Sunday, June 10, 2012

Appeals FROM IPAB: What is the Law?

Last week, I had written a post on appeals from the decision of the IPAB. I had taken the view that apart from invoking the writ powers of the High Court under Article 226/227, there is no provision for an appeal from a decision of the IPAB. 

The significance of an appeal is that it is a matter of right i.e. unlike a Special leave Petition before the Supreme Court or a Writ Petition before High Courts, an appeal gives an aggrieved party the right to knock an appellate forum for re-appreciation of the merits of the case.

I had asked a student of NLU Jodhpur, Ms.Savni Dutt, to review other niche legislations, specifically Telecom Regulatory Authority Act, 1997 and the Competition Act, 2002. Savni looked in to the Income Tax Act of her own accord. Savni confirmed what I had in mind.

Akin to Section 117F of the Patents Act, under Section 14N of the TRAI Act, all appeals which were pending before High Courts were transferred to the Telecom Dispute Settlement Appellate Tribunal (TDSAT). Further, Section 18 of the TRAI Act provides for an appeal to the Supreme Court from the decision of TDSAT. There is no provision of appeal to the High Court (although the Writ Power of High Courts remains, which goes without saying).

Similarly, under Section 53T of the Competition Act, an appeal lies to the Supreme Court from the decision of the Competition Appellate Tribunal (CAT). However, again there is no provision of appeal to the High Court.

Again, under the Income Tax Act, an individual aggrieved by the order of the Income Tax Appellate Tribunal may appeal under Section 260A of the Act only if it raises a substantial question of law. Here too, this power has been expressly vested in the High Court by the IT Act.

Similar provisions exist under Section 130 of the Customs Act, 1962, Section 35 of the FEMA Act and Section 18B of the SARFAESI Act.

It is to be noted that there are no such provisions of appeal either to the High Court or to the Supreme Court under the Patents Act from a decision of the IPAB. An appeal is a statutory right and since there exists none from the decision of the IPAB, it cannot be assumed to exist.

Also, a High Court typically is an appellate forum; very few High Courts have been vested with original civil jurisdiction since exercise of original civil jurisdiction is not the norm for High Courts; it is an exception that has been expressly provided for. Therefore, it may not be right to assume that the IPAB has stepped into the shoes of a Single Judge of the High Court, and therefore, an appeal lies from the IPAB to the Division Bench of the High Court.

Simply put, the IPAB has replaced the High Court itself as an appellate forum, and not just Single Judges of the High Court. Consequently, an appeal may not lie from the IPAB to the Division Bench for two reasons:
1. An appeal provision is not provided for in the Patents Act; and
2. the IPAB has replaced the High Court as the forum with original and final jurisdiction over appeals from decisions of the Controller of the Patent Office.

To summarize, I do not think appeals lie either to a Single Judge of a High Court or to the Division Bench from a decision of the IPAB. The only way to knock the doors of the High Court is to file a writ under Articles 226/227.

Comments and Corrections are welcome!


  1. LPA No.588/2011
    Champagne Moet & Chandon
    Union of India & Ors.

    16. It is worth noting, while exercising the power of judicial review under Article 226 of the Constitution of India it cannot be converted into an appeal. The judicial review is directed not against the decision but is
    confined to the examination of the decision making process. If the reasons ascribed by the authorities or the IPAB are manifestly
    unreasonable that no reasonable authority entrusted with the power in question would reasonably made such a decision, the concept of
    judicial review gets attracted. If there is perversity of approach,interference is warranted. If there is non-examination of relevant factors and conclusion has been arrived at, it comes within the scope of judicial review. If a plausible view has been expressed on the basis of the material on record and there is no perversity of approach and the application of law to the facts is not incorrect, the concept of judicial review is not attracted. To put it in a different way, we do not perceive any error in the decision making process.

    1. I agree. Exactly what happens in other writs as well.Thanks for the citation Anon!

      Best Regards,