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The question of maintainability of the second suit is absence of the registrant proprietor was not and could not have been the subject matter of consent at that stage | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The cause of action which permitted the first respondent to file an application for rectification against M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries was non-user thereof by it | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Its non-user and rectification of the register could not,in the aforementioned situation,have been tagged with the cause of action,if any,against the appellant | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The second contention of Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
that the appellant was an infringer of the trade mark is again a question of fact | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The right of the first respondent as a proprietor of the trade mark by reason of a long user is required to be determined vis-'-vis M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries as also the appellant in the suit filed by it which is pending | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Board could not,while exercising its jurisdiction under S.46(1)(b),of the Act proceeded on the basis of such presumption | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is not correct that no cause of action survived against Jain Industries | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was not lost by reason of assignment as was contended by the learned counsel | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the suit,only the competing right of the first respondent qua the appellant can be determined and not a right against M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Such a right cannot be determined in a proceeding under S.46(1)(b) of the Act which is restricted to non-user of the registered trade mark | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Both the appellant and the respondent No.1 were the infringers of the right of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries as it was the registered proprietor of the trade mark in respect of the goods in question,namely,centrifugal pumps | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Two interpretations of the said provision S.46(1)(b) are possible | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
While interpreting the same,however,certain basic principles of construction of statute must be kept in mind | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As it takes away somebody's right,it deserves strict construction | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jurisdiction of the Board being dependent on determination of the foundational facts,the same was required to be established on the basis of the averments made in the application and not otherwise | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The right of a registered trade mark is not lost automatically on the expiry of five years and one month | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It does not provide for a 'sun set' law | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It has to be adjudicated upon | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Whether the registered proprietor of the trade mark had taken recourse to trafficking or not must be determined in an appropriate proceeding | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The principle of 'purchaser of a property has a duty to make enquiries',therefore,cannot apply in a case of this nature | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
So long as the right to assign a registered trade mark remains valid,once the same is validly assigned,the assignee derives the same right as that of the assignor in terms of the statute | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A title to a trade mark derived on assignment as provided for under the Act cannot be equated with a defective title acquired in any other property as admittedly on the date of assignment,the right of the registered trade mark was not extinguished | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Both the findings of the High Court which we have noticed hereinbefore are findings on question of law and in that view of the matter the contention of Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sudhir Chandra that the merit of the matter is yet to be gone into by the Board cannot be a ground for ignoring the submissions made at the bar | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Our attention has again been drawn to a passage from 'Law of Trade marks & Geographical Indications' by Shri K.C.Kailasam,wherein the judgment of the Tribunal has been criticized in the following terms : "From the above legislative intent,it would seem that the period of non-use of the trade mark is to be reckoned continuously from the date of its registration | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the case of American Home Products Corporation v | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Mac Laboratories Pvt.Ltd | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Rendered under the 1958 Act,it was held by the Supreme Court that "the person seeking to have the trade mark removed from the register has only to prove | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
such continuous non-user." It would appear that neither the U.K.Act,nor the Indian Act,at any time envisaged that the commencement of 5 year period of non-use is to be delinked from the date of registration of the mark,so as to give a fresh lease of life to the registration,every-time there is change in the ownership of the mark | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If that be so,any registered proprietor could easily defeat an application for rectification by assigning the mark to some other person to have a fresh period of 5 years from the date of assignment and thus effectively frustrate the very object of the provision in s.47(1)(a) and (b).Further,it is to be noted that an assignment is subject to "the provisions of the Act and any rights vested in any other person" -See | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
s.37.The assignor cannot obviously transfer more rights than he himself has to the assignee under the Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We do not think that the approach of the learned author is entirely correct | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
An assigner can transfer only such right which he possesses | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If his title is not extinguished by reason of a provision of a statute for non-user of the trade mark for a period of five years,any assignment made shall be valid subject to such situation which we have noticed in paragraph 25 supra | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
For the views we have taken,we are of the opinion that the impugned judgment cannot be sustained | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is set aside accordingly | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Board shall,however proceed to determine afresh the application filed by the first in the light of the legal principles explained above | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The appeal is allowed with costs | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Counsel's fee assessed at Rs.1,00,000 | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Appeal allowed | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The appellant is a company incorporated under the Companies Act,1956 with the object of manufacture and sale of cigarettes | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Members of general public are the shareholders and the shares of the company are traded in through various stock exchanges in the country | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A petition was filed under Article 226 of the Constitution by respondent No.1 seeking for a writ of mandamus to treat the members of the respondent-union who are employees working in the canteen of the appellants factory as employees of the appellant and for grant of monetary and other consequential benefits | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The canteen is provided in the factory premises of the appellant pursuant to Section 46 of the Factories Act,1948 [hereinafter referred to as the Act],which obliges a factory employing more than 250 workmen to provide such a canteen | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On behalf of the respondents,it is contended that the appellant had been managing the canteen up to the year 1982 and thereafter introduced the contract system for maintaining the canteen so established; that though the management of the canteen had been entrusted to the contractors from time to time,the personnel employed in the canteen were retained by all the contractors and they have been paid salaries through contractors; that the workmen employed in the canteen have been provided with ESI benefits under the Code No.VST,the appellant,and benefits arising under the Employees Provident Funds Act are also provided similarly; that the appellant has also provided a building along with furniture,utensils,cutlery,gas,electricity,water supply and other facilities; that the contractor is engaged only to prepare the food and serve it to the employees and that the quality of the food and the rates are controlled by the management of the appellant | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On behalf of the appellant,contention was raised that no writ would lie against the appellant inasmuch as the appellant is a company,which is not an authority or a person against whom a writ would lie | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was submitted that they do not discharge any public duty and hence the writ cannot be issued | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On the merits of the matter,the appellant disputed various questions of fact and urged that the decision of this Court in Parimal Chandra Raha vs | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Life Insurance Corporation of India,1995 Supp.(2) SCC 611 1995 Indlaw SC 183,would not be applicable to the appellant in the facts and circumstances of the case | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The learned Single Judge,who decided the matter in the first instance,held that a writ would lie against a company under a private management following the decision in T.Gattaiah vs | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Commissioner of Labour,1981 [II ] LLJ 54 1981 Indlaw AP 26,in which it was held that establishment of a canteen and its maintenance is a statutory requirement; under Section 46 of the Act a public duty is imposed on the company to establish and maintain the canteen; inasmuch as members of the respondent-union are working in the canteen they are entitled to seek a mandamus | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
He,therefore,held that when a public duty is called upon to be discharged by a private management,a writ of mandamus would lie and could be issued under Article 226 of the Constitution | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
He thus rejected the contention | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On the merits of the matter,the learned Single Judge followed the decision in Parimal Chandra Rahas case holding that when the duty had been enjoined on the appellant to provide and maintain a canteen facility under the Factories Act it becomes the obligation of the appellant to establish a canteen and that is what the appellant had done | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Therefore,when that work is got done through somebody else by providing the necessary infrastructure and other facilities,when the personnel did not change though the contractors changed from time to time,he held that they become employees of the appellant | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On that basis the learned Single Judge granted reliefs sought for by the respondents,however,imposing certain restrictions with regard to the age,being medically fit,on the date of the writ petition,had put in a minimum of three years of continuous service and such service prior to the attainment of the minimum qualifying age under the company should be ignored | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On appeal,the Division Bench of the High Court affirmed the view taken by the learned Single Judge | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Division Bench referred to their decision in Rakesh Gupta vs | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Hyderabad Stock Exchange Ltd | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Hyderabad & Ors.,AIR 1996 AP 430 1996 Indlaw AP | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
302,that a writ in the nature of mandamus,certiorari and prohibition are recognised as public law remedies and are not available to enforce private law rights | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
However,noticing that the expression any person or authority used in Article 226 of the Constitution should not be confined only to statutory authorities and instrumentalities of State but would cover any other person or body performing public duty | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The form of the body concerned is not very much relevant | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
What is relevant is the nature of the duty imposed on that body | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The duty must be judged in the light of positive obligation owed by the person or authority to the affected party,no matter by what means the duty is imposed | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On that basis,the Division Bench of the High Court dismissed the writ appeal | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Hence this appeal | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On behalf of the appellant contention put forth at the forefront is that a writ would not lie against the appellant inasmuch as the appellant is engaged in the manufacture and sale of cigarettes and as an incident thereto has provided a canteen to its workmen pursuant to an obligation under Section 46 of the Act | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Shri S.Ganesh,learned counsel for the appellant,pressed into service the decision of this Court in Anadi Mukta Sadguru Shree Muktajee Vandas Swami Survarna Jayanti Mahotsav Smarak Trust & Ors.vs | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
V.R.Rudani & Ors.,1989 (2) SCC 691 1989 | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indlaw SC 589,to contend that mere running of a factory to manufacture and sell of cigarettes can never be considered to be a public duty much less an incident thereto such as providing a canteen to its workmen | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On behalf of the respondent,heavy reliance was placed on this decision and also the decision of the High Court in T.Gattaiahs case,to contend that in running a canteen under Section 46 of the Act,the appellant was discharging a public duty and,therefore,a writ of mandamus would lie against it | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
n Anadi Muktas case,the contention,similar to the present case,had been raised | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Writ petitioners were seeking for a writ of mandamus to put them back in the college and they were claiming only a terminal benefit or arrears of salary payable to them | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In that background,it was observed that if the rights are purely of a private character no mandamus could be issued and also,if the management of the college were purely a private body with no public duty mandamus would not lie | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In that case,the respondent was managing the affiliated college to which public money is paid as Government aid which played a major role in the control,maintenance and working of educational institutions | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The aided institutions,it was noticed,like Government institutions discharge public function by way of imparting education to students | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
They were subject to the rules and regulations of the affiliating University and their activities were closely supervised by the University authorities | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Employment in such institutions,therefore,is not devoid of any public character inasmuch as the service conditions of the academic staff were controlled by the University particularly in regard to their pay scales and the protection by University decisions creating a legal right or duty relationship between the staff and the management | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
When there is existence of such relationship mandamus could not be refused to such an aggrieved party | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was further explained in that decision that the term authority used in Article 226 of the Constitution should receive a liberal meaning unlike the term in Article 12,which is only for the purpose of enforcement of fundamental rights under Article 32.The words any person or authority used in Article 226 are,therefore,not be confined only to statutory authorities or instrumentalities of the State but would cover any other person or body performing public duty | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The duty must be judged in the light of positive obligation owed by the person or authority to the affected party,no matter by what means the duty is imposed,if a positive obligation exists,mandamus cannot be denied | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In De Smith,Woolf and Jowells Judicial Review of Administrative Action,5th Edn.,it is noticed that not all the Activities of the private bodies are subject to private law,e.g.,the Activities by private bodies may be governed by the standards of public law when its decisions are subject to duties conferred by statute or when,by virtue of the function it is performing or possibly its dominant position in the market,it is under an implied duty to act in the public interest | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
By way of illustration,it is noticed that a private company selected to run a prison although motivated by commercial profit should be regarded,at least in relation to some of its activities,as subject to public law because of the nature of the function it is performing | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This is because the prisoners,for whose custody and care it is responsible,are in the prison in consequence of an order of the court,and the purpose and nature of their detention is a matter of public concern and interest | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
After detailed discussion,the learned authors have summarized the position with the following propositions: (1) The test of whether a body is performing a public function,and is hence amenable to judicial review,may not depend upon the source of its power or whether the body is ostensibly a public or a private body | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
2) The principles of judicial review prima facie govern the Activities of bodies performing public functions | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
However,not all decisions taken by bodies in the course of their public functions are the subject matter of judicial review | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the following two situations judicial review will not normally be appropriate even though the body may be performing a public function: (a) Where some other branch of the law more appropriately governs the dispute between the parties | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In such a case,that branch of the law and its remedies should and normally will be applied; and (b) Where there is a contract between the litigants | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In such a case the express or implied terms of the agreement should normally govern the matter | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This reflects the normal approach of English law,namely,that the terms of a contract will normally govern the transaction,or other relationship between the parties,rather than the general law | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Thus,where a special method of resolving disputes (such as arbitration or resolution by private or domestic Tribunals) has been agreed by the parties (expressly or by necessary implication),that regime,and not judicial review,will normally govern the dispute | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The High Court has relied very strongly on the decision of a learned Single Judge in T.Gattaiahs case wherein it was stated that a writ may lie under Article 226 of the Constitution against a company incorporated under the Companies Act,1956 as it is permissible to issue a writ against any person | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Prima facie,therefore,a private person or an incorporated company cannot be taken out of the sweep and the contemplation of Article 226 of the Constitution | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
That decision does not take note of the fact as to the nature of the functions that a person or an incorporated company should be performing to attract judicial review under Article 226 of the Constitution | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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