Shaila K. v. Union of India and Bureau of Pharma Public Sector Undertakings of India (BPPI) and Ministry of Chemicals and Fertilizers, Government of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 12[TH] DAY OF JANUARY 2022 / 22ND POUSHA, 1943** ## **WP(C) NO. 11137 OF 2021** ## **PETITIONER:** SHAILA K. AGED 45 YEARS W/O. GOVINDAN.M, MADATHIL HOUSE, CHERANKUTH, MANCHAPPATTA (P.O), MALAPPURAM, KERALA - 676123. BY ADV T.H.ARAVIND ## **RESPONDENTS:** 1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, MINISTRY OF CHEMICALS AND FERTILIZERS, DEPARTMENT OF PHARMACEUTICALS, 341-(C), A- WING, 3RD FLOOR, SHASTRI BHAWAN, NEW DELHI - 110001. 2 BUREAU OF PAHRMACY PUBLIC SECTOR UNDERTAKINGS OF INDIA 341-(C), A-WING, 3RD FLOOR, SHASTRI BHAWAN, NEW DELHI - 110001, THE MINISTRY OF CHEMICALS AND FERTILIZERS, GOVERNMENT OF INDIA. BY ADV SRI.K.R.RAJKUMAR, C.G.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11137 OF 2021 2 # **P.V.KUNHIKRISHNAN, J** ## **------------------------------------W.P.(C)No.11137 of 2021 ------------------------------------Dated this the 12[th] day of January, 2022** # **JUDGMENT** The above writ petition is filed with following prayers: _“i) To issue a writ in the nature of mandamus or any other appropriate writ, direction or order striking down guideline V(e) of the “Guidelines for Opening of New Pradhan Mantri Bharatiya Janaushadhi Kendra” or declare null and void being wholly arbitrary in naked breach of the fundamental rights of the Petitioner Under Article 19(1)(g) of the Constitution of India._ _ii) Issue a writ of Mandamus or other appropriate Writ, Orders or directions to declare that the rejection of applications Exhibit P2, Exhibit P3 and Exhibit P4 on the ground of distance policy is illegal._ iii) _Issue a writ of Mandamus or other appropriate Writ, Orders or directions to set aside the rejection of the applications shown in Exhibit P5._ iv) _Issue a writ of Mandamus or other appropriate Writ, Orders or directions, commanding the 2[nd] respondent to grant permission to the petitioner to Open Pradhan Mantri Bharatiya Janaushadhi Kendra._ v) _Issue a writ of Mandamus or other appropriate_ WP(C) NO. 11137 OF 2021 3 _Writ, Orders or directions, commanding the 2[nd] respondent to consider the Exhibit P6 application filed by the petitioner untrammeled by distance policy._ vi) _Any other order deemed just and proper may also be passed in the facts and circumstances stated herein below in favour of the Petitioner.”_ 2. This writ petition is filed challenging the guideline V(e) of the “Guidelines for Opening of New Pradhan Manthri Barathiya Janaushadhi Kendra” for granting the licence for opening a new medical store and the decision of the 2[nd] respondent rejecting the applications of the petitioner on the basis of the distance policy in the guidelines. It is the case of the petitioner that she had filed various applications before the 2[nd] respondent seeking permission to open a Pradhan Manthri Barathiya Janaushadhi Kendra(PMBJK) which is a medical store that sells quality medicines at low cost. The 2[nd] respondent has framed certain guidelines for granting permission for opening the PMBJK. The guidelines were framed on 24.06.2019 which is produced as WP(C) NO. 11137 OF 2021 4 Ext.P1 and was subsequently revised on 20.08.2020. The petitioner had filed various applications before the issuance of revised guidelines. The petitioner had downloaded the guidelines from the website at the time of filing the first application and had complied with all the conditions. It is the case of the petitioner that she had also spend considerable amount for opening the store. It is the case of the petitioner that the 2[nd] respondent has rejected all the applications stating that the place pointed out by the petitioner violates the distance policy. The petitioner is aggrieved by the decision rejecting the applications on the said reason because there was no such policy or guidelines in force at the time of filing the first application or at the time of rejecting that first application. Hence this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Central Government Counsel(CGC). 4. The learned counsel for the petitioner reiterated his contentions in the writ petition. The WP(C) NO. 11137 OF 2021 5 learned counsel submitted that Exts.P2, P3 and P4 applications were rejected by the respondents on the ground of the new distance policy and the first application submitted by the petitioner was before the issuance of guidelines regarding the distance policy. The counsel also submitted that a new PMBJK Kendra is opened violating the distance policy itself and that itself shows that the distance rule mentioned in the guidelines is only directory and not mandatory. The counsel also relied the judgment of this Court in _**Mohammed Abdul Gafoor P. v. Secretary to the Government, Tvm and Others**_ [2019 (2) KHC 429]. The learned CGC on the other hand submitted that the rejection of the application of the petitioner is strictly in accordance to Ext.P10 and there is nothing to interfere with this order by this Court by invoking the powers under Article 226 of the Constitution of India. Ext.P6 is the proceedings downloaded from the website. It shows that the application of the petitioner has been rejected. No reason is mentioned in Ext.P6. WP(C) NO. 11137 OF 2021 6 The learned CGC submitted that it is rejected mainly because of the restriction in Ext.P10 regarding the distance. Clause V(e) of Ext.P10 says that the requirement for district having population less than 10 lakhs distance of 1.50 km shall be observed between two Kendras while approving new Kendra. Admittedly the petitioner submitted an application before Ext.P10 rule came into force. The first application of the petitioner was rejected even before Ext.P10. In such circumstances according to me, a reconsideration by the authority concerned is necessary in the peculiar facts and circumstances of the case especially because the petitioner invested huge amount for the infrastructure. The competent authority among the respondents will consider this and take a fresh decision in the matter untrammeled by the earlier rejection order passed by the authorities. Therefore, this writ petition is disposed of in the following manner: - i. The competent authority among the respondents WP(C) NO. 11137 OF 2021 7 will reconsider the application of the petitioner for the Pradhan Manthri Barathiya Janaushadhi Kendra after giving an opportunity of hearing to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. ii. The hearing can be either virtually or physically. **Sd/P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) NO. 11137 OF 2021 8 ## **APPENDIX OF WP(C) 11137/2021** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE EXTRACT OF GUIDELINES ISSUED BY THE BUREAU OF PHARMA PUBLIC UNDERTAKINGS OF INDIA. EXHIBIT P2 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER IN THE WEB PORTAL. EXHIBIT P3 TRUE COPY OF THE APPLICATION FILED THROUGH ONLINE PORTAL. EXHIBIT P4 TRUE COPY OF THE APPLICATION FILED THROUGH WEB PORTAL. EXHIBIT P5 TRUE COPY OF THE WEBPAGE OF THE PETITIONER IN THE WEB PORTAL SHOWING THE REJECTION OF HIS APPLICATIONS. EXHIBIT P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER BEFORE THE SECOND RESPONDENT. EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 11.11.2020 ISSUED TO THE PETITIONER FROM BPPI. EXHIBIT P8 TRUE COPY OF THE EMAIL RECEIVED FROM THE EMAIL ADDRESS KERALA3@ JANAUSHADHI.GOV.IN DATED 06.11.2020. EXHIBIT P9 TRUE COPY OF THE APPLICATION DATED 01.03.2021 FILED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT. EXHIBIT P9(A) TRUE COPY OF THE REPLY TO THE RIGHT TO INFORMATION APPLICATION DATED 12.03.2021. EXHIBIT P10 TRUE COPY OF THE REVISED GUIDELINES ISSUED BY THE BUREAU OF PHARMA PUBLIC UNDERTAKINGS OF INDIA. RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE