Arihant Sahkari Grih Nirman Samitee Ltd. Vs. Bihar State Electricity Board and ors. - Court Judgment

Excerpt:
- 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]. - reported in 1994 (1) pljr 853, the high court came to the following conclusion at paragraph 25 of the said judgment :in these facts and circumstances this court is satisfied that the respondent authorities are in error in raising bills for the common area of narmada apartment on pommercial rates and in imposing fuel surcharge etc.tapen sen, j.1. heard mr. m.s. mittal, learned counsel for the petitioner. no body appears on behalf of any of the respondents inspite of repeated calls.2. during the course of arguments, mr. m.s. mittal pointed out that the only point which he is raising in this case is that in a common area of a residential multi-storeyed building only domestic tariff would be applicable and not commercial tariff. in support of aforementioned connection, mr. m.s. mittal has filed in court, today, photocopies of 9 (nine) judgments, which shall not form part of records of this case and will be kept as part of the said record. mr. m.s. mittal, first of all relies on the judgment delivered in the case of council for protection of public rights and welfare v. the state of bihar and ors., reported in 1994 (1) pljr 853. in that case at paragraph 23, the following question was raised :'whether levy of commercial tariff in the 'common area' of multi storeyed building is valid ?'the answer to the aforementioned question has been given at paragraph 70 of the same judgment, which reads as follows :'70. it has not been and could not have been disputed that the nature and the purpose of supply to the domestic consumers or private residential premises or a multi-storeyed building is same. classification sought to be made for levy of higher charges in respect of 'common area', in our opinion, is not, based on reasonable differntia. there-fore, it must be held that the rates applicable to domestic tariff shall also apply for consumption of electrical energy in common area of a multi-storeyed building.'3. the second judgment relied upon by mr. mittal is in the case of narmada apartment owner's association and ors. v. the bihar state electricity board and ors., reported in .2000 (2) pljr 279. in that case relying upon the judgment passed in the case of council for protection of public rights and welfare v. the state of bihar and ors. reported in 1994 (1) pljr 853, the high court came to the following conclusion at paragraph 25 of the said judgment :'in these facts and circumstances this court is satisfied that the respondent authorities are in error in raising bills for the common area of narmada apartment on pommercial rates and in imposing fuel surcharge etc. while is chargeable on connections in commercial category. the respondents are accordingly directed to revise the account of the connection in question by raising bills at domestic rates. any excess payment made by the petitioner found on a revision of account will either be refunded to them or will be adjusted against future bills.' 4. mr. mittal then relied on various other judgments.5. in view of the settled principle of law enunciated in the aforementioned judgments and there being no representation on the part of the respondents, the writ application is accordingly allowed and following the decision of the patna high court in the aforementioned cases the bills raised on the basis of the commercial tariff are hereby declared to be illegal. the respondents are directed to revise the account of the petitioner and on such revision, if any amount is found to have been paid in excess, the same should be adjusted against future bills.6. no order as to costs.