text stringlengths 5 5.67k |
|---|
If that was not done, the remedy would become illusory ARG |
It was argued with reference to various facts and figures that the price had been fixed in an arbitrary manner and the Government was not willing to disclose the basis on which the prices were fixed on the pretext that it may involve disclosure of matters of confidential nature ARG |
It was stated that the applications of the manufacturers for review of the notifications fixing the prices had not been disposed of for years though time was really of the very essence of the matter ARG |
The prices of formulations were dependent on the prices of drugs and it was not right that prices of formulations should have been fixed even before the applications for review against the notifications fixing the price of bulk drugs were disposed of ARG |
It was suggested that the delay in disposing of the review applications had the effect of rendering the original notifications fixing the prices unreal and out of date and liable to be struck down on that ground alone ARG |
We are unable to agree with the submissions of the learned counsel for the respondents either with regard to the applicability of the principles of natural justice or with regard to the nature and the scope of the enquiry and review contemplated by paragraphs 3 and 27 while making our preliminary observations, we point... |
Nothing in the scheme of the Drugs (prices Control Ratio |
Order induces us to hold that price fixation under the Drugs (prices Control Ratio |
Order is not a legislative activity, but a quasi-judicial activity which would attract the observance of the principles of natural justice Ratio |
Nor is there anything in the scheme or the provisions of the Drugs (prices Control) Order which otherwise contemplates the observance of any principle of natural justice or kindred rule, the non-observance of which would give rise to a cause of action to a suitor Ratio |
What the order does contemplate however is 'such enquiry' by the Government 'as it thinks fit Ratio |
A provision for 'such enquiry' as it thinks fit' by a subordinate legislating body, we have explained earlier, is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in any body other than the subordinate ... |
In the present case, the enquiry contemplated by paragraph 3 of Drugs (prices Control Ratio |
Order is to be made for the purposes of fixing the maximum price at which a bulk drug may be sold, with a view to regulating its equitable distribution and making it available at a fair price Ratio |
The primary object of the enquiry is to secure the bulk drug at a fair price for the benefit of the ultimate consumer an object designed to fulfil the mandate of Art Ratio |
39(b) of the Constitution Ratio |
It is primarily from the consumer public's point of view that the Government is expected to make its enquiry Ratio |
The need of the consumer public is to be ascertained and making the drug available to them at a fair price is what it is all about Ratio |
The enquiry is to be made from that angle and directed towards that end Ratio |
So, information may be gathered from whatever source considered desirable by the Government Ratio |
The enquiry, obviously is not to be confined to obtaining information from the manufacturers only and indeed must go beyond Ratio |
However, the interests of the manufacturers are not to be ignored Ratio |
In fixing the price of a bulk drug, the Government is expressly required by the Order to take into account the average cost of production of such bulk drug manufactured by 'an efficient manufacturer' and allow a reasonable return on 'net worth Ratio |
For this purpose too, the Government may gather information from any source including the manufacturers Ratio |
Here again the enquiry by the Government need not be restricted to 'an efficient manufacturer' or some manufacturers; nor need it be extended to all manufacturers Ratio |
What is necessary is that the average cost of production by 'an efficient manufacturer' must be ascertained and a reasonable return allowed on 'net worth Ratio |
Such enquiry as it thinks fit is an enquiry in which information is sought from whatever source considered necessary by the enquiring body and is different from an enquiry in which an opportunity is required to be given to persons likely to be affected Ratio |
The former is an enquiry leading to a legislative activity while the latter is an enquiry which ends in an administrative or quasi-judicial decision Ratio |
The enquiry contemplated by paragraph 3 of the Drug (Prices Control Ratio |
Order is an enquiry of the former character Ratio |
The legislative activity being a subordinate or delegated legislative activity, it must necessarily comply with the statutory conditions if any, no more and no less, and no implications of natural justice can be read into it unless it is a statutory condition Ratio |
Notwithstanding that the price fixation is a legislative activity, the subordinate legislation had taken care here to provide for a review Ratio |
The review provided by paragraph 27 of the order is akin to a post decisional hearing which is sometimes afforded after the making of some administrative orders, but not truly so Ratio |
It is a curious amalgam of a hearing which occasionally precedes a subordinate legislative activity such as the fixing of municipal rates etc Ratio |
that we mentioned earlier and a post-decision hearing after the making of an administrative or quasi-judicial order Ratio |
It is a hearing which follows a subordinate legislative activity intended to provide an opportunity to affected persons such as the manufacturers, the industry and the consumer public to bring to the notice of the subordinate legislating body the difficulties or problems experienced or likely to be experienced by them ... |
Any decision taken by the Government cannot be confined to the individual manufacturer seeking review but must necessarily affect all manufacturers of the bulk drug as well as the consumer public Ratio |
Since the maximum price of a bulk drug is required by paragraph 3 to be notified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh notification fixing the new maximum price of the bulk drug Ratio |
In other words, the review if it is fruitful must result in fresh subordinate legislative activity Ratio |
The true nature of the review provided by paragraph 27 in so far as it relates to the fixation of maximum price of bulk drugs under paragraph 3 leader price and prices of formulations under paragraphs 12 and 13 is hard to define Ratio |
It is difficult to give it a label and to fit it into a pigeon-hole, legislative, administrative or quasi-judicial Ratio |
Nor is it desirable to seek analogies and look to distant cousins for guidance Ratio |
From the scheme of the Control Order and the context and content of paragraph 27, the Review in so far as it concerns the orders under paragraph 3, 12 and 13 appears to be in the nature of a legislative review of legislation, or more precisely a review of subordinate legislation by a subordinate legislating body at the... |
Once we have ascertained the nature and character of the review, the further question regarding the scope and extent of the review is not very difficult to answer Ratio |
The reviewing authority has the fullest freedom and discretion to prescribe its own procedure and consider the matter brought before it so long as it does not travel beyond the parameters prescribed by paragraph 3 in the case of a review against an order under paragraph 3 and the respective other paragraphs in the case... |
But whatever procedure is adopted, it must be a procedure tuned to the situation Ratio |
Manufacturers of any bulk drug are either one or a few in number and generally they may be presumed to be well informed persons, well able to take care of themselves, who have the assistance of Accountants, Advocates and experts to advise and espouse their cause Ratio |
In the context of the Drug industry with which we are concerned and in regard to which the Control Order is made we must proceed on the basis that the manufacturers of bulk drugs are generally persons who know all that is to be known about the price fixed by the Government Ratio |
From the legislative nature of the activity of the Government, it is clear that the Government is under no obligation to make any disclosure of any information received and considered by it in making the order but in order to render effective the right to seek a review given to an aggrieved person we think that the Gov... |
For example, the manufacturer may require the Government to give information regarding the particulars detailed in Form No. 1 of the Fourth Schedule which have been taken into account and those which have been excluded Ratio |
The manufacturer may also require to be informed the elements which were taken into account and those which were excluded in assessing the 'free reserves' entering into the calculation of 'net worth Ratio |
These particulars which he may seek from the Government are mentioned by us only by way of illustration Ratio |
He may seek any other relevant information which the Government shall not unreasonably deny Ratio |
That we think is the nature and scope of the review contemplated by Paragraph 27 in relation to orders made under Paragraphs 3, 12 and 13 Ratio |
On the question of the scope of a Review, the learned counsel for the respondents invited our attention to Vrajlal Manilal & Co. v. Union of India & Anr., [1964] 7 SCR 97 1964 Indlaw SC 194; Shivaji Nathubhai v. Union of India & Ors., [1960] 2 SCR 775 1960 Indlaw SC 430; Maneka Gandhi, [1978] 2 SCR 621 1978 Indlaw SC 2... |
1984] 3 SCR 676 1984 Indlaw SC 326 ARG |
We are afraid none of these cases is of any assistance to the correspondence since the court was not concerned in any of those cases with a review of subordinate legislation by the subordinate legislating body ARG |
In Vrajlal Manilal & Co. v. Union of India & Anr. 1964 Indlaw SC 194 (supra) the court held that the Union of India when disposing of an application for review under Rule 59 of the Mines Concession Rules functioned as a quasi-judicial authority and was bound to observe the principles of natural justice PRE |
The decision rendered without disclosing the report of the State Government and without affording reasonable opportunity to the appellants to present their case was contrary to natural justice was therefore, void PRE |
In ShivaIi Nathubhai v. Union of India & Ors.,1960 Indlaw SC 430 (supra) it was decided by the court that the power of review granted to the Central Government under Rule 54 of the Mineral Concession Rules required the authority to act judicially and its decision would be a quasi-judicial act and the fact that Rule 54 ... |
In Maneka Gandhi's case where Bhagwati, J. while expounding on natural justice pointed out that in appropriate cases where a pre-decisional hearing was impossible, there must atleast be a post-decisional hearing so as to meet the requirement of the rule audi alteram partem PRE |
In Swadeshi Cotton Mills, it was observed that in cases where owing to the compulsion of the fact situation or the necessity of taking speedy action, no pre-decisional hearing is given but the action is followed soon by a full post-decisional hearing to the person affected, there is in reality no exclusion of the audi ... |
It is no adaptation of the rule to meet the situational urgency PRE |
In Liberty Oil Mills v. Union of India 1984 Indlaw SC 326, (supra) the question arose whether clause 8B of the Import Control Order which empowered the Central Government or the Chief Controller to keep in abeyance applications for licences or allotment of imported goods where any investigation is pending into an impor... |
8 excluded the application of the principles of natural justice PRE |
The court pointed out that it would be impermissible to interpret a statutory instrument to exclude natural justice unless the language of the instrument left no option to the court PRE |
As we said, these cases have no application to a review of subordinate legislation by the subordinate legislating body at the instance of a party PRE |
We mentioned that the price fixed by the Government may be questioned on the ground that the considerations stipulated by the order as relevant were not taken into account Ratio |
It may also be questioned on any ground on which a subordinate legislation may be questioned, such as, being contrary to constitutional or other statutory provisions Ratio |
It may be questioned on the ground of a denial of the right guaranteed by Art Ratio |
14 if it is arbitrary, that is, if either the guidelines prescribed for the determination are arbitrary or if, even though the guidelines are not arbitrary, the guidelines are worked in an arbitrary fashion Ratio |
There is no question before us that paragraph 3 prescribes any arbitrary guideline Ratio |
It was, however, submitted that the guidelines were not adhered to and that facts and figures were arbitrarily assumed Ratio |
We do not propose to delve into the question whether there has been any such arbitrary assumption of facts and figures Ratio |
We think that if there 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 for review Ratio |
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 Ratio |
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 Ratio |
there was no justification for the grievance that particulars were not furnished Ratio |
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 of fair play in the case of the class of persons claiming to be affected by the fixation of maximum price under the Drugs... |
As already stated by us, manufacturers of bulk drugs who claim to be affected by the Drugs (prices Control Ratio |
Order, belong to a class of persons who are well and fully informed of every intricate detail and particular which is required to be taken into account in determining the price Ratio |
In most cases, they are the sale manufacturers of the bulk drug and even if they are not the sole manufacturers, they belong to the very select few who manufacture the bulk drug Ratio |
It is impossible to conceive that they cannot sit across the table and discuss item by item with the reviewing authority unless they are furnished in advance full details and particulars Ratio |
The affidavits filed on behalf of the Union of India show that the procedure which is adopted in hearing the review applications is to discuss across the table the various items that have been taken into account Ratio |
We do not consider that there is anything unfair in the procedure adopted by the Government Ratio |
If necessary it is always open to the manufacturers to seek a short adjournment of the hearing of the review application to enable them to muster more facts and figures on their side Ratio |
Indeed we find that the hearing given to the manufacturers is often protected Ratio |
As we said we do not propose to examine this question as we do not want to constitute ourselves into a court of appeal over the Government in the matter of price fixation Ratio |
he learned counsel argued that there were several patent errors which came to light during the course of the hearing in the High Court ARG |
He said that obsolete quantitative usages had been taken into consideration, proximate cost data had been ignored and the data relating to the year ending November, 1976 had been adopted as the basis ARG |
It was submitted that there were errors in totalling, errors in the calculation of prices of utilities, errors in the calculation of net-worth and many other similar errors ARG |
As we pointed out earlier, these are all matters which should legitimately be raised in the review application, if there is any substance in them Ratio |
These are not matters for investigation in a petition under Art Ratio |
226 of the Constitution or under Art Ratio |
32 of the Constitution Ratio |
Despite the pressing invitation of Shri Diwan to go into facts and figures and his elaborate submissions based on facts and figures, we have carefully and studiously refrained from making any reference to such facts and figures as we consider it outside our province to do so and we do not want to set any precedent as w... |
One of the submissions of Shri Diwan was that in calculating "net-worth" the cost of new works in progress and the amount invested outside the business were excluded from 'free reserves' and that such exclusion could not be justified on any known principle of accountancy ARG |
We think that the question has to be decided with reference to the definition of 'free reserve' in paragraph 2(g) of the Control Order and not on any assumed principle of accountancy Ratio |
This is also a question which may be raised before the Government in the review application Ratio |
Referring to the 'proforma' attached to Form No. 1 of the Fourth Schedule in which are set out several items which have to be taken into account in assessing the cost of production, the learned counsel attacks the notes at the end of Item No. 14 which mentions the various items of expenses to be excluded in ascertainin... |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.