Sheikh Alam and ors. Vs. Union of India (Uoi) and ors.

- 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]. .....sanctioned amount of rs. 47,44,551 /- from the budgetary head of the then slate of bihar, as per allocation, and communicated the accountant general (a&e;). jharkhand, ranchi. vide letter dated 31st march, 2002. however, this surrender was without actual refund of the money to the concerned ministry of government of india or actual deposit of the money with the state of jharkhand directly by the state of bihar by adjustment through reserve bank deposit of the respective states.3. in view of the above statement of the accountant general, it appears, that the stand of the state of bihar, that the amount of rs. 5,28,000/- was paid to the state of jharkhand, has no valid basis. even accountant general has asked the state of bihar vide letter dated 19th april, 2004 to intimate the mode of deposit of the surrendered amount. however, nothing has been shown even to the accountant general.4. in view of the categorical stand of the accountant general, it appears that allocated amount of the disposal of unified state of bihar to meet expenditure under the scheme has not been utilized for the purpose. as a result, petitioners have not been paid their salary. this court has already observed seriousness of the matter and in view of the affidavit of the accountant general, it becomes more serious.5. a copy of the affidavit filed on behalf of accountant general shall be served to the learned counsel appearing for the state of bihar within two days.6. let state of bihar file its fresh affidavit before the next date of hearing in view of the averments made in the affidavit of accountant general, giving all details including the mode and manner of surrender of amount, the evidence to show deposit/ surrender with any authority of the government of india, state of jharkhand or reserve bank of india.7. in the meanwhile state of bihar shall place an amount of rs. 5,00.000/- at the disposal of state of jharkhand within two weeks, failing which the finance secretary of the state of bihar.....