Cadila Laboratories Ltd vs Union Of India
2022 Latest Caselaw 10228 Guj

     C/LPA/2175/2009                        JUDGMENT DATED: 16/12/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 2175 of 2009
                               In
         R/SPECIAL CIVIL APPLICATION NO. 7724 of 1990
                              With
          CIVIL APPLICATION (FOR STAY) NO. 2 of 2009
                               In
          R/LETTERS PATENT APPEAL NO. 2175 of 2009
                              With
        R/SPECIAL CIVIL APPLICATION NO. 5550 of 1999
=============================================

CADILA LABORATORIES LTD & 1 other(s) Versus UNION OF INDIA ============================================= Appearance: [LETTERS PATENT APPEAL 2175/2009] MR MIHIR THAKORE with MR BIJAL CHHATRAPATI AND MR SIDDHARTH SINHA for J SAGAR ASSOCIATES(8162) for the Appellant(s) No. 1,2 MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1

Appearance: [SPECIAL CIVIL APPLICATION NO. 5550 OF 1999] MR DEVANG NANAVATI with MS ANUJA S NANAVATI for the

MR HARSHEEL D SHUKLA for the Respondent (s) No. 1 MR SHAKEEL A QURESHI for the Respondent (s) No. 2, 3 =============================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 16/12/2022

ORAL COMMON JUDGMENT

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. In Letters Patent Appeal 2175 of 2009, order dated

31.07.2009 passed in Special Civil Application 7724 of 1990 has

been challenged where-under the respondents sought to recover

the liability under Drug Price Equalization Account in respect of

C/LPA/2175/2009 JUDGMENT DATED: 16/12/2022

"RIFAMPICIN" bulk drug by issuance of the impugned notice

dated 17.10.1990, whereas in Special Civil Application 5550 of

1999, the following prayer has been sought :

"23.(A) Your Lordships may be pleased to hold and declare that the provisions of para 7(2) (a) of the DPCO 1979 are ultra vires Article 14 of the Constitution of India and unconstitutional and void.

(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus, a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned notice/order dated 11th 16th September, 1998 at Annexure-'T' hereto as also the report/recommendations dated 5th August, 1997 made by the 2nd respondent at Annexure-'U' hereto; as also the impugned order dated 20.06.1999 issued by the respondent no. 3 read with the order dated 20.06.1999 issued by the Deputy Secretary of the respondent no. 1 (Annexure-'X' hereto) read with the order dated 29.06.1999 issued by the Respondent no. 3 (Annexure-'Y' hereto);

(B-1) Your Lordships may be pleased to issue a writ of mandamus or a writ of in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ order or direction quashing and setting aside the impugned order dated 03.08.1999 at Annexure-GG hereto.

(C ) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ in the nature of prohibition directing/prohibiting the respondents, their officers, servants and agents to forbear from implementing the impugned order dated 11th/16th September, 1998 (at Annexure-'T' hereto) and restraining the respondents from taking any coercive steps for

C/LPA/2175/2009 JUDGMENT DATED: 16/12/2022

recovery of the amounts pursuant to the said order dated 11th/16th September, 1998; as also the impugned order dated 20.06.1999 issued by the respondent no. 3 read with the order dated 20.06.1999 issued by the Deputy Secretary of the Respondent no. 1 (Annexure-'X' hereto) read with the order dated 29.06.1999 issued by the respondent no. 3 (Annexure-Y hereto);

(D) Pending the hearing an final disposal of the present petition, Your Lordships may be pleased :-

(i) to stay the operation and implementation of the impugned order dated 11th/16th September, 1998;

(ii) restrain the respondents, their officers, servants and agents from taking any coercive action against the petitioners for recovery of the amounts pursuant to the impugned order dated 11th/16th September, 1998;

(iii) direct the respondents to produce before this Honourable Court the terms of reference of the 2 nd respondent viz. The Murthy Committee Report and the 1990 Line of Action on the basis whereof the 2 nd respondent was required to make and has made the report dated 5th August, 1997 as also the written submissions made by the respondent no. 3 to the respondent no. 2 on behalf of the respondent No. 1 during the course of the proceedings before the respondent no. 2;

(iv) produce the copies of the authenticated documentary proof to demonstrate that the bulk drug price of Rs.58.62 and Rs.41.10 per gram was allowed in the price fixation of the formulations of the petitioners during the period 1979 to 1983;

(v) Direct the respondents to produce before this Hon'ble Court the 'norms' referred to in para 2 of the order dated 20.06.1999 which has been relied

C/LPA/2175/2009 JUDGMENT DATED: 16/12/2022

upon by the department in the impugned order dated 20.06.1999.

(vi) Direct the respondents to produce before this Hon'ble Court the 'documentary evidence' furnished by the department and as referred to and relied upon in para 4 of the impugned order dated 20.06.1999 to show that the company's price revision application were considered and disposed off on 09.09.1987.

(E) An ex-parte ad-interim relief in terms of prayer (D) above may kindly be granted; and

(F) Such other and further reliefs as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted."

2. Mr. Devang Nanavati, learned Senior Advocate appearing

for the petitioners would submit that he would not press prayer

23(A). Hence, same is dismissed as not pressed.

3. Mr. Devang Nanvati, learned Senior Advocate and Mr.

Mihir Thakore, learned Senior Advocate appearing for the

respective writ applicants would submit that the issue involved

in this appeal and petition are laid to rest by two judgments of

two different High Courts namely, High Court of Mumbai and

High Court of Karnataka by judgment dated 14.10.2009 passed

in Writ Petition 26118 of 2005 connected with Writ Petition No.

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9463 of 2006 (GM-RES) which was confirmed in Writ Appeal No.

4408 of 2011 dated 26.09.2012 and affirmed by the Hon'ble

Apex Court in Special Leave to Appeal (C) No. 22235 of 2013

dated 15.07.2015 and also similar view was taken by the

Division Bench of the Bombay High Court in Writ Petition No.

119 of 1999 vide order dated 19.02.2013 which was affirmed by

the Hon'ble Apex Court in SLP (C) No. 031566 of 2013 vide

common order dated 15.07.2015. Mr. Harsheel Shukla, learned

advocate appearing for the respondents does not seriously

dispute this fact.

4. In that view of the matter, we are of the considered view

that the appellants/petitioners herein would be entitled to the

reliefs sought for. Hence, we proceed to pass the following

: ORDER:

(i) Letters Patent Appeal 2175 of 2009 is allowed. The order dated 31.07.2009 passed in Special Civil Application 7724 of 1990 is set aside.

(ii) Special Civil Application 7724 of 1990 is allowed and notice dated 17.10.1990 Annexure-A28 issued by Under

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Secretary to Government of India, Ministry of Petroleum and Chemicals, Department of Chemicals and Petrochemicals is hereby quashed.

(iii) Special Civil Application 5550 of 1999 is allowed in part and notice/order dated 11/16.09.1998 (Annexure-T) and the consequential order dated 03.08.1999 (Annexure- GG) are hereby quashed.

(iv) Costs may easy.

(v) Pending Civil Applications, if any, stand consigned to records.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) phalguni