State Of Orissa & Ors vs Balram Sahu

State of Orissa and Ors. ..Appellants

Versus

Balram Sahu ..Respondent

With Civil Appeal No. /2009 @ SLP (C) No. 597/2009

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted in both the Special Leave Petitions.

2. The controversy in the two appeals lies within a very narrow

compass.

Writ Petition No.3445 of 2004 was filed by the respondent before the Orissa

High Court, inter-alia, with a prayer that his license as a Super Class

Contractor should not be cancelled by the respondent No.2 i.e. Chairman of the Committee of Chief Engineers and Engineers in Chief, Orissa. The Writ

Petition was filed under the apprehension that his license was likely to be

cancelled. The High Court disposed of the Writ Petition by order dated

13.5.2004 after hearing learned counsel for the writ petitioner and learned

Government Advocate with a direction that without issuing show cause

notice to the writ petitioner and without giving him a fair opportunity of

hearing, his license as Super Class Contractor shall not be cancelled and his

security deposit shall not be forfeited.

3. Several miscellaneous cases were thereafter filed by the respondents.

By order dated 7.10.2005 the Chairman of the aforesaid Committee directed

cancellation of respondent's license under Rule 11(a) of P.W.D. Contractors

Registration Rules, 1967 (in short the `Rules'). This was questioned by the

respondent by filing a writ petition taking the stand that the order was

passed by the Chief Engineer, but no notice was issued prior to passing of

the order. The High Court by order dated 9.2.2007 allowed the Writ

Petition, quashing several orders passed on the ground that before the

cancellation was done, no notice was given. Reference was made by the

present appellants to notice purportedly issued on 21.2.2004. It was stated

that before the order was passed by the High Court in Writ Petition

No.3445/2004, a show cause notice had already been issued. The

2 respondent filed a rejoinder affidavit taking the stand that after the order

was passed on 13.5.2004 in the earlier writ petition, no notice was issued.

The High Court noticed that before cancellation of the license no notice had

been issued and the previous writ petition was disposed of with a specific

direction that without notice and grant of fair opportunity of hearing license

shall not be cancelled and the security shall not be forfeited. Undisputedly,

after the date of the High Court's order, no notice was issued. Thereafter,

several miscellaneous cases were filed for extension of time. An application

was also filed for modification of order passed on 9.2.2007 by the High

Court. But the High Court by order dated 25.6.2008 rejected the same and

further directed the present appellants to implement the order dated

9.2.2007.

4. Learned counsel for the appellant-state and its functionaries

submitted the earlier writ petition was disposed of without issuance of

notice and the High Court should have taken note of the fact that prior to the

date of order, notice had been issued.

5. Learned counsel for the respondent, on the other hand, submitted that

the High Court specifically directed that before cancellation and forfeiture

notice has to be given. Even though notice was not formerly issued in the

3 earlier petition, learned Government Advocate appeared for the State and its

functionaries. He did not bring to the notice of the High Court that any show

cause notice was issued on 21.2.2004. The matter was disposed of on

13.5.2004 i.e. after about three months. It was pointed out that the

cancellation order was passed on 7.10.2005. Before that also there was no

prayer made to modify the earlier order. It was never the stand of the State

and its functionaries about the issuance of notice on 21.2.2004. We find that

the stand taken by the respondent is factually correct. The order dated

13.5.2004 was very specific to the effect that before cancellation and

forfeiture of security deposit, notice has to be given. That admittedly has not

been done. In the circumstances we dispose of both the appeals with a

direction that the impugned order of the High Court shall remain operative.

It is open to the appellant-State and its functionaries to issue notice in terms

of the order passed by the High Court in Writ Petition No.3445/2004 and

after grant of opportunity, decide the matter in accordance with law. The

appeals are accordingly disposed of.

...........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (ASOK KUMAR GANGULY)

4 New Delhi, January 27, 2009

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