G. Rohini, J.

1. Whether fixation of ceiling price under the provisions of the Drugs (Prices Control) Order, 2013 for male contraceptives (condoms) is in conformity with the powers vested under the Essential Commodities Act, 1955 read with the Drugs and Cosmetics Act, 1940 is the question that requires consideration in these two writ petitions.

2. The petitioners in both the writ petitions are the companies engaged in manufacturing/marketing of various health products including male contraceptives (Condoms). It is pleaded that the petitioner in W.P. No.7705/2013 manufactures and markets “condoms” under the brand name “Durex” and “Kohinoor”, whereas the petitioner in W.P. No.2245/2014 manufactures and markets under the brand name “Kamasutra”.

3. Prior to coming into force of the Drugs (Prices Control) Order, 2013 (DPCO, 2013) with effect from 15.05.2013, no ceiling price was fixed for sale of the condoms. However, by order dated 05.11.2013, the National Pharmaceutical Pricing Authority, Department of Pharmaceuticals, Ministry of Chemicals and Fertilizers, Government of India, in exercise of the powers conferred by Paragraph 4, 11 and 14 of the Drugs (Prices Control) Order, 2013, fixed the ceiling price of the condoms at Rs.6.56/- per unit (one condom).

4. The petitioners, who claim that the cost price of the branded condoms manufactured/marketed by them is much higher than the ceiling price of Rs.6.56/- fixed by the National Pharmaceutical Pricing Authority (NPPA) are therefore aggrieved and accordingly these two writ petitions are filed with a prayer to declare the inclusion of male contraceptive (condoms) in Entry 18.3.3 of the First Schedule to DPCO, 2013 as ultra vires the provisions of the Essential Commodities Act, 1955 and/or contrary to the National Pharmaceutical Pricing Policy, 2012 apart from being violative of Articles 14 and 19(1)(g) of the Constitution of India. Consequently, the petitioners seek to set aside the order dated 05.11.2013 issued by the National Pharmaceutical Pricing Authority.

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.

6. The said application was opposed by the respondents contending inter alia that the order dated 10.07.2014 by which the earlier order dated 05.11.2013 was superseded, has given rise to a fresh cause of action. It is also contended that against the order dated 10.07.2014, an alternative remedy of Review is available under Paragraph 31 of DPCO, 2013.

7. Both the objections raised by the respondents, according to us, are untenable since the order dated 10.07.2014 came to be passed during the pendency of the writ petition, particularly in terms of the liberty granted by this Court to the petitioner to file the Review under Paragraph 31 of the DPCO, 2013. That apart, the main contention in the writ petition is that the very inclusion of the “condoms” within the purview of DPCO, 2013 is beyond the powers conferred under the Essential Commodities Act, 1955 apart from being contrary to the National Pharmaceutical Pricing Policy, 2012. Apparently, by virtue of the proposed amendment, the nature of the writ petition has not been altered in any manner wh