is declared surplus after
leaving the permissible area to the
appellant or petitioner. Having regard to
those aspects, particularly the meagre rate
of the annual land tax payable, the fetter
imposed on the right of the appeal/revision,
even in the absence of a provision
conferring
discretion
on
the
appellate/revisional authority to relax or
waive the condition, cannot be regarded as
onerous or unreasonable. The challenge to
section 18 ( 7) must, therefore, fail."

25. In the case of Gujarat Agro
Industries Vs. Municipal Corporation by
the City of Ahmedabad and others : 1999
(4) SCC 468, the Apex Court held that the
right of appeal, being statutory right and
not inherent thus a condition for pre deposit
can be imposed. It remains on the wisdom
of the legislature. It can impose an
appropriate condition of pre deposit for an
appeal. In the said case, the appellate
authority was given liberty to reduce the
amount only to the extent of 25%.

The Apex Court did not accept
challenge to the condition of pre deposit.
306 INDIAN LAW REPORTS ALLAHABAD SERIES
The issue was dealt with specifically in
reference to Article 14 of the Constitution
of India.

Paragraph
8
of
the
said
judgement is quoted hereunder :-

"8. By the amending Act 1 of
1979 discretion of the court is granting
interim relief has now been limited to the
extent of 25% of the tax required to be
deposited. It is, therefore, contended that
the earlier decision of this Court in Anant
Mills case may not have full application.
We, however, do not think that such a
contention can be raised in view of the law
laid down by this Court in Anant Mills
case. This Court said that right of appeal is
the creature of a 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. Right of appeal which
is a statutory right can be conditional or
qualified. It cannot be said that such a law
would be violative of Article 14 of the
Constitution. If the statute does not create
any right of appeal, no appeal can be filed.
There is a clear distinction between a suit
and an appeal. While every person has an
inherent right to bring a suit of a civil
nature unless the suit is barred by statute,
however, in regard to an appeal, the
position is quite opposite. The right to
appeal inheres in no one and, therefore, for
maintainability of an appeal there must be
authority of law. When such a law
authorises filing of appeal, it can impose
conditions as well(see Ganga Bai v. Vijay
Kumar)."

26. In the light of the judgement
referred to above, challenge to the
constitutional validity of Section 43 (5) of
the Act of 2016 cannot be accepted.