M/s. Himalya Pharmacy vs Director Health Services

Bakhshi Ishwar Singh, J.—This is a revision u/s 104 of the Jammu and Kashmir Constitution against the judgment dated 23-12-1971

passed by the District Judge Jammu whereby he dismissed the appeal of the petitioner.

The facts as alleged in this case by the petitioner are that he is the proprietor of the petitioner firm which carries on business of manufacture and

re-packing of drugs at Gandhinagar Jammu. The Drug Inspector inspected his works and found certain violation of rules. He took some samples

and got them examined from the Drug analyst. The drugs were found substandard. Notice was issued to the petitioner to show cause why action

should not be taken against him under rules. After hearing the petitioner, respondent passed the impugned order on 22-9-1971 whereby he

suspended the Drug manufacturing licences Nos. 9 and 10 and the Drug re-packing licence No. 8 for a period of 90 days from 22 September

1971. Aggrieved by this order the petitioner filed an appeal under Rule 90 (2) of the J & K Drug Rules 1962 (hereinafter called the Rules). This

appeal having been dismissed the petitioner filed a writ petition in this court. The said writ petition was dismissed in limine and now the present

petition has been filed.

Mr. Bakshi appearing for the respondent has raised two preliminary objections firstly that the respondent is not a Court and as such no revision

is competent before the High Court. Secondly previous writ petition on the same facts having been dismissed the present petition is barred by res

judicata.

In order to meet these objections Mr. Gupta appearing for the petitioner contended that respondent had to perform quasi judicial functions in

deciding whether the licence should be suspended or not. He had to afford opportunity to the petitioner, to hear him and then decide. According to

rule 90 (2) of the rules the District Judge is appointed as the appellate authority. The District Judge being the subordinate and under the

superintendence of the High Court a petition u/s 104 of the J&K Constitution is competent. He relied on AIR 1964 Puni 242 and AIR 1967 Pat

153.

I have considered the contentions of both sides and I agree with Mr. Gupta that the present petition is maintainable. The authorities relied on by

Mr. Gupta are under the Workmen's Compensation Act and the Bihar Shops and Establishments Act respectively. In both these cases competent

authorities were not subordinate to the High Court but certainly under the superintendence of the High Court. So Article 227 was applied. The

revision petition although filed u/s 115 C. P. C. was treated as petition under Article 227. There are other similar authorities also under different

Acts which need not be multiplied. I would like to cite a Division Bench decision of our own High Court, Raj v. Mst. Batul Begum (1951) 9 J. K.

LR 69. This was a case under the Restoration of Property Ordinance (XXIX) of 2004 (Samvat). Under this Ordinance a Magistrate was

authorised to hold an enquiry and restore the property to its owner. Only one revision was provided under the Ordinance which could be filed

before the Sessions Judge. The second revision having been filed before the High Court the question for consideration was whether a revision

under the Criminal Procedure Code was competent. It was held that the Magistrate and the Sessions Judge being under the superintendence of the

High Court the revision was competent.

For the above reasons I hold that Petition u/s 104 J & K Constitution is competent.

So far as the second preliminary objection is concerned I called from the record writ petition No. 273 of 1972 filed by the petitioner in this

Court which was dismissed on 10-1-1972. All the allegations made therein are similar to the present petition. This Court did not find any ground to

interfere in the order Passed by the respondent and affirmed in appeal by the District Judge. The scope of a petition u/s 104 is not much too

different than a writ petition. All the grounds now raised in this Petition will be deemed to have been decided in the writ petition and this petition

will be barred by res judicata. In support of this view, Mst. Chandra Kali Vs. Sitaram and Others, and AIR 1972 Guj 153 can be cited. In the first

authority following Sheodan Singh Vs. Smt. Daryao Kunwar, it was held that where a writ Petition against a judgment decided on merits is

dismissed even on technical ground of non-service on opposite party and if the dismissal results in confirming the judgment, the dismissal operates

as res judicata. In the second decision doctrine of constructive res judicata was applied.

In view of the above the present revision petition will be deemed to be barred by res judicata.

As the parties were also heard on merits, so having considered all the contentions of the petitioner I do not find any illegality or lack of

jurisdiction for which any interference in the order of the respondent is called for. Notices with regard to all the violations were properly issued to

the petitioner and after hearing him the order for suspension of the licence was passed.

For the foregoing reasons I do not find any force in this petition which is dismissed but under the circumstances of the case I leave the Parties

to bear their own costs.