THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) versus UNION OF INDIA

Citation: [2021] 1 S.C.R. 799 · Decided: 12-02-2021 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Dismissed

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Judgment (excerpt)

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   [2021] 1 S.C.R. 799
799
THE INTERNATIONAL ASSOCIATION FOR PROTECTION
OF INTELLECTUAL PROPERTY (INDIA GROUP)
v.
UNION OF INDIA
(Miscellaneous Application No.2219 of 2020)
In
(W.P.(C) No.1431 of 2019)
FEBRUARY 12, 2021
[L. NAGESWARA RAO, HEMANT GUPTA
AND S. RAVINDRA BHAT, JJ.]
Trademarks Act, 1999 – s.89A – Finance Act, 2017 – s.184 –
Continuation of the incumbent Chairperson – Application for –
Applicant sought directions for continuation of the incumbent
Chairperson of the Intellectual Property Appellate Board (IPAB),
till a new Chairperson is appointed – It was urged that s.89A inserted
in the TM Act stipulates that after the commencement of the Finance
Act, 2017, the term of office of appointments to the board would be
governed by the provisions of s.184 – In terms of s.184 of the 2017
Act, the outer limit prescribed the age limit of the Chairperson of
the board as 70 years – Applicant also relied on s. 84(2) of the TM
Act and urged that there could be no bench without a judicial member
– Held: On 26.07.2017, the present incumbent was given the
additional charge of the Chairman in the IPAB, i.e. the Board, in
terms of the then 2017 Rules, for a period of three years – However,
it was later amended for a period upto 21.09.2019 by the Central
Government – The Judgment in Roger Mathew was delivered on
13.11.2019 and it quashed the 2017 Rules – In terms of the interim
arrangement directed by the majority judgment in Rojer Mathew,
the appointments to Tribunals/Appellate Tribunals were to be “in
terms of the respective statutes before the enactment of the Finance
Bill, 2017..”, the amendments brought about through s.184, in terms
of the maximum age up to which any Member or Chairperson can
hold office in a Tribunal could not apply in the case of the Board –
The 2017 Rules had fixed the tenure limits of Chairpersons and
members – In terms of those Rules of 2017 the tenure of the present
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SUPREME COURT REPORTS
[2021] 1 S.C.R.
incumbent ended on 21.09.2019 – As the rules were later struck
down only on 13.11.2019 – At that time the prevailing interim orders
and clarifications in Kudrat Sandhu stated that the maximum tenure
of such members or chairpersons would be as stipulated in the parent
enactments, before the coming into force of the Finance Act, 2017,
or were expressed to be for a maximum of 3 years, in the case of
Chairpersons – The period had ended, so far as the applicant is
concerned, on 21.09.2019 – As far as submission that there could
be no bench without the judicial member is concerned, the s.85 of
the TM Act reveal that there is no bar for technical member to be
appointed as a regular Chairperson, provided she or he has for
“at least two years, held the office of a Vice-Chairperson” – In the
instant case, the incumbent five technical members all hold legal
qualifications – These members has practical legal experience of
ten to fifteen years – Therefore, the argument that the technical
members, in their position at the board as of now, cannot function
without a Chairperson, is unsustainable.
Dismissing the application, the Court
HELD: 1. The present incumbent to the office of
Chairperson of the Board was appointed as the Chairman,
Appellate Tribunal for Forfeited Property (ATFP). On 26.07.2017,
he was also given the additional charge of the Chairman in the
IPAB, i.e. the Board, in terms of the then extant 2017 Rules, for
a period of three years – or until further orders, whichever was
earlier. The order of appointment – as Chairperson of the Board
– was amended on 29.12.2017 by the Central Government. This
later order stated that the tenure of his appointment as Chairman
of the Board was upto 21.09.2019 or till further orders, whichever
was earlier. [Paras 17 and 18][812-B-C; 813-A-B]
2. The arguments advanced on behalf of the applicant that
the incumbent chairperson continued to remain in office in view
of the declaration of law by Rojer Mathew, is insubstantial and
cannot be countenanced. The other reason for not accepting this
contention is that if, for a moment it were to be assumed that in
terms of the interim arrangement directed by the majority
judgment in Rojer Mathew, the appointments to Tribunals/
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Appellate Tribunals were to be “in terms of the respective statutes
before the enactment of the Finance Bill, 2017..”, the amendments
brought about through Sections 184, in terms of the maximum
age up to which any Member or Chairperson can hold off

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