Jangoraitad Adivasi Vikas ... vs Union Of India Ministry Of ...
2021 Latest Caselaw 10415 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH : NAGPUR.


                               WRIT PETITION NO.912/2021


 Jangoraitad Adivasi Vekas Sanstha,
 a Public Charitable Trust registered under
 the provisions of Maharashtra Public Trust
 Act, 1950 having its registered office at 306,
 Opp. Volleyball Ground, Laxmi Nagar, Nagpur
 440 022 acting through its President, Shri
 Prabodh S/o Chandrashekhar Vekhande,
 aged 53 Yrs., Occ. Private, R/o Laxmi Nagar,
 Nagpur.                                                             ..Petitioner.

          ..Vs..

 1.       Union of India,
          Ministry of Defence, through Defence
          Secretary, Department of Defence
          Ministry, 101-A, South Block, New
          Delhi - 110 011.

 2.       Ordnance Factory Board,
          through Director General, Ordnance
          Factories & Chairman, OFB 10, Shahid
          Khudiram Bose Road, B.B.D Bagh, Kolkata,
          West Bengal - 700 001.

 3.       General Manager,
          Ordnance Factory, Chandrapur.

 4.       Chandan Deshmukh,
          Junior Works Manager, Ordnance Factory,
          Chandrapur.

          Both (3) & (4) officiating at Ordnance
          Factory Chanda Estate, Bhadravati,
          District - Chandrapur 442 501.

 5.       Janaushadhi Medical Kendra
          acting through its Proprietor, Mr. Chandraprabha


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          Ramesh Govardhan, aged adult, Room
          No.1 & 2, House No.747, Shyam Nagar
          Ward, Bhagatsingh Chowk, Ballarsha
          Bypass Road, Chandrapur - 442 401.

 6.       Janaushadhi Kendra,
          through its Proprietor, Rakesh Rajeshrao
          Samarth, House No.2530/11, Ward No.21,
          Sai Nagar, Opp. Pragati Hall, Umred Road,
          Dighori, Nagpur - 9.                                                ..Respondents.
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          Shri R.S. Giripunje, Advocate for the petitioner.
          Ms Megha Munshi, Advocate for respondent Nos.2 and 3.
          Shri Prashant H. Khobragade, Advocate for respondent Nos.5 and 6.
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                           CORAM :- SUNIL B. SHUKRE AND
                                            ANIL S. KILOR, JJ.

DATED :- 5.8.2021.

ORAL JUDGMENT (Per Sunil B. Shukre, J.)

Heard. Rule. Rule made returnable forthwith. Heard finally

by consent.

2. In the subject tender process, the petitioner has been found to

be not qualified to take part in the further tender process in view of

the petitioner not fulfilling the condition of possession of valid drug

licence which is condition No.2(b) of the terms and conditions of the

said tender notice dated 12.6.2020.

3. According to learned counsel for the petitioner, the petitioner

does fulfill this condition and in support, he invites our attention to

wp912.2021.odt

the copy of the Licence Retention Letter (page 35). Learned counsel

for respondent Nos.1 to 3 and learned counsel for respondent Nos.5

and 6 both submit that the Licence Retention Letter only shows that

condition No.2(b) of the terms and conditions of the tender notice is

not fulfilled by the petitioner.

4. On perusal of the Licence Retention Letter, we find ourselves in

agreement with the submissions made on behalf of respondent Nos.1

to 3 and respondent Nos.5 and 6. The drug Licence Retention Letter

is a document which sufficiently indicates the name of the person or

entity to whom the license has been issued. It shows the name of the

licensee as "Tripura Jan Aushadhalay (Proprietary), House No.38/2,

P.No.R/4, S. No.G12, Jangoraitad Aadhivasi V. S Swapnashila

Apartment, Besa - 444 001, Taluka Nagpur Urban, District Nagpur, I/c

Person : Prabodh Chandrashekhar Vekhande (Mobile 9225220895).

Thus, the Licence Retention Letter is indicative of the fact that the

drug licence has been issued in the name of "Tripura Jan

Aushadhalay".

5. A copy of one drug licence, has also been filed on record by the

petitioner. This licence shows that licence No.NAG-12750, Dated

03/09/2015 in form [20C] has been granted on 3 rd September, 2015

wp912.2021.odt

to "Tripura Jan Aushadhalay" for sale of the homeopathic medicines at

the terms shown therein. So, in this license also, the name of the

licensee is same as in the Licence Retention Letter.

6. Thus, the above referred two documents unmistakably show

that the drug licence has been issued to "Tripura Jan Aushadhalay"

and not to the petitioner society. Learned counsel for the petitioner

submits that petitioner being proprietor of "Tripura Jan Aushadhalay"

it would have to be held that the drug licence has been in fact been

issued to the petitioner society. Such an argument cannot be accepted

for the reason that dealings in drugs, whether they are in the nature of

procurement, storage or sale, have to be done only by the licensee

specifically named in the drug licence and not by anybody else in his

or in its own name representing himself to be the owner or the partner

or the proprietor of the licensee specifically named in the drug licence.

If it were not so, the authorities empowered to take penal action

under the Drugs and Cosmetics Act or any other relevant law, would

find it difficult to book the wrong doer or offender under the law.

7. In the instant case, the contract to be awarded as per the tender

notice is of supply of generic allopathic medicines. One drug licence

that we notice here at page 48 is in respect of homeopathic medicines.

wp912.2021.odt

The Licence Retention Letter (page 35) refers to four licences bearing

Nos.127746, 127748, 127747 and 127749. These four licenses as per

the Licence Retention Letter, have been allowed to be retained in the

name of "Tripura Jan Aushadhalay". Copies of these original drug

licenses have not been produced on record. So, we have to rely only

upon the Licence Retention Letter and by doing so, we find that even

the Licence Retention Letter shows that the licensee is "Tripura Jan

Aushadhalay" (Proprietary) and not the petitioner society. It is a

different matter that the petitioner society is a proprietor of Tripura

Jan Aushadhalay but when it comes to procurement, storage and sale

of the licensed drugs, same has to be done in the name of Tripura Jan

Aushadhalay and not in the name of petitioner society and that is the

requirement of law as found by us earlier and that being so, we find

nothing wrong in the action of respondent Nos.1 to 3 in disqualifying

the petitioner from the subject tender process. There is no merit in the

petition. Writ petition stands dismissed. Rule stands discharged. No

costs.

                               JUDGE                             JUDGE



 Tambaskar.