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Judgment
S. Chandrasekaran, Technical Member
This is an appeal under Section 117A of the Patents Act, 1970 (hereinafter referred to as the Act) by the appellant against the order of the Controller of patents dated 23. 08.2007.
2 . An international PCT application No. PCT/DK 01/00633 was filed by M/s. Novo Nordisk A/S, Novo Alle, DK - 2880 Bagsvaerd, Denmark on 2- 10-2001 in the Denmark Patent Office claiming priority from the Denmark applications No. PA 2000 01456 (dated 2.10.2000), PA 2001 00262 (dated 16.2.2001), PA 2001 00430 (dated 14.3.2001), PA 2001 00751 (dated 14.5.2001). The Applicant (appellant herein) entered the national phase in India on 1-4-2003 and the application was numbered 451/CHENP/2003. The Applicant viz., M/s. Novo Nordisk A/S, had assigned the invention to the appellant by way of an assignment deed dated 22-9-2003 and on a request made by the claimant under Section 20 of the Act on 1-12-2003, the application was allowed to proceed in the name of the claimant. The appellant filed a request for examination on 12.09.2005. The respondent after the examination issued the First Examination Report (FER) on 09.06.2006 and the last date for placing the application in order for grant was 09.06.2007.
In the FER the respondent has raised the major technical objections regarding ""invention lacking an inventive step Under Section 2(1) (j) of the Act and also lacking in novelty anticipated by more than dozen documents, together with the objections that most of the claims are neither patentable under Section 3 nor allowable under Section 2(1)(j) of the Act.
The appellant for the first time filed a response to the FER almost at the end of the period, viz., on 7-6-2007 giving elaborate observations over the citations against the novelty and also requested that an opportunity of hearing under Section 14 of the Act should be afforded if the respondent desired to take any adverse decision to the applicant's interest. The respondent refused to proceed with the application under Section 15 of the Act by his letter dated 23.08.2007 in the form of a letter of communication signed by the Examiner of Patents for and on behalf of the respondent. The respondent in the impugned order dated 23.08.2007 maintained the technical objections that the invention still lacks in novelty, inventive step and insufficient disclosure of material information to support the claims. Finally the respondent concluded in his communication with the following 2
objections:
1) Due to the response filing on last date, applicant cannot be given a chance for hearing under Section 80.
2) Since technical objections of FER are still maintained, the patent application may be refused under Section 15 of the Patents Act, 1970.
Hence this appeal by the appellant against the impugned order.
This appeal was listed before us on 11.09.2008. Shri Vijay Anand learned Counsel appeared for the appellant and Shri G. Desingu, learned Counsel appeared on behalf of the respondent.
5 . Learned Counsel for the appellant first submitted that the order passed by the respondent is contrary to law, without appreciating the evidences and the clearer observations on record, and also contrary to the well established principles of law of natural justice and therefore liable to be set aside. The learned Counsel continued that the respondent had erred in passing the impugned order without providing a fair chance of opportunity to the appellant to present and place their arguments and views and observations in a hearing as requested by them under Section 14 of the Act which the appellants are normally entitled to get an opportunity of being heard under Section 14 of the Act. The counsel for the appellant submitted that in view of the technical objections about the novelty and inventive step of the subject matter as claimed in the claims defining the scope of invention, the appellant had given clearer responses, wherein the distinguishing features of the invention were clearly provided over the cited documents and the claims were suitably amended to define the novel features and inventive step of the invention considering the citations provided by the respondent in his FER. The counsel for the appellant argued that none of the documents alone or in combination suggests or motivate the skilled artisan to perform the invention.
The counsel for the appellant argued that the respondent had failed to look into the merits of the response and consider the observations given by the appellant against the citations that were given in the respondent's FER and, not only that, the respondent had directly refused the grant of patent by issuing the refusal order under Section 15 without giving an opportunity of being heard.
6 . The learned Counsel for the appellant stated that the present invention has its main object as the provision of a recombinant or enzyme treated factor VII Polypeptide or factor VII related polypeptide preparation wherein the polypeptides exhibit a predetermined glycoform patterns. Further he stated that the preparation to this invention overcomes many disadvantages related or associated with the human plasma as a source against clotting proteins.
7 . The counsel for the appellant also stated that the factor VII of the present invention strongly exhibits the increased bio-availability compared to the presently available or what is known in the prior art regarding factor VII. The described difference in oligosaccharide patterns leads to an improved bio-availability of the factor VII polypeptides of the present invention. An increase in the bio-availability mentioned earlier has also been confirmed in many human clinical studies. The counsel for the appellant finally stated that the invention claimed in the claims are fully and technically supported by necessary description in the complete specifications and also pointed out that the cited prior art by the respondent does not anticipate the invention and therefore the invention claimed in the claims is fully definitive and is technically well supported by necessary descriptions. The learned Counsel for the appellant ended his argument by stating that the impugned order be set aside and the patent may be granted to the applicant for patent.
8 . The learned Counsel for the respondent submitted that the applicant for patent (the appellant herein) had not met the technical objections of the office and failed to comply with the requirements raised therein in the FER issued by the respondent. The counsel also pointed out that the appellants were given one full year term to comply with the requirements but the appellant submitted almost on the last day without making any amendment in the claim to define the scope of the invention. The counsel also argued that the principal claim is supposed to define the invention clearly without any ambiguity whereas the applicants claim mentions about the preparation comprising plurality of polypeptides which cannot be allowed as the application provides merely an arbitrary selection of polypeptides without there being any clear cut indication of what exact polypeptides preparation present.
Thus the counsel for the respondent pointed out that the claims are very vague, unclear and are inadequately supported by necessary description. The counsel for respondent argued that in view of the prior art and common knowledge available reasonably to any skilled person at the time of the application, the invention is obvious or is lacking inventive step and he continued that this matter has been very clearly pointed out in the citations given in the FER as well as in the impugned order thereby making the claimed invention not only not novel but also not inventive over the available prior Article In view of the above, the counsel for the respondent submitted that the appellant had not met the technical objections raised in the FER within the prescribed period. The counsel also continued that the appellant had not followed the provisions for asking for an opportunity of hearing as per the law when they were given a full one year time to comply with the objections raised by the respondent and the appellants have not been diligent enough to prosecute the application neither during the resubmission of the documents nor when asking for a hearing just two days before the last date and stated finally that the respondent had rightly refused the grant of patent.
9 . We have heard the counsel for the appellant and respondent. Let us see the provisions of PCT and the Act and rules made there under.
Section 14. Consideration of 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 applicant or requires any amendment of the application or of the specification to ensure compliance with the provisions of this Act or of the rules made there under, the Controller, before proceeding to dispose of the application in accordance with the provisions hereinafter appearing, shall communicate the gist of the objections to the applicant and shall, if so required by the applicant within the prescribed time, give him an opportunity of being heard.
Section 15. Power of Controller to refuse or require amended applications in certain cases.- Where the Controller is satisfied that the application or any specification or any other document filed in pursuance thereof does not comply with the requirements of this act or of any rules made thereunder, the Controller may require the application, specification or other document, as the case may be, to be amended to his satisfaction before he proceeds with the application or refuse the application on failure to do so.
Rule 24(4) of the Patent Rules, 2003 as amended by the Patents (Amendment) Rules, 2006 reads as under:
(4) The time for putting an application in order for grant under Section 21 shall be twelve months from the date on which the first statement of objection is issued to the applicant to comply with the requirements.
Thus any applicant who is diligent would prosecute the application by resubmitting the documents well in advance of the applicable twelve months time to him and seek the grant of patent. In fact in the FER issued from the respondent's office, it is be noted that there is a direction given to the applicant (appellant here) "it is in the interest of the applicant to comply with the requirements at the earliest". The meaning of this direction is that the appellant should comply with all the technical objections within first six months or any other reasonable period and resubmit the documents with all necessary amendments in the respondent's office, and if the applicant so desires, simultaneously ask for an opportunity of hearing before the Controller well in advance, in case the Controller is likely to take an adverse decision against the applicant and so that there would be sufficient time for affording hearing as well as for any further communication of office action by the respondent's office, for which naturally, the applicant would have time to comply with the same then. Whereas now it is seen that the applicant (appellant herein) had for the first time resubmitted the documents after a lapse of almost one year or two days before the last date and also sought a hearing not adhering to the provision in the proviso to Section 80 of the Act.
Nevertheless the applicant had made exhaustive observations against all the technical objections raised and lastly resubmitted the amended documents two days before the last date, also seeking an opportunity of hearing before the Controller.
Section 80 reads as below:
Section 80. Exercise of discretionary powers by Controller Without prejudice to any provision contained in this Act requiring the Controller to hear any party to the proceedings thereunder or to give any such party an opportunity to be heard, the Controller shall give to any applicant for a patent, or for amendment of a specification (if within the prescribed time the applicant so requires) an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Controller by or under this Act.
The amendment to the Section 80 has been made by the Patents (Amendment) Act, 2002 as given below:
In Section 80 of the principal Act, the following proviso shall be inserted at the end, namely:
Provided that the party desiring a hearing makes the request for such hearing to the Controller at least ten days in advance of the expiry of the time-limit specified in respect of the proceeding.
From the above provisions it is very clear that the applicant for the patent also when it requested for a hearing or required an opportunity of being heard, it has to make a request for the same at least ten days in advance of the expiry time limit so specified by the statute. First on this account the appellant had failed in its duty to resubmit the amended documents well in advance and also it ought to have sought an opportunity of hearing by giving the respondent clear ten days notice as per the provisions laid down in the proviso to Section 80 of the Act. Merely meeting the requirements of the technical objections of the respondent's office or complying with the technical requirements of the respondent's office will not suffice. Meeting the technical requirements is one aspect and the other aspect is meeting the requirements of the law which have to be fulfilled together. The principle of having time limits and following the same, is very essential in every legal system. The philosophy of having a well controlled time table in any proceedings is based on the necessity to have a clear methodology of action which in itself determines the rights and obligations of applicant. Rules about time are therefore contained in all legal instruments that deal with the substantial rights of people. Time limits aim primarily at preserving the need for certainty, precision and delineation of rights that may properly and validly be pursued. Time periods, are largely contained in civil and criminal procedures, rules and regulations made under the relevant law, including bilateral or multilateral conventions, are therefore viewed as procedural requirements, but partake also of the substantive law, as a right can cease to exist or not emerge in the legal sense if not processed or followed or exercised within the specified time period. It is very clear from the development of the case laws in the USPTO or EPO or the IPO, that the most important principle that runs through the cases with regard to the allowance of late filed requests is the criterion of relevance, mostly the stage involved in the proceedings makes a difference. First instance proceedings before the Controller are considered to be of an administrative character in nature while appeal proceedings are of a judicial nature. Such belated requests or the one not according to the law in force tend to become possibly the abuse of proceedings. Abuse of proceedings is yet another good reason for disallowing an application for a patent by the Controller. Failure to proceed within a reasonable time might also be considered as an abuse of the proceedings as can be seen in the decision in Iacovides v. Georghiou
(1999) C.L.R. 1048.
11 . T h e Supreme Court in the US discussed the difficulty of separating "substantive" from "procedure" in Busik v. Levine 63 N.J. 351 (1973), in the context of a challenge to the validity of the Rule 4:42-11(b), in the procedure of Patent law grant. The basis for the challenge was that the rule was a substantive law, beyond the constitutional rule-making power of the Supreme Court. In construing the rule as a valid rule of procedure, the Hon'ble Court commented: ""it is simplistic to assume that all law is divided neatly between 'substance' and 'procedure. A rule of procedure may have an impact upon the substantive result and be no less a rule of procedure on that account.
Therefore as the Regulations are unforgiving, patentees must be particularly diligent in ensuring during prosecution of the application, that they comply with the strict requirements of the Regulations in order to avail themselves of the corresponding benefits. The Federal Court of Canada, Trial Division, in Syntex (U.S.A.) L.L.C. v. Apotex and Canada (Minister of Health) (2001)decided that ""the Regulations are a complete code with respect to the rights of the patentee to prohibition and that, if a party misses a time period under the Regulations , a party is obliged to commence an ordinary action for patent infringement if it wishes to protect its interests."" Here the idea or emphasis is to follow the set time limit and adhere to the same, but not miss the same or disregard the same.
The judgment of the Division Bench in Hastimal Dalichand Bora and Ors. v. Hiralal Motichand Mutha AIR 954 Bom 24 3was authored by Gajendragadkar, J. as his Lordship then was. It was held that "the Court would have no jurisdiction to consider the contentions raised in such an application when it has been filed beyond time".
In Kawal Singh Akbar v. Baldeo Singh Akbar AIR 1957 Nag 57, the Nagpur High Court observed: ""It was held that the application to take the additional ground should be treated as a new application to set aside the award and must be dismissed as it was barred by limitation. No quarter can, therefore, be given to the latches and delay which the appellant has been guilty of .
As seen from the above case laws, strict compliance of the regulations have been stressed always and in the absence of such compliance by the applicant, no consideration can be given to such latches or delay on their part for non-observance thereof, which goes to prove that the applicants have not been diligent enough to prosecute the application for the patent. Once an application for patent is received, the Controller shall refer the matter to the examiner under Section 12 of the Act, to do technical examination and submit a report within a prescribed time. The examiner does the search for novelty under the Section 13 of the Act and submits a report to the Controller within a prescribed time. The Controller shall in fact as expeditiously as possible, communicate a gist of the technical objections to the applicant, which is called the First examination report giving the applicant, a time period of twelve months to comply with the requirements and resubmit the same in time in order for grant of patent. But it is also to be noted that as per Section 13(3) of the Act which reads as under:
13(3): Where a complete specification is amended under the provisions of this Act before the grant of a patent, the amended specification shall be examined and investigated in like manner as the original specification.
Hence the Controller of patents being the custodian of patent rights, according to law, shall always examine the patent application in totality, when the applicant has resubmitted the documents with exhaustive observations, the Controller shall always consider those observations fully and take a decision either to refuse or grant a patent. In fact the clear procedure that ought to be followed in case of anticipation by prior publication by the Controller when the applicant has given his observations with a view not to amend the specification, but contests those citations by his observations, is given under Rule 28 of the Patents Rules, 2003 and more particularly under the proviso to Sub-rule (2) of Rule 28 of the said Patent Rules, which reads as under:
(2) If the applicant contests any of the objections communicated to him by the Controller under Sub-rule (1), or if he refiles his specification along with his observations as to whether or not the specifications is to be amended, he shall be given an opportunity to be heard in the matter if he so requests:
Provided that such request shall be made on a date earlier than ten days of the final date of the period specified under Sub-section (1) of Section 21:
Provided further that a request for hearing may be allowed to be filed within such shorter period as the Controller may deem fit in the circumstances of the case.
1 6 . From the above rule it is very clear that the applicant has to ask for an opportunity of hearing at least ten days prior to the date of expiry period, but it is also provided very specifically in the proviso that the Controller may not insist on this ten days period and he may allow the applicant's request even on much a shorter period, as the Controller may deem fit in the circumstances of the case. Naturally when the applicant has given exhaustive observations for the citations made in the FER by the Controller, the applicant would have some more information to meet the further objections now made in the impugned order, had he been given time to put forth his observations in an opportunity of hearing before the Controller, even on the last day by virtue of this proviso clause. Whereas the Controller had not given any opportunity at all to the applicant and the applicant's request had been turned down summarily in an affirmative manner, saying "" Due to response filing on last date, applicant cannot be given a chance of hearing under Section 80 "". This very act of refusal of opportunity of hearing by the Controller, especially when he is likely to take an adverse decision against the applicant, is totally violative of the law of natural justice. The action of the Controller could have been justiciable, if only, he has given the reasons in a detailed manner for refusal. In addition, he had proceeded to raise and give further objections regarding novelty and inventive step for which the applicant was not provided with sufficient time and opportunity to put forth its views and observations in a reasonable manner and to defend its case for a patent grant. The proceedings ended with a finality of opinion by the Controller ""since technical objections of FER are still maintained, the patent application may be refused under Section 15 of the Patents Act, 1970. "" The Controller's action as the authority vested with power of granting patent under the law, is totally ultra virus of the provision of law of natural justice on two counts, viz., firstly, when there is little or no time to meet the technical requirements of the office, the Controller advances or forwards further new objections, in a piece meal fashion, against the novelty and inventive step without giving it sufficient time to comply with the same or alternatively, not providing him an opportunity of hearing when he has asked specifically for the same, though time barred; secondly, rejecting the request for an opportunity of hearing in a summary and affirmative manner and observing that due to the applicant's non-compliance of the technical objections, the application for patent is refused under Section 15 of the Act. In
109 F.3d 365 United States of America, (Plaintiff-Appellee,) v. Armando BELTRAN, Defendant-Appellant No. 96-1271. United States Court of Appeals, Seventh Circuit , it was held by the circuit judges that, "A defendant is entitled to advance notice of the evidence upon which the court intends to base its sentence where that evidence is disputed." In U.S.S.G. § 6A1.3(a) & (b); United States v. Cantero 995 F.2d 1407, 1412, 1413 (7th Cir. 1993), it was also held by a dissenting judge "When a reasonable dispute exists about any factor important to the sentencing determination, the court must ensure that the parties have an adequate opportunity to present relevant information." Therefore from these case laws, it is undoubtedly clear that the respondent ought to have given an opportunity of hearing to the appellant, to present his views and observations.
Therefore, the correct procedure would have been that the Controller must have offered or provided an opportunity of hearing to the applicant/appellant, as per the second proviso to Sub-rule (2) of Rule 28 of the rules referred to above immediately or on the last day and on completion of the hearing, if he is convinced with the observations of the applicant/appellant, grant the patent straight away. Otherwise, he is bound to give directions to the applicant to amend the specification to his satisfaction or else refuse to proceed with the application, thereby issuing a refusal order in the form of decision given by the Controller, that he has considered the observations that the applicant may make in the hearing, but they do not appear to comply with technical requirements, and also giving therein the valid and clear reasons and case laws if any, as to how those observations of the applicant/appellant do not meet the office technical requirements. Here again, the Controller had gone to the extent of not affording an opportunity of hearing to the applicant, but straight away refusing the case and issuing an order purported to be a refusal order under Section 15 of the Act. This refusal order is signed by the Examiner of Patents, who is not authorised under law to issue an order and that too this order is in the form of a letter of communication and purported to be a refusal order, has not even been signed by Controller of Patents, who is authorised under the law to hold any hearing and issue any orders having the powers of a civil court as per Section 77 of the Act. Whereas the Examiner of Patents is not vested with such powers and so the Examiner of Patents is only empowered to do the technical examination of the patent application, but not to usurp the functions of the Controller, unless authorised under the law.
Hearing means in legal parlance "" a proceeding (usually by a court) where evidence is taken for the purpose of determining an issue of fact and reaching a decision based on that evidence"". In the administrative law context, a hearing is usually a proceeding before an administrative hearing officer or authority representing the department, vested with such administrative function that has the power to regulate a particular field or oversee a governmental benefit program. For example, the Federal Aviation Board (FAB) has the authority to hold hearings on airline safety, and a state Worker's Compensation Appeals Board has the power to rule on the appeals of people whose applications for benefits have been denied. Similarly the Controller of Patents, who is administering the Patent law has the authority vested with the power to regulate the procedure regarding the granting of Patent monopoly right to the inventor or his assignee who is the applicant for the patent. Therefore the "hearing officer" means here, undoubtedly the Controller of Patents, designated under the Patent law to conduct a hearing within the guidelines provided under the statute viz., the patent law.
The hearing officer shall have authority to take all measures necessary for the maintenance of order and for the efficient, fair and impartial consideration of issues arising in hearings governed by the guidelines given in the statute including, but not limited to:
conducting hearings under the guidelines;
2 . taking, admitting or excluding evidence, examining witnesses and allowing post hearing submissions;
making such orders as may be necessary to preserve the decorum and to protect the orderly hearing process;
An order can be as simple as setting a date for trial or as complex as restructuring contractual relationships between many contestants in a multi-jurisdictional dispute or between the applicant and the department. It may be a final order, or an interim order (one during the action). Most orders are written, and are signed by the judge or the hearing officer. The content and provisions of an order depend on the type of proceeding, the phase of the proceedings in which they are issued, and the procedural and evidentiary rules that govern the proceedings. Here the Controller of Patents is alone the hearing officer and he is only duty bound to sign and issue the order to the contestants seeking the remedy. Therefore the order issued cannot be even considered as an order of refusal under Section 15 of the Act. However in the interest of natural justice, we have considered it as a refusal order and proceeded further with the matter.
Now, it will be useful to briefly discuss the dominance of the principle in decision making and the appropriate procedure, in matters adversely affecting the interests of others. The principles of natural justice are known in the jurisprudence of administrative law as the fundamental rules of justice.
Two fundamental maxims of natural justice are (i) audi alteram partem and (ii) nemo judex in re sua. For the purpose of the present appeal we are primarily concerned with the concept of audi alteram partem. It is a Latin phrase meaning that a decision has to be given in the case of any person only after he is heard. Impliedly, any decision proposed to be taken which is adverse to a party should be taken only after giving a hearing prior to taking of such a decision. Therefore natural justice demands that a person who is likely to be directly affected by an administrative action be given prior notice of what is proposed so as to enable him to make proper representation to defend his cause. The aim of the rules of natural justice is to secure justice. Soul of the rule is fair play in action. The message of the doctrine is that no one should be condemned without being heard. This principle is not of recent origin but it was well recognized even in the ancient world. Seneca, the philosopher, is said to have referred in Medea that it is unjust to reach decision without a full hearing. The concept has been evolved to uphold the rule of law. The rule was stated in the following words by Lord Denning M.R. in Schmidt v. Secretary of State for Home Affairs (1969) 2 Ch.D 149 that ""where a public officer has power to deprive a person of his liberty or his property, the general principle is that it has not to be done without his being given an opportunity of being heard and of making representations on his own behalf"".
Perusing some of the famous reported cases on principles of natural justice, we notice that in Ross v. Medical University of South Carolina 328 S.C. 51, 68, 492 S.E. 2d 62, 71 (1997), the South Carolina Supreme Court held that ""law requires an administrative agency or authority to provide notice and an opportunity to be heard, but does not require notice and an opportunity to be heard at each level of the administrative process. It mandates notice and opportunity to be heard at some point before the agency makes its final decision. An authority is required to act judicially whenever its actions are likely to result in any disadvantage to a person. "Disadvantage" as the Supreme Court stated in Bhagwan v. Ramchand MANU/SC/0320/1965 "may result from taking away of a right or a privilege or adverse effect on an interest". If it appears that an authority or a body has been given power to determine questions affecting the right of citizens, the very nature of power would inevitably impose a limitation that the power should be exercised in conformity with the principles of natural justice. The Andhra Pradesh High Court in Berulal Tiwari v. CIT MANU/AP/0037/1988: held that ""We would express our disapproval of the way in which ITOs' drag on the assessment proceedings till almost the last minute and rush through the entire process of assessment when the limitation was about to set in without giving adequate opportunities to the assessee. The CIT, exercising administrative jurisdiction over these officers, should keep a close watch on the proceedings and should discourage any attempt on the part of the tax officers in dragging on the duty to act fairly, which lies on all quasi-judicial authorities and this duty has been extended also to the authorities holding administrative enquiries involving civil consequences of affecting rights of parties."" The quasi-judicial decision rendered and order made in violation of the Audi Alteram Pattern Rule is null and void. The order impugned in such case can be struck down as invalid on that score only and this view is fortified by numerous decisions. In case of State of Kerala v. K.T. Shaduli Grocery Dealers, Etc.MANU/SC/0303/1977, the Hon'ble Supreme Court followed the provision of law laid down in case of Dhakeshwari Cotton Mills Ltd. and Suresh Koshy George and quashed the assessments which were found to be in violation of principle of natural justice. The principles of natural justice have been elevated to the status of fundamental rights guaranteed in the Constitution as is evident from the decision of the full Bench of the Supreme Court in the case of Union of India
v. Tulsiram Patel MANU/SC/0373/1985, holding that the principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 of the Constitution because of the new and dynamic interpretation given by the Supreme Court to the concept of equality and that violation of principles of natural justice.
2 1 . Natural justice is a great humanizing principle intended to invest law with fairness and to secure justice and over the years it has grown into a widely pervasive rule affecting large areas of administrative action. Supreme Court of India had even gone to the extent of treating cases on the principles of natural justice as a part of Article 14 of the Constitution. In Maneka Gandhi v. Union of India MANU/SC/0133/1978 it was held that audi alteram partem is a highly effective rule devised by the Courts to ensure that a statutory authority arrives at a just decision and it is calculated to act as a healthy check on the misuse of power. Hence its reach should not be narrowed and its applicability circumscribed. Earlier it was generally believed that the rules of natural justice apply only to judicial or quasi-judicial proceeding. In State of Orissa v. Dr. (Miss) Bina Pani Die MANU/SC/0332/1967 the reach of the rule was clarified by the Supreme Court by holding that even an administrative order or decision in matters involving civil consequences has to be made consistently with the rules of natural justice. In A.K. Kraipak v. Union of India MANU/SC/0427/1969 the Supreme Court further clarified the position in the following words:
If the purpose of these rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative inquiries. Often times it is not easy to draw the line that demarcates administrative inquiries from quasi-judicial enquiries.... Arriving at a just decision is the aim of both quasi judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have far reaching effect than a decision in a quasi judicial enquiry.
Supreme Court in D.K. Yadav v. JMA Industrial Ltd.MANU/SC/0529/1993 had observed that ""it is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her
case. An order involving consequences must be made consistently with the rules of natural justice"".
I n Mohinder Singh v. Chief Election Commissioner MANU/SC/0209/1977, the Constitution Bench held that 'civil consequences' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequence.... In State of Orissa v. Miss Bina Pani Dei MANU/SC/0332/1967 the Court held that ""even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case and must be given a fair opportunity to meet the case before an adverse decision is taken"".
2 4 . I n Nava Bharat Ferro Alloys Ltd. v. A.P. Electricity Regulatory Commission 2007 APTEL 622, it was held that an adverse decision against a person, who has not been provided a hearing, would be violative of the principle of natural justice. In this regard, it was observed as follows: "" It is well-settled that an affected party must have its say before an adverse order is passed against it. Every order or decision affecting the interests of a party should be taken only after providing him with an opportunity of hearing. A person must know what case he has to meet and he must have an effective opportunity of meeting the same. Principles of natural justice are implicit in the statute even when they are not incorporated specifically therein. In case, no hearing is given to a person by a judicial, quasi-judicial or an Administrative Authority before making an adverse decision against his rights/interests, it would be violative of the principles of natural justice"".
McManama v. Plunk 250 Va. 27, 34, 458 S.E. 2d 759, 763 (1995) it was held that ""Procedural due process guarantees that a person shall have reasonable notice and opportunity to be heard before any binding order can be made affecting the person's rights to liberty or property.
Klimko v. Virginia Employment Comm'n 216 Va. 750, 757, 222 S.E.2d 559, 565 (1976) it was held that, to satisfy procedural due process, it is sufficient to provide an opportunity for a hearing and a judicial determination shall be taken.
Lord Mustill , with the agreement of all other members of the House of Lords , spoke in similar vein in Re D (Minors) (Adoption Reports:
Confidentiality) (1996) AC 593, 603-604, when he described "fairness & Justice" as a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.
Earlier it has been held that the Controller is not a court or tribunal as per the case "" Martin and Bottling developments Ltd's DPD 356 "" and so the provisions of CPC are not applicable to him. If that be the case, the respondent could have very well relaxed the conditions of the Section 80 of the Act and could have offered an opportunity of hearing to the appellant at his convenience before issuing this impugned order. Otherwise too it is very well cast on the learned Controller as an administering authority of the Patent Law, to have offered an opportunity of hearing to the applicant before taking any adverse decision on this application. In the present case, admittedly no notice was given to the appellant providing it a reasonable opportunity to defend its case. Not only that an opportunity of hearing notice was not given to the appellant, but even fresh objections were brought in the impugned order by the respondent, that have not been first communicated to the appellant so as to enable it to defend its case by presenting its views and observations. Moreover in the impugned order the respondent has categorically refused to grant the opportunity of hearing to the appellant under Section 80 of the Act by taking the plea that there was inordinate delay in resubmission. The impugned order under consideration has been undisputedly made without affording an opportunity of being heard to the appellant, and that order does affect the appellant adversely. It appears to us that the impugned order is unreasonable in the sense that it is manifestly arbitrary and as such unsustainable. In the light of the above, we are of the view that the impugned order need be set aside. Accordingly, we do so and remand the matter for de novo consideration by the respondent, in accordance with the law, after affording the appellant a fair and reasonable opportunity of being heard within a reasonable time frame. The appeal is disposed off in the above terms.
However, there shall be no order as to the costs.