Tanweer Hanif. Vs. Cesc Ltd. and ors. - Court Judgment

Excerpt:

.....case the respondents) marks are an imitation of the mark of another to wit that the respondents had themselves infringed the mark of another. it is thus clear that the principle was applied to an action for infringement of trade mark and passing off. if the purchasers were in such a case to stamp their goods with the trade mark, "a.b. the basis of the ratio is to deny an infringer a right based on the mark or work which infringes the mark or work of another. the respondents in their affidavit in rejoinder denied the allegations that they had infringed the mark of state express 555. there are no averments, much less is there any evidence, to indicate that the respondents' marks/cartons/labels are an imitation of the mark state express 555. it is significant to note that there is no evidence whatsoever to the effect that the third party has used the mark 555 or created the labels/cartons or marks prior to the creation of and use by the respondents of these marks/labels and cartons which may have persuaded the court to come to the conclusion that the respondents had infringed the mark. if it is established that the mark is a well known mark, the mark being used in respect of..........regulations, but that cannot lead to abatement of the s.126 proceedings. 5. here it is to be noted that for reasons beyond control the assessing officer of cesc was not in a position to make the order of final assessment in the s.126 proceedings initiated in 2004. it is because of an order dated august 16, 2004 of this court passed in an art.226 petition moved by the petitioners son that the meter in question had to be sent to an authority mentioned in the order. 6. in terms of the order the assessing officer was to pass the order of final assessment only after receipt of report of the authority. the charge-sheet has been submitted by the police on the basis of the report only recently. under the circumstances, i do not find anything wrong in the steps taken by the assessing officer of the licnesee. 7. for these reasons, i dismiss the petition. no costs. certified xerox.

Judgment:

1. The Court :- The petitioner in this art.226 petition dated January 21, 2011 has two grievances: (i) in spite of his request to remove the defect in the meter, CESC has failed and neglected to remove the defect; (ii) though in view of the provisions of s.126(3) of the Electricity Act, 2003 the assessing officer of CESC could not make any order of final assessment in the s.126 proceedings initiated in 2004, a designated officer issued a notice dated January 14, 2011 asking him to appear before the assessing officer for participating in the final assessment proceedings. Counsel for the petitioner has submitted that once request was made to remove the defect in the meter, CESC incurred the obligation to remove the defect. As to the final assessment proceedings, her submission is that since the order of final assessment was not made within the period mentioned in sub-s.(3) of s.126, the assessing officer of CESC is not competent to proceed with the s.126 proceedings initiated in 2004 for passing the order of final assessment. Counsel for CESC has submitted as follows. The issue of alleged defect in the meter is pending before the Ombudsman. Hence it cannot be raised before the Writ Court. The provisions of sub-s.(3) of s.126 of the Electricity Act, 2003 inserted by an amendment in 2007 cannot apply to the case that was initiated in 2004. Since the meter test report required in terms of a Court order was not available, the final order could not be made.

2. It is evident from the document at p.47 that with his grievance concerning defect in the meter the petitioner has approached the Ombudsman. It is not the case that the Ombudsman has disposed of the matter. On the contrary, the admitted position is that it is pending before him. I am, therefore, of the view that the issue cannot be raised before the Writ Court.

3. The amended provisions of sub-s.(3) of s.126 will not apply to the s.126 proceedings that were initiated in 2004 when the order of provisional assessment was made. Even assuming that they are applicable, I am unable to accept the argument that since the order of final assessment was not made within thirty days from the date of service of the order of provisional assessment, the assessing officer lost his power to make the order of final assessment.

4. There is no doubt that the period mentioned in sub-s.(3) of s.126 is mandatory. But that does not mean that if the order of final assessment is not made within thirty days from the date of service of the order of provisional assessment, the assessing officer of the licensee will lose his power to make the order of final assessment. For failure of the assessing officer to comply with sub-s.(3) the affected person may be entitled to compensation, if any, under the relevant regulations, but that cannot lead to abatement of the s.126 proceedings.

5. Here it is to be noted that for reasons beyond control the assessing officer of CESC was not in a position to make the order of final assessment in the s.126 proceedings initiated in 2004. It is because of an order dated August 16, 2004 of this Court passed in an art.226 petition moved by the petitioners son that the meter in question had to be sent to an authority mentioned in the order.

6. In terms of the order the assessing officer was to pass the order of final assessment only after receipt of report of the authority. The charge-sheet has been submitted by the police on the basis of the report only recently. Under the circumstances, I do not find anything wrong in the steps taken by the assessing officer of the licnesee.

7. For these reasons, I dismiss the petition. No costs. Certified xerox.