BULK DRUG MANUFACTURER ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) This matter is placed before me in view of difference of opinion expressed by the Judges of the Division Bench on the application filed by the respondents registered and numbered as C.M. No. 1583/1999 seeking for vacation of the interim order dated 7.1.1999. The point of reference is in the following terms: .

(2.) The petitioner No. 1 is an association of the Bulk Drug Manufacturers of India having 300 members from all over India. In exercise of the powers conferred under the Essential Commodities Act the Central Government promulgated a control order called the Drug (Prices Control) Order, 1995 (hereinafter referred to as DFCO) which was promulgated under the provisions of Section 3 of the Essential Commodities Act, 1955. The aforesaid section, of the Essential Commodities Act authorises the respondent No. 1 to control the prices at which an essential commodity may be brought or sold, for maintaining or increasing the supplies of the essential commodity or for securing its availability at fair prices. As against the new Drug (Prices Control) Order, 1995 representations were filed on behalf of the members of petitioner No. 1 calling upon the respondents to exclude 19 drugs based upon the said policy. A writ petition was also filed in the Bombay High Court which was registered as Writ Petition No. 569/1996 titled Sukta Chemical and Others v. Union of India and Others. In the said writ petition the question that was raised was about the inclusion of certain bulk drugs in the 1st Schedule of the DPCO, 1995. On similar question three other writ petitions were filed and an interim order was passed by the Bombay High Court on 10.12.1996. By the aforesaid order interim orders were passed in the light of the directions made in the said writ petitions. Pursuant to the aforesaid order passed by the Bombay High Court and on the basis of representation filed by one of the petitioners herein clarifications were issued by the respondents by communication dated 10.6.1997 and the said clarifications have also been placed on record. On 7.9.1997 a notification was issued by the respondent No. 1 excluding two drugs out of the nineteen drugs for which representations were made on behalf of the petitioners. By the aforesaid notification the respondent No. 1 refused to exclude eight drugs which were sought to be excluded from the Drug Policy. The petitioner No. 1, accordingly filed their representation with the respondent calling upon them to atleast exclude another eight specific drugs which according to them were ex facie liable to be excluded as per the Drug Policy and accordingly the present writ petition was filed in this Court challenging the action of the respondents in including eight drugs manufactured by the petitioners and fixing the price of the said drugs under the DPCO, 1995. According to the petitioners the aforesaid action on the part of the respondent is illegal inasmuch as the said eight drugs did not attract the provisions of the Control Order and could not have been included in the notification. The petitioners have also challenged the constitutionality of the DPCO alleging that it is unconstitutional and ultra vires of the provisions of the Essential Commodities Act.

(3.) Notice was issued on the writ petition directing the respondents to file their counter affidavit. Counter affidavit and rejoinder were filed in the said writ petition. As in the aforesaid writ petition constitutionality of the Drug (Prices Control) Order, 1995 was challenged on the ground that it is unconstitutional and ultra vires of the Essential Commodities Act, the writ petition was directed to be listed before the Division Bench and the matter thereafter was placed before the Division Bench.