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1997 Supreme(Guj) 381
Gujarat High Court
Judgename :R.K.Abichandani
HEM PLAST HEALTH CARE PRIVATE LIMITED - Appellant
Versus
STATE - Respondent
S.C.A. 4100 of 1997
Decided On : 08/13/1997
Subject
Administrative Law - Government Procurement
Act Referred
CONSTITUTION OF INDIA : Art.226, Art.14
DRUGS AND COSMETICS ACT : S.2
Headnote
The provisions of Sec. 40 of the Bureau of Indian Standards Act, 1986 that the provisions of that Act do not affect the operation of the Drugs and Cosmetics Act, 1940 or any other law for the time being in force which deals with standardisation or quality control of any article or process. The standards prescribed under BIS Act are therefore independent of the standards that may be required under other laws including laws under Drugs and Cosmetics Act, 1940 which continued to operate.
[Para 8]
As regards, the standards under BIS Act, 1986, use of standard mark for an article would be compulsory only if under Sec. 14 thereof the Central Government, after consulting the Bureau has notified its opinion in the Official Gazette that any article or process of any Schedule of industry shall conform to the Indian Standards and directs use of standard mark under the licence as compulsory on such articles or process. In other words, for the notified article or process the Central Government in public interest can insist upon use of standard marks on them and insist that this should be compulsorily done under a licence.
[Para 9]
In Sec. 2 of the Drugs and Cosmetics Act, 1940 there is a clear provision that the provisions of the said Act are in addition to and not in derogation of any other law for the time being in force including the Dangerous Drugs Act, 1930. Thus, the Drugs Act is not an exhaustive legislation and therefore it cannot be said that if any goods are required to comply with the standards under the Rules framed under the Drugs Act, the standards which may also be prescribed in respect of such goods under BIS Act would not be applicable. Therefore, there is no scope for an argument that if the petitioners absorbent gauze and bandage cloth comply with the standards under F(II) of the Drugs and Cosmetics Rules, the respondent authorities are not justified in insisting upon the standard under the BIS Act particularly in respect of pH value.
[Para 10]
The question of purchase of goods of a particular standard or quality which bears ISI mark is a matter of policy for the Government to follow and in the instant case it is satisfactorily established on the record that the policy of the government was to go in for bandage cloth and absorbent gauze having ISI mark which ensured that additional standard of prescribed pH value was also complied in respect of the goods which may ultimately purchased.
[Para 11]
The tender notice refers to the tenders which were required to be collected and the tender form clearly mentioning the condition that these goods must satisfy the ISI standards otherwise the offer would not be considered. The petitioner did not have any ISI mark goods offer. Therefore, he cannot be make any grievance that his goods were not considered or that he was not given a tender form.
[Para 12]
( 1 ) THE petitioner challenges the award of rate contract by the respondent No. 2 to the respondent Nos. 3 to 6 on the footing that he has been arbitrarily denied to participate by offering F (II) quality bandage cloth and absorbent gauze.
( 2 ) THE case of the petitioner is that F (II) quality of absorbent gauze and bandage cloth has been prescribed under Rule 124-C of the Drugs and Cosmetics Rules, 1945 in Schedule F (II) thereof and these goods offered by the petitioner were of the standards so prescribed and therefore, the petitioner could not have been prevented from participating as a tenderer on the ground that the petitioners goods do not have i. S. I. mark certification more particularly since the tender notice never prescribed the requirement that the goods should be of I. S. I. mark. The case of the petitioner is that the standard prescribed for the surgical dressings under the Drugs and cosmetics Rules and the Indian Standard prescribed under Bureau of Indian standards Act, 1986 hardly had any difference, and, they were almost identical except in case of ph factor for which the limits were indicated in the standards prescribed under the Bureau of Indian Standards Act while there was no reference to it in the standards prescribed in Schedule F (II) under Rule 124-C of the Drugs and Cosmetics rules.
( 3 ) ). The learned Counsel for the petitioner contended that the requirement of i. S. I. mark was not mentioned in the tender notice and was beyond its scope. Therefore, the respondent authorities could not have insisted on that requirement and denied the tender form to the petitioner on that ground. It was contended that the petitioner had approached the respondent No. 2 on 17-5-1997, as stated in the petition, but was not given the tender form on the ground that the petitioner was not in a position to supply the goods bearing I. S. I. mark. According to the learned counsel for the petitioner, under the provision of B. I. S. Act, it was not mandatory for the dealer to have B. I. S. specification in respect of its goods unless a notification was issued under S. 14 of that Act. It was further argued that ph value in context of surgical dressings like bandages and absorbent gauze is of no consequence and since there is no provision under the Drugs and Cosmetics Rules prescribing the standard of ph value that requirement ought to have been ignored. It was pointed out that in the communication sent to the petitioner in a different context, namely, in response to the letter of the petitioner regarding I. S. I. licence for Disposable hypodermic syringes, the Bureau of Indian Standards had replied on 19-9-1996 as per copy at Annexure d to the petition informing the petitioner that the said product of syringes was not amenable for certification as the product comes under the Drugs Act. Relying on this letter it was contended that if the provisions of the drugs Act were attracted there was no question of complying with the standards of bureau of Indian Standards and I. S. I. certificate was not required in such cases. It was further contended that at one point of time on 3-5-1997 a communication was sent by the Government to the hospitals and the Medical Authorities by which they were asked to make purchase of absorbent gauze/cotton wool which satisfied the indian Pharmacopeia standards and it was not necessary for insisting on I. S. I. standards. It was submitted that this conduct indicated that at one point of time even the Government took note of the fact that there was hardly any difference in the standards prescribed under the Drugs Act and under the B. I. S. Act in respect of these goods. In support of his contention that the respondent authorities could not have gone beyond what was stated in the tender notice the learned Counsel relied on the decision of Honble the Supreme Court in Dutta Associates Pvt. LIMITED v. Indo merchantiles Pvt. LIMITED , reported in 1996 1 JT 419. In that decision honble th
