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Natco Pharma Ltd. v/s Union of India & Others

    Writ Petition No. 7470 of 2019

    Decided On, 05 April 2019

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE DEBANGSU BASAK

    For the Appearing Parties: Ranjan Bachawat, M. Dasgupta, B. Sinha, Soumya Sen, M. Mukherjee, S. Roychowdhury, Rabi Prosad Mookerjee, Sunil Singhania, S.K. Kapur, D. Ghosh, S. Dutt Majumder, D. Rahut, Gitika Suri, Advocates.



Judgment Text

1. The petitioner is aggrieved by the actions taken by the Controller while exercising jurisdiction under the Patents Act, 1970.

2. Learned senior advocate appearing for the petitioner submits that, an application for grant of patent is being objected to by the writ petitioner. He submits that, there are four other objectors to the application for grant of patent, apart from the petitioner. His client is the fifth objector. As an objector, the writ petitioner has a right to cross-examine any witness which the applicant for grant of patent relies upon in the proceeding for grant of patent. He refers to Section 79 of the Patents Act, 1970 and (Sri. Rajesh Kumar Banka v. The Union of India & Ors., (2014) 4 CalLT 603) in support of his contentions. He submits that, the Controller has reserved judgment in the application for grant of patent on March 18, 2019. The Controller is yet to decide on the application made by the writ petitioner for cross-examination of the witnesses produced by the applicant for grant of patent. He submits that, without the Controller taking a decision on such application, the writ petitioner will stand seriously prejudiced, if, the Controller proceeds to dispose of the application for grant of patent and allows the same by granting patent. In such eventuality, the applicant for grant of patent will have a patent granted in his favour without the objections raised by the writ petitioner being decided on merits. The Controller cannot decide the objections raised by the writ petitioner on merits as the writ petitioner is yet to be afforded the right of cross examination of the witness produced by the applicant for grant of patent.

3. Learned senior advocate appearing for the private respondents submits that, the Controller is yet to pass any order, which prejudices the writ petitioner herein. He submits that, the Controller is yet to take a decision on the application for grant of cross-examination. The Controller has reserved judgment in the application for grant of patent. In such circumstances, it is presumptuous on the part of the writ petitioner to allege that, the Controller has failed to exercise his discretion granted under Section 79 of the Act of 1970. According to him, the right to cross-examine is a discretionary right, which the Controller needs to decide in the facts of the given case. As there is no final order of the Controller on any aspect, the Court need not proceed on the basis of an assumption. The writ petition should be dismissed as premature.

4. There is an application being Patent Application No.3865/KOLNP/2007 pending decision of the Controller. Apparently, there are five objections with regard to the grant of the patent, as prayed for. Four objections were made at a point of time earlier than the objections raised by the writ petitioner herein. Apparently, the applicant for grant of patent, examined one expert witness in the proceedings. The same was allowed to be cross-examined at the behest of the other objectors. The writ petitioner wanted to cross-examine the witness produced by the applicant seeking grant of the patent. Such an application is yet to be decided by the Controller. Apparently, the Controller has reserved judgment on the main application for grant of patent. It is due to such conduct of the Controller, that the writ petitioner apprehends that, the Controller may not allow the writ petitioner the right to cross-examine the witness produced by the applicant for grant of patent and may decide the application for grant of patent finally. In such eventuality, the writ petitioner will be seriously prejudiced.

5. As noted above, the Controller is exercising jurisdiction under the Patents Act, 1970. The Act of 19870 is divided into several chapters. Chapter XV deals with the powers of the Controller. Section 77 of the Act of 1970 is under Chapter XV. It stipulates that, the Controller will have powers of a Civil Court in respect of matters specified therein. Section 78 of the Act of 1970 under Chapter XV allows the Controller to correct clerical errors in his order. Section 79 of the Act of 1970 under Chapter XV which is material for the subject matter of the present lis deals with evidence adduced in the proceedings before the Controller, how evidence should be given before the Controller and the powers of the Controller in respect thereof. Section 79 of the Act of 1970 is as follows:-

"79. Evidence how to be given and powers of Controller in respect thereof. - Subject to any rules made in this behalf, in any proceeding under this Act before the Controller, evidence shall be given by affidavit in the absence of directions by the Controller to the contrary, but in any case in which the Controller thinks it right so to do, he may take oral evidence in lieu of, or in addition to, evidence by an affidavit, or may allow any party to be cross-examined on the contents of his affidavit."

6. Section 79 of the Act of 1970 allows the parties to the proceeding before the Controller to give evidence by affidavit. It also empowers the Controller to ask for oral evidence in an individual case if he considers it necessary. It empowers the Controller to ask for and take oral evidence, if in a given case he requires the same. The right to cross-examine on the contents of the affidavit is recognised in Section 79. It is the contention of the private respondents herein that, such a right is discretionary. With respect, parties to a proceeding where respective rights are decided by an adjudicatory process, are entitled to cross-examine the natural person who adduces evidence on behalf of the opposing party. In other words, in an adjudication proceeding which is adversarial in nature, if a party to such proceeding introduces evidence by a natural person by affidavit or otherwise it results in a corresponding right in the opponent to cross-examine such witness. When a party in an adversarial adjudication proceeding adduces evidence by a natural person by affidavit or otherwise it results in a corresponding right in the opponent to cross examine such witness. Such a right can be waived. It is not for the adjudicator to say that the opponent cannot cross examine such person, unless, the person producing such witness withdraws the same or the adjudicator says that, the evidence of such person will not be considered, for reasons to be recorded.

7. Proceedings for grant of patent before the Controller, exercising jurisdiction under the Patent Act, 1970 being adversarial in nature, principles of natural justice apply. Right of cross examination is recognised to be an indefeasible right under the principles of natural justice. Therefore, in that sense, when a natural person is introduced as a witness in a proceeding, the Controller has no discretion in disallowing the right of cross-examination to the opponent party. Section 79 of the Act of 1970, to my mind should be read in such context. In a given case, the Controller for reasons to be recorded in writing may decide not to rely upon the evidence in chief introduced by a party to the proceeding. In such an eventuality he has the discretion of not allowing cross examination of such witness. Where the Controller has no reason to discard the entirety of the evidence in chief, before he takes a final decision on the patent application, he has to allow cross examination of such witness. The words "or may", as appearing in Section 79 prior to the provisions of cross examination which require the Controller to allow any party to be cross-examined on the contents of the affidavit should be read and understood in such context. In a given case, a natural person may give evidence by way of an affidavit and may be required to give oral evidence in addition thereto or in supersession thereof. In all of such situations, the opposing party in that proceeding is entitled to cross-examine such natural person as to the entirety of the contents of his evidence whether given by way of an affidavit or orally.

8. In light of the law, as noted above, the Controller is required to decide on an application requesting cross-examination of the witness of a natural person introduced on behalf of a party to a proceeding. He has to take a decision on such an application before he arrives at a final decision on the application for grant of patent. Unless, he is of the view that, he is not relying upon the evidence introduced by a natural person on behalf of any of the parties in deciding the application for grant of patent, he is required to allow the opposing party the right of cross-examination.

9. Sri. Rajesh Kumar Banka (supra) considers an order under Section 64 of the Act of 1970 and found the writ petition to be maintainable. In the facts of the present case, the present writ petition cannot be termed to be premature or not maintainable. The writ petitioner alleges violation of the principles of natural justice in the conduct of a proceeding pending before the Controller exercising jurisdiction under the Act of 1970. A writ petition is maintainable if it is established that there is a violation of principles of natural justice, notwithstanding the existence of alternative remedy. In the facts of the present case, the apprehension of breach of such principles are real and of substance. In the event, the Controller decides on the application for grant of patent without allowing cross examination then the prejudice caused to the petitioner would be substantial. There is scope to prevent such an eventuality taking place. A quasi judicial authority is obliged to decide an issue of law correctly. An erroneous decision on an issue of law would be an exercise beyond jurisdiction. When a quasi judicial authority travels beyond jurisdiction or when there is every likelih

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ood of it doing so, necessary directions can be issued to keep it within the parameters of its jurisdiction. 10. In such circumstances, it would be appropriate to request the Controller to decide the application for grant of the right of cross-examination made by the writ petitioner, in accordance with law and as expeditiously as possible, before he decides the application for grant of patent finally. It is expected that, such application is decided within a period of four weeks from the date of communication of this order to him. Since affidavits have not been invited, the allegations made in the writ petition are deemed to be denied by the respondents. 11. Learned senior advocate appearing for the private respondents seeks a stay of the directions contained in this judgment and order. Such prayer is considered and refused. 12. W.P. No.7470 (W) of 2019 is disposed of without any order as to costs. 13. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance of the requisite formalities.
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