Madhya Pradesh High Court
Ram Kishore Sahu vs The State Of Madhya Pradesh on 15 November, 2016
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
WA-751-2016
(RAM KISHORE SAHU Vs THE STATE OF MADHYA PRADESH)
15-11-2016
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
W.A. No.751/2016
Ram Kishore Sahu
Vs.
State of M.P. & another
Present: Honâble Shri Rajendra Menon,
Acting Chief Justice &
Hon'ble Shri Anurag Shrivastava, J.
____________________________________________________
Shri Manoj Sharma, learned counsel for the appellant.
Shri Amit Seth, learned Govt. Adv., on advance notice for the
respondents.
________________________________________________
JUDGMENT
(15.11.2016) Seeking exception to an order dated 27.7.2016 passed by the Writ Court in W.P. No.15274/2015, this appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.
2. Appellant is proprietor of an establishment named and styled "Shri Ganesh Medical Store". Appellant is the sole proprietor of the said establishment and in pursuance to a tender notice issued by the Director, Kamla Nehru Hospital (Group of Hospitals) for regular purchase of medicines for the hospital. Appellant submitted a bid and in the bid submitted, appellant agreed to supply certain medicines at the rate of 18.71% below the maximum retail price (MRP) and 40% below in the case for other hospital supplies. This bid was accepted and accordingly supply order was issued to the applicant. An agreement entered into between the appellant and the department vide Annexure P/2. In clause 4 and 5 stipulates a condition that appellant agrees to supply branded medicines at the rate of 18.71% below the maximum retail price and 40% below in the case of other hospital supplies. Clause 4 and 5 of the agreement reads as under :-
Ã4- ;g fd ikVhZ dza-&2 ds }kjk fufonk esa nh xbZ nj 1- czkUMsM vkS"kf/k;ksa gsrq vf/kdre vafdr [kqnjk ewY; ¼,e-vkj-ih-½ ls 18-71 izfr'kr ¼vBkjg n'keyo bdRrj izfr'kr½ de ij ,oa 2- vU; fpfdRldh; lkexzh gsrq vf/kdre vafdr [kqnjk ewY; ¼,e- vkj- ih-½ ls 40 izfr'kr ¼pkyhl izfr'kr½ de ij gSaA 5- vr% ikVhZ dza-&02 dks iznkf;r vkS"kf/k;ksa dk Hkqxrku Lohd`r nj 1- czkUMsM vkS"kf/k;ksa gsrq vf/kdre vafdr [kqnjk ewY; vf/kdre vafdr ewY; ¼,e-vkj-ih-½ ls 18-71 izfr'kr ¼vBkjg n'keyo bdRrj izfr'kr½ de ij ,oa 2- vU; fpfdRldh; lkexzh gsrq vf/kdre vafdr [kqnjk ewY; ¼,e- vkj- ih-½ ls 40 izfr'kr ¼pkyhl izfr'kr½ de ij ns; gksxkA blds vfrfjDr osV ,oa vU; fdlh Hkh izdkj ds dj dk Hkqxrku ikVhZ dza-&01 }kjk ugha fd;k tk;sxkAà (Emphasis Supplied)
3. When the matter was so agreed upon, it seems that appellant supplied injunction Midazolam 3 Vial at the rate of 225.00. It was alleged against the appellant that the National Drug Price Control Organization has fixed the MRP of the aforesaid Drug at the rage of 61.60 for one vial and Rs.184.80 for 3 vial and the appellant has charged more than the maximum retail price. Indicating these facts, a show cause notice Annexure P/5 dated 2.7.2015 was issued to the appellant. Appellant initially submitted his reply vide Annexure P/6 on 8.7.2015 and indicated that he charged the MRP based on the MRP indicated in the branded medicine and he was not aware of that MRP fixed by the National Drug Price Control Organization was different. Treating the appellant to have committed irregularity in the supply of medicine, apart from canceling the supply order as he has been black listed for a period of three years, the writ petition was filed and the Writ Court found that appellant admitted supply of medicine at the rate higher than the MRP, therefore, there is no error in the action taken by the Department. However, Shri Manoj Sharma, learned counsel for the appellant invited our attention to the clause 4 and 5 of the agreement wherein the agreement was to supply the medicine at the rate of 18.71% below the maximum retail price and 40% below in the case of other hospital supplies.
4. Further Shri Manoj Sharma invites our attention to the statutory order issued by the Ministry of Chemicals and Fertilizers in the Department of Pharmaceuticals on 15 th May, 2013 under the Drug (Prices Control) Order, 1995, definition of the word "maximum retail price (MRP)" as defined in clause 2(r) of the aforesaid order and argues that the Maximum Retail Price means the ceiling price or the retail price as may be applicable, at which the drug shall be sold to the ultimate consumer and where such price is mentioned on the pack . He argues that the appellant has sold the Medicines at the rate of 18.71% below the maximum retail price and the MRP as was printed on the medicine pack. He further invites our attention to the process of fixing the MRP as contemplated under clause 8 of the Control Order and argues that MRP of a scheduled formulations is always fixed by the manufacturers. He argues that in this case appellant has agreed to supply the medicine at the rate of 18.71% and as indicated in the medicine pack fixed by the manufacturer and as it has been done by the appellant, no violation of the agreement has been undertaken by him. That apart, he invites our attention to clause 24(2) to say that it is duty of every manufacturer to display the maximum retail price of any formulations on the pack. He argues that appellant did everything in accordance to the statutory order but in the absence of there being stipulation to show that the MRP shall be one determined by the National Drugs Price Control Organization, without considering various aspects of the matter, the impugned action has been taken.
5. Shri Manoj Sharma invites our attention to the clarificatory explanation given by the appellant vide Annexure P/9 on 18.8.2015 wherein the position with regard to MRP printed and the price fixed by the National Drugs Price Control Organization is clarified and it is argued that this aspect of the matter was lost sight by the respondent concerned, the department, the Committee which evaluated the case and even the learned Writ Court and therefore, there is an error apparent on the face of the record warranting reconsideration. He argues that it is with respect to this aspect of the matter appellant complains that opportunity of proper hearing has not been granted to him
6. Shri Amit Seth, learned Govt. Advocate invites our attention to the show cause notice issued to the appellant vide Annexure P/5, his reply vide Annexure P/6 where he admits to have supplied the medicines with a rate contrary to the MRP fixed by the Drug Price Control Organization and admits that he was not aware and on such assertion Shri Amit Seth argues that there is no error in the order passed by the department, Committee and learned Writ Court and therefore, interference is not called for.
7. We have considered the rival contentions and bestowed our anxious consideration to various aspects of the matter, the agreement in question and clause 4 and 5 as reproduced herein above speaks about supply of branded medicine at a rate which shall be less than 18.71% than the MRP and 40% in case of other hospital supplies. In clause 4 of the agreement in question the words used are " czkUMsM vkS"kf/k;ksa gsrq vf/kdre vafdr [kqnjk ewY; ¼,e-vkj-ih-½ ls 18-71 izfr'kr ¼vBkjg n'keyo bdRrj izfr'kr½ de ij" which means the MRP printed in the branded medicine. If we peruse the provisions of Drug Price Control Order, 2013, the definition of the word "maximum retail price" as contained in Clause 2(r), duties of manufacturer in the matter of fixing the maximum retail price and notifying the same in the pack and the effect of clause 24(2) of the aforesaid order, we find that there may be some substance in the objection raised by the appellant to say that MRP printed upon the pack and as notified by the manufacturer is that MRP at which the medicine was agreed to be sold by the manufacturer. The question is as to whether the MRP fixed by the National Drug Price Control Organization is the MRP referred to in the agreement, as agreed to by the parties is a issue which has not been adverted to by the Committee which recommended for taking impugned action.
8. Keeping in view the aforesaid, we are of the considered view that Shri Manoj Sharma is right in contending that proper opportunity of hearing has not been granted to him in as much as this aspect of the matter which was highlighted by the appellant before us has not been taken note of and we also find some force in the aforesaid contention of Shri Manoj Sharma. Accordingly, we deem it appropriate to allow this appeal and remand the matter back to the authorities for reconsideration and taking a decision after taking note of various observations as indicated herein above.
9. Accordingly, we allow this appeal, quash the impugned order dated 27.7.2016 passed by the Writ Court in W.P. No.15274/2015 and remand the matter back to the Committee concerned to take a fresh decision in the matter at an earlier date.
10. With the aforesaid, this appeal stands allowed and disposed of.
(RAJENDRA MENON) (ANURAG SHRIVASTAVA) ACTING CHIEF JUSTICE JUDGE mrs. mishra