Facts leading to this Constitutional petition, according to the petitioner, ore that the petitioner was manufacturing 97 items of medicine and drugs under licences issued by the authorities of the Health Department concerned. On the promulgation of Drug Act, 1976, the licensees were required to obtain registration of the drugs to be manufactured. The petitioner applied for registration of 15 drugs and filed separate applications and deposited Rs. 500 as fee for each item as required.
These applications were filed on 23-2-1976. Petitioner was granted Licence to Manufacture on 12th of July, 1971. The applications for registration remained pending. However, the petitioner was allowed exemption from registration on ad hoc basis for three items. The applications for registration were not still disposed of when the petitioner invited the attention of the authorities on Ist August 1977, that persons similarly placed have , been granted registration and that the petitioner's applications may too be granted. On 29th August 1977 another request for consideration of applications on top priority was made on the plea of unnecessary expenses of labour. Still another written request was made on-9th October, 1917. The petitioner has stated that foreign orders worth lacs of rupees have been received to export the drugs but the petitioner cannot manufacture because of non-grant of registration by the authorities. As a last resort the petitioner has filed this Constitutional petition on 18-10-1977 for a direction to the respondent authorities that the petitioner be granted the requisite registration. His Lordship Mr. Justice Saad Saood Jan called for a report from the respondent to be submitted within 10 days vide order dated -19-10-1977. No report was submitted when His 'Lordship directed on 29-10-1977 that the report be submitted by 5-11-1977. Still no report was submitted though the learned counsel for the respondents appeared on 6-11-1977. Only today the learned counsel for the respondent has filed in Court, parawise comments though these do not disclose as to what action has been taken on the applications filed by the petitioner nearly two years ago except that two applications have been accepted during the pendency of this petition on 4-1-1978. Thirteen applications are still pending "under consideration".
2. Learned counsel for the petitioner, on the basis of aforesaid facts, contended that the petitioner's applications filed two years ago in spite of repeated requests are not being attended to. This is not only injurious to the interests of the petitioner but the citizen are also deprived of the benefit of drugs and the country of foreign exchange. Mr. Zahid Hussain Shah, Advocate for the petitioner diligently called out chapter and verse from standard textbooks to quote that the petitioner is entitled to relief. Judicial Review of Administrative Action by S. A. De Smith, Edition III, 1973 at page 497 is cited that an order in the nature of mandamus can be issued "where the respondent has not refused compliance in express terms, it is a question of fact whether his conduct evinces a clear determination not to comply. There may also be cases where the mete fact of non-compliance with a duty will be a sufficient ground for the award of mandamus e. g. Where the applicant has been substantially prejudiced by the respondent's procrastination. Delay in complying with the demand or request, the signification of readiness to comply only subject to conditions, or persistent temporising and failure to given a direct answer, may well be tantamount to refusal." Principles of Administrative Laws by Jag Grifth & H. Street, Edition V, 1973 at page 238 is referred to that "Sometimes mandamus may control a discretion even more closely. The Court may exclude so many considerations as being wrong ones that the administrative body is left without a choice and must act in a particular way, in such a case the Court will order it to act in that manner". The Law of Writs (in India) by K. Venkobe Rao at page 217 is read that "while a railroad corporation has discretion as to the manner of performing the duty imposed upon it by the general railroad Act of restoring a highway across or along which its road has been constructed, the discretion is a ministerial one. The act of restoration must be done, as to this there is no discretion. If it elects a manner which proves ineffectual and yet it claims to have performed its duty, and the aid of the Court is invoked by the Commissioner of Highways to compel by mandamus the performance the Court has power to and should point out in the writ in what it has failed and to direct particularly what must be done so that it may not fail again." Then, reference is made to American Jurisprudence, Volume 34, para. 34 to the effect that "where the discretion is as to existence of facts entitling the relator to the thing demanded, if the facts are clearly proved or admitted, mandamus will lie to compel action according to law. For in such case the act to be done becomes purely ministerial and the duty to perform it absolute." Then, to para. 72 of the same book that "if the law directs him to perform an act in regard to which no discretion is committed to him and which, upon the facts existing, he is bound to perform, then that act is ministerial, although depending upon a statute which requires in some degree, a construction of its language by the officer, and lastly to para. 184 of the same book that "as a general rule, where all the requirements of law preliminary to acquiring a licence to conduct a business have been complied with, the issuance of such licence, if refused, may be compelled by mandamus, since such duty is merely ministerial." The learned counsel for the petitioner has concluded with the submission that the "Licence to Manufacture" having been granted to the petitioner; the petitioner is entitled as a matter of course to the grant of registration for the drugs manufactured and since the respondent authorities are procrastinating for the last two years a direction be issued to them to grant registration for the drugs applied for.
3. Learned counsel for the respondent authorities has submitted that the applications for registration filed by the petitioner on 23-2-1976 could not be considered until he was granted "Licence to Manufacture" which was only done on 12-7-1977. Thereafter, the applications were being attended to when a show-cause notice in respect of "Licence to Manufacture" was issued to the petitioner on 28-1-1978 pointing out certain defects and until those are removed, the petitioner cannot be granted registration and that the registration applications would be considered when those defects were removed.
4. There is no denying the fact that the petitioner filed applications for registration on 23-2-1976.
They paid Rs. 7,500, the requisite fees. It is nearly two years that no order has been passed on these applications either of acceptance or refusal. Whatever the respondents have to do in order to come to a decision, they had to take steps to do the same within a reasonable time. A If the applications merited acceptance, non-registration of drugs resulting in non-manufacture of the drugs needed for ailing citizens or to export entailing loss of foreign exchange for nearly two years is obviously inexcusable. If the authorities wanted to inspect or examine anything whether the premises or other aspects of the case, the should have done so long long ago The show-cause notice said to have been issued to the petitioner by the learned counsel for the respondents is dated 28-1-1978. In the integrum of two years, what the respondents have been 1 doing is only known to them. On the record, there is nothing to show that they had done anything at all. It is admitted that the "Licence to Manufacture" is still intact. It is neither suspended nor cancelled. As long as the "Licence to Manufacture" holds good, the petitioner is entitled to the registration of drugs intended to be manufactured in accordance with law. The petitioner's applications should have been taken up in the last two years and disposed of. There is no justification whatsoever not to perform the duty accepted and laid by law on the respondents. The submission of the learned counsel for the petitioner that a direction be issued to the respondents to grant registration cannot be acceded to in the circumstances of the case because process of grant of registration for drugs requires examination of various aspects of the case, including the premises and methodology of manufacturing. The references quoted by the learned counsel for the petitioner are apt when no enquiry need be made. In this case, the manufacturing of drugs is a delicate matter and the concerned authorities have to' see that the job is carried out in a manner that the not result is beneficial to people. It is neither injurious nor sub-standard. It is for this reason that no direction is issued to the respondents to grant registration of the drug straightway. However, it is quite obvious that there has been indolence not disposing of the applications for the last two years. Therefore, it is directed that the respondents take up the applications, examine them and dispose of the same within the shortest possible time in accordance with law.
The petition is allowed with costs.