NAWAL KISHORE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) NAWAL Kishore jaju, the petitioner in this writ petition, filed under Article 226 of the Constitution, is the proprietor of M/s Jajoo Brothers Medical Stores, and carries on business in purchase and sale of drugs and medicines at Barmer. He obtained two licences (Nos. 102R and 102 R -CC (1) on 5th March, 1976 from the Chief Medical and Health Officer, Barmer, who is the Drug Licensing Authority under the Drug and Cosmetics Acts 1950 (hereinafter referred so as the 'Act) and the Drugs and Come -tics Rules, 1954 (hereinafter referred to as the Rules). Licence No. 102 R. authorises the petitioner to sell, stock or exhibit for sale or distribute by retail, drugs other than those specified in schedules C and C (1) to the Rules. Licence No. 102R -CC (1) authorises the petitioner to sell, stock or exhibit for sale, or distribute by retail, drugs specified in Schedules C and C (1) to the Rules. Both the licences were valid up to 31st December, 1977 but before the expiry of the period of the said licences, the Chief Medical and Health Officer, Barmer, passed an order dated 11th May, 1976 whereby he directed the petitioner not to carry on any business in pursuance of the licences which had been issued in his favour. Being aggrieved by the said order, the petitioner has filed this writ petition for the issue of an appropriate writ or order to quash the said order dated 11th May, 1976 and to direct the respondents not to interfere with the right of the petitioner to conduct his business. It may be mentioned that before the date of the expiry of the aforesaid licences, the petitioner had submitted applications for renewal of the licences in accordance with the Rules and the said applications are still pending for consideration before the Licensing Authority.

(2.) IN the writ petition, the petitioner has submitted that in the town of Barmer, there is a Samiti known as Dongra Vishram Grah Samiti and that the Collector, Barmer, is the Chairman of the said Samiti and the Chief Medical and Health Officer, Barmer, is the Secretary of the said Samiti. The said Samiti has got building constructed near the General Hospital, Barmer, and there are two shops in the said building. The petitioner has taken one of the aforesaid two shops on rent by making a bid in an open auction and a rent note was executed by the petitioner in respect of the said shop in favour of the Samiti on 8th March 1976. The petitioner had obtained the licences referred to above for the purpose of starting a medical store in the shop, that has been taken on lease from the Samiti. The case of the petitioner is that the impugned order had been passed with a view to prevent him from carrying on his business in drugs in the said shop. In the writ petition, the validity of the order dated 11th May, 1976 is challenged on the ground that the said order is violative of the right of the petitioner to carry on trade and business in drugs under the licences, which is guaranteed under Article 19(1)(g) of the Constitution The petitioner has alleged that the impugned order amounts to cancellation of the licences of the petitioner and that it was passed in violation of the principles of natural justice without affording any opportunity to the petitioner to show cause why such an order should not be made.

(3.) IN reply to the writ petition, filed on behalf of respondents, certain preliminary objections have been raised with regard to the maintainability of the writ petition on the ground of delay and latches and also on the ground that an alternative remedy by way of appeal, was available to the petitioner. As to the merits, the respondents have pleaded that the premises in which the petitioner wants to set up a drug shop are a part of the Maheshwari Dongra Vishram Grah and that 'he said premises were constructed by a charitable trust known as Dongra Vishrana -Grah Trust and that it was resolved at the inception that none of the shops should be given to any person for running a drug shop and that shop was never let out to the petitioner for running a drug shop and that inspite of the clear understanding between the trustees of the said Trust, the petitioner had some how managed to obtain a licence to start a drug shop on the said premises In the said reply, reliance has been placed on the resolution dated 24th December, 1974 passed by the Dongra Vishram Grah Trust which clearly forbids all persons to start any drug shop within any of the shops constructed by the trust and the impugned order suspending the licences is sought to be justified on the ground that the petitioner had tried to by pass the spirit of the said resolution In the aforesaid reply there is no denial of the averment contained in the writ petition that no opportunity to show cause was afforded to the petitioner before the passing of the impugned order.