State of Bihar and ors. Vs. Sharda Devi

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. order1. since in these two appeals common questions of facts are involved, they have been heard together and are being disposed of by this common order.2. the appellant state preferred these appeals against the judgments and orders dated 9.7.1998 and 20.7.1998 passed by a learned single judge in cwjc no. 1601 of 1987 (r) and cwjc 1421 of 1988 (r) respectively. in these two writ applications, the respondent challenged the correctness and validity of the order passed by the collector whereby he sought to initiate proceedings for cancellation of the jamabandi in purported exercise of powers under section 4(h) of the bihar land reforms act on the ground, inter alio, that the land belonged to the state of bihar. it appears that simultaneously the lands in question along with other lands purported to be acquired under the land acquisition act, notification under section 4 of the act was issued in the name of the respondent. that land acquisition proceedings ended in passing of an award in favour of the respondent. respondent raised objection under 18 of the land acquisition act, whereas the state also raised objection under section 30 of the land acquisition act. consequently, the matter was referred to the land acquisition judge. the said land acquisition proceeding ultimately reached the supreme court. section 18 matter was decided by the supreme court by the decision reported in : [2002]2scr404 , whereas section 30 matter was decided by the supreme court by the decision reported in : [2003]1scr73 . the apex court ultimately decided the matter under section 30 of the act in favour of the respondent.3. mr. manjul prasad, learned counsel appearing on behalf of the state very fairly submitted that in view of the aforesaid two judgments rendered by the supreme court in favour of the respondent holding that the respondent acquired right, title and interest over the property in question, these two appeals have become infructuous.4. having regard to the fair concession made.....