2004 PLP 773 (MLD)

Faqir Sayyed Fayyaz‑ud‑Din and another v. District Magistrate, Lahore and another PLD 1964 Lah. 359 ref. Sh. Zia Ullah for Petitioners. Kh. Saeed‑uz‑Zafar, D.A.‑G. for Respondents. Date of hearing: 9th August, 2002. According to the writ petition the petitioner obtained a drug manufacturing licence (hereinafter to be referred to as the licence) under the Drugs Act, 1940, in the year 1974 and set up a laboratory in Kamal Ganj, Lahore; that upon promulgation of the Drugs Act, 1976, the licence was revalidated in the year 1977 and is being renewed from time to time. It was last renewed on 28‑6‑1999. The property wherein Laboratory was set up had an area of 5 Marlas. Upon expansion of the business the Laboratory was shifted to Samanabad in a rented premises in the year 1977. In the year 1979 the Laboratory was shifted to Gulberg Lahore, but upon the insistence of the respondents it was shifted back to Kamal Ganj Lahore. By this time some more area had been added making total 10 Marlas and 3 story building was reconstructed. On 31‑5‑1983 the Schedule to the Drugs (Licensing, Registering and Advertising) Rules, 1976 (hereinafter to be referred to as the Rules) was amended and clause‑K was added to pare‑2 of the Schedule prohibiting location of Pharmaceutical Laboratory in residential, commercial, congested, or office areas in small lanes and by‑laws. The petitioner was issued directions accordingly to shift the Laboratory to a proper area. This led to the filing of W.P. No.4992 of 1993 by the petitioner in this Court. The petitioner however, did not press the writ petition undertaking to shift the Laboratory accordingly. In the meantime the petitioner had purchased land measuring 2 Kanals, 17 Marlas at Link Raiwind Road Naseerabad, Lahore, and had constructed a new building. This according to the petitioner was done pursuant to the directions contained in letter (Annex‑B) of the respondents. After completion of the said construction the petitioner applied to the respondents for shifting the Laboratory to the said new premises. In response respondents addressed letter dated 17‑6‑1998 (Annex‑E) to the petitioner requiring him to comply with the conditions laid down in the said schedule as amended on 15‑5‑1998. One of the conditions was that the pot of Laboratory would not be less than 2000 square yards. Vide letter Annex‑F the petitioner was informed that respondent No.1 vide order dated 3‑9‑1998 has rejected the application on the ground that plot was less then 2000 square yards. This order is stated to be without lawful authority.

2. Comments have been filed. The said facts as to the issuance of licence under the repealed Act and its validation under 1976 Act have not been disputed. It has, however, been insisted that the petitioner can operate licence only in terms of said amended Schedule.

3. Learned counsel for the petitioner contends that the amendment made in the said Schedule on 15‑5‑1998 was prospective in operation and in any case the petitioner cannot be penalized inasmuch as it was pursuant to the direction of the respondents that he had purchased the said land and had incurred expenditures on construction of the building thereon; that the condition regarding the size of the plot was put in a later point of time and respondents cannot insist upon its compliance. Further refers to cases of several other laboratories who are allowed to operate on plots of lesser size. Places reliance on the case of Faqir Sayed Fayyaz‑ud‑Din and another v. District Magistrate, Lahore and another (PLD 1964 Lah. 359).

4. Learned Deputy Attorney General on the other hand contends that a Laboratory cannot be operated without licence and the grant of licence is subject to the fulfillment of the said conditions including area of the plot. According to the learned Law Officer Court cannot direct the respondents to commit illegality by violating the said Rules.

5. The facts of the case are more, or less admitted. Now the licence was issued initially under the repealed Act, 1940, it was validated under the Drugs Act; 1976 and thereafter it is being renewed from time to time. I have examined the said Rules. To my mind, the Rules provide for clear distinction between initial grant of licence and its renewal. This would be evident, inter alia, from sub‑rule (3) of Rule 5 of the said Rules. Now the said sub‑rule (3) provides that if the application for renewal of the licence is made after expiry of the period of the validity of the licence, it shall be treated a fresh application for the grant of licence. There is no allegation that renewal was applied for after the expiry of the validity of the licence which is initially issued for a period of two years. Now the said Schedule B is titled as "Conditions for Grant of a licence to manufacture Drugs by way of formulation". As stated by me above, it was not application for grant of licence, rather licence had already been granted and was being renewed from time to time. The application was for shifting of the laboratory to .the new premises. Letter, Annex‑B, dated 12‑8‑1997 of the respondents addressed to the petitioner does indicate. that he was called upon to shift the Laboratory in the manner prescribed in clause‑K. There is no denial of the fact that said land was purchased and the building was constructed pursuant to the said directions. Now the respondents have refused to grant said permission on the ground that the premises is located on a plot of less than 2000 square yards. I may now attend to the contention of the learned counsel that several other laboratories are being allowed to continue on plots less than said size. Now the said contention stands pleaded in the writ petition. In the reply filed by the respondents the reasons stated for letting the said units continue precisely is that these were licensed in the year 1976 before the requirement of .4000 square yards plot size. Now this is the precise case of the petitioner that he was issued the licence in the year 1974 which was validated under the Drugs Act, 1976 and was being renewed from time to time. No reasons are coming forward as to why the petitioner is being discriminated against. I am also in agreement with the said first contention of the learned counsel that it was upon insistence of the respondents that he had purchased land 2 Kanals, 17 Marlas and had constructed Laboratory building thereon, the respondents cannot insist upon performance of a condition introduced in May, 1998. Copy of the registered sale‑deed has been appended with this writ petition showing sale of land in favour of the petitioner on 4‑1‑1993 and another document has been appended showing sale of additional land on 19‑8‑1995. There is nothing on record to indicate that construction was not completed before the introduction of the said conditions.

6. For all that has been discussed above, this writ petition is allowed and impugned order of the respondent dated 3‑9‑1998 conveyed to the petitioner vide letter dated 30‑9‑1998 (Annex‑F) is declared to be without lawful authority. Subject to compliance of the other conditions, the operation of the petitioner's licence and laboratory at the said new premises shall not be interfered with. No order as to costs. S.A.K./Z‑2/L Petition allowed.