Tripura High Court
(C) Smt. Debapriya Saha vs The State Of Tripura on 27 January, 2017
Equivalent citations: AIR 2017 TRIPURA 41
Bench: Chief Justice, S.C. Das
THE HIGH COURT OF TRIPURA
AGARTALA
RFA NO.23/2012
1.(a) Smt. Jayashree Saha,
W/O. Lt. Nirmal Saha.
1.(b) Smt. Debdatta Saha,
W/O. Sri Tamal Saha.
--- Both are residents of
Shishukunja Road, Joynagar,
Agartala, West Tripura.
1.(c) Smt. Debapriya Saha,
W/O. Sri Rajib Podder,
38/1B, Ultadanga Main Road,
P.S.-Bidhannagar, Kolkata-700067,
West Bengal.
..... Plaintiff-Appellants.
-: Vrs. :-
1. The State of Tripura,
To be represented by the Chief Secretary,
Govt. of Tripura,
New Capital Complex, P.S. East Agartala,
District Tripura West.
2. The Principal Secretary,
Department of Health & Family Welfare,
Govt. of Tripura,
New Capital Complex, P.S. East Agartala,
District Tripura West.
3. The Deputy Drug Controller & Licensing Authority,
O/O the Deputy Drug Controller,
Gurkhabasti Office Complex,
P.S. West Agartala,
District Tripura West.
4. Sri M.K. Paul,
Branch Officer (Procurement),
National Rural Health Mission,
3rd Floor, Pandit Nehru Complex,
Gurkhabasti Office Complex,
P.S. West Agartala,
District Tripura West.
..... Defendant-Respondents.
BEFORE HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE S.C. DAS Counsel for the appellants : Mr. D.R. Choudhury, Advocate, Mr. D. Deb, Advocate.
Counsel for the respondents : Mr. G.S. Bhattacharjee, Advocate. RFA NO.23/2012 Page 1 of 8
Date of hearing : 04-01-2017.
Date of Judgment & Order : 27-01-2017
JUDGMENT & ORDER
[T. Vaiphei, CJ]
This appeal is directed against the judgment dated 24-7-2012 passed by the learned Civil Judge (Senior Division), Court No. 1, West Tripura, Agartala in Money Suit No. 65 of 2008 dismissing the suit filed by the appellant.
2. The facts giving rise to the appeal may be briefly noticed at the outset. The appellant is the Proprietor of S.B. Drug Distributor situated at 71 Hari Ganga Basak Road, Agartala with Drug License No. 8097 of 1987 in Form No. 20-B and another Drug License No. 8098 of 1987 in Form No. 21-B for selling, stocking, exhibiting or distributing the whole sale drugs specified in the said licenses. While carrying on the whole sale drug business as per the licenses, the Deputy Drugs Controller and Licensing Authority (respondent 3 herein) vide his letter Memo No. F.1/AGT-155/DL/92/10382-384 informed the appellant about his proposal to take action against the said two licenses under Rule 66(1) of the Drugs and Cosmetics Act Rules, 1940 ("the Rules"
for short) for violation of the conditions of the licenses for stocking and selling Homeopathic medicines and for not maintaining the Inspection Book in Form No. 35. In response to the said letter, the appellant in writing explained in detail his position whereafter the respondent 3 having been satisfied with his reply allowed him to run his business by renewal his licenses. However, the respondent 3, all of a sudden, by his letter dated 14- 5-2007 cancelled the said two licenses for gross violation of the Drugs and Cosmetics Act, 1940 ("the Act" for short). It was alleged by the respondent 3 that no reply was received by him in response to his letter Memo No. F.1/AGT-155/DL/92/10382-38. The reply was actually received by respondent 3. In fact, no reminder allegedly sent by him was ever received RFA NO.23/2012 Page 2 of 8 by the appellant. It was contended by the appellant that he was denied principles of natural justice before taking such action having penal and civil consequences.
3. The appellant then preferred an appeal against the impugned order before the appellate authority, but the same was illegally disposed on 31-7- 2007 by holding that he had replied to the show cause. This then prompted him to approach this Court, which by the order dated 6-8-2007 directed the appellate authority to dispose the appeal which was pending since 25-6- 2007 by laying down the guidelines for disposal of the appeal. The appeal was ultimately disposed on 31-7-2007 without granting him any relief. This again prompted him to file another writ petition before this Court, which again quashed the order and directed the appellant to file a fresh appeal. By the order dated 28-8-2008, the Commissioner, Health and Family Welfare Department, Govt. of Tripura restored his licenses. It is the contention of the appellant that wide publicity was made about the cancellation of his licenses at the instance of the respondent No. 3 for which he suffered loss of reputation, fame and goodwill. As a result of cancellation of his licenses, his business was closed from 14-5-2007 to 29-8-2008 and huge quantity of stocks of medicines kept in his shop got expired which resulted in a loss of ₹5,00,000/- to him. Even when his business was closed due to cancellation of his licenses, he had to pay house rent of ₹1,300/- per month without doing any business. He, therefore, claimed a compensation to the order of ₹50,00,000/- from the respondents. The suit was duly instituted after issuing a notice under Section 80, CPC stating that the cause of action arose on 14-5-2007.
4. The suit was contested by the State-respondents and filed their written statement. It was stated in the written statement that the licenses of the appellant renewed on 2-8-2002 for a period of five years till 1-8-2007. During the visit of the business premise of the appellant by Doctor Narayan RFA NO.23/2012 Page 3 of 8 Goswami and Ajoy Chakraborty (both Inspecting Officers) on 4-9-2003, they found a stock of homeopathic medicines and also noticed that such medicines were sold against his said licenses with cash memo; he did not even maintain the inspection book in Form No. 35. This was how the show cause notice under rule 66(1) of the Rules was issued upon him on 8-1-2004 by respondent 3 by clearly mentioning therein that if no reply was submitted by him within 15 days, ex-parte order would be passed. No reply was received. Even a reminder under registered post was issued to him on 1-2- 2006 directing him to submit his reply by 15-2-2006, but no reply was received. When the appellant did not reply, his licenses were cancelled.
5. It is the case of the respondents that even after cancelling his licenses, the appellant did not seek in writing the permission of the respondents to dispose of the drugs he had in his possession. Ultimately, the appellate authority heard the appellant in the appeal and restored his licenses, but after confirming the violation of the terms and conditions of the licenses and the offences committed by him and after holding that the punishment was extremely harsh, excessive and disproportionate to the offences committed by him. The appellant, however, admitted his guilt before the appellate authority. It is was asserted by the respondents that whenever a license is cancelled or suspended, a press release is issued for the notice of the public; a press release about the cancellation of the licenses of the appellant was accordingly issued. The appellant had the opportunity to dispose of the stock held by him in the event of cancellation of his licenses as per Rule 66A of the Rules, but he did not avail of this opportunity. The appellant is, therefore, not entitled to any compensation. These are the sum and substance of the case of the respondents.
6. After hearing the parties, the trial court framed the following issues:
a) Whether the suit is maintainable?
RFA NO.23/2012 Page 4 of 8
b) Whether the plaintiff is entitled to get a decree for ₹50,00,000/- in his favor with interest at the rate of 9% per annum to be realized against the defendants jointly or severally as a compensation due to loss and damage suffered by the defendants due to their illegal action?
7. Two witnesses were examined by the appellant to prove his case and were also cross-examined by the respondents. At the conclusion of the trial, the trial court passed the impugned judgment dismissing the suit. The trial court found that the appellant did not reply to the show cause notice dated 29-12-2003 and held that when no reply was given by him, the authority had the right to cancel or suspend his licenses. The trial court also recorded the finding that in the inspection report vide Ext. A, which was signed by the appellant as a token, some stock of vigour 1000 D No. RV-114 D/M-2/03 and Vigour-2000 V. No. RL-129 D/M-6/03 both in 30 ml contents and manufactured by REPL, Federal, A.K. Road, 801505 (India) marketed by Russie India S. Parijat CHS, Sagar Tower Lane Jogeswari (W), Mumbai- 400102, which are homeopathic medicines as printed in the container of both on the bottle and covering carton packet manufactured and printed on the label being 87/99 were found in the premises along with other saleable drugs. The trial court further found that the appellant purchased the said medicines against delivery challan 522, dated 17-7-2003 and challan 536 dated 27-7-2003 of Parlina Distributors, Japaigog, Guwahati-5 and that these medicines were sold against the cash memo maintained against DL. No. 8097 and 8098, etc. According to the trial court, based on the said inspection report, if the show cause notice issued by the licensing authority under Rule 66(1) of the Rules for reply within 15 days was not replied by the appellant, the authority had the right to cancel or suspend or suspend his licenses. The trial court also took notice of the observation of the appellate authority "Shri Saha also submitted that he was not aware that homeopathic medicines could not be sold against the license held by him. In fact, this point is not tenable as ignorance of law is no excuse. He stopped RFA NO.23/2012 Page 5 of 8 selling homeopathic medicines immediately after he received the show cause notice on 08-1-2004 while the licenses were cancelled in 2007." In our opinion, though the trial court did not say so in many words, what is implied by it is that the appellant did violate the terms and conditions of drug licenses by selling homeopathic medicines, for which his licenses were revoked. In so far as the claim made by the appellant for a compensation of ₹5,00,000/- for expiry of medicines which were in stock at the time of cancellation of his licenses, the trial court took the view that the appellant himself was responsible for the same inasmuch as he did not take advantage of the right available to him under Rule 66-A of the Rules for disposal of those drugs in his possession. Thus, the trial court held that as the appellant did not exercise such option, he could not blame the respondents for his ignorance. It was on the basis of such findings that the trial court dismissed the suit.
8. We have elaborately recorded the findings of the trial court for the simple reason that we do not find any infirmity therein. "Misfeasance in public office" has been defined as malicious abuse of power, maladministration and unlawful acts causing injury by public officers. Even when an administrative order is successfully challenged as invalid or void, it does not necessarily follow that the officer or authority passing the order can be sued in tort. The liability in tort will arise only if the conditions for liability of the tort of misfeasance in public are satisfied. The legal position for award of damages is lucidly explained by the Apex Court in Common Cause, a Registered Society v. Union of India, (1999) 6 SCC 667. This is what it said:
"130. In a suit for damages under the law of tort, the court awards pecuniary compensation after it is proved that the defendant committed a wrongful act. In such cases, the court usually has to decide three questions:
RFA NO.23/2012 Page 6 of 8
1. Was the damage alleged caused by the defendant's wrongful act?
2. Was it remote?
3. What is the monetary compensation for the damage?
131. These elements imply that there has to be always a plaintiff who had suffered loss on account of wrongful act of the defendant. If the damage caused to the plaintiff is directly referable to the wrongful act of the defendant, the plaintiff becomes entitled to damages. How the damages would be calculated, what factors would be taken into consideration and what arithmetical process would be adopted would depend upon the facts and circumstances of each case."
9. From the paragraph extracted above, it becomes obvious that the first and foremost condition for claiming compensation is that the defendant must have committed a wrongful act against the plaintiff. Unless wrongful act is committed by the defendant, the plaintiff cannot seek compensation. In the instant case, as already noticed, when the respondents cancelled the drug licenses of the appellant for proven violation of the terms and conditions of the licenses, namely, stocking and selling Homeopathic medicines, the respondents acted within the law and did not commit any wrongful act against the appellant. It is not the case of the appellant that he did not violate the terms and conditions of the licenses issued to him. It is rather his case that he was not aware of the fact that Homeopathic medicines could not be sold against the licenses held by him. As pharmacist, he is required to know the terms and conditions of his licenses. In any case, ignorance of law is no excuse. His licenses were subsequently restored by the respondent authorities not because he did not violate the terms and conditions of the licenses but because the punishment was found to be excessive and highly disproportionate to the offence committed by him. In the view that we have taken, we do not find any infirmity in the dismissal of the suit by the trial court.
RFA NO.23/2012 Page 7 of 8
10. The result of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. However, on the facts and in the circumstances, we direct the parties to bear their respective costs.
JUDGE CHIEF JUSTICE
RFA NO.23/2012 Page 8 of 8