Punjab Drug Manufacturers Association Vs. State of Punjab and ors. - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - for supply of hospital material like bandages, cotton, gauze, surgical gloves, suture material, glassware, laboratory reagents, chemicals, detergents, disinfectants etc. new manufacturing units have been totally debarred though they may be having the best of medicines and ability. 7. in the present case, the conditions laid down in the policy guidelines as well as in the tender form do not appear to be discriminatory or violative of articles 14, 16 or 19 of the constitution. 9. the policy guidelines, framed by the government, on the advice of the expert committee cannot be held to be bad in law on the ground that it creates discrimination against certainmanufacturers.n.k. agrawal, j.1. this is a petition under articles 226/227 of the constitution, seeking a direction to the respondents (the state of punjab and its officers) to treat all drug-manufacturers at par without putting any arbitrary conditions as have mentioned in the tender form for the supply of drugs to the government.2. the petitioner, the punjab drug manufacturers association, is a registered organisation of the manufacturers of drugs in the state of punjab. the director, health and family welfare, punjab (respondent no. 3), circulated tender forms inviting quotations for the supply of certain medicines and drugs to the government hospitals and dispensaries in the state of punjab. the conditions mentioned in the tender form are alleged to be discriminatory and violative of articles 14 and 16 of the constitution of india. the petitioner has alleged that the conditions have been incorporated in the tender form so as to make only the multinational drug manufacturing companies eligible for entering into a contract with government. the petitioner has challenged the drug-purchase policy framed by the state government and the consequent incorporation of the unreasonable conditions in the tender form.3. the policy guidelines dated 1-3-1996 framed by the governor of punjab for the purchase of drugs and medicines by the government incorporate the following conditions in paragraph 'b' :--'(b) eligibility criteria for tenders : only those companies/firms which are in existence for three years and have beenmanufacturing drugs/medicines for the last three years and also having a turn-over of at least rupees four crores in the preceding year will be eligible to bid and submit tenders. for supply of hospital material like bandages, cotton, gauze, surgical gloves, suture material, glassware, laboratory reagents, chemicals, detergents, disinfectants etc., firms having turn-over of rupees on crore will be eligible for bidding. if the tenders are not as per n.i.t., tenders will be rejected and recalled.'4. the petitioner's argument against the aforesaid conditions is that these conditions had no nexus with the object sought to be achieved and are also violative of the drugs and cosmetics act, 1940. these conditions were lifted from the policy guidelines of the government and were incorporated in the tender form. if these conditions are required to be fulfilled by a drug-manufacturer or supplier, that would only mean that the new units were completely debarred from competing in the business of supply of drugs to the state government. the condition, that only a firm or company having a turn-over of rupees four crores can submit a tender, is alleged to be a tailor-made condition having no nexus with the object sought to be achieved. similarly, the condition that a supplier or a manufacturer should have an experience of not less than 3 years is also said to be totally unwarranted, unreasonable and arbitrary. the petitioner's case is that no one should be debarred from making supplies to the government hospitals and dispensaries by putting such harsh conditions. new manufacturing units have been totally debarred though they may be having the best of medicines and ability. the provisions of the drugs and cosmetics act, 1940, are applicable equally to the new and the old firms and manufacturers and the government cannot create an artificial classification between the two. (sic) the policy guidelines and the state government invited tenders in the light of those policy guidelines.5. the criteria of turn-over of rupees four crores and of manufacturing experience of 3 years are based on the plea that the stale government had to make purchases of medicines worth crores of rupees and had, at the same time, to ensure supplies to its hospitals and dispensaries, within a stipulated period of time and also at competitive rates. the state government has vehemently denied that it had any intention, while laying down the impugned conditions, to show any favour to the multinational companies. theconditions were laid down so as to ensure that the units were able to supply bulk drugs within the scheduled time at a competitive price. since big companies had put infra-structure and were able to supply quality medicines, the drug-purchase policy, framed by the state government, contained the impugned conditions, keeping in view the interests of the state and the public at large. those conditions were not kept in the tender form to suit any particular firm or company. small units were not able, to meet the requirement of bulk supply within the given time.6. a similar question against the policy decision of the slate government of punjab came up for examination in punjab drugs manufacturers association v. state of punjab, air 1989 p & h 117 : ilr (1988) 2 p & h 540. the state government had taken a policy decision to purchase drugs from the public sector undertaking only. thus, a monopoly was created by including instructions and that was held as violative of articles 14 and 19(1)(g) of the constitution of india.7. in the present case, the conditions laid down in the policy guidelines as well as in the tender form do not appear to be discriminatory or violative of articles 14, 16 or 19 of the constitution. the case earlier decided by this court is distinguishable on facts inasmuch as, in that case, the state government had permitted the public sector undertakings only to enter into a contract for the supply of drugs. in the present case before us, no particular manufacturer or unit has been permitted for the purposes of making supplies to the state government. the two conditions, one relating to the turn-over of rupees four crores and the other in respect of experience of three years, appear to be necessary so as to ensure a regular and timely supply of bulk drugs. no particular manufacturer has been excluded. the allegation that the conditions in question would only suit multinational manufacturers does not appear to be correct.8. a similar case was earlier examined by this court in civil writ petition no. 9258 of 1994 (bio-remedies (india) v. the state of punjab) decided on 10-12-1996, and it was ordered that, in future, policy framed by the state is to be followed strictly.9. the policy guidelines, framed by the government, on the advice of the expert committee cannot be held to be bad in law on the ground that it creates discrimination against certainmanufacturers. the requirement of the government has to be kept in view. as has been pleaded by the respondents, the government has to make bulk purchases within a stipulated period and at a competitive price. if the government lays down certain conditions regarding the minimum turn-over and the experience of a prospective supplier, that cannot be said to be discriminatory or violative of articles 14,16 and 19 of the constitution.10. the conditions have rational nexus with the object sought to be achieved. simply because the manufacturers have been granted licence under the drugs and cosmetics act, that would not entitle them to qualify as prospective suppliers to the government. the charge levelled by the petitioner that the conditions are in the nature of tailor made conditions appears to have no force. the criteria for the classification with emphasis on the amount of turn-over and experience do not violate article 19 of the constitution. there is found to be a reasonable classification and a rational nexus between the conditions and the object sought to be achieved.11. in the result, the writ petition fails and is dismissed. no costs.