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Judgment
P. Jyothimani, J.—The Petitioner is a registered Partnership Firm, registered in the name of Bharat Chamber in the year 2000, as a Small
Scale Industry. The Petitioner''s Firm has been registered as a dealer under the provisions of the Tamil Nadu General Sales Tax Act, 1959 and
also under the provisions of the Central Sales Tax Act. The Commercial Tax Department has also given IFST waiver to the extent of Rs.
6,40,000/- in respect of the transactions of the Petitioner''s Firm. While so, the General Manager, District Industries Centre, Ramanathapuram, the
First Respondent herein, has passed the impugned order on 23.5.2002 stating that the Petitioner''s Partnership Firm is using the term ""Bharath"",
which is equivalent to ""India"" and such term cannot be used by a Partnership Firm, and therefore, the concession given to the Petitioner''s Firm is
liable to be cancelled. Accordingly, the concession given by the Commercial Tax Department has been cancelled by the First Respondent, who
has nothing to do with the Commercial Tax Department. It is consequent to the order passed by the First Respondent, the Second Respondent
herein has passed another order on 27.5.2002, which is also impugned in this Writ Petition, cancelling the concession of Rs. 6,40,000/- given as
IFST Waiver. Challenging both the impugned orders, the present Writ Petition has been filed on various grounds. One of the main grounds, based
on which the present Writ Petition has been laid, is that there is no bar for any citizen in carrying on business either as a Partnership Firm or
otherwise in using the term ""Bharath"" and mere using the term ""Bharath"" cannot be said to be an offence under any Act. Moreover, it is the
contention of the learned Counsel for the Petitioner that registration of the Petitioner''s Partnership Firm in the name of Bharath Chamber, as-on-
date, still continues. Further, the registration under the Commercial Tax Department as ""Bharath"" has not been cancelled. It is only a waiver benefit
granted by the Commercial Tax Department, which has been cancelled by the First Respondent, who has nothing to do with the Commercial Tax
Department.
On the other hand, it is the contention of the learned Additional Government Pleader appearing for Respondents 1 & 2 that for the same relief,
the Petitioner has already approached the Civil Court, which has dismissed the Suit filed by him and the Appeal filed by him was also dismissed,
and therefore, he cannot be permitted to maintain the present Writ Petition.
It is also the contention of the learned Additional Government Pleader that u/s 3 of the Emblems and Names (Prevention of Improper Use) Act,
1950 [for brevity, the ""Emblem Act""], there is a prohibition in using certain names. According to him, as per the Schedule, use of the name of
Bharath will amount to making a patronage in the name of the Government for the business of the Petitioner, and therefore, the Competent
Authority has to decide u/s 4(2) of the Emblems Act.
On a careful consideration of the factual matrix, one aspect is clear, viz., the registration of the Petitioner''s Partnership Firm as-on-date stands in
accordance with the Indian Partnership Act, 1932 [for brevity, ""the Partnership Act""]. Under the Partnership Act, there is a restriction regarding
the use of certain names, while on Application is made before the registration of the Firm, as it is contained in Section 58(3) of the Act, which
reads as follows:
58(3). A Firm shall not contain any of the following words, namely.-
Crown"", ""Emperor"", ""Empress"", ""Empire"", ""Imperial"", ""King"", ""Queen"", ""Royal"", or words expressing or implying the sanction, approval or
patronage of [***] Government [***] except when [the [State] Government] signifies [its] consent to the use of such words as part of the Firm
name by order in writing.
A reading of the above, it is clear that the names of the Firms shall not be used with the words, which are mentioned in Section 58(3) of the
Partnership Act. However, either the word, ""Bharath"" or the word ""India"" finds no place as per the provisions of the Partnership Act. Therefore, it
cannot be said that the registration of the Petitioner''s Firm as ""Bharath Chamber"" is against the provisions of the Partnership Act.
Now, coming to the very vital contention, which has been raised by the learned Additional Government Pleader, by placing reliance on Section
3 of the Emblems Act, that the Government of India has passed the Act, called as ""Emblems and Names (Prevention of Improper Use) Act,
1950"", for the purpose of preventing improper use of emblems and names with professional and commercial in India, [sic] u/s 3 of the Emblems
Act, which reads as follows:
Prohibition of improper use of certain emblems and names.-- Notwithstanding anything contained in any law for the time being in force, no
person shall, except in such cases and under such conditions as may be prescribed by the Central Government, use, or continue to use, for the
purpose of any trade, business, calling or profession or in the title of any patent, or in any trade mark or design, any name or emblem specified in
the Schedule or any colourable imitation thereof without the previous permission of the Central Government or of such officer of Government as
may be authorized in this behalf by the Central Government.
There is a prohibition of the improper use of certain emblems and names. Under the prohibition in respect of use of the emblems and names are
categorized in the Schedule to the Act. On a reference to the Schedule to the Act, especially, Item No. 7, which is as follows:
Any name, which may suggest or be calculated to suggest-
(i) the patronage of the Government of India or the Government of a State; or
(ii) connection with any Local Authority or any Corporation or body constituted by the Government under any law for the time being in force.
It is clear that the use of emblem or name is prohibited only in cases, where the intention is to have a patronage by using the name of the
Government of India or Government of any State or Local Authority for the commercial benefit of the individual citizens. On a careful
consideration of the factual matrix, it is not even the case of the Respondents that the Petitioner''s Firm is using the term, ""Bharath Chambers"" for
the purpose of making patronage by using the name of the Government of India. While so, it is not known as to how the restriction imposed u/s 3
read with Schedule to the Act, especially Item No. 7 will apply to the facts of the present case.
In such view of the matter, the further contention of the learned Additional Government Pleader that when there is a dispute regarding the use of
emblem or name u/s 4(2) of the Emblems Act, the Competent Authority has to decide does not arise at all. It is pertinent to note that Section 4(2)
of the Emblems Act only deals with emblem and not about the use of the name. That apart, when the registration of the Petitioner''s Partnership
Firm stands as-on-date and the Commercial Tax Department itself has not cancelled the registration of the Petitioner''s Partnership Firm, as per the
Tamil Nadu General Sales Tax Act, 1959, the First Respondent herein has no jurisdiction at all to decide about the cancellation of IFST Waiver
granted by the Commercial Tax Department. This is purely an excess of power, which has been exercised by the First Respondent, which is totally
arbitrary in nature.
As submitted by the learned Counsel for the Petitioner, the High Court of Andhra Pradesh had an occasion to decide about Section 3 of the
Emblems Act in the case of South India Textiles and Others Vs. Government of Andhra Pradesh and Others, That was a case, where the term
South India Textiles"" was questioned, on the basis of Section 3 of the Emblems Act enumerated above. While dealing with the term ""South India"",
the learned Judge of the High Court of Andhra Pradesh has held that by no stretch of imagination, it can be said that it is improper use within the
meaning of Section 3 of the Emblems Act. The learned Judge has further held that the refusal of permission to use the word ""India"" in the firm''s
name is in excess of the power. It is worthwhile to refer to Paragraph Nos. 6 & 7 of the said order, which reads as follows:
Under the Schedule, the relevant clause is 7 which reads thus:
Any name which may suggest or be calculated to suggest--
(i) the patronage of the Government of India or the Government of a State.
Therefore, notwithstanding anything contained in any law whether the emblem or name purports to use for the purpose of any trade, business
calling or profession as specified in the Schedule it shall not be used except with the previous permission of the Central Government or of the State
Government. In this case, the use of the word ""South India"" does not reflect upon any State Government or the Government of India nor signifies
any patronage. South India is not a State. It is a common name for many a Firm or Proprietary Concerns. Therefore, by no stretch of imagination,
it can be said that it is improper use within the meaning of Section 3 of the Emblems Act.
Accordingly, the refusal of the permission to use the word ''India'' in the firm''s name is in excess of the power. The impugned order is
accordingly quashed. The Second Respondent is directed to register the name of the Firm of the Petitioner as per law under sub-section (1) of
Section 58 of the Act.
In such view of the matter, looking into any angle, I am of the considered view that the impugned orders passed by Respondents 1 & 2 are totally
contrary to law and without jurisdiction and they are liable to be set aside. Accordingly, the impugned orders dated 23.5.2002 and 27.5.2002
passed by Respondents 1 & 2 are set aside and the Writ Petition stands allowed. No costs. Consequently, connected Miscellaneous Petitions are
closed.