JAISWAL PHARMACY Vs. UNION OF INDIA

JUDGEMENT

(1.) In all these three writ applications the petitioners are retail dealers and distributors ol drugs and medicines for sale and stock. They are registered as such and hold licences under the provisions of the Drugs and Cosmetics Act, 1940. In all these three writ applications notification bearing No. C. S. R. 779, New Delhi, dated 18th July, 1980 has been challenged whereby fee payable in respect of an application for renewal of the licence has been enhanced. There has been enhancement in the late fee also in case of applications made beyond the prescribed period. The aforesaid notification has been issued by the Central Government in exercise of the powers conferred upon it under Sections 12, 18 and 33 of the Act and rules framed thereunder.

(2.) Mr. Tapan Sen, appearing on behalf of the petitioners in all the three writ applications submits that in view of judgment of this Court in C. W. J. C. No. 1175 of 1982 (R), dated 18th August, 1987, reportd in 1988 BLJ 460 (RB) the question involved in the instant writ application is not res Integra. A copy of the aforesaid judgment has been produced beford me. I find that this Court has held that there was no element of quid pro quo justifying the enhancement of renewal fee and late tee, and in fact no service is rendered or proposed to be rendered to the licencees. After considering a large number of authorities on the point, this Court has quashed the impugned notification dated 18th July, 1980 and the notices issued pursuant therto.

(3.) Sri S. B. Gododia, learned standing counsel appearing on behalf of the Respondents 2 to 5 namely, State Drug Contractor, Bihar, Patna and other Officers of the Government of Bihar, has contended that there appears to be a conflict of judicial opinion between the various judgments of the Supreme Court and hence this matter requires consideration by a larger bench of this Court. I find from the judgment of the learned Judge who quashed the impugned notification that he has followed the judgment of the Supreme Court rendered by a Constitutional Bench consisting of five learned Judges of the Supreme Court. In his view, even if there be any inconsistency between two judgments of the Supreme Court, the judgement of the larger Bench ought to prevail, and he has accordingly followed the judgment of the constitutional Bench of the Supreme Court. I am in respectful agreement with the principle adopted by the learned judge and I find no reason to take a different view. However Mr. Gododia contends that this matter requires consideration by a larger Bench of this Court. Even if that be so, the respondents, if they are aggrieved, may prefer an appeal under Clause 10 of the Letters Patent of the Patna High Court. That being the position no purpose would be served, and is not necessary for me to refer these writ petitions for hearing by a larger Bench. Mr. Tapan Sen, appearing on behalf of the petitioners objected to the stand taken by Sri Gadodia and contended that since the notification was issued by the Central Government, the State Government cannot challenge the judgment of this Court since it is the Central Government alone which may be aggrieved by the judgment of this Court. It is not necessary for me to go into this question since he can raise this objection before the Appellate Court if an appeal is preferred by any of the respondents.