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2013 DIGILAW 404 (JK)

Sayed Ahmed Wani v. Akhter Sajjad Sheikh

2013-07-15

Mansoor Ahmad Mir, TASHI RABSTAN

body2013
Per Mansoor, J. 1. This appeal is directed against the order dated 04.02.2011 passed by the learned Single Judge in OWP No.560/2010, quashing order dated 04.05.2010 passed by the J&K Special Tribunal, Jammu. 2. The facts leading to the present appeal is that respondent no.l, namely, Akhter Sajjad Sheikh questioned the order dated 21.05.2009 made by President, J&K Pharmacy Council, Jammu, respondent no.3 herein, read with communication dated 05.06.2009 made by the Deputy Controller, Drugs & Food, respondent no. 4 herein, by the medium of appeal before the appellate authority, i.e., J&K Special Tribunal, Jammu. During the pendency of said appeal, appellant herein laid a motion for his impleadment in the appeal and the same was granted vide order dated 04.05.2010. Respondent no.l herein feeling aggrieved questioned the said order by the medium of OWP No.560/2010, titled as, Akhtar Sajjad Sheikh v. J&K Special Tribunal & others. The Writ Court after examining the pleadings of the parties held that the learned Tribunal has fallen in error in granting the application of appellant herein on the ground that it was for the competent authority to defend the order before the appellate authority. The Writ Court, accordingly, allowed the writ petition and quashed the order of learned Tribunal vide judgment and order dated 04.02.2011. It is this order which is impugned in the present appeal. 3. We have heard learned counsel for the parties and have gone through the record. We are of the considered view that the Writ Court has fallen in error while making the order. 4. Appellant, Sayed Ahmed Wani made a complaint before the competent authority with the allegation that the writ petitioner, respondent no.l herein, had obtained the Registration Certificate by fraudulent means. Accordingly, a Committee was constituted to enquire into the matter. The Inquiry Committee after conducting inquiry observed that the Registration Certificate produced by the writ petitioner was false and recommended for cancellation of the same. The competent authority after going through the recommendations of the Inquiry Committee cancelled the Registration Certificate issued in favour of writ petitioner, Akhter Sajjad Sheikh in terms of the order, impugned before the learned Tribunal. 5. The Registration Certificate was issued by the competent authority in favour of the writ petitioner under the provisions of the J&K Pharmacy Act, Svt. The competent authority after going through the recommendations of the Inquiry Committee cancelled the Registration Certificate issued in favour of writ petitioner, Akhter Sajjad Sheikh in terms of the order, impugned before the learned Tribunal. 5. The Registration Certificate was issued by the competent authority in favour of the writ petitioner under the provisions of the J&K Pharmacy Act, Svt. 2011 (1955 AD) (for short, Pharmacy Act) and cancellation order too was made by the competent authority in terms of the provisions of the Pharmacy Act, though on the basis of the complaint made by the appellant herein. Thus, on the face of it the appellant was the necessary party. Writ petitioner, respondent no.l herein, when did not array the complainant, appellant herein, as a party respondent to the appeal before the learned Tribunal, appellant herein laid a motion for his impleadment, which was granted vide order dated 04.05.2010, subject matter of the writ petition. It would be appropriate to reproduce order dated 04.05.2010 herein. "Case called. Nemo for petitioner and respondents. Sh. Sayeed Ahmed, impleader applicant present in person. His application for impleadment was argued on last date of hearing. Since the property (shop) where the licence was based before suspension was under the possession of impleader applicant and Jamia Medicate was being run there on the Drug licence of Impleader applicant and also the suspended licence has been issued on the basis of a certificate issued in the name of Jamia Medicate, the impleader applicant has a right of being heard. The application as such is allowed and Sayeed Ahmed arrayed as party. Fix further proceedings on 23.06.2010." 6. While going through the said order, one comes to an inescapable conclusion that the appellate authority after applying mind to the facts of the case and while keeping in view the order, whereby the licence of respondent no. 1 herein came to be suspended/cancelled on the basis of a complaint, has rightly arrayed the appellant herein as a party to the appeal. 7. It appears the order dated 04.05.2010 is not the final order. The final order is yet to be made in the said appeal and the appeal is still on the dockets of appellate authority. Writ petitioner, respondent no.l herein, could have raised all the grounds of defence, which are available to him, before the appellate authority while addressing the arguments. It appears the order dated 04.05.2010 is not the final order. The final order is yet to be made in the said appeal and the appeal is still on the dockets of appellate authority. Writ petitioner, respondent no.l herein, could have raised all the grounds of defence, which are available to him, before the appellate authority while addressing the arguments. Therefore, the order dated 04.05.2010 passed by the learned Tribunal has not violated the fundamental rights of the writ petitioner, respondent no.l herein, in any way. The writ petition, therefore, was not maintainable. 8. Viewed thus, this appeal merits to be allowed. Accordingly, the appeal is allowed and the order dated 04.02.2011, impugned herein, passed by the Writ Court in OWP No.560/2010 is set aside and the writ petition is dismissed. It is made clear that any observation made herein shall not cause prejudice to any of the parties and they would be at liberty to raise all available grounds before the appellate authority.