Case: Union of India &amp; Others Vs. M/s. Cipla Ltd. &amp; Others

The appeals before us3. The principal appeal before us and in which the leading submissions were made is Civil Appeal No. 329 of 2005 filed against Cipla. This appeal is directed against the judgment and order dated 3rd March, 2004 passed in Writ Petition (C) No.41214 of 2003 by the Division Bench of the Allahabad High Court.4. The challenge in the writ petition was to notifications issued by the Central Government on 12th July, 2000, 12th July, 2001, 12th July, 2002 and 11th July, 2003the norms prescribed by notification dated 13th July, 1999 issued under Paragraph 7 of the DPCO 1995 on the basis of which the retail price of formulations is fixed under Paragraph 8 of the DPCO 1995. It was held by the High Court that these notifications were issued mechanically and without any application of mind.5. The consequence of the decision of the Allahabad High Court is that about 40 notifications fixing the retail price and ceiling price of formulations have been invalidated.6. The High Court also quashed the show cause notice dated 16th August, 2003 issued by the Inspector of Drugs in Varanasi alleging that Cipla had charged higher retail prices than those notified by various notifications. In view of this allegation, the Inspector of Drugs required Cipla to clarify whether it had any order from the National Pharmaceutical Pricing Authority exempting it from compliance with the price notifications and to give the quantities of the formulations sold during the period 1995 till date.7. Civil Appeal No. 4005 of 2004 is directed against the judgment and order dated 27th April, 2002 passed by the Division Bench of the High Court of Punjab & Haryana at Chandigarh in C.W. P. No. 15677 of 1999 filed by M/s Martin & Harris Laboratories Ltd.Civil Appeal No. 9586 of 2016 and Civil Appeal Nos.of 2016 arise out of a common judgment and order dated 30th October, 2012 passed by the Division Bench of the High Court of Karnataka at Bangalore in a batch of Writ Appeals and Writ Petitions including those filed by Remidex Pharmaceuticals Pvt. Ltd. and Johnson & Smith Co. & Another. By the impugned judgment and order, the High Court effectively followed its earlier decision dated 6th August, 2012 in W. P. No. 6585 of 2004 filed by Ishaan Labs Pvt. Ltd.15. The High Court dealt with and struck down the validity of several notifications fixing the ceiling price of formulations under Paragraph 9 of the DPCO 1995. These notifications were struck down because they were based on notifications issued under Paragraph 7 of the DPCO 1995 which in turn were struck down because the requirements of Paragraph 7 of the DPCO 1995 were not adhered to. The correctness of this decision is before us.Civil Appeal Nos.of 2016 arise out of judgment and order dated 16th April, 2004 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Writ Petitions Nos. 18507 of 1996 and 645 of 1997 filed by Dr. Reddys Laboratories Ltd.18. Dr. Reddys Laboratories manufactures the bulk drug Norfloxacin and formulations from the said bulk drug. The challenge in the High Court was to a notification dated 13th December, 1996 issued under Paragraph 3 of the DPCO 1995 fixing the price of the bulk drug Norfloxacin at Rs. 2162/per kilogram. However, prior to that on 27th December, 1995 the ceiling price of formulations from the bulk drug Norfloxacin was fixed under Paragraph 9 of the DPCO 1995. This notification was also challenged in the High Court. The High Court found no merit in the writ petitions and dismissed them.

Reasoning:
71. We have seen the report and it is clearly inadequate. It was pointed out by the NPPA in a letter dated 23rd March, 2000 that no justification had been given in the report for the rise in the industrial average in respect of conversion cost and packing charges nor had any indication been given as to how the industrial average had been worked out as also the source of information.It will be seen from the above that as far as the drug industry was concerned,the CARs could form the basis for prescribing the norms as required by Paragraph7 of the DPCO 1995. On the other hand, the Masood Committee had concluded that the data provided through the CARs was not entirely reliable. That apart, to obtain an overall picture of the ground realities, the NPPA, the Central Government and the Cost Accounts Branch felt that the information called for through the questionnaires would be more comprehensive and beneficial rather than the CARs of a handful of manufacturers/formulators.A perusal of the Report of the Masood Committee and subsequently the Report of the Jharwal Committee clearly brings out that the Central Government initiated a detailed exercise for prescribing the norms but unfortunately the drug industry did not extend its full cooperation in the exercise and declined to provide necessary information and data despite requests and reminders. Therefore, the Central Government was left with no alternative but to notify the norms in compliance with the provisions of the DPCO 1995 on the basis of the materials already available.There is no doubt that the Masood Committee Report was the justification for the Central Government not revising the norms recommended by the Sankaran Committee and the Report of the Jharwal Committee was the basis for revising the norms as notified on 13th July, 1999. These Reports were the antecedent material available with the Central Government for the purposes of Paragraph 7 of the DPCO 1995. Can this "antecedent material" be subject to judicial review or judicial scrutiny and if so to whatIn these appeals, we too are presently concerned with a stage anterior to actual price fixation namely recommending and prescribing the norms that would eventually form the basis for fixing the retail price and ceiling price of formulations. The view expressed in Rayalaseema Paper Mills would, in our opinion, apply to the Reports of the Masood Committee and the Jharwal Committee set up by the Central Government for recommending the norms for the purposes of Paragraph 7 of the DPCO 1995. The Reports were antecedent materials,and recommendatory and could have been rejected by the central Government. The Masood Committee did not (and perhaps could not)recommend any norms for conversion cost, packing charges and process loss,except for cost of packing material (without process loss). The Masood Committee was alive to the statutory requirement of prescribing the norms on a yearly basis and therefore referred to it.94. However, as far as the Report of the Jharwal Committee is concerned, the central Government accepted and implemented it by issuing a notification on 13th July, 1999 under Paragraph 7 of the DPCO 1995but still did not prescribe the norms for cost of packing material recommended by the Masood Committee, an issue that will be considered later.95. While learned counsel for Cipla might have serious differences of opinion with the recommendations of these particularReports, generally a challenge to Reports prepared by expert bodies is not easy but is subject to lesser judicial scrutiny. To rephrase what was said in Prag Ice and Oil Mills and Anr. v. Union of India, (1978) 3 SCC 459  a factor here or a factor there that should have been taken into account but has been ignored should not invalidate the Reportsmere errors in the reports are not subject to judicial review.96. That there can be a legitimate difference of opinion (sometimes serious)between two expert bodies is not at all unusual. In Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223  the decision of the Central Government was supported by there commendations of the Tariff Commission. These recommendations were criticized in some respects by the BICP. Some members of the sugar industry accepted the views of the Central Government while some did not. Considering the overall circumstances, the Constitution Bench observed that the conclusions of the Central Government are expert conclusions which were not shown to be arbitrary,discriminatory, unreasonable or ultra vires. Reliance was placed upon the following passage from RailroadCommission of Texas v. Rowan & Nichols Oil Company, 311 US 570, 85 L Ed 358,in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen State authorities.... When we consider the limiting conditions of litigationthe adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the techniques and criteria within the special competence of lawyersit is clear that the Due Process Clause does not require the feel of the expert to the supplanted by an independent view of judges on the conflicting testimony and prophecies and impressions of expert witnesses".This observation is of even greater significance in the absence of a Due Process Clause."97. The feel of the expert is important, if not conclusive. Insofar as we are concerned, two expert Committees made their recommendations. These recommendations were then examined and considered by the Central Government and on the basis of the expert conclusions arrived at, the norms were prescribed by a notification dated 13th July, 1999 issued under Paragraph 7 of the DPCO 1995.Under the circumstances, the question of judicial scrutiny of the Reports of the Masood Committee and the Jharwal Committee and the acceptance of their recommendations by the Central Government is not only limited, but in this case it does not arise. It cannot be said that the notification dated 13th July, 1999 was based on no material or was issued without any application of mind. Learned counsel for Cipla may disagree with the contents of the materials, but cannot ignore their existence or that they were considered by the Central Government.98. Fixing the price of any commodity is not only difficult but also tricky. There is material to be considered, a bundle of factors to be considered and appropriate weight is to be given to the material and the factors. This is not easy to decide and there will always be some criticism with regard to either the material utilized or the factors considered or the weight attached to the materials and factors. In matters pertaining to drug formulations, it is not only an issue of demand and supply but also the ability of a common person to afford the formulation. At the same time,the manufacturer must also make some profit and be in a position to invest in research and development. There simply cannot be any mathematical precision in fixing the price of a commodity. More than enough elbow room or a play in the joints is required to be given in such mattersand even then the price fixing authority may commit an error. Once this is appreciated, it will be realized that the task before the Central Government in prescribing the norms was not easy.The value or utility of the CARs has already been mentioned above, which is that the Masood Committee did not find the information contained in whatever CARs were available to be fully reliable. This view was accepted by the Central Government. Even the Cost Accounts Branch of the Department of Expenditure in the Ministry of Finance did not find the CARs of particular use for the purposes of prescribing the norms. Additionally, no study could be based entirely on the CARs.We must accept the opinion of expert bodies in this regard. We do not have any contrary expert opinion on the subject and must go by the existing expert views.Proceeding on this basis, it would be incorrect on the part of Cipla and indeed the drug industry to say and contend that whatever information is required by the Central Government for fixing the norms was already available in the CARs and nothing more need be supplied to the Central Government.101. Assuming the submission of Cipla and the drug industry to be correct, it would certainly not have been a problem at all for each company to fill up the questionnaires sent by each of the Committees, if all the information required by the questionnaires was already available in the CAR of each company. Assuming again that the required information could be extracted by each Committee from the CAR, it could more easily be extracted by each company from its own CAR and provided to the Masood Committee and the Jharwal Committee. Under these circumstances, it is inexplicable why the drug industry declined to fill up the questionnaires sent to their member companies from time to time. There is certainly more to it than meets the eye.102. It is true, as contended by learned counsel for Cipla that no manufacturer/formulator is under an obligation to furnish whatever information is required by the Central Government including information that might be confidential. But that does not mean that absolutely no information should be supplied by any company or incomplete information should be supplied by a very few of them. It would certainly be more appropriate for each company to have responded to the questionnaires sent with a communication that some particular information is not being furnished for reasons of confidentiality. But no such courtesy was extended. While there may not be a statutory obligation on each manufacturer/formulator to furnish information for prescribing the norms, there is certainly a moral and social obligation on them to furnish information so that appropriate norms could be notified not only for their benefit but also for the benefit of the consumers. The preamble to the Essential Commodities Act, 1955cannot be forgotten. By not furnishing the information required, the drug industry pushed the Central Government into a corner leaving it with no option but to prescribe the norms on the basis of available material and laterthe norms.103. It is also true that fixing the price of formulations based on the norms prescribed under Paragraph 7 of the DPCO 1995 is a legislative activity which the Central Government was obliged to carry out on its own research and assessment,assuming there was no cooperation from the manufacturers/formulators. The efforts made by the Masood Committee and the Jharwal Committee for prescribing the norms for the purposes of Paragraph 7 of the DPCO 1995 were steps leading upto this legislative activity. It is nobodys case that no preliminary steps were take nor that no exercise was undertaken for arriving at appropriate normsthe steps and exercise were in fact undertaken through expert Committees but the material use din the exercise and the resultant Reports were criticized by learned counsel appearing for Cipla. We are of the view that given the circumstances that the two Committees were faced with and given the virtualattitude of the drug industry, the Central Government prescribed the norms and Cipla and the drug industry were obliged to accept them as notified without much ado. It cannot be that the drug industry does not supply necessary information and data to the expert Committees appointed by the Central Government and then blames the Central Government for taking a decision without necessary information and data.Be that as it may, our conclusion on this aspect of the matter is that the antecedent materials (the Reports) on the basis of which the norms were recommended and then prescribed under Paragraph 7 of the DPCO 1995 are subject to lesser judicial scrutiny, limited perhaps only to the application of completely erroneous principles. The burden for demonstrating the application of completely erroneous principles is heavy as it is and it is heavier still if the antecedent material is prepared by experts. The onus of discharging the heavy burden must necessarily fall on the challenger, and Cipla has not been able to sustain the challenge. There can be and are differences of opinion but we cannot and will not reconsider the opinion of experts, particularly in matters of economic affairs or other economy related issues unless there is extremely strong reason to do so.107. We end this discussion with a conclusion arrived at by the Constitution Bench in Shri Sitaram Sugar Co. Ltd. in paragraph 49 of the Report:"Where a question of law is at issue, the court may determine the rightness of the impugned decision on its own independent judgment. If the decision of the authority does not agree with that which the court considers to be the right one, the finding of law by the authority is liable to be upset. Where it is a finding of fact, the court examines only the reasonableness of the finding. When that finding is found to be rational and reasonably based on evidence, in the sense that all relevant material has been taken into account and no irrelevant material has influenced the decision, and the decision is one which any reasonably minded person, acting on such evidence, would have come to, then judicial review is exhausted even though the finding may not necessarily be what the court would have come to as a trier of fact.Whether an order is characterised as legislative or administrativeor, whether it is a determination of law or fact, the judgment of the expert body, entrusted with power, is generally treated as final and the judicial function is exhausted when it is found to have"warrant in the record" and a rational basis in law: See RochesterTel. Corp. v. United States, 307 US 125 (1939) : 83 L ed 1147.See also AssociatedProvincial Picture Houses Ltd.v. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 1 All ER[Emphasis supplied]This view was reaffirmed in paragraph 58 of the Report in the following words:"Price fixation is not within the province of the courts. Judicial function in respect of such matters is exhausted when there is found to be a rational basis for the conclusions reached by the concerned authority.As stated by Justice Cardozo in MississippiValley Barge Line Company v. United States of America., 292 US 282,: 78 L ed 1260,structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the Commission by training and experience is qualified to form.... It is not the province of a court to absorb this function to itself.... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body." [Emphasis supplied]108. For the above reasons we disagree with the Allahabad High Court and hold that the various notifications issued under Paragraph 7 of the DPCO 1995 in 1999and thereafter prescribing the norms for conversion cost, packing charges and process loss of raw materials (other than packing materials in conversion) and packing and process loss of packing materials in packaging were issued after due application of mind and based on available material duly examined by an expert body. The notifications were not arbitrarily issued nor were they discriminatory in any manner at all nor were they issued mechanically nor could it be said that they were issued without any application of mind.What then are the reasons that prompted the Central Government tothe norms prescribed by the notification dated 13th July, 1999? On the one hand,there was virtualfrom the drug industry in providing information to the Central Government despite repeated requests and reminders even by expert Committees constituted for the purpose. On the other there was a perceived statutory obligation on the Central Government to notify the norms every year and that responsibility could not be effectively discharged without the cooperation of the drug industry. Therefore the Central Government, faced with ansituation and a stalemate putting the consumers of an essential commodity at the mercy of the drug industry, had no option but tothe existing norms in public interest on the basis of the available material.111. We have adverted to the issues that confronted the Central Government during this period, namely, the unambiguous decision of the drug industry not to extend any cooperation to the Central Government in arriving at appropriate norms for the purposes of Paragraph 7 of the DPCO 1995. The views of the Indian Pharmaceutical Association and the IDMA have already been referred to. The insistence of the drug industry to work out the norms on the basis of the CARs was another stumbling block staring at the face of the Central Government. The Cost Accounts Branch of the Department of Expenditure in the Ministry of Finance, a neutral body in that sense, had clearly expressed the view that the norms could not be effectively determined only on the basis of the CARs. Finally, theof the drug industry from October 1998 onwards was another roadblock. The overall attitude of the drug industry appears to be one of profit making or preserving commercial interests, while the concern should really be of promoting consumer interest. Faced with these competing interests, the Central Government sided with the consumer and cannot be faulted for it. The Central Government did not act in a routine or mechanical manner inthe norms every year from 2000 onward. In our opinion, the explanation put for wardby the learned Solicitor General deserves acceptance.112. We conclude that theof the prescribed norms in the period2000 to 2003 was not mechanical or without any application of mind. The materials were before the Central Government and there was no change in the content of the materials. If there was, the drug industry failed to effectively point it out as a result of their non cooperative attitude. We also hold thatof the prescribed norms is per se not impermissible and in the present case it was justified in the circumstances.The norms fixed by the Central Government are of general application, they are not intended to benefit or harm any particular manufacturer or formulator and indeed no manufacturer or formulator is required to be heard (or was heard) in the determination, they are notified in the Official Gazette for the information of the general public and in arriving at the norms the general attributes of legislative activity are attended to by the Central Government for the benefit of the consumers. The notification of the norms therefore has the character of legislative activity.115. No submission was made before us to the effect that the formula given in Paragraph 7 of the DPCO 1995 was not applied proprio vigore by the Central Government. The statutory criterion for price fixing is the formula given in Paragraph 7 of the DPCO 1995. Whether this formula has been operated as it should be is certainly subject to judicial review. Therefore, while operating the formula, if the Central Government did not take conversion cost into consideration(for example) or took into consideration some factor not in the formula then, the Court could certainly strike down the retail price or the ceiling price so fixed by the Central Government on the ground that relevant factors were ignored or irrelevant factors were taken into consideration. No such allegation was made and no such contention was advanced by learned counsel for Cipla. Therefore, we need not dwell on thisfacietherefore, there is no error in continuing the norms prescribed under the DPCO 1987 even after the promulgation of the DPCO 1995.There are several reasons that can be culled out from the Report of the Masood Committee for the Central Government not determining and prescribing the norms in 1995 and thereafter for the next three years. Firstly, according to the Masood Committee the drug industry had been provided a sufficient cushion by the acceptance of the recommendations of the Sankaran Committee. Under the circumstances continuing with the norms for conversion cost and packing charges prescribed under the DPCO 1987 would not have disadvantaged the manufacturers/formulators in any manner.123. Secondly, the packing material ceilings had been recently upwardly revised from 7th July, 1994 and the manufacturers/formulators could take advantage of the cost of packing material on actuals. Surely, this was beneficial to them.124. Thirdly, according to the Masood Committee with high production levels and better capacity utilization as well as new technological processes, the process loss on raw materials and packing material ought to have come down. But since the drug industry did not provide necessary information through the questionnaire sent to the drug industry and the companies, an ad hoc reduction in the existing norm for process loss fixed by the Sankaran Committee was not recommended by the Masood Committee. This too was to the advantage of the manufacturers / formulators. Actually, the Masood Committee expressed the view that the existing norms for process loss on raw materials and packing materials was on the high side.125. Fourthly, the Masood Committee noted that there was a decrease in total formulation activity coming under price control from 70% under the DPCO 1987 to 50% under the DPCO 1995 and uniform MAPE of 100% under the DPCO 1995 as against 75% and 100% MAPE under the DPCO 1987. Even this was advantageous to the manufacturers/formulators.126. Whichever way the issue is looked at, it is clear that the manufacturers/formulators were not put to any disadvantage in the retail price fixed on the basis of the norms prescribed under the DPCO 1987. Therefore, we are of opinion that under these circumstances, the bona fides of the Central Government in not prescribing the norms every year certainly cannot be doubted.127. That apart, the provisions of Paragraph 8(5) and Paragraph 27 of the DPCO 1995 come to the aid of the Central Government and these provisions enabled the continuation of the norms prescribed under Paragraph 6 of the DPCO 1987 and saved the notifications issued under the provisions of Paragraphs 8 and 9 of the DPCO 1995. This `arrangement certainly could not have carried on indefinitely, but the recalcitrance of the drug industry pushed the Central Government into a corner leaving it with little option but to continue the `arrangement till an alternative was found through anstudy. This is perhaps where the Central Government erred. It should have set up the NPPA soon after announcing the new Drug Policy in 1994 and it should have enacted a legislation constituting the National Drug Authority in terms of the Drug Policy, 1994. Had these steps been taken, the Central Government would not have to face litigation in different parts of the country. What is tragic is that even today, there does not seem to be any sign of the Central Government taking any steps to constitute a statutory National Drug Authority.128. But be that as it may, although several notifications issued between 1995 and 1999 were collaterally challenged by the manufacturers/formulators, we were not shown any notification in which the retail price or the ceiling price was varied to their detriment. Assuming there was such a notification, a manufacturer/formulator was entitled to question the adverse revision by moving an application under the provisions of Paragraph 8(4) and Paragraph 22 of the DPCO 1995. No such application was moved by any manufacturer/formulator. Paragraph 22 thereof reads as follows:"22. Power to review.Any person aggrieved by any notification issued or order made under paras. 3, 5, 8, 9 or 10 may apply to the Government for a review of the notification or order within fifteen days of the date of publication of the notification in the Official Gazette or the receipt of the order by him, as the case may be, and the Government may make such order on the application as it may deem proper :Provided that pending a decision by the Government on the application submitted under the above paragraph, no manufacturer, importer or distributor, as the case may be, shall sell a bulk drug or formulation, as the case may be, at a price exceeding the price fixed by the Government of which a review has been appliednot. It is not necessary to revise the retail price or ceiling price of every formulation every yearand if there is no such mandate, then it must follow that there is no mandate to prescribe the norms every year under Paragraph 7 of the DPCO just for the sake of it. What consumer interest would an annual change in retail price serve in the context of over 2000 formulations? What has to be seen by the Central Government, in the larger context, is whether the drug industry is losing out in any manner and whether the consumers of formulations are being put to any discomfort. A fine balance has to be struck and if the Central Government has been successful in doing that, as it appears, then carrying out an annual ceremonial procedure or annual academic exercise of determining and prescribing the norms under Paragraph 7 of the DPCO 1995 regardless of whether there is any necessity to do so is not mandatory.130. The Central Government cannot be compelled to perform a legislative activity or legislative exercise that is of no consequence and is perhaps ritualistic. We are of opinion that while the formula given in Paragraph 7 of the DPCO 1995 must be mandatorily adhered to for fixing the retail price of a formulation, the requirement of prescribing the norms every year is discretionary and would depend upon the exigencies of the situationit might be every year or less frequently or more frequently.In other words, it does appear to us that the drug industry was content with being allowed to take the cost of packing material on actuals rather than insisting on the Central Government issuing a notification prescribing the norms for cost of packing material. We believe that in fact there was no necessity of fixing the cost of packing material as a norm for the purposes of Paragraph 7 of the DPCO 1995 and that there was no fatal error in the notifications issued under Paragraph 7 of the DPCO 1995 from 1999 onward. This also adds to our conclusion that prescribing the norms every year under Paragraph 7 of the DPCO 1995 was a discretionary exercise.136. As mentioned above, we can quite understand if the formula given in Paragraph 7 of the DPCO 1995 is not strictly adhered to by the Central Government while working out the retail price of a formulation. But if the drug industry is itself quite content with being given the benefit of actuals in material cost rather than having a norm fixed in that regard, then there is no obligation on us to completely upset the apple cart and quash a few dozen notifications at the behest of only a couple of respondents. If we do so, we would be acting to the detriment of the entire drug industry (except oneand we must mention that not many other manufacturers and formulators are before us), but we would also provide no advantage to the consumers who have already purchased the formulations more than a decade ago and have no hope of getting a refund on their purchase. Additionally, we would really be serving no public or societal interest in quashing a few dozen notifications under these circumstances.137. We may mention en passant that the ceiling price fixed by the BICP on 7th July, 1994 and thereafter revised by the NPPA in February 1998 in respect of packing materials has not been questioned (let alone challenged) byare unable to accept this submission. In the first place, there is no obligation on the Central Government to fix the maximum sale price of every bulk drug, whether it is in the First Schedule to the DPCO 1995 or not. In fact, if a bulk drug is not in the First Schedule to the DPCO 1995 the Central Government is not empowered to fix its maximum sale price. There could also be a situation where a formulation consists of two or more drugs, one of which is not a scheduled drug. In that event, if the contention of learned counsel is accepted then it would mean that the retail price or the ceiling price of that formulation cannot be fixed. This is surely not the intention of the DPCO 1995 nor is it a possible manner of reading the DPCO 1995. If the DPCO 1995 were to be read in the suggested manner, then every drug would have to be included in the First Schedule to the DPCO 1995 as ato fixing the retail price or ceiling price of a formulation which contains that drug. This would be doing utmost violence to the plain provisions of the DPCO 1995 and for this simple reason we are unable to accept the submission of learned counsel. The learned counsel has unfortunately overlooked that a formulation can contain one or more bulk drugs including a bulk drug not included in the First Schedule to the DPCOare not inclined to take this argument with any degree of seriousness particularly since it seems to suggest that the Central Government acted with a mala fide intent. There is no warrant for such an assumption and no such allegation or averment has been made in the pleadings. The issuance of a notification under Paragraph 9 of the DPCO 1995 is a legislative exercise of power and to say that it was resorted to for denying the benefit of an exemption to small scale industries can hardly be given any credence. However, if the submission was intended to convey the difficulty faced by small scale industries, it can hardly be helped. There is nothing in the DPCO 1995 to suggest that a small scale industry is kept out of the rigour of the DPCO 1995. It is equally bound by any retail price or ceiling price fixation by the Centraldecisions cited on behalf of the manufacturers/formulators in this regard are therefore not quite relevant. In any event, we have already dealt with the issue of the purported failure of the Central Government to comply with the requirement of prescribing the norms under Paragraph 7 of the DPCO 1995 and repetition is not necessary.141. We may mention that relying upon AssociatedProvincial Picture Houses Ltd. v. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 1 All ERp; C Westminster Corporation v. London and North Western Railway, 1905 AC 426,430 : 93 LT 143Barium Chemicals Ltd. v. Company Law Board, 1966 Supp SCR 311 and State of U.P. v. Renusagar Power Co., (1988) 4 SCC 59  the Constitution Bench observed in Shri Sitaram Sugar Company Ltd. that "A repository of power acts ultra vires either when he acts in excess of his power in the narrow sense or when he abuses his power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness." It was then concluded in paragraph 52 of the Report:"The true position, therefore, is that any act of the repository of power, whether legislative or administrative oris open to challenge if it is in conflict with the Constitution or the governing Act or the general principles of the law of the land or it is so arbitrary or unreasonable that no fair minded authority could ever have made it."142. To this we may add that the action of a repository of power is also amenable to judicial review if it is contrary to or violates the mandatory requirement of a subordinate legislation. Therefore, if the Central Government does not adhere to the formula given in Paragraph 7 of the DPCO 1995 and fixes the retail price or ceiling price of formulations without following the formula laid down, the notification issued by the Central Government under Paragraph 8 or Paragraph 9 of the DPCO 1995 (as the case may be) is liable to quashed as being contrary to law. However, no instance has been pointed out to us compelling us to use our power of judicial review and quash the notifications underhave no doubt that if any manufacturer or formulator had taken the trouble of preferring a revision or review application, all necessary material would have been made available to the complainant for an effective representation. We are satisfied that none of the parties before us was precluded by circumstances from preferring a revision or review for corrective measures in relation to the retail price or ceiling price of any particular formulationin fact, we are told by the learned Solicitor General that some of them did.147. Strictly speaking, in view of the availability of an alternative and efficacious remedy available under the DPCO 1995 read with the decision of this Court in Cynamide India Ltd. the writ petitions filed by the manufacturers and formulators before us ought not to have been entertained by the concerned High Courts, but we leave it at that.We are not at all in agreement with the learned Solicitor General. Forum shopping takes several hues and shades and Ciplas petitions do not fall under any category of forum shopping.The decisions referred to clearly lay down the principle that the Court is required to adopt a functional testthe litigation and the litigant. What has to be seen is whether there any functional similarity in the proceedings between one Court and another or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.158. Keeping all these examples in mind with several other nuances and also keeping the functional test in mind, we have examined the relief claimed by Cipla in the different High Courts and find that they have no substantive connection whatsoever with the relief claimed in the Allahabad High Court.We find that almost all the notifications under challenge in the Karnataka High Court were also the subject matter of challenge in the Allahabad High Court. However, Cipla had disclosed before the Allahabad High Court that it had filed writ petitions before the Karnataka High Court. There was therefore no concealment of any facts by Cipla. We also find that the consequence of allowing the three writ petitions filed by Cipla in the Bombay High Court would have had an impact on the notifications challenged in the Allahabad High Court, but that impact would have been collateral and consequential. We are of opinion that under these circumstances, Cipla ought to have disclosed the filing of writ petitions in the Bombay High Court, but at this stage we do not think it appropriate toCipla only on this ground.167. The proceedings in the Allahabad High Court were initiated as a result of a show cause notice issued to Cipla. No similar show cause notice and no similar factual circumstances existed in any of the other High Courts in which Cipla had initiated proceedings. It cannot, therefore, be said that Cipla had indulged in forum shopping in any manner whatsoever.Before parting with these appeals, we would like to make two comments: Firstly, with regard to the manner in which the Union of India has handled the litigation. We find that by and large, very little or scanty material was placed by the Union of India before the concerned High Courts, particularly the Allahabad High Court. On the other hand, several volumes of documents have been filed in this Court, though after permission. Such a practice deserves discouragement and we do so. There are several reasons for this. It tends to degrade the importance of proceedings in the High Court and could subsequently embarrass the High Court which might inadvertently base its decision on insufficient material resulting in the possibility of an incorrect decision which is liable to be set aside. It might also cause serious prejudice to a litigant because it is for the first time in this Court that the entire material is made available to a litigant placing him/her at a disadvantage in dealing with issues of importance. It certainly places an unnecessary and totally avoidable burden on this Court which is required to deal with the material as a court of first instance. Under such circumstances this Court does not have the benefit of the opinion of the High Court while dealing with an appeal. All in all therefore, for the better adjudication of disputes and for the convenience of all concerned, it would be more appropriate for the Union of India, as indeed for all litigants to place on record all the material before the court of first instance, whether it is a district court or a High Court. We need say no more on this subject.169. Secondly, the learned Solicitor General specifically and repeatedly requested us to comment on the grant of interim orders by the High Courts in matters concerning economic issues and particularly in matters pertaining to the sale of formulations at the retail price or ceiling price fixed by the Central Government through notifications issued under the DPCO. Certain interim orders were brought to our notice restraining coercive action against a manufacturer/formulator when a price notification was under challenge. It is true that such an interim order could have a huge impact on society.Under these circumstances, we are clearly of the view that in matters where public interest is involved, the Court ought to be circumspect in granting any interim relief. The consequence of an interim order might be quite serious to society and consumers and might cause damage to public interest and have a long term impact. We make it clear that it is not our intention to suggest to any Court how and in what circumstances interim orders should or should not be passed but it is certainly our intention to make it known to the Courts that the time has come when it is necessary to be somewhat more circumspect while granting an interim order in matters having financial or economic implications.172. We would also like to draw the attention to the Drug Policy, 1994 which mentions that as far as the drug industry is concerned, there are about 250 large units and about 8000 small scale units in operation. These units produce about 350 bulk drugs, and as we have mentioned above more than 2000 formulations. The Drug Policy, 1994 also mentions that the production of bulk drugs inis in the region of Rs. 1320 crores and for the same period the production of formulations is in the region of Rs. 6900 crores. In other words, not only is the drug industry in the country extremely large with heavy financial stakes but there is lot at stake in it not only for the industry but also for the consumers. For this reason, the Courts have to extremely cautious in interfering in any manner whatsoever with the working of the drug industry. Any interference by the Courts would have wide ranging repercussions not only in commercial terms but also for the people of the country.