State of Orissa &
Ors. Vs. Balram Sahu  INSC 170 (27 January 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2009 (Arising out of
SLP (C) No. 596 of 2009 State of Orissa and Ors. ..Appellants Versus Balram
Sahu ..Respondent With Civil Appeal No. /2009 @ SLP (C) No. 597/2009
Dr. ARIJIT PASAYAT,
granted in both the Special Leave Petitions.
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.
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 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.
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
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 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.
(Dr. ARIJIT PASAYAT)