TMI Blog1975 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the additional petition claiming the same reliefs. In fact the petitioner in Writ Petition No. 38 of 1970 (briefly the company) has also been impleaded as respondent No. 4 in Writ Petition No. 37 of 1970. 2. According to the petitioners the business of manufacturing bidis according to special formulae and processes and of marketing and selling them under the pictorial representation of Chhatrapati Shivaji and under the trade name Chhatrapati Shivaji was first started in about the year 1928 by one Raghunath Ramchandra Sable, the father of petitioners 2 and 4. It is stated that Raghunath Ramchandra Sable adopted the said pictorial representation and the said trade name in response to a call of the then popular leaders to adopt the name of Chhatrapati Shivaji in relation to all articles designed for public use or consumption with a view to popularise and keep before the public eye the image of the national hero, Chhatrapati Shivaji. By a declaration dated November 25, 1938, filed with the Registrar of Assurances at Bombay, petitioner No. 2 obtained protection for the user of the said pictorial representation of Chhatrapati Shivaji and for the use of the said trade name as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body of persons which bears any name, or (b) register a trade mark or design which bears any emblem or name, or (c) grant a patent in respect of any invention which bears a title containing any emblem or name; if the use of such name or emblem is in contravention of Section 3. (2) If any question arises before a competent authority whether any emblem is an emblem specified in the Schedule or a colourable limitation there of, die competent authority may refer the question to the Central Government, and the decision of the Central Government thereon shall be final. 7. Section 5 which imposes penalty for contravention of Section 3 of the Act runs as follows: 5. Any person who contravenes the provisions of Section 3 shall be punishable with fine which may extend to five hundred rupees. 8. Section 8 reads as under: Power of the Central Government to amend the Schedule. 8. The Central Government may, by notification in the Official Gazette, add to or alter the Schedule and any such addition or alteration shall have effect as if it had been made by this Act. 9. Section 9 empowers the Central Government to make rules to carry out the purposes of the Act. Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dity of the Act and in particular of Sections 3, 4 and 8 of the Act as well as of the Notification of the Central Government dated March 16, 1968. They have also prayed for quashing the Notice of the Registrar dated October 16, 1969. A rule nisi was obtained on March 2, 1970, with interim stay preventing the Government from enforcing the provisions of the Act. 12. Mr. Bal, learned Counsel for the petitioners, submits that the Act is void for want of legislative competence of the Parliament. According to him the subject matter of the legislation relates to trade and commerce and, therefore, falls squarely within entry No. 26 of List II of the Seventh Schedule to the Constitution. Hence the Parliament is not competent to make the law in question. On the other hand, the learned Solicitor General, contends that the pith and substance of the legislation as gathered from the preamble, the marginal note of Section 3 and the illustrations furnished by the Schedule is the preservation of sanctity of the names and emblems of international and national entities, and not Trade and commerce within the State . Hence the residuary entry 97 of List I will be attracted. Alternatively, he subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Organisation for prevention of the use of its name (and abbreviations), emblem and official seal. Instances have also come to light of the use in India (and abroad) of the Indian National Flag and emblem and of the names or pictorial representations of Mahatma Gandhi and other national leaders, for commercial and trade purposes and in a manner likely to offend the sentiments of the people. The pro visions of the Indian Trade Marks Act, 1940, Indian Patents and Designs Act, 1911, Indian Merchandise Marks Act, 1889, and the Indian Companies Act, 1913, are not adequate to prevent these abuses. The Bill seeks to prevent the improper use of these names, emblems, etc., for the purpose of trade, business, calling, profession, patent or design, and to impose a penalty for misuse of emblems, etc., specified in the Schedule and empowers the Central Government to make additions and amendments in the Schedule as and when necessary. 17. 'What is in a name' may not always be innocent. Logically, proper names are not connotative but have often gathered a content, a halo, around them sometime for all times to come. National or international significance gets attached to certain names o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Notification dated March 16, 1968 of the Central Government under Section 8 cannot, therefore, be invalid. The objection on the score of Article 14 is of no avail. 19. There is also no merit in the contention that Section 3 and 4 violate the provisions of Article 19(1)(f) and (g) of the Constitution. The petitioners' right to trade in bidis is not at all interfered with by the legislation. Section 3 in terms provides for enabling the affected persons to adjust their business or affairs inasmuch as the Central Government can permit some time to alter their emblems, designs, etc. to carry on with their trade. Indeed in the present case the petitioners on their own application obtained an extension of time presumably under Section 3 of the Act and, therefore, cannot complain on that score. There is built-in safeguard in Section 3 itself for mitigating any hardship to persons or any rigour of the law. The provisions are accordingly regulatory in nature and even, if at all, impose only reasonable restrictions on the exercise of the petitioners' right under Article 19(1)(f) and (g). Section 4 is a consequential provision and validly co-exists with Section 3. 20. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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