Kathua Cooperative Marketing Society vs State And Others on 26 July, 2022

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Jammu & Kashmir High Court

Kathua Cooperative Marketing Society vs State And Others on 26 July, 2022

The petitioner Kathua Co-operative Marketing Society Ltd. Kathua through its Manager has preferred this writ petition for the relief of upsetting the Order no. MS/DHK/1076-82 dated 08.07.2013 issued by the respondent no. 3 i.e. the Medical Superintendent District Hospital, Kathua.

Said Order no. MS/DHK/1076-82 dated 08.07.2013 passed by the respondent no. 3 i.e. the Medical Superintendent District Hospital, Kathua -(2)- OWP No. 969/2013 required vacation of shop held by the petitioner located in the premises of new District Hospital Kathua.

The factual narrative set up in the writ petition is that the petitioner society had been running a medical shop in the premises of old District Hospital Kathua. Said medical shop is said to have been opened by the petitioner Society by use of its own funds in the year 1984. It is stated that upon shifting of the old District Hospital from its original premises to a new premises, the petitioner society also moved its shop establishment and constructed a shop in the premises of new District Hospital Kathua in the year 1997-98 and for construction expenses of the said medical shop an financial assistance of Rs. 1.12 lac was approved from the district plan after an administrative approval by the Registrar Cooperative Societies Jammu and Kashmir vide approval no. 614-17 dated 31.12.1996. As per claim set up in the writ petition, it was the District Development Commissioner Kathua, who had approved the land for the shop in the new District Hospital premises and the site was earmarked by the Director Health Services, Jammu alongwith a Committee comprising of CMO Kathua, Superintendent District Hospital Kathua, General Manager, JKPCC and few other officials in September, 1997. The construction of the shop structure is claimed to have been done by the petitioner from its own end.

While on one hand the narrative in the writ petition is that the shop structure was raised by the petitioner society at its own level by use of its -(3)- OWP No. 969/2013 resources, on the other hand the petitioner society concedes that the use and occupation of the same very shop by the petitioner society is on the basis of payment of monthly rent and which used to be paid through cheque mode but without pleading any further factual details in this regard.

The purported cause of action for the petitioner society to approach this Court with the present writ petition is said to have kicked off at the first instance by issuance of a notice by the respondent no. 3, i.e. Medical Superintendent, District Hospital Kathua bearing no. MS/DHK/2990-93 dated 07.12.2012 calling upon the petitioner society to vacate the shop as the shop premises was required for fresh allotment by auction mode as mandated by the Government Order no. 494-HME of 2008 dated 17.06.2008 laying revised policy for the allotment of sites/structures for use as fair price medical shops/canteens/STD booths at the health institutions of the Health & Medical Education Department.

Confronted with this notice of vacation so issued by respondent no. 3, the petitioner society had sought the intervention of the Registrar Cooperative Societies, Jammu & Kashmir, who vide communication no. RCS/SS/MS-J/26/7034-39 dated 14.12.2012 registered a request to the respondent no. 3 i.e. the Medical Superintendent, District Hospital Kathua to revisit the issue and allow the operation of the Cooperative Medical Shop with the petitioner society. Since the said communication of the Registrar Cooperative Society, Jammu & Kashmir, Jammu met no positive outcome as -(4)- OWP No. 969/2013 the respondent no. 3 i.e. the Medical Superintendent, District Hospital Kathua came forward with an issuance of impugned Order no. MS/DHK/1076-82 dated 08.07.2013 calling upon the petitioner society to vacate the shop for the purpose of facilitating the course of action as mandated vide Government Order no. 494-HME of 2008 dated 17.06.2008, so the petitioner laid the present writ petition wherein the petitioner sought to link the continuing use of its shop in reference with the employment related aspect of the employees working there at under the employment of the petitioner society.

The respondents in the objections have adverted to the fact that the petitioner society is literally making free use of the shop premises without even honouring its obligation of regular payment of rent to the hospital authorities with effect from 1985 to 2015 and that there is even the arrears of rent payable by the petitioner society to the respondents. The respondents, in very categoric terms, have asserted that the shop structure was not constructed by the petitioner society and that the said shop came up as a part of the plan of the District Hospital premises. The respondents have gone to the extent of disputing the alleged claim of the petitioner society that a fund of Rs. 1.12 lac was kept in the District plan in the concerned financial year and any said amount was ever released in favour of the petitioner society. The respondents have submitted that the Registrar Cooperative Society, Jammu & Kashmir, Jammu is a non-entity in the matter of administration of hospital premises and use of its facilities including the shop in reference. The respondents have come forward with a disclosure that in terms of Government Order no. 494-HME of -(5)- OWP No. 969/2013 2008 dated 17.06.2008 the respondents had come to put the shop in reference to an auction exercise which resulted in fetching a bid of an annual premium of an amount of Rs. 35 lac from the qualified bidder to whom the allotment of the shop in reference was intended to take place at the monthly rent of Rs. 24,000/-. The entire exercise got held up because of the intervention of the present writ petition in which vide an interim order dated 11.07.2013, the operation of the eviction order against the petitioner society was stayed resulting in status-quo stretching itself all along during the pending of the present writ petition.

From the pleadings of the parties and the documents accompanying therewith, the factual scenario which emerges is that the shop located at the premises of new District Hospital Kathua has been in the use and occupation of the petitioner society for running the medical shop. Under what legal arrangement the said shop came to be held by the petitioner society is just a matter of guess and speculation as nothing has been mentioned from either side as to how the use and occupation of the shop in reference by the petitioner society originated so as to count as a valid acquisition of the shop in reference. The tone and tenor of the averments in the writ petition is as if the petitioner society has become the owner of the shop structure and as such not amenable to any eviction order from the respondents' end and that the said shop has to be in the perpetual use and occupation of the petitioner society. The situation so conceived by the petitioner society is beyond acceptance by any stretch of legal claim. In fact, the petitioner society itself is conscious of the belief that it -(6)- OWP No. 969/2013 cannot lay a claim of its ownership qua the shop in reference so it has also taken the plea of being in use and occupation of the said shop on rental basis from the respondents end. However, even on this count also there is no supply of facts in the present writ petition as to how much has been the rent of the shop being paid by the petitioner society to the respondents, the period from which said rent has been fixed and how the same was being paid by the petitioner society. Thus, it is just by a confused mix of so-called factual references that the petitioner society is trying to justify the use and occupation of the shop in reference.

The most glaring and concerning aspect of this case is that the petitioner society has not at all whispered the fact as to which of its member is the holder of the drug licence on the basis of which this fair price medicine shop has been run by it at the shop in reference. It cannot not be accepted by any stretch of claim that for running a medical shop for the purpose of retail sale of drugs and medicines, the provisions of Drugs and Cosmetics Act exempt a cooperative society from having a due licence from the Drugs Controlling/Licencing Authority.

This Court is well within its right to make a very safe and inviting assumption that, in fact, in the name of the petitioner society, the use and occupation of the shop in reference has been outsourced to a person who is having a drug licence for the purpose of retail sale of drugs and medicines and that is how this arrangement has been serving both the petitioner and the actual -(7)- OWP No. 969/2013 owner of the shop in reference. It is very strange that the administration of the District Hospital Kathua at no point of time ever bothered to examine the status of the person actually running the shop in reference for the purpose of retail sale of drugs and medicines thereat and his actual relationship with the petitioner society. It is the clear case of a symbiotic relationship between the petitioner society and the actual user of the shop in reference going on with the passive connivance of the administration of the District Hospital Kathua.

This Court is surely not meaning to hold that a Cooperative Society cannot have in its fold the field of business activity for the sale and supply of drugs and medicines but for that purpose a Cooperative Society has to have its relationship disclosed vis-à-vis the person in whose name the given Cooperative Society will venture to engage itself in a business activity in the field of sale and supply of medicines and drugs for the purpose of serving the collective cooperative cause of its members. The present case is far away from that scenario. In fact the present case is nothing but an act of mal- administration on the part of the then authorities of the District Hospital Kathua enabling the petitioner society to let its name being retained for benami sake for the purpose of business interest of the person in actual use and occupation of the shop in reference.

This Court sees the intent and purpose governing the issuance of Government Order no. 494-HME of 2008 dated 17.06.2008 and that takes care of even entertaining the bidders for fair price medical shop at the premises of -(8)- OWP No. 969/2013 the health institutions at State/Divisional/District/Sub-District/ Block hospitals. In case if the petitioner society is keen to run a medical fair shop then it can also join the bidding process as mandated under Government Order no. 494- HME of 2008 dated 17.06.2008 and earn the allotment by bidding with the other bidders.

The petitioner has made a very long unaccountable use of the shop in reference and perhaps the said state of free use and occupation had come to a saturation point which resulted in issuance of the impugned order against it. There is no legality per-se attending the impugned order both in terms of the basis upon which it has been issued by and also the person/authority by whom the same has been issued. The petitioner society has least bothered to make any whisper on that count in its entire writ petition and as such this writ petition is held to be misconceived and meritless which deserves to be dismissed and warrants eviction of the petitioner society from the shop in reference by a positive action on the part of the respondents. Let the eviction of the petitioner society from the shop in reference proceed in accordance with the Order no. MS/DHK/1076-82 dated 08.07.2013 issued by the respondent no. 3 .

Announced.

(Rahul Bharti) Judge Jammu 26.07.2022 Muneesh Whether the order is speaking : Yes / No Whether the order is reportable: Yes / No

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Jammu & Kashmir High Court