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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 cont... |
In the case of American Home Products Corporation v Ratio |
Mac Laboratories Pvt.Ltd Ratio |
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 |
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 o... |
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 as... |
s.37.The assignor cannot obviously transfer more rights than he himself has to the assignee under the Act Ratio |
We do not think that the approach of the learned author is entirely correct Ratio |
An assigner can transfer only such right which he possesses Ratio |
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 |
For the views we have taken,we are of the opinion that the impugned judgment cannot be sustained RPC |
It is set aside accordingly RPC |
The Board shall,however proceed to determine afresh the application filed by the first in the light of the legal principles explained above RPC |
The appeal is allowed with costs RPC |
Counsel's fee assessed at Rs.1,00,000 RPC |
Appeal allowed RPC |
Interpretation and/ or application of the provisions of the Gujarat Town Planning and Urban Development Act,1976 (for short "the Act") and the Rules framed thereunder known as the Gujarat Town Planning and Urban Development Rules,1979 Ratio |
for short "the Rules") is in question in this appeal which arises out of a judgment and order dated 27.12.2006 passed by a Division Bench of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No.1611 of 2006 arising out of a judgment and order dated 23.11.2006 passed by a learned Single Judge of the said C... |
Before embarking upon the issue involved in this appeal,we may notice the admitted fact of the matter Ratio |
The Government of Gujarat in exercise of its power conferred upon it u/s.65 of the Act made a scheme in respect of the town of Umra,Surat on 1.06.1999 Ratio |
Plot Nos.17/7 and 17/8 were owned by Respondent No.4 herein FAC |
Appellant was a tenant under the said respondent in respect of Plot No.17/8 admeasuring 1067 sq.m FAC |
He used to run a business of marble and stone therein FAC |
A road widening project was proposed in terms of the said scheme FAC |
Notices therefor were issued both to the appellant as also the respondent no FAC |
Appellant objected thereto FAC |
He,however,did not pursue his case in regard to the proposal for widening of the road FAC |
For the said public purpose,viz.,widening of the road,867 sq.m.of land was taken over leaving only 200 sq.m.of land FAC |
With a view to give effect to the provisions of the Act and the Rules framed thereunder,proceedings were initiated for allotment of the said land in terms of the Act.20% of the land was taken over without payment of any compensation FAC |
In respect of the proceedings initiated for the purpose of re-allotment of the land,despite a public notice,the appellant did not file any objection FAC |
He did not take any part in the proceedings therefor FAC |
Respondent No.4 was allotted a final plot bearing No.157 and the said 200 sq.m.of land of plot No.17/8 has merged in final plot No.165 owned by the respondent No.3 FAC |
The Scheme was notified in the year 1999.Respondent No.1 herein which is the statutory agency in terms of the Act for the purpose of implementation of the Scheme issued a notice u/s.67 of the Act upon the respondent no.4 on or about 15.01.2000.As he did not respond thereto,a notice u/s.68 of the Act was served on him o... |
And,its pole demarcations were done by the town planning officer at site FAC |
The said Final Plot/ Original Plot is allotted in lieu of your No.17/7,17/8 paiki land FAC |
And,the said land is now vested in the Municipal Corporation from 1.7.1999,and is of the ownership of the Municipal Corporation FAC |
Thereafter the notice below s.67 for the change in occupation was issued on 15.1.2000 to you FAC |
In spite of this you have not handed over the possession FAC |
Therefore,as per the Gujarat Town Planning and Urban Development Rules,1979 rule 33 the undersigned in exercise of powers conferred below s.68(1) and 8(2) of the Bombay Provincial Municipalities Act and below the s.68 notice under the Gujarat Town Planning and Urban Development Act this is to inform you that as shown i... |
If you fail to do so then on completion of the stipulated time limit as per the Rule 33 of the Gujarat Town Planning and Urban Development Rules,1979 the said land and the occupation on the same will be summarily evicted and your occupation will be removed and if you obstruct/ interfere on it after taking away the poss... |
the Action as per the s.188 of the Indian Penal Code will be initiated against you before the Criminal Court,pleased take note of the same FAC |
The validity and/ or legality of the said notice was questioned by the appellant by filing a writ petition in the High Court of Gujarat inter alia contending that the purported final allotment of plot No.165 in favour of the respondent no.3 and allotment of final plot No.157 in favour of the respondent no.4 were made w... |
In the said writ petition,it was prayed: " On the facts and circumstances mentioned herein above,the Petitioner prays to your Lordships that: (A) Be pleased to issue writ of Mandamus or writ in the nature of Mandamus or appropriate writ,order or direction,quashing and setting aside the impugned action of acquiring and ... |
A learned Single Judge of the High Court dismissed the said writ petition inter alia opining that the interest of landlord and tenant being common and in absence of any inter se dispute between them even if any portion of the land which remained in possession of the tenant was included in the Scheme,the proper remedy w... |
Such is not the issue in the present case nor there is any complaint by the tenant that any special notice was not served or that the mandatory procedure for finalization of the scheme is not followed RLC |
Further,it appears that if the interest of the landlord and of the tenant is common and in absence of any inter se dispute between the landlord and tenant,even if any portion of the land which is in possession of the tenant is included in the scheme,the proper remedy for the tenant would be to claim for compensation to... |
At least on ground that the tenant is in occupation,it would not be a case for interference with the scheme which is sanctioned and made a part of the statute RLC |
Suffice it to say that the tenant will be at liberty to resort to appropriate proceedings against the landlord for the inter se rights and also for entitlement of the compensation RLC |
But if the area of original plot no.17/8 is included in the final scheme and in exchange of the original plot held by Keshav Gramini of 17/8 and 17/7,the final plot is already allotted and as observed earlier it was even otherwise in the ownership of the original holder and it is only on account of inter se dispute the... |
A Division Bench of the High Court dismissed an intra-court appeal preferred thereagainst FAC |
Mr.U.U.Lalit,learned senior counsel appearing on behalf of the appellant,in support of this appeal,inter alia would submit: "(i ARG |
The provisions of Ss.52 and 81 being imperative in character,no acquisition of land is permissible without service of any notice upon the persons interested which would include a tenant in occupation and carrying on business thereon ARG |
ii ARG |
A tenant having regard to the provisions of the Transfer of Property Act or otherwise having an interest in the property cannot be deprived therefrom without following the procedure established by law and without initiation of any proceedings for acquisition of land ARG |
iii ARG |
The tenant's interest being distinct and separate could not have been held to be merged with the interest of the landlord,either for the purpose of allotment of a final plot or otherwise in favour of the landlord ARG |
iv ARG |
Appellant having a right over the remaining 200 sq.m.of the land of original plot No.17/8 should be allowed to continue thereupon and final allotment made in favour of the respondent no.3 to that extent should be cancelled ARG |
Mr Ratio |
Lalit in support of his contention strongly relied upon a decision of this Court in Mansukhlal Jadavji Darji and Others v ARG |
Ahmedabad Municipal Corporation and Others [(1992) 1 SCC 384 1991 Indlaw SC 975] and Jaswantsingh Mathurasingh and Another v ARG |
Ahmedabad Municipal Corporation and Others [1992 Supp (1) SCC 5 1991 Indlaw SC 972 ARG |
Prashant G.Desai,learned counsel appearing on behalf of the respondent no.1,on the other hand,would submit ARG |
i ARG |
Public notices having been issued in terms of the Rule 26 of the Rules,an objection which would nullify the Scheme cannot be entertained at this stage ARG |
ii) Respondent No.1 Corporation merely being interested in the implementation of the Scheme is entitled to obtain vacant possession from him so as to enable it to deliver it to the respondent No.3 in whose favour plot No.165 has been finally allotted ARG |
The Scheme in terms of Sub-s.(3) of S.65 of the Act having become a part of the Act,validity thereof cannot be questioned at this stage as modification of the Scheme,if any,will have to undergo the entire process once over again which is not contemplated under the Act ARG |
the Act was enacted to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat Ratio |
It is not necessary for us to delve deep into the statutory scheme Ratio |
Suffice it to say that Chapter IV of the Act deals with control of development and use of land included in the development plans Ratio |
Chapter V of the Act provides for town planning schemes Ratio |
S.40 of the Act empowers the appropriate authority to make one or more schemes Ratio |
A declaration of intention to make a scheme is to be notified whereafter a draft scheme may be published Ratio |
S.45 provides for reconstitution of the plots,sub-s.(2 Ratio |
whereof inter alia enables allotment of a final plot from an original plot by transfer of any adjoining lands Ratio |
S.52 contemplates issuance of a notice in a prescribed manner and in the prescribed form Ratio |
S.52 of the Act provides for the contents of preliminary and final scheme STA |
It inter alia provides for giving of a notice by the Town Planning Officer as follows: "(1) In a preliminary scheme,the Town Planning Officer shall STA |
i) after giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme,define and demarcate the areas allotted to,or reserved for,any public purpose,or for a purpose of the appropriate authority and the final plots; (ii) after giving notice as aforesaid,determine in a case in w... |
Further,Sub-s.(3) of Section 65,Ss.67 and 68 of the Act read as under: "65 -Power of Government to sanction or refuse to sanction the scheme and effect of sanction STA |
3) On and After the date fixed in such notification,the preliminary scheme or the final scheme,as the case may be,shall have effect as if it were enacted in this Act STA |
67 -Effect of preliminary scheme STA |
On the day on which the preliminary scheme comes into force STA |
a) all lands required by the appropriate authority STA |
shall,unless it is otherwise determined in such scheme,vest absolutely in the appropriate authority free from all encumbrances; (b) all rights in the original plots which have been re-constituted into final plots shall determine and the final plots shall become subject to the rights settled by the Town Planning Officer... |
68 -Power of appropriate authority to evict summarily On and after the date on which a preliminary scheme comes into force,any person continuing to occupy any land which he is not entitled to occupy under the preliminary scheme STA |
shall,in accordance with the prescribed procedure,be summarily evicted by the appropriate authority STA |
Rules 26(1),26(3) and 33 of the Rules read as under: "26.Procedure to be followed by Town Planning Officer u/s.51 and under sub-s.(1) of s.52 - (1 STA |
For the purpose of preparing the preliminary scheme and final scheme the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state the time,as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a Tow... |
Such notice shall be published in the Official Gazette and in one or more Gujarati newspapers circulated within the area of the appropriate authority and shall be pasted in prominent places at or near the areas comprised in the scheme and at the office of the Town Planning Officer STA |
The Town Planning Officer shall,before proceeding to deal with the matters specified in section 52,publish a notice in Form H in the Official Gazette and in one or more Gujarati newspapers circulating within the area of the appropriate authority STA |
Such notice shall specify the matters which are proposed to be decided by the Town Planning Officer and State that all persons who are interested in the plots or are affected by any of the matters specified in the notice shall communicate in writing their objections to the Town Planning Officer within a period of twent... |
Such notice shall also be posted at the officer of the Town Planning Officer and of the appropriate authority and the substance of such notice shall be pasted at convenient places in the said locality STA |
33.Procedure for eviction u/s.68.- (1 STA |
For eviction under section 68,the appropriate authority shall follow the following procedure,viz STA |
a) The appropriate authority shall in the first instance serve a notice upon a person to be evicted requiring him,within such reasonable time as may be specified in the notice,to vacate the land STA |
b) If the person to be evicted fails to comply with the requirement of the notice,the appropriate authority shall depute any Officer or Servant to remove him STA |
c STA |
If the person to be evicted resists or obstructs the officer or Servant deputed u/cl.(b) or STA |
if he re-occupies the land after eviction STA |
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