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CM No.10105/2014 in W.P.(C)No.7705/2013

5. At the outset, it may be mentioned that this Court by order dated 13.12.2013 permitted the petitioner in W.P. (C) No. 7705/2013 to file a Review Application under Paragraph 31 of the DPCO, 2013 without prejudice to their rights and contentions. In terms thereof, the petitioner filed a Review Petition on 20.12.2013 seeking review of the impugned order dated 05.11.2013. Pursuant thereto, a fresh order dated 10.07.2014 came to be passed by the NPPA fixing the ceiling price of condoms at Rs.8.04 per unit. In the light of the said order, the petitioner in W.P. (C) No.7705/2013 filed CM No.10105/2014 under Order VI Rule 7 of CPC seeking amendment of the writ petition by adding a further prayer to quash the fresh order of NPPA dated 10.07.2014.

35.7 The pricing mechanism adopted while determining the ceiling price under the impugned Orders dated 05.11.2013 and 10.07.2014 is arbitrary, irrational and does not sub-serve the intent and purpose of the DPCO, 2013 since NPPA failed to collect the market share and price in respect of all brands having a market share of 1% as required under Para 4 of the DPCO, 2013. The NPPA also failed to take into consideration „Wholesale Price Index‟ (WPI) for the year 2014 though the same was issued on 10.07.2014.

35.9 Premium condoms manufactured/marketed by the petitioners cannot be treated at par with basic condoms because of the method of manufacture, the technology involved, the ingredients used and research and development preceding the manufacture of such products. The NPPA failed to take into consideration that basic condoms are distributed free or at highly subsidised prices by the Governmental agencies whereas the condoms sold in market by the petitioners are of high end sophisticated version. Hence, the fixation of common ceiling price is violative of Article 14 of the Constitution of India. Though the petitioners in their Review Petition have pointed out the said distinction between the two categories, the NPPA failed to appreciate the same.

84. Since the impugned action of fixation of ceiling price is held to be bad on the ground that the NPPA exceeded the powers conferred by Para 4, 6 and 14 of DPCO-2013 and the policy decision under NPPP-2012 has not been interfered by us in any manner, it is also not necessary for us to refer to the various decisions cited by the learned counsel for both the parties with regard to the scope of judicial review vis-à-vis policy decision.

85. Accordingly, we declare that the Orders of NPPA dated 05.11.2013 and 10.07.2014 are illegal and unsustainable. In the result, both the said Orders are hereby set aside.