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1992 DIGILAW 232 (KER)

Preetha Jayaraj v. State of Kerala

1992-07-10

VISWANATHA.IYER

body1992
Judgment :- Petitioner purchased 2.42 acres of vacant land in Sy.No.571/12 of Ernakulam Village from one Jaya Krishnan, who executed a deed of sale dated 30-1-1990 in her favour for Rs.48,000/-. When the document was presented for registration to the Sub Registrar, he took the view that the consideration shown was not the minimum as per the value fixed by the Collector under S.28A of the Kerala Stamp Act, 1959 (the act). The Sub Registrar therefore demanded payment of stamp duty on the basis of the minimum value fixed by the Collector. The order of the Sub Registrar Ext.P1 dated 15-12-1990 also stated that an appeal will lis against this order to the District Collector under S.45-A(4) of the Act read with R.3 of the Kerala Stamp (Fixation of Minimum Value of Land for Registration of Instruments by Registering Officer) Appeal Rules, 1990. To avoid delay, petition paid the balance stamp duty, got the document registered and then filed the appeal, Ext.P2 before the Collector. The appeal is dated 5-1-1991, but the Government Pleader says it was received by the District Collector on 12-1-1991. In the meanwhile, and on 11-1-1991, Ordinance No.l of 1991 had been promulgated repealing inter alia S.45A which provided for an appeal to the District Collector in such cases. The District Collector, namely the second respondent, therefore informed the petitioner by his communication Ext.P3 that he was not in a position to entertain the appeal. Petitioner thereafter issued, two notices Exts. P4 and P5 calling upon the District Collector to entertain the appeal or to refund the additional stamp duty paid, alleging that it was not payable in view of the repeal of S.28A itself by Ordinance No.l of 1991 (subsequently replaced by Act 16 of 1991). 2. 'Petitioner has filed this original petition challenging the proceedings Ext.P3 refusing to entertain her appeal, and for consequential direction to the second respondent District Collector to deal with the appeal on merits. 3. Government Pleader appeared for the respondents on receipt of a copy of the original petition and argued the ma tier, after obtaining instructions. His contention is that the right of appeal was a creature of S.45Aof the Act and when that was repealed by Ordinance No.l of 1991 on 11-1-1991, the petitioner lost her right of appeal and therefore the Collector was justified in refusing to entertain the appeal. 4. His contention is that the right of appeal was a creature of S.45Aof the Act and when that was repealed by Ordinance No.l of 1991 on 11-1-1991, the petitioner lost her right of appeal and therefore the Collector was justified in refusing to entertain the appeal. 4. The question which arises for consideration is whether the right of appeal which the petitioner had, to challenge the order Ext.P1 of the Sub Registrar. has been lost by the subsequent repeal of S.45 A by Ordinance No.l of 1991. It is now well settled and beyond controversy, having regard to the decision of the Privy Council in Colonial Sugar Refining Company Ltd. Irving, 1905 AC 369, which was accepted and followed by the Supreme Court in Garikapati v. Subbiah Choudhry, AIR 1957 SC 540 that a right of appeal is not a mere matter of procedure, but a substantive right, and that the institution of a proceeding carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the proceeding. The right of appeal is a vested right and such a right to enter the superior forum accrues to the litigant and exists as on and from the days the list commences and although it may be actually exercised when the adverse order is pronounced, the right is to be governed by the law prevailing at the date of institution of the proceeding and not by the law that prevails at the date of the decision or at the date of filing of the appeal. This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise. This proposition is so well entrenched in our jurisprudence that it is unnecessary to refer to the catena of decisions of the Supreme Court and of the various High Courts on this point. 5. But the learned Government Pleader would nevertheless contend that a distinction has to be drawn between cases where a right of appeal is maintained but with its width or amplitude whittled down or limited, and cases where the right of appeal is taken away altogether. I cannot agree. 5. But the learned Government Pleader would nevertheless contend that a distinction has to be drawn between cases where a right of appeal is maintained but with its width or amplitude whittled down or limited, and cases where the right of appeal is taken away altogether. I cannot agree. In fact Colonial Sugar Refining Company Ltd. itself provides the answer, when their Lordships of the Privy Council observed that in principle they saw no difference between abolishing an appeal altogether and transferring the appeal to a new Tribunal (as in. that case). In either case, there was an interference with existing rights. 6. I do not find any distinction between abolition of a right of appeal altogether, and the restriction of that right to limited circumstances or making it subject to conditions. In either case, the right which the suitor had, of a right of appeal or of an unrestricted right of appeal is interfered with, and that can be had only by express enactment or by necessary intendment. The simple repeal of the provision for appeal, without anything more, cannot impair the vested right which the suitor had. Section 6 of the (Central) General Clauses Act and S.4 of the Interpretation and General Clauses Act 1125 (Kerala) operate in such cases to save the vested right. 7. The order impugned by the petitioner was passed by the Sub Registrar on 15-12-1990. The right of appeal inhered in her atleast on that day. That vested right of hers continued despite the repeal of S.45A by Ordinance No.l of 1991. There is nothing express in Ordinance No.l of 1991 taking away the right of appeal. Nor do the provisions of the Ordinance indicate any intendment to deprive such aggrieved persons of their right of appeal. The line of enquiry in such cases being to ascertain whether the right already accrued has been destroyed, there is nothing in Ordinance No.l of 1991 indicating any intention on the part of the legislature to take away the right of appeal, which had already accrued in such cases. 8. There is an adverse order calling upon the petitioner to make payment of the additional stamp duly based on the then existing provision of S.28A. To hold that the right of appeal docs not survives will be to deprive the petitioner of any remedy for redress of her grievance. 8. There is an adverse order calling upon the petitioner to make payment of the additional stamp duly based on the then existing provision of S.28A. To hold that the right of appeal docs not survives will be to deprive the petitioner of any remedy for redress of her grievance. On the language of the Ordinance, and having regard to the well established principles of law, it has to be held that the right of appeal which the petitioner had under S.45A(4) of the Act stood preserved and was available to her, despite the repeal of the section by Ordinance No.l of 1991. 9. Government Pleader raised a point that the appeal had actually been filed only on 12-1-1991 after the Ordinance was promulgated. This is immaterial as pointed out by the Supreme Court itself in Garikapati's case. Once the right accrues, it is irrelevant as to when that right is exercised whether before or after the amendment of the law. The fact that the appeal was received only on 12-1-1991 docs not therefore render the appeal inefficacious, as contended by the respondents. 10. The second respondent District Collector was therefore bound to entertain the appeal and hear and dispose it of on merits. The Order Ext.P3 declining to entertain 'the appeal is illegal It has to be quashed. The Collector should be directed to dispose of the appeal on merits. The original petition is therefore allowed. The order Ext.P3 is quashed. The second respondent District Collector will consider and dispose of the petitioner's appeal evidenced by Ext.P2 expeditiously and at any rate within a period of three months from the date of receipt of a copy of this judgment after affording opportunity to the petitioner to be heard. There will be no order as to costs.