Judgment : Heard Mr. A.K. Bhattacharyya, learned Sr. counsel appearing on behalf of the writ petitioners in W.P.(C) No. 753/2009. Also heard Mr. A.M. Buzarbaruah, learned Sr. counsel appearing on behalf of the writ petitioner in W.P.(C) No. 705/2009 as well as Mr. P.J. Saikia, learned counsel representing the writ petitioner in W.P.(C) No. 706/2009. Mr. G. Sarma, learned Govt. Advocate, Assam represents the State respondents, whereas Mr. S.K. Talukdar, learned standing counsel Health Department represents the other official respondents in all the three writ petitions. Since the aforementioned three writ petitions are filed on similar fact situations raising common question of law, hence, I propose to dispose of all the writ petitions by this common judgment and order. 2. Facts in W.P.(C) No. 753/2009. (A) The writ petitioner No. 1 is the proprietorial firm owned by the petitioner No. 2 and is running the business of chemist shop located within the premises of Assam Medical College & Hospital, Dibrugarh. The petitioners are running the said business of retailing drugs, both biological and non-biological, for the patients of the hospital in accordance with the provision of Drugs and Cosmetics Act, 1940 as well as Drugs and Cosmetics Rules, 1945 by obtaining necessary license from the competent authority. As per a decision of the Cafeteria Advisory Board of the Assam Medical College & Hospital, the petitioner No. 2 was initially selected for running a 24 hour service pharmacy near the AMC Cafeteria. Accordingly, by means of a letter dated 29-02-1992, the petitioner No. 2 was allowed to proceed with the construction of a shop pursuant whereto the petitioner No. 2 had carried out construction of a room and started the business of pharmacy. Since the petitioners were not allowed to occupy the said pharmacy even after completion of the construction for the purpose of running the pharmacy, hence, the petitioner No. 2 was earlier compelled to approach this Court by filing C.R. No. 3759/1995 challenging the said arbitrary action of the respondent authorities. By the order dated 17-01-1996 passed by this Court in C.R. No. 3759/1995, this Court had directed that the AMC Cafeteria Advisory Board to allow the petitioner to occupy the room constructed by the petitioner and to run the pharmacy. By the order dated 17-01-1996 passed by this Court in C.R. No. 3759/1995, this Court had directed that the AMC Cafeteria Advisory Board to allow the petitioner to occupy the room constructed by the petitioner and to run the pharmacy. In terms of the order passed by this Court, the petitioner occupied the shop room and thereafter, on the basis of a drug license issued on 24-04-1997, the petitioners had commenced the business of running a chemist shop. (B) On 29-01-2007 the respondent authorities had issued a notice inviting application from interested unemployed educated youth to start a chemist shop within the premises of the Assam Medical College on the newly constructed shop rooms subject to deposit of an amount of Rs. 1,00,000/- and payment of monthly rent of Rs. 10,000/- besides fulfillment of other terms and conditions mentioned therein. The petitioner had submitted an application in response to the aforesaid notice dated 29-01-2007 pursuant whereto the authorities had decided to allow the petitioner to setup a chemist shop. Consequently a fresh lease agreement dated 03-05-2007 was entered by and between the petitioner No. 2 and the Principal-cum-Chief Superintendent, Assam Medical College & Hospital, Dibrugarh which was to remain valid for a period of 3 years. Accordingly, the drug license issued to the petitioner was also renewed from time to time, on the basis of which, the petitioner continued to operate the chemist shop in the aforesaid premises. After expiry of the period of 3 years, the petitioners continued to remain in occupation of the shop premises under the respondents by paying rent as per the terms and condition of the lease agreement. (C) On 29-12-2008 the Secretary to the Govt. of Assam, Health and Family Welfare Department issued an office memorandum, inter alia, providing that no pharmacy under private ownership shall be permitted to be established or run from the premises of a Government Health Institutions of the State. Soon thereafter the respondent No. 7 had issued a notification dated 11-02-2009 asking the petitioners to close down the firm and stop dealing with all kinds of drugs under drug license issued to them within a period of 15 days from the date of issuance of the notice. Being aggrieved by the notification dated 29-12-2008 as well as the subsequent notice dated 11-02-2009 the petitioners had approached this Court by filing the above noted writ petition. 3. Being aggrieved by the notification dated 29-12-2008 as well as the subsequent notice dated 11-02-2009 the petitioners had approached this Court by filing the above noted writ petition. 3. Facts in W.P.(C) No. 705/2009. (A) The petitioner being an educated unemployed youth had submitted an application dated 04-11-2006 seeking approval to open a pharmacy at the Teok First Referral Unit under the Health Department of Govt. of Assam. On receipt of the said application, the same was duly considered by the Joint Director, Health Services, Jorhat and thereafter, vide letter dated 13-02-2007 the same was approved. By the aforesaid letter dated 13-02-2007 a request was also made for granting the pharmacy license in favour of the petitioner considering the fact that establishing such a pharmacy at the Teok First Referral Unit was very much essential in the interest of the public. (B) Subsequently the application made by the petitioner was also considered by the Managing Committee of the Teok First Referral Unit in its meeting dated 10-09-2007 whereby the aforesaid Committee had recommended the case of the petitioner for opening the pharmacy in the Teok First Referral Unit. In the meantime drug license dated 19-11-2007 was issued in favour of the petitioner’s firm for a period of 5 years which was made valid up to 18-11-2012. (C) After completion of the aforesaid process the Senior Medical Officer of Teok First Referral Unit had issued a letter dated 14-09-2007 addressed to the petitioner formally conveying the approval of the Joint Director, District Health Service, Jorhat as well as the Managing Committee of the Teok First Referral Unit under the chairmanship of local MLA recommending the case of the petitioner for setting up the pharmacy in the premise of Teok First Referral Unit, subject to payment of rent of Rs. 500/- per month as rent and on fulfillment of other conditions as indicated in the letter dated 14-09-2007. In terms of the aforesaid communication, the petitioner was allowed to open the pharmacy along with another pharmacy opened by one Diganta Bordoloi. It is also the case of the petitioner that he had obtained a loan of Rs. 2,00,000/- from the bank for opening medical store beside investing further amount of Rs. 1,00,000/- for running the pharmacy. As the petitioner was operating the aforesaid pharmacy, on 10-02-2009 the In-Charge of the Teok First Referral Unit handed over a copy of the Govt. It is also the case of the petitioner that he had obtained a loan of Rs. 2,00,000/- from the bank for opening medical store beside investing further amount of Rs. 1,00,000/- for running the pharmacy. As the petitioner was operating the aforesaid pharmacy, on 10-02-2009 the In-Charge of the Teok First Referral Unit handed over a copy of the Govt. notification dated 29-12-2008 with a further instruction to the petitioner to close down the pharmacy and leave the FRU premises. Thereafter, on 04-02-2009 the Joint Director, Health Services, Jorhat had issued an order dated 04-02-2009 addressed to the petitioner’s firm asking him to shift from the FRU campus with immediate effect failing which the petitioner would be evicted from the pharmacy. Being aggrieved by the aforesaid notification dated 29-12-2008 issued by the Secretary to the Govt. of Assam, Health Department as well as the notice dated 04-02-2009 issued by the Joint Director, Health Services, Jorhat, the petitioner had approached this Court by filing aforementioned writ petition. 4. Facts in W.P.(C) No. 706/2009. (A) The writ petitioner in this case is a physically handicapped person who is running a pharmacy which was duly allotted to him by the Jorhat Civil Hospital authorities way back in the year 2001. The case of the petitioner is that the respondent authorities had constructed market sheds in the Jorhat District Civil Hospital campus at Jorhat from the funds provided by the local MP and thereafter, allotted the aforesaid sheds to different persons on rental basis on condition of payment of monthly rent. Room No. 1 in the aforesaid shed was allotted in favour of the petitioner to run a pharmacy vide order dated 28-06/2001 issued by the Secretary, Hospital Managing Committee, Jorhat District Civil Hospital, Jorhat. Accordingly, the petitioner had started a day and night pharmacy in the said premises by making substantial investment and had been running the same as per direction of the hospital authorities. (B) It is the case of the writ petitioner that while he was running the aforesaid day and night pharmacy, a communication dated 16-02-2009 had been issued by the Superintendent, Jorhat District Civil Hospital, Jorhat asking him to close down and/ or vacate the pharmacy immediately otherwise district administration will be informed for eviction. (B) It is the case of the writ petitioner that while he was running the aforesaid day and night pharmacy, a communication dated 16-02-2009 had been issued by the Superintendent, Jorhat District Civil Hospital, Jorhat asking him to close down and/ or vacate the pharmacy immediately otherwise district administration will be informed for eviction. (C) Being aggrieved by the communication dated 16-02-2009 purportedly issued in terms of the notification dated 29-12-2008 the writ petitioner had approached this Court by filing the aforementioned writ petition. 5. Mr. A.K. Bhattacharyya, learned Sr. counsel submits that the notification dated 29-12-2008 makes it clear that the same would only have prospective effect. As such, the respondents could not have taken any action against the petitioners in the facts and circumstances of the case by acting in terms of the aforesaid notification dated 29-12-2008. The learned Sr. counsel further submits that even assuming that the paragraph 4 of the aforesaid notification is applicable to the petitioners even in that case the Govt. notification itself makes it clear that steps for ejection/ eviction of private pharmacy running in Govt. premises are required to be taken as per appropriate provision of law/ rules. Mr. Bhattacharyya submits that the petitioners have entered the premises as a lessee under the authorities on payment of monthly rent and hence, they cannot be thrown out of said premises without following due procedures of law. 6. By referring to the notification dated 11-02-2009 issued by the Deputy Drug Controller, Dibrugarh asking the petitioners to stop dealing with all kinds of drugs under the drug license issued Mr. Bhattacharyya submits that the said notification is without the authority of law and has been issued in contravention of the provision of Drugs and Cosmetics Act and Rules framed thereunder. By referring to the provision of Section 66 of the Drugs and Cosmetics Act, 1940, learned Sr. counsel submits that the act itself clearly provides the power available to the drug controller for cancellation/ withdrawal of a drug license. From a reading of the impugned notification dated 11-02-2009 it is apparent that the same has been issued in a most arbitrary and illegal manner with the sole objective of giving effect to the Govt. notification dated 28-12-2008 thereby acting in total contravention with the provision of Drugs and Cosmetics Act. Therefore, submits Mr. From a reading of the impugned notification dated 11-02-2009 it is apparent that the same has been issued in a most arbitrary and illegal manner with the sole objective of giving effect to the Govt. notification dated 28-12-2008 thereby acting in total contravention with the provision of Drugs and Cosmetics Act. Therefore, submits Mr. Bhattacharyya, the impugned order dated 11-02-2009 as well as proposed move on the part of the respondents to forcefully evict the petitioners from the premises under their occupation for running pharmacy being dehors the law, is not sustainable and hence liable to be declared so by this Court. Drawing the attention of this Court to the developments that was taken subsequent to the institution of the writ petition, the learned Sr. counsel has further submitted that even during the pendency of the writ petition the respondent authorities not only accepted rent from the petitioner but has also renewed the drug license issued in the name of the petitioner facilitating the continuance of the business by the petitioner. As such the action of the respondent authorities are in clear violation of the provision of law and liable to be declared so by this Court. 7. Substantially adopting the arguments made by Mr. Bhattacharyya, Mr. A.M. Buzarbaruah, learned Sr. counsel also submits that his client was allowed to run pharmacy shop on the basis of approval and/ or recommendation made by the competent committee. He has been running the said pharmacy in the tenanted premises by paying monthly rent. As such, the writ petitioner is a tenant under the respondent authorities and hence, his possessing over the tenanted premises would be protected under the law till such time he is evicted from the said premises by following due process of law. Mr. Buzarbaruah submits that impugned letter proposing eviction of the petitioner being dehors the provisions of law is not sustainable and hence, liable to be interfered with by this Court. 8. Mr. P.J. Saikia, learned counsel appearing for the writ petitioner in W.P.(C) No. 706/2009 adopts the arguments made by the learned Sr. counsels and further submits that the writ petitioner being a physically handicapped person his case ought to have been considered sympathetically by the authorities which has not been done so in this case. Mr. 8. Mr. P.J. Saikia, learned counsel appearing for the writ petitioner in W.P.(C) No. 706/2009 adopts the arguments made by the learned Sr. counsels and further submits that the writ petitioner being a physically handicapped person his case ought to have been considered sympathetically by the authorities which has not been done so in this case. Mr. Saikia, therefore, submits that the impugned notifications are not sustainable in the eye of law and as such liable to be quashed and set aside by this Court. 9. Mr. S.K. Talukdar, learned standing counsel, Health Department submits that although the petitioners were allowed to occupy the respective premises on the basis of agreement/ approval of the concerned authorities and on condition of payment of rent yet, said agreement and/ or lease was not granted with due approval of the Govt. The premises in question being a Govt. premises, the said authorities had a right to vacate the same by evicting the petitioners and put the same to appropriate use bearing in mind the requirement of public interest. 10. I have considered the submission made by and on behalf of the parties and have also perused the materials on record. It is not in dispute that the writ petitioners in all the aforementioned writ proceedings had entered into occupation of their respective premises with the approval of the concerned authorities and for the purpose of running the day and night pharmacy which were deemed to be essential for the interest of the patients of the respective hospitals. It is also not in dispute that the writ petitioners had made substantial investment for establishing the said pharmacy and that all the petitioners are running the business of pharmacy by obtaining proper license from the drug controller authorities. 11. What can be seen from the materials available on record is that the move to evict the petitioners from their respective premises was initiated only in the wake of notification dated 29-12-2008 issued by the Secretary to the Govt. 11. What can be seen from the materials available on record is that the move to evict the petitioners from their respective premises was initiated only in the wake of notification dated 29-12-2008 issued by the Secretary to the Govt. of Assam, Health & Family Welfare (A) Department which is quoted herein below for ready reference: HEALTH & FAMILY WELFARE (A) DEPARTMENT DISPUR::GUWAHATI – 6 No. HLA 1221/2004/60 Dated, Dispur the 29th December, 2008 OFFICE MEMORANDUM It has been observed by the Government that applications from different corners have been received with request to allow them for opening of Pharmacy within the premises of various categories of Govt. Health Institutions like Civil Hospital, FRU, CHC, PHC etc. In certain cases such applicants filed court cases also. In view of the above situation it has been decided that:- (1) No pharmacy under private ownership shall be permitted to be established for running within the premises of any Govt. Health Institution of the State. (2) In no circumstances, the local authority or the Hospital Management Society shall issue any permission to any individual or organization for opening/ running of any pharmacy within the premises of Govt. Health Institutions. (3) The Drugs Controller, Assam, who is the License Issuing Authority, while issue License for pharmacy shall duly examine about the details of the premises to which the applicant has sought for License for setting up pharmacy and that declaration shall be obtained by the Drugs Controller to the effect that the premises in which the pharmacy will be set up is neither own land of the applicant, rented land or rented house and that the land/ premises or the house does not belongs to Government. (4) In case of any private pharmacy is running within the premises of Govt. Health Institutions or on any Govt. land adjacent to such Health Institution, appropriate action for ejection or eviction of such private establishment shall have to be taken with the help of the District Administration under appropriate provision of Law/ Rules. This shall come into force with immediate effect. Sd/- J.C. Goswami, IAS Secretary to the Govt. of Assam Health & FW(A) Deptt. 12. A bare perusal of the aforesaid notification would go to show that paragraph 1, 2 and 3 of the aforesaid notification would be applicable only with prospective effect i.e. in the cases of fresh allotments. This shall come into force with immediate effect. Sd/- J.C. Goswami, IAS Secretary to the Govt. of Assam Health & FW(A) Deptt. 12. A bare perusal of the aforesaid notification would go to show that paragraph 1, 2 and 3 of the aforesaid notification would be applicable only with prospective effect i.e. in the cases of fresh allotments. As regards the existing pharmacies operating from the Govt. premises, paragraph 4 of the notification dated 29-12-2008 makes it clear that all action for ejectment or eviction of private establishment from such Govt. premises is to be taken as per the provision of law/ rules. Therefore, it is evident that the Govt. had never instructed any of the authorities to evict the private parties from the occupation of their respective premises in violation of the provision of law. Since the petitioner in all the Writ Petitions had entered into possession of the respective premises as a leasee on condition of paying rent and with the approval of the local authorities, hence, their possession in respect thereof would remain protected until evicted there-from by following the due process of law. 13. A reading of the notification dated 11-02-2009 (Annexure-12) in W.P.(C) No. 753/2009 makes it clear that the same has been issued as follow up action of the Govt. notification dated 29-12-2008. However, as per the provisions of Drugs and Cosmetics Act, 1940 the Drug Controller cannot withdraw or cancel a drug license without issuing the prior notice upon the licensee and without following the provision of the said act nor can the Drug Controller cancel the drug license with the objective of evicting the petitioner from the tenanted premises. In such view of the matter this Court has no hesitation to hold that the impugned notification dated 11-02-2009 issued to the petitioners in W.P.(C) No. 753/2009 was dehors the provision of law and as such the same is hereby set aside by this Court. 14. Coming to the issue raised in W.P.(C) No. 705/2009 even in this case it is apparent that the impugned order dated 17-02-2009 has been issued in purported compliance with the Govt. order dated 29-12-2009. 14. Coming to the issue raised in W.P.(C) No. 705/2009 even in this case it is apparent that the impugned order dated 17-02-2009 has been issued in purported compliance with the Govt. order dated 29-12-2009. Considering the fact that the Joint Director, Health Services was not authorized in the law to evict the petitioner from the suit premises by force with the help of district administration, hence, the aforesaid order is also held to be bad in the eye of law and hence, stands interfered with by this Court. 15. For the reasons indicated hereinbefore the order dated 16-02-2009 issued to the writ petitioner in W.P.(C) No. 706/2009 in purported compliance of the Govt. notification dated 29-12-2008 is also held to be dehors the provision of law and as such stands interfered with. Consequently all the three writ petitions stand allowed to the extent indicated above, without, however, interfering with the notification dated 29-12-2008. It is, however, made clear that notwithstanding the order passed by this Court today the respondent would be at liberty to initiate appropriate measures for eviction of the petitioners from their respective premises by following the due provision of law, if so advised. No order as to cost.