THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.14577 of 2005 Between:
Surapaneni Ramachandra Rao PETITIONER AND
1. The Government. Of A.P., rep. by its Secretary, Revenue (F.F.I.) Department, Secretariat, Hyderabad, and others.
RESPONDENTS ORDER:
This writ petition, filed under Article 226 of the Constitution of India, challenges the proceedings of the respondent, bearing No.POCB/P- 1/8630, dated 04.10.2004 and consequently seeks a direction for disposal of the petitioner’s patent application No.1008/MAS/98, dated 12.05.1998 in accordance with law.
2. Heard Sri S. Chakrapani, learned counsel for the petitioner and Sri P. Vishnuvardhan Reddy, learned Assistant Solicitor General for Union of India for respondent, apart form perusing the material available on record.
3. According to the petitioner, he made an application with provisional specification on 12.05.1998 for grant of patent under Section 5(2) and Section 7 of the Patents Act, 1970 (hereinafter called ‘the Act’) for his invention styled as “Environment Friendly Passenger and Goods Transportation by Roadways”. Vide proceedings POCG/P-1/7931, dated 17.09.2003 the respondent, through his examiner sent the first examination report, raising objections on the petitioner’s application. As per the petitioner, the examiner sent objections on 01.03.2004, 08.06.2004 and 10.09.2004 and the petitioner also submitted replies on 10.02.2004, 17.03.2004 and 14.06.2004.
4. The grievance in the present writ petition is that the respondent issued the impugned proceedings POCB/P-18630, dated 04.10.2004 ordering abandonment of case under Section 21 of the Act stating that the petitioner could not clarify the objections. The only contention in the present writ petition is that the respondent passed the said order in total violation of Section 14 of the Act. In support of the said contention, the learned counsel for the petitioner placed reliance on the judgment of Delhi High Court in Ferid Allani v. Union of India and
[1]
ors. .
5. To deal with the said contention it would be appropriate to refer to the provisions of Section 14 of the Act, which reads as under.
“ 14. Consideration of the report of examiner by Controller:- Where, in respect of an application for a patent, the report of the examiner received by the controller is adverse to the application or requires any amendment of the application, the specification or other document to ensure compliance with the provisions of this Act or of the Rules made thereunder, the controller, before proceedings to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible, the gist of the objections to the applicants and shall, if so required by the applicant with the prescribed period, give him an opportunity of being heard.”
6. While dealing with the provisions of Section 14 of the Act, the Delhi High Court in Ferid Allani case (supra), at paragraph Nos.23 to 26 held as under.
“It is noteworthy that the various steps which are provided under these rules relate to the procedural aspects of the matter. Section of the statute is the substantive provision which provides fro consideration of the report of the examiner by the Controller and reads thus:-
“ 14. Consideration of the report of examiner by Controller:- Where, in respect of an application for a patent, the report of the examiner received by the controller is adverse to the application or requires any amendment of the application, the specification or other document to ensure compliance with the provisions of this Act or of the Rules made thereunder, the controller, before proceedings to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate as expeditiously as possible, the gist of the objections to the applicants and shall, if so required by the applicant with the prescribed period, give him an opportunity of being heard.”
Thus, it is the statutory mandate that when the report of the examiner received by the Collector is adverse to the applicant or requires any amendment to the application, the specification or other documents to ensure compliance with the provisions of the Act or the Rules framed thereunder, before proceeding to dispose of the application in accordance with the provisions of the statute, the Controller is required to communicate the gist of the objections and shall also afford him an opportunity of being heard.
It is an admitted position that no opportunity of such hearing was afforded to the petitioner either after the petitioner filed its response to the first examination report or after the second examination report. The action of the respondents therefore is rendered illegal for failure to comply with the specific statutory mandate of Section 14 of the Patents Act, 1970 and failure to abide by the principles of natural justice as statutorily envisaged.
It has been urged by the petitioner that the abandonment requires a conscious act on the part of the applicant which would manifest his expressed intention to abandon the application and that there can be no presumption as has been drawn by the respondents in the facts of the instant case.”
7. In the instant case, even though this Court issued Rule Nisi as long back as on 18.07.2005, no counter affidavit has been filed by the respondent either denying the averments in the writ affidavit or in the direction of justifying the impugned action. It is categorical case of the petitioner that the respondent passed the impugned order in total contravention of the provisions of Section 14 of the Act and also in violation of the principles of natural justice. In the considered opinion of this court, the impugned action is highly arbitrary and not in consonance with the statutory mandate under Section 14 of the Act and also violative of principles of natural justice.
8. For the aforesaid reasons, and having regard to the provisions of the Patents Act and the principle laid down in the above referred judgment, this writ petition is allowed and the impugned proceedings No.POCB/P-1/8630, dated 04.10.2004 issued by the respondent, are set aside and the matter is remitted back to the respondent for fresh consideration after giving notice and opportunity of being heard to the petitioner. This exercise shall be completed within a period of three months from the date of receipt of a copy of this order. No order as to costs. As a sequel, miscellaneous petitions, if any shall stand closed.
JUSTICE A.V. SESHA SAI.
25th June, 2014 Js.
[1] 2008 (37) PTC 448 (Del.)