Orissa High Court
Kamal Kumar Agrawal vs State Of Odisha And Others on 8 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14917 of 2022
(Through hybrid mode)
Kamal Kumar Agrawal .... Petitioner
Mr. S. Mallik, Advocate
-versus-
State of Odisha and others .... Opposite Parties
Mr. S. N. Das, Advocate
(Additional Standing Counsel)
CORAM: JUSTICE ARINDAM SINHA
ORDER
08.08.2022
Order No.
03. 1. Mr. Mallik, learned advocate appears on behalf of petitioner and
submits, impugned are orders dated 16th April, 2022 and 6th May, 2022. His
client was running 24 hours medicine shop in campus of Capital Hospital,
Bhubaneswar. The medicine shop was under tenancy and with drug licence
issued. The hospital authorities required his client to move. His client had
moved this Court earlier by W.P.(C) no.9826 of 2015, disposed of by order
dated 3rd February, 2021. Pursuant thereto his client relocated to different
shop rooms allotted to his client. However, the hospital authorities reduced
the period of occupation mentioned in the agreement dated 21st January,
2022, to one year. By reason thereof the drug licensing authority issued
impugned orders rejecting his client's application for issuance of drug
licence at the new premises.
2. Mr. Das, learned advocate, Additional Standing Counsel appears on
behalf of State. On query from Court he submits, he is appearing both for
the hospital as well as the licensing authority. He submits, by circular dated
27th February, 2015 policy of the Government was informed to be that it is
committed to provide free medicines to patients at public health facilities
with setting up of 24 x 7 hours drug distribution counters. It was therefore
decided that, inter alia, no extension of lease of on campus medical stores be
done until further orders. This is why the extension agreement of one year.
He submits, under the extension agreement petitioner cannot run medicine
shop but can run any other shop. On query from Court, Mr. Das is unable to
say what kind of shop petitioner is entitled to operate under the extension
agreement.
3. Mr. Das relies on judgment of Supreme Court in State of Orissa v.
Radheyshyam Meher, reported in (1995) 1 SCC 652, paragraph 6. The
decision is inapplicable since controversy in that case was resistance by
existing medicine shop owners outside the hospital, to the Government's
decision to open medicine stores inside the hospital.
4. Perused order dated 3rd February, 2021 passed by coordinate Bench in
earlier W.P.(C) no.9826 of 2015 (petitioners own case). It appears from said
order petitioner had space measuring 12 X 20 sq.ft. allotted by the hospital
authority in year 1999. Petitioner had made temporary structure for running
medicine shop. Subsequently, the authorities allotted him two shops in year,
2013 in the utility complex and directed petitioner to move there. The
licensing authority acting in tandem with the hospital authority refused to
renew petitioner's drug licence. Petitioner had moved Court by said writ
petition.
5. During course of hearing petitioner expressed willingness to move to
the new premises on given at least seven days time for the purpose and
direction upon the authority to renew the drug licence in respect of the new
premises. Coordinate Bench, in regard to petitioner's prayer for drug licence
said in the order, inter alia, reproduced below.
"So far as the prayer for renewal of the drug license is
concerned, the petitioner is required to approach the Authority
concerned in this regard for fresh license, as revealed from the
counter affidavit of the Licensing Authority. Needless to say
that, if the petitioner applies for such license to run his
medicine shop from the new premises with necessary
documents and particulars, as required under the statute, his
such application shall be considered within three months of
making such application. However, this Court has expressed no
opinion on the merit of the same in any manner."
6. Petitioner moved to the new shops allotted to him. Said agreement
dated 21st January, 2022 was executed between the hospital and petitioner.
However, period of the occupation under the agreement was reduced to one
year. Submission on behalf of State has been recorded above that petitioner,
under this new agreement, can carry on any other business but dealing in
medicines. Also recorded is inability of State to say what other business can
be run in hospital premises apart from or dealing in medicines.
7. The second contention of opposition to petitioner getting drug licence
is reliance by State on said circular dated 27th February, 2015. The circular
prohibits extension of lease of on campus medical stores to be done till
further orders. States, therefore, contends that the allotment and agreement
is not for the purpose of medicine shop.
8. It is clear that State got petitioner to be evicted or moved from his
earlier occupation on holding out that he would be relocated. It is also true
that petitioner, from his earlier occupation, was running medicine shop
under licence. A requisite for grant of licence is minimum 5 years
occupation of the premises, from which medicine shop is to be run. State
has by one hand reduced the occupation period and by the other, relying on
that refused issuance of drug licence.
9. Court is unable to see requirement of depriving petitioner of his
livelihood by this two pronged attack against him on the basis of the pious
policy decision of commitment to provide free medicines. There is no
dispute that the hospital has not held out reasonable requirement, on the
shops allotted to petitioner, purportedly for one year. State, through the
hospital and the drug licensing authority appears to want to put petitioner
out of business in the hospital premises. That can be achieved by State on
providing free medicines from separate State counters. Petitioner will
automatically go out of business. Court appreciates that State is unwilling to
take a position on what petitioner can do as other business in the shops
allotted to him.
10. The hospital authority acting in tandem with the drug licensing
authority have acted unfairly against petitioner. There is no basis for the
agreement dated 21st January, 2022 to have period of one year. The hospital
authorities in executing the agreement acted against standing policy
direction by said circular dated 27th February, 2015. Why they did so Court
is not inclined to enquire.
11. Petitioner is entitled to engage in business and livelihood by running
drug store. The rules require the licensing authority to insist on a 5 years
occupation period. In the circumstances, opposite party nos.1 and 2 are
directed to amend said agreement dated 21st January, 2022, to be for period
of 5 years commencing from 21st January, 2022. Petitioner's occupation of
the newly allotted shops under the agreement will expire on 20th January,
2027. Notwithstanding, petitioner will produce this order before the drug
licensing authority, who is directed to issue licence to petitioner, subject to
compliance with other requisites and formalities.
12. The writ petition is disposed of.
(Arindam Sinha)
Judge
Prasant
