CATTLE REMEDIES, FIROZABAD vs LICENSING AUTHORITY/DIRECTOR OF UNANI SERVICES, LUCKNOW

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 Supreme(All) 160

[2007(2) ADJ 12 (DB)]
ALLAHABAD HIGH COURT
BEFORE : YATINDRA SINGH AND RAN VIJAI SINGH, JJ.
M/s. CATTLE REMEDIES, FIROZABAD .Petitioners
Versus
LICENSING AUTHORITY/DIRECTOR OF UNANI SERVICES, LUCKNOW AND OTHERS ——Respondents
(Civil Misc. Writ Petition Nos. 8746 of 2001 and 32158 of 2005,
decided on 18th January, 2007)

Advocates appeared:
Rahul Sripat for the Petitioner; Tej Pal and Sukendru Pal Singh for the Respondents; Ms. Subhash Rathi for State officials.

Headnote:(A) Drugs and Cosmetics Act, 1940—Section 3(h)—What is meaning of “patent or proprietary medicines” under Section 3(h) of Act—Whether disputed drugs are “patent or proprietary medicines”, within meaning of Section 3(h)—Held, patent, or proprietary medicines under Drugs Act are those medicines that (i) use same ingredients, as mentioned in any of formulae in Authoritative Books, but (ii) do not use any formulation, included in Authoritative Books, and, (iii) are not administered by parenteral route—Hence, disputed drugs are patent, or proprietary medicines of parties, within meaning of Drugs Act. [Paras 13, 18 and 19]
       (B) Drugs and Cosmetics Act, 1940—Section 3(h)—Licence—Grant of—To Manufacture drugs—Whether licence under Drugs Act, can be granted only in name of brand/Trade name—Disputed drugs falls under Section 3(h)—Yet, they are not patented under Patents Act—Anyone, can manufacture them—Parties cannot restrain each other, or anyone else, from manufacturing it—At present, they have licences also under Drugs Act, to manufacture these medicines in same name—This is not permissible—Only that party can give this name that is entitled to use these names, as trade mark—Disputed drugs manufactured by parties—Are different—It is appropriate that Drugs Rules, be amended—And declaration be required that medicines are not patented under Patents Act—And name is not a trade-mark of any other person. [Paras 38, 39 and 43]
       (C) Drugs and Cosmetics Act, 1940—Section 3(h)—Licence—Grant of—To Manufacture drugs—Part of impugned order, granting permission to respondents to sell already manufactured medicines in name of Catone, Catcough and Uterotone, as well as order, granting licence to petitioner, to manufacture disputed drugs, in these names, is quashed—However, open to respondents to follow certain directions given in instant judgment. [Paras 52 and 53]

JUDGMENT

Hon’ble Yatindra Singh, J.—The controversy involved in these two writ petitions revolves around two of the intellectual property rights (IPRs) namely Patents and Trade marks; it also involves their interplay with the Drugs and Cosmetics Act, 1940 (the Drugs Act) . It arises in connection of grant of licence to manufacture Ayurvedic drugs for animals.

THE FACTS

2. M/s Cattle Remedies, Araon Road, Sirsaganj, Firozabad (the petitioner) as well as M/s Bio-Herbs Pharma, Chamar Gate, Hathras (the contesting respondents) manufacture Ayurvedic drugs for animals.

3. They have licence to manufacture many Ayurvedic drugs but controversy here is in regard to the grant of licence for the following three Ayurvedic drugs (the disputed drugs) for the animals that both of them have given same name. They are :

(i) Catone: It is a powder. It is for cleaning stomach and improving digestion;

(ii) Catcough: It is a paste. It is for ‘cough and cold’;

(iii) Uterotone: It is a syrup. It is for facilitating reproduction and problems relating to it.

These names are being referred to as the disputed names in this judgment.

4. The petitioner’s firm was first one to start and sometimes in 1971, the partners of the contesting respondents were inducted in the petitioner’s firm. However, it was dissolved in the year 1981 and the petitioner’s firm was reconstituted. The firm of the contesting respondent was also formed at that time. Both of them started manufacturing Ayurvedic drugs for animals.

Earlier litigation regarding licence

5. The petitioner applied for and was granted licences to manufacture the disputed drugs under the Drugs Act on 13.12.1984. It appears that the contesting respondent did not have any licence under the Drugs Act to manufacture the disputed drugs and some prosecution was being launched against it. The contesting respondent filed writ petition No. 41152 of 1992 for declaration that it is a deemed licensee for the disputed drugs under the Drugs Act. During pendency of this writ petition, two separate orders were passed :

(i) The contesting respondent was granted licences under the Act to manufacture the disputed drugs. However, it was subject to decision in writ petition No. 41152 of 1992;

(ii) The petitioner’s licences for the disputed drugs were cancelled.

The petitioner filed writ petition No. 7230 of 1995 against these two orders.

6. These two writ petitions were decided together on 27.11.2000. The court held that :

(i) There is no deemed licence in favour of the contesting respondent and the application of the contesting respondent for grant of licence should be considered in accordance with law.

(ii) The order dated 10.3.1995 cancelling the licence of the petitioner was quashed and authorities were directed to pass a fresh order after affording opportunity to the petitioner.

7. The licensing authority by its order dated 22.2.2001 upheld the licence of the petitioner and rejected the application of the contesting respondent. Nevertheless, the licensing authority also observed that the contesting respondent is permitted to sell the quantity of the disputed drugs already manufactured. The petitioner filed writ petition No. 8746 of 2001 against this part of the order. In this writ petition, an interim order was obtained by the petitioner restraining the contesting respondent from selling the disputed drugs in terms of the order dated 22.2.2001.

8. The contesting respondent filed an appeal against the order dated 22.2.2001. It was dismissed by the State Government on 31.1.2002. The contesting respondent filed writ petition No. 11986 of 2002 against this order. It was also dismissed on 21.3.2002. The contesting respondent filed Special Leave Petition (SLP) No. 11833 of 2002 against it. However, it was withdrawn on 24.3.2003 with liberty to seek appropriate remedy from the competent authorities. Subsequently, the licensing authority granted licence to the contesting respondent to manufacture the disputed drugs on 10.2.2005. The p

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