1. ' Through this petition the petitioners have prayed as follows:--
(1) Declare that the impugned Notification No, S.R.O. No,575(I)/2000, dated 15-8-2000 is ab initio void, ultra vires, arbitrary, illegal, mala fide and without lawful authority and without any legal effect.
(2) Declare that the action of the respondent No,2 in demanding additional/balance fees before issuance of the impugned notification, dated 15-8-2000 and/or giving it a retrospective effect by applying the same on pending case as illegal, arbitrary, ab initio void and without any legal effect.
(3) Direct the respondents to allow adjustment of fees paid with effect from 15-10-2000 and/or refund of the fees paid in excess of the official fees as prescribed in the First Schedule which was in force with effect from 1-7-1997.
(4) Declare that the impugned notification, dated 15-8-2000 is against the law envisaged by section 8(1) of the Trade Marks Act, 1940 and section 23 of the General Clauses Act, 1897.
(5) Grant cost of the petition.
(6) Grant any other relief or reliefs which this Honble Court deems fit and proper.
2. ' The petitioners have assailed S.R.O. No, 575 (I)/2000, dated 15-8-2000 as having been issued without lawful authority.
3. ' According to the petitioner the Trade Marks Act guides, regulates and promotes the law of Trade Marks in Pakistan. On the other hand the petitioner No,1 is primary objective is to promote intellectual property in Pakistan and create awareness amongst the public about their rights and obligations. They are also acting as watchdogs against any changes that is brought about in the Act which may negate the fundamental and basic right in connection with intellectual property.
4. ' Through a Notification S.R.O. 862 (1)/1992, dated 8-9-1992 the Government of Pakistan published a draft of amendment in the revised Trade Marks Rules under section 84 of the Trade Marks Act.
5. Through these proposals the fees structure being charged by the Trade Marks Registry was to be increased. 30 days' time was given after the publication in the official Gazette to all persons who would be affected by this amendment to come forward and place their objections. Objections were filed and the Notification was not given effect to.
6. ' Thereafter, according to the petitioner from first June, 2000 fresh charges based on the revised scales were levied and recovered.
7. ' Through a notification, dated 15-8-2000 the impugned S.R.O. No,575(I)/2000 was published. This Notification was purported to have been published under section 84 (m) of the Trade Marks Act.
8. Through this Notification the Federal Government was pleased to allow amendments in the Trade Marks Rules. Once again the revised set of fees was published.
9. ' According to the petitioners this was done in clear violation of section 84 of the Trade Marks Act.
10. The petitioners have also pointed out that the S.R.O. No,862(I)/ 1992 was properly issued as required under the Act.
11. ' The petitioners have also relied on section 23 of the General Clauses Act and have insisted in publication of impugned Notification the said section has also been violated. It would be appropriate to reproduce section 84 of the Trade Marks Act and section 23 of the General Clauses Act: Section 84 of the Trade Marks Act:
1. The Federal Government may, subject to the condition of previous publication by Notification in the official Gazette, make rules to carry out the purposes of this Act.
12. 2.
13. (a)
14. (b)
(c) #TBS (0
(i) (k)
15. (1)
(m) #TBE prescribe the fees to be paid under this Act.
16. Section 23 of the General Clauses Act: ' Provisions applicable to making of rules or bye-laws after previous publication--where, by any Central Act or Regulation, a power to make rules or bye-laws is expressed to be given subject to the condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:--
(1) The authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed rules or bye-laws for the information of persons likely to be affected thereby.
(2) The publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to previous publication so requires, in such manner as the Central Government or the Provincial Government prescribes.
(3) There shall be published with the draft a notice specifying a date on or after which the draft will be taken into consideration.
(4) The authority having power to make the rules or bye-laws and, where the rules or bye-laws are to be made with the sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion which may be received by the authority having power to make the rules or bye-laws from any person with respect to the draft before the date so specified.
(5) The publication in the official Gazette of a rule or bye-law purporting to have been made in exercise of a power to make rules or bye-laws after previous publication shall be conclusive proof that the rules or bye-law has been duly made.
17. ' We have heard the learned counsel for the petitioners and the learned Dy. A.-G. We have also noted the contents of the comments filed. We have noted that the respondents have denied the allegations in the petition and have insisted that the provisions of section 84 and section 23 for the General Clauses Act have not been violated. They have also insisted that the increase in fee was in keeping in consonance with the overall increased in prices, decline in the value of the rupee and the realistic assessm ent of overall fee structure that should be practically implemented. According to them nothing wrong has been done by the respondents. At the time of arguments the petitioners brought to our attention letters addressed by the respondents wherein it has been pointed out that the revised draft rules along with the revised fee schedule is to be promulgated soon. Old rules alongwith the Schedule shall be repealed. This letter is, dated 1st March, 2001.
18. Keeping in mind this letter and also the fact that the impugned notification has not been issued strictly in consonance with section 84 (1) of the Trade Marks Act and that new rules alongwith the fee schedule are to be announced after A soliciting objections/view-points of the public we would hold that the impugned notification is issued without lawful authority. All amounts so received from August/October, 2000 uptill the date of this order shall be considered as past and closed transaction. The petitioners shall not make any demands for refund or adjustment. The old rates shall be applicable from the 12th April, 2001. These rates shall seize to have effect when the formalities as required under the law in respect of the revised rules and fees schedule is lawfully completed and formalized and announced. It will be in the interest of the respondents to formalize the revised rules and fees as soon as possible. The petition stands disposed of.