India Nippon Electricals Limited Vs. Bajaj Auto Limited and Another - Court Judgment

Excerpt:
patents act, 1970 - section 25(1) -order (no.173/2009) s. chandrasekaran, technical member 1. this is an appeal under section 25(1) of the patents act, 1970, as amended by patents (amendment) act, 2002 (hereinafter referred to as the act) against the order dated 27th march, 2009 passed by the respondent no.2. 2. the registry on scrutiny of this case raised the objection that this appeal is not admissible before this appellate board as the impugned order passed by the respondent no.2 is under section 25(1) of the act, and the registry considered this appeal as an appeal against third party intervention opposition under section 25(1) of the act, 1970, as amended by the patents (amendment) act, 2005. this fact was clarified by the counsel for the appellants that the impugned order passed by the respondent no.2 under section.....

Judgment:

Order (No.173/2009)

S. Chandrasekaran, Technical Member

1. This is an appeal under section 25(1) of the Patents Act, 1970, as amended by Patents (Amendment) Act, 2002 (hereinafter referred to as the Act) against the order dated 27th March, 2009 passed by the respondent No.2.

2. The Registry on scrutiny of this case raised the objection that this appeal is not admissible before this Appellate Board as the impugned order passed by the respondent No.2 is under section 25(1) of the Act, and the Registry considered this appeal as an appeal against third party intervention opposition under section 25(1) of the Act, 1970, as amended by the Patents (Amendment) Act, 2005. This fact was clarified by the counsel for the appellants that the impugned order passed by the respondent No.2 under section 25(1) of the Act which provides him a right of appeal to the Appellate Board under section 117A of the Act and thus, the Appellate Board is having necessary jurisdiction to entertain the present appeal.

3. This appeal is against the order issued under section 25 (1) of the Act against the patent application No.1421/MAS/1995 (Patent No.192657). The appellant M/s. Indian Nippon Electricals Limited being applicant for patent filed the application for patent on 2nd November, 1995. Application for grant of patent was examined and the acceptance of the said application was advertised in the Gazette of India dated 15th May 2004. The said application was opposed by the opponents M/s. Bajaj Auto Limited under section 25(1) of the Act and the rules made thereunder. The whole opposition proceedings before the respondent No.2 having been completed as per the procedure laid down under section 25(1) of the Act, both the applicant and opponent were heard by the respondent No.2 on 21st March, 2007. The application for patent was finally refused by the respondent No.2 by its order dated 27th March, 2009

4. The matter was placed before this Board on 7th September, 2009 for deciding its maintainability.

5. The counsel for the appellant argued that the application for patent was filed on 2nd November, 1995. After careful examination by the patent office, the acceptance of the patent application was advertised in the Gazette of India dated 15th May, 2004 and the application was opposed by the present opponent. The full opposition proceedings having been completed as per the procedure laid down under the Act, the respondent No.2 heard both the parties on 21st March, 2007 under section 25(1) of the Act and issued a decision on 27th March, 2009. Learned Counsel submitted that this impugned order has been passed under the section 25(1) of the Act and there existed a right of appeal by the party aggrieved, namely the appellants herein, to appeal before the Appellate Board under section 117A(2) of the Act. Hence, the counsel further submitted that the impugned order ought not to be confused, as if, it is an order passed under section 25(1) of the Patents Act, 1970 (as amended by the Amending Act of 2005) consequent to an opposition by a third party intervention opponent. The counsel further argued that section 162(4) of the Act makes it clear that the particular matters in the section shall not prejudice the general application for the General Clauses Act, 1897 with respect to the repeals showing that the accrued rights and proceedings pursuant there to are saved and cannot be taken away by this amendment. Hence, the appellants have the right of appeal before the Appellate Board. The counsel for the appellant further argued that there was provision for appeal against the order of the respondent No.2 under section 25(1) of the Act to the Appellate Board which was already existing and thus, this appeal is maintainable before the Appellate Board.

6. We have heard the arguments of the learned counsel for the appellants. At the out set, it is to be noted that under the Patents Act, 1970, the applications for patent have to pass through the provisions of opposition prior to the grant of patent under section 25 thereof. That is, after examination and on acceptance of the patent application under section 23 of the Patents Act, 1970 the acceptance thereof is advertised in the Government of India Gazette Part (III) section 2. As per the section 25(1) of the Patents Act, 1970 any person interested may oppose the grant of patent and in that event the regular procedure of opposition proceedings will take place and finally both the opponent and the applicant would be heard by the Controller of Patent. If there is no opposition under section 25 of the Patents Act, 1970 the applicant for patent can straightaway request for the grant of patent. The party aggrieved in the opposition proceedings has the right of appeal under section 116(2) of the Patents Act, 1970 to the High Court. The said Patents Act, 1970 has been amended in three phases namely, the first amendment in 1999 and second amendment in 2002 and the third amendment in 2005. In the second amendment 2002 of the Patents Act , 1970 there was still an opposition procedure prior to the grant of patent under section 25(1) of that Act. But the provision of appeal to the Appellate Board has already been introduced under section 116 of the Patents, Act, 1970 during the second amendment. Thereafter, in the third amendment in 2005 a split in the opposition proceedings have been introduced, namely, a pre-grant opposition and post-grant opposition under section 25 of the Patents Act, 1970 (as amended by the Patents Amendment Act, 2005). Consequently, in the Patents Act, 1970 as amended by the Patents (Amendments) Act, 2005 there does not lie any appeal to the party aggrieved in the pre-grant opposition under section 25(1). Whereas the party aggrieved under the post grant under section 25(2) of the Act, has a right of appeal to the Appellate Board. Here, in the instant case, which is before us for deciding the maintainability, is a case of a party aggrieved in the pre-grant opposition prior to the grant of patent under section 25(1) of the Patents Act, 1970 (as amended by the Patents (Amendment) Act, 2002). Any party aggrieved in this opposition proceedings have the right of appeal to the Appellate Board under section 117A(2) of the Act. Just because there is an opposition procedure prior to the grant of patent, these opposition proceedings are not to be treated as coming under the category of pre-grant opposition by way of third party intervention opposition as provided under section 25(1) of the Act, as amended by the Patents (Amendments) Act, 2005, to be finally regarded as non appealable proceeding for the party who is aggrieved, when the hearing in respect ofopposition proceedings have been conducted and finalised after the Patents Act, 1970 as amended by the Patents (Amendments) Act, 2005 came into force. The general rule is that statutes are not to be construed as having retrospective operation unless such construction is expressively or by necessary implication is provided by the language used in the Act. An amending Act may provide that it shall be deemed to have come into force on a day prior to its enactment or it may provide that it is to be operative with respect to any proceedings commenced or pending prior to such enactment. In that instance only, the statute operates retrospectively, otherwise normally it is to be construed to have a prospective operation. In this connection, we refer to the following leading cases:-

Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R.629, at p.638, Williams J held that the “presumption that vested rights are not affected unless the intention of the legislature is clear applies whether the legislation is retrospective or prospective in operation. A prospective enactment may be bad if it affects vested rights and does not do so in unambiguous terms. This presumption, however, only applies where the legislation is in some way ambiguous and reasonably susceptible of two constructions.”

In Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, Duff C.J. wrote at p. 638:

“A legislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.”

7. The counsel for the appellants referred to section 162(4) of the Act and also the section 6 of the General Clause Act, 1897 and stated that the rights which have accrued are always saved unless they are taken away expressively by a provision in the enactment. In this connection, we refer to the following leading cases:-

As to the scope of a savings clause in an enactment, Sabyasachi Mukharji, J. (as his Lordship then was), in CIT v. Shah Sadiq and Sons[15] ruled: (SCC p. 524, para 15) held,

"... the 'savings' provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued. In other words, whatever rights are expressly saved by the 'savings' provision stand saved. But, that does not mean that rights which are not saved by the 'savings' provision are extinguished or stand ipso facto terminated by mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General Clauses Act, 1897."

In Bansidhar v. State of Rajasthan[16] also, M.N. Venkatachaliah, J. (as he then was) for a Constitution Bench observed that "a saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or the rights that survive the repeal".

8. Referring to few more Supreme Court decisions, regarding “substitution” word in an amendment notification as in Government of India Vs. Indian Tobacco Association, decided by the Apex Court, the facts, being, the introduction of the Duty Entitlement Pass Book (DEPB) scheme announced on 1.4.1997, under the Exim Policy 1997-2002 for export promotion scheme envisages grant of DEPB Credit Entitlement to an exporter at the time of export at an ad-valorem rate notified by Director General of Foreign Trade, in relation to FOB value of the export product. A notification was issued on 7-4-1997, announcing details about the scheme mentioning the names of eligible seaports and airports, and also "inland container depots (ICDs) at Bangalore, Coimbatore, Delhi, Gauhati, Kanpur, Pimpri (Pune), Pitampur (Indore), Moradabad, Ludhiana and Hyderabad." Indian Tobacco Association (ITA) was unhappy that Guntur was not included in the list of ICDs, and so approached the Government for remedy. The Government came, with an amendment to the notification on 27-11-1997 thus showing: "(b) for the words `Ludhiana and Hyderabad', the words `Ludhiana, Hyderabad, Nagpur, Agra, Faridabad, Jaipur, Guntur and Varanasi' shall be substituted.'" Thus, the list in the previous paragraph extended to six more ICDs, including Guntur. ITA felt that the November notification was clarificatory in nature, and so it would also cover the period from April 7 to November 27. But the Central Government rejected this line of reasoning. On 23-8-2001, they wrote a letter to ITA, saying: "Exports of tobacco made during the period 1-4-1997 to 26-11-1997, cannot qualify for DEPB Scheme because it would mean granting retrospective effect to the said customs Notification which is not permitted in law." Aggrieved ITA approached the Andhra Pradesh High Court, which noted that Guntur was introduced by way of substitution. "The word substitution would connote that the Government intended to give benefit to the imports and exports from Guntur and if really the Government wanted to introduce and give benefit to the imports and exports from Guntur from 27-11- 1997, they could have issued a separate notification which would operate as prospective in nature," ruled the court. ITA was happy that the November notification was held to be "only by way of substitution", conferring "retrospective benefit to the exports and imports from Guntur". The Government was aggrieved by High Court's verdict, and so appealed to Apex Court. There, Additional Solicitor General, appearing on behalf of the Government, submitted that the two notifications in question providing for exemption from payment of additional Customs duty must be strictly construed and cited the Mahaan Dairies case to state that a subordinate legislation containing exemption from payment of duty would only have prospective operation. Justices Mr. S. B. Sinha and Mr. A. R. Lakshmanan of the Supreme Court heard the case and observed, "An exemption notification, it is trite, must be construed having regard to the object and purport which the same seeks to achieve. It is also well-settled that an expression used in a statute should be given its ordinary meaning unless it leads to an anomalous or absurd situation." From the Mahaan Dairies precedent, the Court cited a paragraph that read: "It is settled law that in order to claim benefit of a Notification a party must strictly comply with the terms of the Notification. If on wordings of the Notification the benefit is not available, then by stretching the words of the Notification or by adding words to the Notification benefit cannot be conferred." "The word `substitute' ordinarily would mean `to put (one) in place of another'; or `to replace'," said the Apex court, and referred to the definition in Black's Law Dictionary — that substitute means `to put in the place of another person or thing' or `to exchange' and also referred to Definition in Collins English Dictionary which came in handy, though a bit more technical, because it defined the word to mean `to serve or cause to serve in place of another person or thing'; `to replace (an atom or group in a molecule) with (another atom or group)'; or `a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'.

9. Similarly, in the Tata Iron and Steel Co Ltd vs. State of Jharkhand, Appeal (Civil) 1912 of 2004 the court had said that eligibility clause in relation to exemption notification must be given a strict meaning. The amendment did not take away any substantive right, nor impose any penal consequence, but only sought to remove an obvious mistake, reasoned the court. "When a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberally construed," noted the judgment, and added: "It is not in dispute that `Guntur' was one of the inland container depots. It is also not in dispute that such duty exemption had all along been granted for export from `Guntur'." Instead, "the Union of India while making a subordinate legislation had advisedly used the word `substitution' in place of the word `addition'," pointed out the apex court. This shows that the object and purport of the subsequent notification was to grant the same benefit which had been granted through the April 1997 notification to those exporting from seaports or ICDs specified in the November communiqué, ruled the court, concluding that the amended notification was "only intended to rectify a mistake" and, so it would have "retrospective effect and retroactive operation".

10. To clearly ascertain the correct legal position it has become imperative to examine relevant provisions and decided cases, dealing with the ambit and scope of repeal and re-enactment of a statute and also the General Clauses Act, 1897. Looking into point of Presumption against retrospectivity the General Clauses Act has a presumption against retrospectivity clearly embodied in section 5. This means that it is very clear that any statute will not be retrospective in its operation unless the statute clearly mentions it. Many provisions of the Income-tax Act are mentioned as having retrospective operation and only those provisions will have a retrospective operation and all other provisions will have only a prospective operation. Similarly amendments are also not retrospective in operation unless the special statute specifically mentions it.

In M/s M.S. Shivananda v. Karnataka State Road Transport Corporation and Ors. (1980) 1 SCC 149 the judgment given also leads to the same conclusion that after repeal of the Act whether it applies or not depends on the intention of the legislature which is reflected by the language used in the subsequent Act passed by the legislature. The Apex Court had observed that if, the right created by the statute is of an enduring character and had vested in the person, and then that right cannot be taken away because the statute by which it was created has been repealed. When the specific or the special statute does not mention or speak about the retrospectivity, for a better and clearer interpretation we shall have to look in to the provisions of the General Clauses Act, 1897.

Since the General Clauses Act, 1897 is largely based on the English Interpretation Act, 1889, it would be appropriate to first look at the similar provision in the English Act and other relevant cases which would throw some light on issues involved in the present case to be decided. According to the law of England, as it stood before Interpretation Act of 1889, the effect of repealing a statute was to obliterate it as completely from the records of Parliament as if it had never been passed, except for the purpose of those actions, which were commenced, or prescribed and concluded while it was an existing law. In Kay vs. Goodwin reported in 1830 English Reports (Volume 130) at page 1403, Chief Justice Tindal held that “the effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and it must be considered as a law that never existed except for the purpose of those actions which were commenced, prosecuted and concluded whilst it was an existing law.” In England, to obviate such a situation a practice was developed to insert a saving clause in the repealing statute with a view to preserve rights and liabilities that had already accrued or incurred under the repealed enactment. When it was found to be cumbersome to insert a saving clause in every statute, to dispense with the necessity of having to insert a saving clause on each occasion, Section 38(2) was incorporated in the Interpretation Act of 1889. Section 6 of the General Clauses Act, 1897 is found to be predominantly based on the same lines as Section 38(2) of the Interpretation Act of 1889 of England. In order to see the similarity between the Indian and English Law on this subject, it would be appropriate to set out Section 6 of the General Clauses Act, 1897.

"6. Effect of repeal.- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not --

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of such right, privilege, obligation, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

A Seven Judge Bench of the Apex Court by majority laid down in Keshavan Madhava Menon vs. The State of Bombay, (1951) SCR 228, that the Court was concerned with the legality of the prosecution of the appellant for contravention of the Indian Press (Emergency Powers) Act, 1931. The offence had been committed before the Constitution came into force and a prosecution launched earlier was pending after January 26, 1950. The enactment which created the offence was held to be void under Article 19(1)(a) read with Article 13 as being inconsistent with one of the Fundamental rights guaranteed by Part III of the Constitution. In the circumstances, the point that was debated before the Apex Court was whether the prosecution could be continued after the enactment became void and the Court by a majority judgment held that the Constitution was prospective in its operation and that Art. 13(1) would not affect the validity of these proceedings commenced under pre-Constitution laws which were valid up to the date of the Constitution coming into force, for to hold that the validity of these proceedings were affected would in effect be treating the Constitution as retrospective. Therefore, the Apex Court considered that there was no legal objection to the continuance of the prosecution.

A Constitution Bench of the Apex Court in State of Punjab vs. Mohar Singh (1955) 1 SCR 893 held that the claim of the respondent Mohar Singh, as an evacuee under the East Punjab Refugees (Registration of Land Claims) Act, 1948 to be false and also an offence under the Act. At the trial, on his confession, the respondent was convicted and sentenced to imprisonment. On suo motu revision, the District Magistrate found the sentence to be inadequate and referred the case to the High Court. The High Court found that since the ordinance was repealed, he could not be convicted under Section 7 of the Act. The Apex Court, on appeal, reversed the decision and upheld the conviction applying Section 6 of the General Clauses Act.

11. The principle has been laid down by the Apex Court, making a clear ruling “that whenever there is a repeal of an enactment, the consequences laid down in section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject one would undoubtedly have to look to the provisions of the new Act, but only for the purposes of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them.” Therefore, Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section.

In the case of Brihan Maharashtra Sugar Syndicate vs. Janardan AIR 1960 SC 794, it was held that "Section 6 of the General Clauses Act provides that where an Act is repealed, then, unless a different intention appears, the repeal shall not affect any right or liability acquired or incurred under the repealed enactment or any legal proceeding in respect of such right or liability and the legal proceeding may be continued as if the repealing Act had not been passed.”

In M.A. Tulloch's case the Apex Court aptly observed that “every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the continuance of rights accrued and liabilities incurred under the superseded enactment unless there were sufficient indications - express or implied - in the later enactment designed to completely obliterate the earlier state of the law.”

12. It is clear to say that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded, would there be any incongruence in attributing to the later legislation the same intent which Section 6 of the General Clauses Act, 1899 presumes has to be seen, where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and an implied provision. It is only the form that differs in the two cases and there is no difference in intention or in substance.

In view of the above interpretation what follows is absolutely clear that unless a different intention appears in the repealing Act, any legal proceeding can be instituted and continued in respect of any matter pending under the repealed Act as if that Act was in force at the time of repeal. In other words, whenever there is a repeal of an enactment the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears in the repealing statute.

In case the repeal is followed by fresh legislation on the same subject the appropriate judicial forum has to look to the provisions of the new Act for the purpose of determining whether they indicate a different intention. The question is not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. The application of this principle is not limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. As the Apex Court has said, “it is both logical as well as in accordance with the principle, upon which the rule as to implied repeal rests, to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would attract the incident of saving found in Section 6.” In the case of Munshilal Beniram Jain Glass Works vs. S. P. Singh (1971) II S.C.J. July- December p. 307, the Apex Court held that, “Section 6 would apply to a case of repeal even if there is a simultaneous enactment unless a contrary intention appears from the new enactment.”

In Qudrat Ullah vs. Municipal Board, Bareilly, (1974) 1 SCC 202, the Apex Court held that the general principle is that an enactment which is repealed is to be treated, except as to transactions passed and closed, as if it had never existed. However, the operation of this principle is subject to any savings which may be made, expressly or by implication, by the repealing enactment. If a contrary intention appears from the repealing Statute, then that prevails.

A three-Judge Bench of the Apex Court in India Tobacco Co. Ltd. vs. CTO, (1975) 3 SCC 512, held that “repeal is not a matter of mere form but is of substance, depending on the intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent statute, was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. Broadly speaking, the principal object of a repealing and amending Act is to 'excise dead matter, prune off superfluities and reject clearly inconsistent enactments.”

13. Therefore it is very clear, that, when there is a repeal and simultaneous re-enactment, section 6 of the General Clauses Act, 1897 would apply to such a case unless contrary intention has been gathered from the repealing Act. Section 6 would be applicable in such cases unless the new legislation manifests intention inconsistent with or contrary to the application of the section. When the repeal is followed by a fresh legislation on the same subject, provisions of the new Act will have to be looked into, only for the purpose of determining whether the new Act indicates different intention. The object of repeal and reenactment is to obliterate the Repealed Act and to get rid of certain obsolete matters.

In Commissioner of Income Tax vs. Shah Sadiq and Sons AIR 1987 SC 1217, the Apex Court observed that, “a right which had accrued and had become vested, continued to be capable of being enforced notwithstanding the repeal of the statute under which that right accrued unless the repealing statute took away such right expressly or by necessary implication. This is the effect of Section 6 of the General Clauses Act, 1897.”

In M/s Gurcharan Singh Baldev Singh v. Yashwant Singh and Ors. (1992) 1 SCC 428, the Apex Court observed that, “the objective of Section 6(c) of the General Clauses Act, 1897 is to ensure protection of any right or privilege acquired under the repealed Act. The only exception to it is legislative intention to the contrary. That is, the repealing Act may expressly provide or it may impliedly provide against continuance of such right, obligation or liability.”

14. In the instant case, in the law, during amendment process, there is a simultaneous repeal and the reenactment by substitution, but the certain provisions have been framed to come into force on such date as the Central Government may, by notification in the Official Gazettee, appoint; and different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. Consequently, rights and liabilities accrued with a fewer and certain provisions would continue even after it is repealed, but along with certain old provisions which still exist as the newer provisions have not been brought into force. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion here becomes inescapable that whenever there is a repeal of an enactment and simultaneous reenactment, the reenactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus reenacted continue in force uninterruptedly unless, the reenacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the reenacted enactment and the mere absence of saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the reenacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. On the touchstone of the principles of law culled out from the judgments of various courts referred to above, and applied to the facts of this case it leads to a definite conclusion that when the opposition proceedings were finally heard by the respondent No.2, the applicant who are the appellants herein, had the full opportunity and aware that they had the right to go for appeal under section 25 of the Act, to the High Court (or Appellate Board whenever the Patent Bench is formed) in the event of refusal for their application to the grant of Patent.

15. At that point of time, the provisions regarding the pre-grant under section 25(1) and post-grant oppositions under section 25(2) have come into force w.e.f. 01.01.2005, but the appeal provisions were only available under section 116 (2) of the Principal Act. The appellants have contested the opposition proceedings already initiated in 2004 prior to the commencement of the Patents (Amendment) Act, 2005 on 1.1.2005. This opposition proceedings came to an end with the hearing conducted in March 2007 and when the decision was issued by the respondent No.2 in March, 2009, the applicant who is the appellant have become aggrieved by the refusal of patent to his patent application and thus entitled for a right to appeal before the Appellate Board (as the Patent Bench because operational wef.2.4.2007) as equivalent to a proceedings of post-grant opposition under section 25(2) of the Act, which gives birth to a resultant activities, that is, a right of appeal to the Appellate Board under section 117A(2) of the Act. Citing the decisions and rulings of various courts, we are of the opinion, that when the proceedings under section 25(1) of the Act, have already begun and initiated, with the appeal provisions under section 117A(2) of the amended Act, this appeal shall only be treated as an original appeal and thus maintainable. We overrule the objection of the Registry and direct that the appeal be registered and the same be listed before us after the pleadings are completed in all respects.