The prior deposit of the assessed fee is a condition precedent for entertainment of an appeal, and the right of appeal is the creature of a statute.

N.K.SUD, J.

1. The petitioner is a registered dealer under the Punjab Agricultural Produce Markets Act, 1961 , (for short "the Act") and is dealing in the sale, purchase, storage and processing of agricultural produce within the notified market area of the Market Committee, Sadhaura in the State of Haryana. The Administrator, Market Committee Sadhaura made an assessment for the period 1-4-1996 to 31-3-1997 and determined the total market fee leviable on the petitioner at Rs. 1, 62,836.89 out of which the petitioner had deposited a sum of Rs. 38,139.74. Thus, a sum of Rs. 1,24,697.15 was determined as recoverable from the petitioner. The petitioner was also held liable for payment of an equal amount as penalty for submitting a false return. The petitioner filed CWP 15384 of 1997 before this Court challenging the assessment order dated 12-9-1997. The said writ petition was dismissed on 13-10-1997 as not maintainable on the ground that an appeal was competent against the order of assessment and the petitioner had not availed of the remedy. The petitioner thereafter filed an appeal before the Chairman, Haryana State Agricultural Marketing Board, Panchkula. The appeal was accompanied by an application dated 14-10-1997 wherein it had been prayed that the recovery of the amount of market fee and penalty be stayed during the pendency of the appeal. The stay application and the appeal were dismissed by the Chief Administrator vide his order dated 22-10-1998 in the following terms :-

"There is mandatory provision in rule 31(13)(i) of P.A.P.M.(G) Rules 1962 to deposit Market Fee as due before entertaining an appeal by the competent authority. Since you have not deposited Market Fee, therefore, your appeal is dismissed. The stay application is also rejected."

2. It is against this order that the present writ petition has been filed. Shri Rajesh Bindal learned counsel appeared on behalf of the petitioner and contended that the Chief Administrator was not justified in dismissing the appeal and the stay application without granting an opportunity of being heard to the petitioner. According to him even though sub-rule (13)( i) of Rule 31 of the Punjab Agricultural Produce Markets (General) Rules, 1962 , (for short "the Rules") provides that no appeal shall be entertained unless the amount of fee assessed has been deposited in full, yet when an application had been filed along with the appeal with a prayer to stay the recovery of the disputed demand, it was incumbent upon the Chief Administrator to first dispose of the stay application after affording an opportunity of being heard to the petitioner. In case he was not inclined to accept the prayer, he ought to have afforded an opportunity to the petitioner to deposit the fee. It was argued that the action of the Chief Administrator in dismissing the stay application and the appeal simultaneously was therefore, against the principles of equity and natural justice. For this purpose the learned counsel for the petitioner placed reliance on the decision of the Supreme Court in Shyam Kishore V/s. Municipal Corporation of Delhi, AIR 1992 SC 2279 and also on the decisions of this Court in ANZ Grindlays Bank Ltd., Amritsar V/s. Municipal Corporation, Amritsar, (1999) 121 Punj LR 254 and Shree Markande Metal (India) Pvt. Ltd. V/s. The State of Haryana. It was then contended that the assessment had been framed for levy of tax and penalty under sub-rules (8) and (9) of Rule 31 read with Sec. 23 of the Act and such an order being not appealable could be validly challenged in the present writ petition. He referred to the provisions of Sec. 40 of the Act to contend that an appeal was provided only against an order passed by a Committee under Sec. 13 whereas the assessment order had been framed under Sec. 23 of the Act. It was then contended that sub-rule (13)(i) of Rule 31 is ultra vires as it overrides the provisions of the Act itself. According to him Sec. 40 of the Act, which provides for the fil