Moochia Naik Vs. State

- 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]. .....to the public and that the inconvenience amounts to obstruction is contrary to law admittedly the road is 36 links equal to 24 ft. and the logs were stacked on a place of 10 links (about 7 ft. wide). even if the space where the logs were stacked be excluded from the total width of 36 links a balance space of 26 links remains for use of the public as rasta. 2 bullock carts can safely pass on the residual portion thereof. there is no evidence for the prosecution that there was any obstruction or that it was likely to cause obstruction to the user of rasta.every obstruction must engender inconvenience. but the converse is not true every inconvenience need not necessarily arises out of obstruction in the facts of this case, the inconvenience, whatever it may be. cannot amount-to an obstruction within the meaning of section 263, 1. p c. there is no finding or evidence that the stacking caused injury, danger or annoyance. it is a matter of common experience that for temporary purpose the villagers stack logs and fuels on the danda. this is a case of that type where logs were stacked temporarily and did not cause any obstruction to the user of the public road.4. on the aforesaid conclusion, no offence either under section 283 or under section 290, indian penal code is committed. the accused is entitled to an acquittal.5. in the result, the judgment of the learned magistrate is set aside and the conviction and sentence passed on the petitioner are quashed.the revision is allowed. fines, if paid,should be refunded.