THE TRIBUNALS REFORMS (RATINALIZATION AND CONDITIONS OF SERVICE) ORDINANCE, 2021 – PART II

[Mr. M. GOVINDARAJAN]

Amendment to Trade Marks Act, 1999

Section 91 of the Act provides that any person aggrieved by an order or decision of the Registrar under this Act, or the rules made there under may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal.   Section 2(1)(ze) of the Act defines the term ‘Tribunal’ as the Registrar or, as the case may be, the Appellate Board, before which the proceeding concerned is pending.

The Ordinance transfers the powers of Registrar and the Appellate Board to the High Court.  For this purpose the Ordinance makes the following amendments to the Act-

• Omissions of some definitions as detailed below-

• Tribunal – Section 2(1)(a);
• Bench – Section 2(1)(d);
• Chairperson – Section 2(1)(f);
• Judicial Member – Section 2(1)(k);
• Member – Section 2(1)(n);
• Tribunal – Section 21(1)(ze);
• Vice Person – Section 21(1)(zf).

• Substitution of section 2(1)(s) – the newly substituted section defines the term ‘prescribed’-

• In relation to proceedings before a High Court, prescribed by rules made by the High Court; and
• in other cases, prescribed by rules made under this Act.

• The word ‘tribunal’ appearing in the following sections shall be substituted by the words ‘Registrar or the High Court, as the case may be’-

• Section 10 – Limitation as to colour;
• Section 26 – Effect of removal from Register for failure to pay fee for renewal;
• Section 46 – Proposed use of trade mark by company to be formed, etc.
• Section 47 – Removal from Register and imposition of limitations on ground of non use;
• Section 55 – Use one of associated or substantially identical trademarks equivalent to use of another;
• Section 57 – Power to cancel or vary registration and rectify the register;
• Section 71 – Application for registration of trademarks;
• Section 113 – Procedure where invalidity of registration is pleaded by the accused;
• Section 144 – Trade usages, etc. to be taken  into consideration;

• The words ‘Appellate Board’ appearing in the following sections shall be substituted by the words ‘High Court’-

• Section 47 – Removal from Register and imposition of limitations on ground of non use;

• Section 57 – – Power to cancel or vary registration and rectify the register;
• Section 91 – Appeals to Appellate Board;
• Section 97 – Procedure for application for rectification etc., before Appellate Board;
• Section 98 – Appearance of Registrar in legal proceedings;
• Section 113 – Procedure where invalidity of registration is pleaded by the accused;
• Section 124 – Stay of proceedings where the validity of registration of the trade mark is questioned etc.
• Section 125 – Application for rectification of register to be made to Appellate Board  in certain cases;
• Section 141 – Certificate of validity;
• Section 157 – Power to make rules.

• The Ordinance omitted the following sections-

• Section 83 – Establishment of Appellate Board;
• Section 84 – Composition of Appellate Tribunal;
• Section  85 –  Qualifications for appointment of Chairperson, Vice Chairperson and other members;
• Section 86 – Term of office of Chairperson, Vice Chairperson and other members;
• Section 87 – Vice person or senior most Member to act as Chairperson or discharge his functions in certain circumstances;
• Section 88 – Salaries, allowances and other terms and conditions of service of Chairperson, Vice Chairperson and other Members;
• Section 89 – Resignation and removal;
• Section 89A -Qualifications, terms and conditions of service of Chairperson, Vice Person and  Member;
• Section 90 – Staff of Appellate Board;
• Section 92 – Procedure and powers of Appellate Board;
• Section 93 – Bar of jurisdiction of Courts, etc.,
• Section 95 – Conditions as to making interim orders;
• Section 96 – Power of Chairperson to transfer cases from one Bench to another;
• Section 99 – Cost of Registrar in proceedings before Appellate Board;
• Section100 – Transfer of pending proceedings before Appellate Board;
• Section 123 provides that every person appointed under this Act and every Member of the Appellate Board shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.  The Ordinance omits the words ‘every Member of the Appellate Board’;
• Section 130 –Death of party to a proceeding - the words “the Appellate Board or” shall be omitted;
• Section 157 (2) (xxxi) – power of Central Government to make rules - the salaries and allowances and other conditions of service of the officers and other employees of the Appellate Board under sub-section (2), and the manner in which the officers and other employees of the Appellate Board shall discharge their functions under sub-section (3) of section 90;
• Section 157 (2) (xxxii) – power of Central Government to make rules - the form of making an appeal, the manner of verification and the fee payable under sub-section (3) of section 91;

• The Heading of Chapter XI – Appellate Board – has been changed to ‘Appeals’;
• Section 94 of the Act provides that on ceasing to hold office, the Chairperson, Vice-Chairperson or other Members shall not appear before the Appellate Board or the Registrar.  The Ordinance substitutes a new section 94 which provides that On ceasing to hold the office, the erstwhile Chairperson, Vice-Chairperson or other Members, shall not appear before the Registrar.

Amendments to the Geographical Indications of Goods (Registration and Protection) Act, 1999

Section 31 of the Geographical Indications of Goods (Registration and Protection) Act, 1999 provides that any person aggrieved by an order or decision of the Registrar under this Act, or the rules made there under, may prefer an appeal to the Appellate Board within three months from the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal.

Now the Ordinance transfers the said power to the High Court.  For this purposes the following amendments are made in this Act-

• Omissions of the following sections-

• Section 2(1)(a) – Definition of ‘Appellate Board’;
• Section 2(1) (p) – Definition of  ‘Tribunal’;
• Section 31 (3) - An appeal to the Appellate Board shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a copy of the order or decision appealed against and such fees as may be prescribed.
• Section 32 – Bar of jurisdiction of courts, etc.
• Section 33 – Procedure of the Appellate Board;
• Section 36 – Cost of Registrar in proceedings before Appellate Board;
• Section 63 -      - the words “the Appellate Board or” shall be omitted;
• Section 87(2)(n) – Power of Central Government to make rules on ‘ the form of making an appeal, the manner of verification and the fee payable under sub-section (3) of section 31’;

• The word ‘tribunal’ appearing in the following sections shall be substituted by the words ‘Registrar or the High Court, as the case may be’-

• Section 19 – Effect of removal from Register for failure to pay fee for renewal;
• Section 27 – Power to cancel or vary registration and to rectify the register;
• Section 48 – Procedure where invalidity of registration is pleaded by the accused;
• Section 75 – Trade usage etc.,to be taken into consideration.

• The words ‘Appellate Board’ appearing in the following sections shall be substituted by the words ‘High Court’-

• Section 27 - Power to cancel or vary registration and to rectify the register;
• Section 31 – Appeals to the Appellate Board;

• Section 48 - Procedure where invalidity of registration is pleaded by the accused;

• Section 57 – Stay of proceedings where the validity of registration of the geographical indication is question etc.
• Section 58 – Application for rectification of register to be made to Appellate Board in certain cases;
• Section 63 – Death of party to the proceedings;
• Section 72 – Certificate of validity.

• The Ordinance changes the Heading of Chapter VII – Appeals to the Appellate Board – to ‘Appeals’.
   

Amendments to the Protection of Plant varieties and Farmers’ Rights Act, 2001

Section 56(1) of the Act provides that an appeal shall be preferred to the Tribunal within the prescribed period from any-

• order or decision of the Authority or Registrar, relating to registration of a variety; or
• order or decision of the Registrar relating to registration as an agent or a licensee of a variety; or
• order or decision of the Authority relating to claim for benefit sharing; or
• order or decision of the Authority regarding revocation of compulsory licence or modification of compulsory licence; or
• order or decision of the Authority regarding payment of compensation, made under this Act or rules made thereunder.

For this purpose the Ordinance makes the following amendments in the Act-

• Omissions of the following sections-

• Section 2(d) – Definition of ‘Chairman’;
• Section 2(n) – Definition of ‘Judicial Member’;
• Section 2(o) – Definition of ‘Member’;
• Section 2(y) – Definition of ‘Tribunal’;
• Section 2(z) – Definition of ‘Technical Member’.
• Section 44 – Exemption from fees;
• Section 54 – Tribunal;
• Section 55 –  Composition of Tribunal;
• Section 57(5) – The orders of the Tribunal under this Act shall be executable as a decree of a civil court.
• Section 58 – Procedure of Tribunal;
• Section 59 – Transitional provisions;
• Section 89 – Bar of jurisdiction;

• Section 2(q) – substituted for a new section 2(q) which defines the term ‘prescribed’-

• in relation to proceedings before a High Court, prescribed by rules made by the High Court; and

• in other cases, prescribed by rules made under this Act;

• The word ‘tribunal’ appearing in the following sections shall be substituted by the words ‘the High Court’ -

• Section 56 –  Appeals to Appellate Tribunal;
• Section 57 – Orders of Tribunal.

• The Ordinance changes the Heading of Chapter VIII – Plant varieties Protection Appellate Tribunal to ‘Appeals’.

Amendments to the Control of the National Highways (Land Traffic) Act, 2002

Section 5(1) of the Act provides that the Airport Appellate Tribunal established under section 28-I of the Airports Authority of India Act, 1994 shall, on and from the commencement of Part XIV of Chapter VI of the Finance Act, 2017, be the Tribunal for the purposes of this Act and the said Tribunal shall exercise the jurisdiction, powers and authority conferred on it by or under this Act.

The Ordinance transfers the powers of Tribunal to the Civil Courts including High Courts.  For this purpose the Ordinance has made the following amendments in the Act-

• Omissions of Sections-

• Section 2(a) – Definition ‘appointed day’;
• Section 2(l)  – Definition ‘Tribunal’;
• Section 5 – Establishment of Tribunal;
• Section 15 – Bar of jurisdiction;
• Section 16 – Procedure and powers of Tribunal;
• Section 18 – Execution of orders of Tribunal;
• Section 40 – Right of appellant to take assistance of legal practitioner;
• Section 41 – ‘ Finality of orders’- he words “or every order passed or decision made on appeal under this Act by the Tribunal” shall be omitted;
• Section 50(2)(f) – Powers of Central Government to make rules on the additional matters in respect of which the Tribunal may exercise the powers of a civil court under clause (h) of sub-section (3) of section 16;

• Section 2(da) has been inserted which defines the term ‘Court’ as the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction;
• The Heading of Chapter II is ‘Highways Administration and Tribunals etc.,’ has been changed as ‘Highways Administration’.
• Section 14 –‘Jurisdiction, powers and Authority of Tribunal’ has been substituted.  The newly substituted section provides that An appeal from any order passed, or any action taken, excluding issuance or serving of notices, under sections-

• Section 26 – Removal of unauthorized occupation;
• Section 27 – Recovery of cost of removal of unauthorized occupation and fine imposed;
• Section 28 – Right of access;
• Section 36 – Prevention of repair of damage to Highway;
• Section 37 – Prohibition to leave vehicles or animals in dangerous position;
• Section 38 – Construction on Highway land,

by the Highway Administration or an officer authorized on its behalf, as the case may be, shall lie to the Court.

Amendments to Finance Act, 2017

Part XIV of Finance Act, 2017 brought amendments to certain acts to provide for merger of tribunals and other authorities and conditions of services of Chairpersons, Members etc.,  The Ordinance also brings amendments to this part XIV of Finance Act, 2017 as detailed below-

Amendment to Section 184

• Section 184 has been substituted by a new section.  The newly substituted section 184 (1) (Qualifications, appointment etc., of Chairperson and Members of Tribunal) provides that The Central Government may, by notification, make rules to provide for the qualifications, appointment, salaries and allowances, resignation, removal and the other conditions of service of the Chairperson and Members of the Tribunal as specified in the Eighth Schedule.

A person who has not completed the age of fifty years shall not be eligible for appointment as a Chairperson or Member;

The allowances and benefits so payable shall be to the extent as are admissible to a Central Government officer holding the post carrying the same pay.

Where the Chairperson or Member takes a house on rent, he may be reimbursed a house rent subject to such limits and conditions as may be provided by rules.

• Section 184 (2) provides that the Chairperson and Members of a Tribunal shall be appointed by the Central Government on the recommendation of a Search-cum-Selection Committee constituted under sub-section (3), in such manner as the Central Government may, by rules, provide.
• Section 184(3) provides that the Search-cum-Selection Committee shall consist of-

• the Chief Justice of India or a Judge of Supreme Court nominated by him–– Chairperson of the Committee;
• two Secretaries nominated by the Government of India –– Members;
• one Member, who–

• in case of appointment of a Chairperson of a Tribunal, shall be the  outgoing Chairperson of the Tribunal; or
• in case of appointment of a Member of a Tribunal, shall be the sitting Chairperson of the Tribunal; or
• in case of the Chairperson of the Tribunal seeking re-appointment, shall be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India;

In the following cases, such Member shall always be a retired Judge of the Supreme Court or a retired Chief Justice of a High Court nominated by the Chief Justice of India, -           

• Industrial Tribunal constituted by the Central Government under the Industrial Disputes Act, 1947;
• Tribunals and Appellate Tribunals constituted under the Recovery of Debts Due to Banks and Financial Institutions Act, 1933;
• Tribunals where the Chairperson or the outgoing Chairperson, as the case may be, of the Tribunal is not a retired Judge of the Supreme Court or a retired Chief Justice or Judge of High Court; and

• the Secretary to the Government of India in the Ministry or Department under which the Tribunal is constituted or established – Member – Secretary.

• The Chairperson of the Committee shall have a casting vote.
• The Member-Secretary shall not have any vote.
• The Committee shall determine its procedure for making its recommendations.
• No appointment shall be invalid merely by reason of any vacancy or absence in the Committee.
• The Members shall be eligible for re-appointment.’
• The Central Government may a Member if they acquire any disqualifications.
• The Chairperson shall hold office for a term of four years or till he attains the age of 67 years whichever is earlier.

Amendment to Eighth Schedule

The Ordinance omitted the following entries in the Eighth Schedule-

• 10 – Airport Appellate Tribunal under the Airport Authority of India Act, 1994;
• 12 – Appellate Board under the Trade Marks Act, 1999;
• 14 -  Authority for Advance Ruling under the Income Tax Act, 1961;
• 15 – Film Certification Appellate Tribunal under the Cinematograph Act, 1952.