Judgment S. B. Sinha, J. 1. Both these writ application with consent of the parties were heard together and are being disposed of by this common judgment. 2. Short of all unnecessary details the facts of the matter are as follows :- The petitioner of C W. J. C. No.4788 of 1986 (hereinafter to as referred to as M/s. Medimpex) admittedly had a drug licence duly issued to it in terms of the provisions of Drugs and Cosmetics Act, 1940 and Drugs and Cosmetic Rules (hereinafter referred to as act and the rules respectively for the sake of brevity ). Initially the said licence was granted to M/s. Medimpex on or about 8-10-1969 for nine items of drugs. The factory of the petitioner was then situated at Daldali Road The said licence was allegedly granted on the condition that the said factory must be shitted from the said Daldali Road to some other area which is free from pollution. 3 Thereafter a new licence was granted to the petitioner on 14-9-1971 for a premises which is situated at Saidpur which was to remain valid upto 31-12-1972. The aforementioned new licence was also granted for a total number of nine drugs. 4. It may be mentioned here that in terms of the provisions of the said act and the Rules framed thereunder, a licence is required to be obtained for every set of such premises if drugs are manufactured on more than one set of premises. In terms of Rule 72 of the Rules an original or a renewed licence in form 25-A 25-B or Form 25-F) unless sooner suspended or cancelled remains valid up to the 31st December of the year following the year in which it is granted or renewed. 5. In terms of proviso appended to the aforementioned Rule 72, an application for renewal of a licence is to be made before its expiry or within a period of six months of its expiry on payment of additional fees, prescribed therefor In terms of the said provisions a licence continues to be inforce until orders are passed on such an application for renewal and in case no application for renewal is filed within six months within its expiry, the licence would be deemed to have expired. 6. 6. On the expiry of the aforementioned licence which was bearing licence no 135 M/s Medimpex filed an application for renewal thereof and the said licence was renewed from 1-1-1973 to 31-12-1974 for nine drugs only (vide annexure-15) Allegedly on or about 21-5-1975 six additional non-biological drugs including santonin was added. From Annexure 17 to C. W. J. C. No 5943 of 1985, it appears that M/s. Medimpex filed an application for the renewal of the aforementioned licence for the period of 1-1-1975 to 31-12-1976. 7. The petitioner of C. W. J. C. No.5943 of 1985 (hereinafter referred to m/s Naya Dawakhana) has alleged that along with the renewal application, the licensee did not file any application for inclusion of any additional item for inclusion therof in the said licence in terms of Rule 69 (5) of the rules or at all the aforementioned statements made in the writ petition of C. W. J. C No.5943 of 1985 have not been controverted in the counter-affidavit filed by the respondents including the respondent No.4 thereof who is petitioner of C. W. J. C. No.4788 of 1986. 8. Although there does not appear to be any statutory order or circular issued in this regard, it appears from the records of the case which were produced before us by the learned Government Advocate appearing on behalf of the state and its officers that such an application for grant of licence or renewal thereof is processed by a high powered committee. The aforementioned application for renewal of the drug licence was placed before the committee on 20-1-1975. It appears that thereafter the Drug controller by a letter dated 26-2-1976 returned only the list of the drugs (and not the renewal application itself) to M/s. Medimpex as allegedly it did not supply the packing conditions in respect of the said drugs. The said letters are contained in Annexure-K and K/1 of the counter-affidavit of the respondent no.4 filed in C. W. J. C. No.5943 of 1985. 9. Thereafter, M/s. Medimpex supplied the list containing 23 items of druas which included "santopar". According to M/s. Medimpex, the request to include "santopar" was made as early as in 1974 and was pending consideration. Admittedly no order was passed on the said application. 9. Thereafter, M/s. Medimpex supplied the list containing 23 items of druas which included "santopar". According to M/s. Medimpex, the request to include "santopar" was made as early as in 1974 and was pending consideration. Admittedly no order was passed on the said application. Further the very fact that M/s Medimpex also in its application for renewal for the years 1975-76 did not ask for renewal of licence in respect of "santopar" clearly goes to show that the said purported application was not acted upon by the authorities nor M/s. Medimpex itself pursued the matter any further. 10. However on or about 11-6-1982 M/s, Naya Dawakhana applied for and was granted licence for the drugs "santopar. " The said drug admittedly is a "santonin and Calomel product, the composition whereof is as follows: -Santonin I. P.25 mg. Calamal I. P.10 mg. Phenaptholine I. P.100 mg. Thereafter M/s. Medimpex Ltd. filed a writ application before this Court challenging the grant of the said licence to M/s. Naya Dawakhana being c. W. J. C.2747 of 1983. 11. The said writ petition was placed before a Division Bench of this court. Before this Court various charges of forgery, interpolation etc. were made by the parties thereto. In the aforementioned writ petition, however, it was not disputed that M/s, Medimpex had been manufacturing the drug "santopar" but the question arose for consideration therein was whether M/s. Medimpex was doing so under any valid licence or not ? 12. In the said writ petition contentions were raised that one party or other thereto had forged and or fabricated certain documents and charges in respect of interpolation of records maintained in the office of the Drug Market, were also made, therein. 13. By a judgment dated 2-8-1984 this Court while disposing of the said writ petition directed the Drug Controller to consider as to whether m/s. Medimpex Ltd. was manufacturing the drugs "santopar" under a valid licence or not ? the said order was passed as in the said writ petition serious and disputed questions of fact were to be resolved upon which was not possible to be done in a writ petition. The operative portion of the said judgment dated 2-8-1984 as contained in Annexure-2 passed in C. W. J. C. No.2747 of 1983 reads as follows :- "17. the said order was passed as in the said writ petition serious and disputed questions of fact were to be resolved upon which was not possible to be done in a writ petition. The operative portion of the said judgment dated 2-8-1984 as contained in Annexure-2 passed in C. W. J. C. No.2747 of 1983 reads as follows :- "17. All these facts do require as indicated above, a through probe, and if during probe it is found by the authorities that the petitioner was, in fact, manufacturing "santopar" then the omission of that drug in the petitioners licence and the grant of licence to manufacture the same in the same brand name in the licence of respondent No.4 will be illegal. It would be well advised if the authorities concerned had an enquiry into the matter to find out the respective claims of the parties. In the result, the petition is disposed of with a direction that the respondent No.1 the Drugs controller shall hold an enquiry and in so doing shall afford reasonable opportunities to the parties to adduce evidence in support of their respective claims and after hearing them, the Drugs Controller Government of Bihar, Patna shall pass final orders in the matter. It will, however, be open to the petitioner to approach this Court again in case the findings of the enquiry goes against him on untenable grounds. (Underlining is mine ). " 14. Thereafter M/s. Naya Dawakhana filed an application for review/ modification of the aforementioned writ petition as some typographical error was apprehended to have crept in the afore-mentioned paragraph 17 of the judgment and this Court by an order dated 30-1-1985 disposed of the said application which is contained in Annexure-3 to the C. W. J. C. No.5943 of 1985. 15. The Drug Controller thereafter upon hearing the parties, by an order dated 22-12-1984, inter alia, held that no licence was granted to m/s. Medimpex for manufacturing the drug "santopar". The said order is contained in annexure-4. This order of the Drug Controller was admittedly communicated to M/s. Medimpex on 27-12-1984. M/s. Medimpex thereafter filed a writ petition before this Court which was marked as C. W. J. C. No.169 of 1985, inter alia, challenging therein that the aforementioned order dated 22-12-1984 was illegal. The said order is contained in annexure-4. This order of the Drug Controller was admittedly communicated to M/s. Medimpex on 27-12-1984. M/s. Medimpex thereafter filed a writ petition before this Court which was marked as C. W. J. C. No.169 of 1985, inter alia, challenging therein that the aforementioned order dated 22-12-1984 was illegal. By an order dated 25-2-1985 as contained in Annexure-5 to the writ petition the said writ petition was permitted to be withdrawn. 16. It may be mentioned herein that although in terms of its earlier judgment dated 2-8-1984 passed in C. W. J. C.274/83, this Court gave liberty to any of the aggrieved parties to move this Court against the order of the Drug controller but in terms of its order dated 25-2-1985 passed in the said writ application and permitted the petitioner thereof to withdraw the said petition with liberty to take recourse to any other remedy which may be available to it in law. 17. On or about 30th April, 1985 M/s. Medimpex allegedly filed a memorandum of appeal before the Minister of Health purported to be being aggrieved by and dis-satisfied with the order of the Drug Controller dated 22nd December, 1984. 18. In the said appeal M/s Medimpex prayed for a direction for cancelling the licence granted to M/s. Naya Dawakhana in respect of the drug "santopar" and prayed for a further direction to the effect that the said drug should be included in its licence M/s. Naya Dawakhana upon having been noticed by the Minister-in-charge challenged his jurisdiction to entertain the same by filing a writ petition in this Court which was marked as C. W. J. C. No 4191 of 1985 and by an order dated 17-9-1985 and as contained in Annexure-9, this Court directed the petitioner thereof to press all its objections in appeal before Hon ble minister who was thence in sesin of the matter. 19. By an order dated 15-10-1985 (Annexure-10) the Minister incharge allowed the aforementioned appeal of M/s. Medimpex by cancelling the licence of M/s. Naya Dawakhana and thereby further directed the Drug Controller to renew the licence of M/s. Medimpex in respect of the aforementioned drug "santopar". 20. 19. By an order dated 15-10-1985 (Annexure-10) the Minister incharge allowed the aforementioned appeal of M/s. Medimpex by cancelling the licence of M/s. Naya Dawakhana and thereby further directed the Drug Controller to renew the licence of M/s. Medimpex in respect of the aforementioned drug "santopar". 20. Pursuant to and in furtherance of the aforementioned directions of the Minister Incbarge, the Drug Controller passed an order dated 11-11-1985 which is contained in Annexure-12 to the aforementioned writ petition, whereby and whereunder, M/s. Naya Dawakhana was informed that its licence to manufacture santopar stands-cancelled and was further directed to stop manufacturing the said drug. 21. M/s. Naya Dawakhana has filed the aforementioned with application being C. W. J. C. No.5943 of 1985, inter alia, for issuance of an appropriate writ quashing the aforementioned order dated 15-10-1985 and the order dated 11-11-1985 passed by the respondents No.2 and 3 respectively and as contained in Annesure-10 and 12 of the said writ petition. 22. In C. W. J. C No.4788/86/m/s. Medimpex has prayed for following reliefs:- "for quashing the order dated 6-5-1986 and 7-5-1986 (Annexures-6 and 7) issued by Respondent No.1 by which the entire stock of "santo-par" Tablet produced by the petitioner has been seized ; and for a writ of mandamus directing the respondent to issue licence, as directed by the Health Minister, in favour of the petitioner and further directing Respondent No.2 to stop manufacturing and selling of "santopar Tablet. " The facts in short giving rise to the aforementioned writ application are that after passing of the aforementioned order dated 15-10-1985 passed by the minister incharge as also the aforementioned order dated 25-2-1985 passed by the Drug Controller which stated hereinbefore was issued consequent upon the order of the Minister incharge, M/s Medimpex has been continuing manufacturing the drug in question. Thereafter by an order dated 12-2-1986 passed in c. W J. C. No.5943 of 1985, this Court permitted M/s. Medimpex to continue to manufacture "santopar". However, the drugs of the petitioner were seized in terms of the seizure list as contained in Annexure-6 in C. W. J. C. No.4788 of 1986 which gave rise to the filing of the said writ application. 23. However, the drugs of the petitioner were seized in terms of the seizure list as contained in Annexure-6 in C. W. J. C. No.4788 of 1986 which gave rise to the filing of the said writ application. 23. Sri C. C. Bharuka, learned counsel appearing on behalf of the petitioner c. W J. C No.5943 of 1985 i. e. M/s Naya Dawakhana had questioned the legality, validity and propriety of the order dated 15-10-1985 passed by the minister incharge and as contained in Annexure-19 to the writ application, inter alia, on the following grounds :- (a) that the order of the Drug Controller having not been passed under the provisions of the said Act or the Rules, no appeal was maintainable against the order dated 22-12-1984 passed by the Drug controller. Reference in this connection has been made to commissioners V/s. Arunnachalam Chetiar reported in AIR 1953 Supreme court page 118. (b) In the alternative, it has been submitted in terms of Rule 84 (A) of the Rules such an appeal could have been filed on within a period of 30 days from the date of receipt of such an order, before the State government and as the same was not done within the aforementioned statutory period, the Respondent No.2 had no authority or jurisdiction to entertain the said appeal oa expiry of the aforementioned period, in view of the fact that the appellate authority had not been conferred upon with any statutory power to condone the delay in terms of Sec.5 of the Limitation Act, 1963 or otherwise. Strong reliance in this connection has been placed upon a recent decision of the supreme Court in Sakur V/s. Tanaji, reported in AIR 1985 SC 12 79 . (c) In any event M/s Medimpex having tried its luck by filing a writ petition in this court being C. W. J. C. No.4191/85 wherein it challenged the aforementioned order dated 22-12-1984 passed by the Drug Controller and the said writ petition having been withdrawn it is bound by the said judgment and, therefore, cannot be permitted to challenge the order of the Drug Controller colaterally in C, W. J. C. No.5943 of 1985. Strong reliance in this connection has been placed by the learned counsel upon the decision of this Court Kishori Singh V/s. State of Bihar, (1985 Patna 298 : 1986 blj 21 ) Rita Mishra V/s. State of Bihar (1987 PUR 1090 : 1988 BLJ 207 (FB) and Sarjug Transport V/s. State Transport Tribunal, Gwalior, ( AIR 1987 SC 88 ). 24. Mr. Basudeo Prasad, learned counsel appearing on behalf of the M/s medimpex, on the other hand submitted that by reason of the order dated 22-12-1984 passed by the Drug Controller the licence of the M/s Medimpex was cancelled so far as the same related to the drug "saotopar. " and in that the view of the matter, the appeal was maintainable in terms of Rule 93 (2) of the Rules. The learned counsel further submitted that the limitation for such an appeal being three months, the same been filed within time, Alternatively. , it has been contended that Sec.5 of the Limitation Act, 1963 shall apply even in an appeal preferred in terms of the provision of the said Rules. In this connection, the learned counsel has placed strong reliance upon a dicrim of the Supreme Court in M/s Ram Prasad Gandamal V/s. Municipal corporation Delhi, reported in 1976 SC 105. 25. The learned counsel has further submitted that in any event, the findings of the fact arrived at by the Minister incharge in his order dated 15-10-1985 and as contained in Annexure-10 to the writ application being binding upon the Drug Controller it coujd rectify its own mistake which is purported to have been done by an order dated 11-11-1985 and as contained in annexure-12 to the writ application. The learned counsel in this connection has placed strong reliance upon the decision in Central Manbhum Coal Company (P) Ltd. and another V/s. Additional Collector, Dhanbad and others, Reported in air 1983 Calcutta, 95. 26. Shree Prasad has further contended that this Court, even if it is found that the Minister incharge had no jurisdiction to pass the order dated 13/10/1985, should refuse to exercise its extra-ordinary jurisdiction to quash the order dated 15/10/1985 and 11/11/1985 passed by the Respondent Nos.2 and 3 ; as the order dated 20/12/1984 passed by the Drug Controller is mala fide and against the records and which stands bet aside by the order of the Minister incharge. In this connection reference has been made to a decision in A Mazid V/s. State Transport Authority, reported in AIR 1960 Patna, 333 : 1960 BLJR, 282, m/s Punjab Sikh Regular Motor Service, Bilaspur V/s. Union of India and others reported in AIR 1988 Madhya Pradesh 43, Gadde Venkateshwara Rao V/s. Government of Andhra Pradesh, reported in AIR 1966 Supreme Court, 828, jaggan Singh V/s. State Transport Appellate Authority, Rajasthan, reported in air 1980 Rajasthan, 1 and Mohammad Swalleh and others v.3rd Additional district Judge, Meerut and another, reported in 1988 Vol.1 SCC 40. 27. Mr. Prasad has further taken us through various documents for the purpose of showing that the M/s Medimpex in fact had applied for inclusion of the item santopar in the licence, and, as such the order of the Drug Controller according to the learned counsel suffers from a jurisdictional infirmity. 28. Mr. J. N. P. Sinha, the learned Government Advocate appearing on behalf of the State and its officers supported the order dated 15-10-1985 passed by the Minister Incharge. According to the learned Government Advocate, although the appeal against the order dated 22-12-1984 passed by the Drug controller was not maintainable in terms of the provisions of the Rules, in spite thereof the order passed by the respondent No.2 is sustainable as he tad thereby, exercised his supervisory power. The learned Government Advocate has further submitted that in terms of rule 69 (5) of the Rules, M/s Medimpex could file an application for inclusion of the additional drugs which having been allowed factually, the order dated 15-10-1985 passed by the Minister Incharge cannot be assailed by M/s Naya dawakhana. 29. From the admitted facts as mentioned herein before, it is absolutely clear that this court while remitting the matter back to the Drug Controller did so as it was itself not in a position to enquire into the serious and disputed questions of fact. The said order was necessiated by reasons of fact, that the question as to whether M/s Medimpex Ltd. had been manufacturing santopar without any proper and valid licence or not could properly be lenquired into and adjudicated by the Drug Controller. The Drug Controller, therefore, while considering such a matter, pursuant to the direction of this Court, was evidently not exercising his statutory power. 30. Ms. The Drug Controller, therefore, while considering such a matter, pursuant to the direction of this Court, was evidently not exercising his statutory power. 30. Ms. Basudeo Prasad, the learned counsel appearing on behalf of the m/s Medimpex, however, submitted that the order of the Drug Controller dated 22nd December, 1984 is in effect and substance an order of cancellation of the licence of M/s Medimpex in so far as same related to the drug "santopar" and in that view of the matter the order dated 22nd December, 1984 passed by the drug Controller would be deemed to be an order made in terms of Rule 93 of the said Rules. Rule 93 of the said Rules reads as follows :- "cancellation of licenses.- (1) The licensing authority may after giving the licensee an opportunity to show cause why such an order should not be passed, by an order in writing stating the reasons therefore, cancel a licence issued under this part, either wholly or in respect of some of the substances to which it relates, it, in his opinion, the licensee has failed to comply with any of the conditions of the licence or with any of the conditions of the licence or with any provision of the Act or Rules thereunder. (2) A licence whose licence has been suspended or cancelled may appeal to the State Government within three months of the date of the order. " 31 Mr. Bharuka, the learned counsel for the petitioner, on the other hand, as noticed hereinbefore, submitted that no appeal was maintainable against the order dated 22nd December, 1984 either in terms of Rule 84-A of the said Rules or in terms of Rule 93 thereof. Rule 84-A of the said Rules reads as follows :- Provision for appeal to the State Government by party whose licence has not been granted or renewed. Rule 84-A of the said Rules reads as follows :- Provision for appeal to the State Government by party whose licence has not been granted or renewed. Any person who is aggrieved by the order passed by the licensing authority refusing to grant or renew a licence in (Forms 25, 25-A, 25-B, 25-F, 26, 26-A, 26-B, 26-F, 28, 28-A and 28-B) may within thirty days from the date of receipt of such order, appeal to the State Government and the State Government may after such enquiry into the matter as it considers necessary and after giving the said person an opportunity for representing his views in the matter, make such order in relation there to as it thinks tit. 32 The learned Government Advocate, however, submitted that the minister Incharge while passing the order dated 15-10-1985 (Annexure-10) was really exercising his supervisory jurisdiction. 33. The question posed is a vexed one. In terms of Sec.18 of the Act no person shall himself or by any other person on his behalf manufacture for sale or for distribution, or sell, or stock or exhibit or offer for sale or distribute any drug except under, and in accordance with the conditions of a licence issued for such purpose under Chapter IV there of. Plainly enough, the right of a person to manufacture any particular drug arises only upon grant of a licence in terms of the provisions of the Act and rules framed thereunder. 34. Part VII of the Rules deal with the matters relating to grant or renewal of a licence relating to manufacture or sale or drugs other than homeopathic Medicines. In terms of the provisions of the said Rules, a separate licence is required to be obtained in respect of each seperate premises if drugs are manufactured at more than one places. Procedure for application for grant it licence for manufacturing drugs and renewal thereof is contained in rule 69 of the said Rules. In terms of the provisions of the said Rules, a separate licence is required to be obtained in respect of each seperate premises if drugs are manufactured at more than one places. Procedure for application for grant it licence for manufacturing drugs and renewal thereof is contained in rule 69 of the said Rules. In terms of the said provisions, a licence for manufacture for sale of any drugs is to remain valid for a period of two years, and an application for renewal of a licence has to be filed on or before the expiry of the period of licence but such application for renewal may be entertained by the licensing authority after the expiry of the said period but within six months of such expiry on payment of additional fees as provided for under sub-rule 3 of rule 69 of the said Rules. In terms of sub-rule 5 of Rule 69 of the said Rules, the licensee may file application for including additional items of drugs along with the renewal applications and in respect of such drugs categories whereof are not included in the licence is to be accompanied by a fee of Rs.50/- for each additional category of drugs specified in schedule M. 35. It has been admitted by M/s Medimpex that initially "santopar" was not included in the licence for manufacturing or for sale of drugs in terms of the provisions of the Act and the Rules. The Drug "santopar" was evidently a separate drug, composition whereof did not come within the purview of "santonin and Calomel" production which used to be manufactured by M/s medimpex. 36. When the list of drugs sent by M/s Medimpex was returned back by the drug Controller by its letter dated 26-2-1976 (Annexure-K) the same was done as the packing conditions have not been mentioned therein. It is, thus, absolutely futile on the part of M/s Medimpex to contend that while acting pursuant to and in furtherance of the said letter of the controller it could include six additional items of drugs including "santopar". There is no dispute that no separate application, whatsoever, was filed by M/s Medimpex Ltd. for inclusion of the drug "santopar, in its licence. There is no dispute that no separate application, whatsoever, was filed by M/s Medimpex Ltd. for inclusion of the drug "santopar, in its licence. As noticed hereinbefore, after the application for renewal of licence of M/s Medimpex was received, the same, as it appears to be in terms of established procedure was considered by a committee on 25-11-1975 and only on or about 26-2-1976 i. e. after the comittee applied its mind to the said application for renewal, the list annexed with the application for renewal was returned to M/s Medimpex by the said letter as contained in Annexure-K to the counter-affidavit filed by M/s Medimpex. 37. Upon perusal of the records of the case, as also the records maintained in the office of the Drug Controller produced by the learned Advocate before us, we do not find any application having been filed by M/s Medimpex in this regard for manufacturing the Drug "santopar" along with its renewal for the year 1975-76. In terms of the provisions of the Rules, M/s Medimpex Ltd. was entitled to invoke the provisions of Rule 69 (5) thereof within 30th December, 1975 and as admittedly the purported list including the drug "santopar" was sent in reply of the letter of the Drug Controller dated 27-2-1976 and as such without filing any seperate application in terms of the said Rules, the Drug "santopar" could not have been included in the licence of M/s Medimpex. In such a situation in cannot be said that the Drug Controller, while purporting to pass order dated 22nd December, 1984 pursuant to the judgment of this Court dated 2-8-1984 passed in C. W. J. C, No.2747/84 and as contained in Annexure-2 to C. W. J. C. No.5943/85 cancelled or refused to renew the licence filed on behalf of M/s medimpex as so far as the same related to drug "santopar". 38. There cannot be any doubt that the question as to whether the licence is refused to be renewed or cancelled would depend upon the existence of a valid licence. The Drag Controller in his order dated 22nd December, 1984 clearly held that no such licence was granted in favour of M/s Medimpex so far as the Drug "saatopar" is concerned. There cannot be any doubt that the question as to whether the licence is refused to be renewed or cancelled would depend upon the existence of a valid licence. The Drag Controller in his order dated 22nd December, 1984 clearly held that no such licence was granted in favour of M/s Medimpex so far as the Drug "saatopar" is concerned. From the discussions made hereinbefore it is, therefore, clear that no valid licence was in fact or could be granted to M/s Medimpex in respect of the drug "santopar" and as such there cannot be any doubt that by reason of the order dated 22nd December, 1984 the Drug Controller had neither cancelled the licence nor refused to renew the same. In this view of the matter in my opinion the appeal preferred by M/s Medimpex was not maintainable in terms of the provisions of the Act and the Rules. 39. I am also not in a position to acceed to the contention advance by the learned Government Advocate that the Respondent No.2, while passing the order dated 15-10-1985 as contained in Aunexure-10 to C. W. J. C. No.5943/85, exercised his purported power of Superintendence. The power of learning authority to grant or to renew a licence is a statutory power. The Drug controller in terms of such statutory power may exercise its jurisdiction only to cancel a licence already granted or refusal to renew the same, in absense of any power delegated to any other authority by the statute, the power of such statutory authority cannot be exercised by any person whatsoever nor such authority can abdicate its power in favour of any other person. 40. The power to hear an appeal by the statute is also a power conferred upon to it in terms of the provisions of the Rules. In appellate power, therefore, can be exercised only when an appeal becomes entertainable by reason of any of the provisions contained therein. Such an appeal could be filed and entertained, if any order has been passed by the Drug Controller either cancelling the licence or by refusing to renew the licence held by M/s. Medimpex. In appellate power, therefore, can be exercised only when an appeal becomes entertainable by reason of any of the provisions contained therein. Such an appeal could be filed and entertained, if any order has been passed by the Drug Controller either cancelling the licence or by refusing to renew the licence held by M/s. Medimpex. Such being not the position, the Minister in absence of any other statutory authority power conferred upon him in terms of the provisions and the Rules, could not have set aside the order passed by the Drug Controller for less under his purported power of Superintendence. Neither such a power of Superintendence exists in law nor was any pointed out before us by the learned Government Advocate. In the premises aforementioned it has to be held that the appeal was not maintainable. 41. It is now well settled that the right to file an appeal is a statutoriy right. Evidently, therefore, an appeal can be filed provided the conditions precedents therefore exists. As in the instant case, this Court remitted the matter back to the Drug Controller for giving a finding on an issue of fact, such an exercise of power by the Drug Controller cannot be said to have been made in terms of any statutory provision. It is, therefore, clear that the order dated 22-12-1984 passed by the Drug Controller was not an appealable order. Reference in this connection be made io Commissioner of Income-Tax Madras v Arunachalan Chettiar (Reported in AIR 1953, SC 118) wherein the Supreme court has stated that relevant fact in the following terms :- -"the learned Attorney General submits that this Court should not take such a narrow and technical view but should treat that miscellaneous application as really an appeal under Sec.33. Turning now to Sec.33, we find that any assessec objecting to an order passed by an Appellate Assistant commissioner under Sec.28 or Sec.31 may appeal to the Appellate tribunal within the time specified in sub-section (1) which time, however, may be extended by the Tribunal under sub section (2-A ). Turning now to Sec.33, we find that any assessec objecting to an order passed by an Appellate Assistant commissioner under Sec.28 or Sec.31 may appeal to the Appellate tribunal within the time specified in sub-section (1) which time, however, may be extended by the Tribunal under sub section (2-A ). Under sub-section (4)the Appellate Tribunal is given power after giving both parties to the appeal an opportunity to be heard, to pass such order thereon as it thinks fit It is thus clear that the Appellate Tribunal can made an order under Sec.33 (4) only on an appeal from an order passed by the Appellate Assistant Commissioner under Sec.28 or Sec.31. If, therefore, there is no order which may proper be said to have been made by the Appellate Assistant Commissioner under Sec.28 Sec.31 then there can be no appeal under Sec.33 (1)and consequently there can be no order under Sec.33 (4) Sec.28 is not relevant for our present purpose. Sec.30 provides for falling of appeal? against assessments made under the Act. Sub-section (1) of that section prescribes the different decisions against which an appeal will be. bub-section (2)prescribes the time within which the appeal is to be filed. Sub-section (3)prescribes the form in which the appeal is to be made. Then comes Sec.31 which gives power to the Appellate Assistant Commissioner to hear and dispose of such appeal. Sub-section (3) of Sec.31 empowers the Appellate Assistant commissioner in disposing of an appeal under Sec.30 to make or other order under one or other of the several clauses of that sub-section. It is, therefore clear that in order that the Appellate Assistant Commissioner may exercise his jurisdiction and make an order under Sec.31, there must be an appeal as contemplated by Sec.30. The learned Attorney General only relies on the opening part of sub-section (1) of Sec.30 and contends that the appeal before the Appellate Assistant Commissioner was with respect to the amount of income assessed under Sec.23 or 27. It will be recalled that the Appellate tribunal held that the two sums claimed by the assessee would be allowed to him and concluded the saying that the appeal was party allowed. It will be recalled that the Appellate tribunal held that the two sums claimed by the assessee would be allowed to him and concluded the saying that the appeal was party allowed. The power of the Appellate Tribunal order Sec.33 (4) is indeed wide, for on an appeal properly before it,it can make such order as it thinks fit- Therefore, the order made by the Appellate Tribunal in this case on 20-8-1943 must be read and construed as a direction to the Income-tax officer to carry out the directions by allowing the two deductions in question. When the matter again came before the lncome-tax officer, his function was only to carry out the order of the Appellate tribunal He could not otherwise reopen the assessment already made by him under Sec.23. Therefore, in carrying out the directions of the Tribunal and in doing what did on 26-9-1945, the income-tax officer cannot be regarded as having acted under Sec.23 or Sec.27 of the Act and mat being the position no appeal law from that order of the Income-Tax Officer under Sec.30 (1)of the Act The result of it was tbat there was no proper appeal before the appellate Assistant Commissioner such as in contemplated by Sec.30 (1)and therefore the order made by the Appellate Assistant Commissioner cannot be regarded as an order made by him under Sec.31 (3) for an order under sction (3) car, only be made in disposing of an appeal properly filed under sect on 30 and consequently, no further appeal lay to the Appellate Tribunal station 33 (1) so as to enable the Appellate Tribunal to make an order under sub-section (4) of that section. In the premises, there being no order which may properly be said to have been made under Sec.33 (4) no question of law can be said to arise out of an order made under Sec.33 (4) and consequently there can be no valid reference under Section (1) or sub-section (2 ). If, therefore, the reference was incompetant for want of jurisdiction both under Section 66 (1) or Sec.66 (2) surely the High Court could decline to entertain it as it did. (Sidelining is miner ). If, therefore, the reference was incompetant for want of jurisdiction both under Section 66 (1) or Sec.66 (2) surely the High Court could decline to entertain it as it did. (Sidelining is miner ). 42 However, even if the case of M/s. Medimpex is to be acccepted that the Drug "santopar" was included in the licence granted to it on 19-6-1976, the same was refused to be renewed in the year 1982 when it allegedly filed an application for renewal of the licence for the year 1983-84 by the order dated 12-7-1982. It is not the case of M/s. Medimpex that any proceeding for cancellation of licence was drawn up against it by the Drug Controller in terms of the rules. It is also the contention of M/s. Medimpex that the aforementioned order was passed by the Drug Controller upon a finding that M/s. Medimpex has failed to comply with any of the conditions of the licence or any provisions of the Act or Rules made thereunder. The question therefore that the Drug controller exercised its power cancellation of the licence in terms of Rule 93 of the said Rules, does not and cannot arise. 43. As noticed hereinbefore at best such an order can be said to be an order refusing to renew the licence. Further the Drug Controller had granted a licence to manufacture santopar in favour of M/s. Naya Dawakhana. The said order granting a licence to M/s. Naya Dawakhana was not an appellable order in terms of the provisions of the said Rules, However, even assuming that as m/s. Medimpex filed the aforementioned C. W. J. C. No.2747/83 construing it as an order of remand of the whole matter and even if it is assumed that the drug Controller, while passing the order dated 22nd December, 1984 as contained in annexture-4 to the writ application pursuant to the aforementioned judgment of this court, was in effect and substance passed an order refusing to renew the licence held by M/s. Medimpex, an appeal could have been filed by it only within the period prescribed in terms of Rule 84 (A) the said Rule. 44. 44. It is admitted and as noticed hereinbefore the aforementioned order dated 22-12-1984 was communicated to M/s. Medimpex on 27-12-1984 and which order was challenged by it in C. W. J. C. No.169/85 resulting in passing of the order dated 25-2-1985 (Annexure-5 by this Court. Such an appeal could, therefore, be filed only within the period prescribed in terms of Rule 84- (A) of the said Rule. Admittedly, the memo of appeal as contained in annexure-8 to the writ application was filed on 30-4-1985. In this view of the matter, there cannot be any doubt that the appeal preferred by M/s. Medimpex before the Minister Incharge was hopelessly barred under the law of limitation as provided for under Rule 84- (A) of the rule. 45. Even assuming that the order dated 22-12-1984 comes within the purview of the Rule 93 of the said rules still then the appeal was bound to be filed within the period of 90 days from the date of passing of the order. Taking either view of the matter, the appeal preferred by M/s. Medimpex was hopelessly barred by limitation. Neither Mr. Basudeo Prasad nor the learned government Advocate has been able to point out before us any provisions, concerning power upon the appellate authority to condone any delay in preferring such an appeal. There cannot be any doubt that the Minister Incharge was a statutory functionary and not a court within the meaning of the provisions of the Limitation Act, 1963 and as such Sec.5 thereof could not be invoked. 46. In Sakuru V/s. Tanaji reported in AIR 1985 SC 12 ,9, the Supreme court has cleary held that in absence of any power to condone the dely vested in any statutory authority, the provisions of Sec.5 of the Limitation Act has no application whatsoever. The Supreme Court has further clearly held in sakurus case (Supra) that Sec.5 of the Limitation Act applies only to proceedings in Courts and not to appeals or applications before bodies other than courts such as quasi-judicial tribunals or executive authorities notwithstanding the fact that such bodies of authorities may be vested with certain specified powers conferred on courts under the Codes of Civil or Criminal Procedure. 47. Mr. 47. Mr. Basudeo Prasad, the learned counsel, appearing on behalf of the M/s. Medimpex has, however, submitted that in terms of Section 29 (2) of the Limitation Act 1963 the appellate authority would have power to condone the delay in terms of Sec.5 thereof. In view of the aforementioned authoritive pronouncement of the Supreme Court in Sakurus case, this submission of Mr. Basudeo Prasad is merely stated to be rejected. As held hereinbefore the Minister Incharge while purporting to exercise its appellate jurisdiction under the provisions of the said rules, acts merely as a quasi-judicial authority and not as court and as a such the question cf invoking the provisions of Sec.5 of the Limitation Act does not and cannot arise. Further Section 5 of the Limitation Act itself is applicable in relation to a proceedings before a court and not before any quasi-judicial tribunals or any other statutory authorities. From the perusal of sub-section 2 of Sec.29 of the Limitation Act, 1963, it is evident that a provisions of Sec.4 to 24 of the Limitation Act, apply where the special or local law which may prescribe a period of limitation for a suit, appeal or application insofar as and to the extent to which the said provisions are nor expressly excluded by special or local law but it is obvious that such proceedings must be pending before a Court are not before any statutory authority or quasi-judicial tribunals. The general scheme of the new limitation Act, clearly shows that the same deals with suits, appeals and applications filed in Courts only. It, therefore, cannot apply to proceedings before such authorities which are not courts. 48 Mr. Basudeo Prasad, as noticed hereinbefore, has placed reliance upon the decision of Mangu Ram V/s. Municipal Corporation of Delhi (Reported in air 1976 SC 105 ). The decision of the Supreme Court in Mangu Rams case (Supra) has no application the facts and the circumstances of the present case. In Mangu Rams case, the Supreme Court was considering a matter as to the effect of the period of limitation provided for under Sec.417 of the Code of Criminal Procedure. The decision of the Supreme Court in Mangu Rams case (Supra) has no application the facts and the circumstances of the present case. In Mangu Rams case, the Supreme Court was considering a matter as to the effect of the period of limitation provided for under Sec.417 of the Code of Criminal Procedure. In that case the Supreme Court was considering the effect of its earlier judgment in Kaushalya Rani V/s. Gopal Singh (Reported AIR 1964 SC 260 ) as in that decision it was held that Sec.5 of the said Old limitation Act was not applicable in an appeal against acquittal in terms of section 417 of the Code of Criminal Procedure.1and98. In Mangu Rams case the Supreme Court while taking into consideration the change in the law made by Sec.29 (2) (b) of the new Act held that in view of the Change in the provisions an important departure has been made and in that view of the matter section 5 of the Limitation Act, 1963 becomes applicable to the extent of which the same is not expressly excluded by special or any local Jaw. Plainly enough in Mangu Rams case, the Supreme Court was considering the case in respect ot a proceeding before a criminal court which was evidently a court within the meaning of the provisions of the Limitation Act 1963. Such is not the position here as admittedly the Minister incharge does not come within the purview of a court as has been held in Sakarus case by the supreme Court. 49. There cannot, therefore, by any escape from the conclusion that the appeal preferred by M/s. Madimpex was not maintainable and in any event was barred by limitation. 50. By a logical corroilary, therefore, the impugned order dated 15-10-1985 passed by the Minister incharge and as contained in Annexure-10 to C. W. J C. No.6943/85 must be held to have been passed without jurisdiction. It, therefore, logically follows that any order passed pursuant to the order dated 15-10-1985 is also illegal. 51. Mr. Basudeo Prasad has, however, submitted that M/s. Naya Dawakhana is estopped and precluded from challenging the jurisdiction of the Minister incharge as it submitted itself to its jurisdiction without any demur whatsoever. This contention of Mr. Prasad has absolutely no force. It, therefore, logically follows that any order passed pursuant to the order dated 15-10-1985 is also illegal. 51. Mr. Basudeo Prasad has, however, submitted that M/s. Naya Dawakhana is estopped and precluded from challenging the jurisdiction of the Minister incharge as it submitted itself to its jurisdiction without any demur whatsoever. This contention of Mr. Prasad has absolutely no force. As has been noticed hereinbefore, after the appeal was filed by M/s. Medimpex before the minister Incharge after the dismissal of the writ application filed by it being c. W. J. C.169 of 1985 by nn order dated 25-2-1985 (Annexure-5) M/s. Naya dawakhana filed a writ petition in this Court being C. W. J. C. No, 4191/85 challenging therein the jurisdiction of the Minister Incharge to entertain the said appeal. By an order dated 17-9-1985 the aforesaid C. W. J. C. No.4191/85 was disposed of by a Division Bench of this Court with an observation that the petitioner may press all these objections in appeal and may come to this Court by filing another writ application if the final orders as passed against it. The writ petition was, therefore, withdrawn in view of the aforementioned observations. It could, therefore, be incorrect to say that M/s, Naya Dawakhana submitted itself to the jurisdiction of the Minister Incharge without any demur whatsoever. 52. Further, as seen hereinbefore the Minister Incharge lacked inherent jurisdiction in entertaining the appeal. A party to a Us cannot be said to have waived its right to challenge the Jurisdiction which the authority inherently lacks. In Pandurang V/s. State of Maharashtra reported in AIR 1987 SC 535 it has categorically been held by the Supreme Court that even a right decision by a wrong forum is no decision in the eye of law. In the premises aforementioned it must be held that M/s. Naya Dawakhana has not waived its right to-challenge the jurisdiction of the Minister Incharge only because it appeared before the said authority pursuant to the order of this Com t as contained in annexure-9 to the writ petition. 53. At this juncture, the main submission made by Mr. Basudeo Prasad may be noticed. 53. At this juncture, the main submission made by Mr. Basudeo Prasad may be noticed. The learned counsel submitted that even assuming that the order dated 15-10-1985 passed by the Minister Incharge and as contained in annexure-10 to the writ petition is without jurisdiction, this Court should not interfere with the said order as the order dated 22-12-1984 passed by the Drug controller is also illegal and without jurisdiction. The learned counsel, as contained hereinbefore, has placed heavy reliance upon the Judgment of this court in A, Mazid V/s. State Transport Authority (Reported in AIR 1960 Patna, 333), Gadde Venkateswara Rao v, Government of Andhra Pradesh (Reported in air 1966 SC 828 ), Jagan Singh V/s. State Transport Appellate Tribunal (Reported in AIR 1980 Rajasthan, 1) Mohammad Swollen v.3rd Addl. District Judge meerut (Reported in 1988 (1) SCC 40 ). 54. The ratio of the aforementioned decisions is neither in doubt nor in dispute. In the aforementioned decisions, it has been held by this court as well as by the Supreme Court that the issuance of writ of certiorai is a discretionary remedy. Such a writ may not be issued if substantial justice has been done to the parties or if in the event upon quashing of one illegal order it is found that the same would give rise to another illegality, the High court in its discretion may quash both the orders. 55. However, in this case, the situation is entirely different. By reason of the judgment dated 2-84984 passed in C. W. J. C. No.2747/83 and as contained in Annexure-2 to the writ application this Court while remitting the case back to the Drug Controller observed as follows :- "it will, however, be open to the petitioner to approach this Court again in case the findings of the enquiry goes against him on untenable grounds. " 56 After the order dated 22-12-1984 was passed by the Drug Controller and as contained in Annexure-4 to the writ applicaton, M/s. Medimpex admittedly moved this Court but the same Bench passed the following order :- "after some argument, the learned counsel for the petitioner after taking instruction in this regard from the Managing Director of the petitioner, prays for permission to withdraw this application so as to follow any other remedy which may be open to the petitioner in law. The application is allowed to be withdrawn. The application is allowed to be withdrawn. The learned counsel for the petitioner also states that in the facts and circumstances of the case, the Drugs Controller should not prosecute the directors of the petitioner company and it is further stated that the petitioner would not hereafter manufacture the drug "santopar before it obtains and holds a valid licence in this regard. In view of this under taking, the Drugs Controller may not prosecute the directors of the petitioner-company. The learned Advocate general may advise the Drugs Controller in this regard. " 57. It is thus evident that this Court on an earlier occasion while disposing of C. W. J. C. No.169/85 did not apparently find the order of the Controller untenable or without jurisdiction. Further, M/s. Medimpex in its counter-affidavit, except making vague assertion that the order of the Drug controller is illegal and without jurisdiction, did not make out specific grounds on the basis where of it can be contended that the order of the Drug Controller was vitiated in law. Mr. Basudeo Prasad merely submitted that the order passed by the Drug Controller must be held to be had in law as the said order was reversed by the appellate authority, namely, the Minister Incharge. According to Mr. Prasad, as the Minister Incharge had held that the facts found by the Drug Controller were not correct, it necessary follows that the order could not be sustained. The submission of the learned counsel is fallacious. As has been held hereinbefore. The order dated 15-10-1985 passed by the minister Incharge as contained in Annexure-19 to the writ application was rendered without jurisdiction and it necessarily follows that that the purported findings of the Minister Incharge cannot be looked into by this Court so as to adjudge the correctness or otherwise thereof with reference to the order dated 22-12-1984 passed by the Drug Controller (Annexure-4 ). Further, nothing has been pointed out even before us by Shree Prasad that the findings of the drug Controller was perverse or unsustainable or as to how and in what circumstances, the licence could be granted to M/s. Medimpex to manufacture 23 items of drugs when the applications for the renewal thereof was made only in respect of 16 items of drugs. 58. 58. As noticed hereinbefore M/s. Medimpex had never contended that along with its renewal application for the year 1975-76, any application was filed by it for inclusion of additional drugs in terms of Sec.69 (5) of the said Rules. As this Court has found that M/s. Medimpex could not have been granted a valid licence for manufacture of the Drug "santopar" in terms of rule 69 (5) of the said Rules, it is not necessary for us to decide as to whether it committed any forgery in obtaining and in filing the exroxed copy of the licence or not, more so in view of the fact that the said question (as has been stated at the bar) is pending decision in a criminal trial and also in view of the fact that the same being a seriously disputed question of fact, it would not be proper or pruduent for this Court to enter into the thicket of such a disputed question of fact. However, as noticed hereinbefore, M/s. Medimpex having failed to point out any error apparent on the face of the records of the Drug controller and further in view of the fact that on the earlier occasion, this court did not interfere with the said order in C. W. J. C. No.169 of 1985 by, there is absolutely no reason as to why this Court again should reopen the said matter. 59. At this juncture, one argument of Mr. Bharuka may be noticed. The learned counsel has contended that M/s. Medimpex having unconditionally withdrawn its earlier writ application being C. W. J. C. No.169/85, could not file a fresh writ application challenging the order dated 22-12-1984 passed by the Drug Controller and as such, the learned counsel, contends that as M/s. Medimpex could not challenge the said order of the Drug Controller afresh, it cannot be permitted to do so indirectly which could not be done directly, by challenging the said order colletarelly as a respondent. The learned counsel in this connection has placed strong reliance by a Division Bench of this Court in kishori Singh V/s. State of Bihar (Reported in AIR 1985 Patna, 298) : 1986 BLJ 21 , which has been followed by a Full Bench of this Court in Rita Mishra V/s. Director Primary Education, Bihar (Reported in 1987 PLJR 1090 ) : 1988 BLJ 207 (FB), as also in a recent decision of the Supreme Court in sarjug Transport Service V/s. State Transport Appellate Tribunal Gwalior (Reported in 1987 SC 88 ). 60. Mr. Basudeo Prasad, on the other hand, submitted that the aforementioned decisions have no application in the facts and the circumstances of this case as M/s. Medimpex did not withdraw its earlier writ application unconditionally but withdrew the said application for availing any other remedy which was open to it in law. 61. Mr. Prasad, therefore, contends that as M/s. Medimpex, thereafter, preferred an appeal before the Minister Incharge in terms of the provisions of the Act and the Rules, there has been a change in the cause of action and in that view of the matter, it can now challenge the order passed by the Drug controller, in order to support the order dated 15-10-1985, as contained in annexure-10 to the writ application, passed by the Minister Incharge. In kishori Singhs case (Supra) as Division Bench of this Court held as follows :- "to conclude, the answer to the question posed at the very outset is rendered in the affirmative and it is held that the unconditional withdrawal of a writ petition would operate as a bar to the filing of a second petition on the same facts and in respect of the same cause of action. " this decision has been followed in Rita Mishras case. In Sarguja Transport Services case (Supra) the Supreme Court held as follows :- "the question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. I. of xxiii of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution also. In Sarguja Transport Services case (Supra) the Supreme Court held as follows :- "the question for our consideration is whether it would or would not advance the cause of justice if the principle underlying R. I. of xxiii of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permissing to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao V/s. State U. P. , (1962) SCR 574 ; ( AIR 1961 SC 1457 ) in a case involing the question of aforcement of fundamental rights file a petition before the Supreme Court under article 32 of the Constitution because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryaos case (Supra) is to be found at page 593 and it is as follows : "if the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no there. " 9. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no there. " 9. The point for consideration is whether a petition after withdrawing a writ petition filed by him in the High Court under Article 226 of the constitution of India without the permission to institute a fresh petition can file a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryaos case (supra) is of no assistence. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interest of administration of justice to cases of withdrawal of writ petition also, not on the ground or res judicata but on the ground public policy as explained above. It would also discourage the litigant from indulging in bench hunting tactics. In any event there is no justifiable reason in such a case to permit a petition to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdrawn it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in he nature of habeas corpus or seeks to enforce the fundamental right granteed under Article 20 of the Constitution since such a case stands on a different footing altogether. We, however, leave this question open. 62. Mr Basudeo Prasad, on the other hand, apart from the submissions noted hereinbefore submitted that the decision of this Court as also the decision of the Supreme Court in Sarguja Transport Services case are not binding precedents. 63. We, however, leave this question open. 62. Mr Basudeo Prasad, on the other hand, apart from the submissions noted hereinbefore submitted that the decision of this Court as also the decision of the Supreme Court in Sarguja Transport Services case are not binding precedents. 63. True it is that the law laid down by the Supreme Court in Sarguja transport Services case as also by this Court in Kishori Singhs case Rita mishras case is not free from doubt. The Sarguja Transport Services case has no application in this case as therein it has been held that a fresh writ application may be barred on the ground of public policy whence the earlier writ petition had been withdrawn unconditionally. The Supreme Court further clearly held that withdrawal of a writ petition filed in the High Court without permission to tile fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution since such withdrawal does not amount to res judicata. In terms or Order XXIII Rule 1 of the Code of Civil Procedure what is barred in a remedy to initiate a fresh proceeding on the same cause of action itself. It may, therefore, seem to be inconsistent as submitted by the learned counsel that on the one hand a party may withdraw a writ application filed under Article 226 of the Constitution of India and be free to tile a suit or a petition under Article 32 of the Constitution on the same cause of action but would be debarred from filing another writ petition under Article 226 of the Constitution of India in the High Court itself on the ground of public policy by invoking the general principles contained in Order XXIII Rule 1 of the Code of Civil Procedure. 64. The Supreme Court has held in B. Prabhakar Rao V/s. State of Andhra pradesh, (Reported in A. I. R.1986 S. C , 210) that if a writ petition under article 32 of the Constitution is dismissed in limine/a second writ petition is not barred. It is, therefore, difficult to reconcile the position that if a writ. 64. The Supreme Court has held in B. Prabhakar Rao V/s. State of Andhra pradesh, (Reported in A. I. R.1986 S. C , 210) that if a writ petition under article 32 of the Constitution is dismissed in limine/a second writ petition is not barred. It is, therefore, difficult to reconcile the position that if a writ. petition is dismissed by an express order, and if then a second writ petition is not barred ; then how a bar can be created on the ground of public policy if a writ petition was withdrawn when it was about to be dismissed. Further, in view of the decision of the Supreme Court itself when a writ petition is withdrawn the same does not operate as res judicata and if that be so, then for the purpose of barring the jurisdiction of court, an express statutory provision is required to be made. At best the Court can impose a restriction upon itself to entertain a second writ petition but on the ground that such an application is barred under statute but such a bar would be on the ground of prudence. But such a restriction being merely be an act of prudence, on the part of the High Court itself, which necessarily means that high Court may entertain a second writ petition also, if such an occasion arises. Such a second writ petition has been entertained on various occasions. A reference in this connection may be made in Chief Justice Andhra Pradesh v. L. V. A. Dikhiiulu, (Reported in 1979 S. C. , page 193-1978 Lab. I. C.1972 ). In this connection reference may also be made in Hoshnak Singh V/s. Union of india, (Reported in AIR 1979 S C.1328), P. O. Sharma V/s. State Bank of India, (Reported in AIR 1968 S C.985) and relying upon those decisions a Division bench of this Court in Jai Shankar Prasad V/s. State of Bihar, (Reported in 1985 lab I. C.1375) held as follows;- "the last submission urged on behalf of the pertitioner was that the respondents writ application challenging the petitioners transfer having been dismissed by this Court in C. WJ. C.461 1983 (R) it was not open to him to challenge the petitioners transfer in this applicawas tion. I regret, there is no substance in this submission as well. The earlier writ application was not dismissed. It was permitted to be withdrawn. C.461 1983 (R) it was not open to him to challenge the petitioners transfer in this applicawas tion. I regret, there is no substance in this submission as well. The earlier writ application was not dismissed. It was permitted to be withdrawn. It is well established that withdrawal of a writ application does not attract the principles of Res judicata (See AIR 1979 SCI 328; Hoshnak Singh V/s. Union of India, AIR 1968 SC 985 ; (1968 Lab IC 1223) P. D, Sharma V/s. State Bank of India, and air 1968 SC 1196 ; Virudhunagar Steel Rolling Mills Ltd. V/s. Government of Madras. A writ application may be withdrawn for various reasons. It may well be that the earlier writ application was withdrawn in order to enable the petitioner (respondent-4), in this application) to move the Engineer-in-Chief or the State government. Further, the withdrawal or dismissal of the writ application did not debar the State Government to pass appropriate order in a purely administrative matter like transfer of an officer. The government may have appreciated the impropriety of issuing annexure-6 and therefore, have passed orders sending back the petitioner. I am, therefore, unable to quash Annexure-9 on the grounds urged by the petitioner. " 65. Further, the Supreme Court ia Panjab Serverays Prt. Ltd. V/s. Suresh chandra, (Reported in 1978 Vol. II Labour Law Journal, page 1; 1978 Lab. I. C.693) held that a withdrawal of a petition means that the same was not filed at all. In a given case filing of a writ petition may become necessiated for invoking part III of the Constitution or in a case the order of a tribunal which lacked inherent jurisdiction may be questioned; in such a case even the principle of res-judicata may not debar writ court from entertaining any application for second time as the principle of res judicata has no application where the order impugned is an nullity. 66. However, for the purpose of this case, it is not at all necessary to go into aforementioned question from the order dated 25-2-1985 passed in C. W. JC. No.169/85 and as quoted hereinbefore, it is absolutely clear that that the withdrawal of the earlier writ application by M/s Medimpex was not an unconditional one but a conditional one. 66. However, for the purpose of this case, it is not at all necessary to go into aforementioned question from the order dated 25-2-1985 passed in C. W. JC. No.169/85 and as quoted hereinbefore, it is absolutely clear that that the withdrawal of the earlier writ application by M/s Medimpex was not an unconditional one but a conditional one. After the said order dated 25-2-1985 it did take recourse to the alternative remedy although in view of my findings above, the said alternative remedy was not available to it in law. In this view of the matter, in my opinion, it must be held that the contention of Mr. Prasad to the effect that we should not interfere with the order of the Minister Incharge dated 15-10-1985 as contained in Annexure-19 to the writ petition and that the order dated 22-12-1984 passed by the Drug Controller (Annexure-4) cannot be rejected in limine as the same was available to him provided the appeal preferred by him would have been maintainable. This submission of Mr. Bharuka, therefore, has no force. However, in view of the fact that it has clearly been held hereinbefore that the said appeal was not. maintainable ia law further in view of the earlier decision of this Court as contained in its order dated 25-2-1985 in c. W. J. C. No.169/85 we refrain ourselves from entering into the said question, inter alia, on the ground that on the earlier occasion this Court refused to do so although liberty in respect thereof by judgment dated 2-8-1984 was specifically granted to the parties by this Court while disposing of C. W J. C. No.274/83 as contained in Annexure 2 to the writ application. 67. In the result C. W. J. C. No.5943 of 1985 must be allowed and the order dated 15-10-1985 as contained in Annexure-10 and order dated 8-11-1985 as contained in Annexure-12 to the writ application is liable to be quashed. 68. So far as C. W. J. C. No.4788/86 is concerned, it appears that after the order dated 15-10-1984 was passed, M/s Medimpex continued to manufacture santopar. In the mean-while, M/s Naya Dawakhana filed the aforementioned writ application which was marked as C. W. J. C. No.5943 of 1985 and obtained an exports order of stay. 68. So far as C. W. J. C. No.4788/86 is concerned, it appears that after the order dated 15-10-1984 was passed, M/s Medimpex continued to manufacture santopar. In the mean-while, M/s Naya Dawakhana filed the aforementioned writ application which was marked as C. W. J. C. No.5943 of 1985 and obtained an exports order of stay. M/s Medimpex filed an application for vacating the said order of stay and this Court by an order dated 12-2-1986 as contained in Annexure-1 to C. W. J. C. No.4788/86 passed the following order;- "the Respondent No, 4 has made an application for vacating the order of stay passed by us on 10-2-1985. Heard learned counsel for the Respondent No.4 and the learned counsel for the petitioner. In place of the order of stay passed on 10-2-1986, we now pass the following order ; the petitioner shall be allowed to manufacture Santoper during the pendency of this writ application. We are also not forbidding the Respondent No.4 from manufacturing Santopar. It can manufacture Santopar if it is entitled to do so under law. " 69. The petitioner has contended that after the aforementioned order dated 12-2-1986, it wrote several letters to the Drug Controller to allow to manufacture santopar but it was not favoured with any reply. The petitioner allegedly on the basis of the orders of the Minister Incharge dated 15-10-1985 and the subsequent orders of the Drug Controller started manufacturing santopar. It appears that the Drug Controller directed M/s Medimpex to stop manufacture santopar alleged in terms of the condition 3 of the licence, and further the said drugs were seized by the Drug Inspector. 70. According to M/s Medimpex, as it was manufacturing the said drugs santopar under the orders of the Court, the Drug Controller had no authority or jurisdiction to direct the Drug Inspector to seize the said drugs. It appears from the record that the petitioner filed an application for initiation of proceedings of the contempt under the contempt of Court. This Court, however, permitted the petitioner to convert the said contempt application into a writ petition. It appears from the record that the petitioner filed an application for initiation of proceedings of the contempt under the contempt of Court. This Court, however, permitted the petitioner to convert the said contempt application into a writ petition. The petitioner, thereafter filed an application for amendment of the prayer portion thereof whereby the petitioner challenged the order dated 6/5/1986 and 7/5/1986 as contained in Annexures 6 and 7 of the writ application issued by Respondent No.1 by which the entire stock of santopar tablets produced by the petitioner had been seized ; and for a writ of mandamus directing the Respondent to issue licence, as directed by the Health minister in favour of the petitioner and further directing Respondent No.2 to stop manufacturing and selling of "santopar" Tablet. 71. In view of the our judgment passed in C. W. J. C. No.5943/85, the petitioner is evidently not entitled to the reliefs by way of writ of mandamus directing the respondent to issue licence to the petitioner and further directing respondent No.2 to stop manufacturing and selling of "santopar" tablet. 72. Mr. Basudeo Prasad, has, however, submitted that in view of the fact that the petitioner was entitled to manufacture "santopar" in terms of the order passed by this Court by the order dated 12/2/1986 and in view the order of the minister Incharge dated 15/10/1985 as contained in Annexure-10 to the c. W. J. C. No.5943/85 was entitled to continue to manufacture "santopar" tablet. By the judgment passed in C. W. J. C. No.5943/85, it has been held that the order dated 15/10/1985 passed by the Minister Incharge was wholly illegal and without jurisdiction It may also be noted that this Court by the aforementioned order dated 12-2-1986 did not permit the petitioner to manufacture "santopar" Tablet but merely did not forbid the petitioner from doing so if it was so entitled under law. 73. From the order dated 12/2/1986 passed by this Court in CWJC No.5943/ 85 it is abundantly clear that by reason thereof this Court did not pass any order in favour of M/s Medimpex. M/s Medimpex itself took the risk to manufacture santopar Tablet and acted on the basis of such an order ; and if the same has been found to be illegal it must thank itself for that. M/s Medimpex itself took the risk to manufacture santopar Tablet and acted on the basis of such an order ; and if the same has been found to be illegal it must thank itself for that. The aforementioned order dated 12/2/1986 can in no way be sand to be an order granting licence to M/s medimpex to manufacture Santopar. Further, the question as to whether M/s medimpex had been manufacturing Santopar on the basis of the aforementioned order of this Court without there being any mens rea for not following the provisions of the said act or not has to be judged and considered by the appropriate forum. If and when such an adjudication takes place we are sure that the contention of the petitioner to the effect that it manufactured Santopar without any mens rea its bonafide belief that it could do so in terms of the aforementioned order dated 12-2-1986 would received serious consideration, but, in my opinion, taking such a view, while exercising jurisdiction under Articles 226 and 227 of the Constitution would not be proper. In this view of the matter, the said writ petition has to be dismissed. 74. Tn the result, C. W. J. C. No.5943 of 1985 is allowed and the order dated 15/10/1985 as contained in Annexure-10 to the writ petition and the order dated 11/11/1985 passed by the Drug Controller as contained in annexure-12 to the writ petition, are, hereby, quashed. C. W. J. C. No.4788 of 1986 is, however, dismissed. However, in the facts and the circumstances of these cases, there shall be no order as to costs. C. W. J. C. No.5943 allowed but C. W. J. C. No.4788 dismissed.