Chandramani Senapati 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]. ordern. prusty, j.1. this writ petition has been filed by the petitioner to quash the impugned order of suspension dated 17.2.2006 (annexure-7) and for a direction to opp. party no. 2/ collector, jajpur to accept the renewal application of the petitioner for the year 2006-2007.2. heard mr. mallick. learned counsel for the petitioner and the learned additional standing counsel for the state.3. mr. mallik, learned counsel for the petitioner submits that on the basis of an earlier notice dated 22.9.2005 (annexure-2) the petitioner had filed his show cause on 28.9.2005 (annexure-3). considering all the facts and circumstances of the case and after giving a chance of personal hearing to the petitioner opp. party no. 2/collector, jajpur has imposed a fine of rs. 2000/- on the petitioner for the irregularities committed by him and warned him not to repeat such type of mistake in future (annexure-5). the present show cause notice dated 17.2.2006 has been issued to the petitioner suspending his licence as sub-wholesaler of kerosene oil and asking him to file show cause as to why his licence shall not be cancelled. mr. mallik, learned counsel further submits that while issuing this notice with regard to suspension of licence, the concerned authority has not followed the guidelines envisaged under clause 10 of the p.d.s. control order, 2002 whereby it has been specifically provided that before suspension of licence the retailer/dealer is to be given notice to show cause. the notice dated 17.2.2006 is completely untrust and illegal since it has been issued for the same cause of action for which the petitioner has already suffered punishment earlier. but in the meantime, the petitioner has filed his show cause in response to the notice within the time stipulated therein.4. however, since the petitioner has already filed his show cause pursuant to notice regarding cancellation of his licence within the time stipulated in the notice, without going to the merits of the case, opp. party no. 2/collector, jaipur is directed to take a final decision in the matter as early as practicable and communicate his decision to the petitioner. it is also made clear that if the subject matter of earlier show cause for which the petitioner has already suffered punishment, is same as that of the present show cause notice, the petitioner cannot be punished twice for the self same cause of action.5. so far as supply of quota is concerned, status quo as on date shall be maintained till disposal of the matter or till 31.3.2006 whichever is earlier.6. the writ petition is accordingly disposed of.in view of the disposal of the writ petition, misc. case also stands disposed of.

Judgment:
ORDER

N. Prusty, J.

1. This Writ Petition has been filed by the petitioner to quash the impugned order of suspension dated 17.2.2006 (Annexure-7) and for a direction to Opp. Party No. 2/ Collector, Jajpur to accept the renewal application of the petitioner for the year 2006-2007.

2. Heard Mr. Mallick. Learned Counsel for the petitioner and the Learned Additional Standing Counsel for the State.

3. Mr. Mallik, Learned Counsel for the petitioner submits that on the basis of an earlier notice dated 22.9.2005 (Annexure-2) the petitioner had filed his show cause on 28.9.2005 (Annexure-3). Considering all the facts and circumstances of the case and after giving a chance of personal hearing to the petitioner Opp. Party No. 2/Collector, Jajpur has imposed a fine of Rs. 2000/- on the petitioner for the irregularities committed by him and warned him not to repeat such type of mistake in future (Annexure-5). The present show cause notice dated 17.2.2006 has been issued to the petitioner suspending his licence as Sub-wholesaler of kerosene oil and asking him to file show cause as to why his licence shall not be cancelled. Mr. Mallik, Learned Counsel further submits that while issuing this notice with regard to suspension of licence, the concerned authority has not followed the guidelines envisaged under Clause 10 of the P.D.S. Control Order, 2002 whereby it has been specifically provided that before suspension of licence the retailer/dealer is to be given notice to show cause. The notice dated 17.2.2006 is completely untrust and illegal since it has been issued for the same cause of action for which the petitioner has already suffered punishment earlier. But in the meantime, the petitioner has filed his show cause in response to the notice within the time stipulated therein.

4. However, since the petitioner has already filed his show cause pursuant to notice regarding cancellation of his licence within the time stipulated in the notice, without going to the merits of the case, Opp. Party No. 2/Collector, Jaipur is directed to take a final decision in the matter as early as practicable and communicate his decision to the petitioner. It is also made clear that if the subject matter of earlier show cause for which the petitioner has already suffered punishment, is same as that of the present show cause notice, the petitioner cannot be punished twice for the self same cause of action.

5. So far as supply of quota is concerned, status quo as on date shall be maintained till disposal of the matter or till 31.3.2006 whichever is earlier.

6. The Writ Petition is accordingly disposed of.

In view of the disposal of the Writ Petition, Misc. Case also stands disposed of.