ブックタイトル縁19号

概要

縁19号

but an aid to justice." The Hon'ble Supreme Court of India, in its Judgment AIR 1987 SC 1353: Collector,Land Acquisition, Anantnag and Anr Vs Mst. Katiji and Ors, observed that substantial justice has to be preferredupon the procedural technicalities. The Hon'ble Supreme Court of India returned the finding as under"When substantial justice and technical considerations are pitted against each other, cause of substantialjustice deserves to be preferred for the other side cannot claim to have vested right in injustice being donebecause of a non-deliberate delay." Conflict between the procedural law and the substantial law has beenresolved by the Hon'ble Supreme Court of India in its Judgement reported as AIR 2008 SC 2099, Zolba VsKeshao and Ors ,as under "The use of the word‘shall' is ordinarily indicative of mandatory nature of theprovision but having regard to the context in which it is used or having regard to the intention of thelegislation, the same can be construed as directory. The rule in question has to advance the cause of justiceand not to defeat it."NOTABLE POINT:From the above judgements of SC it is clear that if the party is able to give sufficientreasons for condoning the delay for doing any act, prescribed by the law, in that case, the Courthas inherent power to condone the delay and treat the procedural law liberally. This principle is notonly applicable to the Court of Justice, but also the Quasi Judicial authorities and Tribunal also. ThereforeSec 21(1) including Rule 24B should be considered as directory and not mandatory in nature asrules of procedure are normally treated as directory unless legislative intent is opposite.OPPORTUNITY OF BEING HEARD-AUDI ALTERAM PARTEM・The reasonable opportunity of hearing which is also well known as‘fair hearing' is an important ingredientof the audi alteram partem rule (Basic Principle of Natural Justice).‘Opportunity of being heard'before giving any judgement is the hallmark of justice in any field whether it is criminal law or companylaw or intellectual property right laws. It is an important measure to deliver a just, fair and reasonablejudgement. The whole idea of‘Opportunity to be heard' can be seen as a part of the principles of naturaljustice. The principles of natural justice have been developed and followed by the judiciary to protectthe right of the public against the arbitrariness of the administrative authorities. Natural justice is a conceptof common law and represents higher procedural principles developed by the courts, which everyjudicial, quasi-judicial and administrative agency must follow while taking any decision adversely affectingthe rights of a private individual. The concept of natural Justice can be seen in Article 14, 19, 21 of the IndianConstitution. In K I Shephard v. Union of India (1987) 4 SCC 431, 448: the Supreme Court held that‘the rules of natural justice have been developed with the growth of civilization and the content thereofis often considered as a proper measure of the level of civilization and Rule of Law prevailing in the community.'Talking about opportunity or right of being heard, in Hindustan Petroleum Corporation v. HL Trehan(1989)1 SCC 764, the Supreme Court held that‘when an authority has statutory power to takeaction without hearing, it would be arbitrary to take action without hearing and thus violation of Article14 of the Constitution.'NOTABLE POINT:The object of the patent system is to encourage inventions by promoting theirprotection and utilization so as to contribute to the development of industry, which in turn, contributesto the promotion of technological innovation and to the transfer and dissemination of technology. Inlight of this object, Patent Authorities should not dispose of the applications for granting of patents ifthere is a genuine and a reasonable cause for missing the deadline of procedural formality. Patent Actincorporates the concept of fair hearing in sec 65 which talks about‘Revocation of patent or amend-26 ENISHI IP Friends Connections August 2018 No.19