1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: (1) D.B. CIVIL SPECIAL APPEAL (W) NO.672/2013 Arun Kumar Chug vs. State of Rajasthan & Ors. (2) D.B. CIVIL SPECIAL APPEAL (W) NO.690/2013 Naresh Kumar Chug vs. State of Rajasthan & Ors. Date of Judgment ::
05. h September, 2013 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MR. JUSTICE ARUN BHANSALI Dr. Sachin Acharya, for the appellants. ---- BY THE COURT: These appeals are directed against order dated 13.02.2013 passed by the learned Single Judge, whereby, the writ petitions filed by the petitioners-appellants have been dismissed. D.B. Civil Special Appeal (W) No.672/2013 is time barred by 37 days and an application under Section 5 of the Limitation Act, 1963 has been filed. Having considered the submissions made in the said application, supported by affidavit, we are satisfied that the appellant was prevented by sufficient cause in not filing the appeal within limitation and, therefore, the application seeking condonation of delay in filing the appeal is allowed. The delay of 37 days is condoned. The brief facts of the appeals, which involve identical facts, 2 may be noticed thus: the respondent Rajasthan Medicare Relief Society ('the Society') operates medical/drug stores at all major hospitals, which are operated with the aid of Registered Pharmacists; the Society by an advertisement dated 21.09.2010 invited tenders from qualified Pharmacists for operating their stores at MDM Hospital and MG Hospital, Jodhpur respectively; the tenders submitted by the appellants were accepted and agreements were executed between the parties in this regard; the stores being operated by the appellants were inspected by the Committee constituted by the Society, which found lapses on part of the operators in that the stores were not being operated in conformity with the terms and conditions of the contract; further the store operated by the appellant Naresh Kumar was found to have indulged in trade of spurious injection 'Meropenam', the drug store operated by appellant Arun Kumar was also found to have indulged in committing various irregularities while operating the store on inspections done by the Drug Controller under the Drugs and Cosmetics Act, 1940 ('the Act'). In view of the above circumstances, the drug stores were seized by the Secretary of the Society and a committee was constituted for detailed enquiry into the irregularities alleged to have been committed by the appellants. In the meanwhile, the Drug Licencing Authority cum Assistant Drug Controller, Jodhpur also issued notices seeking explanation from the respondent Society as to why the drug licence issued in its favour may not 3 be suspended/cancelled. In view of the irregularities committed by the appellants, the respondent Society by separate order dated 03.09.2012 proceeded to terminate the contracts awarded in favour of the appellants and the earnest money deposited was also forfeited. The termination was questioned by the appellants by filing writ petitions before this Court. Reply was filed by the respondents and it was submitted that the appellants cannot be permitted to invoke extra ordinary jurisdiction of the Court for adjudication of a contractual matter involving disputed questions of fact. It was also submitted that the appellants were under an obligation to ensure that no spurious drugs are sold at the stores. Various illegalities and irregularities committed by the appellants while operating the stores were noticed by the committee constituted for the said purpose and in view of the foregoing facts, it was stated that the action cannot be said to be illegal or arbitrary so as to warrant interference by the Court in exercise of its extra ordinary jurisdiction. The learned Single Judge after hearing the parties was of the opinion that the dispute raised falls within the realm of contract involving adjudication of disputed questions of fact and the matter did not suggest any special feature so as to permit the appellants to invoke the extra ordinary jurisdiction of the Court. The learned Single Judge concluded and held thus:- 4
“17. It is settled law that ordinarily, after a contract having been executed between the State or its instrumentality and an individual, the rights and obligations of the parties shall be governed by the terms and conditions of the contract and for any breach thereof, a party aggrieved should avail the remedy of suit before the civil court for specific performance of the contract if the contract is capable being specifically performed or may also sue for damages and therefore, cannot be permitted to invoke the extra ordinary jurisdiction of the Hon'ble Supreme Court or the High Court under Article 32 and 226 respectively. But then, the State and its instrumentalities are under an obligation to act in just, fair and reasonable manner even in contractual matters and therefore, in exceptional cases where the action impugned is apparently found to be suffering from vice of arbitrariness and unreasonableness, an aggrieved party may be granted relief by the High Court or Hon'ble Supreme Court in exercise of the writ jurisdiction.
18. Adverting to the facts of the present case, it is to be noticed that the store operated by the petitioner- Naresh Kumar was inspected by Drug Controller, who found the petitioner indulged in trade of spurious injection. Similarly, petitioner-Arun Kumar was also found selling the Drugs which are not approved and also did not make available the record regarding the sale of various medicines demanded by the Drug Controller. Indisputably, regarding the sale of spurious drugs, a specific notice was issued by the Licensing Authority to the concerned Lifeline Fluid Store and after due consideration of the reply filed on behalf of the petitioner herein, the license issued in favour of M/s. Rajasthan Medical & Drug Store operated at M.G.Hospital was suspended by the Licensing Authority vide order dated 7.8.12. The Drug Controller also proposed cancellation of the licence issued in favour of the Society for operating the Lifeline Store at M.D.M.Hospital, Jodhpur. That apart, the stores operated by the petitioners were inspected by the Inspection Committee constituted by the respondent society which also found that the stores are not being operated by the petitioners in conformity with the terms and conditions of the contract. It is not disputed before this court that as per terms and conditions of the contract, it was responsibility of the Pharmacists operating the Stores to see that no spurious drugs likely to have adverse effects on the patients' health or the drugs not duly approved are purchased and sold at the Lifeline Stores. The petitioners have questioned the correctness of the reports submitted by the Committee,however, it is not in dispute that on account of the petitioner's being found indulged in selling the spurious drugs, the drug license issued in favour of the petitioner society to operate the 5 Rajasthan Medical Drug Store at M.G.Hospital stands suspended and the licence issued to operate the Store at M.D.M.Hospital was also proposed to be suspended/cancelled. Obviously, in absence of the licence, even otherwise, the petitioners cannot be permitted to operate the Drug Stores. Be that as it may, in considered opinion of this court, on the facts and in the circumstances noticed above, the dispute raised in the present petitions exclusively falls within the realm of the contract involving adjudication of the disputed questions of fact and the same does not suggest any special feature so as to permit the petitioners to invoke the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India. The petitioners are always at liberty to avail the appropriate remedy available in terms of the contract or under the general law regarding the grievances raised in the petition.
19. For the aforementioned reasons, the writ petitions fail, the same are hereby dismissed. No order as to costs.” It was contended by learned counsel for the appellants that the learned Single Judge fell in error in refusing to exercise jurisdiction under Article 226 of the Constitution of India, inasmuch as, there were no disputed questions of fact and the violation of principles of natural justice is writ large on the record of the case. It was further submitted that the appellants were not afforded any opportunity of hearing and merely because the issue arose out of contractual obligations, it cannot be said that the jurisdiction under Article 226 of the Constitution of India cannot be invoked in such circumstances. We have considered the submissions made by learned counsel for the appellants. It is well settled that a Court while exercising jurisdiction under Article 226 of the Constitution of India is well within its jurisdiction to examine, even in a contractual matters where the State and/or its instrumentalities are involved, whether they 6 have acted in a just, fair and reasonable manner and if it is found that the action is vitiated on account of arbitrariness and unreasonableness, relief may be granted by the Court, but then the said principle has to yield to another well settled principle that disputed questions of facts cannot be adjudicated by a Court exercising jurisdiction under Article 226 of the constitution of India. Further, mere technical breach, if any, by itself may not be sufficient in a given case, if the other overwhelming facts available on record are sufficient to deny the relief. Hon'ble Supreme Court in Rajasthan Housing Board & Anr. v. G.S. Investments & Anr. : (2007) 1 SCC 477 observed that the Court should exercise its discretionary power under Article 226 of the Constitution with great care and caution and should exercise it only in furtherance of public interest. The Court should always keep the larger public interest in mind in order to decide whether it should interfere with the decision of the authority. Having heard the learned counsel for the appellants and after going through the material placed on record and the order passed by the learned Single Judge, we are of the firm opinion that the learned Single Judge was justified in refusing to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India in the facts and circumstances of the case. From the record of the case, it is apparent that appellant Naresh Kumar was found indulging in trade of spurious injections and appellant Arun Kumar was found selling the drugs, which 7 were not approved and failed to produce the record before the Drug Controller, which led to suspension of the licence by the licencing authority and the licencing authority also proposed cancellation of licence issued in favour of the respondent Society. The inspection committee constituted by the respondent Society also found serious irregularities in the operation of the stores and took into account the fact that appellant Arun Kumar was arrested on account of his suspected involvement in business of spurious drugs. Further, as per terms and conditions of the agreement, the appellants alone were responsible for operation of the store and were consequently responsible for ensuring that no spurious drugs are sold at the said store and/or no drug which is not approved in terms of the contract was sold at the said store. An attempt has been made by the appellants to question the findings recorded by the committee of the respondent Society and the fact that no opportunity of hearing was granted to them before passing of the order impugned. However, it is not in dispute that on account of the conduct of the appellants, the drug licence, issued in favour of the respondent Society in relation to the drug store being exclusively managed by the appellants, was suspended by the Drug Controller under the provisions of the Act and a notice for termination of the drug licence was also issued. The appellants were managing/operating respective drug stores being provided by the respondent Medicare Relief Society 8 at the two largest hospitals of Western Rajasthan involving huge turn over and unsuspecting urban/rural masses and the fact that they were found prima facie involved in selling of spurious drugs and/or drugs which were not approved by the committee in this regard, even otherwise, no case for exercise of extra ordinary jurisdiction is made out by the appellants, keeping in view larger public interest, as held by Hon'ble Supreme Court (supra). Further, admittedly the appellants were seeking enforcement of the terms and conditions of the contract, which involved several disputed questions of fact, regarding which, the appellants admittedly have alternate remedy available under the general law for redressal of their grievances. In view of the above discussion, we are unable to find any error in the order passed by the learned Single Judge in refusing to exercise jurisdiction under Article 226 of the Constitution of India in the facts and circumstances of the present appeals. Consequently, there is no substance in the appeals and the same are, therefore, dismissed in limine. The Registry is directed to place copy of this judgment on record of each connected file. (ARUN BHANSALI),J.
(NARENDRA KUMAR JAIN),J.
A.K. Chouhan 83 & 113