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2008 DIGILAW 2193 (RAJ)

Goa Antibiotics v. State of Rajasthan

2008-09-17

N.K.JAIN

body2008
Judgment Hon'ble JAIN, J.—Admit. Mr.Bharat Vyas, Additional Advocate General appears for the respondents. (2). Heard learned counsel for the parties. (3). The petitioner has preferred this writ petition challenging the impugned order dated 17th March, 2008 issued by the Licensing Authority cancelling its license for manufacture of ayurvedic medicines. (4). The learned counsel for the petitioner contended that the order dated 17th March, 2008 (Annexue-11) issued by Deputy Secretary to the Government of Rajasthan makes it clear that a direction was given to Director-cum-Licensing Authority to cancel the license of the petitioner immediately and to black-list it and thereafter without giving any notice in accordance with Rule 159 of the Drugs and Cosmetics Rules, 1945, the licensing authority has cancelled his license, therefore, on the face of the order itself it is clear that without affording an opportunity of hearing, the license of the petitioner has been cancelled by the Licensing Authority, which is violative of principles of natural justice and contrary to sub-rule (1) of Rule 159 which is liable to be set-aside by this Court. He further contended that State Government had no authority to issue such a direction to the licensing authority. (5). The learned Additional Advocate General raised a preliminary objection that impugned order passed by the Licensing Authority is appelable under sub-rule (2) of Rule 159 of the Rules of 1945. So far as other facts are concerned that no notice was given to petitioner before cancellation of license have not been disputed. (6). The learned counsel for the petitioner in rejoinder contended that in the present case, the licensing authority has not applied its mind before cancellation of the license of the petitioner but he has cancelled the license of the petitioner only on the basis of the directions issued by the Deputy Secretary to Government, which is an appellate authority under sub-rule (2) of Rule 159 of the Rules of 1945 itself, therefore, no useful purpose will be served in filing an appeal against the impugned order. (7). I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the respondents in the light of pleadings of the parties. Undisputedly the petitioner was holding a license for manufacturing of ayurvedic medicines granted by the respondents. (7). I have considered the submissions of learned counsel for the parties and examined the impugned order passed by the respondents in the light of pleadings of the parties. Undisputedly the petitioner was holding a license for manufacturing of ayurvedic medicines granted by the respondents. The Deputy Secretary to Government, who is said to be an appellate authority under sub-rule (2) of Rule 159 issued direction vide letter dated 17th March, 2008 (Annexure 11) to Director-cum-Licensing Authority to cancel the license of the petitioner with immediate effect and to black-list it. Thereafter on the same day i.e. 17th March, 2008 itself the licensing Authority cancelled the licence of the petitioner with immediate effect. So far as the preliminary objection raised on behalf of the respondents about availability of statutory remedy of an appeal is concerned, it is suffice to say that in the present case, the appellate authority has issued a direction to licensing authority to cancel the license of the petitioner and licensing authority without applying its mind independently and only on the basis of direction issued by the Deputy Secretary i.e. appellate authority has cancelled the license of the petitioner, therefore, no useful purpose will be served in filing the appeal as mind of the appellate authority is pre-determined in the present case against the petitioner and learned counsel for the petitioner is right in contending that no useful purpose will be served in filing an appeal before the same authority who has directed the licensing authority to cancel his license. So far as violation of principles of natural justice is concerned, the same has not been disputed even by the respondents in their reply to writ petition. (8). So far as violation of principles of natural justice is concerned, the same has not been disputed even by the respondents in their reply to writ petition. (8). Sub-rule (1) of Rule 159 of the Rules of 1945 is reproduced as under: "(1) The licensing authority may, after giving the licensee an opportunity to show cause, within a period which shall not be less than fifteen days from the date of receipt of such notice, why such an order should not be passed, by an order in writing stating the reasons therefor, cancel a license issued under this Part or suspend it for such period as he thinks fit, either wholly or in respect of some of the drugs to which it relates, if in his opinion, the licensee has failed to comply with any of the conditions of the license or with any provisions of the Act or the rules made there under." (9). The aforesaid rule makes it clear that a liberty to show cause to licensee before its cancellation or suspension is a condition precedent and violation of this condition is apparent from the order passed by the licensing authority itself. In these circumstances, I find that the impugned order dated 17.3.2008 passed by licensing authority cancelling the license of the petitioner has been passed in violation of principles of natural justice and also it is contrary to sub-rule (1) of Rule 159 and the same cannot be allowed to stand. (10). Consequently the writ petition filed by the petitioner is allowed. The impugned order dated 17th March, 2008 passed by the licensing authority as well as State Government i.e. Deputy Secretary to Government (Annexure-11), both the quashed. It is needless to mention that it is always open for the respondents to proceed against the petitioner in accordance with the provisions of law if there is any complaint against the petitioner. (11). No order as to costs.