Hadibandhu Sahu Vs. State of Orissa 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]. - sub-section (3) mandates a full and complete investigation in the prescribed manner in respect of several aspects like, number of rice mills operating in the locality, and availability of paddy in the locality etc. it provides that if the licensing authority is satisfied either on a reference made to him or otherwise that a licence granted under section 6 has been obtained by misrepresentation as to an essential fact, then, without prejudice to any other penalty to which the holder of the licence may be liable under the act, the licensing officer may, after giving the holder of the licence an opportunity of showing cause revoke or suspend the licence.pasayat, j.1. petitioner assails correctness of order of the opp. party no. 1 in issuing permit in favour of the opp. party no. 4.2. the case of the parties in a nutshell is as follows:--petitioner operates a rice mill in village mathakaragola in the district of dhenkanal and has been issued a license under section 6 of the rice milling industry (regulation) act, 1958 (in short, the 'act'). his grievance is that without following the procedures prescribed in law, attempt is being made by opp. party no. 4 to operate a mill. in the counter-affidavit filed by opp. party no. 4, it is stated that permission has been granted to him to establish a mill under section 5 of the act. it is his case that there is no intention to carry on milling activities without requisite licence under section 6 of the act,3. sections 5 and 6 operate in different areas. the former provision deals with grant of permit to any person or authority for establishment of a new rice mill, or any owner of a defunct rice mill. the latter provision deals with licence to operate a mill. for grant of permit for establishment of a new rice mill or recommence rice milling operation as the case may be, an application has to be made to the central government, procedures have been prescribed as to how an application received in that regard is to be dealt with. sub-section (3) mandates a full and complete investigation in the prescribed manner in respect of several aspects like, number of rice mills operating in the locality, and availability of paddy in the locality etc. after a permit is granted in favour of an applicant, owner of an existing rice mill or of a rice mill in respect of which permit has been granted under section 5 and is effective, may make an application to the licensing officer for grant of a licence for carrying on rice milling in that rice mill. on receipt of the application, the licensing officer can grant licence on such conditions as are deemed proper. it is not in dispute that there is no requirement in section 6 to invite objection from a rival claimant or any outsider before granting licence. similar view was expressed in anadi charan rout v. collector, cuttack, air 1972 orissa 202. while considering the challenge of a competitor in business attributing infractions under the act, the apex court observed that if any provision has not been complied with, the over of a rice mill may be exposed to penalty, but the competitor cannot seek to prevent the alleged erring owner from exercising right to carry on business because of the default. the right to carry on business being a fundamental right under article 19(1)(g) of the constitution, its exercise is subject only to the restrictions imposed by law in the interests of the general public under article 19(6)(i) (see nagar rice and flour mills v. n. teekappa gowda & bros., air 1971 sc 246), grievance of an existing licencee or any person affected has been taken care of in sections 7 and 12. section 7 deals with revocation, suspension and amendment of licence. it provides that if the licensing authority is satisfied either on a reference made to him or otherwise that a licence granted under section 6 has been obtained by misrepresentation as to an essential fact, then, without prejudice to any other penalty to which the holder of the licence may be liable under the act, the licensing officer may, after giving the holder of the licence an opportunity of showing cause revoke or suspend the licence. the word 'otherwise' appearing in section 7 would cover the case of a reference made by a rival claimant or competitor. the reference may be in the form of an objection or representation giving relevant details. section 12 provides that any person aggrieved by a decision of the licensing officer under section 6 may within the stipulated time prefer an appeal to an appellate officer who shall be a person nominated in that behalf by the central government. once a rival claimant or competitor is recognised within the ambit of section 7 to bring to the notice of the licensing officer that the licence should be revoked or suspended, necessarily he is encompassed by the expression 'person aggrieved by a decision of a licensing officer' to file an appeal under section 12 of the act.4. the writ application in our view, is premature because no licence as required under section 6 has yet been granted to the petitioner. it is the case of the petitioner that opp. party no. 4 is carrying on business without requisite licence. this in an aspect which can be taken care of by the authority who has power to deal with an unauthorised rice mill. we express no opinion in the matter because opposite party no. 4 has denied the allegation of unauthorised operation.5. the writ application is dismissed. no costs,d. misra, j.6. i agree.