(Per : HONOURABLE THE ACTING CHIEF JUSTICE MR.BHASKAR BHATTACHARYA) By this writ-application, the writ-petitioner prays for issue of writ in the nature of mandamus or any other order or direction against the respondent to reconnect electric connection in the residential house of the petitioner, without implementing the order dated 8th June 2012 to pay a sum of Rs.2,41,611=64ps. as additional bill and to pay Rs.9,274=00 as the charge to compound the offence.
In this Application, the petitioner has further prayed for declaration that sub-sections (1), (3), (5) and (6) of Section 126 and sub-section (2) of Section 127 of the Electricity Act, 2003 are void and ultra vires Articles 20, 21 and 14 of the Constitution of India.
As the writ-petitioner challenged the aforesaid provisions of the Electricity Act, 2003 as ultra vires the Constitution of India, the matter has been placed before us.
As it appears from the record that a Division Bench in the case of Ranchhodbhai Haribhai Sutariya v/s. Union of India (Special Civil Application No.13931 of 2009 and other allied matters decided on April 26, 2011) has already held that the provision contained in Section 126 of the Act is not ultra vires the Constitution of India.
We, therefore, find no reason to deal with the above question again in this Application.
So far as the other prayer regarding validity of Section 127(2) of the Electricity Act which imposes a condition for deposit of amount as precondition for preferring appeal is concerned, we find that such provision cannot be held to be ultra vires.
In various Acts, this type of provision has been incorporated imposing deposit of amount as a condition of preferring statutory appeal. There is no dispute that the provision of appeal is a creature of statute and the Legislature has the right to impose condition for preferring an appeal. Even there are Acts where there is no provision of appeal against order of the adjudicating authority. Therefore, merely because condition is imposed for deposit of some amount as pre-requisite condition of preferring appeal, we do not find any reason to declare such provision as arbitrary so as to strike down such provision.
In this connection, we may profitably refer to the recent decision of the Supreme Court in the case of Government of Andhra Pradesh and Ors. V. Smt. P. Laxmi Devi, reported in AIR 2008 SC 1640 where the Apex Court, while considering a similar provision contained in Section 47A of the Stamp Act requiring pre-deposit of amount as condition of preferring appeal, considered various other earlier decisions of the said court dealing with similar provisions. The following observations in that case are relevant and quoted below:
"23. In Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors., 1999(4) SCC 468, this Court referred to its earlier decision in Vijay Prakash D. Mehta vs. Collector of Customs (Preventive), 1968(4) SCC 402 wherein this Court observed :
"The 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."
24. In Anant Mills Ltd. vs. State of Gujarat, 1975(2) SCC 175 this Court held that the right of appeal is a creature of the 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. The right to appeal which is a statutory right can be conditional or qualified.
25. In M/s. Elora Construction Company vs. The Municipal Corporation of Gr. Bombay and Ors. A1R1980 Bombay 162, the question before the Bombay High Court was as to the validity of Section 217 of the Bombay Municipal Act which required pre-deposit of the disputed tax for the entertainment of the appeal. The Bombay High Court upheld the said provision and its judgment has been referred to with approval in the decision of this Court in Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. (supra). This Court has also referred to its decision in Shyam Kishore and Ors. vs. Municipal Corporation of Delhi and Ann, 1993(1) SCC 22 in which a similar provision was upheld.
26. It may be noted that in Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad and Ors. (supra) the appellant had challenged the constitutional validity of Section 406(e) of the Bombay Municipal Corporation Act which required the deposit of the tax as a precondition for entertaining the appeal. The proviso to that provision permitted waiver of only 25% of the tax. In other words a minimum of 75% of the tax had to be deposited before the appeal could be entertained.
The Supreme Court held that the provision did not violate Article 14 of the Constitution.
27. In view of the above, we are clearly of the opinion that Section 47A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the judgment of the High Court declaring it unconstitutional is not correct."
(Emphasis supplied by us.) In view of the above observations of the Supreme Court, there is, in our opinion, hardly any further scope of argument that the provisions of pre-deposit as condition precedent for maintaining an appeal is ultra vires the provisions of the Constitution of India.
Since we find that neither Section 126 nor Section 127 of the Electricity Act, 2003 can be branded as ultra vires the Constitution of India, we propose not to entertain this Application. So far as prayers other than those contained in paragraph 20(C) of the petition are concerned, the matter should go before the learned Single Judge having jurisdiction.
We make it clear that apart from prayer 20(C) of this Application, we have not gone into the other portion of the petition and dismissal of this prayer will not stand in the way of the petitioner in seeking appropriate remedy before appropriate forum, in accordance with law.
In view of disposal of prayer (C) of paragraph 20, the further presence of the Union of India is not necessary.
(Bhaskar Bhattacharya, Actg. C.J.) (J.B.Pardiwala, J.) /moin Top