Bhawani Shankar vs State Of U.P. & Others
2018 Latest Caselaw 4188 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved on 14.11.2018
 
   Delivered on 07.12.2018
 

 

 
Case :- WRIT - C No. - 26599 of 2008
 

 
Petitioner :- Bhawani Shankar
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- K.D. Tiwari,Narsingh Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pritinker Diwaker,J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J)

1. Heard learned counsel for the petitioner and learned Standing Counsel for the State.

2. The petitioner was issued a licence on 20.01.1994 by respondent no. 2 i.e. the Chief Medical Officer, Basti/Drugs Licence Authority (hereinafter referred as 'Licensing Authority') to sale stock or exhibit or offer for sale or distribute drugs by retail other than those specified in Schedule C and Schedule C (I) of the Drugs and Cosmetics Act, 1940. The period of licence was from 20.01.1994 to 31.12.1995.

3. According to the petitioner, he had deposited licence fee for renewal of his licence for different years. The details of deposit has been stated by the petitioner in paragraph 9 of the writ petition which is extracted herein below:-

"That the has already been deposited the renewal fee which is as under:-

(i). Treasury Challan No. 96 Dated 22.12.95 Rs.80/-.

(ii). Treasury Challan No. 88 dated 27.12.1997 Rs.80/-.

(iii). Treasury Challan No. 87 dated 24.12.1999 Rs.80/-.

(iv). Treasury Challan No. 66 dated 28.12.2001 Rs.1,000/- (for 5 years).

(v). Treasury Challan No. 40 dated December, 2006 Rs. 1,000/- till 31.12.2011 the renewal fee deposited.

That the petitioner was continuously depositing the treasury Challan alongwtih required fee for the renewal of his licence, even then respondent no. 2 is not given the copy of renewal to the petitioner, this is why the petitioner was in impression that his renewal has already been extended (because he has already been deposited required fee and till today respondent no. 2 has not issued any information or show cause notice regarding the renewal)".

4. It appears that on the strength of depositing renewal fee, the petitioner was running shop to sell drugs. As according to the petitioner, he had applied for renewal of licence and had deposited requisite fee and, therefore, under the proviso to Rule 63 of Drugs and Cosmetics Rules, 1945 (hereinafter referred as Rules, 1945) the licence of the petitioner shall be deemed to continue until orders are passed on the application for renewal filed by the petitioner. It is further pleaded that no order was passed on the application of the petitioner, therefore, the licence of the petitioner was deemed to have been extended.

5. It transpires from the record that respondent no. 2 licensing authority passed an order dated 01.05.2008 cancelling the licence of the petitioner dated 20.01.1994 on the ground that as per the report of the Drug Clerk and Drug Inspector, Basti, petitioner had not applied for renewal of licence before 31.12.1995. The petitioner has challenged the order of the licecing authority dated 01.05.1997 cancelling the licence of the petitioner in the present writ petition.

6. Petitioner has prayed following relief:-

"(a). To issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 01.05.2008 passed by respondent no. 2.

(b). To issue a writ, order or direction in the nature of mandamus commanding the respondent no. 2 to renew the licence of petitioner.

(c). To issue any other and further order as this Hon'ble Court may deem fit and proper in the circumstances of the case.

(d). To award the cost of the petition to the petitioner".

7. A counter affidavit has been filed by the respondent-State contending therein that petitioner was granted licence in Form 20-A and 21-A upto 31.12.1995 by licensing authority. Respondents further pleaded in the counter affidavit that before 24.08.2001, as per proviso to Rule 63 of the Rules, 1945 original licence or renewal of licence to sell drugs shall be valid upto 31st December of the year following the year in which it is granted or renewed. Proviso to Rule 63 further provided that if application for renewal of licence is made before its expiry or if the application is made within six months of its expiry, after payment of additional fee, the licence shall continue to be in force until orders are passed on the application, and that licence shall be deemed to have expired if application for its renewal is not made within six months after its expiry.

8. It was further pleaded that in Rule 63, the period of five years was inserted vide G.S.R. 601 (E) dated 24.08.2001. Thus after amendment in Rule 63, the licence shall be valid for a period of five years on and from the date on which it is granted or renewed. Rest of the conditions for grant of licence under Rule 63 was same as it was prior to 24.08.2001.

9. It was further pleaded that according to Rule 59 of Rules, 1945, licencee would have to submit an application in the prescribed Form 19-A accompanied by the prescribed fee for renewal of licence. Respondents further pleaded that petitioner did not submit any application in prescribed Form 19-A before the licensing authority at any point of time and, therefore, there was no question of renewal of licence of the petitioner.

10. It is further case of respondents that according to Rule 59(4) read with Rule 63 of Rules, 1945, if a licencee fails to apply within the time prescribed, the licence is deemed to have expired and, therefore, relief no. 2 as prayed for by the petitioner cannot be granted. In respect of relief no. 1 as claimed by the petitioner, it is stated in the counter affidavit that no formal order is required in case where no application for the renewal is pending.

11. The petitioner filed rejoinder affidavit wherein the petitioner has not denied the averments of paragraph 7 of the counter affidavit wherein respondents have averred that the petitioner had not submitted any application in Form 19-A before the licensing authority at any point of time.

12. Learned counsel for the petitioner while challenging the order of cancellation of licence of petitioner contended that petitioner had deposited the licence fee for renewal of the licence which is evident from the challan in Form 43-A issued by the Accountant in respect of deposit of licence fee for renewal of licence. He submits that details of deposit of licence fee for each year as required under the Drugs Rules, 1945 have been deposited by him within the time prescribed under Rule 63 of Rules, 1945 and thus in the absence of any order on the application of the petitioner by the licensing authority, the licence shall be deemed to continue until any orders are passed on the application of the petitioner. He submits that ground on which licencing authority had cancelled the licence of the petitioner is not sustainable and is against the record inasmuch as the petitioner had deposited the licence fee within the time as prescribed in proviso to Rule 63 of Rules 1945.

13. It was further contended by the learned counsel for the petitioner that the order of the licensing authority cancelling the licence of the petitioner was passed in violation of principle of natural justice inasmuch as no show cause notice or opportunity of hearing was afforded to the petitioner before passing the impugned order.

14. Per contra, learned Standing counsel submits that the order of cancellation of the licence of the petitioner is just and proper in the facts of the present case inasmuch as proviso to Rule 63, the period of licence is upto 31st December of the year following the year in which it is granted or renewed. According to him, as per proviso to Rule 63 of Rules 1945, the petitioner was required to deposit the required licence fee and submit the application for renewal of licence before the expiry of licence or within six months of its expiry after payment of additional fee. The submission is that if this condition is fulfilled by the licencee only then licence shall continue to be in force until orders are passed on the application of licencee.

15. He further submits that if application for renewal of licence is not made within six months after expiry of licence, licence shall be deemed to have expired and once the licence has expired there was no question of renewal of it and no order is required to be passed on the said application. He further submits that in the instant case, no such application for renewal of licence had been submitted by the petitioner within the time prescribed under Rule 63 of Rules, 1945.

16. He submits that necessary averments with regard to non submission of application has been made by the petitioner in para 7 of the counter affidavit and this fact has not been denied by the petitioner in the rejoinder affidavit. The State counsel further submits that in the present case, no opportunity of hearing is required to be given to the petitioner inasmuch as admittedly, the petitioner has not complied with proviso to Rule 63 of Rules, 1945 in submitting the application for renewal of his licence and, therefore, the licence of the petitioner could not be renewed and hence opportunity of hearing to the petitioner was an empty formality as it did not cause any prejudice to the petitioner. He further contends that against the order impugned in the writ petition, petitioner has alternate remedy to file appeal before the State Government under Rule 66(2) of Rules, 1945.

17. Thus, on the basis of the aforesaid submissions, learned counsel for the respondents contends that the present case is not a fit case where this Court should exercise its power under Article 226 of the Constitution of India.

18. We have considered the submissions of the parties and perused the record.

19. So far as the objection raised by the respondents that writ petition is not maintainable in view of the alternative remedy provided to the petitioner under Rule 66(2) of Rules, 1945 is concerned, we find from the record that the writ petition was filed in the year 2008 and interim order was passed in the writ petition and counter and rejoinder affidavits have been exchanged. The writ petition is pending for more than ten years, therefore, we are not inclined to dismiss the writ petition on the ground of alternate remedy.

20. Before adverting to the respective arguments of both the parties on merit, it would be useful to have a glance of Rule 63 of Rules, 1945. The contents of Rule 63 of Rules, 1945 is reproduced herein below:-

"63. Duration of licence.--An original licence or a renewed licence to sell drugs, unless sooner suspended or cancelled, shall be valid for a period of five years on and from the date on which] it is granted or renewed:

(Provided that if the application for renewal of licence in force is made before its expiry or if the application is made within six months of its expiry, after payment of additional fee, the licence shall continue to be in force until orders are passed on the application. The licence shall be deemed to have expired if application for its renewal is not made within six months after its expiry)".

21. According to Rule 63 of Rules 1945 which stood prior to 24.08.2001, licence is valid upto 31st December of the year following the year in which it was granted or renewed whereas, after 24.08.2001, licence shall be valid for a period of five years on and from the date on which it is granted or renewed. However, the period within which the licencee has to file application for renewal of licence is same prior to and after amendment in Rule 63 of Rules, 1945.

22. Thus, according to proviso 63 of Rules, 1945, the licencee is required to submit an application for renewal of licence before its expiry or within six months from the date of its expiry only then the licence shall be deemed to continue in force until orders are passed on such application. In the case in hand, if we take a glance at paragraph 9 of the writ petition, it is evident that petitioner has not complied with the requirement of Rule 63 of Rules 1945 in submitting the application for renewal of licence as the licence fee was deposited on 22.12.1995 by Treasury challan No. 96. Thus on deposit of the said fee, according to Rule 63 of Rules 1945, the licence of the petitioner was valid upto 31-12-1996. There is nothing on record to indicate that petitioner had deposited any licence fee for renewal of licence before 31.12.1996 for the licence to continue after 31.12.1996.

23. Thus, on the basis of the pleadings in the writ petition, it is evident that no licence fee was deposited by him in the year 1996, therefore, the licence of petitioner shall not be deemed to have continued after expiry of his licence on 31.12.1996. It is pertinent to point out at this stage that petitioner had not filed any application in Form 19-A as required under Rule 59(4) of Rules, 1945 for renewal of licence whereas it is mandatory for the licencee to file application in Form 19-A for renewal of the licence. The fact that petitioner had not submitted any application in Form 19-A for renewal of licence has been pleaded by the respondents in the counter affidavit which have not been denied by the petitioner in the rejoinder affidavit, thus it is evident from the record that the petitioner has failed to comply with the requirement of submitting application under Rule 59(4) of Rules, 1945 in Form 19-A for renewal of licence, therefore, the reasons assigned by the respondents in cancelling the licence is correct in the facts of the present case.

24. Further, a perusal of para 9 of the writ petition also establishes that petitioner had not deposited the required licence fee for each year. In view of the fact that petitioner has not complied with the requirement of submitting application for renewal of licence and has not deposited licence fee for renewal of licence, the contention of the learned counsel for the petitioner that petitioner had filed application for renewal of licence and his licence shall be deemed to continue until orders are passed on the application of the petitioner is misconceived and has no substance.

25. So far as the contention of learned counsel for the petitioner that no opportunity of hearing was afforded to the petitioner, the said contention is also misconceived for the reason that the facts which are born out from the record establishes that petitioner had not complied with the requirement of filing the application for renewal of licence as required under Rule 59(4) read with Rule 63 of Rules, 1945. Therefore, no prejudice is caused to the petitioner by not giving opportunity of hearing to the petitioner.

26. Thus, for the reasons given above, the writ petition lacks merit and is, accordingly, dismissed. There shall be no order as to cost.

Order Date :- 7.12.2018

Sattyarth