Ashok Bhushan, Ag.C.J.
This Writ Appeal has been filed against the judgment dated 15th September, 2010 passed by the learned Single Judge dismissing W.P.(C) No.20784 of 2010 filed by the appellant/petitioner. The brief facts giving rise to the writ appeal are:
The petitioner is the Director of “Kerala Kathakali Centre”, Fort Kochi, an organisation established in 1994 for promoting 'Kathakali', a very ancient and traditional art of Kerala. Ext.P7 notice was issued to the petitioner informing that use of the name 'Kerala Kathakali Centre' for the purpose of trade, business without the previous permission of the Government of India is prohibited by Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 and it makes out an offence under Section 3 and 7 of the Act. Petitioner was directed that he shall either avoid or discontinue the use of such name and style forthwith and any failure in that regard will certainly follow the prosecution steps against him. Aggrieved by the said notice, the petitioner filed the writ petition. Petitioner's case in the writ petition was that petitioner has given the name 'Kerala Kathakali Centre' for his organisation established for promoting 'kathakali', which is originated in the State of Kerala and the name does not suggest any patronage of Government of Kerala. Learned Single Judge dismissed the writ petition holding that the use of name 'Kerala Kathakali Centre' is in prohibition of Section 3 of the 1950 Act and no perversity or illegality has been committed in issuing the show cause notice to the petitioner.
2. Learned counsel for the appellant in support of the writ petition contended that mere the use of name 'Kerala Kathakali Centre' does not indicate that it suggests the patronage of Government of India or Government of a State. He submits that petitioner's case is not covered by Section 3 of the 1950 Act. He further submits that the name 'Kerala Kathakali Centre' has been used to suggest an art of the State of Kerala and patronage of State of Kerala is not intended nor anyone is misled by the use of that name. In support of his submission, he placed reliance on the judgment of Andra Pradesh High Court reported in South India Textiles and others v. Govt. of A.P. and others [AIR 1989 Andra Pradesh 55] and judgment of Bombay High Court in Goenkarancho Ekvot v. Union of India and others [2007 KHC 7001] equivalent to [AIR 2007 Bom. 184].
3. The Director General of Prosecution, Sri. T.Asif Ali appearing for the State submits that there was no error in the issue of notice which was in accordance with the provisions of the 1950 Act. He submits that use of the name 'Kerala Kathakali Centre' clearly suggests patronage of State of Kerala. He submits that the State is running various State undertakings and Corporations such as 'Kerala Automobiles Limited', 'Kerala Beverages (Manufacturing & Marketing) Corporation Limited', Kerala State Electricity Board etc etc. The use of the name 'Kerala Kathakali Centre' is also in the same line which cannot be used by the petitioner. He submits that vires of the Act has already been upheld by Supreme Court in Sable Waghire & Company and others v. Union of India and others [(1975) 1 SCC 763].
4. We have considered the submission of learned counsel for the parties and perused the records.
5. The Emblems and Names (Prevention of Improper Use) Act, 1950 has been enacted to prevent the improper use of certain emblems and names for professional and commercial purposes. Section 3 of the 1950 Act contains prohibition of improper use of certain emblems and names, which is quoted below:
“3. Prohibition of improper use of certain emblems and names.- Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the tile of any patent, or in any trade-mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorized in this behalf by the Central Government.”
To the similar effect is Section 4 of the Act which prohibits registration of certain companies. Section 5 provides for 'penalty'. Section 3 refers to the Schedule and item No.7 of the Schedule to the 1950 Act is relevant for the present case, which is quoted below:
“7. Any name which may suggest or be calculated to suggest -
(i) the patronage of the Government of India or the Government of a State; or
(ii) connection with any local authority or any corporation or body constituted by the Government under a law for the time being in force”
Item No.7 provides that any name which may suggest or be calculated to suggest the patronage of the Government of India or the Government of a State. Thus Section 3 read with Item No.7 prohibits the use of any name which may suggest or be calculated to suggest the patronage of the Government of State. Item No.7 uses the word 'may suggest or be calculated to suggest'. The word 'suggest' used in item No.7 is a word of wide import and wide meaning. The word 'suggestion' is defined in Black's Law Dictionary in the following words:
“Suggestion, n. 1. An indirect presentation of an idea; the client agreed with counsel's suggestion to reword the warranty. 2. Procedure. A statement of some fact or circumstance that will materially affect the further proceedings in the case.”
The word 'suggest' has been defined in “Webster's Third New International Dictionary” as follows:
“1: to put (as an idea, proposition, or impulse) into the mind: as a obs(1) : to seek to influence the mind of : URGE <two spirits do ~ me still - Shak.> (2) : insinuate esp. An evil or false thought into the mind of : TEMPT, SEDUCE < what serpent hath ~ed thee -Shak> b : to call forth(as a desire or mood) : AROUSE, EVOKE < indirectly ~ the desired attitude - Dorothy Barclay> < the pleasant voice that enticed and ~ed the most improbable falsehoods from witnesses - Rose Macaulay> c: to mention (something) as a possibility : put forward by implication: : HINT, INTIMATE <~ that a change of government is necessary> <~strongly . . . that he bring his wife along for the interview- W.H. Whyte> d : to propose(something) as desirable or fitting <~ a stroll after lunch> <~ed several thesis subjects> <~ed . . . a special committee to work on plans for a possible settlement - New Republic > e: to offer (as an idea or theory) for consideration : present a hypothesis:”
The definition of the word 'suggest' as noted above indicates that it mean to put as an idea, proposition, or impulse into the mind or to mention something as a possibility. The object and purpose for the prohibition is to desist any person from using the name for professional or commercial purpose which may suggest patronage of the Government of India or Government of a State. Present is a case where the name of petitioner's establishment is 'Kerala Kathakali Centre'. The name clearly suggests that it is associated with the Government of the State. Ext.P7 notice issued by the Circle Inspector of Police, Fortkochi dated 29.06.2010 to the petitioner was to the following effect:
“It has to come to my notice that you have been running a commercial establishment for quite sometime in Fortkochi under the name and style of "KERALA KATHAKALI CENTRE " which may suggest or is calculated to suggest the patronage of Government of India/Kerala for the purpose of trade,business without the previous permission of the Govt. Of India (namely Indian, National, anything pertaining to India, Kerala, Tamilnadu etc.). The above said act is prohibited by section 3 of ' The Emblems and Names ( Prevention of Improper use ) Act 1950 and it makes out an offence under section 5 & 7 of the Act. Such practices mislead the unsuspected gullible consumers, especially the tourists. It is therefore hereby directed that you shall either avoid or discontinue the use of such name and style forthwith and any failure in this regard will certainly follow the prosecuting steps against you without further notice. ”
6. The petitioner's submission is that since Kathakali is originated in Kerala, therefore, the use of name as 'Kerala Kathakali Centre' does not suggest patronage of the State. As against this the submission of the Director General of Prosecution appearing for the State is that several undertakings and Corporations bear the name beginning with 'Kerala', like Kerala Tourism Development Corporation, The Kerala Ceramics Limited and such other Government undertakings and Corporations.
7. Now we come to the decisions relied upon by the petitioner. In South India Textiles (supra) the petitioner was a partnership firm with the name 'The South India Textiles'. In that case the Andra Pradesh High Court held that the name used as 'The South India Textiles' does not reflect upon State Government or Government of India. Following was laid down in paragraph 6:
“6. Under the schedule the relevant clause is 7 which reads thus:
"7. Any name which may suggest or be calculated to suggest (1) the patronage of the Government of India or the Government of a State.
Therefore, notwithstanding anything contained in any law whether the emblem or name purports to use for the purpose of any trade, business calling or profession as specified in the schedule it shall not be used except with the previous permission of the Central Government or of the State Government. In this case, the use of the word 'South India” does not reflect upon any State Government or the Government of India nor signifies any patronage. South India is not a State. It is a common name for many a firm or proprietary concerns. Therefore, by no stretch of imagination it can be said that it is improper use within the meaning of S.3 of the Emblems Act.”
The above judgment was clearly distinguishable. There is neither mentioning of State Government nor the word 'South India' suggests any State patronage. South India is not a State which word only refers to a geographical part of the Country consisting of several States. The said case does not help the petitioner/appellant in any manner.
8. The second case on which reliance has been placed by the petitioner is Bombay High Court's judgment in Goenkarancho Ekvot (supra). In that case the word 'Goa' is used in the trade mark - “Goa 1000 Gutka”. The Division Bench in the said case held that the name of place is not mentioned in the Schedule and Goa being the name of a place, the prohibition contained in Section 3 is not attracted. Following was laid down in paragraphs 8 & 9:
“8. The cumulative reading of the above provisions shows that a person is prohibited from using in his trade activity any name or emblem specified in the schedule. Clause 4 of the schedule contemplates that name, emblem or official seal of the Government of India or of any State or any name name which may suggest patronage of the Government of India or the State Government cannot be used by a person. Name of a place, thus, is not even mentioned in the schedule. It is the name, emblem or seal of Government of any State which cannot be used by any person in his trade activity. This is permissible, provided previous permission of the Government or such officers specified by the Government is taken by the person concerned.
9. We also are unable to understand the argument that the use of the word 'Goa' is capable of being understood as if the product was having the patronage of the State Government. The Government of a State cannot be synonymous to the name of a place. The contention is based upon misconception of law, and no principles of interpretation can be applied to substantiate this contention.”
The crux of the judgment is that use of name of place is not prohibited and it was held that the Government of a State cannot be synonymous to the name of a place. The above case was on the premise that Goa is a place which did not denote the Government. The decision in the said case can be confined to the facts of the said case. There are no other facts in the judgment to know as to whether registration was obtained when it was known as a Union Territory, Goa, Damon and Due or as a State. The said case cannot be applied in the facts of the present case where use of the name 'Kerala' suggest as the State of Kerala and several Government undertakings and Corporations in the State are beginning with the name 'Kerala', thus for the purpose of this case, the name of petitioner's establishment, 'Kerala Kathakali Centre' suggest State patronage.
9. The show cause notice was issued to the petitioner to prohibit from the use of name “Kerala” in his centre. The action of issuing show cause notice does not violate any provision of law nor is perverse. It is well settled that show cause notice issued by the authority can be interfered only when the action is without jurisdiction. The Apex Court in Special Director & another v. Mohd Ghulam Ghouse and another [2004(3) SCC 440], when a writ petition was entertained against a show cause notice issued by statutory functionaries for violation of the provisions of Foreign Exchange Regulation Act, 1973 and Foreign Exchange Management Act, 1999, laid down following preposition in paragraph 5 :
“5. This Court in a large number of cases has deprecated the practice of the High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find actual facts with the participation and in the presence of the parties. Unless the High Court is satisfied that the show-cause notice was totally non est in the eye of the law for absolute want of jurisdiction of the authority to even investigate into facts, writ petitions should not be entertained for the mere asking and as a matter of routine, and the writ petitioner should invariably be directed to respond to the show-cause notice and take all stands highlighted in the writ petition. Whether the show-cause notice was founded on any legal premises, is a jurisdictional issue which can even be urged by the recipient of the notice and such issues also can be adjudicated by the authority issuing the very notice initially, before the aggrieved could approach the court. Further, when the court passes an interim order it should be careful to see that the statutory functionaries specially and specifically constituted for the purpose are not denuded of powers and authority to initially decide the matter and ensure that ultimate relief which may or may not be finally granted in the writ petition is not accorded to the writ petitioner even at the threshold by the interim protection granted.”
We do not find that the action is without jurisdiction. Hence the learned Single Judge has rightly refused to interfere with the action of issuance of show cause notice.
10. We further observe that, by the notice the petitioner was directed either to avoid or to discontinue the use of such name and on failure, steps of prosecution shall follow. It is still open for the petitioner to appear before the authority and submit appropriate reply.
In view of the foregoing discussions we are of the view that no error was committed by learned Single Judge by dismissing the writ petition. Subject to the observations as made above, the Writ Appeal is dismissed.
Ashok Bhushan, Acting Chief Justice.
A.M. Shaffique, Judge.
ttb/19/12