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Judgment
Prabha Sridevan, J
Two Larger Benches of the IPAB were constituted recently to decide two issues one relating to the IPAB's power to review its own order and the
other relating to IPAB's power to grant interim orders pending or final application. In both, we had to consider the importance of this Tribunal and the
nature of its jurisdiction, power and authority. This order relates to the power of review. While hearing the review petition No. 1 of 2011 in O.R.A.
No. 42 of 2008/TM/CH, we referred the question whether the IPAB has the power to review its own order to a larger Bench by order dated
03.05.2013. Initially review petitions were entertained by IPAB and orders had been passed. After 2006 Review Petitions were not numbered since
the then Chairman Hon'ble Justice M.H.S. Ansari was of the opinion that in the absence of specific powers to entertain the review petitions, review
petitions must not be numbered. However, when certain matters were filed seeking review on the basis of procedural errors, they were dealt with at
the Diary stage. If in fact the Bench found that there were inadvertent error or errors in procedure, orders were passed rectifying the same. In the
above case, the petitioner had filed the review petition, seeking a review on merits. There are other review petitions pending in other Circuit Benches
too. It is in these circumstances, that the matter was referred to the Larger Bench.
Several counsel, both Senior and junior, viz., Mr. S.N. Mitra, Mr. P.S. Raman, Mr. Navroop Singh, H.P. Singh, Mr. M.S. Bharath, Ms. Swetha
Shree Majumdar, Mr. Shukadevo Khuraijam, Mr. R. Parthasarathy, Mr. S. Majumdar, Mr. N. Mahabir, Mr. Domnic Alwaris, Mr. Prahalad Bhat &
Mr. H.P. Shukla made their oral submissions. Mr. P. Venugopal, Mr. Y.J. Trivedi Mr. M.S. Bharath of Anand and Anand, Mr. B.V. Elango
Himachalapathy and Mr. H.P. Shukla filed their written submissions, Mr. G.K. Muthukumar, Mr. R. Sathish Kumar & Ms. P.V. Rajeswari, learned
counsel, assisted the Board as Amici Curiae, Mr. Sathis Kumar, the Amicus Curie filed his written submissions.
The initial submission which was in the nature of a preliminary objection was that the Intellectual Property Appellate Board (Hereinafter referred to
as the ""IPAB"") has no power to declare that the IPAB (Procedure) Rules framed under Section 92 are ultra vires of the Trade Marks Act, 1999
(T.M. Act in short). 1997(3) SCC 261 (L. Chandra Kumar Vs. Union of India) was relied on which says that Tribunals, not constituted under Article
323 of the Constitution of India, cannot examine the constitutionality of the statute under which they are constituted. Therefore the first objection was
that since IPAB cannot declare either Rule 23 of the IPAB Rules as ultra vires or the Intellectual Property Appellate Board (Procedure) Rules
(hereinafter referred to as the 'Rules'), the jurisdiction to review its own order has to be held to be statutorily recognized, since it is there in the Rules.
Consistency and certainty are recognized as being central requirements for the Rule of law, since it provides those subjects to it with the ability to
organize their affairs in a manner as not to violate the law. Therefore, it is in the interest of justice and the parties before us and the counsel, who
advise them, that everyone knows with a degree of certainty whether the application for grant of interim order/review will be entertained by this
Board. That cannot be left to the vagaries of the individual cases.
Of course, whether the petitioners succeed in their prayer will depend upon the facts of each case. What we are concerned with is the existence of
the power with the IPAB to entertain the review petition/petition for stay or injunction. It is also desirable again in the interest of this jurisprudence that
since this Board has a countrywide jurisdiction, the same position is adopted in all matters regardless where IPAB is sitting in that particular case. This
decision may not be final; it may be taken for being tested before the Superior Courts. The final decision will bestow a certainty to these two issues
and will be applied uniformly in all IPAB proceedings throughout the country. It is with a view to give a degree of certainty and consistency to these
two questions that we referred the matters to Larger Bench. We saw that, earlier there had been difference in the views of Benches of equal
strength. At least now the regular benches of the Board will be bound by this decision as long as it holds the field.
First we will refer to the submissions in favour of the power of review. It was submitted that the IPAB holds a unique position, one may even say
an exalted position among Tribunals. While exercising its original jurisdiction in rectification/revocation matters it is the first and the last court of facts.
And while exercising its Appellate jurisdiction, it is the last court of law and facts. The Act does not provide for any appeal against the orders of the
IPAB and therefore its orders are final. The only remedy that the aggrieved party has, is to approach the High Court under Article 226 of the
Constitution of India and that is a discretionary remedy. The High Court will not scrutinize the order as though it was an appeal. Unlike an order of the
State Consumer Forum from which there is an appeal to the National Commission this stands on a different footing. Both the original jurisdiction
exercised by the High Courts on the Original side and the appellate jurisdiction exercised by the said courts were vested with the IPAB and all
pending matters were transferred vide Section 100 (as amended) of the T.M. Act, 1999 and Section 117-G of the Patents Act, 1970 (1970 Act in
short). The power to correct the error apparent on the face of the record etc., must be understood to continue since the power or jurisdiction has not
been explicitly limited when the matters are transferred. Therefore the power to rectify its error must be understood to exist.
The IPAB has all the trappings of a Court. It cannot be said to be powerless even to rectify apparent errors. Such errors may not be strictly
correctable under judicial review, which is after all a discretionary remedy. The IPAB shall exercise the power bestowed on it under the Act, which
includes the Rules framed according to law. Rule 23 of the Rules has been framed under Section 92 of the T.M. Act and therefore it forms part of the
Act and the 1970 Act too (vide Section 117-B of the Act) Until now no one has challenged the vires of Rule 23 of the IPAB Rules nor has any one
challenged the Board's power to frame the Rules. Once the Rules have been framed, which speaks of the procedure for filing and hearing review
petitions, the IPAB cannot say that it does not have the jurisdiction. So long as the procedure serves the ends of justice and is not in conflict with
settled principles of law, the IPAB cannot deny the power to review, its order.
It was submitted that the Acts and the Rules should be so construed harmoniously that no part of the Act, which includes the Rules become
meaningless. If the IPAB were to hold that it has no power to review its own order, then Rule 23 will become meaningless. It was submitted that not
only the statute did not prohibit Review but the rules specifically provided for it. It must be understood that the IPAB has the power to review. Further
the fees for filing a review have also been prescribed. It was also submitted that the power to rectify the error must be understood to be inherent.
There may be situations where even the subsequent events may have to be taken in to account in review to advance the interest of justice.
The Trade Marks Act, 1999 came into force on 15th September, 2003. On that day, the IPAB Rules either under the Trade Marks Act, or under
the Patent Act, 1970 had not been framed. It came into force only on 15th December 2003. The IPAB Patent procedural Rules came into force on
31.11.2010. As per Section 92(2)(d) of the T.M. Act, the IPAB has the same powers that a Civil Court has in respect of ""any other matter which may
be prescribed"". Section 117-B of the 1970 Act has adopted Section 92 of T.M. Act and Section 117-H of the Act, 1970 confers on the Appellate
Board, the power to make its own rules. It was submitted that Section 2(s) of the T.M. Act and 2(u) of the Act, 1970 define the word ""prescribed"".
With relation to proceedings before the Appellate Board ""prescribed"" would include the Rules framed by the Appellate Board. The Trade Marks Act
and Patents Act have three different rules. We have to read all the Rules and the Act in a wholesome manner. When Section 92(2)(d) of the T.M.
Act was enacted in 1999, it may not have been possible to foresee all the powers that the IPAB will have to specifically exercise in order to render
justice and that is why Section 92(2)(d) gives the IPAB the enveloping words ""any other matter which may be prescribed"". There are other powers of
the IPAB not listed under Section 92(2) but which are regularly exercised, for instance, extension of time, intervention by third parties, adjournment of
hearing and continuation of proceedings. Both the Trade Mark Rules and Patent Rules provided for them and in addition the Patent Rules also
provides for rectification. If a specific mention in the Act was required then the IPAB cannot be said to have the power to pass the above orders.
That will paralyse the functioning of IPAB also. Therefore the word ""any other matter"" is an encompassing word and some specific matters were
later included when the Rules came into force.
Section 92(2)(d) gives the IPAB the same powers as are vested in Civil Courts while trying a suit in respect of ""any other matter which may be
prescribed"". The IPAB rules have been made in exercise of the powers conferred under Section 92. Therefore it cannot be said that the power of
review is found only in the Rules which deals with the procedure for review. It is actually in the substantive law. As far as the Patent Act is
concerned, Section 2 (g) defines ""prescribed"" in relation to procedures prescribed before the Appellate Board ""as prescribed by the rules made by the
Appellate Board"". Section 117-B applies to the Appellate Board in the discharge of its function under the Patent Act, powers granted to it under
Section 92 of the Trade Marks Act, and Section 117-H also deals with the power of Appellate Board to make rules. Therefore it was submitted that
the rules made by the IPAB under Section 92 have been validly made and must be understood to recognize the power of review.
It was submitted that there is a distinction between an Administrative Authority and a Judicial Authority. The case laws which indicate that the
power of review must be explicitly found in the Act are cases where the authority in question is an Administrative Authority or a quasi judicial one and
not a Judicial Authority like the IPAB. If there is no correctional mechanism by an Appellate Authority and the power of review is also excluded, then
the parties will be left without remedy. When the Court's power was transferred to the IPAB, it was without any limitation and therefore the power of
review must be understood to be implicit. The position in the U.S.A. was explained where there are remedies provided from an order passed by the
authority akin to the IPAB which is either an appeal to the Federal Court or to Civil Court seeking review. When the Board's orders are final and are
not appealable the remedy to correct errors on the face of the records must be understood to be implicit. It was submitted that when the Registrar has
been given the power of review under Acts, the IPAB cannot be envisaged as having less powers.
It was submitted that while considering this issue the object of the law must be borne in mind. Lengthy litigation is contrary to the object of law.
Therefore the power of review is implied. It was submitted that when Section 92 uses the words ""trying a suit"" then the power of review flows from
it. It was submitted that the Trade Marks Act provided for power to make Rule in two Sections, one was Section 92 and the other was Section 157.
Section 157 deals with the matters relating to which the Central Government may make rules to carry out the provisions of the Act. Under Section 92
of the T.M. Act the Appellate Board is given the power to regulate its own procedure. Accordingly on 5.12.2003 the Intellectual Property Appellate
Board (Procedure) Rules, 2003 came into force. The power that the Appellate Board is vested with is akin to the trial of the suit. The Company Law
Board Regulations were also referred to where the power of review, which was there originally, was later taken away. In the absence of any such
limitations, the IPAB must be held to have the power of review not even limited by the Provisions of Order 47, but only guided by the principles of
natural justice.
Briefly, these were the submissions in favour of the power to Review.
The counsel who argued that the IPAB did not have the power of review submitted that the power of review should be granted explicitly. There is
no inherent power of review.
The rules prescribed can only mean those prescribed by the Central Government. It was submitted that Tribunals must be vested with the power
of review and cited several decisions. The Act specifically speaks of the appellate power of the Tribunal, but not the power to review.
It was submitted that the Rule making power is vested only with the Central Government and unless the Central Government had explicitly framed
the provisions for review there can be no power of review.
16 The counsel compared the old Act, where a Second Appeal was provided under Section 109(5) of Trade and Merchandise Act, 1958. To presume
that all the powers vested with the High Court had been transferred to the IPAB cannot be accepted since Section 109(5) of the Act has been done
away with. It was submitted that the Parliament did not transfer all the power that existed before to be vested with the IPAB.
It is submitted that the Board has only the trappings of the Court that it is not a Court. Section 95 specifically restrains the IPAB from passing any
ex-parte interim order pending appeal whereas the High Court may in circumstances and for reasons set forth grant an ex parte, injunction. Similarly,
one may not without any explicit grant of the power of review extend to the IPAB all the powers which the High Court had prior to the creation of the
IPAB.
It was submitted that the words 'Order', 'Decision' and 'Judgment' have different connotations and Rule 23 deals only with review of an order. The
legal definitions were read out and it was submitted that there was no intention to give the power of review.
It was submitted that to confer the power of review to the Board would result in endless protracted litigations. The Acts relating to other Tribunals
e.g. Administrative Tribunal were compared where ""the power of review"" was explicitly stated while dealing with the Tribunals being vested with
powers of a Civil Court. So it was a conscious decision not to give to the IPAB the power of review. Similarly, Section 92(1) deals with power to
regulate the procedure including the time of hearing and fixing of places. So the procedure is limited to matters like those mentioned. This cannot be
expanded to a wide power of review.
It was submitted that when one looks at Section 92(2)(a), (b) and (c) of the Act they deal only with receiving of evidence and issuance of
commissions. Therefore the word ""any other matter"" must be understood to include such matters and the power of review is not among that.
There was yet another view expressed by some members of the Bar which was that there was power of review but it was limited to procedural
review and correcting the procedural error but not a review on merits.
This Board by order dated 15.12.2008 in ORA 50/06/TM/KOL held that the Board has no jurisdiction or power to review its own order and
decisions except the procedural defects or inadvertent errors which may require correction and held that the instant petition filed for review on merits
is therefore not maintainable.
The following decisions were cited by the learned counsel:-
(i) In L. Chandrakumar Vs. Union of India & Others (AIR 1997 Supreme Court 1125), the Supreme Court held that the Tribunals created under
Article 323 of the Constitution of India are possessed of the competence to test Constitutional validity of statutory provision of Rules. This was cited to
show that we cannot declare Rule 23 of the IPAB rules to be invalid.
(ii) In Budhia Swain & Others Vs. Gopinath Deb & Others (1994 (4) SCC 396), the authority whose power of review was construed was the Orissa
Estates Abolition Act, Collector-cum-Additional Tahsildar. The only provision for review was to be found in Section 38A, which was only on the
ground of clerical or arithmetical mistakes.
(iii) In Kalabharati Advertising Vs. Hamant Vimalnath Narichani & Others (2010 (9) SCC 437), the Hon'ble Supreme Court considered the power of
review in the absence of statutory provisions. In that case, the authority in question was the Municipal Corporation of greater Mumbai and it was held
that the corporation could not pass an order recalling the order passed by it earlier and reviewing the same without assigning any reason.
(iv) In Honda Siel Power Products Ltd. Vs. Commissioner of Income Tax, Delhi (2007 (12) SCC 596), The Hon'ble Supreme Court held that while
considering Section 254(2) of the Income-tax Act, 1961 which uses the words ""rectification of mistakes from the record"" held that the fundamental
principle appears to be that no one should suffer on account of any mistake committed by the Tribunal. The Supreme Court held that it had nothing to
do with inherent powers of the Tribunal. The reason for giving the power of rectification to the Tribunal was to see that no prejudice is caused to
either of the parties appearing before it by its decision based on a mistake apparent from the face of the records.
(v) In Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning & Weaving Mills Ltd., & Another 2005 (13) SCC 777), in matters that arose from the
Industrial Disputes Act, 1947 the Supreme Court held that unless the statute specifically provides for it, no review lies on merits, but if a review is
sought due to a procedural defect, it must be corrected in the interest of justice and it said that ""applying these principles"", it is apparent that where a
court or quasi-judicial authority having jurisdiction to adjudicate on merits and proceeds to do so its judgment or order can be reviewed only if the court
or the quasi-judicial authority is vested with power of review by express provision or by necessary implications.
(vi) In Ajit Kumar Rath Vs. State of Orissa & Others 1999 (9) SCC 596) the Hon'ble Supreme Court held as follows:
The provisions extracted above indicate that the power of review available to the tribunal is the same as has been given to a court under section 114
read with order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in order 47. The power can be exercised on the
application of a person on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his
knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on account of some mistake or
error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or
arguments or correction of an erroneous view taken earlier, that is to say the power of review can be exercised only for correction of a patent error of
law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression ""any
other sufficient reason"" used in order 47 rule 1 means a reason sufficiently analogous to those specified in the rule.
(vii) In Ashok Kumar Singh & Another Vs. State of U.P. Thru' Registrar Firms, Societies & Others the Hon'ble Allahabad High Court held that even
if no review was permissible under the statute, the Deputy Registrar of Cooperative Societies will have the power to recall the order that was obtained
by fraud. According to this judgment, this power has to be exercised to ensure that courts are not used to obtain an oblique purpose and that these
powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves.
(viii) In Marshall Securities Enterprises Through ITS Proprietor Sri Indrapal Singh & Marshall Securities Enterprises Through ITS Manager Vs. State
of Uttar Pradesh Through Ministry of Labour, Assistant Labour Commissioner & Another in this case, the Hon'ble Allahabad High Court held that in
the case of the Workmen's Compensation Act, a review on merits was not permissible in the absence of a provision in the Act conferring power of
review on the tribunal either expressly or by necessary implication.
(ix) In State of U.P. & Others Vs. Babu Ram Upadhya AIR 1961 SC 751), the Supreme Court held that the rules made under a statute must be
treated for all practical purposes of construction or application as if they were in the Act and or to be of the same fact as if contained in the Act. The
Supreme Court further stated that the Rules cannot be treated as Administrative directions but shall have the same effect as provisions of the statute
in so far as they are not inconsistent with the same.
(x) In Ranchhodhbhai Rathod vs. Jyotiben ((LPA/ 1241/2010 22/22) the Hon'ble Gujarat High Court held that in the case of Revenue Tribunal they
cannot say it has only got power of procedural review and not substantive review and therefore would not go into the merits of the case to consider
whether there was fraud. The Gujarat High Court also held that the remedy to move for recalling or reviewing of the order cannot be foreclosed in
such a situation.
(xi) In Patel Narshi Thakershi & Others Vs. Pradyumansinghiji Arujunsinghiji) AIR 1970 SC 1273), the Supreme Court held that it is well settled that
the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication and since no provision in the
Act was brought to the notice of the Hon'ble Supreme Court that the Government had power to review its own order, it was obvious that its delegate
could not have reviewed the order.
(xii) In Viswanathan vs. Subramanian & 4 Others (1997 (1) Law Weekly 821,) the Hon'ble Madras High Court held that with regard to the authorities
under the Tamil Nadu Agricultural Lands Record of Tenancy Rights Act so long as there is no prohibition merely because certain powers are
expressly provided it should not be interpreted that those powers before us should not be exercised.
(xiii) In Yogendra Pal vs. Municipality 1994 (4) SCC 381), he Hon'ble Supreme Court held that the Judicial Commissioner has no power to revise the
order of the predecessor on merits.
(xiv) In Sakri Vasu vs. State of Uttar Pradesh ((2008) (2) SCC 409) the Supreme Court held that when the authority is given power every power and
every control the denial of which would render grant of power itself ineffective must be held to be impliedly included in the grant.
(xv) In Ramaniyam Real Estates Ltd., rep. By its director V. Jaggannathan Vs. Triveni Apartments Welfare Association 1998 (3) MLJ 205 the
Hon'ble Madras High Court held that the tribunal constituted under the Consumer Protection Act must be held to have the power to issue commission
to make a local inspection.
(xvi) In S.P. Sampathkumar Vs. Union Of India & Others (1987 (1) SCC 124) the Hon'ble Supreme Court held that the Tribunal should be a real
substitute for the High Court not only in form and De jure but in content and de facto and it is the substitute of the High Court and is entitled to
exercise powers thereof.
(xvii) Nainsingh Vs. Koonwaree & Others AIR 1970 SC 997). In this case, it was held that the power to review of remand order was erroneous.
(xviii) In Ratan & Company Vs. Narayanan (AIR 1977 page 93), the Hon'ble Allahabad High Court drew the distinction between decision and order
to demonstrate that the power to review an order cannot be equated to the power to review a decision.
(xix) In Mega Vs. The Commissioner of Income Tax (166 ITR 723 Karnataka) the Hon'ble Karnataka High Court held that the limit on the
jurisdiction of the tribunal and consequently that of the High Court in a reference to go into the question of vires of a provision of law is not confined to
the provisions of the Act alone but extends to statutory rules and Notifications issued under the Act.
(xx) In Grindlays Bank Ltd., Vs. Central Government Industrial Tribunal & Others 1980 (Suppl) SCC 420, the Hon'ble Supreme Court held as follows:
We are of the opinion that the tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no
express provision in the act or the rules framed there under giving the tribunal jurisdiction to do so. But it is a well-known rule of statutory construction
that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions
effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as
invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary the jurisdiction.
The object of giving such wide powers is to mitigate the rigour of the technicalities of the law, for achieving the object of effective investigation and
settlement of industrial disputes, and thus assuring industrial peace and harmony.
When sub-section (1) of section 11 expressly and in clear terms confers power upon the tribunal to regulate its own procedure, it must necessarily be
endowed with all powers which bring about an adjudication of an existing industrial dispute, after affording all the parties an opportunity of a hearing.
We are inclined to the view that where a party is prevented from appearing at the hearing due to a sufficient cause, and is faced with an ex parte
award, it is as if the party is visited with an award without a notice of the proceedings. It is needless to stress that where the tribunal proceeds to
make an award without notice to a party, the award is nothing but a nullity. In such circumstances, the Tribunal has not only the power but also the
duty to set aside the ex parte award and to direct the matter to be heard afresh.
The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or tribunal to set
aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law
and is apparent on the face of the record. it is in the latter sense that the court in Patel Narshi Thakershi's case held that no review lies on merits
unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the
tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or tribunal.
(xxi) In State of Haryana Vs. Industrial Corporation Limited (Mahesh SC -0511/2012) Hon'ble Supreme Court in proceedings under the Land
Acquisition Act, 1891 held after discussing various decisions that the term mistake or error apparent by its very connotations signifies the error which
is evident from the record of the case and does not require detailed examination or scrutiny of the law.
(xxii) In Kapra Mazdoor Ekta Union Vs. Management of M/s. Birla Cotton Spinning & Weaving Mills Ltd., & others (AIR 2005 Supreme Court
1782) the Hon'ble Supreme Court held that where a court or judicial authority having jurisdiction to adjudicate on merits, can review its order on merits
only if the authority is vested with the power of review by express provision or by necessary implication.
(xxiii) In Allahabad Bank, Calcutta Vs. Radhakrishna Maity & Others (1999 STPL (LE) 26158) Supreme Court) The Hon'ble Supreme Court while
dealing with the recovery of debts due to Banks and Financial institutions Act, 1993 held that
The Scope and extent of the powers of the Tribunal are mainly referred to in sub-clause (1) of Section 22 of the Act which says that the Tribunal shall
not be bound by the procedure laid down by the Code of Civil Procedure but shall be guided by principles of natural justice. As stated in Grapco by
this Court, the Tribunal can exercise powers contained in the Code of Civil Procedure and can even go beyond the Code as long as it passes orders in
conformity with principles of natural justice. We may add that Section 19(6) does not in any manner limit the generality of the powers of the Tribunal
under Section 22(1). It merely states that certain types of injunction or stay orders may be passed by the Tribunal. It is to be noticed that a sub-clause
(6) of Section 19 starts with the words. 'The Tribunal may make an interim order....' The provision is an enabling provision and merely states that
certain types of injunction or stay orders mentioned therein can be passed by the Tribunal but such an enumeration cannot, in our opinion, be deemed
to be exhaustive nor restricting the Tribunal's powers only to those types of injunction or stay orders. The width and amplitude of the powers are to be
gathered from Section 22(1) as stated in Grapco. In addition, Rule 18 enables the Tribunal to pass orders to secure the ends of justice.
Thus, we are of the view that the Tribunal certainly has powers to pass other types of injunction orders or stay orders apart from what is stated in
Section 19(6). It may issue notice and after hearing the opposite side, pass orders. Or, it may pass ad interim orders without hearing the opposite side
and then give a subsequent hearing to the opposite party and pass final orders. We may also point out that Section 22(2) too does not limit the general
powers referred to in Section 22(1). All that Section 22(2) states is that in respect of the type of applications falling under (a) to (h), the Tribunal has
only powers as are vested in a Civil Court.
(xxiv) In M/S. British Airways Plc Vs. Union of India & Others 2001 STPL (LE) SC), the Hon'ble Supreme Court held as follows:
While interpreting a statute the court should try to sustain its validity and give such meaning to the provisions which advance the object sought to be
achieved by the enactment. The court cannot approach the enactment with a view to pick holes or to search for defects of drafting which make its
working impossible. it is a cardinal principle of construction of a statute that effort should be made in construing the different provisions so that each
provision will have is play and in the event of any conflict a harmonious construction should be given. The well known principle of harmonious
construction is that effect shall be given to all the provisions and for that any provision of the statute should be construed with reference to the other
provisions so as to make it workable. a particular provision cannot be picked up and interpreted to defeat another provision made in that behalf under
the statute. It is the duty of the court to make such construction of a statute which shall suppress the mischief and advance the remedy. While
interpreting a statute the courts are required to keep in mind the consequences which are likely to flow upon the intended interpretation.
(xxv) In Board of Control for Cricket, India And Another Vs. Netaji Cricket Club And Others 2005 SC 592) held that
Thus, a mistake on the part of the Court which would include a mistake in the nature of the undertaking may also call for a review of the order. An
application for review would also be maintainable if there exist sufficient reason therefor. What would constitute sufficient reason would depend on
the facts and circumstances of the case. The words 'sufficient reason' in Order 47, Rule 1 of the Code is wide enough to include a misconception of
fact or law by a court or even an Advocate. An application for review may be necessitated by way of invoking the doctrine 'actus curie neminem
gravabit'
This explains why the power of review exists.
(xxvi) In Powerlinks Transmission Ltd., Vs. Central Electricity Regulatory Commission & Others (The Appellate Tribunal for Electricity, New Delhi
the Tribunal held that when the High Court sits as an Appellate Authority under the Act it could not have gone into the validity of the said Regulations.
(xxxvii) Rajeev Hitendra Pathak & Others Vs. Achyut Kashinath Karekar & Another 2011 (9) SCC 541), the Supreme Court considered the powers
of the authorities created under the Consumer Protection Act and held
On a careful analysis of the provisions of the Act, it is abundantly clear that the tribunals are creatures of the statute and derive their power from the
express provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside ex parte orders and the
power of review and the powers which have not been expressly given by the statute cannot be exercised.
(xxviii) Malthesh Gudd Pooja Vs. State Of Karnataka & Others 2011 STPL (LE) 45777 SC) the Supreme Court held
The review jurisdiction takes colour from the nature of the jurisdiction exercised by the Court at the time when the main judgment, sought to be
reviewed, was rendered. Review jurisdiction, therefore, cannot be said to be some independent jurisdiction sought to be exercised by the Court de hors
the nature of the jurisdiction exercised by it when the judgment sought to be reviewed was rendered by it.
(xxix) In Chairman, All India Railway Recruitment Board and Another Vs. K. Shyam Kumar & Others 2010 (6) SC 614), the Supreme Court dealt
with the concept of Wednesbury unreasonableness and proportionality.
(xxx) In Union of India & Others Vs. S. Srinivasan 2012 (7) SCC 683) it was held that the rules framed for enabling a statute cannot create a fresh
right which is not existing in the main statute.
(xxxi) Registrar of Firms, Societies & Chits, Uttar Pradesh Vs. Secured Investment Co., & Another 1987 SC 1023), this deals with how the word
include"" should be interpreted.
(xxxii) Dr. Kasinath g. Jalmi & another vs. The Speaker & Others AIR 1993 SC 1873) in which the question of power of review inherent in the
speaker of an Assembly was considered.
(xxxiii) Indian Bank vs. M/s. Sathyam Fibers (India) Pvt. Ltd. 1996 STPL (LE) 21401 SC) In this case, the inherent power to recall an order, if it is
obtained by fraud was considered.
(xxxiv) In State of West Bengal & Others VS. Kamal Sengupta & Another 2008 (8) SCC 612) the Hon'ble Supreme Court held that the question was
whether a Tribunal established under Section 4 of the Administrative Tribunals Act can review its decision on the basis of a subsequent order or
judgment rendered by a coordinate or larger Bench or any superior court or on the basis of subsequent development was questioned and the Supreme
Court held that in that case the court did not warrant exercise of power by the Tribunals under 22 (3) (f) of the Act.
At the outset, we must understand the nature of IPAB in spectrum of justice delivery system. In Union of India Vs. R. Gandhi, President, Madras
Bar Association 2010 (11) SCC 1) Civil Appeal No. 3067 of 2004, the Hon'ble Supreme Court dealt with in detail the history of the tribunals, the
independence of tribunal. The Judgment explained that judicial independence and separation of judicial power from the executive are implicit in our
Constitution and crucial. They held that all Courts are tribunals and any tribunal to which the existing jurisdiction of courts is transferred should also be
a judicial tribunal.
We respectfully repeat and stress what the Hon'ble Supreme Court has stated that the IPAB is a Judicial Tribunal. What applies to quasi judicial
tribunals or Executive Tribunals may not apply to the IPAB. This has to be borne in mind with regard to all the questions that arise under Chapter XI
of the Trade Marks Act or for that matter Chapter XIX of the Patents Act. IPAB is introduced to be a substitute for the High Court not only de jure
and in form but de facto and in content (vide L. Sampathkumar cited supra). The IPAB deals with a jurisdiction which has global implications. The
subject matter of the disputes must be decided with at least two International Agreements in mind, the TRIPS and the Doha Declaration. It was born
only to speed up the hearing of the disputes which was earlier done by the High Court. As far as these disputes, IPAB must be held to have all the
powers of the High Court subject to the limitation that IPAB does not have the constitutional powers of the High Court and its orders are amenable to
judicial review by the High Courts. But in so far as the dispute resolving power and procedure it is a substitute for the High court.
The IPAB is not a tribunal under Article 323 of the Constitution of India. So according to L. Chandrakumar cited supra, we have no power to hold
that the Rule 23 is ultra vires. But until now the Board has held that ""Neither this Act nor the Rules"" framed there under confers such power on this
Board to review its own order or decision in spite of Rule 23. Rule 23 has been framed only by this Board under Section 92 of T.M. Act. There has
been no challenge to its validity until now and so it stands as a valid Rule which is part of the statute. So this issue before us cannot be decided
ignoring Rule 23.
Before the present Trade Marks Act, 1999 and Patents Act, 1970 as amended came into force, the Acts that were in existence was the Trade &
Merchandise Marks Act, 1958 and Patent Act, 1970 (prior to amendment). Section 108 of the Trade & Merchandise Marks Act, 1958 dealt with the
procedure for application for rectification before a High Court under Section 46 or Section 56 of the said Act. Section 109(1) dealt with appeal to the
High Court from any order or decision of the Registrar under this Act, where the rectification application was heard by a single Judge of the High
Court and an appeal could be preferred to a Bench of the High Court. The appeal under Section 109 was heard by a single Judge there was a further
appeal to the Bench of the High Court. When the Trade Marks Act, 1999 came into force all cases of appeals under Section 109 and all cases of
rectification of Register under Section 108 pending before any High Court stood transferred to the Appellate Board and the Appellate Board ""in its
discretion could proceed with the matter either de novo or from the stage it was so transferred"". Similarly, under Section 117(g) of the Patents Act all
cases of appeal against any order or decision of the Controller and all cases pertaining revocation of Patent other than of a counter claim in a suit for
infringement and rectification of a register pending before the High Court stood transferred to the IPAB and the IPAB ""had the discretion to hear the
matter de novo or from the stage it was so transferred"". Section 83 of the Trade Marks Act and Section 116 of the Patents Act states that the
Appellate Board shall exercise the jurisdictional powers and authority conferred on it by or under this Act. This was how the IPAB was born.
Section 92(1) Reads as follows:
(1) Procedure and powers of the Appellate Board The Appellate Board shall not be bound by the procedure laid down in the Code of Civil
Procedure 1908 (5 of 1908) but shall be guided by the principles of natural justice and subject to the provisions of this Act and the rules made
thereunder, the Appellate Board shall have the powers to regulate its own procedure including the fixing of places and times of its hearing.
Section 92(1) of the Trade Marks Act gives wide and unambiguous power to the IPAB to regulate its own procedure including the fixing of places
and time of hearing. The only fetter upon the IPAB is that while devising its procedure it shall be guided by the principles of natural justice and it shall
be subject to the provisions of the Act and Rules made thereunder. The Board need not be bound by the procedure laid down in the Code of Civil
Procedure.
In GRINDLAYS BANK LTD. decision cited supra and Patel Narshi Thakershi's case cited supra it is held that the power of review must be
conferred by the statute either specifically or by necessary implications. Therefore IPAB must be held to have the power to review its own decision, if
(a) the power is expressly conferred or (b) given by necessary implication or when there is no express bar against such power.
In State of Uttar Pradesh cited supra, the Supreme Court had held that the Rules made under the Act shall be considered to be part of the Act and
not mere as administrative direction. The IPAB Rules have been made in exercise of the powers conferred by Section 92 of the T.M. Act. Till date
the power of the Board to make rules under section 92 has not been challenged and the rules remain in the statute book. Therefore so long as the
Rules are there and are to be considered as part of the Act, the power must be held to have been conferred by the Act by necessary implications.
The object of the Parliament in constitution of the IPAB was the speedy disposal of appeals and applications which were lying before the High
Court. We have already seen that that the right of appeal and second appeal which were there in the earlier Act has been taken away.
There is neither an appeal nor a second appeal against the orders passed by the IPAB. When the matters pending before the High Court were
transferred to the IPAB, the IPAB had the discretion to either continue the matter from the stage where it was pending before the High Court or
decide to commence it de novo. The right of the litigant in transferred appeals or applications must necessarily be the same whether the IPAB decided
to hear it de novo or proceeded from such stage where it was pending before the High Court. The IPAB can not take away any right that the litigant
had to any remedy in a pending matter. If the litigant had the right of review before the High Court either in the appeal or in the application, the IPAB
can not take it away merely by saying that ""We are going to hear it de novo"". Therefore whatever right you may have had before the High Court will
enure to your benefit. We cannot hold that the High Court had no power of review.
The orders of the IPAB have far reaching consequences not only as regards the legal right of the parties' vis-Ã -vis the intellectual property right
but also in public interest. When there is no right of appeal, the power of review must be held to be implied. In fact, while we read Rule 23 of the
Trade Marks Act, we must remember that the Act did not specifically exclude the power of review nor was there any express bar. On the contrary,
the implied power of review is declared by the fact that Rule 23 made part of the statue. It is true that the power of review has not been explicitly
stated, but there is no express bar and further the Rule relating review, means by necessary implication there is review.
The contention that there is a strict distinction between the terminology used viz., a ""Decision"" and ""Order"" cannot advance the case of those who
argued against the power of review. Once the power of review is found and is implied in the statute, then whether the orders passed by us are interim
orders or final or decision or judgment is not material, the power of review must be recognized.
Another argument against power of review is that Section 92(2)(a)(b) and (c) of the Act dealt with only (a) receiving evidence (b) issuing
commissions for examination of witness: (c) requisitioning any public record and (d) any other matter which may be prescribed. This means ""that any
other matter cannot extend to power of review"". We must see if, when Section 92(d)refers to ""any other matter"" it refers only to matters which are
similar to the matters mentioned in Section 92(2)(a), (b) and (c), i.e., which relate to collecting of evidence and cannot include the substantive powers
of review. If we look at Section 22(3) of the Administrative Tribunals Act, sub section (3) deals with the matters in respect of which the Tribunals has
the same power as are vested in Civil Courts. Section 22(3)(a), (b) and (c) of the Administrative Tribunals Act are almost similar to the matters dealt
with Section 92(2)(a) to (c). But Section 22(3) of the Administrative Tribunals Act (f) relates to review; (g) deals with dismissing a representation for
default or deciding it ex parte; (h) deals with setting aside any order of dismissal for default or ex parte, order and (i) relates to any other matter which
may be prescribed by the Central Government. Therefore it is clear that the Law makers have treated an order of review and an order setting aside
an ex parte, decision on par with other provisions relating to collection of evidence.
It is clear that these provisions deal with the powers of the Tribunal and there is an organic progression. The first sub section deals with collection
of evidence which is the first stage of the trial, then after the final decision it goes to review or if it is on account of the plaintiff committing default or
defendant being absent it is set right by setting aside the dismissal for default or ex parte, orders. Therefore, we do not think that the words ""any other
matter"" can be construed to exclude the power of review.
Other Acts were also referred to by the counsel. For instance, the Debt Recovery Tribunal Act is also similar to the Administrative Tribunals Act
in that it contains the provisions for reviewing its decision but it differs from the Administrative Tribunals Act, in that the Debt Recovery Tribunal has
the same power with regard to any other matter, which may be prescribed and not necessarily ""prescribed by the Central Government"" as in the
Administrative Tribunals Act. As regards the Railway Claims Tribunal procedure, Rule 20 deals with ""review of its decision."" However, it does not
provide for ""any other matter which may be prescribed"". So we do not think the ""powers of review"" are different from those powers mentioned in
Section 92(2)(a) to (c) and hence impliedly excluded. In other Acts which we have referred to above, all these powers are bunched together.
It was contended that the law makers had specifically excluded the power of review to the IPAB. Here we go back to the definition of the word
prescribed"" under Section 2(s) of the Trade Marks Act, 1999 and the IPAB Rules are Rules made under Section 92 of the Act. Therefore when
Section 92(2)(d), deals with matters ""which may be prescribed"" the provision for the procedure relating to review prescribed under Rule 23 is to be
necessarily understood as the powers of the IPAB vested under Section 92(2) of the Act. As held by the Supreme Court in Sampathkumar case if
IPAB has to be a real substitute for the High Court not only de jure and in form but de facto, and in content then we must hold that IPAB has the
power of review. If we apply GRINDLAYS BANK's case cited supra we must recognize that we have the power of review as being implied by the
Rule. In fact, in ALLAHABAD BANK case cited supra the Supreme Court while considering a similar provision as Section 92(1) held that Tribunals
can exercise powers contained in the C.P.C. and may even go beyond it so long as they are in conformity with the principles of natural justice.
At this stage, we must mention that the power of review is not as wide as the power of appeal. The power of review will not require detailed
investigation into the matter. In Kapra Mazdoor Ekta Union case, AIR 2005 SC 1782) the Supreme Court held that cases where decision is rendered
without notice to the opposite party or under mistaken impression that the notice had served upon the opposite party are some illustrative cases on
which the procedural power of review may be invoked. In those cases, the party seeking review does not have substantial ground that the order
passed suffers from error apparent on the face of the records or any other ground which may justify the review. He has only to establish that the
procedure followed suffers from illegality.
It has been recognized that in case of Judicial Tribunals like the IPAB, corrections of procedural defects have been recognized is inherent or
implicit. In fact, the IPAB has itself corrected such errors in the past, even though it was of the opinion that it had no power of substantive review.
What about error apparent? What if the errors are similar to what is mentioned in Order 47 of Code of Civil Procedure which do not require a
detailed investigation? Let us illustrate with an example in revocation of a patent application It is possible that by a mistake the IPAB revokes a Patent
relying on a ""prior art"" which is really not prior art but a post grant document. Should the litigant then be driven to the High Court by a writ petition?
Interest of justice requires that it can be corrected in review. It is not like a review, which are termed procedural reviews. It is a substantive review.
We are citing a fairly simplistic example only to drive home the point why we would not be crossing forbidden territory by recognizing the power of
review.
Likewise, in Trade Mark case R.P. No. 1/2001 in O.R.A. No. 155/2006 Tm/MUM, the Trade Mark was cancelled on the ground that there was a
discrepancy in the name of the proprietorship. In Review where the records were called for from the Trade Mark Registry, we found that the change
had been recorded and that there was no discrepancy in the official name. We therefore allowed the Review Petition setting aside the order.
Section 92 provides that the Appellate Board is not restricted by the procedure laid down in C.P.C. but shall be guided by the principles of natural
justice. This does not mean that we shall not look into the C.P.C. under any circumstances. It is the C.P.C. which explains the law relating to civil
litigation from the time it is filed and where it is filed, till it fructifies into an executed decree. C.P.C. provides for the right to file a review to a person
aggrieved by an order from which no appeal is allowed. (stress supplied) on the grounds spelt out earlier. From the orders of IPAB, no appeal is
allowed. This provision in the C.P.C. clearly is intended to advance the ends of justice to the aggrieved party, who cannot be left remediless. Order 47
Rule (1) of C.P.C. reads as follows:
Application for review of judgment:- (a) by a decree or order from which an appeal is allowed, but from which no appeal as been preferred, (b) by
a decree or order from which no appeal is allowed.
This too shows that the IPAB shall entertain review. The objections against recognizing the power of review because it would result in protracting
litigation is also baseless, as can be seen. In fact, the error apparent may be rectified earlier in review petition while it may take a longer, if the matter
goes to the High Court. Therefore even if we consider the object for which IPAB was established, the power of review must be recognized. The case
of the Consumer Forum is different; there is an appeal to the National Commission. So the State Forum's power of review was held to be excluded
and we do not think that there is any rule in the Consumer Protection Act, which impliedly recognizes the statutory powers of review as we have in
Rule 23.
In Aribam Tuleswar Sharma Vs. Aribam Pishak Sharma & Others 1979 (4) SCC 389) The Hon'ble Supreme Court held as follows:
It is true as observed by this court in Shivde Singh and others Vs. State of Punjab and others AIR 1963 SC 1909) there is nothing in Article 226 of the
Constitution preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of
justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of power of review. The power of review
may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge
of the person seeking the review or could not be produced by at the time when the order was made; it may be exercised where some mistake or error
apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the
decision was erroneous.
When the Supreme Court refers to erroneous on merit, it means an error which requires detailed investigation which can be corrected only in appeal.
The points in favour of review are six.
a) IPAB is a judicial Tribunal, which was brought as substitute for High Court, and must be so both de jure and de facto;
b) The power of review though not explicitly stated is not barred and is implied by the Rules;
c) Rule 23 is valid and has not yet been challenged. It will become meaningless, if we hold there is no power of review;
d) The IPAB's orders are final and there is no appeal and so if we look at Section 114 and Order 47 C.P.C., the remedy of review must exist;
e) On the principle of harmonious construction, we must give life to Rule 23, and so power of review exists, and
f) Review has been held not to be an independent jurisdiction but taking colour from the matter of the jurisdiction exercised.
Once we hold that there is a power of review, we cannot limit it to errors of procedure alone but to include substantive review as explained in 1999 (9)
SCC 596) Ajit Kumar Rath (cited supra) but cannot extend to rehearing of a matter which is an appeal in disguise. We extract again the passage in
Ajit Kumar Rath case:
The power can be exercised on the application of a person on the discovery of new and important matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not be produced by him at the time when the order was made. The power can also be exercised on
account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for
merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say the power of review can be exercised only for
correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed
out that the expression ""any other sufficient reason"" used in order 47 rule 1 means a reason sufficiently analogous to those specified in the rule.
We express our appreciation of all the counsel, who made their submission for and against the proposition. We have already mentioned the names
of the counsel, who had sent their written submissions as they had difficulties appearing before us. We had also appointed the above three Amici
Curiae to assist us. They had also done extensive research and made their submissions before us. In fact, all the members of the Bar, who made their
oral and written submissions, were really friends of the court. Without the enthusiastic response from the Bar, we would not have been able to decide
this question. We had constituted the Larger Bench only because; there were different views in the various decisions of the Board itself and in law
there should be certainty. With that view alone and in the interest of justice this Larger Bench heard this question.
For all these reasons, we answer the question in the affirmative as above.
The Registry shall issue certified copies of this order free of cost to all those who had made their oral and written submissions. All the other
Members of the Bar, who desire to have certified copies, may obtain them on payment of the required fees. All the review petitions that are pending
will be listed before the appropriate Bench for hearing and orders.