Court No. - 7
Case :- WRIT - C No. - 47356 of 2017 Petitioner :- M/S Kamlesh Medicine & Distributors, Moradabad And Another Respondent :- State Of U.P. And Another Counsel for Petitioner :- Kshitij Shailendra Counsel for Respondent :- C.S.C.
Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri Kshitij Shailendra, learned counsel for the petitioner and learned Standing Counsel for the State.
2. The present petition is directed against the order dated 24.10.2016 passed by the Assistant Commissioner (Drugs)/Licensing Authority, Moradabad Region, Moradabad (respondent no. 2), by which the petitioners' wholesale drug license had been cancelled. That order was upheld by the Principal Secretary, Food Safety and Drugs Administration, Civil Secretariat, Lucknow, U.P. (respondent no. 1), by his order dated 01.06.2017.
3. Learned counsel for the petitioner submits, the petitioner is an old licensee, she having been granted license to engage in the wholesale trade in drugs (as defined under the Drugs and Cosmetic Rules, 1945, hereinafter referred to as the Rules), in the year 1983. It is further stated, initially, the petitioner was running that license from a shop on the ground floor of the premises owned by her. Subsequently, due to her advancing age and also illness suffered, she continued that business from the first floor of the same premises. It is thus submitted the original license had been granted to the petitioner with respect to the premises owned by her at Station Road, Moradabad. Subsequently, she continued that business from the first floor of the same premises since year 2000. The petitioner had also been subjected to assessments under the local sales tax laws. It was thus established, the petitioner remained engaged in the business of wholesale trade in drugs for the entire period, without break. At the same time, a notice appears to have been first issued to the petitioner on 27.06.2016 alleging she had discontinued her business in drugs and started business in sale of textile, etc. Therefore, it was proposed to suspend/cancel her license. It is further on record that the petitioner's license was not cancelled on that allegation.
4. Subsequently on 26.07.2016, second notice was issued to the petitioner requiring her to produce the proof of ownership of the premises as also the duly approved map issued to her along with the license to engage in wholesale trade in drugs. While it is undisputed that the premises from which the petitioner was found engaged in the wholesale trade in drugs is owned by her, the license was cancelled by the order dated 24.10.2016 on the reasoning that the petitioner had not informed the licensing authority of the change of premises (from ground floor to first floor), and she did not obtain prior approval to effect such change. On similar reasoning, the appeal filed by the petitioner had been rejected by the state government.
5. Learned counsel for the petitioner submits, in the first place, the original license issued to the petitioner was very old and there did not exist on record of the respondent authorities any approved premises to conduct the trade (by the petitioner), with specification of the ground floor of the premises as the only identified/demarcated approved place of business. Second, it has been submitted, a de-facto approval always existed inasmuch as the petitioner remained continously engaged in business from the first floor of the premises at Station Road, Moradabad, since the year 2000 without break. Owing to her old age and illness, she found it more convenient to conduct her business from the first floor of the premises owned by her and with respect to which the licence was admittedly issued. Third, it has been submitted, it is undisputed that the petitioner was always found engaged in the business/trade in drugs inasmuch as the first notice issued alleging discontinuance of such business was not proceeded with and no charge was found proven against the petitioner, on that count. Fourth, it has been submitted that there is no specific condition in the license issued to the petitioner on Form-20B read with Rules 61 of the Drugs and Cosmetic Rules, 1945, as may warrant a penal action of cancellation of the license, in the facts noted above.
6. Learned Standing Counsel on the other hand submits that it is not disputed by the petitioner that she had shifted her business from the ground floor to the first floor of the premises and, therefore, she had necessarily started a business from a new premises. Second, it has been submitted, in light of condition nos. 1 and 5 of the license issued on Form-20B, read together alteration made by the petitioner, cancellation of the license was clearly warranted in view of the clear language of the Rule 61 of the Rules.
7. Having heard learned counsel for the parties, it is seen, in the first place, though the charge of change of premises had been levelled, the licensing authority did not bring on record the original approval granted with reference to the premises from which business was allowed to be conducted. That approval having not been brought on record, there does not exist any material with reference to which the charge levelled against the petitioner may be tested. That burden to lead evidence was on the licencing authority, remained undischarged.
8. It would however remain to be seen whether otherwise it stood established whether the original license had been granted with reference to the ground floor of the premises or whether it was restricted to the ground floor of the premises. In this regard, learned standing counsel has relied on a copy of the map issued to the petitioner under the Right to Information Act, 2005, stated to be copy of the map issued in the year 1983. The said map also does not specify the place of business of the petitioner to be on the ground floor of the premises. That map has not been prepared does not specify the place of business of the petitioner on the ground floor of the premises. Therefore, it has to be assumed that there does not exist any documentary evidence to establish that the petitioner had been granted license solely with reference to the ground floor of the premises.
9. It is undisputed that the business of the petitioner had been found to be conducted from the first floor of the same premises bearing the same house number mentioned in the licence and the approved map. The ownership of the said premises is also not in dispute inasmuch as in the cancellation proceedings, the petitioner appears to have satisfied the authorities that she owned the entire premises from where she was found conducting her business in drugs.
10. What remains to be seen, therefore, is whether the petitioner had informed the authorities about the minor change of location of business from the ground floor to the first floor of the premises owned by her, and with reference to which the license had been issued to her? In this regard, the contention of the petitioner made in the writ petition that she had been conducting the business from the first floor of the premises since the year 2000 is largely undisputed. Coupled with the same, it is admitted to the respondents that the license issued to the petitioner had been renewed on year to year basis during the period 2000-2017 and the cancellation notice was first issued only in the year 2016. Thus, the argument advanced by the learned counsel for the petitioner does merit acceptance that there did come into existence a de-facto approval by the authorities to the change, if any, made by the petitioner with respect to the exact location of the shop from which she conducted her business.
11. For the purpose of renewal of the license issued to the petitioner, the procedure is provided under Rule 64 of the Rules. Under that Rule, the license may not be renewed unless the authority is satisfied that the premises in respect of which such renewal is sought are adequate, equipped with proper storage, accommodation, etc. Under the second proviso of Rule 64, the licensing authority is also required to satisfy itself that the premises in respect to which the wholesale license is to be granted or renewed fulfils certain specified conditions. That being the position in law, it was for the licensing authority to have conducted such enquiry at the relevant time. Licence having been undisputedly renewed for sixteen years without any objection, it may be assumed that a de-facto approval had arisen. Even today there is no inadequacy noted as to the premises from which the petitioner has been found conducting her business. The defect noted is thus, largely and purely technical. Sixteen years having passed since the petitioner made the change and license having been renewed many number of times during that period, it appears too harsh on part of the licensing authority to have suddenly woken up to the change made by the petitioner made years ago and to have cancelled the license years after the change had taken place.
12. Even as to the change in the place of business, the same is not prohibited under the Rules. Rather the same is permissible, the governing rule in that regard being Rule 62. Looked at from this angle, it would be open to the licensing authority to require the petitioner to comply with the Rules and to make a proper application so as to record the exact place of business of the petitioner, the same having become necessary in view of the inspection first made in the year 2016. However, the extreme action taken by the licensing authority to cancel the license solely on account of such fact, in the peculiar facts and circumstances of the present case appears unacceptably harsh.
13. The present petition is accordingly allowed. The orders dated 24.10.2016 and 01.06.2017 passed by the respondent authorities are hereby set-aside. The matter is remitted to the licensing authority to pass an appropriate order granting restoration/renewal of the license issued to the petitioner with respect to the exact premises, subject to the petitioner fulfilling all other conditions with respect to the same. Such order may be passed as expeditiously as possible, preferably within a period of two months from the date of production of certified copy of this order. No order as to costs.
Order Date :- 30.11.2018 Prakhar