Kerala High Court
Kp.Vijayakumar @ Kalamandalam Vijayan vs State Of Kerala on 15 September, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20784 of 2010(W)
1. KP.VIJAYAKUMAR @ KALAMANDALAM VIJAYAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.K.A.JALEEL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :15/09/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C.) No.20784 of 2010 (W)
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Dated, this the 15th day of September, 2010
J U D G M E N T
Challenge in the writ petition is against Ext.P7, a notice dated 29/06/2010 issued by the 2nd respondent.
2. The petitioner is the Director, Kerala Kathakali Centre, Fort Cochin, an organisation established in 1994 for promoting Kathakali, an ancient and traditional art of Kerala. It is stated that the petitioner is conducting regular shows of Kathakali and admission to the show is restricted by selling tickets and that the show attracts many, including foreign tourists.
3. On coming to know of the name "Kerala Kathakali Centre" used by the petitioner, and on the allegation that the said name offends the provisions of the Emblems and Names (Prevention of Improper Use) Act, 1950, (hereinafter referred to as the Act for short) the 2nd respondent issued Ext.P7 notice. In the notice it is stated that the use of the aforesaid name is prohibited by Section 3 of the Act, since such practice misleads unsuspected gullible WP(C) No.20784/2010 -2- consumers, especially the tourists. On that basis, the petitioner was directed either to avoid or discontinue the use of such name and style forthwith. It is this notice, which is under challenge in this writ petition.
4. Contention of the learned counsel for the petitioner is that the object of the organisation "Kerala Kathakali Centre" is to promote the traditional art of Kathakali. It is contended that the name used by him does not suggest nor is it calculated to suggest, the patronage of Government of India or Government of Kerala to attract the provisions of the Act.
5. In the counter affidavit filed by the 2nd respondent, the stand taken is that in pursuance to the provisions contained in the Act and on the directions issued by Government of India, the 1st respondent has issued Ext.R2(a) circular, requiring prevention of usage of names, which are prohibited under the provisions of the Act. It is stated that since the name "Kerala Kathakali Centre" used by the petitioner is one which is prohibited by virtue of the provisions contained in the Act, Ext.P7 notice was issued.
6. In the light of the above contentions, all that this Court is WP(C) No.20784/2010 -3- called upon to consider is whether the view taken by the 2nd respondent that the name used by the petitioner is prohibited by virtue of the provisions contained in the Act warrants interference in a proceedings under Article 226 of the Constitution of India.
Section 3 of the Act reads as under:-
"3. prohibition of improper use of certain emblems and names:- Notwithstanding anything contained in any law for the time being in force, no person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the purpose of any trade, business, calling or profession, or in the title of any patent, or in any trade-mark or design, any name or emblem specified in the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as may be authorised in this behalf by the Central Government."
Item No.7(i) of the Schedule to the said Act reads as under:-
"7. Any name which may suggest or be calculated to suggest:-
(i) the patronage of the Government of India or the Government of a State."
7. If the name, "Kerala Kathakali Centre" used by the petitioner is found to be capable of at least suggesting patronage of the Government of India or of a State, then Section 3 is attracted. Admittedly, the name of the petitioner's organisation includes the WP(C) No.20784/2010 -4- name 'Kerala'. It is also an undisputed fact that most of the State Government undertakings are having names which include the name of the State. In such a situation, prima facie, there is nothing unreasonable to take the view that the name of the petitioner's organisation suggests that it has the patronage of the State Government. Therefore, if such a view has been taken by the Officers responsible for the implementation of the provisions of the Act, it cannot be said to be a perverse one, warranting interference of this Court in a proceedings under Article 226 of the Constitution of India. Further, the contention of the petitioner that Section 3 of the Act is not attracted to his case is a factual one, which the petitioner will have to establish, if any proceedings under the Act are initiated against him. In that view of the matter, I am not inclined to entertain the writ petition.
8. Learned counsel for the petitioner then contended that under Section 6 of the Act, no prosecution for any offence punishable under the Act shall be instituted, except with the previous sanction of the Central Government or of any Officer authorised in this behalf by general or special order of the Central WP(C) No.20784/2010 -5- Government. As such, what is issued to the petitioner is Ext.P7, which is only a notice and the question of applicability of Section 6 of the Act arises only when prosecution is launched. Therefore, this contention does not arise for consideration at this stage.
The writ petition fails and is accordingly dismissed leaving open all contentions on the merits of the controversy.
Sd/-
(ANTONY DOMINIC, JUDGE) jg