Quashed

Sunil Kumar v. the State of Jharkhand through Pr Secretary Department of Health

Jharkhand HC11 Jul 2018WPC/1724/2018

Case brief

AI extract

What is this about?

The High Court quashed an order by the Principal Secretary allowing a review petition that set aside an appellate order cancelling a drug license. The Court held that the appellate authority lacked jurisdiction to review its own order as no express power of review was conferred by the statute or Rules, citing precedents that review is a creature of the statute.

What did the court decide?

The impugned order dated 22nd March, 2018 allowing the review petition was quashed and set aside, and the Deputy Director is directed to hear the matter afresh.

Sunil Kumar Vs the State of Jharkhand through Pr… — Service and Employment | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No.1724 of 2018

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Sunil Kumar.

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Yelchuri Ragavayya.

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.......... Petitioners.

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-Versus-

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The State of Jharkhand through the Principal Secretary, Government of Jharkhand, Department of Health, Nepal House, Doranda, Ranchi.

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The Additional Chief secretary, Health, medical Education & Family Welfare Department cum Appellate Authority (Drug & Cosmetic), Namkum, Ranchi.

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The Director (Drug), State Drug Control Directorate, Namkum, Ranchi.

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The Deputy Director (Drug)-cum-Regional Licensing Authority, North Chhotanagpur Region, Hazaribagh-II, Hazaribagh.

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Madhuri Devi.

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.......... Respondents.

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CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR

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----For the Petitioner : M/s. Indrajit Sinha & Ajay Kumar Sah, Advocates For the State : A.C. S.C.IV For Respondent no.5: Mr. Rohit, Advocate ----- Order No.06 Date: 11.07.2018

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The present writ petition has been filed for quashing the order dated 22^nd March, 2018 (Annexure-13 to the writ petition) passed by the Principal Secretary, Department of Health, Medical Education & Family Welfare, Government of Jharkhand (respondent no.1), whereby the review petition filed on behalf of Madhuri Devi (respondent no.5) has been allowed and the earlier order dated 24^th May, 2017 (Annexure11 to the writ petition) passed by the Additional Chief Secretary, Department of Health, Medical Education & Family Welfare Department, Ranchi (respondent no.2) has been set aside; and also for consequential reliefs.

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Heard learned counsel for the parties.

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Learned counsel for the petitioners submits that the drug licence granted to the petitioners was cancelled by the Deputy Director (Drug)-cum-Regional Licensing Authority, North Chhotanagpur Region, Hazaribagh-II (respondent no.4) vide order dated 25^th March, 2017 exercising powers under Rule 66(1) of Drugs and Cosmetics Rules, 1945 (hereinafter to be referred as ‘the Rules, 1945’) for alleged

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violation of Rule 65A of the Rules 1945. Aggrieved by the said order, the petitioners preferred appeal before the appellate authority i.e. respondent no.2. The appellate authority vide order dated 24^th May, 2017 on setting aside the order dated 25^th March, 2017, remanded the matter back to the original authority for considering the matter afresh in accordance with law. Thereafter, a review petition filed by the respondent no.5 before the appellate authority (on this occasion before the respondent no.1), was entertained, and vide order dated 22^nd March, 2018, the earlier order passed by the appellate authority dated 24^th May, 2017 was set aside upholding the order passed by the original authority (respondent no.4) dated 25^th March, 2017.

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The learned counsel for the petitioner submits that the appellate authority under the Rules, 1945 does not have any power to exercise the jurisdiction of review. The appellate authority being the quasijudicial authority cannot review its own order unless such power is conferred expressly by the statute. Neither the Drug and Cosmetic Act, 1940 nor the Rules 1945 confers any power to the appellate authority to exercise the jurisdiction of review. As such, the impugned order dated 22^nd March, 2018 passed by the respondent no.1, entertaining the review petition filed by the respondent no.5 and setting aside the earlier order dated 24^th May, 2017 as well as upholding the original order dated 25^th March, 2017, is without jurisdiction and the same is liable to be set aside.

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Learned counsel for the State submits that the impugned order dated 22^nd March, 2018 passed by the respondent no.1 is justified. On perusal of the complaint made by the respondent no.5, it would transpire that there had been tenancy litigation between the petitioner no.1 and the respondent no.5 and the petitioners did not have the tenancy right to occupy the premises for which the drug licence was issued.

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Learned counsel for the respondent no.5 submits that there had been an agreement between the deceased son of the respondent no.5 and the petitioner no.1 for running the medicine shop. However, after the

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death of her son, the petitioner no.1 continued with the said business in partnership with the petitioner no.2 without entering into any formal tenancy agreement with the respondent no.5.

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Be that as it may. The issue before this Court is as to whether the appellate authority under Rules 1945 could have exercised the power of review particularly when the Act, 1940 or the Rules 1945 does not confer any power of review to the appellate authority.

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8. In the case of Dr. (Smt.) Kuntesh Gupta. Vs. Management of Hindu Kanya Mahavidyalaya Sitapur (UP), reported in (1987)4

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SCC 525, the Hon’ble Supreme Court in Para-11 has held as under:-

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“11. It is now well established that a quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction. The Vice-Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer any power of review on the ViceChancellor. In the circumstances, it must be held that the ViceChancellor acted wholly without jurisdiction in reviewing her order dated 24-1-1987 by her order dated 7-3-1987. The said order of the Vice-Chancellor dated 7-3-1987 was a nullity.”

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Further in the case of Assistant Commercial Taxes Officer

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Vs. Makkad Plastic Agencies, reported in (2011)4 SCC 750, the

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Hon’ble Supreme Court in Para-17 has held as under:-

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“17. Both the aforesaid two decisions which were rendered while considering taxation laws are squarely applicable to the facts of the present case. It is also now an established proposition of law that review is a creature of the statute and such an order of review could be passed only when an express power of review is provided in the statute. In the absence of any statutory provision for review, exercise of power of review under the garb of clarification/modification/ correction is not permissible. In coming to the said conclusion we are fortified by the decision of this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania.”

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In view of the aforesaid judgment, it may be construed that the power of review is a creature of the statute and such power can be exercised by any court of law/quasi-judicial authority/administrative body if the same has been specifically conferred to it by the statute. An order passed exercising the power of review in absence of any such power conferred by the statute is thus without jurisdiction.

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The respondent no.1 while passing the impugned order dated 22^nd March, 2018 has taken recourse of Section 21 of the General Clauses

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Act, 1897. However, the Hon’ble Supreme Court in the case of Indian National Congress (I) Vs. Institute of Social Welfare & Ors., reported in (2002)5 SCC 685 , while dealing with the said issue has held as under:

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“39. On perusal of Section 21 of the General Clauses Act, we find that the expression “order” employed in Section 21 shows that such an order must be in the nature of notification, rules and bye-laws etc. The order which can be modified or rescinded on the application of Section 21 has to be either executive or legislative in nature. But the order which the Commission is required to pass under Section 29-A is neither a legislative nor an executive order but is a quasi-judicial order. We have already examined this aspect of the matter in the foregoing paragraph and held that the function exercisable by the Commission under Section 29-A is essentially quasijudicial in nature and order passed thereunder is a quasijudicial order. In that view of the matter, the provisions of Section 21 of the General Clauses Act cannot be invoked to confer powers of deregistration/cancellation of registration after enquiry by the Election Commission. We, therefore, hold that Section 21 of the General Clauses Act has no application where a statutory authority is required to act quasi-judicially.”

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In the case of Indian National Congress (I)(Supra) , it has been clearly held by the Hon’ble Apex Court that Section 21 of General Clauses Act, 1897 has no application where a statutory authority is acting as a quasi-judicial authority. In the present case, the respondent no.1 has exercised the jurisdiction conferred under Rules, 1945 as a quasi-judicial authority. Thus, in my considered view, the respondent no.1 could not have resorted to Section 21 of the General Clauses Act, 1987 for exercising the power of review.

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In view of the aforesaid discussions, the impugned order dated 22^nd March, 2018 passed by the Principal Secretary, Department of Health, Medical Education & Family Welfare (respondent no.1) exercising power of review cannot be sustained in law and as such the same is hereby quashed and set aside.

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The Deputy Director (Drug)-cum-Regional Licensing Authority, North Chhotanagpur Region, Hazaribagh-II (respondent no.4) is directed to hear the matter afresh as per the order of remand dated 24^th May, 2017 passed by the Additional Chief Secretary, Department of Health, Medical Education & Family Welfare, Government of Jharkhand (respondent no.2) after providing due opportunity of hearing to the representatives of the petitioners as well as the respondent no.5.

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The writ petition is, accordingly, disposed of.

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(Rajesh Shankar, J.)

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Sanjay/NAFR

Sunil Kumar v. the State of Jharkhand through Pr Secretary Department of Health

Case brief

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Sunil Kumar v. the State of Jharkhand through Pr Secretary Department of Health

Case brief

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