2002 PLP 773 (CLD)

Section 84 of the Trade Marks Act: 1. The Federal Government may, subject to the condition of previous publication by Notification in the official Gazette, make rules to carry out the purposes of this Act. 2. ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (a) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (b) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (c) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (d) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (e) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑.‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

(g) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑- (h) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (i) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑

‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ G) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑. (k) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (1) ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ (m) prescribe the fees to be paid under this Act. Section 23 of the General Clauses Act: Provisions applicable to making of rules or bye‑laws after previous publication‑‑where, by any Central Act or Regulation, a power to make rules or bye‑laws is expressed to be given subject to the condition of the rules or bye‑laws being made after previous publication, then the following provisions shall apply, namely:‑‑ (1) The authority having power to make the rules or bye laws shall, before making them, publish a draft. of the proposed rules or bye‑laws for the information of persons likely to be affected thereby. (2) The publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Central Government or the Provincial Government prescribes. (3) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration. (4) The authority having power to make the rules or bye laws and, where the rules or bye‑laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye‑laws from any person with respect to the draft before the date so specified. (5) The publication in the official Gazette of a rule or bye‑law purporting to have been made in exercise of a power to make rules or bye‑laws after previous publication shall be conclusive proof that the rules or bye‑law has been duly made. We have heard the learned counsel for the petitioners and the learned Dy. A.‑G. We have also noted the contents of the comments filed. We have noted that the respondents have denied the allegations in the petition and have insisted that the provisions of section 84 and section 23 for the General Clauses Act have not been violated. They have also insisted that the increase in fee was in keeping in consonance with the overall increased in prices, decline in the value of the rupee and the realistic assessment of overall fee structure that should be practically implemented. According to them nothing wrong has been done by the respondents. At the time of arguments the petitioners brought to our attention letters addressed by the respondents wherein it has been pointed out that the revised draft rules alongwith the revised fee schedule is to be promulgated soon. Old rules alongwith the Schedule shall be repealed. This letter is, dated 1st March, 2001. Keeping in mind this letter and also the fact that the impugned notification has not been issued strictly in consonance with section 84 (1) of the Trade Marks Act and that new rules alongwith the fee schedule are to be announced after soliciting objections/view‑points of the public we would hold that the impugned notification is issued without lawful authority. All amounts so received from August/October, 2000 uptill the date of this order shall be considered as past and closed transaction. The petitioners shall not make any demands for refund or adjustment. The old rates shall be applicable from the 12th April, 2001. These rates shall seize to have effect when the formalities as required under the law in respect of the revised rules and fees schedule is lawfully completed and formalized and announced. It will be in the interest of the respondents to formalize the revised rules and fees as soon as possible. The petition stands disposed of. Q.M.H /M.A.K./P‑34/K