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Jagannath Das Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 105 of 1967
Judge
Reported inAIR1968Ori176; 34(1968)CLT594
ActsPharmacy Act, 1948 - Sections 1(3); Pharmacy (Amendment) Act, 1959
AppellantJagannath Das
RespondentState of Orissa and anr.
Appellant AdvocateL. Rath and ;B.B. Rath, Advs.
Respondent AdvocateGovernment Adv.
DispositionPetition dismissed
Cases Referred and Shayam Kishori Devi v. Patna Municipal Corporation.
Excerpt:
.....1956 chapters iii, iv and v have effect in only a part of the state, the said chapters shall take effect in the remaining part of that state from such date as the state government mav in like manner appoint......into force after the expiry of the time-limit of three years without prior notification by the state government in the official gazette as required by section 1(3) of the act.2. the petitioner a registered pharmacist of orissa at present serving as a dental technician school health services. sadar circle berhampur ganjam is the president elect of the orissa state pharmacy council having been so elected on april 12, 1966 by the member of the said council under secttion 23 of the act, the other contestant being opposite party no. 2 dr. g. s. mohapatra. director of health services, orissa the former president of the council. the petitioner prays for the issue of a writ, in the nature of a writ of quo warranto, against opposite party no. 2 dr. g. s. mohapatra who is said to be continuing.....
Judgment:

Barman, C.J.

1. The point involved in this writ petition is whether Chapter III (Section 19-28 State Pharmacy Councils), Chapter IV (Sections 29-4D Registration of Pharmacists) and Chapter V (Sections 41-46 Miscellaneous) of the Pharmacy Act. 1948 (Central Act VIII of 1948) as the Act stood before its amendment by the Pharmacy (Amendment) Act, 1959 (Central Act 24 of 1959) could come into force after the expiry of the time-limit of three years without prior notification by the State Government in the Official Gazette as required by Section 1(3) of the Act.

2. The petitioner a registered pharmacist of Orissa at present serving as a Dental Technician School Health Services. Sadar Circle Berhampur Ganjam is the President Elect of the Orissa State Pharmacy Council having been so elected on April 12, 1966 by the member of the said Council under Secttion 23 of the Act, the other contestant being opposite party No. 2 Dr. G. S. Mohapatra. Director of Health Services, Orissa the former President of the Council. The petitioner prays for the issue of a writ, in the nature of a Writ of Quo Warranto, against opposite party No. 2 Dr. G. S. Mohapatra who is said to be continuing in the office of President of the Council and ousting the petitioner from the office of President of the Orissa State Pharmacy Council though the petitioner was elected President of the Council as early as April 12, 1966 at the meeting of the Pharmacy Council held on that date The petitioner also prays for the issue of a direction to opposite party No. 2 Dr. G. S. Mohapatra to relinquish the office of the President of the Orissa State Pharmacy Council to hand over charge of the same to the petitioner. The State of Orissa has been made opposite party No. 1 with a prayer to direct it to put the petitioner in charge of the office of the President of the Orissa State Pharmacy Council, Orissa.

3. The basis on which the petitioner claims to be the President of the Orissa State Pharmacy Council is this: In accordance with Sub-section (3) of Section 1 of the Pharmacy Act, 1948 as it stood before its amendment by the Amendment Act XXIV of 1959 which came into force on May 1, 1950 Chapter III including Section 23 (under which the petitioner was elected President) Chapter TV and Chapter V have automatically come into force after the expiry of three years from the date of commencement of the Act which is March 4, 1948 even if the State Government had not brought into force the said three Chapters by issue of a notification in the Gazette, The contention urged on behalf of the opposite parties on the other hand is that the validity of the meeting of the Orissa State Pharmacy Council held on April 12, 1966 has been Questioned on the ground that Chapters III, IV and V of the Pharmacy Act, 1948 have not beer brought into force by the Government by issue of notification as required by the Act.

4. The question is: Was the election of the petitioner as President of the State Pharmacy Council under Section 23 of the Act valid in law? This requires an examination of the relevant provisions of the statute and their interpretation in relation to the facts of the present case.

5. On March 4, 1948 the Pharmacy Act, 1948 (Central Act VIII of 1948) came into force except Chapters III IV and V thereof Section 1(3) of the Act by which the operation of those three Chapters was suspended for three years from the commencement of the Act (before amendment) was this:

'1 Short title, extent and commence ment.--

(1)x x x(2)x x x (3) It shall come into iorce at once, but Chapters III, IV and V shall take effect in a particular Province from such date not later than three years from the commencement or this Act, as the Provincial Government may by notification in the official Gazette, appoint in this behalf.'

6. Admittedly, the Orissa Government had not brought these Chapters into force by notification in the official Gazette for three years from the commencement of the Act, or indeed at any time thereafter. The petitioner's point is that by virtue of Section 1(3) Chapters III, IV and V came into force by efflux of time after the expiry of the time-limit of three years from the commencement of the Act; in other words, according to the petitioner, the Act came into force from March 4, 1951

7. On January 20, 1958 Rules under Section 46 (Chapter V) of the Act were framed to carry out the purposes of Chapters III, IV and V On September 5, 1958 there was a certain amendment made to the Rules. On September 8, 1958 the notice of election of members to the State Pharmacy Council and electoral roll were published On December 30, 1959 the Orissa State Pharmacy Council was first constituted for five years under the Act Under Section 23(1) Proviso the Director of Health Services was nominated by the State Government to be the President to hold office at the pleasure of the State Government

8. By the Pharmacv (Amendment) Act, 1959 (Central Act 24 of 1959) in Section 1(3) the words not later than three years from the commencement of this Act' were omitted and a Proviso was inserted with the result that Section 1(3) after amendment now reads as follows:

'1 (3) It shall come into force at once but Chapters III, IV and V shall take effect in a particular State from such date as the State Government may by notification in the Official Gazette, appoint in this behalf:

Provided that where on account of the territorial changes brought about by the reorganisation of the State on the first day of November 1956 Chapters III, IV and V have effect in only a part of the State, the said Chapters shall take effect in the remaining part of that State from such date as the State Government mav in like manner appoint. '

The said amendment was given effect to from May 1, 1960 The petitioner's case is that this amendment has no retrospective effect and that under the old Section 1(3) as it stood before amendment. Chapters III, IV and V should be held to have come into operation automatically on the expiration of three years from the commencement of the Act notwithstanding the fact that notification bringing the Chapters III. IV and V into force had been issued by the State Government; and accordingly the petitioner must be held to have been validly elected as President of the Orissa State Pharmacv Council under Section 23 dealing with Election to the office of President and Vice-President which falls within Chapter III. On December 18, 1964 notice of elections to the Second State Pharmacy Council and the electoral roll relating thereto prepared therefor were duly published in the Official Gazette. On December 30, 1964 the first Orissa State Pharmacy Council constituted on December 30, 1959 for five years under Section 23 (1) Proviso expired.

9. On August 12, 1965 in exercise pi the powers conferred by Section 19 (in Chapter III Constitution and Composition of State Councils) of the Act, the Orissa State Government constituted the State Council of Pharmacy consisting of thirteen members including the Director of Health Services and Drugs Controller of Orissa as ex-officio member and the petitioner as one of the members On April 12. 1966 the petitioner was elected President of the Council under Section 23 of the Act from among the members Thereafter, the petitioner, as president wanted charge of that office to be handed over to him by the opposite party No 2 the former President, whose term of office he claimed had expired but he (opposite party No 2) withheld handing over charge.

10. In Orissa, as already stated, the first State Pharmacy Council was constituted Under Section 23 (in Chapter III) of the Act on December 30, 1959, that is, at a point of time when Chapter III had not come into force in Orissa and also prior to the amendment of Section 1(3) which did not take effect until May 1, 1960. This case has to be considered in the light of the interpretation of Section 1 (3) of the Act as it stood before its amendment As the amending Act 24 of 1959 was made effective from May 1, 1960 it was not disputed that the amendment has no retrospective operation prior to that date

11. The petitioner's contention is that after the expiry of the time limit of three years from the commencement of the Act mentioned in Section 1 (3) as it stood before amendment there was automatic operation of the Chapters III TV and V notwithstanding the fact that no notification was issued by the State Government to bring these Chapters into effect: indeed, according to him the State Government was allowed the maximum time-limit of three years from the commencement of the Act to take steps to bring the provisions of Chapters III, IV and V into operation; and it was not open to the State Government to issue -- in fact, according to the petitioner the State Government cannot issue -- such a notification for enforcing the said three Chapters after that period. The petitioner's point is that the operation of the provisions of the three chapters remained suspended or kept in abeyance for only three vears and for no further time with a view to give time to the State Government to make preparations to bring them into operation; the 'phrase 'not later than' is not without any significance; after the expiry of the period the provisions of the three Chapters would automatically operate --the operation could not be deferred any further. It was submitted that if this construction of Section 1(3) of the Act (as it stood before amendment) be accepted, then the necessity for the issue of notification by the State Government ceased after the expiry of three years; in fact the State Government cannot issue such notification after that period.

12. In support of the petitioner's contention, it was submitted that such construction should be given to the provisions of the statute as not to defeat its purpose. The petitioner relied on certain fundamental propositions as reiterated by the Supreme Courts: The object of interpreting a statute is to ascertain the intention of the legislature enacting it; and an interpretation defeating the object of the statute is of course not permissible. The Court must construe a section, unless it is impossible to do so, to make it workable rather than to make it unworkable, and that the words of the statute never should be added to or subtracted from, without almost a necessity. South Asia Industries Private Ltd. v. S. Sarup Singh, AIR 1966 SC 346 and Shayam Kishori Devi v. Patna Municipal Corporation. AIR 1966 SC 1678.

13. These contentions urged on behalf of the petitioner, however, overlook certain significant features, including the objects and reasons, of the parent Act and its subsequent amendment, as discussed hereunder.

14. It was urged by the learned Government Advocate, on behalf of the State, that Section 1 (3) before its amendment required the State to issue a specific notification enforcing Chapters III, IV and V of the Act. The time limit envisaged in the phrase 'not later than three years from the commencement of this Act' is only directory and could not have been intended to be mandatory. In English law, where a particular day is named for its commencement, but the Royal assent is not given until a later day, the Act would come into operation only on the later day; statutory Instruments come into operation, not on the day on which they are signed, but on the day on which they are first made available or known to the public, or to the persons whom it is sought to affect by them: Maxwell on Interpretation of Statutes, Eleventh Edition, page 397.

15. In support of this contention, reference was also made to similar provisions in other statutes including the Electricity (Supply) Act, 1954 (Act LTV of 1948). Section 1 (3) and (4) of that Aet so far as material, provides as follows:

'1. x x x x x x x(3) This Section and Sections ..... and the provisions of the sixth and the seventh schedules shall come into force at once

(4) The remaining provisions of this Act shall come into force in a State on such date, not later than two years from the coming into force of the Sections ......... as the State Government may by notification in the Official Gazette, appoint.'

These provisions in the Electricity (Supply) Act are in pari materia the same as Section 1(3) of the Pharmacy Act before amendment, which we are considering The learned Government Advocate's point is that without notification by the State Government in the Official Gazette. Chapters III, IV and V initially excepted or suspended from operation could not come into force.

16. This argument finds support from the fact that there was necessity of the validation of certain acts done by the State Government of Bombay who brought the provisions of Chapters III, IV and V of the Act into force without issuing a formal notification as required by the Act, In fact as certain actions were taken by the Bombay Government under the said Chapters of the Act, without issue of a formal notification to bring the said Chapters into effect, before taking such actions, Clause 19 of the Amendment Act 24 of 1959, became necessary, in order to regularise the position. This shows that but for the subsequent validation of the actions of the Bombay Govrernment made by the Amendment Act 24 of 1959, the said actions done--without first bringing into force the said Chapters by formal notification--would have continued to remain irregular. The intention of the legislature is clear from the omission of the words 'not later than three years from the commencement this Act' by the Amendment Act 24 of 1959. This confirms the view--which we accept to be correct--that prior notification by the State Government for enforcing the said Chapters is mandatory

17. The validation clause was considered essential in the interest of uniformity of administration of the Pharmacy Act. This is apparent from the language of the amended provision of Section 1(3) including the proviso (as made by Act 24 of 1959) quoted above, which made it clear that the amendment was necessary on account of the territorial changes brought about by the reorganisation of the States. It was with this object as appears from the Statement of Objects and Reasons that the legislature in Clause 2 (b) of Act 24 of 1959 omitted the time limit of three years mentioned in Section 1(3) of the Act as it originally stood; of course, by the time of the amendment, the three-year time-limit had already expired.

18. In the ultimate analysis of the position, on an interpretation of the relevant provisions of the Act both before and after the amendment read with the objects and reasons underlying the amendment, I am ofpinion that the necessity for the prior issue of notification by the State Government is essential for bringing into force the provisions of Chapters III, IV and V and that the mention of the time-limit of three years for bringing the said three Chapters into force was only directory. This view is further confirmed by the significant circumstance that in Bombay where the State Government brought the provisions of Chapters III, IV and V into effect without first issuing a formal notification, the Legislature had to introduce a validating provision in the Amendment Act of 1959 (Clause 19) to regularise all such actions taken by the Government of Bombay which would otherwise have been invalid. Such a validating clause would not have been necessary if, as claimed by the petitioner, the provisions of Chapters III, IV and V were deemed to have been brought into operation auto matically on the expiry of the period of three years

19. In this view of the position, the petitioner is not entitled to any relief as claimed The writ petition is accordingly dismissed There will be no order for costs

A. Misra, J.

20. I agree.


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