Himachal Pradesh High Court
________________________________________________________________ vs Union Of India And Another on 30 July, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.: 4128 of 2009
Date of Decision: 30.07.2018
________________________________________________________________ M/s Swiss Garnier Life Sciences and another .....Petitioners Vs. Union of India and another .....Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice The Hon'ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 No. For the petitioners: M/s Neeraj Gupta and Poonam Gehlot, Advocates.
For the respondents: Mr. Rajesh Sharma, Assistant Solicitor General of India.
Sanjay Karol, Acting Chief Justice (Oral):
Petitioners have prayed for the following reliefs:
"(a) this Hon'ble Court may be pleased to issue a writ of certiorari or a writ in the nature of writ of certiorari or any other appropriate writ, order or direction to call for and examine the papers and proceedings in respect of the impugned letters/ notices/ order of respondent No. 2 against petitioner No. 1 dated 26th February, 2009 (Annexure P16) and 26th March, 2009 (Annexure 1 Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 2
P18 hereto), 22nd April, 2009 (Annexure P30 hereto) and the Impugned Communication dated 24th September, 2009 and communication dated .
14.10.2009 (Annexure P38 & P39 hereto) and upon perusing and examining the same, this Hon'ble Court may be pleased to quash and set aside the impugned letters/notices/orders;
(b) this Hon'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of writ of mandamus or any other appropriate writ, order or direction, directing respondent No. 2 to refund to petitioner No. 1 the amount of `38,22,752/ (Rupees Thirty Eight Lacs Twenty Two Thousand seven Hundred Fifty Two Only) towards principal paid under protest and `4,46,488/ (Rupees Four Lacs Forty Six Thousand Four Hundred Eighty Eight Only) towards interest, paid by petitioner No. 1 alongwith interest @15% p.a. till payment and/or realization;
(c ) this Hon'ble Court may be pleased to issue a writ of prohibition or a writ in the nature of writ of prohibition or any other appropriate writ, order or direction restraining respondents No. 1 & 2 from in any manner proceeding with the inquiry for and/or the determination of alleged liability against petitioner No. 2, including, but not restricted to, the demands by respondent No. 2 to petitioner No. 2 to furnish the information and data as requested by in the aforementioned ::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 3 letters addressed by respondent No. 2 to petitioner No. 2;
(d) this Hon'ble Court may be pleased to .
issue a writ of mandamus or a writ in the nature of writ of mandamus or any other appropriate writ, order or direction, quashing and setting aside the letters/notices dated (13th May, 2009, 20th May, 2009, 27th May, 2009 and 24th September, 2009, being Annexures P32, _34, P 35 & P38 hereto) by which respondent No. 2 has called for information and data from petitioner No. 1 and/or petitioner No. 2 to enable it to determine the alleged liability for overcharging under the provisions of DPCO, 1995;
(e) pending the hearing and final disposal of the present writ petition, respondent Nos. 1 & 2 acting through its responsible servants, officers employees or agents, be restrained by an order of injunction from taking any steps against petitioner No. 2 on the basis of the impugned orders P38 and P39, for ascertaining the alleged overcharged amount and/or for the recovery of any amount for alleged overcharging in contravention of the said notification;
(f) pending the hearing and final disposal of the present writ petition, respondent Nos. 1 & 2 acting through its responsible servants, officers, employees or agents, be restrained by an order of injunction from proceeding with any inquiry or determination of liability under the provisions of ::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 4 DPCO, 1995 against petitioner No. 1 and/or petitioner No. 2 and be further restrained by an order of injunction from calling for or demanding .
any information data or material as a part of any inquiry or determination of liability under the provisions of DPCO, 1995;
(g) pending the hearing and final disposal of the present writ petition, this Hon'ble Court may be pleased to stay the proceedings/inquiry/process of determination of liability as commenced by respondent No. 2 against the petitioners;
(h) for adinterim reliefs in terms of prayer clauses (e) to (g) hereinabove.
(i) for costs of this petition; and
(j) for such other and further reliefs as
this Hon'ble Court may deem fit and proper."
2. Impugned Annexures are several orders, which stand culminated with the passing of order dated 24.09.2009 (Annexure P38), also impugned in the present writ petition, whereby the stand taken by the writ petitioners qua exemption under several notifications issued by the National Pharmaceutical Pricing Authority (respondent No. 2) under the Drug (Prices Control) Order, 1995, stands rejected with imposition of penalty of `1,81,69,297/.
3. At the outset, Mr. Neeraj Gupta, learned counsel for the petitioners points out that the officer, who passed such order, namely the Director (Legal) had no authority or jurisdiction under the Drug ::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 5 (Prices Control) Order, 1995 to take a decision and pass an appropriate order.
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4. Para 23 of the Order of 1995 reads as under:
"23. Power to issue guidelines and directions (1) The government, may for the purpose of implementing the provisions of this Order, authorize any Officer, by a general or special order, to inspect the premises of any manufacturer, importer, distributor or dealer and such manufacturer, importer, distributor or dealer shall allow such authorized officer and make available all relevant information required for the purpose.
(2) The government may, from time to time, issue such guidelines and directions, consistent with the provisions of this Order to any manufacturer or importer as may be necessary to carry out the provisions of this Order and such manufacturer or importer shall comply with such guidelines or directions."
5. There is nothing on record to demonstrate that the Government had authorized the Director (Legal) to adjudicate and decide the matter in issue on behalf of the Authorized Officer. Equally, it cannot be demonstrated that even otherwise, Director (Legal) originally had jurisdiction or authority to do so.
::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 66. Affidavit dated 9.3.2018, filed by Shri. APS Sawhney, Director, National Pharmaceutical Pricing Authority (NPPA), .
Ministry of Chemicals & Fertilizers, only states the following "2. That in compliance of the order dated 27.7.2009 of CWP No. 2519 of 2009 the personal hearing was approved at the level of Chairman NPPA, who directed Advisor (Pricing) to hear them in person and also that which Director (Legal) and Consultant (L) may remain present. The copy of the Note sheet N 33 is annexed as Annexure R1.
3. That subsequently personal hearing was taken by Advisor (Pricing) on 31.8.2009. The copy of the Note sheet N35 is annexed as Annexure R2. The Draft order after Personal hearing was prepared by Director (Legal) which was authenticated by Advisor (Pricing) and approved by the Chairman. The copy of the Not sheet N37 is annexed as Annexure R3."
7. Well, as to whether there is some authorization in favour of the Director (Legal), to adjudicate the issue of imposition of penalty or otherwise, i.e., exemption of the duty under the Drugs (Prices Control) Order, 1995 cannot be inferred from the record. On this short ground alone, as mutually prayed for, present petition is allowed with quashing of impugned orders dated 24.9.2009 and 14.10.2009, passed by Director (Legal) (Annexure P38 and Annexure P39), respectively, with the matter being remanded back to the competent authority under ::: Downloaded on - 03/08/2018 22:57:58 :::HCHP 7 the Drugs (Prices Control) Order, 1995 to decide the matter afresh, in accordance with law.
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8. Parties undertake to fully cooperate and not take any unnecessary adjournments. The Authority under the Act shall positively decide the matter within a period three months from the production of a certified copy of this judgment. Needless to add, opportunity of hearing shall be afforded to all concerned.
Accordingly, petition stands disposed of as indicated hereinabove. Copy dasti. r (Sanjay Karol) Acting Chief Justice (Ajay Mohan Goel) Judge July 30, 2018 (bhupender/guleria) ::: Downloaded on - 03/08/2018 22:57:58 :::HCHP