NATIONAL COUNCIL FOR CIVIL LIBERTIES vs DEPARTMENT OF HEALTH AND FAMILY WELFARE

NATIONAL Council for Civil Liberties at Ahmedabad (the Council for convenience) approached this Commission under Section 10(a)(i) read with Section 36B(a) of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) charging the respondent with adoption of and indulgence in restrictive and unfair trade practices within their respective meanings contained therein. It has also taken out an application under Section 12A thereof for some interim relief. By the order passed by this Commission on 17th March, 1998 one Radicura Pharma (the Firm for convenience) has also been made a party complainant No. 2 in this proceeding.

IT is not necessary to set out in detail the facts giving rise to the present proceeding. IT may be sufficient to note that the Central Government has undertaken a project for eradication of the disease of Polio and to make this country a Polio- free zone with the aid of certain foreign countries like Japan and certain other western countries. With a view to realising the object behind the project, the Central Government has, through the agencies of the respondents herein, has provided free distribution of Poliomilatus Vaccine Oral (PVO for convenience). The Central Government has entered into agreements with the foreign Governments for procuring PVO through the UNICEF or WHO (World Health Organisation) in view of getting aid from such foreign countries. According to the Council, as transpiring from the complaint application, PVO is available in abundance in this country and it is not necessary to procure PVO from any foreign agency at the cost of encouraging PVO manufacturing indigenously in this country. IT has therefore approached this Commission under Sections 10(a)(i) and 36B(a) of the MRTP Act charging the respondents with adoption of and indulgence in restrictive and unfair trade practices within their respective meanings contained therein. As aforesaid, it has also moved an application under Section 12A thereof for some interim relief. Complainant No. 2 has been impleaded as a party complainant as a manufacturer of PVO. By an order passed by this Commission on 29th December, 1997, a Notice of Enquiry as also a Notice as to the interim relief application has come to be issued. Respondent Nos. 1 and 2 have filed their replies and have resisted both the complaint application and the interim relief application on several grounds. They have inter alia questioned the maintainability of this proceeding. They have also contended that this Commission has no jurisdiction to entertain the proceeding as no trade practice is found involved in this case. They have also contended that it would not be open to this Commission to examine any policy decision of the Central Government.

The matter has been placed before us today for consideration of the interim relief application. However, since the objection has been raised both as to the jurisdiction of this Commission to entertain this complaint application and also as to the maintainability of the proceeding on certain other grounds, at the instance of the learned Lawyers for the parties, we have chosen to hear arguments on the question of the jurisdiction of this Commission to entertain this complaint application and the maintainability of this proceeding before this Commission.

AS rightly submitted by learned Counsel Mr. Tiku for respondent Nos. 1 and 2, the Central Government agreed to purchase PVO through the agency of UNICEF or WHO with a view to obtaining aid from foreign countries like Japan and other western countries to meet with the cost of eradication of Polio from this country and making it a Polio-free zone. It cannot be gainsaid that the project for eradication of Polio from this country and its transformation into a Polio-free zone would involve a huge expenditure. It is our common knowledge that this country may not be in a position to afford such huge expenditure keeping in mind certain budgetary constraints. In that view of the matter, with a view to obtaining aid from foreign countries to implement the project, we find nothing objectionable on the part of the Central Government to enter into agreements with foreign countries and also for agreeing to procure the required quantity and quota of PVO through the agency of UNICEF or WHO. It is true, as rightly submitted by learned Counsel Mr. Haksar for complainant No. 2, that agreement entered into by the Central Government with foreign countries cannot be likened to treaties and therefore Acts of State. However, as rightly submitted by learned Counsel Mr. Tiku for respondent Nos. 1 and 2, it is a policy decision of the Central Government how and in what manner it should agree to the receipt of aids from foreign countries and this Commission cannot and need not examine the correctness or otherwise of such policy decision of the Central Government. It cannot be gainsaid that this Commission does not enjoy any kind of wide powers which are conferred on Writ Courts under Article 226 of the Constitution of India. It would not therefore be open to this Commission to question the correctness of any policy decision of the Central Government in terms of its agreements with different countries for procurement of aids to implement the project and to procure PVO from foreign agencies in terms thereof.

EVEN otherwise, it is difficult to brand the practice of procurement of PVO through foreign agencies as any kind of trade practice so as to affect the complainants or either of them. As pointed out hereinabove, the project is sought to be implemented by supply of PVO free of charge to patients through the agency of respondent Nos. 1 and 2 herein. No price has to be paid for supply of such PVO to needy persons. Procurement of PVO through foreign agencies is also against consideration of aids received from foreign countries. Non-purchase of PVO from local manufacturers would not involve any trade practice within its meaning contained in Section 2(u) of the MRTP Act. It is difficult to come to the conclusion that for the purpose of the implementation of the aforesaid project, the Central Government or the respondents herein or any of them can be said to be carrying on any trade activity. Besides, as stated by and on behalf of respondent Nos. 1 and 2 in the additional affidavit, the project is for five years from the date of its implementation in the first instance and that period of five years is likely to come to an end by January, 2000. If the Central Government thinks of extending that period of implementation of the project on account of not fully realising its object, it will be for the Central Government to decide how and in what manner and under what terms it should carry on the implementation of such project. We do not think that we have any jurisdiction to give any direction to the Central Government in that regard. In view of our aforesaid discussion, we are of the opinion that this Commission has no jurisdiction to entertain this complaint application and, even otherwise, the complaint application is not maintainable in law. The complaint application therefore deserves to be and is hereby rejected. The Notice of Enquiry is accordingly discharged however with no order as to costs on the facts and in the circumstances of the case. N.O.E. discharged.