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S.184 (Finance Act) doesn't ipso facto prescribe any term of appointment for members/chairperson: SC

SECTION 184 (FINANCE ACT) DOES NOT IPSO FACTO PRESCRIBE OR INDICATE ANY TERM OF APPOINTMENT OR TENURE, EXCEPT TO ENUMERATE OUTER LIMITS OF TENURE TERMS AND MAXIMUM AGE FOR MEMBERS OR CHAIRPERSONS OF TRIBUNALS TO HOLD OFFICE: SC

The legislation leaves the matter to the rules that were to be framed under the said Finance Act. It is submitted in other words that the Act per se does not prescribe any terms, but rather indicates outer limits. (Para 8)



THE INTERNATIONAL ASSOCIATION FOR PROTECTION OF INTELLECTUAL PROPERTY (INDIA GROUP) V/S UNION OF INDIA

Miscellaneous Application No.2219/2020 In W.P.(C) No.1431/2019

Decided on 12th February 2021

A Three-Judge Bench of the Hon’ble Supreme Court comprising Justice L. Nageswara Rao Justice Hemant Gupta and Justice S. Ravindra Bhat dismissed the present application as it was devoid of any merit.

This judgment will dispose of an application by which directions are sought that till a new chairperson of the Intellectual Property Appellate Board (hereafter referred to as “the board” or “IPAB”), is appointed, the incumbent (whose tenure had been extended by interim orders of this court, up to 31.12.2020) should continue to function as Chairperson.

The applicant (the International Association for Protection of Intellectual Property [India Group]) seeks extension of the term of the incumbent Chairperson of the board stating that his appointment was made under section 89A of the Trademarks Act, 1999 (“TM Act” hereafter). The outer limit prescribing the age limit of the chairperson of the board is 70 years, in terms of Section 184.

Learned senior counsel for the Applicant submitted that: (i) With reliance on Section 84(2) of the TM Act and urges that there can be no bench without a judicial member. It is submitted that at the moment none of the members of the board are judicial appointees, but rather are technical members. It is submitted that the board does not even have a Vice-Chairman, who can in the absence of the Chairperson officiate as the acting Chairperson. Therefore, it is imperative that the clarifications and directions sought should be granted. (ii) It is contended in this context that the original appointment was made when the incumbent chairperson of the board was holding another office as chairperson of a quasi-judicial body. The order of appointment, originally made in 2017, no doubt did not indicate a tenure; however, according to applicable law (i.e. the Rules of 2017), the maximum tenure was 3 years.

The present incumbent to the office of Chairperson of the Board was appointed as the Chairman, Appellate Tribunal for Forfeited Property (ATFP). The terms and conditions under which he was appointed have not been placed on record; however, it appears that the appointment was soon after he demitted office as Judge of the Delhi High Court, sometime after September 2016. 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.

This Court concluded that “The submissions of the applicant, in the opinion of this court, are meritless. Section 84 (2) of the TM Act no doubt states that a bench of the board shall consist of a judicial and a technical member. However, it is “subject to other provisions” of the TM Act. Section 84(3) commences with a non obstante clause and stipulates, by Section 84(3)(a) that a chairperson may, “in addition to discharging the functions of the Judicial Member or Technical Member of the Bench to which he is appointed, discharge the functions of the Judicial Member or, as the case may be, the Technical Member, of any other Bench.” Thus, in the absence of any member, the chairperson may, if the occasion so arises, act as technical or judicial member. Section 87 enables a vice-chairperson, or as the case may be the senior-most member of the board to act as chairperson in the event of a vacancy to that position, or in the event of the incumbent’s inability to function in the post. Furthermore, Section 85 inter alia stipulates the qualifications for the post of chairperson or vice-chairperson. The relevant provisions of this section (extracted below) reveal that there is no bar for a 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 fact, the incumbent five technical members all hold legal qualifications (three of them holding masters in law, including one who holds a post-doctoral qualification). Four of these incumbent members were practising advocates in specialized fields of intellectual property (trademarks, and copyright) and one technical member (patents) had experience in the Patent Office. These members had practical legal experience of ten to fifteen years. The fact that they were appointed as technical members cannot obfuscate the fact that they are legally trained and qualified. Therefore, the argument that the technical members, in their position at the board as of now, cannot function without a chairperson, is unsustainable.” (Para 25)

The application was hence dismissed.



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