M/S Sree Annamalai Medicals And ORS v. The Secretary (Health) And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/252/2024 M/s Sree Annamalai Medicals and others Vs.
The Secretary (Health) and others Mrs. Anjili Nag ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent June 21, 2024 [SR] Item No. 5 Learned counsel for the petitioners argues that petitioners' application for renewal of licence under the Drugs and Cosmetics Act, 1940 and the relevant Rules framed thereunder was refused on the ground that the petitioner failed to produce either a subsisting lease agreement in their favour or a no objection certificate from the landlord.
It is contended that although initially there was a subsisting lease agreement when the licence was obtained, subsequently an eviction suit was instituted which has since been dismissed. It is further argued that during subsistence of the said suit, even at a point of time when the previous lease of agreement had expired and there was a dispute between the landlord and the petitioner, the licence was renewed by the respondent-authorities without any demur on the count as raised now. Moreover, learned counsel for the petitioner cites a judgment of a coordinate Bench of this Court in the matter of Tripti Roy vs. State of West Bengal as well as a judgment of the Madras High Court, in both of which it was held that non furnishing of no
objection certificate from the landlord is not fatal to an application for licence.
Learned counsel for the respondent-authorities places reliance on Rule 65A incorporated in 1972 in the Drugs and Cosmetics Rules, 1945 as per which documentary evidence in respect of ownership or occupation or rental or other basis of the premises is required to be furnished for the purpose of grant of licence. Learned counsel also relies on the check list which is followed by the respondent authorities for grant/renewal of licences which mandates the furnishing of rent/lease agreement and/or premises ownership documents as well as no objection certificate. Based on such check list and the Rules, it is argued that it was mandatory for the petitioners to produce a renewed lease agreement in their favour in respect of the property for the purpose of renewal of drug licence, in the alternative a no objection certificate was to be obtained from the landlord.
An additional limb of argument is advanced by the respondents inasmuch as it is contended that since the original licence was obtained on the premise of a valid and then-subsisting lease agreement, it was incumbent upon the petitioner, for renewal of the said licence, to furnish a renewed lease agreement. Otherwise, it is argued that the very premise of the grant of licence is vitiated and renewal cannot be sought as such.
Upon a careful perusal of Rule 65A of the 1945 Rules, it transpires that the same merely pertains to additional information to be furnished by an applicant for licence or a licensee to the licensee authority. The prefix "additional" itself shows that furnishing the documents mentioned therein cannot be mandatory for the purpose of grant or renewal of licence. Moreover, the disjunctive conjunction
"or" has been used to segregate documentary evidence in respect of ownership, occupation, rental or other basis of the premises. Such use of language indicates that any of such documents would suffice for the purpose of grant or renewal of licence. Since the expression "occupation" and "rental" have been used disjunctively, it is the evident intention behind the Rules to distinguish between the two and provide for cases where even without any documentary evidence of rental, documentary evidence of occupation would be sufficient. Hence, the argument of the respondents that a no objection certificate from a landlord or a proof of subsisting lease or LessorLessee relationship between the parties is mandatory is belied by the provision itself.
The check list produced by the respondents is utterly immaterial, since by framing a check list, the law or rules cannot be altered. In the any event, the check list is only for ministerial purposes and cannot have any bearing in interpreting the statute or Rules framed thereunder.
That apart, as observed in the cited judgments of the Madras High Court as well as this Court, the Drugs and Cosmetics Act, 1940, which is the parent statues under which the Rules have been framed, does not in any place mandate production of proof of an existing lease agreement for grant of licence or renewal of the same, nor is there is any provision stipulating non production of such document on demand of the authorities as a ground for cancellation of such licence.
That apart, Drugs and Licence Authorities are not adjudicatory bodies or civil courts having the power to decide the legality of jural relationships and/or right, title and interest between the parties. The predominant purpose of Rule 65A is not to clothe
the authorities with the power to decide the validity or legality of the possession of an applicant or holder of drugs licence but only to ascertain whether such a person is in occupation of the property for the purpose of grant/renewal of licence. The lawfulness or otherwise of occupation cannot be a determinant in the entitlement of a person otherwise to have a drug licence, for which the necessary criteria have been enumerated in the 1940 Act itself.
In the present case, the occupation of petitioner stands undisputed for three reasons. First, the initial licence was granted to the petitioner on the premise that the petitioner was in occupation, albeit on the strength of a subsisting lease agreement. Secondly, the licence was renewed previously at a point of time when the lease agreement was not subsisting, thereby acknowledging the possession of the petitioner till that date. Thirdly, filing of the eviction suit by the landlord indicates that at least the landlord admitted the possession of the petitioner.
As such, the relevant provisions of the Evidence Act, in particular Section 109 and 114 (d), mandate that if a person alleges that the state of affairs or a jural relationship which was continuing has been terminated, the burden and initial onus lies on the said person to establish such termination. In the present case, in natural course of events, it is to be construed that the possession of the petitioner has been continuing, in the absence of any rebuttal to the same. Also, the petitioner claims that the eviction suit filed by the landlord has been dismissed.
In view of the above, there is no plausible reason why the respondent authorities refused to grant renewal of licence to the petitioner on the ground either of the petitioner not being able to produce a valid subsisting lease agreement or renewal agreement or
on the ground that the petitioner did not produce no objection certificate from the landlord. It is evident that in view of the acrimonious relationship between the landlord and the petitioner, no such certificate would in any event be issued by the landlord. The drug licensing authority cannot take up the cudgel on behalf of the landlord in seeking to ascertain the legality of the occupation of the petitioner. Moreover, the said authority does not have jurisdiction in law to decide issues of right, title and interest in an immovable property at all.
Seen from such perspective, the impugned inaction/refusal on the part of the respondents in refusing to grant renewal of drug licence to the petitioner on the grounds of non production of no objection certificate and/or valid lease agreement is vitiated in law and de hors the authority vested in the said authorities. Accordingly, WPA/252/2024 is allowed on contest, thereby setting aside the impugned order dated May 08, 2024 and directing the respondent authorities to grant renewal of drug licence to the petitioner subject, of course, to the petitioner putting in the required fees and complying with all other formalities as required by law. No order as to costs.
Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.
( Sabyasachi Bhattacharyya, J. )