# HOOSEIN KASAM DADA (INDIA) LTD v. THE STATE OF MADHYA PRADESH AND OTHERS

- **Citation:** [1953] 1 S.C.R. 987
- **Court:** Supreme Court of India
- **Decided:** 1950-04-08
- **Bench:** Mehr Chand Mahajan, S. R. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hoosein-kasam-dada-india-ltd-v-the-state-of-madhya-pradesh-and-others-235
- **Pages:** 14

## Headnote

Appeal-Right to appeal-Whether vested right-When 1·ight
vests-Change of law after initiation of proceedings in lower Court
-Law governing appeal-Law making deposit of a1nount of appeal
a condition for admission of appeal - Whether matter of mere prncedure -Ce1!trnl Provinces andBerar S•tleB Ta.v Act, 1947, s. 22 (1)
· -Centred Provinces Sales Tax Act (Second A11wndment) Act, 1950.
The right of appeal is a matter of substantive right and not
merely a matter of procedure, and this right becomes vesterl in a
party when the proceedings are first initiated in, and before a decision is given by, the inferior Court and such a right cannot be
taken away except by express enttctment or necessary intendment.
Section 22(1) of the Central Provinces and Berar Sales Tax
Act, 1947, provided that no appeal against an order of assessment
should be entertained by the prescribed authority unless it was
satisfied that such amount of tax as the appellant might admit to
be d11e from him, had bean paid.
This Act was amended on the
25th November, 1949, and s. 22(1) as amended provided that no
appeal should be admitted by the said authority unless such appeal was accompanied by satisfactory proof of the payment of the
tax in respect of which the appeal had been preferred.
On the 28th
of November, 1947, the appellant submitted a return to the Sales
Tax Officor, \vho, fincl.ing that the turnover exceeded 2 lacs,
sub~
mitted the case to the Assistant Co1n1uissioner for disposal and
the latter made an assessment on the 8th April, 1950. The appellant praiel'l'ad an appeal on the 10th ;\fay, 1950, without depositing the a1nount oI ta.x in respect o{ \Vhich he ha<l apperLled.
The
Board of Havetme was of opinion that s. 22(1) as amended applied
t;o the case as the assessment was made, and the appeal was preferred, after the amendment came into force, and rejected the
appeal.
Held, (i) that the appellant had a vested right to appeal when
the proceedings v.'ere initiated, i.e., in 1947, and his right to ap·
peal was governed by the law as it existed on that date; (ii) that
the amendment of 1950 cannot be regarded as a mere alteration
in procedure or an alteration regulating the exercise of the right
of appeal, but whittled down the right itself, and it Jmd no ratrospocth·e effect as tlrn Amendment Act of 1950 did not oxpressly or
by necessary intendn1ent give it retrospective effect, a.μd th~
1963
February 23.
SUPREME COURT Rl~PORTS
[1953]
1963
appeal could not therefore he rejected for non-payment of the tax
-
in respect of which the appeal was preferred. •
H oo8ein Kasarn
Dada (India)
Colonial Sngar Refining Co. Ltd. v. Irving [1905] A.O. 369,
N,1nabin Aba v. Sheku bin Andu (I.hR. 32 Born. 337), Delhi Cloth
~
(
v.
and General Mills Co. Ltd. v. Income-tam Commissioner, Delhi
54
The State of
I.A. 421), Kirpa Singh v. Rasaldar Ajaipal fingh (A.LR. 1?28
Madhya Pradesh Lah. 627), Sardar Ali v. Dalim7tddzn (I.L.R. 06 Cal. 512) applied.
and Othors,
Badruddin Abdnl Rahim v. Sitaram Vinayak Apte (I.L.R. 52
Born. 753) disapproved.
In re Vasudeva Sainiar (A.I.R. 1929 1fad. 381), Rain Sinqha
v. Sankar Doyal (I.L.R. 50 All. 965). Radhakisnn v. Sri Dhar
(A.LR. 1950 N"ag. 17), Gordhan Das v. Governor-General in Conncil
(A.LR. 1950 Pnnj. 103) and Nagendm ?Vath Bose v.
~Ionmohan
(1930, 34 C.W.N. 1009) referred to.
CIVIL
APPELLA't'E
,JURISDICTION:
Civil
Appeal
No. 182 of 1952.
Appeal by special leave from the Judgment and
Order dated 2nd August, 1951, of the High Court of
Judicature at Nagpur in Miscellaneous Petition No. 187
of 1950 under arts. 226 and 227 of the Constitution.
N. 0. Chatteijee (R. 111. Hajamavi8, with him) for
the appellant.
R. Ganapathy Iyer for the State of Madhya
Pradesh.
1953. Februarv 23.
The Judgment of the Court
was delivered by "
DAS J. On the 28th November, 1947, the appellant Hoosein Kasam Dada (India) Ltd., (hereinafter
referred to as the assessee) submited to the Sales Tax
Officer, Akola, a Sales Tax return in Form IV for the
first quarter. Notic

## Text

S.C.R.
S"CPRElVIE COURT REPORTS
987
HOOSEIN KASAM DADA (INDIA) LTD.
v.
THE STATE OF MADHYA PRADESH AND
OTHERS.
[MEHR CHAND MAHAJAN and S. R. DAS ,JJ.]
Appeal-Right to appeal-Whether vested right-When 1·ight
vests-Change of law after initiation of proceedings in lower Court
-Law governing appeal-Law making deposit of a1nount of appeal
a condition for admission of appeal - Whether matter of mere prncedure -Ce1!trnl Provinces andBerar S•tleB Ta.v Act, 1947, s. 22 (1)
· -Centred Provinces Sales Tax Act (Second A11wndment) Act, 1950.
The right of appeal is a matter of substantive right and not
merely a matter of procedure, and this right becomes vesterl in a
party when the proceedings are first initiated in, and before a decision is given by, the inferior Court and such a right cannot be
taken away except by express enttctment or necessary intendment.
Section 22(1) of the Central Provinces and Berar Sales Tax
Act, 1947, provided that no appeal against an order of assessment
should be entertained by the prescribed authority unless it was
satisfied that such amount of tax as the appellant might admit to
be d11e from him, had bean paid.
This Act was amended on the
25th November, 1949, and s. 22(1) as amended provided that no
appeal should be admitted by the said authority unless such appeal was accompanied by satisfactory proof of the payment of the
tax in respect of which the appeal had been preferred.
On the 28th
of November, 1947, the appellant submitted a return to the Sales
Tax Officor, \vho, fincl.ing that the turnover exceeded 2 lacs,
sub~
mitted the case to the Assistant Co1n1uissioner for disposal and
the latter made an assessment on the 8th April, 1950. The appellant praiel'l'ad an appeal on the 10th ;\fay, 1950, without depositing the a1nount oI ta.x in respect o{ \Vhich he ha<l apperLled.
The
Board of Havetme was of opinion that s. 22(1) as amended applied
t;o the case as the assessment was made, and the appeal was preferred, after the amendment came into force, and rejected the
appeal.
Held, (i) that the appellant had a vested right to appeal when
the proceedings v.'ere initiated, i.e., in 1947, and his right to ap·
peal was governed by the law as it existed on that date; (ii) that
the amendment of 1950 cannot be regarded as a mere alteration
in procedure or an alteration regulating the exercise of the right
of appeal, but whittled down the right itself, and it Jmd no ratrospocth·e effect as tlrn Amendment Act of 1950 did not oxpressly or
by necessary intendn1ent give it retrospective effect, a.μd th~
1963
February 23.
SUPREME COURT Rl~PORTS
[1953]
1963
appeal could not therefore he rejected for non-payment of the tax
-
in respect of which the appeal was preferred. •
H oo8ein Kasarn
Dada (India)
Colonial Sngar Refining Co. Ltd. v. Irving [1905] A.O. 369,
N,1nabin Aba v. Sheku bin Andu (I.hR. 32 Born. 337), Delhi Cloth
~
(
v.
and General Mills Co. Ltd. v. Income-tam Commissioner, Delhi
54
The State of
I.A. 421), Kirpa Singh v. Rasaldar Ajaipal fingh (A.LR. 1?28
Madhya Pradesh Lah. 627), Sardar Ali v. Dalim7tddzn (I.L.R. 06 Cal. 512) applied.
and Othors,
Badruddin Abdnl Rahim v. Sitaram Vinayak Apte (I.L.R. 52
Born. 753) disapproved.
In re Vasudeva Sainiar (A.I.R. 1929 1fad. 381), Rain Sinqha
v. Sankar Doyal (I.L.R. 50 All. 965). Radhakisnn v. Sri Dhar
(A.LR. 1950 N"ag. 17), Gordhan Das v. Governor-General in Conncil
(A.LR. 1950 Pnnj. 103) and Nagendm ?Vath Bose v.
~Ionmohan
(1930, 34 C.W.N. 1009) referred to.
CIVIL
APPELLA't'E
,JURISDICTION:
Civil
Appeal
No. 182 of 1952.
Appeal by special leave from the Judgment and
Order dated 2nd August, 1951, of the High Court of
Judicature at Nagpur in Miscellaneous Petition No. 187
of 1950 under arts. 226 and 227 of the Constitution.
N. 0. Chatteijee (R. 111. Hajamavi8, with him) for
the appellant.
R. Ganapathy Iyer for the State of Madhya
Pradesh.
1953. Februarv 23.
The Judgment of the Court
was delivered by "
DAS J. On the 28th November, 1947, the appellant Hoosein Kasam Dada (India) Ltd., (hereinafter
referred to as the assessee) submited to the Sales Tax
Officer, Akola, a Sales Tax return in Form IV for the
first quarter. Notice in Form XI calling upon the
assessee to produce evidence in support of the said
return having been issued by the Sales Tax Officer, the
assessee produced his accouni books.
Not being
satisfied by the inspection of the account books as to
the correctness of the return and being of opinion that
the taxable turnover exceeded mpees two lacs the
Sales Tax Officer submitted the case to the Assistant
Commissioner of Sales Tax, Ammvati, for assessment,
. -,
. ..
S.C.R.
SUPREME COURT REPORTS
989
On the 25th January, 1949, the Assistant Commis1953
sioner issued a fresh notice in Form XI under sec- H
-. -
'
1
d fi
d h
·
1
h
oosem Ka,am
t10n
1 an
xe
t e case for d1sposa on the 5t
Dada (India)
February, 1949.
After various adjournments and
Ltd.
proceedings to which it is not necessary to refer, the
v.
hearing commenced on the 9th June, 1949, when an
The State of
agent of the assessee appeared with books of account Madhya Pradesh
of the Akola Branch. Eventually after various further
and Others.
proceedings the Assistant Commissioner on the 8th
Das J.
April, 1950, assessed the assessee, to the best of his
judgment, in the sum of Rs. 58,657-14-0 and a copy of
the order in Form XIV was sent to the assessee.
Being aggrieved by the order of assessment the assessee on the 10th May, 1950, preferred an appeal to the
Sales Tax Commissioner, Madhya Pradesh, under section 22(1) of the Central Provinces and Berar Sales Tax
Act, 194 7 (hereinafter referred to as the Act).
The
appeal not having been accompanied by any proof
of the payment of the tax in respect of which the
appeal had been preferred, the authorities, after giving
the assessee several adjournments, declined to admit
the appeal.
The assessee moved the Board of
Revenue, Madhya Pradesh, by a revision application
against the order of the Sales Tax Commissioner contending that his appeal was not governed by the proviso to section 22( 1) of the Act as amended on the 25th
November, 1949, by the Central Provinces and Berar
Sales Tax (Second Amendment) Act (Act LVII of
1949) but was governed by the proviso to section 22(1)
of the Act as it stood when the assessment proceed.
ings were started, i.e., before the said amendment. The
Board of Revenue took the view that as the order of
assessment was made after the amendment of the section and the a ppea.! was filed thereafter such appeal
must be governed by the provisions of law as it existed
at the time the appeal was actually filed and that the
law as it existed before the filing of the appeal could
not apply to the case. The assessee thereupon moved
the High Court of Madhya Pradesh under articles 226
and 227 of the Constitution of India praying, amongst
other things, for a writ of mandamus or an appropriate
128
990
SUPREME COURT REPORTS
[1953]
1953
order directing the Sales Tax Commissioner to admit
H
-:--K
and hear the appeal without demanding payment of
oosein
n.oam h
f
h
A ·
Dada (India) t e amount o sales tax assessed by t e
ss1stant
Ltd.
Commissioner of Sales Tax. The High Court dismissed
v.
the application on the 2nd August, 1951. The assessee
The State of applied to the High Court for leave to appeal to this
Madhya Prod"•"- Court which was also dismissed by the High Court on
and Other•.
the 14th March, 1952. The assessee thereupon applied
Das J,
to this Court for special leave to appeal on the 12th
May, 1952.
This Court granted special leave. to
appeal, but such leave was, by the order granting such
leave, limited to the question of the effect of the
amendment to section 22 of the Act on the petitioner's
appeal to the Sales Tax Commissioner, Madhya Pradesh. This Court took the view that the other questions sought to be raised by the assessee would have to
be decided by the Sales Tax Commissioner in case the
appeal succeeded. The appeal has now come up for
final disposal before us and in this appeal we are concerned only with the limited question of the effect of
the amendment to section 22 of the Act.
Section 22( 1) of the Act was originally expressed rn
the following terms :-
"22. (1) Any dealer aggrieved by an order under
this Act may, in the prescribed manner, appeal to the
prescribed authority against the order:
Provided that no appeal against an order of assessment, with 01· without penalty, shall be entertained by
the said authoritv unless it is satisfied that such amount
of tax or penalty' or both as the appellant may admit
to be due from him, has been paid."
The relevant portion of section 22 as amended runs
as fo!Jows :-
"22. (1) Any dealer aggrieved by an order under
this Act may, in the prescribed manner, appeal to the
prescribed authority against the order :
Provided thn,t no appeal against an order of assessment, with or without penalty shall he admitted by the
said authority unless such appefll is accompanied by a
satisfactory proof of the payment of the tax, with
.
. '
' ,.
•
s.c.ii.
SUPREME couki' REPOHTS
99i
penalty, if any, in respect of which the appeal has been
1.953
preferred."
It ·
1
f'
h 1
[ ·
1
·
Huu,.in Kasum
is c ear rom t c anguagc irne( m t ie tn·ov1so to 1., 1 (I 4 . J
•
•
.
,111( a
n u1.
sect10n 22 ( 1) as it stood prior to the amendment that
LtJ.
an aggrieved assessee had only to pay such amount of
v.
tax as he might admit to be due from him, whereas
~'he State uf
under the proviso to section 22( I) as amended the Madhya Pradnh
appeal has to be accompanied by satisfactory proof of
and_V~ers.
payment of the tax in respect of which the appeal had
DaaJ.
been preferred. The contention of the present assessce
is that as the amendment has not been made retrospective its right of appeal under the original section 22(1)
remains imaffected and that accordingly as it does not
admit anything to be due it was not liable to deposit
any sum along with its appeal and the Commissioner
was bound to admit its appeal and had no jurisdiction
or power to reject it on the ground that it had not been
accompanied by any proof of payment of the tax
assessed against the appellant as required under the
amended proviso and the Board of l'tevenue and the
High Court were in error in not directing the Commissioner to admit the appeal.
That the amendment has placed a substantial restriction on the assessee's right of appeal cannot be disputed, for the amended section requires the payment
of the entire assessed amount as a condition precedent
to the admission of its appeal.
The question is
whether the imposition of such a restriction by
amendment of the section can affect the asscssee's
right of appeal from a decision in proceedings which
commenced prior to such amendment and which right
of appeal was free from such r<:striction under the
section as it stood at the time of tho commencement
of the
proceedings.
The question was
answered in the negative by the Judicial Committee in
Colonial Sugar Refining Co., Ltd. v. Irving(').
In
that case the Collector of Customs acting under an Act
called the Excise Tariff Act, 1902, required the appellants to pay£ 20,100 excise duty on 6,700 tons of sugar.
The appellants disputed the claim.
So they deposited
( <) L.R. [1905] A.C. 369.
992
SUPREME COURT ItEPOR'f8
[1953]
J95J
the money with the Collector and then brought the
action by issuing a writ on the 25th Oc~ober, 1902. A
Jloo8ein J(asa1n
' J
Dada 1 India) special case having been stated for the opinion of t ie
fol.
Supreme Court, that Court on the 4th September, 1903,
v.
gave judgment for the Collector. In the meantime the
The State uf
Judiciary Act, 1903, was passed and received Royal
Madhya Prade .• h assent on the 25th August, 1903, that is to say about
aad Others.
10 days before the judgment was delivered. By secDasJ.
tion 39(2) of that Act the right of appeal from the
Supreme Court to the Privy Council given by the
Order in Council of 1860 was taken away and the only
appeal therefrom was directed to lie to the High Court
of Australia. The appellants having with the leave of
the Supreme Court filed an appeal to the Privy Council the respondents filed a petition taking the preliminary point that no appeal lay to the Privy Council and
praying that the appeal be dismissed. In dismissing
that application Lord Macnaghten who delivered the
judgment of the Privy Council said: --
"As regards the general principles applicable to
the case there was no controversv.
On the one hand,
it was not disputed that if the matter in question be a
matter of procedure only, the petition is well founded.
On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing
of the Act, it was conceded that, in accordance with a
long line of authorities extending from the time of
Lord Coke to the present day, the appellants would be
entitled to succeed. The Judicary Act is not retrospective by express enactment or by necessary intendment.
And therefore the only question is, was the appeal to
His Majesty in Council a right vested in the appellants
at the date of the passing of the Act, or was it a mere
matter of procedure?
It seems to their Lordships
that the question does not admit of doubt. To deprive
a suitor in >t pending action of an appeal to a superior
tribunal which belonged to him as of right is a very
different thing from regulating procedure.
In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to
a new tribunal. In either case there is an interference
.
. ,
.
...
s.c.R.
st:PREME COUH,T HEPO.RTS
993
with existing rights contrary to the well-known general
1953
principle that· statuteR are not to be held to act
· -
· 1
I
1
·
·
h
·
lluu1u,in /[asa1n
retrospective y un css a c car mtent10n to t at effect
I> d (I 1. J
·
· c
d ''
a a
1u ·ta
1s rnan11este .
Ltd.
Tho principle of the above decision was applied by
"·
Jenkins C.J. in Nana bin Aba v. Sheku bin And·u (1 )
l'he State 01
-1 b
th p ·
C
'l ·
If ·
J'J l' · Cl h
d i•fodhya Pradesh
anu -y
e
nvy
ou11c1 1tse
m
e tii
ot an
d 0 1
General ,~1 ills Co. Ltd. v. I nconie-tax Commissioner,
""
1 '"''·
Delhi('). A Full Bench of the Lahore High Court adoptDa., J.
ed it in Kirpa Singh v. Rasaldar Ajaipal Singh(').
It was there regarded as settled that the right of appeal was not a mere matter of procedure but was a
vested right which inhered in a party from the commencement of the action in the Court of first instance
and such right could not be taken away except by an
express provision or by necessary implication.
In Sardar Ali v. Dalimuddin ('), the suit out of
which the appeal arose was filed in the Munsiff's Court
at Alipore on the 7th October, 1920.
The suit having
been dismissed on the 17th July, 1924, the plaintiffs
appealed to the Court of the District Judge but the
appPal was dismissed.
The plaintiffs then preferred a
second appeal to the High Court on the 4th October,
1926. That second appeal was heard by a Single
Judge and was dismissed on the 4th April, 1928. In the
meantime Clause 15 of the Letters Patent was amended on the 14th January 1928 so as to provide that no
further appeal should lie from the decision of a Single
Judge sitting in second appeal unle§.s the Judge certified that the case was a fit one for appeal. In this case
the learned Judge who dismissed the second appeal on
the 4th April, 1928, declined to give any certificate of
fitness. The plaintiffs on the 30th April, 1928, filed an
appeal on the strength of dause 15 of the Letters
Patent as it stood before the amendment. The contention of the appellants was that the amended clause
could not be applied to that appeal, iOr to do so would
be to apply it retrospectively and to impair and indeed
to defeat a substantive right which was in existence
(I) (1908) I.LR 32 Born. 337.
13) A.l.R. 1928 Lah. 627.
(2) (1927) L.R. 5+ LA. 421; LL.R. 9 Lah. 284. (4) (1929) LL.R 56 Cal. 512,
994
SUPREME COURT REPORTS
[1953]
19;3
prior to the date of the amendment. The appellants
H
-:-K
claimed that on the 7th October, 1920,- when the snit
uosein
cuutin
. .
.
.
Dada (forNaJ was filed they had vested m them by the ex1stmg law
Ltd.
a substantive right to a Letters Patent appeal from
v.
the decision of a Single Judge and that an intention
7'hc Stat' a.f
to interfere with it, to clog it with a new condition or
Mad!tyuo 1h'mde.•h to impair or im1>eril it could not be ]lrcsumed unless it
and l crs.
·.
b
was clearly mamfested y express words or necessary
Dae J.
inteudment. In giving effect to the contentions of the
appellants Rankin C.J. observed at p. 518 :-
"Now, the reasoning of the J ndicial Committee in
The Colonial Sugar R~fining Company's case is a co•,-
clusive authority to show that rights of appeal are not
matters of procedure, <ind that the right to enter the
superior comt is for the present pnrpose deemed to
arise to a litigant before auy decision has been given
by the inferior court. If the latter proposition be accepted, I can see no intermediate point at which to
resist the conclusion that the right arises at the date
of the suit."
It was held that the ne1Y clause could not be given
retrospective e.ffect and accordingly the date of presentation of the second appeal to the High Court was
not the date which determined the applicability of the
amended clause of the Letters Patent and that the
date of the institution of the suit was the determining
factor.
As against the last mentioned decision of the Calcutta High Court.Sri Oanapttthy Aiyar, ttppearing for
the respondent, refers us to the decision of a Bench of
the Bombay High Court in the case of Badruddin Abdiil Rahim v. Si'.ttiram Vinnyak Apte (1), where it was
held that the amendment of clause 15 of the Letters
Patent operated retrospectively. That case followed
an mirlicr decision of the same High Court in Framji
Bomanfi v. llonnasji Bai;jorji (').
The decision in the
old case proceeded upon two grounds, namely, (1) that
the question was one of procedure and (2) that sec-
(1) (19i8 1 J.L H.. 52 Born. 753; A.LR. {1928) Boin. 371.
(2) (1866) Born. H.C. (O.C.J.) 49.
'
....
•
s.c.R.
SUPREME COURT REPORTS
995
tion 2 of the New Letters Patent of 1865 gave retros.
l953
pect~ve operation to t~e Le~ters Patent by making it Hoosein Ka.•am
applicable to all pendmg suits.
In so far as the first Dada 1 India)
ground is concerned it clearly runs counter to the deLtd.
cision of the Privy Council in Colonial Sugar Rev .
. fining Co. Ltd. v. Irving (supra) and must be taken as
The State 0!
overruled as Fawcett .J. himself acknowledged at Madhyz'
0
0 P7 md"h
756
A
d
h
d
d . . ,
l'
mu
t ""'·
page • .
s regar s t e secon groun 1t 1s mapp 1cable to the case before us and it is not necessary to
Das J.
express any opinion as to the soundness and validity
of that ground. It may be mentioned here that in
Shaikh Hasan Abdul Karim v. King Emperor(')
another Bench of the same High Court expressly dissented from the decision in Badruddin Abdul Rahirn v.
Sitararn Vinayak Apte (supra). The principle laid down
in the Colonial Sugar R~fining Co.'s case (supra.) was
followed by a Special Bench of Madras in In re Vasudeva Samiar ('). A Full Bench of the Allahabad High
Court in Ram Singha v. Shankar Dayal (3 ) fell into line
and held that the earlier decision on this point of that
Court in Zamin Ali Khan v. Genda (') stood overruled
by the Privy Council decision in the Colonial Sugar
Refining Co.'s case.
A Full Bench of Nagpur High
Court in Radhakisan v. Shridar (') has also taken the
same view.
The Punjab- High Court has also adopted
the same line in Gordhan Das v. The Governor General
in Council('').
The case of Nagr-ndra Nath Bose v. 1l1on 21Iohan
Singha Roy (7) is indeed very much to the point. In
that case the plaintiffs instituted a suit for rent valued
at Rs. 1,306/15 and obtained a decree. In execution
of that decree the defaulting tenure was sold on the
20th November, 1928, for Bs. 1,600.
On the 19th
December, 1928, an application was made, under Order
XXI, rule 90 of the Code of Civil Procedure, by the present petitioner, who was one of the judgment-debtors,
{I) J.L.H_ (TCJ45) BonL 17.
(2) A LR. ('929) Mad 38r; 56 :11.L.J 369.
(3) (r928) I.L.R. 50 AIL 965; A.I.H. (r928) AIL 437.
(4) (r904) 1.L.H. 26 All. 375.
(5) A.LR. (r950) i'>ag. rn-
(6) A.LR, (r952) Punjab ro3 (l'.B.).
17) (r930) 34 C.W.N. roog,
t
996
SUPREME COURT REPORTS
[1953]
1953
for setting aside the sale. That application having
H
-:--K
been dismissed for default of his appearance the petioosein
aeain
.
f'
d
1 t
ti
D' t . t J d
f
Dada 1 India) tioner pre crre an appea
o
ie . 1s ric
u ge o
Ltd.
Hoogly who refused to admit the appeal on the ground
v.
that the amount recoverable in execution of the decree
The State of had not been deposited as required by the proviso to secMadh!fa Prade.,h tion 174, clause ( e), of the Bengal Tenancy Act as amendmul Others.
ed by anamending Act in 1928.
The contention of the
Das J.
petitioner was that the amended provision which
came into force on the 21st February, 1929, could
not affect the right of appeal from a decision on
an application made on the 19th December, 1928,
for setting aside the sale. ]\fitter J. said at page
1011 :-
"We thiI!k the contention of the petitioner is wellfounded and must prevail. That a right of appeal is a
substantive right cannot now be seriously disputed. It
is not a mere matter of procedure. Prior to the amendment of 1928 there was an appeal against an order refusing to set aside a sale (for that is the effect also
where the application to set aside the sale is dismissed
for default) under the provisions of Order 43, rule (1),
of the Code of Civil Procedure. That right was unhampered by any restriction of the kind now imposed by
section 174(5), Proviso. The Court was bound to admit
the appeal whether appellant deposited the amount
recoverable in execution of the decree or not.
By requiring such deposit as a condition precedent to the
admission of the appeal, a new restriction has been
put on the right of appeal, the admission of which is
now hedged in with a condition. There can be no
doubt that the right of appeal has been affected by the
new provision and in the a.bsence of an express enactment this amendment cannot apply to proceedings
pending at the date when the new amendment came
into force.
It is true that the appeal was filed after
the Act came into force, but that circumstance is
immaterial-for tho date to be looked into for this
purpose is the date of the original proceeding which
eventually culminated in the appeal."
, ...
'
S.C.R.
SUPREME COURT REPORTS
997
The above decisions quite firmly establish and our
1953
decisions in J/mardan Reddy v. The State (1) and in H
~
G
t R .
A
. . al Ch
. L
,f C
L d (')
oo.sein
asani
anpa
ai v.
garw
arnuer OJ
ommerce t .
Dada (India)
uphold the principle that a right of appeal is not
Ltd.
merely a matter of procedure. It is matter of substanv.
tive right. This right of appeal from the decision of an
Th< State 0!
inferior tribunal to a superior tribunal becomes vested Madhy~ :radesh
in a party when proceedings are first initiated in, and
and
1 era,
before a decision is given by, the inferior court. In
Das J.
the language of Jenkins C .• J. in Nana bin Aba v.
Shaik bin Andu (supra) to disturb an existing right of
appeal is not a mere alteration in procedurn. Such a
vested right cannot be taken away except by express
enactment or necessary intendment. An [intention to
interfere with or to impair or imperil such a vested
right cannot be presumed unless such intention be
clearly manifested by express words or necessary implication.
$ri Ganapathy Aiyar urges that the language of section 22( 1) as amended clearly makes the section retrospective. The new proviso, it is pointed out, peremptorily requires the authority not to admit the appeal unless it be accompanied by a satisfactory proof
of the payment of the tax in respect of which the
appeal is preferred and this duty the authority must
discharge at the time the appeal is actually preferred
before him.
The argument is that after the amendment the authority has no option in the matter and he
has no jurisdiction to admit any appeal unless the
assessed tax be deposited. It follows, therefore, by
necessary implication, according to the learned Advocate, that the amended provision applies to an appeal
from an assessment order made before the date of
amendment as well as to an appeal from an order
made after that date. A similar argument was urged
before the Calcutta Special Bench in Sardar Ali v.
Dalirnuddin (supra), namely, that after the amendment the court had no authority to entertain an
appeal without a certificate from the Single Judge.
(r) [1950] S.C.R. 94r.
(2) (r952) S.C.J, 564.
na
•
998
SUPR.EME COVRT REPORTS
[1953]
1963
Rankin C.J. repelled this argument with the remark
Hoos;;n Ka.sam at page 520: --
Dada (Indh•J
"Unless the contrary can be shown, the provision
Ltd.
which takes away jurisdiction is itself subject to the
v.
implied saving of the litigants' right."
The State of
.___,
Modhya Pmdesh
In our view the above observation is apposite and
and Others.
applies to the case before us. The trne implication of
··
the above observation as of the decisions in the other
Das .J.
h
cases referred to above is that t e 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 snpporting the pre-existing right of
appeal that old hw must govern the exercise and enforcement ofthr1t right of appeal and there can then be
no question of the amended provision preventing the
exercise of that right. The argument that the authority has no option or jurisdiction to admit the appeal
unless it be accompanied by the deposit of the assessed
tax as required by the amended proviso to section 22
( 1) of the Act overlooks the fact of existence of the old
law for the purpose of supporting the pre-existing right
and really amounts to begging the question.
The new
proviso is wholly inapplicable in such a situation and
the jurisdiction of the authority has to be exercised
under the old law which so continues to exist. The
argument of Sri Ganapathy Iyer on this point, therefore, cannot be accepted.
The learned Advocate urges that the requirment as
to the deposit of t.he amount of the assessed costs does
not affect the right of appeal itself which still remains
intact, but only introduces a new matter of procedure.
He contends that this case is quite different from the
case of Sardar Ali v. Dalmuddin (8upra ), for in this
case it is entirely in the power of the appellant to deposit the ta;K if }le chooses to do so whereas it was not
..
'
f
S.C.R.
SUPREME COURT REPORTS
999
within the power of the appellant in that case to
1953
secure a certifioote from the learned Single .Judge who Hoose'ln Ka.sani
disposed of the second appeiil.
In the first place the Dada r fodia)
onerous condition may in a given case prevent the
Ltd.
exercise of the right of appeal, for the assessee may not
v.
be in a position to find the necessiiry money in time.
The State of
Further this argument cannot prevail in view of the Madhya Pradesh
decision of the Calcnttii High Court in N agendra Nath
and Others,
Bose v. M~on }lfohtln Singha (suprrt) .
.:'iio cogent arguDasJ.
ment hits been adduced before us to show that that
decision is not correct. There can be no doubt that
the new requirement "touches" the substnntive right
of appeal vested in the appellant. Nor can it be overlooked that such a requirement is calculated to interfere with or fetter, if not to impair or imperil, the substantive right. The right that the amended seotion
gives is certainly less than the right which was available before. A proYision which is calculated to deprive
the appellant of tho unfettered right of appeal cannot
be regarded as a mere alteration in procedurP. Indeed
the new requirement cannot be said merely to regulate
the exercise of the appellant's pre-existing right but in
truth whittles down the right itself and cannot be regarded as a mere rule of procedure.
Finally, Sri Gana pa thy Iyer faintly urges that until
actual assessment there can be no '!is' and, therefore,
no right of appeal can accrue before that event. There
are two answers to this plea.
Whenever there is a proposition by one party and an opposition to that proposition by another a 'lis' arises. It may be conceded,
though not deciding it, that when the assessee files his
return a '!is' may not immediately arise, for under section 11 ( 1) the authority may accept the return as
correct and complete. But if the authority is not satisfied as to the correctness of the return iind calls for
evidence, surely a controversy arises involving a proposition by the assessee and an opposition by the State.
The circumstance that the authority who raises the
dispute is himself the judge can makP no difference,
for the authority raises the dispute in the interest of the
State and in so acting only represents the State, lt
'
1000
SUPREME COURT REPORTS
[1953]
1953
will appear from the dates given above that in this case
H
-:---·~,
the '!is' in the sense explained above arose before the
oose1n 1.}.asa1n
f
d
f ]
.
Tj,
•
Daria (lndia) date o amen ment o tie section.
l' urther, even 1f
Ltd.
the '!is' is to be taken as arising only on the date of
v.
assessment, there was a possibility of such a ']is' arising
7'he State 01 as soon as proceedings started with the filing of the
Modh%'~ :"
0d"hreturn or, at any rate, when the authority called for
an
' ""·
evidence and st~rted the hearing and the right of apDM J.
peal must be taken to have been in existence even at
those dates. For the purposes of the accrual of the
right of appeal the critical and relevant date is the
date of initiation of the proceedings and not the decision itself.
For all the reasons given above we are of the opinion
that the appellant's appeal should not have been rejected on the ground that it was not accompanied by
satisfactory proof of the payment of the assessed tax.
As the appellant did not admit that any amount was
due by it, it was under the section as it stood previously entitled to file its appeal without depositing any sum
of money. We, therefore, allow this appeal and direct
that the appeal be admitted by the Commissioner and
be decided in accordance with law. The appellant is
entitled to the costs of this appeal and we order accordingly.
Appeal allowed.
Agent for appellant: Rajinder Narain.
Agent for respondent: G. H. Rajadhyaksha.