Karnataka High Court
Sri Narendra Reddy Thappeta vs Controller General Of Patents on 25 September, 2012
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 25th DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE MOHAN SHANTANAGOUDAR
WRIT PETITION NO.7393 OF 2012 (GM-RES)
BETWEEN :
SRI NARENDRA REDDY THAPPETA
AGED 48 YEARS
S/O SRI CHANDRASEKHARA REDDY
158 PHASE ONE, ADARSH PALM MEADOWS
RAMAGUNDANAHALLI
BANGALORE-560066
... PETITIONER
(By Sri: NARENDRA REDDY-PARTY-IN PERSON
P B RAJU -AMICUS CURIAE FOR PETITIONER)
AND
CONTROLLER GENERAL OF PATENTS
DESIGNS AND TRADEMARKS
OFFICE OF THE CONTROLLER GENERAL
PATENTS, DESIGNS AND TRADEMARKS
BOUDHIK SAMPADA BHAWAN
S M ROAD, ANTOP HILL
MUMBAI-400037
... RESPONDENT
(By Sri: PRAKASH T HEBBAR FOR R1)
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THIS WRIT PETITION IS FILED UNDER ARTICLE 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE IMPUGNED ORDER PASSED BY THE
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RESPONDENT, DATED 22ND FEBRUARY 2012 PRODUCED
AT ANNEXURE H.
THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:-
ORDER
The petitioner has sought for quashing Annexure-H dated 22.2.2012 passed by the respondent removing the petitioner's name from the Register of Patent Agents, on the ground that he was not citizen of India as on the date of his registration as patent agent in India.
The records reveal that the petitioner was born in India on 7th August 1964. His place of birth is Madanapalli in Andhra Pradesh State. He obtained an Indian passport on 9th February 1996. The validity of the passport
- 3- was upto 7th May 2005. After obtaining the passport, the petitioner seems to have moved on to the United States for studies. After coming back to India after completion of studies, the petitioner got himself registered as patent agent under the Patents Act, 1970 in Patent Office as per Annexuere-J on 16th February 2001. Thereafter, he started practicing as patent agent. However, a complaint seems to have been filed on 26th October 2009 against the petitioner in the office of respondent alleging that the petitioner is not an Indian citizen and that his name is wrongly entered in the Register of Patent Agents. The respondent sought explanation from the petitioner on such complaint. The petitioner submitted his reply on 2nd November
- 4- 2009 contending that as on the date of registration as patent agent, he was an Indian citizen. Certain other factors were also brought to the notice of the respondent by the petitioner such as, he is an overseas citizen of India after 2006 w.e.f. 30th March 2006 and that overseas citizen of India is entitled to reside in India on par with the status of the non-resident Indians. However, the respondent chose to remove the petitioner's name from the Register of Patent Agents on the ground that he was not an Indian citizen as on the date of registration of his name as patent agent.
2. As aforementioned, the certificate of registration was issued in favour of the petitioner as patent agent on 16.2.2001.
- 5- Section 126 of the Patents Act, 1970 reads thus:-
Qualifications for registration as patent agents:- (1) A person shall be qualified to have his name entered in the register of patent agents if he fulfils the following conditions, namely:-
(a) he is a citizen of India;
(b) he has completed the age of 21 years;
(c) he has obtained a [degree in science, engineering or technology from any university established under law for the time being in force] in the territory of India or possesses such other equivalent qualifications as the Central Government may specify in this behalf, and, in addition,-
[***]
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(ii) has passed the qualifying examination prescribed for the purpose; [or]
(iii) has, for a total period of not less than ten years, functioned either as an examiner or discharged the functions of the Controller under section 73 or both, but ceased to hold any such capacity at the time of making the application for registration;]
(d) he has paid such fee as may be prescribed.
((2) Notwithstanding anything contained in sub-section (1), a person who has been registered as a patent agent before the commencement of the [Patents (Amendment) Act, 2005] shall be entitled to continue to be, or when required to be re-registered, as a
- 7- patent agent, on payment of the fee as may be prescribed.]"
From the above, it is clear that a person shall be qualified to have his name registered as patent agent, if he is a citizen of India having 21 years age and obtains the degree as mentioned in Section 126. Sub-section(2) of Section 126 is over-riding clause. Sub-section (2) of Section 126 makes it clear that notwithstanding anything contained in sub-
section (1), a person who has been registered as a patent agent prior to commencement of the Patents(Amendment) Act, 2005, shall be entitled to continue as a Patent agent on payment of fee as may be prescribed, which means, a person who has got himself registered in the first clause of Section 126, he
- 8- is entitled to continue as patent agent on payment of fee. Section 130 of Patents Act, 1970 deals with removal from register of patent agents and restoration. Section 130 reads thus:-
Removal from register of patent agents and restoration- (1) The [Controller] may remove the name of any person from the register when [he] is satisfied, after giving that person a reasonable opportunity of being heard and after such further inquiry, if any, as [he] thinks fit to make-
(i) that his name has been entered in the register by error on account of misrepresentation or suppression of material fact;
(ii) that he has been convicted of any offence and sentenced to a term of imprisonment or has been guilty of
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misconduct in his professional capacity which in the opinion of the [Controller] renders him unfit to be kept in the register.
(2) The [Controller] may, on application and on sufficient cause being shown, restore to the register the name of any person removed therefrom."
3. From the above, it is clear that if the Controller is satisfied that the patent agent's name is entered in the Register of Patents by error on account of misrepresentation or by suppression of material fact, such patent agent's name can be removed. Thus the only question that is to be decided is as to whether the petitioner got himself registered as patent agent on 16.2.2001 by suppression of material fact or by misrepresentation.
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4. There cannot be any dispute that the petitioner had completed 21 years of age and he had obtained all necessary educational qualification including obtaining degree etc., The only question is as to whether he was citizen of India on 16.2.2001 or not. The documents produced in this writ petition prima-facie makes it clear that the petitioner was a citizen of India as on 16.2.2001. The petitioner obtained American passport on 17th March 2004 as per Annexure-B. It seems, thereafter the petitioner got his Indian passport cancelled as he acquired United States Nationality subsequently. It is relevant to note that the petitioner travelled from Bangalore(India) to Malaysia in 2003. The
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Malaysian Immigration Officers had provided single entry visa to the petitioner on 19th September 2003 and the same was stamped on Indian passport. The petitioner was shown as Indian National as on 19th September 2003 in such visa issued by Malaysia. There is nothing on record to show that as to when the petitioner lost Indian citizenship after 19th September 2003. However, the document at Annexure-B i.e., the American passport issued in favour of the petitioner vide Annexure-B makes it clear that the petitioner was American National atleast on 17th March 2004.
5. From the aforementioned facts, it is clear that the petitioner was an Indian National atleast on 19th September 2003 on which date,
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he was shown as Indian National in the visa stamped by Indian Government. Therefore, prima-facie as on the date of obtaining patent agent certificate by the petitioner i.e., on 16.2.2001, he was an Indian National. Section 7A of The Citizenship Act, 1955 refers to registration of over-seas citizens of India. Section 2(ee) of The Citizenship Act,1970 defines overseas citizen of India. Pursuant to the aforementioned provisions, the petitioner was issued with certificate of registration as overseas citizen of India on 30th March 2006 as per Annexure-D. From that day onwards, he is an overseas citizen of India, though not an Indian National, inasmuch as, he had lost Indian Nationality from the date of issuance of
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American passport as per Annexure-B on 17th March 2004. The notification issued by Government of India, gazetted on 11th April 2005 as per Annexure-K (S.O.542(E)) in exercise of the powers conferred by sub-section (1) of Section 7B of The Citizenship Act, 1955 declares that the overseas citizens of India are entitled to certain rights. One of the right conferred to overseas citizens of India under the said notification issued pursuant to the provisions of Section 7A r/w Section 7B of The Citizenship Act, is that such person will be treated on par with non-resident Indians in respect of all facilities available to them in economic, financial and educational fields except in matters relating to the acquisition of agricultural and plantation properties. Thus,
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the petitioner being overseas citizen of India shall be treated on par with the non-resident Indian in respect of all facilities available to them in economic, financial and educational fields. Therefore, the petitioner is prima-facie justified in contending that he is entitled to practice as patent agent.
6. Be that as it may, all these material which are produced alongwith the writ petition were not produced before the respondent and consequently the respondent has passed the impugned order without reference to the records produced before this Court.
7. In view of the above, this Court is of the considered opinion that the impugned order needs to be set-aside and the matter needs to
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be reconsidered by the respondent after hearing the petitioner. By the said process, no prejudice or injustice will be caused to any of the parties.
8. Hence, the impugned order Annexure-H dated 22.2.2012 stands quashed. It is open for the respondent to reconsider the matter after notice to the petitioner and after hearing the petitioner. If notice is issued by the respondent afresh, it is open for the petitioner to substantiate his case by producing all the relevant records before the respondent.
Petition is allowed accordingly. This Court places on record the valuable services rendered by Amicus Curiae- Sri. P.B.
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Raju. Learned Amicus Curiae shall be paid Honorarium of `15,000/- by the Registry of the Court.
Sd/-
JUDGE *mn/-