U. P. Avas Evam Vikas Parishad v. Mithlesh — 1992 DIGILAW 1586 (ALL)

JUDGMENT P. P. Gupta. J. 1. On 11-11-92 this appeal was heard by me when the following order was passed "In the result the preliminary objection succeeds and the appeal fails and is hereby dismissed. Now I proceed to give reasons for the order. 2. This appeal has been filed under section 54 of the Land Acquisition Act read with section 381 of the Nagar Mahapalika Act. A preliminary objection on behalf of the respondents regarding maintainability of the appeal has been raised. Learned counsel for both the parties were heard at length and the record of the case was also perused. 3. It has been brought to my notice that this present appeal is not maintainable in view of the provision of section 381 (3) of the U. P. Nagar Mahapalika Adhiniyam, 1939. 4. It was admitted before me that the decretal amount, as per order of the Reference Court, was not deposited before filing of the appeal. In such circumstances, in my view, the appeal is not maintainable. A Division Bench of this Court, of which I was one of the members. in First Appeal No. 921 of 1988 State of U. P. v. Smt. Mithlesh, 1991 ALJ 516, has also taken a similar view and has rejected the memo of appeal on account of non-compliance of section 381 (3) of the aforesaid Adhiniyam. The Special Leave Petition No 2004 of 1991 filed against this order was dismissed on 8-7-1991 by the Apex Court This decision has also subsequently been followed in First Appeal No. 214 of 1982 and First Appeal No. 115 of 1982. The appellant also raised a contention that since the awarded amount of compensation has been deposited, through subsequent to the filing of the appeal, the provisions of sub-section (3) of section 381 of the Nagar Mahapalika Adhiniyam, stood complied with and, on this score, the appeal cannot be dismissed as non-maintainable. To meet this contention, the prime question is what is the meaning of expression ''lie" and whether subsequent deposit can cure the defect ? 5. In this regard, it is significant that several provisions of the Adhiniyam have provided for a right to appeal, which of course, are against different orders, passed under various sections. To meet this contention, the prime question is what is the meaning of expression ''lie" and whether subsequent deposit can cure the defect ? 5. In this regard, it is significant that several provisions of the Adhiniyam have provided for a right to appeal, which of course, are against different orders, passed under various sections. To appreciate the contention, it may be relevant to have a comparative look of the provisions of sub-section (3) of section 381 and sub-section (2) of section 472 of the U. P. Nagar Mahapalika Adhiniyam, 1959, both relating to appeal. While section 381 (3) of the Adhiniyam is in respect of an appeal, which is filed against the award of the Tribunal, section 471 (2) (e) of the Adhiniyam is in respect of the appeal, against the annual value or tax paid under this Adhiniyam, These provisions read thus : "381 (3)-Notwithstanding anything contained in the foregoing provisions, no appeal shall lie under this section unless the appellant has deposited the money which he is liable to pay under the order from which the appeal is filed." "472 (2)-"No such appeal shall be heard unless........ (e)-In the ease of an appeal against a tax, or in the case of an appeal made against an annual value after a bill for any property tax assessed upon such value has been presented to the appellant has been deposited by him with the Mukhya Nagar Adhikari". 6. In both the aforesaid provisions, the legislature has used different phraseology IN sub- section (3) of section 381 of the Adhiniyam, the phrase employed is that "no appeal shall lie unless........" while in subsection (2) of section 472, it has been mentioned that "no appeal shall be heard unless......" Thus, different expressions having been used in the same enactment, carry different and distinct meanings and neither can be interchanged with each other, nor they can be Interpreted in a manner to make any of the expressions as red undent or surplusage. To understand the controversy, it may be relevant to see the Dictionary meaning of these expressions "lie", "appeal" and "heard". 7. The expression "lie", which has been used in section 381 (3), as per the Black's Law Dictionary, Ixth edition at page 922, means : "To subsist is to exist; to be sustainable, to be proper or available. To understand the controversy, it may be relevant to see the Dictionary meaning of these expressions "lie", "appeal" and "heard". 7. The expression "lie", which has been used in section 381 (3), as per the Black's Law Dictionary, Ixth edition at page 922, means : "To subsist is to exist; to be sustainable, to be proper or available. Thus, the phrase "an action will not lie" means that an action cannot be sustained, or that there is no ground upon which to found the action." The expression "appeal", a most common and popular expression, has been defined in the said Dictionary at page 96 as:- "Resert to a superior (i.e. appellate) court to review the decision of an inferior (i e. trial) court or administrative agency. A complaint to a higher tribunal, in which the error or injustice committed by a lower tribunal In which the error or injustice is sought to be corrected or reversed.. ........." In the same Dictionary "hearing", at page 721, has been defined as :- "A proceeding of relative formality (though generally less formal than trial). generally public, with definite issues of fact or of law to be tried, in which witnesses are heard evidence present. It is a proceeding where evidence is taken to determine issue of fact and to render decision on the basis of that evidence......" 8. Thus, the expression "lie" and "hearing" have distinct meanings. Two different expressions have been used in the Adhiniyam consciously, which can note different meanings. Once it has been provided in subsection (3) of section 381 of the Adhiniyam that "no appeal shall He unless the appellant has deposited the money", it would evidently mean that no appeal shall subsist or exist or be sustainable or be proper or available, unless the awarded amount has been deposited. In other words, no appeal can be, in law. filed without deposit of the money. In case, the money has been deposited later to the date of the filing of the appeal, the appeal as on the date of its filing, is bound to be treated as non-subsisting or noa-sustain-able The necessary corollary would be that any deposit, if made, subsequent to the date of filing of an appeal, cannot cure. the inherent illegality or non-maintainability of an appeal. the inherent illegality or non-maintainability of an appeal. Had there been a legislative desire to permit an appellant to deposit the awarded amount later, on, the legislation would have used the word 'heard" in sub-section 2 of Sec. 472. In an unreported decision in First Appeal No. 125 of 1977 State of U. P. v. Kallu and another, it was held by this Court that sub-section (3) of section 381 of the Adhiniyam is mandatory and provides that no appeal shall lie under this section unless the appellant has deposited the money which the appellant is liable to pay under the order against which the appeal is filed. Subsequent deposit cannot cure the defect in the institution of the appeal. 9. Another relevant fact of sub-section (3) of section 381 of the Adhiniyam, is as to what is the meaning of the phrase "the money which he is liable to pay under the order from which the appeal is filed". This phrase, on the face of it, would mean the entire money liable to be paid under the impugned order. Precisely speaking, the mandate of law is to pay the entire amount and not a part thereof. In the instant matter, the appellant has sought the relief to set aside the award of the Tribunal and therefore, the "award" in question is one, from which the appeal has been preferred and hence, the money liable to be paid under the award is to be deposited. A partial deposit of the money under the Impugned award, would not, in law, be the compliance of the statutory provisions of subsection (3). Since in the present case, the appellant has admittedly deposited only half of the amount, that too much after filing the appeal, which it was liable to pay under the impugned award dated February 22, 1990, the appeal is to be held as non-maintainable in law. 10. A further, contention has been raised by the appellant on the basis of the order, passed on Sept. 10. A further, contention has been raised by the appellant on the basis of the order, passed on Sept. 23, 1991 in this appeal, by which this court admitted the appeal and the stay was granted to the effect that if the appellant deposited half of the amount within two months, the impugned award shall remain stayed The pith and substance of the argument, raised in this regard, was that the requirement to per-deposit the awarded amount stood waived by this Court by grant of an order of stay. However, the contention, so raised by the appellant, is devoid of any substance. The order passed on the stay application read thus : "Issue notice. Till further orders of this Court operation of the impugned order dated 27-2-90 shall remain stayed, provided that the appellant deposits half of the amount awarded by the Presiding Officer, Nagar Mahapalika Tribunal, Agra within two months with the Court below and the said amount is paid to claimant-respondent without any security. In case of default the interim stay shall stand automatically vacated. Thus, the order of Sept. 23, 1991 was passed by this Court in a routine manner on the application, moved for stay of the award. From the order, it is apparent that it was never brought to the notice of this Court that there was a mandatory requirement to pay the awarded amount on or before the date of preferring the appeal and this Court had, no occasion to consider this aspect. Hence, the contention that the requirement to deposit the money stood waived is unfounded. Significanty, on one hand, the appellant obtained the stay order on Sept. 23, 1991 without disclosing the material facts and abont the statutory requirement and now it wants to take the advantage on the strength of the order, so obtained on the basis of concealment of material facts. It cannot be gain-said that it was the duty of the appellant to have specifically pointed out to the Court, at the time of heaping of the stay application, about the provisions of sob-section (3) of Section 381 of the Adhiniyam but the appellant failed and there can be no hesitation in holding that the appellant was guilty of concealment of such material facts at the time of the grant of stay order. 11. 11. Even examining the matter from different point of view, it cannot be said that this Court has the power to dispense with the statutory requirement of the pre-deposit of the awarded amount. A right to appeal Is a creation of statute and the Legislature, in its wisdom and competence, can make such right to appeal, subject to such restrictions as it deems fit and once the Legislature subjected the right to appeal under section 381 on condition of pre-deposit of awarded amount, the Court cannot dispense with the same or an application of the appellant and make the right to appeal an unqualified one exercisable it without restrictions. 12. In this context, the decision of the Apex Court in Vijay Prakash D. Mehta v. Collector of Customs (Preventive) Bombay, (1988) 4 SCC 402 , is worth reference. In this case, the Supreme Court had occasion to deal with the right of appeal created under section 129- A and 129-E of the Customs Act., 1962 The appeal provided was against the duty demanded or penalty levied under the Customs Act The provision for appeal contemplated a condition for deposit of the duty or the penalty pending the appeal. The Supreme Court, speaking through Sabya saehi Mukharji, J. (as his Lordship then was) held as under :- "Right to appeal is neither an absolute nor an Igredient of natural justice the principles of which must be followed in all judicial and quasht-judicial adjudications The fight to appeal is a statutory right and it can be circumscribed by the conditions in the grant." Similar observations were made by the Honourable Supreme Court in Anant Mills Co. Ltd. v. State of Gujrat, (1975) 2 SCC 175 , wherein their Lordhips held thus : "......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 we fail to understand as to why the Legislature while granting the right of appeal cannot impose conditions for the exercise of such right. IN the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions......It is open to the Legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the tight......". IN the absence of any special reasons there appears to be no legal or constitutional impediment to the imposition of such conditions......It is open to the Legislature to impose an accompanying liability upon a party upon whom a legal right is conferred or to prescribe conditions for the exercise of the tight......". Sub-section (4) of Section 381 of the Nagar Mahapalika Adhinlyam makes the provision of the Code of the Civil Procedure, 1908 applicable to the appeals but only in "so far as may be". Either the provisions of Rule 5 of Order 41 or section 151 of the CPC cannot be construed so liberally to vest this Court with the power to do away with statutory requirement of pre-deposit of the awarded amount, thereby making the statuory requirement to be nugatory or non-existing. Had the Legislature Intended to extend such power, it could have, in its competence, made a specific provision to relieve an appellant from the regours of the requirement of pre-deposit. As such, it is not conceivable that this Court has the jurisdiction either to waive or release the condition of the pre-deposit. 13. In AIR 1983 SC 1272 (Para 21) it was held that inherent power cannot be invoked to nullify or stultify a statutory provision. 14. It may be recalled that the condition requiring an appellant to deposit awarded amount on or before filing the appeal is reasonable and with a purpose. While on one hand, the State acquires the land compulsorily and it takes years together the erstwhile land owners to get a reference under section 18 of L.A. Act decided, still if the State or the acquiring authority prefer appeals without pre-deposit of the awarded sum, it would be too harsh for them as erstwhile land owners would be required to execute awards to recover the amount payable thereunder and for the same they would be required to run from pillar to post. The Legislature, with a view to obviate such hardship, put a condition for the exercise of the right to appeal in its all fairness. It is, therefore, evident from the above discussion that the memorandum of appeal when presented was net maintainable by this Court for non compliance of the provisions of section 381 (3) of the Adhiniyam and the subsequent deposit in compliance of this Court's order dated 23-9-1991 and cure defect in institution of the appeal. It is, therefore, evident from the above discussion that the memorandum of appeal when presented was net maintainable by this Court for non compliance of the provisions of section 381 (3) of the Adhiniyam and the subsequent deposit in compliance of this Court's order dated 23-9-1991 and cure defect in institution of the appeal. It may be clarified at this stage also that the appellant even after the filing of the memorandum of appeal only deposited half of the amount and no full amount as awarded by the Tribunal. With defect in filing of the appeal, for the reasons given above, was not cured when this Court admitted the appeal and issued notices. 15. In the result the preliminary objection succeeds and the appeal fails and is hereby dismissed. Appeal dismissed.