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Bengal in any manner whatsoever to the fisheries in question if they are vested in the State under the provisions of West Bengal Estates Acquisition Act,1953 STA |
It would be appropriate at this stage to extract this part of the decree passed by this Court: "In view of the foregoing,we again wish to re-emphasize that the terms the decree shall not affect the rights of the State of West Bengal,in any manner whatsoever to the fisheries in question,if they have vested in the state ... |
Further while directing the Receiver to handover possession of the various fisheries covered by the final decree to the parties to whom they have been allotted under the decree,this Court also protected the interest of the State by observing: "We made it quite clear that this will not in any manner prejudice or affect ... |
It is an undisputed fact that Nalban Fishery had been requisitioned much prior to the aforesaid decree of this court dated 18.4.1979 and,therefore,the rights of the State to the fishery either by virtue of the requisition order or by virtue of any provision of any other statute remained protected and as such said State... |
Bengal can't be bound down by the so-called allotment of fisheries in favour of some members of the Sarkar family under the compromise decree in question Ratio |
The Nalban Fishery had been requisitioned by the State of West Bengal in exercise of power under Section 3(1) of the West Bengal Land Requisition and Acquisition Act is not disputed and cannot be disputed and since the validity of the said order of requisition had been challenged by the Sarkar family in the Calcutta Hi... |
No.1452/72 which was ultimately dismissed by this Court on 17.11.1972 STA |
The dismissal of the special leave petition as aforesaid affirmed that the Nalban Fishery had been legally requisitioned by the State of West Bengal and the State was in possession of the same since 8.11.1969 Ratio |
The next question that arises for consideration is whether the Receiver appointed by this Court was at all entitled to take possession of the Nalban Fishery pursuant to the Order of this Court or the Nalban Fishery could not have been taken possession by the Receiver and,therefore,the second Receiver rightly corrected ... |
From the report submitted by the Receiver it transpired that the District Magistrate 24 Parganas who was appointed as Receiver took possession of several fisheries including Nalban Fishery Obviously on the impression that the lease in respect of the said fishery which had been granted by the SarKar family had lapsed Ra... |
The said Receiver was not aware of the fact that Nalban Fishery had in fact requisitioned by the State of West Bengal and the State is in possession of the same since November,1369.The possession -thus taken by the Receiver of the vast extent tank fishery is obviously a symbolical possession but in view of the order of... |
The successor Receiver,in the circumstances,therefore,was fully justified in bringing it to the notice of this Court by giving a second report indicating therein that his predecessor had erroneously taken the possession of Nalban Fishery which is in contravention of the directions of this court dated 18.4.1979 and for ... |
We do not find any force in the contention of Mr Ratio |
Gupta appearing for the respondents that the succeeding Receiver had no jurisdiction to re-deliver the possession of Nalban Fishery is the State of West Bengal when his predecessor has already taken possession of the same pursuant to the order of this Court Ratio |
The receiver appointed by a court is an officer of the court Ratio |
The said receiver will be fully justified in rectifying any mistake or error committed by him while implementing the direction of the court Ratio |
We do not find any illegality in the act of the succeeding Receiver in rectifying the earlier mistake and re-delivering the possession of Nalban Fishery to the State of West Bengal Ratio |
As has been stated earlier the possession which was taken by the earlier Receiver was a symbolical one and factually the State had not been divested of its possession which it took on 8.11.1969.In our considered opinion the succeeding Receiver rightly took into account the directions of this Court passed on 18.4.1979 a... |
The next question that arises for consideration is whether the order of Hon'ble Mr Ratio |
Justice Deepak Kumar Sen dated 6.10.1980 would operate as res judicata since the State did not challenge the same Ratio |
From the order in question which has been annexed as Annexure P to the Special Leave Petition (C) No.13314 of 1992,it appears that the order was passed on the application on one of the members of Sarkar family Mr Ratio |
Pulak Sarkar Ratio |
The State of West Bengal was neither a party to the proceedings nor was noticed by the High Court before passing the order Ratio |
The order was in fact a direction to the Collector 24 Paraganas who had been appointed as a Receiver by the Supreme Court in the pending appeal before it Ratio |
No reasons have been given by the learned Judge in issuing the said directing and on the other hand the order appears to be bald order calling upon and,thereafter,carry out the directions of the Hon'ble Supreme Court in respect of the same Ratio |
The aforesaid order cannot be held to operate as res judicata taking away the rights of the State of West Ratio |
Bengal in respect of the Nalban Fishery as the State was not a party to the proceedings Ratio |
Besides the direction of the learned Judge to the effect: "The collector,24 Paraganas,is directed to allow Messers Ghose and Saha Surveyors to make proper demarcation in the Nalban Fishery dividing the same in two lots Ratio |
After such demarcation is made the Commissioner of Partition is directed to approve the same and carry out the direction of the Honble Supreme Court in respect thereof." does not in any way take away rights of the State of West Ratio |
Bengal which is otherwise protected by the Supreme Court while passing the compromise decree Ratio |
The direction of the learned Single Judge on the other hand is to carry out the directions of the Supreme Court in respect of the Nalban Fishery Ratio |
In view of our earlier conclusion that the rights and interest of the State of West Bengal was not in any way be affected by the so-called partition and allotment of the Nalban Fishery inter se amongst the members of the Sarkar family,the said order dated 63.10.1980 passed by the learned Single Judge of the Calcutta Hi... |
The contention of Mr Ratio |
Gupta appearing for the respondents,therefore,cannot be sustained Ratio |
The next question that arises for consideration is what is the effect of the amendment to the West Bengal Land Reforms Act which was amended in the year 1986 but with retrospective effect Ratio |
By virtue of the extended definition of 'land' in Section 2 (7) and the amended provisions of Section 3(A) of the Land Reforms Act,tank fishery,like Nalban Fishery come within the definition of and it vests in the State by operation of Section 3(1) read with Section 14 STA |
It is no doubt true that a writ petition has been filed challenging the validity of the aforesaid Act and Notification issued there under in relation to vary Nalban Fishery,which is still pending and,therefore,it would not be proper for us to examine the provisions of the emended West Bengal Land Reforms Act and to exp... |
Suffice it to say that under the amended provisions of the West Bengal Land Reforms Act tank fishery being included in the land would vest in the State by combined reading of Sections 3A and 14 and,therefore,the State cannot be divested of the rights accruing by the amended provisions until the amended provisions are d... |
Since we have been informed that the writ petition challenging the amended Act is still pending in the Calcutta High Court we may observe that our conclusion hereunder in relation to applicability of the amended provisions of the West Bengal Land Reforms Act,so far as Nalban Fishery is concerned,would be subject to the... |
In view of our aforesaid conclusions,the impugned directions of the learned Single Judge as well as of the Division Bench are set aside and these appeals are allowed RPC |
The injunction order issued against Bansilal Farms,appellant in appeal arising out of SLP (C) No.13314 of 1992,stands vacated RPC |
We would further observe that the State should determine the amount of compensation which the Sarkar family is entitled to under the relevant provisions of the Act under which Nalban Fishery vests with the State of West Bengal and the compensation amount be paid on being determined in accordance with the law to the fam... |
There will be no order as to costs RPC |
Order Accordingly RPC |
We have heard learned counsel on both sides FAC |
The admitted facts are that the respondents through their agents had registered trade mark "Raleigh" and other trade marks (12 marks) under the Indian Merchandise Marks Act,1889 (4 of 1989) and the Trade Marks Act,1940 (5 of 1940).The Trade and Merchandise Marks Act,1958 (43 of 1958) (for short,the 'Act) which came int... |
The respondents entered into an agreement with Sudhir Kumar Sen on November 3,1948 to render technical know-how to the Indian Company to be formed which would manufacture bicycles and market them under Raleigh's Indian Trade marks FAC |
Pursuant thereto,a company called Sen Raleigh Limited came into existence which manufactured cycles with technical assistance by the respondents-Raleigh Industries of U.K.and marketed the bicycles with a brand name and trade marks belonging to the respondents FAC |
On April 24,1954,Sen FAC |
Raleigh was recorded as permitted users of the trade marks FAC |
By agreement dated December 29,1962,Sen Raleigh and the respondents agreed that Sen Raleigh was registered user for further period up to 1976.Sen Raleigh was taken over by the Government of India on September 8,1975 under the IDR Act and the Government took over the management of Sen Raleigh Limited FAC |
The agreement dated December 29,1962 was modified and the respondents were given option to terminate the agreement FAC |
An agreement dated December 20,1976 was entered into between the appellant,as registered user and the respondent in respect of 12 trade marks for a period of 5 years FAC |
On March 28,1978,joint application by Sen Raleigh and the appellant duly signed by the respondent as proprietor and Sen Raleigh Limited as registered user came to be made before the Registrar of Trade Marks FAC |
On October 24,1980,Sen Raleigh was nationalized and got vested in the appellant-Corporation by publication of the notification under IDR Act FAC |
On March 5,1982,the respondent wrote a letter to the appellant that in the absence of a new agreement they were instructing their advocate to prevent the appellant by restraint proceedings to use the trade mark effective from April 1,1982 FAC |
On March 24,1982,the appellant made an application under Sections 32,46 and 56 of the Act against the respondents in the High Court of Calcutta in Suit No.266/92 pleading,inter alia,that the respondents had failed to provide technical assistance by passing the technical know-how to Sen Raleigh after November 1,1976.Nei... |
u/s.48(2) of the Act up to the date of one month before filing that rectification application FAC |
A continuous period of 5 years or longer had passed and the trade mark had not been bona fide used by the respondent FAC |
Having regard to the extended nature of non-user of the concerned trade mark after November 1,1976,any further use of the said trade marks by the respondents was likely to deceive and cause confusion to the trade and public alike in India etc FAC |
Simultaneously,an application for registration of three trade marks An their favour was filed by the appellant on March 25,1982 FAC |
By proceedings dated June 13,1984,the Registrar of Trade Marks informed the appellant that the registered user's applications were abandoned since the appellant failed to comply with the statutory requirements FAC |
The learned single Judge dismissed the application by his judgment dated September 13,1990 holding,inter alia,that any proprietor mentioned in S.46(1)(b) of the Act extends to bona fide user other than registered users FAC |
Special circumstances as a defense were available to the respondent for non-user; even after 1979,the supply-technical know-how by the respondent was not totally absent FAC |
After termination of the collaboration and user agreement between the appellant and the respondents it was likely to cause confusion and deception amongst the trade and public FAC |
The conduct of the respondents was not violative of S.32(b) and (c).The Court in those circumstances declined to rectify the trade mark and strike it off from the register of trade marks FAC |
On appeal,the Division Bench in Appeal No.13/91 confirmed the same holding that on and from October 25,1980,the respondent had allowed and permitted the appellant to manufacture bicycles etc.according its specifications and to pass off the goods under their trade marks FAC |
Though the collaboration and registered user agreements stood expired from October 31,1981,no agreement came to be executes nor continued to use the specifications on technical know-how FAC |
There is no specific bar for an unregistered lincesee to use registered trade mark so long as there is a connection in the course of trade between the licenser and the lincesee FAC |
The appellant was unable to prove that there had been no such user of the trade mark for a continuous period of 61 months or longer and the lack of bona fide intention The expression "by any registered proprietors in S.46(1)(b) should not be restricted to user by proprietor or registered user who should also include bo... |
The expression,therefore,should not be restricted to user by the proprietor himself or any registered user but should also take into account bona fide authorized user FAC |
Non registration of the user agreement by Sen Raleigh and the appellant was due to the default of the latter FAC |
The appellant had not taken any steps to withdraw registered user applications and as such should not be permitted to take such a contradictory stand of applying for rectification at the same time FAC |
The power u/s.46 is discretionary FAC |
In view of the appellant's conduct,it was taking advantage of its own wrong FAC |
The discretion,therefore,was not to be extended in favour of the appellant FAC |
Thus,this appeal by special leave FAC |
Shri Raju Ramchandran,learned senior counsel for the appellant,raised three-fold contentions ARG |
It is his pivotal contention that undisputedly when the respondent was not in urge of trade mark as "a registered proprietor" or its agent Sen Raleigh as Permitted user" for a period of 5 years immediately preceding the date of the application u/s.46 for removal of the trade mark from the Register,there was no bona fid... |
The respondents admittedly did not use the same ARG |
The appellant cannot be said to be either the proprietor of the trade mark since 1976,since the agreement lapsed or permitted user-.The High Court therefore was wrong in holding that 5 years' period had not lapsed ARG |
The harmonious construction should be put up in such a way that S.48(2) and S.466 by of the Act could be permitted to have their-full play in their operational structure ARG |
The construction put up by the High Court renders sub-s.(2) of S.48 otiose or surplus age which interpretation is impermissible ARG |
It is contended that the registered user must be understood to be the user by the proprietor or authorized user registered under Section 48.The period of 5 years should be computed from that date of expiry of registered user ARG |
The Division Bench,therefore,was wrong in its conclusion that the appellant has failed to establish it ARG |
On the other hand,it is for the respondent to prove the same ARG |
He further contended that the special circumstances enumerated in sub-s.(3) of S.46 must be such that the respondents had intended to use the registered trade mark ARG |
For over a long period,the trade mark was not used by the respondents as its registered proprietor ARG |
The respondents did not prove that they were prevented to use the same for 5 years or more preceding the date of the application ARG |
The burden is on tile respondents to prove that non-user was due to special circumstance of the trade and not due to some other cause which would have operated whether special circumstances had arisen or not Since the respondents were not using the trade mark since April 20,1954,the plea of special circumstances is not... |
The Division Bench or the learned single Judge did not record any finding as to the period up to which the bicycles could be imported into India and the period during which the ban was imposed but for which the respondent had an intention to import bicycles but were prevented to do so due to the ban ARG |
In the absence of .such a findings the High Court was wrong in law in refusing to rectify the trade mark and striking it off the register ARG |
The Court while exercising its discretion u/s.46 should look into not only commercial interest of the parties but also public interest ARG |
In normal circumstances,when it is established that the trade mark was not used either by the registered proprietor or the permitted user,the public interest of supply of the quality of the goods marketed by the appellant should be taken into factual consideration for removal of the trade mark from the register ARG |
Shri Ashok Desai,learned senior counsel for respondents,resisted the contentions ARG |
According to the learned counsel,the respondents have collaboration agreement with Sen Raleigh which was taken over by the Government under IDR Act and the appellant came to manufacture,with the technical know-how supplied by the respondents,the Raleigh bicycles under the trade mark registered by the respondents in the... |
The appellant was using the same as an agent ARG |
The operation of S.48(2) must be construed in such a way that the bona fide user even by a non-registered user,so long as there exist a rational connection between the proprietor of the trade mark and passes off the goods in the market manufactured by the appellant,is construed to be a bona fide user for and on behalf ... |
Admitted position is that the respondent being the registered proprietor,until it is proved that its trade mark was not used to pass off the goods manufactured by the appellant and that the appellant had discontinued the user and 5 years lapsed thereafter,the non-use of the trade mark continues thereafter,the rectifica... |
In view of the prohibition to import bicycles,the respondent was prevented to use the trade mark but by collaboration agreement,it was continuing to use the trade mark by the permitted user ARG |
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