State Of Odisha & Others vs Kamal Kumar Agrawal & Another
2023 Latest Caselaw 7821 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                               W.A. No. 1251 of 2022
      State of Odisha & Others             .........                   Appellants
                                                     Mr. D.K. Mohanty, AGA
                                           Versus
      Kamal Kumar Agrawal & Another        ..........               Respondents
                                                    Mr. S. Mallick, Advocate
     CORAM:
                           JUSTICE S. TALAPATRA
                           JUSTICE SAVITRI RATHO
                                         ORDER

20.07.2023 Order No.

02.

1. This matter is taken up through Hybrid Mode.

2. Heard Mr. D.K. Mohanty, learned Additional Government Advocate

appearing for the appellants as well as Mr. S. Mallick, learned counsel

appearing for the respondent no.1 (the writ petitioner).

3. By means of this intra-court appeal, the State-appellants have

challenged the order dated 08.08.2022 delivered in W.P.(C) No. 14917 of

2022. By the said judgment, the learned Single Judge has observed and

directed inter alia as follows:

"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 the petitioner, subject to compliance with other requisites and formalities."

4. Mr. D.K. Mohanty, learned Additional Government Advocate has

seriously contended that since the petitioner was persuaded to shift the shop

[the medical store] for construction of the utility space within the Capital

Hospital complex, and as per the direction of the Hon'ble Apex Court, he

has been accommodated with two shops viz. shops no. 7 and 8.

5. The dispute relating to the allotment of shops was taken to the

Hon'ble Apex Court by the respondents herein by filing a Special Leave to

Appeal being SLP(C) No. 20679 of 2021. While disposing the Special

Leave Petition by the order under Annexure 5 to the writ petition the Apex

Court had directed the appellants to complete the process of allotment

within a week from the date of order i.e. 17.01.2022 and also to sign the

agreement accordingly.

6. Mr. Mohanty, learned Additional Government Advocate has clearly

submitted that that process is over and the above shops have been allotted

in favour of the respondents. Mr. Mohanty has fairly admitted that the

agreement that has been entered between the parties was for a term of one

year.

7. At this juncture, Mr. S. Mallick, learned counsel appearing for the

respondent has submitted that the respondent used to run a drug store in the

earstwhile shop. He would like to carry on the said business of drugs under

the valid licence for harnessing his acquired skill of business in medicine.

For getting the licence, minimum 5 years lease for the premises is required

to be produced before the licensing authority. It appears that having

considered the requirement, learned Single Judge has directed the

appellants to amend the said agreement dated 21.01.2022 by extending the

tenure from one year to five years from 21.01.2022. According to us, the

said direction is not unreasonable, in as much as the rehabilitation of the

respondent was promised by the State. It is not in dispute the said term of 5

(five) years and is required for getting the drug licence which is essential

for the respondent to continue his business of medicine. As such, we are

not inclined to interfere with the said direction.

8. Mr. Mohanty, learned Additional Government Advocate while

arguing on the ground that the direction as issued by the drug licensing

authority is untenable as the Court may direct the statutory authority to do a

thing in a particular manner or dehors the rules. Hence the said direction

amounts usurpation. The statutory authority is entitled to examine the

prayer for issuing licence in accordance with the prescribed procedure.

9. Mr. Mohanty, learned Additional Government Advocate has shown us

the Government policy as recorded in the circular dated 27.02.2015 under

Annexure-2 to the memorandum of the appeal for pressing that the

Government has decided as under:

a) No extension of lease of on-campus Medical stores be done till further orders.

b) No new opening of campus Medical stores be allowed.

c) The Drugs Controller, Odisha is instructed to be on alert while renewing the licence of these drug stores.

10. Mr. Mohanty, learned Additional Government Advocate has

strenuously contended that unless the policy is observed, the Drugs

Controller cannot issue any fresh licence in favour of any person. He has

further stated that the respondents may carry on any other business from the

allotted shops. He has also stated that the said decision is not only

applicable to the Capital Hospital but all hospitals of the State in respect of

24 hours drug distribution stores. The said circular was challenged, but

finally, the Hon'ble Apex Court in State of Orissa and Another vrs.

Radheshyam Meher & Others reported in (1995) 1 SCC 652 has, while

discarding the said challenge, observed that the restriction of that kind does

not offend the right to carry on business under Article 19 (1) (g) of the

Constitution of India.

11. Mr. Mallick, learned counsel has retorted by saying that the said

policy can not be applied in the case of the writ petitioner [the respondent

herein] as the petitioner was running a medical store under the valid licence

from the Drugs Controller in the same premises. In the public interest, he

had been asked to shift to the new shops as referred before. The said

contention found favour of the learned Single Judge.

12. Having appreciated the submissions of the learned counsel for the

parties, we are of the view that the petitioner was running a drug store in

the same complex but not in the same premises. We have also considered

that the drug licensing authority has a statutory duty to examine whether the

petitioner is fit to get the drug licence or not. While considering the grant

of drug licence, all requirements of the Drug Rules shall have to be

conformed to.

13. Learned Single Judge aught not have directed the drug licensing

authority to issue the licence to the petitioner. But the learned Single Judge

has at the same time recorded that the said direction was subject to the

compliance with other conditions and prescription as laid down. Whether

the licence would be issued or not, we do have any hesitation to hold that

that falls within the prerogative of the drug licensing authority. Further, we

are to hold that the learned Single Judge has correctly observed that the

policy of the Government may not apply in the present case. By way of

interference, we modify the direction, as phrased by the learned Single

Judge.

14. As corollary, we direct the Appellant no.2 to amend the agreement by

extending the tenure of lease/period of occupation to 5 years from the date

of signing of the agreement dated 21.01.2022. The extension may also be

granted by the unilateral communication or by declaration in writing by the

Director of the Capital Hospital, the appellant no.2. If the latter method is

followed, such communication or declaration shall form part of the

agreement for purpose of the drug licence or for any other purposes.

15. We further direct that if the other requirement for getting a drug

licence is met by the petitioner, such application shall be considered within

a period of 30 days from the date when the agreement/ lease in terms of the

above direction [para 14 of this judgment] will be submitted before the drug

licence authority.

16. The respondent no.2 shall cause amendment in the agreement by

extending the tenure of lease to 5 years or issue the communication or make

the declaration in the manner, as aforestated by extending the period/ tenure

of agreement/lease to 5 years, within 10 days from today.

17. In terms of the above, the writ appeal stands disposed of.

Urgent certified copy of this order be granted on proper application.

(S. Talapatra) Judge

(Savitri Ratho) Judge puspa

Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Designation: Personal Assistant Reason: Authentication Location: Orissa High Court Date: 25-Jul-2023 18:11:15