Madras High Court
Indian Institute Of Human Resources ... vs National Institute Of Human Resources ... on 3 October, 1991
Equivalent citations: (1992)2MLJ168
JUDGMENT Mishra, J.
1. This appeal under Clause 15 of the Letters Patent is directed against the judgment in Application No. 6887 of 1990 in CS. No. 1307 of 1990, National Institute of Human Resources & Development by Proprietor S. Muthu Indian Institute of Human Resources Development by P. Govindarajan, granting interim injunction restraining the appellant/respondent, its agents, men and representatives from using the name of "Indian Institute of Human Resources Development" in their business and passing off teaching materials in that name, which according to the respondent/applicant-plaintiff is deceptively similar to "National Institute of Human Resources Development" a proprietary concern of the respondent/plaintiff.
2. In the plaint in C.S. No. 1307 of 1990, the plaintiff/respondent has claimed that it had conceived of a new educational project and evolved a new original orientation of both the subjects of study and methods of instruction of inventive nature and designed the institution "National Institute of Human Resources Development" in the context of national objectives of education and training for simultaneous development of knowledge skill and aptitude. It thus started the business at Santhome High Road, Madras wherein, according to it, the defendant/appellant was employed as its legal adviser on a monthly remuneration of Rs. 500. The latter, according to the plaintiff/respondent had free access to the records, notes, study materials and other uniqueness of the Institution's management. He, however, taking advantage of his fiduciary capacity had easy and full access to all records and study materials, notes and other printed materials, took away many copies and extracts with the fraudulent intention to use the same as his own and accordingly came out with a press advertisement in newspapers that he had established "Indian Institute of Human Resources Development", a business of his own. Alleging that the defendant/appellant has dishonestly taken away the plaintiff/respondent's business and that he has been fraudulently passing off the same, the plaintiff/respondent sought the relief of a permanent injunction restraining the defendant by himself, his servants, agents or anyone claiming through him from using the plaintiffs trade name and mark "National Institute of Human Resources Development" or any other similar or coloural expression and words for his Institute or any other allied business and passing off of the name as that of the plaintiff, by using the name and style of "Indian Institute of Human Resources Development" or similar expression or words in any manner of passing off his institute as that of the plaintiff, by using its name, besides other reliefs.
3. He also made an application for interim injunction as above in Application No. 6887 of 1990.
4. The respondent/appellant was issued notices and it (he) submitted a return stating that it (he) had not committed any act of passing off a alleged by the plaintiff/respondent and had not infringed its name or the trade mark of the plaintiff institute. It, however, admitted that its Proprietor, Govindarajan was engaged as the legal adviser for the plaintiff/respondent, but contended that the trade name or trade mark of the Institute were entirely different from that of the plaintiff/respondent and that the words "Institute of Human Resources Development" were only descriptive words to denote the business in which no right of monopoly could be claimed by anyone.'
5. Maruthamuthu, J., who heard the injunction petition and who has passed the impugned order (judgment) has said:
A perusal of the two advertisements made by the applicant and also the respondent and the other features and the documents placed at present shows that the respondent has infringed the trade name and the trade mark and the goodwill of the applicant and has committed an act of passing of as pleaded by the applicant. Undeniably, the respondent is imparting the course teaching human resources development as it is done by the applicant. It is the applicant who has started the institute earlier in point of time than the respondent. The applicant has obtained registration of the trade name and trade mark "National Human Resources Development Institute", 1988 whereas the respondent has started the institute only in the end of 1990 and he has given almost all the details and the information in his advertisement as it is seen in the advertisement made by the applicant. The qualification prescribed for admission of the candidates for the course, the duration of the course the nature of the course taught and their fitment after undergoing the course have all been stated by the respondent as those of the applicant. We find here that except the word "National" which is prefixed in the trade name of the applicant and the word "Indian" which is prefixed in the trade name of the respondent, everything is found to be the same. There will be nothing wrong on the part of the applicant if he would state in the circumstances that the respondent has wrongfully adopted the strikingly similar trade name and the trade mark of the applicant in order to pass off the institute of the respondent as that of the applicant. Mere adding or changing the common words does not take away the offensive infringement. The applicant will not be wrong if he would state that there is every scope for reasonable apprehension that the graduates who would like to apply to the applicant are misled or confused and that it would be difficult for any unwary person to distinguish between the two names.
After saying as above and referring to certain case law on the point, Maruthamuthu, J. has further said:
In the present case, we find that the applicant has got his copy right registered and has been running the business earlier to the respondent. The applicant may, therefore, be said that he has become the owner of the copyright and the trade name "National Institute of Human Resources Development". One important circumstance that has to be noted here is that the respondent who was in the employ of the respondent as a legal adviser has started a similar business as that of the applicant almost under the same trade name, but with the same object and purpose and has fraudulently copied down the activities of the applicant. In fact, the main grievance of the applicant is that the respondent who was a legal adviser and was in a fiduciary capacity had easy access to all the records and study materials, printed materials etc. and has clandestinely taken away many copies and extracts with the intention of using the same as his own and that is how the respondent has issued the advertisement in the newspaper.
...It is not possible to accept the contention of the respondent that the words "Institute of Human Resources Development" which are found in common in both the trade names are merely descriptive and are of common use and that the use of these words by the respondent is not likely to deceive the public....The respondent was not correct in alleging that the action of the applicant amounts to an interference in the fundamental right of the respondent under Article 19(1)(g) of the Constitution of India. It must be stated that there is reasonable restriction even on the fundamental right and the restriction has been held to be unconstitutional. The respondent may be free to carry out a coaching institute, but the law requires that the respondent shall not assume or arrogate himself the name and style of another or any name which is a colourable name similar to that of another. I am satisfied that the applicant has made out a prima facie case and that the balance of convenience is in favour of grant of an order of injunction in favour of the. applicant.
6. Maruthamuthu, J. has thus found:
(i) both the respondent/appellant and the applicant/plaintiff/respondent are engaged in trade or business of imparting training and education to the students of a certain eligibility and awarding post-graduate diploma;
(ii) the plaintiff/respondent has got its trade name registered as "National Institute of Human Resources Development";
(iii) the respondent/appellant was employed with the plaintiff/respondent as legal adviser; and
(iv) it has started its own business in the name of "Indian Institute of Human Resources Development" and has been passing off the tradeor business of the plaintiff/respondent to the students of a certain eligibility and awarding post-graduate diploma to them.
7. He has found that there is fundamental right under Article 19(1)(g) of the Constitution of India to trade or do business in some subjects of study by instrument of innovative nature, but in view of the similarity in the name of the two institutions, the respondent/applicant's right stood concised.
8. The Trade and Merchandise Marks Act, 1958 provides for the registration and better protection of trade marks and for the prevention of the use of fraudulent marks on merchandise. It has defined "trade mark" in Section 2(1)(v) to mean:
(i) in relation to Chapter X (other than in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right as proprietor to use the mark, and
(ii) in relation to the other provisions of this Act, a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right, either as proprietor or as registered user, to use the mark whether with or without an indication of the identity of that person, and includes a certification trade mark registered as such under the provisions of Chapter VIII.
Chapter X of the act contains provisions in respect of offences, penalties and procedure. Section 81 therein speaks of penalty for falsely representing a trade mark as registered (excluded from the definition). Section 76 says, "meaning of applying trade marks and trade description (1) A person shall be deemed to apply trade mark or mark or trade description to goods who -
(a) applies it to the goods themselves, or
(b) applies it to any package in or with which the goods are sold, or expressed for sale, or had in possession for sale or for any purpose of trade manufacture; or
(c) places, encloses, or annexes any goods which are sold, or exposed for sale, or had in possession for sale or for any purpose of trade or manufacture, in or with any package or other thing to which a trade mark or mark or trade description has been applied; or
(d) uses a trade mark or mark or trade description in any manner reasonably likely to lead to the belief that the goods in connection with which it is used are designated or described by that trade mark or mark or trade description; or
(e) in relation to the goods used a trade mark or trade description in any sign, advertisement, invoice, catalogue business letter, business paper, price list, or other commercial document and goods are delivered to a person in pursuance of a request or order made by reference to the trade mark or trade description as so used.
2. A trade mark or mark or trade description shall be deemed to be applied to goods whether it is woven in, impressed on, or otherwise worked into, or annexed or affixed to, the goods or to any package or other thing.
9. Registered trade mark" has been defined in Section 2(1)(r) of the Act to mean a trade mark which is actually on the register. "Register" is defined in Section 2(1)(o) of the Act to mean the Register of Trade Marks referred to in Section 6. Section 6 says that a record called the Register of Trade Mark shall be kept at the Head Office of the Trade Marks Registry, wherein shall be entered all registered trade marks with the names, addresses and descriptions of the proprietors, notifications of assignments and transmissions, the names, addresses and description of registered users, disclaimers, conditions, limitations and such other matters relating to registered trade marks as ay be prescribed.
10. We are not referring to various other provisions of the Act at this stage, but we cannot fall to notice that for the purpose of this a trade mark, description or mark as such is in respect of goods and goods only and under Section 2(1)(g) 'goods' is defined to mean anything which is the subject of trade or manufacture and unmistakably something which is transferable; it is something saleable i.e., to say by transfer of property in the goods. This is so understood because any other meaning to the provisions of this Act will cause violation of the registration of a particular goods. Section 8 of the Act says that a trade mark may be registered in respect of any or all of the goods comprised in a prescribed class of goods and that any question arising as to the class within which any goods fall shall be determined by the Registrar whose decision in the matter shall be final. The word "prescribed" is defined in Section 2(n) to mean 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 the Act. Such prescription is available in Rule 26 of the Trade and Merchandise Mark Rules, 1959, which states:
(1) Every application for the registration of a trade mark shall be in respect of goods comprised in one class only of the Fourth Schedule.
(2) In the case of an application for registration in respect of all the goods included in a class or of a large variety of goods in a class, the Registrar may refuse to accept the application unless is satisfied that the specification is justified by the use of the mark which the application has made or intends to make if and when it is registered.
(3) Applications for the registration of the same trade mark in different classes shall be treated as separate and distinct applications, and in all cases where a trade mark is registered under the same official number for goods in more than one class, whether on conversion of the specification under Rule 105 or otherwise, the registration in respect of the goods included in each separate class shall be deemed to be a separate registration for all the purposes of the Act.
The Fourth Schedule of the Schedule to the Rules contains the names of the goods and refers to various kinds of articles or apparatus, But nowhere mentions education, skill or training as a commodity qualifying as good under the Act.
11. We would have chosen to confine ourselves to the extent of maintainability of a suit claiming such a trade mark and its alleged violation, had we not noticed a certain objection to or claim of the fundamental right under Article 19(1)(g) of the Constitution in this regard. We propose, for the said reason, to venture into this aspect of the matter in the hope of finding out whether such a right can at all be claimed in the name of a so-called educational institution or in the so-called imparting of education and training culminating in the so-called post graduate diploma.
12. Article 19(1)(g) enshrines one of the rights of freedom to all citizens of the country to practise any profession or to carry on any occupation, trade or business. This Article, however, in Clause (6) states:
Nothing in Sub-cluase (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said Sub-cluase, and, in particular (nothing in the said Sub-cluase shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to -
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial of citizens or otherwise.
13. The extent of the meaning the words "trade, or business or commerce" should receive, has been considered by the Supreme Court in State of Bombay v. R.M.D. Chamarbaugwala .
14. In State of Bombay v. R.M.D. Chamarbaugwala , the Supreme Court, by keeping the scope of Articles 301 to 305 also in view, noted that Article 19(1)(g) in very general terms guarantees to all citizens the right to carry on any occupation, trade or business and Clause (6) of Article 19 protects legislation, which may in the interest of the general public impose reasonable restriction on the exercise of the right conferred by Article 19(1)(g) and observed likewise Article 301 declares that trade, commerce and intercourse throughout the territory of India shall be free but subject to the provisions of Articles 302 to 305 of the Constitution. When it was argued before the Supreme Court that the word "trade or business or commerce" should be read in their widest applitude as meaning any activity which is undertaken or carried on with a view to earning profit and contended that there is nothing in those two Articles 19(1)(g) and 301, which may qualify or cut down the meaning of the critical words, the Supreme Court held there is no justification for not excluding from the meaning of those words activities which may be looked upon with disfavour by the State or the Court as injurious to public morality, or public interest. The Supreme Court observed:
On this argument it will follow that criminal activities undertaken and carried on with a view to earning profit will be protected as fundamental rights until they are restricted by law. Thus there will be a guaranteed right to carry on a business of hiring out goondas to commit assault or even murder, of house breaking, of selling obscene pictures or trafficking in women and so on until the law curbs or stops such activities. This appears to as to be completely unrealistic and incongruous. We have no doubt that there are certain activities which can under no circumstances be regarded as trade or business or commerce although the usual forms and instruments are employed therein. To exclude those activities from the meaning of those words is not to cut down their meaning at all but to say only that they are not within the true meaning of those words. Learned Counsel has to concede that there be no "trade" or "business" in crime but submits that this principle should not be extended and that in any event there is no reason to hold that gambling does not fall within the words "trade" or "business" or "commerce" as used in the Article under consideration." The Court in coming to the said conclusion took notice of laws in various other countries and the public policy which should always inhere in interpreting our Constitution.
The Court said so after noticing the avowed purpose of our Constitution to create a Welfare State. The Constitution Bench thus laid down the law to read in the freedom of trade of business guaranteed under Article 19(1)(g) such elements of public policy which would promote the welfare of the State and not to give to those words any extended or wider meaning so as to confer upon unscrupulous traders and businessmen a right to make profit at the cost of innocent people for whose welfare alone the State and the Constitution exist. We are aware that the Constitution Bench was dealing with some provisions of the Bombay Lotteries and Prize Competitions Control and Tax Act and was mainly concerned with the definition of "Prize Competition" in the said Act which was sandwitched in between gambling on the one hand and announcement of prize competition on the other hand. We are also aware of the other judgments of the Supreme Court in which sale of lottery tickets has been held to be a business and a right under Article 19(1)(g) of the Constitution. But we shall presently show that none of these judgments have taken away the effect of the principles stated by the Constitution Bench of the Supreme Court in State of Bombay v. R.M.D. Chamarbaguwala .
15. The subsequent judgments in which reference to the judgment in State of Bombay v. RM.D. Chamarbaguwala , has been made, have not taken any exception to the. principle stated therein. In Nashirwar v. State of Madhya Pradesh , Bench of the three Judges of the Supreme Court, while considering whether there was any fundamental right of a citizen to carry on trade or to do business in liquor, has said:
There are three principal reasons to hold that there is no fundamental right of citizens to carry on trade or to do business in liquor. First, there is the police power of the State to enforce public morality to prohibit trades is power of the State to enforce an absolute prohibition of manufacture of sale of intoxicating liquor. Article 47 states that the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Third, the history of excise law shows that the State has the exclusive right or privilege of manufacture or sale of liquor.
This judgment thus took notice of the history of prohibition laws and stated that the fact that liquor which brings about moral degradation and adverse effect on health i.e.spiritousliquorwould fall beyond the fundamental right under Article 19(1)(g) of the Constitution.
16. In State of Andhra Pradesh v. Guntakkal Toddy Tappers Co-operative Society , a three Judges Bench of the Supreme Court, however, want by a general statement of law that the right to trade in intoxicating drugs is also a right to carry on any trade or business within the meaning of Article 19(1)(g), but added:
At the same time, it has been held by this Court in Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner Ajmer , that for determining reasonable restrictions within the meaning of Article 19(6) of the Constitution on the right given under Article 19(1)(g) regard must be had to the nature of the business and the conditions prevailing in a particular trade. State has power to prohibit trades which are illegal or immoral or injurious to the health had welfare of the public and there is no inherent right in a citizen to sell intoxicating liquors by retail. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commissioner Ajmer , it was held that the charge of licence fee by public auction is more in the nature of a tax than a licence fee though it is described as a licence fee. One of the purposes of regulation was to raise revenue and revenue is to be collected by the grant of contracts to carry on trade in liquor and these contracts are sold by auction. In this backdrop of the legal position, no challenge is available against the Andhra Pradesh Act and the Rules made thereunder.
17. We have omitted to refer to two other judgments on this law, but we must, for the reason of an ostensible and contrary statement of law, refer to a judgment of the Supreme Court in Krishnan Kumar v. J.&.K State . In that case Constitution Bench of the Supreme Court was considering whether dealing in liquor is business and a citizen has a right to do business in that commodity and is thus the fundamental right of a citizen under Article 19(1)(g) of the Constitution. It observed:
A combined reading of Clause (1) and (6) of Article 19 makes it clear that a citizen has a fundamental right to carry on any trade or business, and the State can make a law imposing reasonable restrictions on the said right in the interests of the general public. It is, therefore, obvious that unless dealing in liquor is not trade or business, a citizen has a fundamental right to deal in that commodity. The learned Advocate General contended that dealing in liquor was not business or trade, as the dealing in noxious and dangerous goods like liquor was dangerous to the community and subversive of its morale. The acceptance of this broad argument involves the position that the meaning of the expression 'trade or business' depends upon and varies with the general acceptance of the standards of morality obtaining at a particular point of time in our country. Such an approach leads to incoherence in thought and expression. Standards of morality can afford a guidance to impose restrictions, but cannot limit the scope of the right. So too, a Legislature can impose restrictions, on, or even prohibit the carrying on of a particular trade or business and the court, having regard to the circumstances obtaining at particular time or place may hold the restriction or prohibition reasonable. The question, therefore, is, what is trade or business? Though the word 'Business' is ordinarily more comprehensive than the word' trade', one issued as synonymous with the other. It is not necessary to bring out the finer points of distinction between the said two concepts in this case. In the words of S.R. Das, J. as he then was, in Narain Swadeshi Weaving Mills v. The Commissioner of Excess Profits Tax , the word 'business' connotes some real, substantial and systematic or organised course of activity or conduct with a set purpose. Even accepting this test, if the activity of a dealer, say, in ghee is business, then how does it cease to be business if it is in liquor? Liquor can be manufactured, brought or sold like any other commodity. It is consumed throughout the world, though some countries restrict or prohibit the same on economic or moral grounds. The morality or otherwise of a deal does not affect the quality of the activity though it may be a ground for imposing a restriction on the said activity. The illegality of an activity does not affect the character of the activity but operates as a restriction on it. If a law prohibits dealing in liquor, the dealing does not cease to be business, but the said law imposes a restriction on the said dealing. But it is said that the decisions of this Court have held that dealing in liquor is not a business or trade within the meaning of Article 19 of the Constitution. In T.B. Ibrahim v. Regional Transport Authority , it was held that restriction placed upon the use of the busstand for the purpose of picking up or setting down passengers to or from outward journeys could not be considered to be an unreasonable restriction on the right to carry on any profession, trade or business of the appellant and, therefore, Article 268 was not in any way repugnanttoArticle 19(1)(g) of the Constitution. In that context, Ghulam Hasan, J. speaking for the court, observed:
There is no fundamental right in a citizen to carry on business wherever he chooses and his right must be subject to any reasonable restriction imposed by the executive authority in the interest of public convenience.
This Court did not say that there was no fundamental right to do business but only held that a citizen could not claim that his fundamental right could not be restricted in public interests. Nor the decision in Cooverjee B.Bharucha v. Excise Commissioner and the Chief Commissioner Ajmer , laid down any such proposition. There the question was whether the Excise Regulation I of 1915 imposed a reasonable restriction within the meaning of Article 19(6) of the Constitution on the right given under Article 19(1)(g) thereof to carry on the business in intoxicating liquors. This Court held that the said Regulation was a reasonable restriction within the meaning of Article 19(6) of the Constitution. But in the course of the judgment, Mahajan, C.J., who spoke for the Court gave an (sic)tract from the judgment of Field, J. in Corley v. Christensen (1989) 34 Law. Ed. 620 at p.623. In that extract, the following passage is found.
The police power of the State is fully competent to regulate the business-to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail, it is not a privilege of a citizen of the Slate or of a citizen of the united States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited, or be permitted under such conditions as will limit to the utmost its evils" After citing the entire passage, this Court concluded thus, These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. The provisions of the regulation purport to regulate trade in liquor in all its different spheres are valid.
It will be seen that the said passage from the judgment of Field, J., has nothing to do with the construction of Article 19(1)(g) of the Constitution of India. The learned Judge was considering the scope of the 'police power' and in that context the said observations were made. This Court applied those observations in considering the reasonableness of the restrictions imposed on the fundamental rights. Indeed, perusal of the entire judgment shows that the Court conceded the fundamental right but held that the said regulations operated as a reasonable restriction on the said rights.
The earlier Constitution Bench judgment in the case of State of Bombay v. R.M.D. Chamarbaguwala , however, was referred to in Krishnan Kumar v. J.& K. State , in these words:
This Court in State of Bombay v. R.M.D. Chamarbaguwala , upheld the validity of the Bombay Lotteries and Prize Competition Control and Tax Act, 1948 (Bom.LIV of 1948) as amended by the Bombay Lotteries and Prize Competition Control and Tax (Amendment) Act (Bombay Act XXX of 1952). One of the questions raised was whether gambling was business or trade or commerce within the meaning of Article 19(1)(g) of the Constitution or Article 301 thereof. Das, C.J., after considering the various decisions, observed thus:
We find it difficult to accept the contention that those activities which encourage a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebt ness and eventually disrupt the peace and happiness of his humble home could possibly have been intended by our Constitution makers to be raised to the status of trade, commerce or intercourse and to be made the subject matter of a fundamental right guaranteed by Article 19(1)(g)". This decision only lays down that gambling is not business or trade. We are not concerned in this case with gambling.
Apparently said, as we have noticed earlier, any systematic or organised course of activity or conduct with a set purpose will be business guaranteed under Article 19(1)(g) of the Constitution. While doing so, we reject the contention that a business noxious and dangerous to the community and subversive of its morals will naturally be a business guaranteed under Article 19(1)(g)." In this judgment, the Supreme Court clearly found no reason to reject the approach based on the principles of public policy to give right to trade under Article 19(1)(g) a limited meaning to exclude all such trade or business which had the tendency of encouraging a spirit of reckless propensity for making easy gain by lot or chance, which lead to the loss of the hard earned money of the undiscerning and improvident common man and thereby lower his standard of living and drive him into a chronic state of indebtedness and eventually disrupt the peace and happiness of his humble home.
18. Coming to the establishment of a technical institution and their administration and considering whether this will be a trade or business guaranteed under Article 19(1)(g) or not, we have some observations of the Supreme Court in Sidhrabhai v. State of Gujarat A.I.R. 1963 S.C. 540. A Constitution Bench of the Supreme Court while considering whether interference by State Government by an executive order with the right of hare management of an educational institution does not amount to infringement of right to property under Article 19(1)(f) as it existed before Amendment Act incidentally said:
The word property' in Article 19(1)(f) must doubtless be extended to all those recognised types of interest which have the insignia or characteristics of proprietary rights, and a Mathadhipati has those rights, but it cannot be said that the petitioners in this case have any such proprietary rights as are vested in the Mahant of a Math. Nor does the principle of Sri Dwarkanath Tewariv. State of Bihar A.I.R. 1959 S.C. 249, apply to this case.....No attempt is made by the order of the State to deprive the petitioners of their right to property and fundamental freedom guaranteed by Article 19(1)(f) of the Constitution is therefore not violated. Nor is the right of the petitioners to practise any profession, or to carry on any occupation, trade or business, guaranteed under Article 19(1)(g) of the Constitution infringed by the impugned rules and directions.
19. A Bench of the Bombay High Court, however in The Sakharkherda Education Society v. State A.I.R. 1969 Bom. 91, distinguished the above judgment of the Supreme Court, by making a comparison of the right under Article 30 with that under Article 19(1)(g). One of the arguments before the Court was that whatever may be the reason of non-recognition of any educational institution, the matter cannot fall within Article 19. Reliance in support of the said argument was placed upon the judgment of the Supreme Court in Sidhrajbhai v. State of Gujarat A.I.R 1963 S.C. 540. After referring to the facts of the case, the Bombay High Court commented in that case that the Government was conducting examinations not under any statutory provisions, but under its executive powers, and that the school Board Examinations are held under the Maharashtra Secondary Education Board's Regulations and, therefore, by mere executive action, under the rule-framing power, the Government cannot deprive the petitioners of their right to conduct the school and send pupils for the said examination, and held:
In our judgment, this decision cannot be regarded as an authority for holding that if the effect of the rule is such as to deprive the petitioners of their right to conduct the school, Article 19(1)(g) cannot be violated.
Dealing at one place with the right under Article 19(1)(g) and Article 30(1) of the Constitution, the Bombay High Court observed that the scope of Article 19(1)(g) and Article 30 will very much differ. Article 19(1)(g) is a general guarantee of a particular kind of fundamental right in wide words, while Article 30 is intended to guarantee certain rights to minorities an unless in the enumeration of the rights, the right to education was mentioned probably, it would have been excluded. The difference in wording, therefore, cannot support this contention.
20. In Bapuji Educational Association v. State , a question had arisen whether the right to establish and administer educational institution would be a right under Article 19(1)(g) of the Constitution of India. That was a case in which the Karnataka Legilsature had introduced certain laws prohibiting the collection of capitation fee. Observing, however, as to the right under Article 19(1)(g), learned Single Judge of the Karnataka High Court, referred to the judgment of the Supreme Court in the case of Sidharajbhai v. State of Gujarat A.I.R. 1963 S.C. 540, particularly the words in the said judgment:
Nor is the right of the petitioners to practise any profession, or to carry on any occupation, trade or business guaranteed under Article 19(1)(g) infringed by the impugned rules and directions.
and stated:
The above portion of the judgment of the Supreme Court, as rightly submitted for the petitioners does not support the stand taken by the State. The clear implication of the observations on the other hand, is, that the right is included in Article 19(1)(g) but was not infringed in that case. The Supreme Court did not say that Article 19(1)(g) could not be invoked. The decision of the Supreme Court, in State of Maharashtra v. Lok Shikshan Sanstha , also indicated that but for the suspension of Article 19 during that period, the right of administration of an educational institution could have been traced to Article 19(1)(g). The matter is however placed beyond any controversy in the seven judge Bench decision of the Supreme Court in B.W.S.S.B. v. Rajappa . In that case the Supreme Court overuled its earlier decision in University of Delhi v. Ramnath , and held that activity of running an educational institution was industry. The Supreme Court was considering the scope and meaning of the word 'Industry' used in the Industrial Disputes Act as defined inter alia to mean 'any business of service' the Supreme Court considered the question as to whether an educational establishment can be regarded as industry. The Supreme Court expressed in clearest terms that establishing and running of an educational institution was an industry for the reason it was not only a business, but was also a service. Para. 121 of that judgment reads:
The final ground accepted by the Court is that educations is a mission and vocation, rather than a profession or trade or business. The most that one can say is that this is an assertion which does not prove itself. Indeed, all life is a mission and a man without a mission is spiritually still-born. The high mission of life in the manifestation of the divinity already in man. To christen education as a mission even if true, is not to negate its being an industry. We have to look at educational activity from the angle of the Act, and so viewed the ingredients of education are fulfilled. Education is, therefore, and industry and nothing can stand in the way of that conclusion.
That being the position, the word 'business' in Article 19(1)(g) cannot be considered as excluding the right to establish and administer educational institution."
21. The case law has thus as above indicated in no uncertain terms that any organished activity1 including establishment and administration of an educational institution will be a business and fall under Article 19(1)(g) of the Constitution. But merely because it is an organised activity of a sort of business applied not only to the education, but every other kind of trade or business, it cannot be said that it will fall under Article 19(1)(g). Such activity to qualify for the right under Article 19(1)(g) must not be opposed to any public policy and must not be an act in the nature of an offence. We have yet another reason to take this view. It will always be correct to say that trade or business emanating from a contract will be a right guaranteed under Article 19(1)(g) of the Constitution. But no such right can be claimed under a void agreement, such as an agreement void for uncertainty, void by way of wager, void in restraint of marriage, void in restraint of trade or void in restraint of legal proceedings etc., Section 23 of the Contract Act goes further and says:
The consideration or object of an agreement is lawful unless.
It is forbidden bylaws; or is of such a nature that, if permitted it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another, or the court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful Every agreement of which the object or consideration is unlawful is void.
Illustrations under this Section of the Contract Act are helpful in understanding the effect of it. One illustration states that. "A, who is B's muktar, promises to exercise his influence as such with B in favour of C, Aand C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral". In another illustration it says:
A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code (XLV of 1860).
In another illustration, it states:
A being agent for landed proprietor agrees for money without the knowledge of his principal to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by cancealment by A, on his principal.
We have to understand that if in a case where a fraud is contemplated but not peretrated the court may think that such a contract is fraudulent and shall never allow a fraud to be perpetuated. These illustrations give us some insight to understand and we accordingly hold that the freedom under Article 19(1)(g) apart from and subject to the restrictions of laws made under Article 6 of the Constitution, shall always be subject to such restriction that public policy would create and if someone is engaged in a trade or business and contemplated a fraud or is regarded as immoral or opposed to public policy he shall not have any fundamental right under Article 19(1)(g) to claim.
22. We have already noticed that it will be difficult to bring the petitioner's right under the Trade and Merchandise Marks Act, 1958. But the Monopolies and Restrictive Trade Practices Act has a wide area to cover. It has defined 'Agreement' in Section 2(a) to include any arrangement or understanding whether or not it is intended that such agreement shall be enforceable (Apart from any provisions of this Act) by legal proceedings and 'Trade' under Section 2(s) to mean any trade, business, industry, profession or occupation relating to the production supply, distribution or control of goods and includes the provision of services.
23. There are two other relevant definitions in the Act. Section 2(e) defines 'goods' to mean goods as defined in the Sale of Goods Act, 1930 and to include products manufactured processed or mined in India, shares and stocks and in relation to goods supplied distributed or controlled in India and goods imported into India. In Section 2(r) "service" has been defined to mean service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying the news or other information, but excludes the rendering of any service free of charge or under a contract of personal service. This act provides how any new undertaking can be established and says in Section 22:
No person or authority, other than Government shall after the commencement of this act establish-
(i) any new undertaking which when established would become an inter-connected undertaking of an undertaking to which this part applies; or
(ii) add any new unit or division to an undertaking to which this part applies.
This Act in Section 36-A defines "unfair trade practices" as follows:
In this part, unless the context otherwise requires "Unfair Trade Practice' means a trade practice which for the purpose of promoting the sale use or supply of any goods or for the provisions of any services, adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services, whether by eliminating or restricting compentition or otherwise namely;
(1) the practice of making any statement, whether orally or in writing or by visible representation which-
(i) falsely represents that the goods are of particular standard, quality, grade composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second hand renovated re-conditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship approval performance, characteristics accessories uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes a false or misleading representation concerning the need for or the usefulness of any goods or services
(vii) gives to the publicany warranty or guarantee of the performance efficacy or length of life of a product or of any goods that is not hased on an adequate or proper test thereof;
Provided that where a defence is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defence shall lie on the person raising such defence.
24. It is noticeable that any false representation, whether oral or in writing about the standard, quality and grade or service of the goods or about sponsorship approval or affiliation will be an unfair trade practice.
25. Before, however, we proceed further let us know what the appellant and the respondent have been doing. The defendant/appellant has issued an impressive prospectus in its name saving, Indian Institute of Human Resources Development was founded in 1990 to accelerate speedy evolution of the new concept of Human Resources Development as per the new national policy on education. The Human Resources Development concept is moving ahead repidly and therefore there is a need for a comprehensive course. The H.R.D. concept is dealt in detail by several managerial experts and academicians. Though several industitures of national level are rendering valuable services, Indian Institue of Human Resources Development is taking a new outlook on the subject. The curricular Programme will aim at providing education and training methods to the executives and labour force to sope up the needs of Industry or User System. The Institute-encourages the students, to discover their potential and capability, to render services to the Society, Industry and nation at large.
Though some of the executives hold very good positions in middle and top Management in organisations, necessity arises to undergo specialised training in Human Resources Development in order to increase the production output. Young graduates who are aiming at a good career in Management and who are desirous to march forward and render a Yeoman service to the Nation expect proper guidance from Educational Institutions to choose their career, To cater to these needs, Indian Institute of Human Resources Development launches an 18 months Post Graduate Diploma Course in Human Resources Development through correspondence to facilitate the executives and young and ambitious graduates in remote parts of the country to improve their managerial efficiency and prospects.
The Indian Institute of Human Resources Development has submitted the contents of the course and the impact the course may create to the Ministry of Human Resources Development, Government of India, to consider granting or recognition. The papers are under consideration.
After stating about the academic programmes etc, the prospectus reads about the scope of the diploma subjects taught in the diploma cover a wide area such as H.R.D. Function, Personnel Function, Training Industrial Relations arena, laws protecting the labour force and above all General Administration. It says successful candidates of the Diploma course are eligible to get appointed/elevated as H.R.D. Manager, Industrial Relations Manager, Personal Manager, Labour Officer, Labour Welfare Officer, Training Officer, Personal Executives and Administrative Officer in Central or State Government Departments, Public Sector undertakings, Industries, commercial and service organisations and adds in another place:
In all matters concerning admission, conducting the H.R.D. course and awarding the P.G. Diploma the decision of the Institute shall be final. Candidates found to have furnished incomplete or false information will not be admitted. The Institute reserves the right to change any candition pertaining to the admission, contents of the course, the fees charged etc., given in the prospectus should these be deemed necessary in the interest of the students, the Institute and the course.
The prospectus thus invites students who satisfy an eligibility criteria to participate in its curriculum and receive instructions to finally qualify and receive P.G. Diploma. To elude students and more persons to apply and pay the fees stated in the prospectus, there is also an attraction of prices and awards for Academic Excellence, that the "Best Student Award" will be presented to the student who secures maximum marks in the course, which would carry a gold medal, prices and merit certificates in a Convocation Ceremony and a student who secures maximum marks in any of the eleven subjects would be awarded "Gold Medal" for proficiency in that subject and other awards and prizes.
26. The plaintiff/respondent has also issued a prospectus saying that the Institute is holding copy right from the Government of India and stating that it would conduct P.G. Diploma Examination in Human Resources Development. In the language used in the Prospectus P.G.D. H.R.D. Diploma is the formal examination conducted as an external examination by the Institute which is under recognition by the Government of India for the purpose of recruitment to managarial posts and services under the Government of India. This Diploma also specifically covers the provisions of the Labour Welfare Officers Rules of State Governments enabling the candidates for the post of Labour Welfare Officers. PGDHRD-Diploma has been specifically designed for the employed graduates to those who have been put in the General Administration in Central/State Governments, Central/State Government undertakings and private organisations so as to enable them to take up the following assignments as their future careers such as; Industrial Relation Officers, Personnel Officers, Training Officers, Labour Welfare Officers, Public Relation Officers and Materials Managers/Purchase Officers.
27. Both the plaintiff/respondent and the defendant/appellant have to their credit some correspondence with the Officers in the Department of Education of the State Government and the Ministry of Human Resources Development, Government of India. They have something to do with the All India Council for Technical Education which is a body established under Act 52 of 1987 for proper planning and co-ordinated development of the Technical Education system throughout the country. They do not either have any recognition or affiliation from any University, Government or any other Authority yet they have issued invitations to people at large inviting them to join their Institutions and receive P.G. Diplomas. Are they not self-styled institutions promising great future to the people to join their institutions representing to them that the training imparted by them shall improve their qualifications and diplomas awarded by them will be a valuable security? We are informed that the Bar and indeed our attention has been drawn to certain MRTPC orders by the Commission appointed under the said Act under which in similar circumstances actions have been taken against self-styled universities and the institutions. In one of such orders in UTPE No. 329 of 1988 MRTC order dated 1.12.1989 the commission held an enquiry and found that Maithili Vishwavidyapeeth. Darbhanga was a self-styled university awarding degrees and that the self-styled university was indulging in unfair trade practices within the meanings of Section 36A(1)(ii)(vi) of the MRTP Act. They also held that the practice of awarding so called degrees was prejudicial to the public interest and particularly the interest of students who after receiving the degrees found that the degrees were not of much use. The commission in that case ordered that they should not represent in any manner, that they were a university that they were empowered to confer degree and that degrees awarded by them were recognised by Government of India for employment purposes and further directed them to pay the costs of the proceedings. In the case of another institute which described itself as Indian Institute of Management Studies the commission started suo motu proceedings. The Institute had been using high sounding words to attract the students to join the so called course of study in their Institute and receive the diploma. The Commission took the view that 'Diploma' was a document conferring honour or privilege and that such honours could be conferred by a competent authority which was the creation of law. It accordingly pronounced that the word 'Diploma' as used by the said institute in the prospectus was objectionable and was an unfair trade practice.
28. What follows from our discussion above is that both the plaintiff/respondent and the defendant/appellant have indulged in unfair trade practice. They have both made false representations in their respective prospectus. They have utilised the name of the so called Institute established by them to elude students to join their respective Institute and promised to give them diplomas, which they are not entitled to award. Their activities have the effect of contemplating a fraud and if they have award/diplomas they have perpetrated fraud upon the students who joined the Institute in the hope of obtaining the diploma of some use.
29. They have taken up the idea of awarding P.G. Diplomas granted by the University of Madras. They have thus created a sort of a parallel authority of their own and imitated the role which the Universities perform. Here again they have acted to say the least to cheat, the students. A teeth less organisation like All India Council for Technical Education is of no use. Indeed, there are two such institutions before us. There may be hundreds of them tomorrow. We do not know if there are many already in existence. We have before us only an interlocutory order passed in a suit on the original side of this Court under which the defendant/appellant had been restrained from using the socalled trade name of the plaintiff/respondent. We, however, felt that it was necessary to note the nature of the right claimed by the plaintiff/respondent in the suit and the alleged infringement of the said right by the defendant/appellant. That is how we learnt more about it and that is how we have been able to find that none of them has got any right to trade in that name, at least for the purpose of the Trade and Merchandise Marks Act, 1958. It is in course of that very investigation into the facts that we have found both of them have indulged in unfair trade practice and contemplated and perpetrated fraud in the name of awarding P.G. Diploma in Human Resources Development. An order limited to the matter under appeal will be of no consequence, for if we dismiss the appeal we allow the plaintiff/respondent to continue his unfair trade practice and further perpetuate fraud. If we allow the appeal, we sanction unfair trade practice of the defendant/appellant. We in such a situation, should do neither and we do not do that. This is a fit case in our opinion that this Court should take judicial notice of the activities of the plaintiff/respondent as well as the activities of the defendant/appellant and restrain them from proceeding with their so-called P.G. Diploma courses and to direct them to desist from awarding any diplomas, stating clearly and publicly that they do not have any authority to issue any such diploma and to apologise publicly that they committed a mistake in issuing prospectus for awarding P.G. Diplomas. If they do not do so within a reasonable time, we must ask the commission appointed by the M.R.T.P. Act to take suo mom cognizance of their activities and proceed against them in accordance with law. We shall not be wrong on the facts of this case if we expect from the State Government and the Central Government action against the plaintiff/respondent as well as the defendant/appellant.
30. Before we come to the close of the judgment, we may refer to some of the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950, which prohibits use of emblem or name including any abbreviation of a name included in the schedule to the Act. Item 7 of the schedule says, Any name which may suggest or be calculated to suggest:
(i) the patronage of the Government of India or the Government of a State: or connection with any local authority or any corporation or body constituted by the Government under any law for the time being in force.
Human Resources Development is a name given to a Ministry of the Government of India. It has been also included as a name in the Madras University in one of the Degrees, namely Degree of Bachelor of Human Resources Development or diplomas including the diploma in the said name of the Madras University. By a minor change in the name of the Institute and the diploma, in the name of Human Resources Development, both the plaintiff and the defendant have created an impression that their diploma has got to do something with either degree or diploma like that of the Madras University or something which the Central Government has chosen to recognise. We have already noticed that in the syllabus of the Indian Institute of Human Resources Development, it is claimed that "it has submitted the contents of the course and the impact the course may create, to the Ministry of Human Resources Development, Government of India, to consider granting of recognition" and that "the papers are under consideration. 'In the syllabus issued by the National Institute of Human Resources Development also there are words suggesting that the diploma granted would benefit the diploma-holders in getting jobs in Central Government and State Government services, Central/State Government Undertaking and private organisations. So much so that it is said, P.G.D. H.R.D. Diploma is the formal examination conducted as an external examination by the Institute which is under recognition by the Government of India for the purpose of recruitment to managerial posts and services under the Government of India. This Diploma also specifically covers the provisions of the Labour Welfare Officers Rules of State Governments enabling the candidates for the posts of Labour Welfare Officers.
It may not be a false statement to say that the studies prescribed by them would benefit the students. But it is surely incorrect to suggest that diplomas issued by them would in any manner benefit the students in securing jobs or benefiting them in their service. We have already taken notice of the existence of the All India Counsil for Technical Education and the role which the Technical Education Council has to play and found that it is teethless. Yet, it may not be out of place to add that the Technical Education Council has been empowered to lay down norms and standards for courses, curricula physical and instructional facilities, staff pattern, staff qualifications, quality instructions, assessment and examinations and to grant approval for starting new technical institutions and for introduction of new courses or programmes in consultation with the agencies concerned. It is conceded before us that neither the Plaintiff Institute nor the Defendant Institute have the approval of the Technical Education Council for starting their institutions and for courses or programmes of studies introduced by them. They have thus chosen to act against the prohibitions under the Emblems and Names (Prevention of Improper Use) Act, 1950 as well as the All India Council for Technical Education Act, 1987.
31. To say the least thus the appellant and the respondent have acted against the specific prohibition under the Monopolies and Restrictive Trade Practices Act inasmuch as they have been indulging in unfair trade practice within the meaning of Section 26A(1)(ii)(vi) of the Act. They have in this process acted against the public interest particularly the interest of students, who after receiving diplomas, may find that the diplomas were not of much use. They have, if not committed fraud or cheating punishable under the Indian Penal Code, undoubtedly perpetrated a fraud within the language employed in Section 23 of the Indian Contract Act in as much as they have made representation in their syllabus to the students inviting them to pay the demanded fee for studies and finally receiving diplomas in Human Resources Development. In this connection, their representation to the students is against the public policy reflected in the All India Council for Technical Education Act, 1987 and the Emblems and Names (Prevention of Improper Use) Act, 1950. They have thus out-stepped the limitation of their fundamental right under Article 19(g) of the Constitution of India.
32. We do not propose to detain ourselves for finding out our jurisdiction as in L.P.A. No. 123 of 1990 Vidya Charan Shukla v. Government of Tamil Nadu Olympic Association by General Secretary and Ors. (judgment dated 2.1.1991) Full Bench of this Court has already pronounced that if any source of power of this Court is not traceable in one or the other provision of the law of the land, it can always be traced in Section 151 of the Code of Civil Procedure and in Articles 215 and 225 of the Constitution of India read with Section 4 of the Code of Civil Procedure. This Court's power and special jurisdiction thus is the same as that of the King's Bench or Queen's Bench of England and it is inherent in its constitution that it shall make such orders which shall be promoting the ends of justice. We are conscious that we heard an appeal against an order of injunction. We are also conscious that in that sense, our jurisdiction is limited, but then as we have observed earlier, by affirming the impugned order granting injunction, we shall allow the plaintiff to continue their offensive activity and by setting aside the order, we shall permit both the plaintiff and the defendant to continue with their offensive activities, that no Court of law can afford to do. If there is any duty assigned to a Court, it is to undo every wrong and ensure that only lawful activities are allowed.
33. We, for the said reason, have no hesitation in restraining both the plaintiff and the defendant from (1) issuing diploma in Human Resources Development:
(2) admitting the students on the basis of their respective representations in the syllabus and continuing their activities in the form and manner in which they have conducted their activities until now-until their curricula is approved by the council under the All Indian Council for Technical Education Act, 1987 and so long it is offending the prohibition under the Monopolies and Resprictive Trade Practices Act and Section 23 of the Indian Contract Act.
34. We should have disposed of the Appeal with the directions as above, but for our concern that such parties do indulge in such activities because appropriate authorities in the Slate Government, the University of Madras, the Central Government and the Council of Technical Education constituted under the Act 52 of 1987, have not acted as expected from them. It is high time that they rise to the occasion and take immediate steps, check the establishment and growth of such institutions. Mushroom growth of Engineering, Medical Pharmaceutical, Teachers Training institutions, etc. prompted several Governments to make laws to prohibit establishment of such institutes and ensure that only genuine institutions were recognised by the Universities and/or Boards or Governments. It appears that the plaintiff and the defendant found that there was no special law prohibiting the establishment of such institutions as theirs and thus indulged in unfair trade practice and acted against public policy. We do not think and cannot think that the Government of Tamil Nadu is not concerned with the establishment and growth of such institutions and that if informations are received in right quarters, it shall not promptly act to forbid any such unfair trade practice in the cause of education. Similarly, we believe that the Central Government shall not ignore existence of such institutions and take necessary action to stop establishment and growth of institutions of this kind. If laws have to be made, they have to be made now. To-day, such institutions may be few. To-morrow, their number will be large. To-day only a few are exploited. To-morrow, a large section of our people shall be subjected to exploitation by such institutions. We for the said reason propose to recommend for appropriate legislation if that be necessary and accordingly recommend to the Central Government and the State Government of Tamil Nadu to take steps for appropriate legislation on this subject.
35. The Commission under the Monopolies and Restrictive Trade Practices Act, we found, has taken notice of the institutions that were granting diplomas like the plaintiff and issued necessary directions prohibiting them from indulging in such practices and for mending their ways. The two Institutes (the plaintiff/respondent and the defendant/appellant) are in our opinion such that they should not have escaped the scrutiny of the Commission. They however appear to have escaped until now. The Commission shall only perform its duties by taking appropriate action and ensure that they do not indulge fn the practice leading to the diploma in Human Resource Development.
36. As a result of our conclusion above, we dispose of the appeal on the following terms:
(1) The plaintiff/respondent as well as the defendant/appellant are restrained from admitting students on the basis of the prospectus syllabus issued by them and awarding diplomas to them-in-short, restrained from indulging in the activities on the basis of their respective prospectus and syllabus;
(2) The Commission under the Monopolies and Restrictive Trade Practices Act, 1969, we observe, should forthwith take cognizance of the activities of the plaintiff/respondent and the defendant/appellant and proceed in accordance with law to ensure that they do not indulge in such activities in future.
(3) The State Government of Tamil Nadu and the Central Government, we observe, may take up the issue at the appropriate level and if necessary maek laws to prohibit establishment of such institutions unless they conform to the rules and regulations made in this behalf by the competent authority.
37. Before we part with our judgment, we record our appreciation to the assistance given to us by Mr. Habibullah Badsha, Senior Advocate and Mr. N.A.K. Sarma, who assisted the Court as Amicus Curiaeand Mr. U.N.R. Rao, learned Senior Advocate for the appellant and Mr. T. Chengalvarayan, learned Senior Counsel for the respondent, who have given to us such assistance and co-operation without which we would not have been able to do full justice in the case. We record our indebtedness to them.
38. A further fact, however, which has arisen on the conclusion of our judgment in the Court is that the parties have expressed that they would withdraw from such activities which are offensive if a reasonable time is granted to them. While we do not propose for the said reason to modify our order, we are inclined to fix a time limit and permit the plaintiff and the defendant to withdraw from such activities within such time stipulated so that if actions are taken by the Commission under the Monopolies and Restrictive Trade Practices Act and/or any other competent authority, their institutions can say that they have withdrawn from such offensive activities. A period of one month for the said purpose in our view will be more than enough. Both the plaintiff and the defendant thus can withdraw from such activities and accordingly issue necessary statement to the public through the press and other methods as they had adopted for inviting applications and publishing their syllabus and prospectus. If they do so, we observe, the Commission under the Monopolies and Restrictive Trade Practices Act, in course of any action, may take a lenient view and may not recommend any punishment. Accordingly in case they withdraw from the activities as above, the State Government/Central Government may take a lenient view and exonerate them.
39. It is a fit case, in our opinion, in which, we should direct that the parties, will bear their own costs and each party will deposit a sum of Rs. 2,500 in Court within a period of two weeks from to-day. The amount so deposited shall be paid equally to the two Senior Counsels, namely Mr. Habibullah Badsha and Mr. N.A.K. Sarma by the Court forthwith.