State of Jharkhand and ors. Vs. A.K. Construction 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]. order1. heard mr. r.n. sahay, learned sr. sc ii appearing on behalf of the appellants and mr. rajesh kumar, learned counsel appearing on behalf of the respondents.2. the appellant-state of jharkhand is aggrieved by that part of the order of the learned single judge dated 4.2.2004 passed in wpc no. 969/2003 by which the. learned single judge, while allowing the respondents to complete the work, directed the state-appellant to pay a sum of rupees one lac to the writ petitioners by way of compensation.3. the writ petition was filed by the respondents (writ petitioners) alleging inter alia, that the work relating to renovation of sarswatia irrigation project has been illegally allotted to respondent no. despite the fact that said respondent no. 6 did not fulfil the requisite criteria.4. the learned single judge formulated a question as to whether respondent no. 6 has been favoured in giving contract or as to whether the decision making process was arbitrary or not. the learned single judge, after considering the pleadings of the parties, came to the conclusion that the action of the respondent-state in granting work to respondent no. 6 who did not qualify is arbitrary and unfair. however, the learned single judge having found that the work was about to be completed by ' respondent no. 6, allowed him to complete the work and receive payment but this will be subject to payment of compensation to the petitioner by the department tentatively passed at rupees one lac.5. in our view, if the learned single judge, was of the view that the contract was illegally allotted to respondent no. 6 by the department then proper course would have been to issue a direction for making inquiry and fixing the responsibility against the officers who favoured respondent no. 6. but, in no case, for the laches of the department, the writ petitioner shall be entitled to compensation. we, therefore, set aside that part of the judgment and order by which the department has been directed to pay rupees one lac to the writ petitioner by way of compensation.6. with the aforesaid modification in the impugned judgment and order this appeal stands disposed of.

Judgment:
ORDER

1. Heard Mr. R.N. Sahay, learned Sr. SC II appearing on behalf of the appellants and Mr. Rajesh Kumar, learned Counsel appearing on behalf of the respondents.

2. The appellant-State of Jharkhand is aggrieved by that part of the order of the learned single Judge dated 4.2.2004 passed in WPC No. 969/2003 by which the. learned single Judge, while allowing the respondents to complete the work, directed the State-appellant to pay a sum of rupees one lac to the writ petitioners by way of compensation.

3. The writ petition was filed by the respondents (writ petitioners) alleging inter alia, that the work relating to renovation of Sarswatia Irrigation Project has been illegally allotted to respondent No. despite the fact that said respondent No. 6 did not fulfil the requisite criteria.

4. The learned single Judge formulated a question as to whether respondent No. 6 has been favoured in giving contract or as to whether the decision making process was arbitrary or not. The learned single Judge, after considering the pleadings of the parties, came to the conclusion that the action of the respondent-State in granting work to respondent No. 6 who did not qualify is arbitrary and unfair. However, the learned single Judge having found that the work was about to be completed by ' respondent No. 6, allowed him to complete the work and receive payment but this will be subject to payment of compensation to the petitioner by the department tentatively passed at rupees one lac.

5. In our view, if the learned single Judge, was of the view that the contract was illegally allotted to respondent No. 6 by the department then proper course would have been to issue a direction for making inquiry and fixing the responsibility against the officers who favoured respondent No. 6. But, in no case, for the laches of the department, the writ petitioner shall be entitled to compensation. We, therefore, set aside that part of the judgment and order by which the department has been directed to pay rupees one lac to the writ petitioner by way of compensation.

6. With the aforesaid modification in the impugned judgment and order this appeal stands disposed of.