UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR.

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A audited by a practicing cost accountant is submitted by these companies to the cost audit branch, Department of Company Affairs, New Delhi. NPPA should be requested to use these readily available audited cost audit reports, for the purpose ofrevision of CC/PC norms, instead of asking the companies to again send the cost data in separate B formats which will be voluminous and time consuming for the industry."

79Copy pinpoint79. The Taxation and Pricing Policy Committee of OPP!, addressed a letter dated 22nd July, 2003 to the Cost Accounts Branch to the effect that the representatives of OPP! and IDMA had suggested in a meeting c held on 51h July, 2002 with the NPPA that a study of the conversion cost and packing charges should be based on the CARs already available with the Central Government and that the study should be conducted on that basis.

80Copy pinpoint80. The Cost Accounts Branch informed OPP! by a letter dated D 2nd September, 2003 that a study based "entirely on the information available in the cost audit reports might result in the Government not obtaining a total picture of the actual conversion cost, packing charges and process loss in the drug formulation industry. Our aim, when we requested the industry for making available the cost data and other information vide our questionnaire, was to take into account the actual cost implications of all the factors in the drug industry and not restrict it to only those where the cost audit report is available." It was added that despite the availability of the CARs "i~ was considered appropriate to frame the questionnaire for seeking the company specific information/ data relevant to the study under reference. The questionnaire was circulated to the pharmaceutical units with the purpose of safeguarding the interest of industry and taking them into confidence to develop the realistic CC, PC and PL norms based on the actual cost data/information available with the formulation companies."

81Copy pinpoint81. It will be seen from the above that as far as the drug industry was concerned, the CA Rs could form the basis for prescribing the nonns as required by Paragraph 7 of the DPCO 1995. On the other hand, the Masood Committee had concluded that the data provided through the CA Rs was not entirely reliable. That apart, to obtain an overall picture of the ground realities, the NPPA, the Central Government and the Cost H Accounts Branch felt that the information called for through the

! 'NION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 569 [MADAN 8. LOKUR, J.]

questionnaires would be more comprehensive and beneficial rather than A the CARs of a handful of manufacturers/formulators.

82Copy pinpoint82. On the basis of the above material, the submission of the teamed Solicitor General was that the drug industl)' did not extend the necessal)' cooperatior expected of it, that the notifications issued by the Central Government pfescribing the norms for conversion cost, packing charges 8 and process loss were not mechanically issued but were issued after due application of mind to the available material and that the decisions taken by the Central Government were subject to revision under the provisions of~he DPCO 1995 but the manufacturers/formulators did not take recourse to these pmvisions and instead approached the Courts after much delay and by way of an after-thought. These submissions c were refuted by the learned counsel appearing for Cipla and other manufacturers/formulators. Judicial review

83Copy pinpoint83. The primal)' issues before us relate to (i) the legitimacy and D soundness of the materials on the basis of which the norms were prescribed for application of the formula given in Paragraph Tof the DPCO 1995 and on the basis of which the retail price and ceiling price of formulations were fixed under Paragraphs 8 and 9 of the DPCO 1995; (ii) the effect of the failure ofthe Central Government to prescribe the norms under Paragraph 7 of the DPCO 1995 on a yearly basis, and E (iii) the effect of the failure of the Central Government to prescribe the norms for cost of packing material under Paragraph 7 of the DPCO

1995. The issue before us does not relate to the actual norms or actually fixing the retail price or ceiling price of formulations under Paragraphs 8 and 9 of the DPCO 1995 in the sense that there is no dispute that forthe F purposes of fixing the retail price or ceiling price of formulations under Paragraphs 8 and 9 of the DPCO 1995 the norms were prescribed and the formula given in Paragraph 7 thereof was adhered to. Even otherwise, the actual norms and price fixing on the basis of the nonns is out of bounds for us. G (i) Issue of non-application of mind

84Copy pinpoint84. The first submission oflearned counsel forCipla relates to the materials and the non-application of mind resulting in the Central Government prescribing the norms under Paragraph 7 of the DPCO

1995. The challenge to the retail price and ceiling price of formulations H

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A fixed through various notifications is only collateral or consequential. In its impugned judgment and order the Allahabad High Court held that there was no application of mind by the Central Government in prescribing the norms for conversion cost, packing charges and process loss. The second conclusion is that the Central Government failed to adhere to the provisions of Paragraph 7 of the DPCO 1995 in not prescribing the B norms on a yearly basis.

85Copy pinpoint85. Although there is no direct challenge to the notification dated lJ•h July, 1999 prescribing the norms under Paragraph 7 of the DPCO 1995 it was submitted that that notification and subsequent notifications were issued without any application of mind. It was in this context that c it had become necessary to make a detailed reference to the Reports of the Sankaran Committee, the Masood Committee, the Jharwal Committee, the file notings and correspondence which were the materials before the Central Government and which led to the issuance of the notifications prescribing the norms for conversion cost, packing charges D and process loss.

86Copy pinpoint86. Paragraph 7 of the DPCO 1995 consists of two parts - prescribing the norms and applying those prescribed nonns to the formula for arriving at the retail price of a formulation. In the first instance, we are concerned with prescribing the norms under Paragraph 7 of the E DPCO 1995 on the basis of the recommendations of the Masood Committee and the Jharwal Committee sine<: it was contended that there was no application of mind in doing so. It may be mentioned thatthere is no challenge to the norms prescribed as such v.: the ground of arbitrariness or being ultra vires the DPCO 1995 or the Essential Commodities Act, 1955. What is presently questioned is only the F application of mind and the soundness of the materials on the basis of which the norms were prescribed, namely, the Masood Committee Report and the Jharwal Committee Report. Learned counsel had no criticism of the Sankaran Committee Report and indeed generally supported its conclusions and recommendations.

87Copy pinpoint87. A perusal of the Report of the Masood Committee and subsequently the Report of the Jharwal Committee clearly brings out that the Central Government initiated a detailed exercise for prescribing the norms but unfortunately the drug industry did not extend its full cooperation in the exercise and declined to provide necessary information H

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 571 [MADAN B. LOKUR, J.]

and data despite requests and reminders. Therefore, the Central A Government was left with no alternative but to notify the norms in compliance with the provisions of the DPCO 1995 on the basis of the materials already available. The first question is, could the Central Governm"'llt rely on these materials?

88Copy pinpoint88. The Report of the Masood Committee was roundly criticized B by learned counsel for Cipla since its exercise was hasty and carried out without any field visits and without considering ground realities. The Report of the Jharwal Committee was also strongly criticized by learned counsel. The general line of criticism was that the Reports of the Masood Committee and the Jharwal Committee were based on flawed reasoning and an incorrect appreciation of the data and facts. As far as the Report c of the iVlasood Committee is concerned, it was also criticized for not recommending the norms- a task it was set up to perform. The Masood Committee merely passed on the buck to another expert body for conducting an in-depth study for recommending the nonns for conversion cost and packing charges. However, it must be said that the Masood D Committee did some useful work by recommending the norms for cost of packing material but that could not be acted upon by the Central Government in isolation and in the absence of norms on process loss. A significant observation of the Masood Committee related to the stipulation for a yearly notification of norms in terms of the DPCO 1995. The Report of the Jharwal Committee was criticized for taking, amongst E others, an unrealistic view of the inflation factor and not really adding anything of value to the Report of the Sankaran Committee.

89Copy pinpoint89. There is no doubt that the Masood Committee Report was the justification for the Central Government not revising the norms recommended by the Sankaran Committee and the Report of the Jharwal F Committee was the basis for revising the norms as notified on 1J'h July.

1999. These Reports were the antecedent material available with the Central Government for the purposes of Paragraph 7 of the DPCO

1995. Can this "antecedent material" be subject to judicial review or judicial scrutiny and if so to whot extent? G

90Copy pinpoint90. The "..:teria for price fixing can be statutory or non-statutory (such as a Report). This distinction was brought out in R"ylllltseemlt Paper Mills Ltd. v. Government ofA.P. 1 • In that decision, a committee of officials was appointed to consider the factors relating to fixing the '(2003) 1 sec 341 H

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A rates of royalty on the forest produce to be supplied to wood-based industries on a sustained basis, and to make recommendations to the Government. The committee made its recommendations which were accepted by the State Government and an appropriate G.O.Ms was issued. The result of the G.O.Ms was that the royalty for bamboo went up considerably and continued to rise every year. The G.O.Ms was then B challenged in a writ petition.

91Copy pinpoint91. The submission made by the appellants in that case was that even though "price fixation is neither the function nor the forte of the court, it is neither concerned with the policy nor the rates. But the court cannot deny to itself the jurisdiction to enquire into the question, in c appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price."

92Copy pinpoint92. In that context and in response to the submission made, this Court drew a distinction between price fixation governed by statutory considerations and price fixation governed by non-statutory D considerations. It was held that on this basis Union ofbu/ill v. Cy11<1mitle Indi<1 Ltd. & Allf. 3 was distinguishable since it dealt with price fixation based on statutory considerations. In a case of price fixation having its origin on non-statutory materials the scope ofjudicial scrutiny would be far less. It was said in paragraph 15 of the Report as follows: E "This Court was examining [in Cy1w111ide flu/ill] the scope ofjudicial scrutiny in the matters of price fixation where it was governed by statutory provisions. The scoµ~ ofjudicial scrutiny would be far less where the price fixatiou is not governed by the statute or a statutory order. Where the legislature has prescribed the factors which should be taken into consideration and which should guide the determination of price, the courts would examine whether the c~msiderations for fixing the price mentioned in the statute or the statutory order have been kept in mind while fixing the price and whether these factors have guided the determination. The courts would not go beyond that point. In the present appeals, there is no law, or any statutory provision laying down the criteria or the principles which must be followed, or which must guide the determination of rates of royalty. H ' <1987) 2 sec no

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 573 [MADAN B. LOKUR, J.]

No doubt, any arbitrary action taken by the State would be subject to scrutiny by the courts because arbitrariness is the very antithesis of rule of law. But this does not mean that this Court would act as an Appellate Authority over the determination ofrates ofroyalty by the Government. .... It is open to the Government to fix such price as it thinks appropriate having regard to public interest, which inter alia, may include interest of revenue, environmental, ecology, the need of mi II s and the requirements of other consumers. The price is not to be fixed keeping in mind the requirements of the mills alone." [Emphasis supplied].

93Copy pinpoint93. Jn these appeals, we too are presently concerned with a stage c anterior to actual price fixation namely recommending and prescribing the norms that would eventually form the basis for fixing the retail price and ceiling price of formulations. The view expressed in R"ylllllseenw Pllper Mills would, in our opinion, apply to the Reports of the Masood Committee and the Jharwal C0mmittee set up by the Central Government D for recommending the norms for the purposes of Paragraph .7 of the DPCO 1995. The Reports were antecedent materials, non-statutory and recommendatory and could have been rejected by the Central Government. The Masood Committee did not (and perhaps could not) recommend any norms for conversion cost, packing charges and process E loss, except for cost of packing material (without process loss). The Masood Committee was alive to the statutory requirement of prescribing the norms on a yearly basis and therefore referred to it.

94Copy pinpoint94. However, as far as the Report of the Jharwal Committee is concerned, the Central Government accepted and implemented it by issuing a notification on I 31h July, 1999 under Paragraph 7 of the DPCO F 1995 - but still did not prescribe the norms for cost of packing material recommended by the Masood Committee, an issue that will be considered later. ·

95Copy pinpoint95. While learned counsel for Cipla might have serious differences of opinion with the recommendations of these particular non-statutory G Reports, generally a challenge to Reports prepared by expert bodies is not easy but is subject to lesser judicial scrutiny. To rephrase what was said in Prllg Ice mu/ Oil Mills mu/ A11r. v. U11io11 of /11dill' a factor here or a factor there that should have been taken into account but has '(1978) 3 sec 459 H

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A been ignored should not invalidate the Reports - mere errors in the Reports are not subject to judicial review.

96Copy pinpoint96. That there can be a legitimate difference of opinion (sometimes serious) between two expert bodies is not at all unusual. In Sllrl Sltftram Sugar Co. Lttl. v. Union of I11ditt 1 the decision of the Central B Government was supported by the recommendations of the Tariff Commission. These recommendations were criticized in some respects by the BICP. Some members of the sugar industry accepted the views of the Central Government while some did not. Considering the overall circumstances, the Constitution Bench observed that the conclusions of the Central Government are expert conclusions which were not shown c to be arbitrary, discriminatory, unreasonable or ultra vires. Reliance was placed upon the following passage from Rllilrolld Commission of Texlls v. Rowan & Nie/tots Oil Company6 : "Nothing in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen State authorities.... When we consider the limiting conditions of litigation - the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence oflawyers- it is clear that the Due Process Clause does not require the feel of the expert to the supplanted by an independent view ofjudges on the conflicting testimony and prophecies and impressions of expert witnesses". F This observation is of even greater significance in the absence of a Due Process Clause."

97Copy pinpoint97. The feel of the expert is important, if not conclusive. Insofar as we are concerned, two expert Committees made their G recommendations. These recommendations were then examined and considered by the Central Government and on the basis of the expert conclusions arrived at, the nonns were prescribed by a notification dated J3th July, 1999 issued under Paragraph 7 of the DPCO 1995. Under the circumstances, the question of judicial scrutiny of the Reports of the '(1990) 3 sec 223 H '311US570, 85 L Ed 358, 362

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 575 [MADAN B. LOKUR, J.)

Masood Committee and the Jharwal Committee and the acceptance of their recommendations by the Central Government is not only limited, but in this case it does not arise. It cannot be said that the notification dated lJ•h July, 1999 was based on no material or was issued without any application of mind. Learned counsel for Cipla may disagree with the contents of the materials, but cannot ignore their existence or that they were considered by the Central Government.

98Copy pinpoint98. Fixing the price of any commodity is not only difficult but also tricky. There is material to be considered; a bundle of factors to be considered and appropriate weight is to be given to the material and the factors. This is not easy to decide and there will always be some criticism with regard to either the material utilized or the factors considered or the c weight attached to the materials and factors. In matters pertaining to drug formulations, it is not only an issue of demand and supply but also the ability of a common person to afford the formulation. At the same time, the manufacturer must also make some profit and be in a position to invest in research and development. There simply cannot be any D mathematical precision in fixing the price of a commodity. More than enough elbow room or a play in the joints is required to be given in such matters- and even then the price fixing authority may commit an error. Once this is appreciated, it wil 1be realized that the task before the Central Government in prescribing the norms was not easy. E Failure to consider the cost audit reports

99Copy pinpoint99. Learned counsel for Cipla contended that assuming the drug industry did not extend any cooperation in providing necessary data, the CARs were nevertheless material available and they could be and should have been made use of for recommending the norms by the Masood F Committee and the Jharwal Committee to the Central Government. In other words, relevant material was not considered. I00. The value or utility of the CARs has already been mentioned above, which is that the Masood Committee did not find the information contained in whatever CARs were available to. be fully reliable. This G view was accepted by the Central Government. Even the Cost Accounts Branch of the Department of Expenditure in the Ministry of Finance did not find the CA Rs of particular use for the purposes of prescribing the norms. Additionally, no study could be based entirely on the CARs. We must accept the opinion of expert bodies in this regard. We do not have H

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A any contrary expert opinion on the subject and must go by the existing expert views. Proceeding on this basis, it would be incorrect on the part of Cipla and indeed the drug industry to say and contend that whatever information is required by the Central Government for fixing the norms was already available in the CA Rs and nothing more need be supplied to the Central Government. B I 0 I. Assuming the submissiori of Cipla and the drug industry to be correct, it would certainly not have been a problem at all for each company to fill up the questionnaires sent by each of the Committees, if all the information required by the questionnaires was already available in the CAR of each company. Assuming again that the required information c could be extracted by each Committee from the CAR, it could more easily be extracted by each company from its own CAR and provided to the Masood Committee and the Jharwal Committee. Under these circumstances, it is inexplicable why the drug industry declined to fill up the questionnaires sent to their member companies from time to time. D There is certainly more to it than meets the eye. I02. It is true, as contended by learned counsel for Cipla that no manufacturer/formulator is under an obligation to furnish whatever information is required by the Central Government including information that might be confidential. But that does not mean that absolutely no information should be supplied by any company or incomplete information should be supplied by a very few of them. It would certainly be more appropriate for each company to have responded to the questionnaires sent with a communication that some particular information is not being furnished for reasons of confidentiality. But no such courtesy was extended. While there may not be a statutory obligation on each manufacturer/formulator to furnish information for prescribing the norms, there is certainly a moral and social obligation on them to furnish information so that appropriate norms could be notified not only for their benefit but also for the benefit of the consumers. The preamble to the Essential Commodities Act, 1955 cannot be forgotten. By not furnishing the information required, the drug industry pushed the Central Government into a corner leaving it with no option but to prescribe the norms on the basis of available material and later re-notify the norms.

103. lt is also true that fixing the price of formulations based on the norms prescribed under Paragraph 7 of the DPCO 1995 is a legislative activity which the Central Government was obliged to carry out on its

UNION OF INDIA & ORS. v. M/S. ClPLA LTD. & ANR. 577 [MADAN B. LOKUR, J.]

own research and assessment, assuming there was no cooperation from · A the manufacturers/formulators. The efforts made by the Masood Committee and the Jharwal Committee for prescribing the norms for the purposes of Paragraph 7 of the DPCO 1995 were steps leading up to this legislative activity. It is nobody's case that no preliminary steps were taken or that no exercise was undertaken for arriving at appropriate B norms - the steps and exercise were in fact undertaken through expert Committees but the material used in the exercise and the resultant Reports were criticized by learned counsel appearing for Cipla. We are of the view that given the circumstances that the two Committees were faced with and given the virtual non-cooperative attitude of the drug industry, the Central Government prescribed the norms and Cipla and the drug c industry were obliged to accept them as notified without much ado. It cannot be that the drug industry does not supply necessary information and data to the expert Committees appointed by the Central Government and then blames the Central Government for taking a decision without· necessary information and data. D I 04. The failure of the drug industry to extend effective cooperation appears to be an endemic problem. A situation somewhat similar to the one that we are concerned with had arisen in Union of lnclhl v. Swiss Garnier Life Sciences. - In that decision, it was noticed by this Court that communications were sent to the manufacturers/formulators of a particular formulation to provide reasons why that formulation should not be classified as a derivative of another formulation. In paragraph 4 of the Report, it was noted that the requisite information was not furnished, even after a substantial lapse of time and a reminder. This observation was reiterated in paragraph 44 of the Report and it was held that in view of the refusal of the manufacturers/formulators to furnish the detailed information, the Central Government was well within its jurisdiction to resort to Paragraph 11 of the DPCO 1995 and fix the price ofthe formulation on the basis of information available. I 05. Similarly, in Secretary, Ministry of Cltemicais and Fertilizers v. Cipla Ltd. 8 it was observed by this Court in paragraph 8.4 0 of the Report that bulk drug producers did not disclose necessary information to the Central Government, despite a request having been made in that regard and that there was no good reason why the relevant information should be withheld. It was observed: 1 (2013) s sec 615 • (2003) 1 sec 1 H

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A "Sales of bulk drugs effected during the year by bulk drug producers including some of the respondents herein would have furnished the best indicia of domestic sale turnover of bulk drug. But, those details were not disclosed. Secondly, if the bulk drug produced was consumed by any bulk drug producer or importer and the drug was sold in the form of B formulations, the statistics regarding the quantum of bulk drug utilized in such formulations and the value thereof must have been within the knowledge or reach of the writ petitioners and there is no good reason why they should withhold all this relevant information and harp on the ORG c data. There is no need to resort to guesswork when the actual figures are available at the doorsteps of the respondents." I 06. Be that as it may, our conclusion on this aspect of the matter is that the antecedent materials (the Reports) on the basis of which the norms were recommended and then prescribed under Paragraph 7 of the DPCO I 995 are subject to lesser judicial scrutiny, limited perhaps only to the application of completely erroneous principles. The burden for demonstrating the application of completely erroneous principles is heavy as it is and it is heavier still ifthe antecedent material is prepared by experts. The onus of discharging the heavy burden must necessarily fall on the challenger, and Cipla has not been able to sustain the challenge. There can be and are differences of opinion but we cannot and will not reconsider the opinion of experts, particularly in matters of economic affairs or other economy related issues unless there is extremely strong reason to do so.

F 107. We end this discussion with a conclusion arrived at by the Constitution Bench in Sltri Sitar(lnt Sug(lr Co. Ltd. in paragraph 49 of the Report: "Where a question of law is at issue, the court may determine the rightness of the impugned decision on its own G independent judgment. If the decision of the authority does not agree with that which the court considers to be the right one, the finding of law by the authority is liable to be upset. Where it is a finding of fact, the com1 examines only the reasonableness of the finding. When that finding is found to be rational and reasonably based on evidence, in the sense H

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 579 [MADAN B. LOKUR, J.]

that all relevant material has been taken into account and A no irrelevant material has influenced the decision, and the decision is one which any reasonably minded person, acting on such evidence, would have come to, then judicial review is exhausted even though the finding may not necessarily be what the court would have come to as a trier of fact. B Whether an order is characterised as legislative or administrative or quasi-judicial, or, whether it is a determination of law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is found to have ''warrant in the record" and a rational c basis in law: See Rochester Tel. Corp. v. United States 9 • See also Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1''." [Emphasis supplied] This view was reaffirmed in paragraph 58 of the Report in the following words: D "Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority. As stated by Justice Cardozo in Mississippi E Valley Barge Line Company v. United States ofAmerica. 11 "The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to fonn .... It is not the province of a court to absorb this function to itself.... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." [Emphasis supplied] I 08. For the above reasons we disagree with the Allahabad High Court and hold that the various notifications issued under Paragraph 7 of the DPCO 1995 in 1999 and thereafter prescribing the norms for conversion cost, packing charges and process loss of raw materials (other 9 307 US 125 (1939): 83 Led 1147 iu (1948) I KB 223: (1947) I All ER 498 11 292 US 282. 286-287 : 78 Led 1260. 1265 H

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A than packing materials in conversion) and packing and process loss of packing materials in packaging were issued after due application of mind and based on available material duly examined by an expert body. The notifications were not arbitrarily issued nor were they discriminatory in any manner at all nor were they issued mechanically nor could it be said that they were issued without any application of mind. B Re-notification of norms I 09. Another facet of the submission oflearned counsel for Cipla was that the same norms prescribed by the notification dated 13tl'July, 1999 could not have been notified mechanically year after year and the c fact that the norms were simply re-notified from 2000 to 2003 is a clear indication of non-application of mind by the Central Government to the issue at hand. In response, the learned Solicitor General referred to Shri Malaprablla Coop. Sugar Factory v. Union of India. 1" In that decision, it was noted that the levy sugar prices for the 1975-76 sugar season were notified at the same level as those in the previous season. D This Court took the view that the re-notification could not be faulted on grounds of arbitrary exercise of power for several reasons mentioned in paragraph 84 of the Report. In other words, the concept or principle of re-notification is not unheard of and there is no illegality per se in re- issuing the norms without any change, but the reasons for re-notification ought to exist - re-notification should not be a short-cut method to be routinely employed.

110. What then are the reasons that prompted the Central Government to re-notify the norms prescribed by the notification dated J3•h July, 1999? On the one hand, there was virtual non-cooperation from the drug industry in providing information to the Central Government despite repeated requests and reminders even by expert Committees constituted for the purpose. On the other there was a perceived statutory obligation on the Central Government to notify the norms every year and that responsibility could not be effectively discharged without the cooperation of the drug industry. Therefore the Central Government, G faced with an extra-ordinary situation and a stalemate putting the consumers of an essential commodity at the mercy of the drug industry, had no option but to re-notify the existing norms in public interest on the basis of the available material.

"<I994J 1 sec 648 H

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 581 [MADAN B. LOKUR, J.]

111. We have adverted to the issues that confronted the Central A Government during this period, namely, the unambiguous decision of the drug industry not to extend any cooperation to the Central Government in arriving at appropriate norms for the purposes of Paragraph 7 of the DPCO 1995. The views of the Indian Pharmaceutical Association and the IDMA have already been referred to. The insistence of the drug B industry to 'vvork out the norms on the basis of the CARs was another stumbling block staring at the face of the Central Government. The Cost Accounts Branch of the Department of Expenditure in the Ministry of Finance, a neutral body in that sense, had clearly expressed the view that the norms could not be effectively determined only on the basis of the CARs. Finally, the non-cooperation of the drug industry from October c 1998 onwards was another road block. The overall attitude of the drug industry appears to be one of profit making or preserving commercial interests, while the concern should really be of promoting consumer interest. Faced with these competing interests, the Central Government sided with the consumer and cannot be faulted for it. The Central D Government did not act in a routine or mechanical manner in re-notifying the norms every year from 2000 onward. In our opinion, the explanation put forward by the learned Solicitor General deserves acceptance.

112. We conclude that the re-notification of the prescribed norms in the period 2000 to 2003 was not mechanical or without any application of mind. The materials were before the Central Government and there E was no change in the content of the materials. If there was, the drug industry failed to effectively point it out as a result of their non cooperative attitude. We also hold that re-notification of the prescribed norms is per se not impermissible and in the present case it was justified in the circumstances. F Challenge to the actual norms prescribed

113. In Prag Ice & Oil Mills it was held that price fixation is really legislative in character since it satisfies the tests of legislation. Similarly, in Cymtmide India it was held that price fixation is more in the nature of a legislative activity than in any other. Price fixation may G affect manufacturers and producers or commodities but those who are most vitally affected are the consumers. Similarly, in Glaxosmitllkli11e Pllarmaceuticals Ltd. v. Union ofIndia 1-' it was held that price fixation by the Central Government under the DPCO is in the nature of a "(2014) 2 sec 753 H

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A legislative measure and the dominant object and purpose of such price fixation is the equitable distribution and availability of commodities at a fair price. A similar view was expressed by a Constitution Bench of this Court in Sltri Sitaram Sugur Compllny Ltd. when it was said: "Price fixation is in the nature of a legislative action even when it is based on objective criteria founded on relevant material." In Suruswuti Inc/ustria/ B Syndicate Ltd. v. Union of Indill 14 this Court was more specific when it said that "Price fixation is more in the nature of a legislative measure even though it may be based upon objective criteria found in a report or other material."

114. The norms fixed by the Central Government are of general c application, they are not intended to benefit or harm any particular manufacturer or formulator and indeed no manufacturer or formulator is required to be heard (or was heard) in the detennination, they are notified in the Official Gazette forthe information of the general public and in arriving at the norms the general attributes oflegislative activity are attended to by the Central Government for the benefit of the consumers. The notification of the norms therefore has the character of legislative activity.

115. No submission was made before us to the effect that the formula given in Paragraph 7 of the DPCO 1995 was not applied proprio vigore by the Central Government. The statutory criterion for price fixing is the formula given in Paragraph 7 of the DPCO 1995. Whether this formula has been operated as it should be is certainly subject to judicial review. Therefore, while operating the formula, ifthe Central Government did not take conversion cost into consideration (for example) or took into consideration some factor not in the formula then, the Court could certainly strike down the retail price or the ceiling price so fixed by the Central · Government on the ground that relevant factors were ignored or irrelevant factors were taken into consideration. No such allegation was made and no such contention was advanced by learned counsel for Cipla. Therefore, we need not dwell on this aspect. G (ii) Yearly prescription of norms

116. lt may be recalled that prior to 1995, the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in conversion and packing) and process loss of packing "(1974) 2 sec 630 H

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 583 [MADAN 8. LOKUR, J.]

materials in packaging were prescribed by notifications issued on 17m A February, 1989 and I 51h July, 1993 in exercise of powers conferred by Paragraph 6 of the DPCO 1987. When the DPCO 1995 was issued, it provided for a 'transitional' provision through Paragraph 8(5) and Paragraph 27 thereof. 11 ·i'. Paragraph 8(5) of the DPCO 1995 provides that the retail 8 price of a scheduled formulation shall, until the retail price thereof is fixed under the DPCO 1995, be the price which prevailed immediately before the commencement of the DPCO 1995. 15 Paragraph 8 of the DPCO 1995 reads as follows: "8. Power to fix retail price of scheduled formulations. c -(I) The Government may, from time to time, by order, fix the retail price of a Scheduled formulation in accordance with the formula laid down in para. 7. (2) Where the Government fixes or revises the price of any bulk drug under the provisions of this Order and a D manufacturer utilises such bulk drug in his scheduled formulations he shall, within thirty days of such fixation or revision, make an application to the Government in Form Ill for price revision of all such formulations and the Government may, if it considers necessary, fix or revise the price of such formulation. E (3) The retail price of a formulation on.ce fixed by the Government under sub-paragraphs (I) and (2) shall not be increased by any manufacturer except with the prior approval of the Government. (4) Any manufacturer, who desires revision of the retail price of a formulation fixed under sub-paragraph ( 1), shall make an application to the Government in Form III or Form IV, as the case may be, and the Government shall after making such enquiry, as it deems fit within, a period of two months from the date of receipt of the complete infonnation, fix a revised price for such formulation or reject the application for revision for reasons to be recorded in writing. " ·'Retail price includes ceiling price (fixed under Paragraph 9 of the DPCO 1995). Retail price is defined in Paragraph 2(s) of the DPCO 1995 as follows: "retail price" means the retail price of a drug arrived at or fixed in accordance with the provisions of this Order and includes a ceiling price.'" H

p. 584 Copy page pinpoint

A (5) Notwithstanding anything contained in the foregoing sub- paragraphs the retail price of a scheduled formulation, of a manufacturer shall, until the retail price thereofis fixed under the provisions of this Order, be the price which prevailed immediately before the commencement of this Order, and the manufacturer of such formulation shall not sell the B formulation at a price exceeding the price prevailing immediately before the commencement of this Order. (6) No manufacturer or importer shall market a new pack, if not covered under sub-paragraph 3 of para 9, or a new formulation or a new dosage form of his existing scheduled c· formulation without obtaining the prior approval of its price from the Government. (7) No person shall sell or dispose ofany imported scheduled . formulation without obtaining the prior approval of its price from the Government." D Similarly, Paragraph 27 of the DPCO 1995 provides that any notification issued under the DPCO 1987, unless it is inconsistent with its provisions will be deemed to have been issued under the corresponding provision of the DPCO 1995. Paragraph 27 of the DPCO 1995 reads as follows: E "27. ~epeal and saving.- (I) The Drugs (Prices Control) Order, 1987 is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken, including any notification or Order made, direction given, notice issued or exemption granted under the Drugs F (Prices Control) Order, 1987, shall in so far as it is not inconsistent with the provisions of this Order, be deemed to have been done taken, made, given, issued or granted, as the case may be, under the corresponding provisions of this Order." G Ex facie therefore, there is no error in continuing the norms prescribed under the DPCO 1987 even after the promulgation of the DPCO 1995. However, the question is whether this arrangement can continue indefinitely?

118. The DPCO 1995 came into operation on 6'h January, 1995. H

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 585 [MADAN B. LOKUR, J.]

Ordinarily therefore the first notification under Paragraph 7 thereof ought A to have been issued in July 1995, or soon thereafter. (We were told by the learned Solicitor General that the year for prescribing the nonns is from July to June of the following year. It is for this reason that the various notifications under Paragraph 7 of the DPCO 1995 were issued in July). Perhaps the Masood Committee was constituted on 24th April, B 1995 forth is purpose and initially it was required to submit its Report on or before 30th June, 1995 but time was extended till 31" August, 1995.

119. Whatever be the position, the fact is that the Central Governme:it did not notify the norms on a yearly basis for four years 1995-1996, 1996-1997, 1997-1998 and 1998-1999. We are really concerned with the default for this period. The NPPA was set up on 29th c August, 1997 and the Jharwal Committee was set up on 8'11 October, 1998 more than two years and three years respectively after the DPCO I ~95 was issued. The purpose of setting up the Jharwal Committee was to revise the norms applicable since 15th July, 1993. Pursuant to the Report of the Jharwal Committee the Central Government did issue a D notification on ] )th July, 1999 under Paragraph 7 of the DPCO 1995. On the issue under consideration, we are presently not concerned with the period 1999 onwards till 2004.

120. Paragraph 7 of the DPCO 1995 gives the formula for arriving at the retail price of a formulation. The application of the formula is undoubtedly mandatory and the Central Government cannot contend that the retail price of a fonnulation can be fixed de hors the formula. The question i$ whether the norms mentioned in Paragraph 7 of the DPCO 1995 are required to be prescribed every year even ifthere is no perceived qualitative or quantitative change in them. In other words, is the prescription of norms every year mandatory even though circumstances do not warrant any such prescription and what is the consequence ifthe Central Government does not prescribe the norms every year- is it fatal to the notifications issued under Paragraphs 8 and 9 of the DPCO 1995 whereby the retail price and ceiling price of formulations was fixed? G 12 l The purpose of detennining and prescribing the norms every year is limited to the requirement of fixing the retail price of formulations in terms of the fonnula given in Paragraph 7 of the DPCO 1995. The Central Government set up the Masood Committee in April 1995 precisely for this purpose. However its work was stymied by the drug industry H

p. 586 Copy page pinpoint

A through its non-cooperation. It is true that notwithstanding the road block set up by the drug industry, the Central Government could very well have determined and prescribed the norms as required by Paragraph 7 of the DPCO 1995. Why didn't the Central Government do so?

122. There are several reasons that can be culled out from the B Report of the Masood Committee for the Central Government not determining and prescribing the norms in 1995 and thereafter for the next three years. Firstly, according to the Masood Committee the drug industry had been provided a sufficient cushion by the acceptance of the recommendations of the Sankaran Committee. Under the circumstances continuing with the norms for conversion cost and packing charges c prescribed under the DPCO 1987 would not have disadvantaged the manufacturers/fonnulators in any manner.

123. Secondly, the packing material ceilings had been recently upwardly revised from Th July, 1994 and the manufacturers/formulators could take advantage of the cost of packing material on actuals. Surely, D this was beneficial to them.

124. Thirdly, according to the Masood Committee with high production levels and better capacity utilization as well as new technological processes, the process loss on raw materials and packing material ought to have come down. But since the drug industry did not provide necessary information through the questionnaire sent to the drug industry and the companies, an ad hoc reduction in the existing norm for process loss fixed by the Sankaran Committee was not recommended by the Masood Committee. This too was to the advantage of the manufacturers I formulators. Actually, the Masood Committee expressed the view that the existing nonns for process loss on raw materials and packing materials was on the high side.

125. Fourthly, the Masood Committee noted that there was a decrease in total formulation activity coming under price control from 70% under the DPCO 1987 to 50% under the DPCO 1995 and uniform G MAPE of 100% under the DPCO 1995 as against 75% and 100% MAPE under the DPCO 1987. Even this was advantageous to the manufacturers/formulators.

126. Whichever way the issue is looked at, it is clear that the manufacturers/formulators were not put to any disadvantage in the retail price fixed on the basis of the norms prescribed under the DPCO 1987. H

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 587 [MADAN B. LOKUR, J.]

Therefore, we are of opinion that under these circumstances, the bona A fides of the Central Government in not prescribing the norms every year certainly cannot be doubted.

127. That apart, the provisions of Paragraph 8(5) and Paragraph 27 of the DPCO 1995 come to the aid of the Central Government and - these provisions enabled the continuation of the norms prescribed under B Paragrap)l 6 of the DPCO 1987 and saved the notifications issued under the provisions of Paragraphs 8 and 9 of the DPCO 1995. This 'arrangement' certainly could not have carried on indefinitely, but the - recalcitranc~ of the drug industry pushed the Central Government into a · corner leaving it with little option but to continue the 'arrangement' till an alternative was found through an in-depth study. This is pl:rhaps where c the Central Government erred. It should have set up the NPPA soon after announcing the new Drug Policy in I 994 and it should have enacted a legislation constituting the National Drug Authority in terms of the Drug Policy, 1994. Had these steps been taken, the Central Government would not have to face litigation in different parts of the country. What is tragic is that even today, there does not seem to be any sign of the Central Government taking any steps to constitute a statutory National Drug Authority.

128. But be that as it may, although several notifications issued between 1995 and 1999 were collaterally challenged- by the manufacturers/formulators, we were not shown any notification in which the retail price or the ceiling price was varied to their detriment. Assuming there was such a notification, a manufacturer/formulator was entitled to question the adverse revision by moving an application u_nder the provisions of Paragraph 8(4) and Paragraph 22 of the DPCO 1995. No such application was moved by any manufactureffformulator. Paragraph F 22 thereof reads as follows: "22. Power to review.- Any person aggrieved by any notification issued or order made under paras. 3, 5, 8, 9 or I 0 may apply to the Government for a review of the notification or order within fifteen days of the date of G pubfa:qtion of the notification in the Official Gazette or the receipt of the order by him, as the case may be, and the Government may make such order on the application as it may deem proper : H

588 SUPREME COURT REPORTS [2016] 7 S.C .R.

A Provided that pending a decision by the Government on the application submitted under the above paragraph, no manufacturer, importer or distributor, as the case may be, shall sell a bulk drug or formulation, as the case may be, at a price exceeding the price fixed by the Government of which a review has been applied for." B It was contended that a revision could not be sought since norms were not fixed and for the purposes of challenging the retail price or the ceiling price fixed under Paragraphs 8 and 9 (as the case may be) ofthe DPCO 1995 it was necessary to know the norms fixed. We propose to deal with this issue a little later. c

129. A question of seminal importance arises, namely, whether the legislative activity of prescription of norms every year is at all necessary even if there is no occasion to change or modify the retail price of a formulation. Is the exercise of determining the norms by the Central Governments required to be mechanically carried out every year as a D ritual? Perhaps not. It is not necessary to revise the retail price or ceiling price of every formulation every year - and if there is no such mandate, then it must follow that there is no mandate to prescribe the norms every year under Paragraph 7 of the DPCO just for the sake of it. What consumer interest would an annual change in retail price serve in the context of over 2000 formulations? What has to be seen by the Central Government, in the larger context, is whether the drug industry is losing out in any manner and whether the consumers of formulations are being put to any discomfort. A fine balance has to be struck and if the Central Government has been successful in doing that, as it appears, then carrying out an annual ceremonial procedure or annual academic exercise of determining and prescribing the norms under Paragraph 7 of the DPCO 1995 regardless of whether there is any necessity to do so is not mandatory.

130. The Central Government cannot be compelled to perform a legislative activity or legislative exercise that is of no consequence and is perhaps ritualistic. We are ofopinion that while the formula given in Paragraph 7 of the DPCO 1995 must be mandatorily adhered to for fixing the retail price of a formulation, the requirement of prescribing the norms every year is discretionary and would depend upon the exigencies of the situation - it might be every year or less frequently or more frequently.

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 589 [MADAN 8. LOKUR, J.]

131. It was also contended by learned counsel for one of the respondents before us that there was a qualitative difference between the DPCO 1987 and the DPCO 1995 in as much as under the DPCO 1987 the norms were required to be prescribed from time to time under Paragraph 6 thereof. However, .as far as the DPCO 1995 is concerned the norms were required to be prescribed on a yearly basis under 8 Paragraph 7 thereof. The submission was that the principles known as Heydon s mischief rule 16 are clearly applicable and there was a conscious decision by the Central Government to switch over from prescribing the norms from time to time to fixing the norms on a yearly basis. Since the norms were not fixed on a yearly basis under the DPCO 1995, the retail prices fixed by the Central Government on the formulations c on the basis of Paragraph 7 of the DPCO 1995 were illegal and liable to be struck down.

132. What was the mischief, if any, sought to be remedied? Nothing has been told to us in this regard by learned counsel. Given the scheme of the DPCO 1995 there was no mandate of prescribing the norms D under Paragraph 7 of the said DPCO every year. We therefore merely note the submission for whatever it is worth. (iii) Failure ~o prescribe the norms for cost of packing material

133. We may recall that the Sankaran Committee had noted that the norms for cost of packing material were not prescribed from 1979 E onward. Far from objecting to this, the drug industry had itself requested the Sankaran Committee to permit the cost of packing material to be taken on actuals. The Sankaran Committee accepted this suggestion while taking into account the inherent difficulty in prescribing any norm for cost of packing materials. We may draw attention to the notification dated J71h February, 1989 followed by the notification dated l 5'h July, )993 both issued under Paragraph 6 of the DPCO 1987 in this regard. Neither notification made any provision for cost of packing material as a norm. The notification dated l 7•h February, 1989 prescribe.d norms for conversion cost, packing charges and process loss of raw materials (other . than packing materials in conversion and packing) and process loss of packing materials in packaging. The notification dated J 5•h July, 1993 prescribed norms only for conversion cost and packing charges. No manufacturer or formulator made any grievance or complaint regarding the failure of the Central Government to prescribe the cost of packing 16 Heydon's Case, Neutral Citation Number: [1584) EWHC Exch 136 H

590 SUPREME COURT REPORTS [2016] 7 S.C.R.

A material as a norm.

134. The situation has not changed at all over the years. The silence of the drug industry continued as is evident from the fact that even 15 years later a notification was issued by the Central Government on 11th August, 2004 under Paragraph 7 of the DPCO 1995 prescribing the B norms for conversion cost, packing charges and process Joss of raw materials (other than packing materials in conversion and packing) and process loss of packing materials in packaging - but not for cost of packing material as a norm. Despite this, we were told by learned counsel appearing for the parties that there has been no dispute about price fixation since 2004 due to the absence of a norm for cost of material. c 13 5. In other words, it does appear to us that the drug industry was content with being allowed to take the cost of packing material on actuals rather than insisting on the Central Government issuing a notification prescribing the nonns for cost of packing material. We believe that in fact there was no necessity of fixing the cost of packing material D as a norm for the purposes of Paragraph 7 of the DPCO 1995 and that there was no fatal error in the notifications issued under Paragraph 7 of the DPCO 1995 from 1999 onward. This also adds to our conclusion that prescribing the norms every year under Paragraph 7 of the DPCO 1995 was a discretionary exercise.

E 136. As mentioned above, we can quite understand ifthe formula given in Paragraph 7 of the DPCO 1995 is not strictly adhered to by the Central Government while working out the retail price of a formulation. But ifthe drug industry is itself quite content with being given the benefit of actuals in material cost rather than having a norm fixed in that regard, then there is no obligation on us to completely upset the apple cart and quash a few dozen notifications at the behest of only a couple of respondents. If we do so, we would be acting to the detriment of the entire drug industry (except one - and we must mention that not many other manufacturers and formulators are before us), but we would also provide no advantage to the consumers who ha_ye already purchased the formulations more than a decade ago and have no hope of getting a refund on their purchase. Additionally, we would really be serving no public or societal interest in q4ashing a few dozen notifications under these circumstances. ' '

137. We may mention en passant that the ceiling price fixed by H

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 591 [MADAN B. LOKUR, J.]

the BICP on 7"' July, 1994 and thereafter revised by the NPPA in February A 1998 in respect of packing materials has not been questioned (let alone challenged) by anybody. (iv) Other submissions

138. It was contended by learned counsel appearing on behalf of Dr. Reddy's Laboratories Ltd. that the retail price or the ceiling price of 8 a formulation could not have been fixed by the Central Government without first fixing the maximum sale price under Paragraph 3 of the DPCO 1995 of the bulk drug utilized in the formulation. We are unable to accept this submission. In the first place, there is no obligation on the Central Government to fix the maximum sale price of every bulk drug, c whether it is in the First Schedule to the DPCO 1995 or not. In fact, if a bulk drug is not in the First Schedule to the DPCO 1995 the Central Government is not empowered to fix its maximum sale price. There could also be a situation where a formulation consists of two or more drugs, one of which is not a scheduled drug. In that event, if the contention · oflearned counsel is accepted then it would mean that the retail price or the ceiling price of that formulation cannot be fixed. This is surely not the intention of the DPCO 1995 nor is it a possible manner of reading the DPCO 1995. If the DPCO 1995 were to be read in the suggested manner, then every drug would have to be included in the First Schedule to the DPCO 1995 as a pre-condition to fixing the retail price or ceiling price of a formulation which contains that drug. This would be doing utmost violence to the plain provisions of the DPCO 1995 and for this simple reason we are unable to acceptthe submission oflearned counsel. The learned counsel has unfortunately overlooked that a formulation can contain 011e or more bulk drugs including a bulk drug not included in the First Schedule to the DPCO 1995. F

139. It has also l?een argued before us by learned counsel representing a small scale industry that the ceiling price of formulations fixed under Paragraph 9 of the DPCO 1995 denied the benefit of an exemption notification dated 2"d March, 1995 available to small scale industries. We are not inclined to take this argumen1 with any degree of seriousness particularly since it seems to suggest that the Central Government acted with a ma/a fide intent. There is no warrant for such an assumption and no such allegation or averment has been made in the pleadings. The issuance ofa notification under Paragraph 9 of the H

592 SUPREME COURT REPORTS (2016) 7 S.C.R.

A DPCO 1995 is a legislative exercise of power and to say that it was resorted to for denying the benefit ofan exemption to small scale industries can hardly be given any credence. However, if the submission was intended to convey the difficulty faced by small scale industries, it can hardly be helped. There is nothing in the DPCO 1995 to suggest that a small scale industry is kept out of the rigour of the DPCO 1995. It is B equally bound by any retail price· or ceiling price fixation by the Central Government.

140. It was then contended on behalf of the manufacturers/ formulators that the delegate of a power cannot travel beyond its authorization. Reliance in this regard was placed on V.K As/wkan v. c Assistant Excise Commissioner17 and District Collector, Cllittoor v. Cllittoor District Groundnut Traders Association. 18 There can be no dispute about th is proposition. It was further contended that if the delegate exceeds the powers conferred upon it by the principal, then the order passed by the delegate is void ab initio and cannot even be ratified. In this regard, reliance was placed on Maratllwada University v. D Seslirao Ba/want Rao Chavan. 19 The issue in the present case is not that the delegate (the Central Government) had exceeded its jurisdiction - the issue is that the Central Government failed to exercise the power vested in it by Paragraph 7 of the DPCO 1995. It is this that is under challenge and not the exercise of power in excess of jurisdiction. The E decisions cited on behalf of the manufacturers/formulators in this regard are therefore not quite relevant. In any event, we have already· dealt with the issue of the purported failure of the Central Government to i.:omply with the requirement of prescribing the norms under Prtragraph 7 of the DPCO 1995 and repetition is not necessary.

F 141. We may mention that relying upon Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation,~0 Mayor & C Westminster Corporation v. London anti North Western Railway? Barium Chemicals Ltd. v. Company Law Boart/12 and State of U.P. v~ Renusagar Power Co. 2•1 the Constitution Bench observed in Sliri ~itaram Sugar Company Ltd. that ;'A repository of power acts ultra G 11 (2009) 14 sec 85 " ( 1989) 2 sec 58 • (1989) 3 sec 132 1

20 ( 1948) 1 KB 223 : ( 194 7) 1 All ER 498 21 1905 AC 426.430: 93 LT 143 22 1966 Supp SCR 311

H "(1988) 4 sec 59

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 593 . [MADAN B. LOKUR, J.]

vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness." 1t was then concluded in paragraph 52 of the Report: "The true position, therefore, is that any act of the repository of power, whether legislative or administrative or quasi- judicial, is open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it." c

142. To this we may add thatthe action of a repository of power is also amenable to judicial review ifit is contrary to or violates the mandatory requirement of a subordinate legislation. Therefore, if the Central Government does not adhere to the formula given in Paragraph 7 of the DPCO 1995 and fixes the retail price or ceiling price of formulations without following the formula laid down, the notification issued by the D Central Government under Paragraph 8 or Paragraph 9 of the DPCO 1995 (as the case may be) is liable to quashed as being contrary to law. However, no instance has been pointed out to us compelling us to use our power of judicial review and quash the notifications under consideration. E Alternative remedy

143. The learned Solicitor General was quite vehement in his submission that if any manufacturer or formulator was aggrieved by the fixing of any the retail price or ceiling price of any formulation, there was an alternative remedy available in the DPCO 1995 to ventilate and ~· F articulate the grievance. There is no reason why no one actually sought any revision or review of any of the price notifications before us. In this context it was pointed out that several constituents of the drug industry had taken resort to alternative procedures (including Cipla) and therefore it is not as ifthe alternative remedy is illusory. G

144. In response, it was contended that there was hardly any material before Cipla to meaningfully resort to the alternative remedy provided under the DPCO 1995. Additionally, the norms were not prescribed on an annual basis and in the absence of the norms it was not H

594 SUPREME COURT REPORTS [2016] 7 S.C.R.

A possible for anyone to make an effective case for revision or review of any retail price or ceiling price notification. Reference was made to Form III in the Second Schedule to the DPCO 1995. I 45. Form Ill is a Form of application for approval or revision of the price of scheduled formulations. This requires, in paragraph I 3 B thereof, information relating to the break-up of the retail price of a formulation. Our attention was drawn to sub-paragraph (b) [Conversion Cost (as per·norms)] and sub-paragraph (c) [Packing Material Costs (Per SI. No. 15 or as per norms)]. The submission was that an effective application could not be made without the norms being prescribed. As mentioned above, the norm for conversion cost was prescribed first by c the notification dated I 7•h February, 1989 and then by the notification dated JJlh July, 1999 (and subsequent notifications). It is difficult to accept the submissioQ that despite these notifications a manufacturer or formulator was unaware of the norms for conversion cost. As far as the norm for packing material cost is concerned, sub-paragraph (c) provides an option to the applicant-either the information mentioned in paragraph 15 may be provided or the norms may be provided. Paragraph 15 requires the applicant to provide information pertaining to the pack, batch size (tablets I gms etc.), name of the packing material, rate per unit, quantity . required per batch and value of packing material/batch nos./kgs etc. (in rupees). Therefore, even ifthe norm for cost of packing material is not prescribed, the applicant can provide the requisite information (based on actuals) for the purposes of making an effective application for revision of the price of a scheduled formulation. Incidentally, the Form also confirms that no manufacturer or formulator is placed at any disadvantage ifthe norm for packing material cost is not prescribed under Paragraph F 7 of the DPCO 1995 but actuals are allowed.

146. The efficacy of the alternative remedy provided in the DPCO was the subject matter of consideration in Cynamide India Ltd. The contention urged therein was that for the purposes of price fixing, facts and figures were arbitrarily assumed by the Central Government. Rejecting G this, it was held by this Court in paragraph 11 of the Report as follows: -" ......... We do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures. We think that ifthere is any grievance on_ that score, the proper thing for the manufacturers to do is bring it to the notice of the Government in their applications

UNION OF INDIA & ORS. v. MIS. CJPLA LTD. & ANR. 595 [MADAN B. LOKUR, J.]

for review. The learned counsel argued that they were unable to bring these facts to the notice of the Government as they . were not furnished the basis on which the prices were fixed. On the other hand, it has been pointed out in the counter- affidavits filed on behalf of the Government that all necessary and required information was furnished in the course of the hearing of the review applications and there was no justification for the grievance that particulars were not furnished. We are satisfied that the procedure followed by the Government in furnishing the requisite particulars at the time of the hearing of the review applications is sufficient compliance with the demands c of fair play in the case of the class of persons claiming to be affected by the. fixation of maximum price under the· Drugs (Prices Co~trol) Order." [Emphasis supplied by us]." We have no doubt that if any manufacturer or formulator had taken the trouble of preferring a revision or review application, all D necessary material would have been inade available to the complainant for an effective representation. We are satisfied that none of the parties before us was precluded by circumstances from preferring a revision or review for corrective measures in relation to the retail price or ceiling price of any particular formulation - in fact, we are told by the learned Solicitor General that some of them did. E

147. Strictly speaking, in view of the availability of an alternative and efficacious remedy available under the DPCO 1995 read with the decision of this Court in Cynllmitle Indill Ltd. the writ petitions filed by the manufacturers and formulators before us ought not to have been entertained by the concerned High Courts, but.we leave it at that. F

Forum shopping

148. The learned Solicitor General submitted that Cipla was guilty of forum shopping inasmuch as it had filed petitions in the Bombay High, Court, the Karnataka High Court ancl also an affidavit in the Delhi High G Court as a member of the Bulk Drug Manufacturers Association and had eventually approached the Allahabad High Court for relief resulting in the impugned judgment and order dated 3rd March, 2004. It was submitted that since Cipla had approached several constitutional Courts · for relief, the proceedings initiated in the Allahabad High Court clearly H

596 SUPREME COURT REPORTS [2016) 7 S.C.R.

A amount to forum shopping.

149. We are not at all in agreement with the learned Solicitor General. Forum shopping takes several hues and shades and Cipla's petitions do not fall under any category of forum shopping.

150. A classic example of forum shopping is when a litigant B approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia v. Govt. of NCT of Delhi and others. 24 The respondent- mother of a young chi Id had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required c relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the D Delhi High Court to the respondent-mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping.

151. In Aratlti Randi v. Bcmdi Jagadmksltaka Rao 2-' this Court noted that jurisdiction in a Court is not attracted by the operation or E creation of fortuitous circumstances. In that case, circumstances w~re created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would only result in encouraging forum shopping.

F 152. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corporatioq v. SNP Shipping Services Pvt. Ltd. and ot/lefs26 wherein it was observed that the respondent/plaintiff had made a deliberate attempt to bring the cause of action namely a collision between two vessels on the high seas within G the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order to confer jurisdiction on the Bombay High Court had the character of forum shopping rather than anything else.

" <1999) s sec 525 ~· (2013) 15 sec 790 "< 1998) 5 sec 310

UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 597 [MADAN B. LOKUR, J.]

153. Another form of forum shopping is taking advantage of a A view held by a particular High Court in contrast to a different view held by another High Court. In Amhica Industries v. Commissioner of Central Excise 27 the assessee was from Lucknow. It challenged an order passed by the Customs, Excise and Service Tax Appellate Tribunal (the CESTAT) located in Delhi before the Delhi High Court. The CESTAT B had juri~diction over the States of Uttar Pradesh, NCT of Delhi and Maharashua. The Delhi High Court did not entertain the proceedings initiated by the assessee for want of territorial jurisdiction. Dismissing the assessee's appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the c Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy.

154. Yet another form of forum shopping was noticed in Jagmolum Bait/ and a11otlter v. State (NCT of Del/ti) anti m10tlter2H wherein it . was held that successive bail applications filed by a litigant ought to be heard by the same learned judge, otherwise an unscrupulous litigant would go on filing bail applications before different judges until a favourable order is obtained. Unless this practice was nipped in the bud, it would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity.

155. Another category of forum shopping is approaching different F Courts for the same relief by making a minor change in the prayer clause of the petition. In Utlyami Evam Klwtli Gramotlyog Weifare Stmstlw and anotlter v. State of Uttar Pratleslt anti otlters29 it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition G centred round the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for others with a view to confer jurisdiction on a particular Court would also amount to forum shopping "(2007) 6 sec 769 "(2014) 16 sec 501 " (2008) 1 sec 560 H

598 SUPREME COURT REPORTS [2016] 7 S.C.R.

A by that group of petitioners.

156. Finally and more recently, in Supreme Court Advocates on Record Association v. Union of India (Recusal Matter)3° Justice Khehar noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a judge B requiring the judge to recuse from the proceedings so that the matter could be transferred to another judge.

157. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-a-vis the litigation and the litigant. What has to be seen is whether there any functional similarity c in the proceedings between one Court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.

158. Keeping all these examples in mind with several other nuances and also keeping the functional test in mind, we have examined the relief claimed by Cipla in the different High Courts and find that they have no substantive connection whatsoever with the relief claimed in the Allahabad High Court.

159. Be that as it may, we have examined the submissions made by the learned Solicitor General in respect of each of the writ petitions filed by Cipla.

160. The Bulk Drug Manufacturers Association had filed W.P. No. 5578of1997 in the Delhi High Court in which it had challenged the inclusion of8 bulk drugs in the First Schedule of the DPCO 1995. Among the bulk drugs whose inclusion was challenged were Salbutamol, F Theophylline, Ciprofloxacin and Norfloxacin.

161. The Delhi High Court required the members of the Bulk Drug Manufacturers Association to file an affidavit stating that they would be bound by the orders passed by the Delhi High Court. Pursuant to this direction, Cipla filed an affidavitin the Delhi High Court on 241h May, G 1999 stating that any final decision taken on the question of the inclusion or exclusion ofSalbutamol and Theophylline in W.P. No.5578of1997 will be binding on Cipla subject to any appeal preferred thereon. It was also disclosed by Cipla that it had already filed a writ petition in the

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UNION OF INDIA & ORS. v. MIS. CIPLA LTD. & ANR. 599 [MADAN B. LOKUR, J.]

Bombay High Court on 9 1h April, I 999 to the effect that Salbutamol be A exempted from price control under the DPCO 1995.

162. As mentioned above, on 9th April, 1999 Cipla had filed a writ petition being W.P.No.1749 of 1999 in the Bombay High Court. The challenge therein was to the inclusion of bulk drugs Salbutamol and Theophyiline in the First Schedule ofDPCO 1995. B

163. Cipla also filed Writ Petition No.1974 of2000 in the Bombay High Court on 22"d September, 2000 seeking exclusion of the bulk drug Ciprofloxacin from the ambit of price control under the DPCO 1995. It was contended that it should be excluded from the First Schedule of the DPCO 1995. c

164. Cipla filed a third writ petition in the Bombay High Court being W.P. No.2019 of 2000. This was filed on 28th September, 2000 and the challenge was to the inclusion of the bulk drug Norfloxacin within the ambit of price control under the DPCO 1995. D

165. Cipla also filed writ petitions in the Karnataka High Court being W.P. Nos.33989-34011 of2000. ln these writ petitions, several notifications issued under Paragraph 8 and Paragraph 9 of the DPCO 1995 as well as demand notices issued to Cipla were under challenge.

166. We find that almost all the notifications under challenge in the E Karnataka High Court were also the subject matter of challenge in the Allahabad High Court. However, Cipla had disclosed before the Allahabad High Court that it had filed writ petitions before the Karnataka High Court. There was therefore no concealment of any facts by Cipla. We also find that the consequence of allowing the three writ petitions filed by Cipla in the Bombay High Court would have had an impact on F the notifications challenged in theAllahabad High Court, but that impact would have been collateral and consequential. We are of opinion that under these circumstances, Cipla ought to have disclosed the filing of writ petitions in the Bombay High Court, but at this stage we.do not think it appropriate to non-suit Cipla only on this ground. G

167. The proceedings in the Allahabad High Court were initiated as a result of a show cause notice issued to Cipla. No similar show cause notice and no similar factual circumstances existed. in any of the other High Courts in which Cipla had initiated proceedings. It cannot, H

600 SUPREME COURT REPORTS [2016] 7 S.C.R.

A therefore, be said that Cipla had indulged in forum shopping in any manner whatsoever. Two comments

168. Before parting with these appeals, we would like to make two comments: Firstly, with regard to the manner in which the Union of B India has handled the litigation. We find that by and large, very little or scanty material was placed by the Union oflndia before the concerned High Courts, particularly the Allahabad High Court. On the other hand, several volumes of documents have been filed in this Court, though after permission. Such a practice deserves discouragement and we do so. c There are several reasons for this. It tends to degrade the importance of proceedings in the High Court and could subsequently embarrass the High Court which might inadvertently base its decision on insufficient material resulting in the possibility of an incorrect decision which is liable to be set aside. It might also cause serious prejudice to a litigant because it is for the firsttime in this Court that the entire material is made available to a litigant placing him/her at a disadvantage in dealing with issues of importance. It certainly places an unnecessary and totally avoidable burden on this Court which is required to deal with the material as a court of first instance. Under such circumstances this Court does not have the benefit of the opinion of the High Court while dealing with an appeal. All in all therefore, for the better adjudication of disputes and for the convenience of all concerned, it would be more appropriate for the Union oflndia, as indeed for all litigants to place on record all the material before the court of first instance, whether it is a district court or a High Court. We need say no more on this subject.

F 169. Secondly, the learned Solicitor General specifically and repeatedly requested us to comment on the grant of interim orders by the High Courts in matters concerning economic issues and particularly in matters pertaining to the sale of formulations at the retail price or ceiling price fixed by the Central Government through notifications issued under the DPCO. Certain interim orders were brought to our notice G restraining coercive action against a manufacturer/formulator when a price notification was under challenge. It is true that such an interim order could have a huge impact on society.

170. Jn Cy11amide /11dia this Court expressed the view that an interim order should not have the effect of staying the implementation of H

UNION OF INDIA & ORS. v. M/S. CIPLA LTD. & ANR. 601 [MADAN B. LOKUR, J.]

a notification fixing the price of a formulation under the DPCO. That A would be against public interest and, therefore, ought not to be made by a Court unless it is satisfied that no public interest is going to be served. This is what this Court had to say in paragraphs 3 7 and 3 8 of the Report: "We notice that in all these matters, the High Court granted stay ~,f implementation of the notifications fixing the B maximum prices of bulk drugs and the retail prices of formulations. We think that in matters of this nature, where prices of essential commodities are fixed in order to maintain or increase supply of the commodities or for securing the equitabie distribution and availability at fair prices of the commodity, it is not right that the court should make any c interim order staying the implementation of the notification fixing the prices. We consider that such orders are against the public interest and ought not to be made by a court unless the court is satisfied that no public interest is going to be served. D

In matters of fixation of price, it is the interest of the consumer public that must come first and any interim order must take care of that interest." E

171. Under these circumstances, we are clearly of the view that in matters where public interest is involved, the Court ought to be circumspect in granting any interim relief. The consequence ofan interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. We make it clear that it is not our intention to suggest to any Court how and in what F circumstances interim orders should or should not be passed but it is certainly our intention to make it known to the Courts that the time has come when it is necessary to be somewhat more circumspect while granting an interim order in matters having financial or economic implications. G I 72. We would also like to draw the attention to the Drug Policy, I 994 which mentions that as far as the drug industry is concerned, there are about 250 large units and about 8000 small scale units in operation. These units produce about 350 bulk drugs, and as we have mentioned above more than 2000 formulations. The Drug Policy, I 994 also mentions H

602 SUPREME COURT REPORTS [2016] 7 S.C.R.

A that the production of bulk drugs in 1993-94 is in the region ofRs.1320 crores and for the same period the production of formulations is in the region of Rs. 6900 crores. In other words, not only is the drug industry in the country extremely large with heavy financial stakes but there is lot at stake in it not only for the industry but also for the consumers. For this reason, the Courts have to extremely cautious in interfering in any B manner whatsoever with the working of the drug industry. Any interference by the Courts would have wide ranging repercussions not only in commercial terms but also for the people of the country. Conclusion c 173. Our answer to the questions identified are as follows: a. Whether the notification dated 13'h July, 1999 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 prescribing the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in D conversion) and packing and process loss of packing materials in packaging was issued mechanically and without any application of mind or is it valid in law? Our answer to this is that the notification is valid and that the notification was not issued mechanically or without any application of mind. E b. Whether the notifications dated J2•h July, 2000, J2•h July, 200 l, 12•h July, 2002 and J ]'h July, 2003 issued by the Central Government under Paragraph 7 of the Drugs (Prices Control) Order, 1995 re-notifying the norms prescribed on 13th July, 1999 were issued mechanically, without any application of mind and without re-determining the norms every year as required by the Drugs (Prices Control) Order, 1995 and are they F valid in law? Our answer is that the notifications are valid and were not issued mechanically or without any application of mind and that it was not necessary to re-determine the norms every year. c. Whether various notifications issued by the Central Government fixing the retail price or ceiling price of formulations under Paragraphs 8 G and 9 (as the case may be) of the Drugs (Prices Control) Order, 1995 without determining the norm for cost of packing material as required by Paragraph 7 of the Drugs (Prices Control) Order, 1995 are valid in law? Our answer is in the affirmative. d. Whether fixing the retail price of a formulation under Paragraph H

UNION OF INDTA & ORS. v. M/S. CIPLA LTD. & ANR. 603 [MADAN B. LOKUR, J.]

8 of the Drugs (Prices Control) Order, 1995 without first fixing the sale A price of a bulk drug under Paragraph 3 of the Drugs (Prices Control) Order, 1995 utilized in the manufacture of a formulation is valid in law? Our answer is in the affirmative.

174. In view of the above, the appeals filed by the Union oflndia are allowed. The impugned judgments and orders are set aside. The B appeals filed by Dr. Reddy's Laboratories Ltd. are dismissed. No costs.

Nidhi Jain Appeals disposed of.