S.P. BHARUCHA, J.

The only question that must be determined in this petition is section 217 of the Bombay Municipal Corporation Act, 1888, as amended Constitutionally valid

2. The petitioners are the holders of immoveable property situated at New Marine Lines, Bombay. The petitioners received form the Municipal Corporation, the first respondent, notices fixing the rateable value of the said property. The petitioner complained of the fixation of the rateable value and an order was passed upon that complaint. Being aggrieved thereby the petitioners preferred an appeal under the then unamended section 217 to the Chief Judge, Court of small causes at Bombay who is the person designated under the provisions of the to hear such appeals. The appeal is pending and is part-heard. On 22nd September, 1975 during the pendency of the appeal, an Ordinance was issued called the Maharashtra Municipal Corporations Amendment Ordinance 1975, which amended, inter alia, and section 217. The Ordinance was replaced by an Act.

3. The amended section 217 is challenged in the petition the ground that it contravenes the provisions of Articles 19,31 and 265 of the Constitution of India and also on the ground that by enacting it the legislature impinged upon the judicial sphare. The petitioners also seek a writ of mandamus to fix at the figure mentioned in the petition the rateable value of the said property. The rateable value of the said property is the subject matter of the pending appeal before the Chief Judge and it is agreed between the parties that it should be left to be determined in the appeal.

4. The relevant provisions of section 217, as unamended and as amended, need to be set out.

Section 217(1)(2)(d) unamended.

"217(1) Subject to the provisions hereinafter contained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Cause Court.

(2) But no such appeal shall be heard by the said Chief Judge unless---

(d) in the case of an appeal against a tax, or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been served on the appellant, the amount claimed from the appellant has been deposited by him with the Commissioner."

Section 217(1) as amended :---

"217(1) Subject to the provisions hereinafter contained, appeals against any rateable value or tax fixed or charged under this Act shall be heard and determined by the Chief Judge of the Small Cause Court.

(2) But no such appeal shall be entertained by the said Chief Judge, unless-

(d) in the case of an appeal against a tax, or is the case of an appeal made against a rateable value the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, up to the date of filing of the appeal, has been deposited by the appellant with the Commissioner."

(3) In the case of any appeal entertained by the Chief Judge, but not heard by him, before the date of commencement of the Maharashtra Municipal Corporations (Amendment) Act, 1975, the Chief Judge shall not hear and decide such appeal, unless the amount of the disputed tax claimed from the appellant, or the amount of the tax chargeable on the basis of the disputed rateable value, as the case may be, upto the date of filing the appeal, has been deposited by the appellant with the Commissioner within thirty days from the date of publication of a general notice by the Commissioner in this behalf in the local newspapers. The Commissioner shall simultaneously serve on each such appellant a notice under sections 484 and 485 and other relevant provisions of this Act, for intimating the amount to be deposited by the appellant with him.

(4) As far as possible, within fifteen days from the expiry of the period of thirty days prescribed under sub-section (3), the Commissioner shall intimate to the Chief Judge the names and other particulars of the appellants who have deposited with him the required amount within the prescribed period and the names and other particulars of the appellants who have not deposited with him such amount within such period. On receipt of a such intimation, the Chief Judge shall summarily dismiss the appeal of any appellant who has not deposited the required amount with the Commissioner within the prescribed period.

(5) In the case of any appeal, which may have been entertained by the Chief Judge before the date of commencement of the aforesaid or which may be entertained by him and after the said date, the Chief Judge shall not hear and decide such appeal, unless the amount of the tax claimed by each of the bills which may have been issued since the entertainment of the appeal, is also deposited, from time to time, with the Commissioner in the first months of the half year to which the respective bill relates. In case of a default by the appellant at any time before the appeal is decided, on getting an intimation to that effect from the commissioner, the Chief Judge shall summarily dismiss the appeal."

under the provisions of the unamended section 217 no appeal against rateable value could be heard unless the amount claimed by a bill for property tax was deposited with the Municipal Commissioner. Under the terms of the amended section 217 no appeal against rateable value can be entertained unless the amount of tax chargeable on the basis of the disputed rateable value is deposited with the Commissioner In respect of pending appeals the amended section 217 provides that they shall be summarily dismissed if the amount of the tax chargeable on the basis of the disputed rateable value upto the date of the filing of the appeal is not deposited within 30 days of public notice in that behalf. The amended section 217 also provides in respect of both pending appeals and appeals filed subsequent to the amendment, that they shall not be heard and decided unless tax claimed by bills issued after the entertainment of the appeals has been deposited with the Commissioner.

5. Before entering into the controversy between the parties it is best to set down what is now well established and beyond controversy, namely, that the right of appeal is the creation of statute, that being a creation of statute, it can be taken away by statute, and that by express words or necessary intendment it can be taken away retrospectively. A lucid statement of the properties of the right of appeal is contained in the judgment of the Supreme Court in the case of (Garikapati v. Subbish Choudhury)1, A.I.R. 1957 S.C. 540 at p. 553 :---

"From the decision cited above the following principles clearly emerge :---

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceedings.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The instructions of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the carrear of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant end exists as on and from the date this commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceedings and not by the law that prevails at the date of its decisions or at the date of filing of the appeal.

(v) 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."

There can be no doubt that express words are used in the amended section 217 to make the restrictions upon the right of appeal imposed thereby retrospective.

6. The case of (Anant Mills v. State of Gujarat)2, A.I.R. 1975 S.C. 1234 must also be noticed at the outset. The Court was there concerned with the constitutional validity of various provisions of the Bombay Municipal Corporation, Act, 1888. One of the provisions challenged was the amended section 406 of that Act whereunder it was provided that no appeal against rateable value should be "entertained" unless the amount claimed from the appellant by a bill for property taxes was deposited in Court. The amended section gave to the Judge discretion to dispense with the deposit of a part thereof if he was of opinion that the deposit would cause undue hardship to the appellant. The Supreme Court held that the requirement to deposit the amount claimed as a condition precedent to the entertainment of the appeal had not the effect of nullifying the right of appeal. The Court observed :

"...The right of appeal is the creature of a statute. Without a statutory provision creating such a right the persons 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 permissible, for example, to prescribe a condition is criminal cases that unless a convicted person is released on bail, he must surrender to custody before his appeal against his sentence of imprisonment would be entertained. Likewise, 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. Such a provision was on the statute book in section 30 of the Indian Income-tax Act, 1922. The provisions that section provided that "--no appeal shall lie against an order under sub-section (1) of section 46 unless the tax had been paid". Such conditions merely regulate the exercise of the right of appeal so that the same is not abused by a recalcitrant party and there is no difficulty in the enforcement of the order appeal against in case the appeal is ultimately dismissed. 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 right."

7. It has been pointed out by Counsel for the respondent that there are provisions restricting the right of appeal by requiring a deposits of the amount concerned in the appeal in various other statutes; for example, the payment of Wages Act, the Workmens Compensation Act, the Sea Customs Act, the Maharashtra Municipalities Act the Bombay Provincial Municipalities Act, the Sales Tax Act and the Income-tax Act.

8. The principle contention urged by Mr. Makhija, learned Counsel for the petitioners was that section 217 as amended violated the provisions of Article 19(1)(f) of the Constitution and that the letter imposed thereby was not reasonable restriction within the meaning of Article 19(5). The right to appeal is not inherent or fundamental but created by the. The restriction imposed is upon that right to appeal; that unless the amount claimed to be due is deposited the appeal will not be entertained. It is difficult to see how in the circumstances. Article 19(1)(f) can be invoked.

9. It was contended by Mr. Makhija that the provisions of the amended section 217 imposed an unreasonable restriction on the right to hold property. He urged that the requirement that the appellant deposit the amount claimed to be due before an appeal could be entertained amounted to deprivation of property without authority of law and not in the public interest.

10. Mr. Makhija relied upon the statement of objects of the amendment, inter alia of section 217 to contend that the amendment sought only to fill the coffers of the Corporation and that this could not be said to be a matter of public interest for which a restriction upon the right to hold property could validly be imposed. The first paragraph of the statement states that it had become necessary to amend the with a view to improving the finances of the Corporation and to remove administrative difficulties. The paragraph which relates specifically to section 217 states that since it took time for the appeal to reach hearing, the Corporation was deprived in the meanwhile of valuable revenue; that the appellant after filing the appeal ignored subsequent bills; and that the loss on this account was estimated at about Rs. 6 crores annually. The amended provisions of section 217 are, as I read them, intended to ensure that the appellant should secure for the corporation the amounts concerned directly, that is for the year in respect of which the appeal is filed, and indirectly, that is for the subsequent years in respect of the property concerned until the appeal is heard and disposed of. In the judgment of a Division Bench of this Court in the case of (Digvijaysinghji S. & W. Mills v. Collector of Customs)3, A.I.R. 1958 Bom. 305, [LQ/BomHC/1957/194] the Court, referring to the provisions of section 189 of the Sea Customs Act, stated that the effect of the provision requiring the deposit of the amount demanded pending the appeal was to obviate the necessity of proceedings by way of attachment and sale for the realisation of the amount that could be ordered to be paid by the appellants authority. That the corporation should be secured as aforesaid is, considering the objective of the Corporation as shown by the, in the public interest and would properly be the purpose of a reasonable restriction under Article 19(5), assuming that the restriction imposed is upon the right protected by Article 19(1)(f).

11. Mr. Makhija contended that the demands for the deposits as a precondition to the filing and to the hearing of the appeal are without authority of law. As has been stated, the right to appeal is created by statute the, and its exercise can be regulated by the stature. The authority of law by which the deposits are sought is the amended section 217 itself.

12. It was contended that the amended section 217 made no provision for refund of the deposits in the event of the chief Judge holding that the rateable value was less than the amount at which the Corporation had assessed it, and there was thus, deprivation of property without due authority. As I read the section it is implicit that, in that event, the Corporation must forthwith return to the appellant the excess amount. No moneys may be retained by the corporation on this account nor can the petitioners maintain a constitutional challenged to the section on this account.

13. It was contended that the payments which are sought as pre-conditions to the filing and hearing of an appeal under section 217 as amended are, in reality, the levy or collection of tax which the Corporation is not entitled to levy or collect under the provisions of Article 265. It was Mr. Makhijas contention that under the provisions of section 219 of the Act, rateable value was finally assessed only after the Chief Judge had decided an appeal. To decide the merit of this argument it is necessary to inspect the in so far as it relates to the assessment of rateable value and the levy of property tax. The power to tax properties is contained in section 114 of the Act, sub-section (c) thereof provides for a tax upon the basis therein stated of the rateable value of the property. Section 154 lays down how the rateable value is to be determined. Section 156 requires the Commissioner to keep a book called the assessment book is which, inter alia, the rateable values of all properties are entered. After the rateable values have been entered in the assessment book public notice is to be given and complaints invited against the amounts entered. The complaints are to be heard and investigated and upon being disposed of the necessary amendments are to be made in the assessment book. Upon this, the Municipal Commissioner is to verify and authenticate the assessments entered in the book and this becomes conclusive evidence of the tax leviable on properties. Thereupon, under the provisions of section 200, bills are to be issued for the payment of property tax. Under the provisions of section 217 the aggrieved property holder has a right to appeal from the decision upon his complaint to the Chief Judge. From the Chief Judges decision, an appeal lies to this Court under the provisions of section 218(d). Section 219 provides that if no complaints is made against the rateable value, then the amount of the rateable value entered in the assessment book becomes final; that if an appeal is filed to the Chief Judge his decision is final, provided no appeal is filed in this Court, and that the Chief Judges decision is to be given effect to. I do not read section 219 as providing that the rateable value is assessed only upon the decision of the appeal to the Chief Judge. Therefore, even were I to construe the deposit required by section 217 as property tax, it would be a validity leviable and recoverable under the provisions of the at the time when the appeal in filed and the requirement of its payment would not contravene the provisions of Article 265.

14. Mr. Makhija urged that by enacting the amended section 217 the legislature had trespassed upon the judicial remain by providing that "the Chief Judge shall summarily dismiss the appeal of any appellant who has not deposited the required amount". He argued that the pending appeal to the Chief Judge must conclude with a judicial order that the legislature by requiring the Chief Judge to dismiss it is certain stated circumstances was intruding upon the domain of the Court and that this rendered the provision invalid. Jeglous as, am that the Courts powers should remain untampered with, I cannot accede to the argument. The legislatures right to legislative upon the right to appeal and to restrict it cannot be gainsaid. Even if the phraseology that Mr. Makhija considers offensive were not used, the result would be the same, if the requisite deposit is not made the appeal has to be rejected.

15. In the judgment of the Supreme Court in the case of (Navin Chandra v. E. And Co. Central Board)4, A.I.R. 1971 S.C. 2280, where the provisions of the Sea Customs Act making it obligatory upon the appellant to deposit the duty of penalty pending appeal were considered, it was observed that if the deposit was not made, pending the appeal it was competent to the Appellate Authority to reject the appeal. Mr. Makhija cited the judgment of the Federal Court in the case of (Basant Chandra Ghosh v. Emperor)5, A.I.R. 1944 F.C. 86. In that case it was urged that an ordinance had taken away the power of the Court to pass any order under section 491 of the Criminal Procedure Code. Under the terms of the ordinance pending proceedings were "hereby is charged". The contention was that the ordinance did not enact rule of law and leave it to the Court to apply it but itself discharged pending proceeding. The Court concluded on the basis of the facts that led up to the passing of the ordinance that the ordinance had not taken away the power of the Court to pass orders under section 491 and that the proceedings were not to be treated as discharged. In the instant case, in any event, the section does not provide that the requisite deposit is not made in pending proceedings, failure to make the deposit, the Chief Judge is enjoined by the section to make an order of dismissal. The pending appeal concludes, whether or not the requisite deposit is made in a judicial order.

16. Mr. Makhija pleaded that the provisions of the amended section 217 were harsh and left no discretion to the Chief Judge to condone the deposit, either fully or in part, in cases of undue hardship. This is undoubtedly true; but the Court cannot test the validity of statutory provisions upon the touchstone of harshness of stringency.

17. Finally, Mr. Makhija suggested that the provisions of section 217 were penal in nature and could not therefore, be retrospective in operation. He rightly, did not pursue the argument.

18. In the result, I hold that the amended section 217 is valid. The petition fails and is dismissed with costs in two sets, one set to respondents 1 to 3 and one set to respondent No. 4.