ShamsuddIn Ansari and ors. Vs. State of Bihar 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]. .....award passed by subordinate judge, palamau (hereinafter referred to as the land acquisition judge) in la no. 68 of 1985, whereby he has partly enhanced the compensation amount in a reference case under section 18 of the land acquisition act.2. the facts of the case are not in dispute. the land measuring 2.74 acres of village bishunpur besides other lands was acquired by the state for construction of residential house and inspection bungalow of damare jalashai yojana at village bishunpur and award was prepared by the land acquisition officer. the appellant made prayer for reference under section 18 of the said act and the matter was heard by land acquisition judge. the case of the appellant is that the land of the same plot was acquired and compensation was paid in compensation case no. 1 of 1977-78 at the rate of rs. 21,333/- to rs. 26,667/-. the appellants adduced evidence before the land acquisition judge in respect of their claim that the market rate of the land in question can not be less than rs. 6000/-per katha. the appellants also led evidence that the land situates besides pwd road and the hospital, electricity office, minor irrigation department and garhwa civil court are nearer to the land. the land acquisition judge came to the conclusion that in absence of the positive evidence to show that the rate fixed in land acquisition case no. 1/77-78 was proved and accepted, the same cannot be acted upon. the land acquisition officer can be the basis for the purpose of ascertaining the rate of compensation. the land acquisition judge therefore enhanced the compensation only to the extent of rs. 8000/- per acre.3. from perusal of the record, it appears that the appellants examined witnesses in support of their claim. pw 1 has categorically stated that portion of the land of the same plot was acquired earlier in 1976-77 which gave rise to la case no 1 of 1977-78 and in that case the rate of the land has been assessed and approved at the rate of rs. 26,667/- per.....