REPORTABLE

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

J U D G M E N T

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

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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

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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)

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New Delhi,  January 27, 2009

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