Nur Abbas and 10 Ors v. The Union of India and 9 Ors

ORDER Date : 25.10.2024

Heard Mr. M.U. Mahmud, learned counsel for the petitioners; Mr. D.J. Das, learned Central Government Counsel [CGC] for the respondent no. 1; Ms. S. Sarma, learned Standing Counsel, Health & Family Welfare Department for the respondent nos. 2, 3, 5, 6 & 7; and Ms. M. Barman, learned Junior Government Advocate, Assam for the respondent no. 4.

¶2The petitioners, 11 in nos., have joined together to institute this writ petition under Article 226 of the Constitution of India and have sought to invoke the extra-ordinary and discretionary jurisdiction of this Court seeking a direction to cancel the licence issued for setting up a Janaushadhi Kendra [Pharmacy] under the Pradhan Mantri Bhartiya Janaushadhi Pariyojana [PMBJP] Scheme, framed by the Department of Pharmaceuticals, Ministry of Chemicals & Fertilizers, Government of India [GoI].

¶3From the case papers appended to the writ petition, it has emerged that with an objective of making quality generic medicines available at affordable prices to all, the Pradhan Mantri Bhartiya Janaushadhi Pariyojana [PMBJP] Scheme was launched by the Department of Pharmaceuticals, Ministry of Chemicals & Fertilizers, Government of India [GoI] in November, 2008. Under the PMBJP Scheme, dedicated outlets known as 'Janaushadhi Kendras' are to be opened to provide generic medicines at affordable prices. The PMBJP Scheme is implemented by a society registered under the Societies Registration Act, namely, the Pharma & Medical Bureau of India [PMBI] [erstwhile Bureau of Pharma PSUs of India (BPPI)]. The Scheme is operated by Government agencies as well as by the private entrepreneurs. The provision for one-time incentive of Rs. 2,00,000/- is made under the PMBJP Scheme for furniture & fixture and computer & printers to the Janaushadhi Kendras opened in North-Eastern States and other areas, mentioned in the PMBJP Scheme. Prices of the Jan Aushadhi medicines are 50% to 90% less than that of branded medicines prices in the open market and the medicines are procured only from the World Health Organization - Good Manufacturing Practice [WHO-GMP] certified suppliers for ensuring the quality of the products. Each batch of drug is tested at laboratories Page No. 6/7 accredited by National Accreditation Board for Testing and Calibration Laboratories [NABL] for ensuring best quality. As per the PMBJP Scheme, the State Health and associated Government authorities have been requested on regular basis to open Janaushadhi Kendras in various Government Hospitals and associated premises by providing rent free spaces. The PMBJK Scheme operators for Janaushadhi Kendras are located in Government Hospitals/Medical College premises and the sites are to be selected by the State Government.

¶4The petitioners have projected that they are owners of various pharmaceuticals/pharmacies located outside the campus of the Goalpara Civil Hospital. No documents, however, are found enclosed with the writ petition to show that the petitioners are owners of pharmacies holding licences.

¶5On 26.09.2024, a Janaushadhi Kendra has been opened within the premises of the Goalpara Civil Hospital near the main gate. As a result of opening of the Janaushadhi Kendra within the premises of the Goalpara Civil Hospital, almost all the patients have started purchasing the generic medicines from the said Janaushadhi Kendra. It is the grievance of the petitioners that as a result of opening of the Janaushadhi Kendra for selling generic medicines which is at a price 50% to 90% lesser than the branded medicines, the sale of medicines in the pharmacies owned by the petitioners have gone down drastically. It is the further case of the petitioners that the two partners of the Firm, that is, the respondent nos. 9 and 10, who have been granted the licence to set up the Janaushadhi Kendra within the premises of the Goalpara Civil Hospital have engaged persons to inform the needy persons to purchase medicines from the said Janaushadhi Kendra opened within the premises of the Goalpara Civil Hospital. The petitioners have further averred that in the process, the respondent no. 9 and the respondent no. 10 have been indulging themselves in selling medicines other than the generic medicines as they are owners of another pharmacy located in another location in the town of Goalpara.

¶6In so far as the first grievance of the petitioners is concerned, that due to opening of the Janaushadhi Kendra within the premises of the Goalpara Civil Hospital the pharmacies owned by the petitioners have caused pecuniary harm and loss of business from competition, the same cannot be espoused as a cause of action to maintain a writ petition under Article 226 of the Constitution of India. It cannot be said that the petitioners have been denied or deprived of any Page No. 7/7 legal right to maintain such a writ petition and the petitioners do not fall in the category of 'aggrieved persons'. It cannot be said that the petitioners have sustained injury to any of their legally protected interests. In this connection, to the decision in Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and others, reported in [1976] 1 SCC 671, can be appropriately referred to.

¶7In so far as the grievance of the petitioner that the respondent nos. 9 and 10 through the Janaushadhi Kendra [the respondent no. 8] have resorted to irregularities by selling medicines other than generic medicines, it is found that the petitioners have not approached the appropriate authority, that is, the Bureau of Pharma Public Sector Undertakings of India, set up by the Department of Pharmaceuticals, Ministry of Chemicals & Fertilizers, Government of India [GoI], before approaching this Court. Without ventilating their such grievance before the appropriate authority, who being the licensing authority also has the power and authority to cancel the licence, the petitioners could not have approached this Court to invoke the extra-ordinary and discretionary jurisdiction under Article 226 of the Constitution of India. Seeking the reliefs, mentioned above, as such kind of complaint would necessitate a fact-finding enquiry.

¶8In view of the above fact situation, this writ petition is found not maintainable to be entertained and the same is accordingly dismissed.

JUDGE Comparing Assistant

PageoNo.o1/7 GAHC010212372024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/5279/2024o NURoABBASoANDo10oORSo S/O-oLATEoHAJIoABDULoHUSSAIN,o VILLAGE-oMILANNAGARoTOWN,o P.O.-oBALADMARI,o P.S.oANDoDIST.-oGOALPARA,oASSAM,o PINoCODE-o783101. 2:oHARANoKR.oSARKAR oS/O-oLATEoKHAGENDRAoNATHoSARKARo VILLAGE-oKALAPANIoPART-1o P.O.-oBALBALAo P.S.-oAGIAo DIST.-oGOALPARA ASSAM PIN-o783120. 3:oRAKESHoSAHA oS/O-oJAYANTAoSAHAo VILLAGE-oBAKIPURo P.O.-oKRISHNAIo P.S.-oKRISHNAIo DIST.-oGOALPARA ASSAMo PIN-o783126. 4:oASHRAFULoISLAMoMOLLIK oS/O-oLATEoANOWARoUZZAMANoMOLLIKo VILLAGE-oAMBARIo P.O.oAMBARIoBAZARo P.S.-oBAGUANo DIST.-oGOALPARA ASSAMo PIN-o783129. PageoNo.o2/7 5:oSAJIDURoRAHMAN oS/O-oMOKIBARoRAHMAN oP.O.oANDoP.S.-oGOALPARA oDIST.-oGOALPARA oASSAM oPIN-o783101. 6:oKIRANoCHANDRAoRABHA oS/O-oLOHESORoRABHA oVILLAGE-oBARDAK oP.O.-oSUWARMARI oP.S.-oAGIA oDIST.-oGOALPARA oASSAM oPIN-o783201. 7:oHOBIBORoRAHMAN oS/O-oNABAHARoALI oVILLAGE-oBORKANDA oP.O.-oDOLGUMA oP.S.-oMATIA oDIST.-oGOALPARA oASSAM.o oPIN-o783125. 8:oAMANULoHOQUE oS/O-oHABIBARoRAHMAN oVILLAGE-oKHOLAIPARA oP.O.oANDoP.S.oMATIA oDIST.-oGOALPARA oASSAM oPIN-o783125. 9:oLUTFORoRAHMAN oS/O-oLATEoSOFIRUDDINoAHMED oVILLAGE-oSARDARPARA oP.O.-oDHAIGAON oP.S.-oKRISHNAI oDIST.-oGOALPARA oASSAM oPIN-o783126. 10:oMUZAMMELoHOQUE oS/O-oNIDANoALI oVILL-oPAHANISINGPARA oP.O.-oDUBAPARA oP.S.-oMORNAI oDIST.-oGOALPARA PageoNo.o3/7 oASSAM oPIN-o783101. 11:oJAHANGIRoALOMoSIKDAR oS/O-oLATEoSATTARoALIoSIKDAR oVILL-oBALADMARIoTOWN oP.O.-oBALADMARI oP.S.oANDoDIST.-oGOALPARA oASSAM oPIN-o783121o VERSUSo THEoUNIONoOFoINDIAoANDo9oORSo REPRESENTEDoBYoTHEoSECRETARY,o MINISTRYoOFoCHEMICALSoANDoFERTILIZERS,o GOVERNMENToOFoINDIA,o NEWoDELHI,oPIN-o110001. 2:THEoSTATEoOFoASSAM oREPRESENTEDoBYoTHEoSECRETARYo oFAMILYoANDoHEALTHoWELFAREoDEPARTMENT oGOVERNMENToOFoASSAM oDISPUR oGUWAHATI-6. 3:THEoDIRECTORoOFoHEALTHoSERVICES oHENGRABARI oGUWAHATI-36. 4:THEoDISTRICToCOMMISSIONER oGOALPARA oASSAM oPIN-o783121. 5:THEoADDITIONALoDISTRICToCOMMISSIONER oIN-CHARGEoHEALTHoSERVICES oGOALPARA oASSAM oPIN-o783121. 6:JOINToDIRECTORoOFoHEALTHoSERVICES oGOALPARA oASSAM oPIN-o783101. 7:THEoDRUGSoINSPECTOR oGOALPARA Page No. 4/7 ASSAM PIN- 783101. 8:JANAUSHADHI KENDRA GOALPARA CIVIL HOSPITAL GOALPARA ASSAM REPRESENTED BY SRI DEBU DEY OF WARD NO. 5 TILAPARA GOALPARA PRESENTLY RESIDING AT JANAUSHADHI KENDRA GOALPARA CIVIL HOSPITAL GOALPARA ASSAM PIN- 783101. 9:DEBU DEY PROPRIETOR OF JANAUSHADHI KENDRA GOALPARA CIVIL HOSPITAL RESIDENT OF WARD NO. 5 TILAPARA GOALPARA PRESENTLY RESIDING AT JANAUSHADHI KENDRA GOALPARA CIVIL HOSPITAL GOALPARA ASSAM PIN- 783101. 10:ABHIJIT GHOSH PARTNER OF JANAUSHADHI KENDRA GOALPARA CIVIL HOSPITAL GOALPARA ASSAM PIN- 783101 Advocate for the Petitioner : MR. M U MAHMUD, MS. B CHETIA,MS. D BORA,MR S ISLAM,MRS. M SAIKIA,MR S H MAHMUD Advocate for the Respondent : DY.S.G.I., SC, HEALTH,GA, ASSAM Page No. 5/7 BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY