Facts
Whirlpool, based in the United States of America, applied for registration of their trade mark “whirlpool” to the Registrar of Trade Marks under the Trade Marks Act, 1940, which has since been replaced by the Trade and Merchandise Marks Act, 1958. The trade mark was duly registered and a Certificate of Registration was issued, which was further renewed twice. Since renewal was not obtained after 1977, it was removed from the Register but the appellant continued to publicise their trade mark “whirlpool” as also the company name through publications which had a wide circulation in this country and thus managed to maintain their reputation among the business circle including prospective customers and buyers. The trustees of Chinar Trust, applied for registration of the trade mark “whirlpool”, which was duly advertised by the Registrar in Trade Marks Journal pursuant to which the appellant filed their opposition. Their objections were dismissed by the Assistant Registrar and an appeal against this order was filed in the Hon’ble Delhi High Court.
In the meantime, “whirlpool” was registered as the trade mark of the Chinar Trust and a Certificate of Registration was granted to them. A petition for rectification and for removal of this entry from the Register had been filed by the appellant before the Registrar under Sections 45 and 46 of the Act and was still pending. The trust had also started using the trade mark “whirlpool” in relation to certain washing machines allegedly manufactured by them. The appellant, as owner of the trade mark “whirlpool”, filed a suit for passing off in the Hon’ble Delhi High Court with an application for temporary injunction which was granted and SLP against the same was dismissed. The appellant filed an application for renewal of the trade mark “whirlpool” and the Registrar allowed the renewal for three successive periods.
In the meantime, Chinar Trust through its attorneys, wrote to the Registrar to take suo moto action under Section 56(4) for cancellation of the Certificate of Renewal granted to the appellant. The Registrar, acting on that request, issued a notice to the appellant requiring it to show cause why the Certificate of Registration be not cancelled. Against this notice, the appellant filed a writ petition in the Hon’ble Bombay High Court which was dismissed due to presence of an effective and efficacious remedy. It is against this judgment that the appeal was filed in the Hon’ble Supreme Court.
Issue
Can the High Court exercise its Writ Jurisdiction in the presence of an effective and efficacious remedy available to the Petitioner?
Views
Under Article 226 of the Constitution, the High Court, having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition. But the High Court had imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
Held
The jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, especially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. The High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was whollywithout jurisdiction.
Editorial: One may also refer to judgments in Calcutta Discount Co. Ltd. v. ITO (1961) 41 ITR 191 (SC), A. V. Venkateswaran, Collector of Customs Bombay v. Ramcahnd Sobharaj Wadhwani & Anr. AIR 1961 SC 1506, K.S. Rashid & Son
- Income tax Investigation Commission (1954) 25 ITR 167 (SC) relied upon, upheld by larger bench (Three Judges) in Godrej Sara Lee Ltd. v.
Assistant Commissioner (AA) & Or. (2009) 14 SCC 338. Followed in Savita Kapila ( Legal Heir of late Shri Mohinder Paul Kapila)
v. ACIT (2020) 426 ITR 502/ 192 DTR 73/ 273 Taxman 148 (Delhi)(HC)
“Intolerance is itself a form of violence and an obstacle to the growth of a true democratic spirit.”
– Mahatma Gandhi