IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.42515 OF 2016 (IPR) BETWEEN Narendra Reddy Thappeta Son of Chandrasekhara Reddy, Aged about 52 years, Residing at 158, Phase 1, Adarsh Palm Meadows, Ramagundanahalli, Bengaluru-560066.
Karnataka.
(By Smt. Anupama Hebbar, Advocate for Sri. Pradeep Nayak, Advocate) AND 1. The Union of India Through its Ministry of Commerce and Industry, Udyog Bhawan, New Delhi-110107 NCT of Delhi, Rep. by its Secretary.
2. Controller General of Patents, Designs and Trademarks Boudhik Sampada Bhavan, Antop Hill, S.M.Road, Mumbai-400037 Maharashtra …Petitioner 3. The Department of Industrial Policy and Promotion (DIPP), Udyog Bhavan, Rafi Ahmed Kidvai Marg, Rajpath Area, Central Secretariat, New Delhi-110001 Rep. by Secretary. …Respondents (By Sri. C.Shashikantha, Asst. Solicitor General along with Smt. H.R.Anitha, CGC, for R1 & R3, vide order dated 26/02/2018 notice to R2 is held sufficient) This Writ Petition is filed under Article 226 of the Constitution of India, 1950 praying to strike down Rule 116(e) the Patents Rule, 2003 [as amended under the Patents (Amendment) Rules, 2016] as extracted at Annexure- A as being unconstitutional, illegal and ultra vires the Act.
This Writ Petition having been heard and reserved on 11.02.2019, coming on for pronouncement of Orders this day, the Court pronounced the following:
ORDER In this writ petition under Article 226 of the Constitution of India, the petitioner has challenged the constitutional validity of Rule 116 (e) of the Patents Rules, 2003 [as amended under the Patents (Amendment) Rules, 2016].
2. The petitioner has stated that having taken birth in the year 1964 at Madanapalli, Chittor District, Andhra Pradesh, he acquired the citizenship of India by birth. In the year 1985, he went to the United States of America for pursuing higher studies and was there till the year 2001. During that time, he did not acquire the citizenship of the United States of America and he remained an Indian citizen. On 9th January, 2001 he came to Bengaluru and started practising as a patent agent having obtained registration under the Patents Act (referred to as ‘Act’). In January, 2003, the Government of India organized First Pravasi Bharatiya Divas to encourage and incentivize the India Diaspora with the Indian State and make them participate in economic and commercial activities in India. The then Prime Minister of India decided to accept certain recommendations of Dr. L.M. Singhvi High Level Committee on Indian Diaspora. The Committee in particular recommended to accord permission for dual citizenship to certain persons of Indian origin living in certain foreign countries by making certain necessary changes to the law. The minister of State for External Affairs also answered in the Lok Sabha to a Starred question that the Government was intending to introduce provisions relating to dual citizenship by amending the applicable laws based on the recommendation of the High Level Committee. The petitioner, based on the announcements made by the Government initiated steps to avail the citizenship of United States of America and made an application in that regard. When this application was under process, the Bill was introduced in both the Houses of the Parliament for amending Citizenship Act. The Parliament passed the Bill and on 07.01.2004, the President of India gave his assent for the Bill and later on it was notified in the official Gazette of India as Act No.6 of 2004. By that time the petitioner had acquired citizenship of the USA and was issued with the US passport. The petitioner did not have intention of voluntarily surrendering the Indian citizenship, but by virtue of Section 9 of the Citizenship Act, the passport issued to him by the Government of India was cancelled. Therefore he filed a writ petition 37535/2013 which is still pending. He also applied for PIO card to the Government of India and the same was issued to him on 06.04.2004. On 11th April, 2005, the Government of India in exercise of its power under Section 7B (1) of the Citizenship Act, 1955 notified in the official gazette that overseas citizen of India would enjoy parity with NRIs in respect of all the facilities available to them in economic, financial and educational fields similar to PIO card holders under PIO card scheme. The petitioner has stated further that by dint of Section 126(2) of the Act, he is entitled to be continued as a patent agent on mere payment of prescribed fee. But, by virtue of an amendment brought to Rule 116 of the Patent Rules, the controller has been empowered to remove the name of a person from the register of patent agents if he ceases to be a citizen of India. This amendment has the potentiality of depriving the petitioner of his right to carry on his profession as a patent agent in India. This amendment is repugnant to Section 126 of the Patent Act. Requirement to be a citizen of India is a condition to be satisfied at the threshold of becoming an agent and it is not necessary that the petitioner should retain the citizenship forever. The right that was accrued to the petitioner when he was granted registration as a patent agent should not be taken away and since the amendment brought to Rule 116 is likely to take away his right to continue as a patent agent, it is necessary that the said Rule should be declared as ultravires the Patents Act and Article 14 of the Constitution of India.
3. I have heard the arguments of the petitioner’s counsel and Sri.Shashikanth, Assistant Solicitor General for respondents no. 1 and 5.
4. The learned counsel for the petitioner, giving the factual background argued that Rule 116(e) of the Patents Rules is repugnant to Section 126(2) of the Patents Act; it has been framed by grossly overstepping the rule making power delegated by the parliament to the Central Government. She argued that the petitioner was a citizen of India when he got registered himself as a Patent’s Agent. Though he acquired the Citizenship of USA, oversees citizenship of India card was issued to him on 14.03.2011. According to Section 7B(1) of the Citizenship Act, he is entitled to such rights other than the rights specified in sub section (2) which has no application to the petitioner. She then referred to an order of this Court in W.P.7393/2012 and submitted that this Court has already held that according to Section 130 of the Patents Act, acquisition of Citizenship Act of another country is not a reason for removal of a name of an agent from the Register. Section 130 of the Patents Act clearly states as to under what circumstances the name of an agent may be removed from the register, and since none of the reasons envisaged in Section 130 is applicable to petitioner, the respondents were directed to reconsider the case of the petitioner. She argued further that the amendment introduced to Rule 116 of the Patents Rules takes away the effect of the judgment of this court in W.P.7393/2012. This amendment has no source in Section 130 of the Patents Act. Rules being subordinate legislation, must find source in the Act governing the subject. She also argued that OCI card holders have been treated on par with citizen of this country, therefore Rule 116(e) violates Articles 14 and 19(g) of the Constitution of India. On the point that subordinate legislation should find source in the Patent Act, she referred to the following decisions.
1. Kunal Saha Vs. State of West Bengal and Another AIR 2016 (NOC) 148 2. Kerala Samsthana Chethu Thozhilali Union Vs. State of Kerala and Others (2006) 4 SCC 327 3. Cellular Operators Association of India and Others Vs. Telecom Regulatory Authority of India and Others (2016) 7 SCC 703 4. State of T.N. and Another Vs. P.Krishnamurthy and Others (2006) 4 SCC 517 5. The next point that she argued was that the Government of India issued a Gazette notification dated 11.04.2005 according to which certain overseas Citizens of India who are doctors, dentists, nurse, advocate, etc., have been allowed to pursue their professions, but in this list patent agent is not included. There is no justification for excluding patent agent. This discrimination violates Article 14 of the Constitution of India. Therefore it was her argument that the writ petition deserve to be allowed.
6. Sri. C.Shashikanth, learned Assistant Solicitor General firstly argued about maintainability of writ petition. His argument on this point is that the respondents have not proposed to take any action against the petitioner. The petitioner has approached this court anticipating that the respondents may take action against him. On earlier occasion, an action was taken and he filed W.P.No.7393/2012, and it was allowed. Thereafter no action was initiated. The petitioner has no locus standi to maintain this writ petition.
7. His second point of argument is that Rule 116(e) of the Patents Rules is not repugnant to Section 126(2) of the Patents Act. Referring to Section 126(1) of the Act, he argued that one of the qualifications for appointing a person to be a Patent Agent is that he should be a citizen of India. This is primary requirement. An amendment was introduced to Patents Rules by issuing a Gazette Notification dated 16.05.2016; and by this amendment, Rule 116 was also amended providing power to the Controller to delete the name of a patent agent from the register if he ceases to be citizen of India. Rule 116(e) is in consonance with Section 126(1) of the Act. A person who renounces citizenship of India cannot continue to be a Patent Agent. But the interest of agents like petitioner is protected under Section 126(2) of the Act. This sub-section states that a person who became a patent agent before commencement of Patents (Amendment) Act 2005 can continue to be patent agent subject to other conditions. Section 126(2) is not applicable for those who became agent after (Amendment) Act, 2005. He also referred to Section 131 of the Act to elaborate his argument that under this Section also, the controller may refuse to recognize a person as an agent for any of the four reasons -
(a) to (d) envisaged in the said section. His emphasis is on reading Sections 126, 130 and 131 conjointly instead of disjunctively to understand the true meaning of Rule 116, and more particularly Rule 116(e). Giving these reasons, he argued that Rule 116(e) is not unconstitutional and therefore the writ petition deserves dismissal.
8. I have considered the arguments put forward from either side. The undisputed facts are that the petitioner was a citizen of India when he became a patent agent in the year 2001 and that he renounced Indian citizenship and became a citizen of the United States of America, which he got in the month of March, 2004. The petitioner has also filed a writ petition (W.P.No.37535/2013) in this court challenging constitutionality of Section 9 of the Citizenship Act, 1955. He also filed a writ petition in this court, W.P.7393/2012 when the Controller General of Patents, Designs and Trade Marks sought to remove his name from the Register of Patent Agents on the ground that he was not citizen of India; and that this writ petition was allowed.
9. In this writ petition, the petitioner has questioned the constitutional validity of Rule 116(e). I do not think that the arguments advanced by the petitioner’s counsel can be upheld. Section 126(1) of the Act prescribes qualifications to be possessed by a person whose name is to be entered in the Register of Patent Agents, or in other words, a person who wants to become a patent agent must possess qualifications mentioned in Section 126(1). One such condition is to be a citizen of India. Section 130 of the Act deals with controller’s powers to remove the name of a person from agents’ register; and the controller’s powers is limited to taking action only for two reasons, that too after hearing the affected persons. The argument of the petitioner’s counsel that Rule 116 should find its source in Section 130 of the Act is fallacious. As argued by the learned Assistant Solicitor General Section 126 and Section 130 of the Act operate in separate areas; one prescribing qualifications for a person wanting to become an agent, and the other giving a power to the controller to remove the name of a person from the register for two reasons. What then if a person who is an agent ceases to be citizen of India? The question does not require much thinking and obvious answer is, such a person can no longer continue to be an agent. At the beginning all the four conditions, (a) (b) (c) & (d) of Section 126(1) must be fulfilled by a person desiring to become a patent agent; and once one becomes an agent, one must continue to be a citizen of India, or otherwise he ceases to be an agent. There is much prudence and rationality in empowering the controller to delete the name of a person from the register of patents agent if he ceases to be a citizen of India. Therefore, Rule 116(e) finds its existence through Section 126(1) and not Section 130 of the Act. For these reasons, Rule 116(e) is not ultravires the Act, unconstitutional and illegal. Its constitutionality has to be held.
10. So far as the petitioner is concerned, as argued by the learned Assistant Solicitor General, he is not aggrieved in anyway. No action was proposed to be taken before or at the time of filing writ petition. Once an action was sought to be taken and at that time, the petitioner approached this Court by filing a writ petition 7393/1992. This writ petition was allowed and petitioner’s grievance was addressed. As has been submitted by the learned Assistant Solicitor General of India, the petitioner has anticipated that the respondents may resort to removing his name from the register of patent agents. But it needs to be stated that the petitioner became a patent agent in the year 2001. Despite the fact that he acquired the citizenship of the United States of America in the year of 2004, he can still continue to be a patent agent in India in view of Section 126(2) of the Act. Such of those persons who were registered as patent agents before the commencement of the patents (Amendment) Act, 2005, are entitled to continue as Patent Agents on payment of prescribed fee. All that the petitioner is required is to pay prescribed fee to continue as patent agent. Since this statutory protection having been extended to persons like the petitioner, the apprehension expressed by him is totally baseless and unfounded. Therefore, this writ petition is devoid of merits and it stands dismissed.
Sd/- JUDGE sd/bkp