Geographical  Indications :

Indicators  of  Source  and  Quality  with  Untapped  Potential  

(By Dr. Raju Narayana Swamy, I.A.S.,  Ph.D., Secretary to Government of Kerala, Chairman,  K.B.P.S. & Homi Bhabha Fellow)

 

Geographical Indications (GIs) are a type of intellectual property right associated with place - based names.  To be specific, they are distinctive signs or names identifying   products typical to and located in a specified geographical area, where a given quality, reputation or other characteristics of the product are essentially attributable to that particular geographical origin.  Florida Oranges, Swiss Watches, Roquefort and Champagne are typical examples.  They provide consumers information about the origin and arouse expectations among them either based on the reputation acquired by the product on account of its cultural connection with the region or environmental conditions and natural factors (soil, weather, temperature etc) or a combination of both.  There may be other reasons too - method of manufacture, concentration of similar business in the same region,  to name of few. For example, soil from a particular region might help produce a distinctive tasting onion and the highly controlled environment in the Silicon Valley (California) may provide the conducive situation for artificial production of silicon crystals. In other words GIs emphasize the relation between human efforts, culture, land resources and environment.  The goods may be agricultural products, manufactured goods, handicrafts or even foodstuff.  But the common thread that runs through them is the heritage of the community of producers in the geographical locality that bestows reputation and goodwill and makes their products share the same characteristics, entitling them to use distinctive signs for differentiating their products form competing goods in the market.  

It needs to be emphasized here that GI is a collective public right.  No single enterprise or group of enterprises owns it. It cannot be the subject of an assignment.  In fact, all enterprises in the specified geographical area are entitled to use it and all others are prohibited from doing so.  Thus a GI is like a trademark in that both are indicators of source and quality.  But a GI is unlike a trademark in that a GI does not identify a single commercial source.  However, GIs that have become generic are not deemed to mislead the public.  An oft quoted example is  Parmesan cheese in US.  No consumer relates it to its origin in Parma, Italy .  Another example is “calico” which was used in old times to refer to cotton cloth imported into Europe from the Indian seaport of Calicut, but has now become generic to refer to any coarse cotton cloth. Moreover the indication need not necessarily be a geographical name.  Alphonso mangoes (the special mangoes from Ratnagiri district of Maharashtra), Feni liquor and basmati rice are classic examples.  It could be even a mark like the logo of the Tea Board of India. The use of a GI can be combined with a trademark. An example is “Chivas Regal Scotch Whisky” in which “Chivas Regal” is a trademark and “Scotch Whisky” is a GI. Upon registration, GIs can have life to perpetuity through renewals from time to  time. 

Closely related to the concept of GI are the two terminologies “indication of source” (labels such  as ‘Made in America’) and “appellation of origin”.  To quote from Albrecht Conrad, [‘The Protection of Geographical Indications in the TRIPS Agreement, Albrecht Conrad, 86 Trademark Rep 11, 13(1996)]

“Indication of source” refers to a word, symbol or device that indicates that a product originates in a specific geographic region.  

“Appellation of origin” refers to a word, symbol or device that indicates that a product originates in a specific geographic region only when the characteristic qualities are due to the geographical environment, including natural and human factors.  

“Geographical indication” includes both of the above concepts.  

The following table gives a birds eye view of some of the registered GIs in India.  

Table 1
Geographical Indications	Goods	State
Aranmula Kannadi	Handicraft	Kerala
Mysore Silk	Handicraft	Karnataka
Darjeeling Tea	Agricultural	West Bengal
Mysore Sandal Soap	Manufactured	Karnataka
Madhubhani Paintings	Handicraft	Bihar
Thanjavur Doll	Handicraft	Tamil Nadu
Tirupathi Laddu	Foodstuff	Andra Pradesh
Lucknow Chiken Craft	Handicraft	Uttar Pradesh
Kashmir Pashmina	Handicraft	J .& K.
Gir Kesar Mango	Agricultural	Gujarat

Thus of the GIs that have been granted registration in India, there are 

a. Handicraft goods: - Examples include Salem Fabric, Solapur Chaddar and Kancheepuram Silk.

b. Agricultural Goods :- Examples include Palakkadan Matta rice, Malabar pepper and Coorg green cardamom.

c. Manufactured goods: - Examples include Coimbatore West Grinder and Nashik Valley wine

d. Foodstuff :- Examples include Hyderabad Haleem and Dharwad Pedha.  

As on February 2013, 193 products were registered under the GI Act.  These include 128 handicrafts, 46 agricultural products, 3 food products and 16 manufactured ones.  The State that ranks first in registration of GIs is Karnataka.  Tamil Nadu ranks second in this respect.   

Products of foreign origin have also been given GI registration in India.  The first such application filed by a foreign country after the registry started receiving applications in September 2003 was the one filed by the Government of Peru seeking GI protection in India for its national liquor Pisco which derives its name from the Pisco  Valley, 300 k.m. south of the capital Lima. GI recognition has also been granted to Champagne and Cognac of France, Napa Valley of U.S.A., Scotch Whisky of U.K. and Prosciutto di Parma of Italy.  

Needless to say, GIs offer tremendous potential for India, vis-a-vis protection of its traditional products given the diversity of the country - whether it be in terms of its natural resources, cultural heritage or climate.  It is the poor man’s IP-a powerful instrument to enrich the hands of weaker sections.  

As researchers for the UN Food and Agriculture Organization note, “Today this link among a product, a place and the inhabitants not only represents a heritage to be preserved, but also has market value in its own right as consumers become increasingly interested in quality linked to geographical origin,  traditions and typicity.”  ( Emilie Vandecane lacre etal, UN Food and Agricultural Organization, Linking People, Places and Products:  A Guide for promoting Quality linked to Geographical Origin and sustainable Geographical indications XIX (2009) available at http://www.fao.org/aglags/ags-division) publications/publication/en/? dyna- fef% 5 Buid% 5D = 41350).

At  the same time, there  have been criticism too- Tirupathi Laddu being a typical case in point.  Allegations are galore that it amounts to commercialisation of faith symbols, nay indulging in faith trading in the  guise of altruism.

The  International  Framework

a)  The Paris Convention 1883

The Convention did not use the term geographical indications, but created provisions for the protection of ‘indications of source’ or 'appellations of origin’.  These terms were however left undefined.  The relevant provisions are 

i. Article 1 (2):- “The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin and the repression of unfair competition.” 

ii. Article 10 False Indications: Seizure, on importation etc., of goods bearing false indications as to their source or the identity of the producer. 

b) The Lisbon Agreement 1958

This was the first instrument that defined the term ‘appellations of origin’ at the international level.  Article 2(1) defines this to mean

“ the geographical denomination of a country, region or locality which serves to designate a product originating therein,  the quality or characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors." 

It is noteworthy that appellations of origin, once registered were granted protection in perpetuity (Art.7).  The Lisbon Agreement stipulated two requirements for protection of appellations of origin- first that it must be protected in the home market and second, that it must be registered with WIPO.  

c) Agreement on Trade Related Aspects of Intellectual Property Rights

(TRIPS Agreement ) 

In the pre-TRIPS era, specific laws vis-a - vis GIs were a rarity.  The only available modalities were trademark law (certification or collective marks) labelling and related regulations (particularly those pertaining to alcoholic beverages) and laws on unfair competition.  But TRIPS drastically changed the scenario by requiring that 

“ Members shall provide the legal means for interested parties to prevent

a) the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good and 

b) any use which constitutes an act of unfair competition......”

The  TRIPS Agreement obliges WTO members to provide protection for GIs without imposing the means of protection.  Thus a member may opt to protect GIs  under a suigeneris system, collective marks (marks that belong to an association eg., UAW for United Auto Workers) or certification marks regime   (such as WOOLMARK which certifies that goods on which it is used are made of 100% wool ), consumer protection law and common law without violating the  TRIPS agreement (Tshimanga Kongolo, Unsettled Intellecutal property Issues       Kluwer Law International, 2008).  

Articles 22,23,24 of the TRIPS Agreement deal with GIs.  In fact, Article 22.1 defines Geographical Indications as  ‘Indications which identify a good as originating in the territory of a member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.' 

Article 22.3 goes on to stipulate that the registration of a trademark which uses a GI in a way that misleads the public as to the true place or origin must be refused or invalidated ex officio if the legislation permits or at the request of an interested party.  Article 23 provides for additional protection for GIs for wines and spirits.  To quote from Article 23.1, “ each member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as “ kind” , “type”, “ style” , “ initiation” or the like”."

The seeds of the higher protection of GIs for wines and spirit lies in para. 2 Art. 23.  The crux of the matter is that the misleading element is not required to invalidate or refuse registration in Art. 23 unlike under Art. 22 where it is the substantial component playing against registration.  

But the higher protection granted to wines and spirits by the TRIPS Agreement has attracted brickbats from various quarters.  Some have even gone to the extent of arguing that this two tired system is armed at protecting the historical dominance of Europe over the wine market.  Some countries attempted to broaden the additional protection for wines and spirits to bevarages such as tea with little success during TRIPS negotiations. 

 Art.24 stipulates that Members agree to enter into negotiations aimed at increasing the protection of individual GIs under Art. 23.  It also spells out exceptions wherein countries are not obliged to provide protection for claims vis-a-vis geographical indications.  Two such exceptions are 

a) a product has already become generic 

b) the product does not have national GI protection.  

Restrictions of GIs to goods alone, toothless mechanisms for GIs and wide discretion accorded to member countries are oft quoted failures of TRIPS.  Add to these the fact that only false usage of GI amounts to infringement under the TRIPS regime and the picture is complete.  

GIs also find recognition in Art.1712 of the NAFTA (North American Free Trade Agreement) (32, ILM, 319, Dec 17, 1992 Canada- Mexico- United States). But a major point of divergence between NAFTA and TRIPS is in the treatment of GIs for wines and spirits.  NAFTA accords no special treatment to them unlike TRIPS that devotes a whole article to them.  

Special mention should be made here of the Madrid Agreement for the Repression of False or Deceptive Indications of Source of  Goods and the Stressa Convention of 1951 as well. 

The former, for instance, provides (in Article1(1) ) that 

“All goods bearing a false or deceptive indication by which one of the countries to which this Agreement applies or a place situated therein is directly or indirectly indicated in being the country or place of origin shall be seized on importation into any of the said countries.”

The  National  Scenario

The first statute for the protection of GI was enacted in the France, the French Law of 1919.  

The Indian national framework for GIs is based on the Geographical Indications of Goods (Registration and Protection) Act 1999 (GI Act ) and Rules 2002 which came into force in September 2003.  

Before the Act, there were three ways to prevent misuse of GIs 

a)  through passing off action

b)  under consumer protection laws or 

c)  through CTM ( Certification Trade Marks)

In the Indian context, the most common geographical name protected under CTM prior to the GI Act was Darjeeling Tea (Pettigrew June 2000, Darjeeling Tea’s New Certificate of Origin, Tea and Coffee Trade Journal, 20 June).  But despite the above three ways, the absence of a specific Act led to rampant misuse of GIs.  

The pressing need for separate legislation for GIs however was two fold :

a) the controversial patenting of Basmati rice by a US based company, Rice Tec and the widespread report of tea from other countries being passed off as Darjeeling tea.  India realized that if it needed to protect its own GIs globally, it needed to protect them at the national level to begin with. 

b) International commitment: Being a signatory to the TRIPS agreement , India is obliged to set into place national intellectual property laws which also include GI laws (Changing Institutions to protect Regional Heritage: A Case for Geographical Indications in the Indian Agrifood sector, Pradyot R. Jena, Ulrike Grote) 

It was in this scenario that India as a member of the WTO enacted the GI Act.  The very first registration in India was for Darjeeling Tea- filed in October 2003.  

The objectives of the Act are unambiguously stated in the Preamble:

“An Act to provide for the registration and better protection of geographical indications relating to goods.” 

The Act defines geographical indications in relation to goods as (Section 2(1) (e)).

“an indication which identifies such goods as agricultural goods, natural goods or manufactured goods as originating or manufactured in the territory of a country or a region or locality in that territory where a given quality, reputation or other  characteristic of such good is essentially attributable to its geographical origin and in case where such goods are manufactured goods one of the activities of either the production or of processing or preparation of the goods concerned takes place in such territory, region or locality as the case may be.” 

This definition is obviously based on the TRIPs definition with the added criterion that in the case of manufactured goods at least one of the activities - either production, processing or preparation of the goods concerned should take place in the specified geographical area.

The fact that the GI Act is more restrictive than the TRIPs definition can be explained using the example of Darjeeling tea as follows.  (Changing Institutions to Protect Regional Heritage: A case for Geographical Indications in the Indian Agrifood Sector, Pradyot R. Jena, Ulrike Grote) 

“Darjeeling tea involves manufacture  because the green tea leaves plucked from the tea bushes have to go through a range of rigorous processing stages before turning into the final product (called “made- tea”)  which is ultimately sold in the market.  Now, even if the tea leaves are plucked from the Darjeeling region, the GI Act will not allow the final product to be designated as  Darjeeling tea unless the processing also takes place within the Darjeeling region.  The TRIPS definition will however allow the final product to be designated as Darjeeling tea even if the processing takes place outside Darjeeling because no matter where the processing takes place, the given  quality or characteristics (such as flavour etc) of the final product will essentially be attributable to its geographical origin."

The Act stipulates that the Controller General of Patents, Designs and Trade Marks shall be the Registrar for GIs, In fact, the GI Registry has been established at Chennai by the Government of India. It has All India Jurisdiction. Its address is:

 

Geographical Indications Registry, Intellectual Property Office Building, Industrial Estate, G.S.T. Road, Guindy, Chennai.

 The classification of goods is stipulated in the Fourth Schedule. Examples of classes include:- 

Class 12: Vehicles; apparatus for locomotion by land, air or water

Class 15 : Musical instruments

Class 23: Yarns and threads, for textile use

Class 25 : Clothing, footwear, headgear

Class 32: Beers, mineral and aerated waters and other non alcoholic drinks, fruit drinks and fruit juices, syrups and other preparations for making beverages

Class 33: Alcoholic bevarages (except beers) 

Class 34 : Tobacco, smoker’s articles, matches.

 It is unambiguously specified in Section 8(1) that "a geographical indication may be registered in respect of any or all of the goods comprised in  such class of goods as may be classified by the Registrar....”

The salient features of the Indian legislation are the following:- 

a)  Application  for  GI Registration (Section 11)

Any association of persons or producers as well as any organisation or authority established by or under any law for the time being in force representing the interest of the producers of the concerned goods (eg: Tea Board) may apply for GI registration.  

The application will then be examined by experts appointed by the GI registry.  If accepted, the application will be advertised in the GI journal so as to facilitate scrutiny by the public.  If no objection is received, then a GI certification is awarded.  However if there is opposition and it results in a refusal, the applicants are left with the option of appealing to the IPAB  (Intellectual Property Appellate Board).  If the appeal is allowed, the registration certificate is issued.  

It is stipulated that the registration of a GI shall provide

a) to the proprietor and authorized users - the right to obtain relief in respect of infringement.

b) to the authorized user- the exclusive right to the use of GI in relation to the goods in respect of which the GI is registered.  

b)  Certain  GI s  are  prohibited  from  getting  registered (Section 9)

These include GIs which contain scandalous or obscene matter, which are determined to be generic names, which would be likely to deceive or cause confusion etc.  

c) Applications under Convention Agreement and Provision as to Reciprocity (Section 84,85)

Section 84 (1) stipulates that

“with a view to the fulfillment of a treaty, convention or arrangement with any country which is a member of a group of countries or union of countries of Intergovernmental Organisations outside India which affords to  citizens of India similar privileges as granted to its own citizens, the Central Government may by notification in the official Gazette declare such country or group of countries or union of countries or Inter-Governmental Organizations to be a convention country or convention countries for the purposes of this Act.”

d) Register of GIs ( Section 6) 

“...........a record called the Register of Geographical Indications shall be kept at the head office of the Geographical Indications Registry........”

The Register has two parts - Part A containing particulars relating to registration of GIs and Part B containing those relating to registration of authorized users. It may be noted that registration of a GI is not compulsory. However, without registration, no action for infringement can be initiated under the GI Act. Further, it may not be possible to obtain protection for the GI in a foreign country without such registration. 

e) Period of registration ( Section 18 (1))

Registration of a GI shall be for a period of ten years but can be renewed from time to time.  Renewal is for further periods of ten years.  If a registered GI is nor renewed, it is liable to be removed from the register.

f) Appeals to the Appellate Board ( Section 31(1) & (3))

Any person aggrieved by an order or decision of the Registrar may prefer an appeal to the Appellate Board.  Section 2(1) (a) specifies that Appellate Board means the Board established under section 83 of the Trade Marks Act, 1999.

g) Bar of Jurisdiction of Courts ( Section 32) 

“ No court or other authority shall have or be entitled to exercise any jurisdiction , powers or authority in relation to the matters referred to in sub-section (1) of Section 31.”

h) Prohibition of registration of GI as a trade mark (Section  25) 

“ Notwithstanding any thing contained in the Trade Marks Act, 1999, the Registrar of Trade Marks shall, suo motu or at the request of an interested party, refuse or invalidate the registration of a trade mark which contains or consists of a geographical indication ..........”  

I.  In fact, registration of a GI as a trademark is prohibited both in the Trade Marks Act and in the G.I. Act. As per the Trade Marks Act 1999, marks which consist exclusively of indications which may serve in trade to designate the geographical origin of the goods cannot be registered as trademarks. Thus all that is required to prevent registration of a GI as a trademark is to give a representation with documentary evidence to the Registrar of Trade Marks.

At the same time, Section 26 provides for protection of certain trademarks. 

i)  Additional  protection  to  certain  goods  ( Section 22 (2) & Rule 77)

“ An application may be made to the Registrar in respect of goods notified by the Central Government under section 22(2) for additional protection for a registered geographical indication........”

j) Powers of Registrar (Section  60)

The Registrar shall have all the powers of a civil court for receiving evidence, administering oaths etc. 

k) Recognition of common law rights of proprietors of unregistered GIs (Section 20(2)) 

“Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof.”

l) Infringement of a Registered GI (Section 22 (1)) 

“A registered GI is infringed by a person who not being an authorized user thereof 

a) Uses such G.I. by any means in the designation or presentation of goods that indicates or suggests that such goods originate in a geographical area other than the true place of origin of such goods in a manner which misleads....or

b) Uses any GI in such manner which constitutes an act of unfair competition including passing off in respect of registered GI.”

m) Penalties (Section  39-44) 

These include

i)  Penalty for applying false GIs (including penalty for mere possession of die, block, machine, plate etc for falsifying a GI)

ii)  Penalty for selling goods to which false GI is applied

iii)  Penalty for falsely representing a GI as registered 

iv)  Penalty for improperly describing a place of business as connected with the GI Registry 

v)  Penalty for falsification of entries in the register. 

It needs to be reiterated that the Act provides civil and criminal remedies for falsely dealing with G.I.  

n) Suit for infringement etc. to be instituted before District Court ( Section  66) 

In fact, authorities claim that the Act has two key characteristics:

i) protection of  producers against counterfeiting and misleading commerce.

ii) striking a balance between trademark and GI protection ( Ravi V.2003, Protection of GIs in India, Presented at WIPO Asia Pacific Symposium on GIs, Delhi, 18-20 November) .

It is also noteworthy that while Art.23 of TRIPS affords a higher protection to GIs  denominating wines and spirits only, the corresponding provisions in the Indian Act do not restrict themselves to wines and spirits alone ( Das, Kasturi 2006, International Protection of India’s Geographical Indications with Special Reference to Darjeeling Tea, The Journal of World Intellectual Property, 9(5), 459-495) 

A few case studies

1. Cafe’ De Colombia (Geographical Indications as a Tool to Promote Sustanability? Cafe’de Colombia and Tequila Compared: Jennifer Barnette, Ecology Law Currents, 2012, University of California, Berkeley, School of Law) 

Colombia is the world’s third largest exporter of coffee.  The Cafe’ De Colombia GI was established in 2005 to promote Colombian coffee abroad.  It certifies that the coffee is grown in a limited production area of Colombia, from Arabica beans at an altitude 400-2500 meters above sea level.  The GI area is limited to the districts of the central coffee belt.

Cafe’ de Colombia GI is owned by the FNC (Federation of Coffee Growers- Spanish acronym), a co-operative organization managed by coffee growers themselves.  They feel that GIs are 

i) an important instrument to promote product differentiation 

ii) a protection against unfair competition to Colombian coffee growers and marketers   

iii) a legally binding guarantee of origin for consumers 

 

(Gabriel Silva, Colombian Coffee Growers Federation, Geographical Indications:  The case of Colombian Coffee (2008) available at http:// dev.ico.org/event-pdfs/gi/presentations silva.pdf)

Students point out that the FNC has managed this GI in a way that 

a) enhances consumer awareness of Colombian coffee abroad

b) enables the GI product to command a higher price based on its reputation for quality

(Lennart Schobler, Protecting ‘Single- Origin Coffee” within the Global Coffee Market: The Role of Geographical Indications and Trademarks, 10 ESTEY CENTRE J. INT’L L TRADE POL’Y 149,170 (2009)

The FNC has established the National Coffee Fund which is to fund a variety of initiatives that promote producer well being ( Nadja El Benni & Sophie Reviron, Swiss National Centre for Competence in Research, Geographical Indications: Review of Seven Case Studies World wide ( NCCR, Trade Working paper No 2009/15,2009)).  This fund gives farmers a price guarantee for purchase of their beans, by ensuring that they will buy coffee that farmers produce even when the global market is down.  In such cases, FNC stores the surplus coffee in warehouses till prices stabilize.  At the same time, there is no compulsion on the farmers to sell their coffee to FNC and they often choose not to do so when world prices exceed the floor price offered by FNC.  This system provides a buffer against volatility of the world coffee market and ensures growers a return on their production.  To quote from the horse’s mouth, 

“ While producer incomes fluctuate with the market, the strength of the FNC in representing the interests of coffee growers nationally  and internationally has given producers a valuable role in the coffee supply chain.”

(Colombian Coffee Growers Federation, Sustainability that Matters: 1927-2010, 60(2011) available at http://www.federaciondecafeteros.org/ static/files/informe-sosteriibilidad- eng.pdf)

In addition, the National Coffee Fund has been used to improve the lives of farmers by investing in infrastructure, health  and education in rural coffee growing regions.  More than 6000 schools, 180 hospitals  and 200 health clinics have been established.  Availability of clean drinking water and sanitation has improved.  68 connectivity centers have been established: facilities that provide internet access to rural producers and educate them in the use of ICTs (Sustainability that Matters: Colombian Coffee Growers Federation, http:// www.federaciondecafetors. org/ particulares /en/sostenibilidad-en-accion/)

Through the FNC’s Biodiversity and Coffee Growing Project, in collaboration with the World Bank, more than 27000 hectares of coffee have been certified as sustainable and environmentally friendly and more than 450 hectares have been reserved as biodiversity conservation corridors.  Other projects have supported forest and water conservation, soil erosion prevention and climate change mitigation as well as research on climate change resistant crops.

Thus FNC is an organisational model of GI management with ability not only to empower local producers but also to enable environmental preservation. 

2. Tequila ( Geographical Indications as a Tool to promote sustainability? Café’ de Colombia and Tequila compared.  Jennifer Barnette, Ecology Law Currents, 2012, University of California, Berkeley, School of Law) 

Tequila is Mexico’s national drink.  It is made by fermenting and distilling the roasted heart of the blue agave plant (agave tequilana) (Sarah Bowen and Ana Valenzuela Zapata, Geographical indications, terroir and socio economic and ecological sustainability: The case of tequila 25 J. RURAL STUD.108, 110 (2009)).  The Mexican government established the GI for tequila as early as 1974.  A private nonprofit organization, the C.R.T. (Spanish acronym of Tequila Regulatory Council) is tasked with protecting the GI in Mexico.  But unfortunately the tequila companies retain a monopoly over decision making and the agave producers are left in the lurch with virtually no representatives on the CRT Board of Directors. 

In fact, C.R.T. management decisions have eroded the importance of the specific ‘ terroir’ of the agave - producing region.  Demands of producing for an international market have worsened the situation.  For example, the CRT enlarged the size of the GI region to incorporate regions without a tradition of agave cultivation.  Moreover, the norms governing Tequila GI do not dictate appropriate agricultural practices or incorporate traditional knowledge.  To make matters worse, the GI even covers tequila that is not made purely from blue agave.  Out of the two types of tequila protected by the GI, one (viz) tequila mixto is made from 51% blue agave alcohol and 49% alcohol from other sugars.  Consumers of this variety cannot definitely appreciate the unique qualities of the agave plant grown in the GI region. 

In addition, many tequila companies have consolidated in the face of international supply and demand challenges, further diminishing the role of local producers.  To ensure stability of agave supply, much has been done to consolidate agave production into the hands of the four largest tequila companies.  These multinationals have expanded their control within the supply chain by creating their own plantations, making it more difficult for small farmers to sell their agave to distillers.  

Independent farmers have only two options left - establish advance purchase contracts with the distilleries or depend on an intermediary to sell their agave.  The former comes with strings attached whereas the latter fetches very low prices.   And when international liquor companies brand tequila, they emphasize bottler’s name as opposed to the region where the tequila was produced. 

In particular, as control over agave production has shifted to tequila companies, traditional cultivation techniques have been replaced by mechanization and chemically intensive production systems.  The practice of leaving land fallow for several years between cultivation cycles is unheard of now.  Crops are planted every season to maximize immediate production.  These short fallow periods between cycles negatively affect soil fertility, requiring more chemical inputs and harming both the environment and productivity  of the land. 

According to a recent study, agave producer incomes vary widely, fluctuating with the boom and bust cycles.  Thus the Tequila GI has not been successful either in promoting rural economic development or in maintaining sustainable agricultural practices.  The management of the GI has not allowed for benefits to trickle down.  To moral of the story is clear: the goals are best accomplished when GI is managed by local producers.  

3. Basmati 

Basmati, the queen of fragrance, known for its aroma has been grown in the foothills of the Himalayas since time immemorial.  Its taste is attributed to the soil in which it is cultured.  But in 1997, an American company Rice Tec Inc was granted patent by the USPTO to the aromatic rice grown out side India as Basmati.  In fact, the firm filed for registration of Texmati, Kasmati and Jasmati trademarks on rice varieties claimed to be imitations of the Basmati grown in India.  The patent no doubt was a vitiation of the rule of prior art and involved infringement on the treasures of India.  It is a violation of the TRIPS and amounts to biopiracy, trade mark deception and is a case of passing off trade.  The specific attributes of Basmati are unique due to its geographical origin which has its clear space in TRIPS.  Ultimately India won the case- the most important victory being the change of nomenclature from Basmati lines and grains to rice lines BAS 867, RT 1117 and RT 1121. But the most important effect of the case was that it provided the wakeup call to pass legislation protecting products specific to geographical regions.  

4. Tirupathi  Laddu

The Tirumala Tirupathi Devasthanam (TTD) secured a GI protection for the prasadam offered to the devotees - perhaps the first time that an offering at a religious shrine was recognised as a GI. (Tirumala gets Geographical Indication Certifcation, The HINDU, Sept 16, 2009).  The pitfalls herein have been gone into in detail by Meghana Banerjee and Susanah Naushad (Grant of Gerographical Indication Designation to Tirupati Laddu: Commercialization of Faith? January - March 2010) 

“..... If a group of cooks in and around Tirupati skilled in the art of making laddus prepared these laddus and supplied them after proper quality checks for distribution among the pilgrims, then the GI registration would have been warranted because then an entire class of people would be benefitting from the use of the GI........ the whole purpose of registering a good as a GI is to ensure that economic benefits are uniformly distributed among all the producers of a geographic region whose products share similar characteristics and quality.  It does not seek to protect the business interests of a single producer in a particular region.  Therefore, apart from being per se violative of the provisions of the statute, granting GI to a wealthy spiritual institution like TTD goes against the very spirit of the GI Act.... the use of GI tag for creation of monopolies is simply unacceptable and may send wrong signals to the public that GIs are available for solo producers as well.......logically speaking the temple would have to share the use of the GI with all those Laddu makers who comply with the standards used in the temple to produce identical laddus."

Needless to say, the Registry has set a bad precedent in this regard by granting an unsuitable and undeserving product the GI tag.

Case  Laws

1. Tea Board, India v. I.T.C. Limited ( GA NO 3137 of 2010, GA No 1631 of 2011 and CS No 250 of 2010) 

I.T.C. Limited, a company incorporated under the Companies Act 1956 named a section of its luxurious Sonar Hotel in Kolkata as Darjeeling Lounge.  This was objected to by the plaintiff who claimed exclusive right in the GI for the name Darjeeling.  The Hon’ble Court declined injunction to the plaintiff and made the following observations: - 

“i) The focus of the GI Act is on goods. 

ii) The defendant’s use of “Darjeeling” is not in connection with the designation or presentation of any goods. 

iii) The word “ Darjeeling” - as precious to tea as it may be as champagne to sparkling wines of that province in France- cannot be exclusively claimed by the plaintiff by virtue of its registration as a geographical indication or as a certification trademark......  It is not necessary to consider whether a “ Darjeeling Tea Stall” selling only hot cups of tea can entitle the plaintiff to carry a complaint in respect thereof or a “Darjeeling Tea House” selling all varieties of packaged tea can be said to be in derogation of the plaintiff’s rights.  The defendant’s  “Darjeeling Lounge” is an exclusive area within the confines of its hotel which is accessible only to its high-end customers.  The lounge is a place where such customers and accompanying visitors may frequent and even sip Darjeeling tea or any  other beverage or drink, but there is scarcely any likelihood of deception or confusion in the lounge being named “ Darjeeling” for the plaintiff to be granted any order that it seeks.  

iv) As to the case of dilution, the name “ Darjeeling”  has been extensively used in trading and commercial circles for decades before the GI Act was enacted..... the word “ Darjeeling” has been and continues to be so widely used as a business name or for like purpose for so long that the plaintiff’s recent registration would prima facie not entitle it to enjoy the kind of exclusivity that it asserts.”

The Hon’ble Division Bench reaffirmed these findings of the learned Single Judge. 

2. The Scotch Whisky Association and Others v. Golden Bottling Limited CS (OS) No 406/2004]

In this case, the Hon’ble High Court of Delhi held the view that the defendant is to be restrained from passing off its Red Scot Whisky as a produce of Scotland.  The defendant was injected from using the word Scot or any similar word in the whisky manufactured by it.  

3. Scotch Whisky Association v. Dyer Meakin Breweries 

In this case, the respondent had filed an application to register a trademark consisting of a label containing the portrait of a Scottish Highlander and the words “ Highland Chief.”  The appellant filed a notice of opposition, claiming that the brand name “ Highland Chief” when used vis-à-vis malted whisky will be assumed by the purchasers to relate to a product of Scotland.  The Assistant Registrar dismissed the opposition.  The matter came up in appeal before the Hon’ble High Court of Delhi.  The Court observed as follows:- 

 

“The multicolored label proposed to be used by the respondent consisting of a Scottish Highland Soldier with tartans design along with the word Highland Chief prominently displayed is very likely to give the impression that the product is that of Scotland and not of India...... This description in the circumstances of this case is a false trade description as defined in Section 2(1) (f) of the Act... May be experienced persons will not be taken in but this seems to have been designed for taking in somebody.  

The reason given by the respondents that the portrait of a Highland soldier as well as the tartan design around this label has been adopted only because the object was to give something colorful but not to confuse anyone is a baseless one.  I cannot imagine that if the purpose was simply to give something colorful in the said label and not to mislead or confuse anyone then the respondent failed to find out any colourful design of   an Indian Motif and had to go all the way to Scotland to do so.”

4. Pochampally Ikat case

This was the first suit instituted under the GI Act.  Pochampally Ikat fabric is a traditional art practiced in and around Pochampally village (Warangal District, Andhra Pradesh).  In May 2005, it was noticed that sarees were being manufactured with the label Hyco Pochampally leading to confusion in the minds of consumers, passing off and unfair competition.  The suit was decreed in favour of Pochampally Ikat GI holders. 

5. Bollinger J. and Ors. v. Costa Brava Winey Coy. LD [1960] R.P.C.16

In this case, the defendant company had been offering for sale in England a wine under the name Spanish Champagne which had no connection with the Champagne District or even with France.  The plaintiff contended that this is a false trade description and constituted unlawful competition.  The Court’s observation was historic.  

“....Champagne’ in this country means the product produced in the Champagne District of France….  The defendant’s wine therefore is not Champagne and it is untruthful to describe it as such..... it is dishonest to call the Spanish wine by that name.  ...... Although the informed section of wine drinking public knows the meaning of “Champagne,” there is an uninformed part that would be deceived...... This is not an innocent case of passing off…. This is dishonest trading.” 

In the light of the above, injunction was granted. 

GIs  and  Kerala

The following table is the list of GIs registered from Kerala. 

Table 2
Aranmula Kannadi	Handicraft
Alleppey Coir	Handicraft
Navara Rice	Agricultural
Palakkadan Matta Rice	Agricultural
Malabar Pepper	Agricultural
Alleppey Green Cardamom	Agricultural
Maddalam of Palakkad	Handicraft
Screw Pine Craft	Handicraft
Brass Bordered Coconut Shell Crafts	Handicraft
Pokkali Rice	Agricultural
Vazhakkulam Pineapple	Agricultural
Cannanore Home Furnishings	Handicraft
Balaramapuram Sarees and Fine Cotton Fabrics	Handicraft
Kasaragod Sarees	Handicraft
Kuthampully Sarees	Handicraft
Central Travancore Jaggery	Agricultural
Wayanad Jeerakasala Rice	Agricultural
Wayanad Gandhakasala Rice	Agricultural
Payyannnur Pavithra Ring	Handicraft
Chendamangalam Dhotis and Set Mundu	Handicraft

Out of these,  9 are agricultural products, and 11 pertain to the handicraft sector. In fact, one of the earliest registered GIs - Aranmula Kannadi - was from Kerala. 

To quote as a case study from a paper on one of the GIs  (viz) Central Travancore Jaggery (Sosamma Cherian etal, Geographical Indication - Central Travancore Jaggery - Specialties and Prospects: Presented in National Seminar WTO, FTAs and Impact on Agriculture and Allied Sectors, Trivandrum 17-18 January 2013) “ Central Travancore Jaggery is a traditional sweetener from sugarcane which is cultivated along the river banks of old Central Travancore of Kerala.  It is available mainly in two forms (viz) Unda Sarkara and Pathiyan Sarkara. Geographical Indication Registration has been accorded for the same in the name “ Central Travancore Jaggery.”  (G. Indication No 163 falling in Class 30 in respect Jaggery ( Sarkara)).  Owners of the GI are 250 sugarcane farmers coming under two farmer societies of the region viz.  the Gur Khandasari Industrial Co-operative Society Ltd., Arumanoor functioning in Kottayam district and Madhya Thiruvithamcore Karimpu Vikasana Samithi, Thiruvanvandoor, Kallissery P.O., Chengannur functioning in Pathanamthitta district and Chengannur Taluk of Alappuzha district.  

Central Travancore Jaggery is produced in the river banks and nearby places of Manimala, Pampa, Achenkovil and Meenachil rivers….. The river basins and nearby places of these regions are inundated during monsoon periods with silt accumulation and hence has very rich fertility status.....

Table 3
Form  of Jaggery	Physical appearance	Moisture %	Reducingsugar % d/b	Total  sugar % d/b	Colour
Unda Sarkar	Solid Formas ball/cube	5 - 10	< 10	> 85	Golden brown -brown
Pathiyan Sarkara	Semi-solid	10 - 15	< 15	> 85	Golden brown - brown
Pani	Liquid Form	25 - 30	< 15	> 85	Golden brown - brown
Powder	Powder Form	4 - 8	<8	> 85	Golden brown - brown

(d/b-on dry basis)

The quality of Central Travancore jaggery (CTJ) is unique with respect to its sulphur dioxide, sodium and phosphorous contents, pH status and excellent taste…. The Gur Khandasari Industrial Co-operative Society Ltd, Arumanoor and the Madhya Thiruvithamcore Karimpu Vikasana Samithi, Thirivanvandoor, Kallisserry P.O, Chengannur are working for the benefit and interest of sugarcane farmers and GI producers under the society through facilitating the supply of quality seeds of the recommended sugarcane variety, arranging trainings to farmers for the preparation of the GI etc..... Agriculture Research Station, Thiruvalla stands for the welfare of the sugarcane farmers of the region conducting research, training and extension programmes……” 

But the level of awareness among the producers and the general populace about the utility of a product getting GIs is almost non - existent.  In a situation wherein even the  higher echelons of policy making have often only a peripheral knowledge of GIs, the efficiency of the GI regime leaves much to be desired.  In fact, GIs have often been demeaned to certificates framed and kept in glass cases as an exhibit of curiosity.  Identification of possible GIs , exploiting and marketing registered GIs so as to achieve their economic viability, documentation and creating a database of GIs, domestic and international sensitization of the supply chain, supporting brand building activities, product diversification, strict and vigilant enforcement - all remain at best premises on paper.  The need of the hour is to awake from the slumber and launch a concerted action of both government and non government agencies with community participation and stakeholder centric strategies as its bedrock.  The choice before the State, its residents and establishments is clear.

Conclusion

GI is the I.P. of the poor man - the farmer, the fisherman, the artisan, the craftsman.  It fosters social capital augmenting the human and natural capital embedded in the production process and acts as a signaling device that provides a platform to fetch them market recognition.  In contrast to trademarks it helps in preservation of cultural identity along with safeguarding of commercial interests. GI also rationalizes the cost of promotion. Unlike patents and copyrights, GIs are not created but only recognized.  Thus investments are related only to enhancing reputation of an existing product.  

India with its region specific native products, diverse geography, traditional knowledge and unique heritage qualifies as one of the fertile soils for GI protection. If used effectively,  it can become a tool to make a frontal assault on the citadels of poverty and deprivation that our traditional artisans have been facing for generations.  It can play a role in reducing vulnerability to poverty -- the first of the Millenium Development Goals.  This will be a befitting reply to the decades old neglect of the rural dimensions of the development discourse despite the intensity of problems that rural India represents.  If used with ingenuity it has the potential to rejuvenate revitalize and reenergize the craftsmen, most of whom have a hand to mouth existence today.  

This will have a threefold impact 

a) the local indigenous knowledge is saved from extinction and in fact grows into a more polished form 

b) the reduction in migration rate reduces the burden of urbanization

c) Tourism spurs in the region and its development is often ploughed back to support local community development.  

 

A regime seeking to protect GIs will also have to seek to bridge the asymmetry of information between the producer and his or her consumers thereby allowing him or her to invest to a maximum into improving the quality and indirectly the reputation of the goods

(Josling T-2006, The War on Terroir: Geographical Indications as a Transatlantic Trade Conflict, Journal of Agricultural Economic Vol. 57, No3, 337-363).

It must be guided by a four pronged strategy - 

a) equity considerations: the custodians of geographically indicated products should receive some price benefits if marketing of such products leads to commercial gain  (Changing Institutions to Protect Regional Heritage: A case for Geographical Indications in the Indian Agrifood Sector, Pradyot R. Jena, Ulrike Grote) 

b) conservation concerns - the protection of GI products contributes to the wider objective of conserving the environment, biodiversity and sustainable agricultural practices ( Berard L. and P. Marchenay, 2008 , From Localized Products to Geographical Indications, Awareness and Action: Bourg-en-Bresse, CNRS Resources des terriors at http: //www.ethno-terroirs. cnrs. fr/textes/Localized - Products – tr- GI. pdf) 

c) preservation of traditional practices and culture

d) avoiding biopiracy.

Experiences of GI products show that it can open access to export markets and boost foreign exchange earnings.  But a word of caution is needed here.  Unless the benefits trickle down to the real stakeholders, it may become a continuation of  "the extirpation, enslavement and entombment in mines of the aboriginal population, the looting of the East Indies and the turning of Africa into a warren for the hunting of black skins that was once supposed to signalize the rosy dawn of the era of capitalists production.”  (Douglas Dowd, 2009,pp144-145).  Stated differently, GI should not become a tool  for converting the traditional craftsman into the reserve army of labour available for the rapid reproduction of capital.  For this Utopia to come true, what is needed is deeds, not words and political will to plan as well as administrative competence to execute. 

References

1. Bernard,L and P. Marchenay, 2008. From Localized Products to Geographical Indications.  Awareness
    and Action.  Bour-en-Bresse, CNRS Ressources des terrroirs.  Accessed on 06.02.2009 at  http://ethno-
    terroirs.cnrs. fr/textes/Localized_Products_to _GI.pdf

2. Cardwell, R.T, 2005, Three essays in agricultural economics: International trade, development and
   commodity promotion. Unpublished Ph.D dissetation, Development of Agricultural Economics, University
   of Saskatchewan

3. Combes,J-L., and Guillaumont, P.,2002.Commodity price volatility, vulnerability and development.
    Development Policy Review, 20(1), 25-39.

4. Das, Kasturi, 2006. International Protection of India’s Geographical Indications with Special 
    Reference to ‘Darjeeling’ Tea. The Journal of World Intellectual Property, 9(5) 459-495

5. Das, Kasturi, 2000. India’s Obligations Under ‘TRIPS’ and the Patents (Second) Ammendment Bill,
   1999: A Commentary.  Indian Economic Journal, 48(3) 60-78

6. Evans, G.E and Blakeney, M., 2006. The Protection of Geographical Indications after Doha:
    Quo Vadis?. Journal of International Economic Law, 1-40

7. Fowler, P.N and Zalik, A.T., 2003. Globalization’s Impact on International trade and Intellectual Property 
    Law: a U.S Government Perspective Concerning the Agreement on the Trade- Related Aspects of 
    Intellectual property: Past, Present and Near Future.17 St.John’s J.L.Comm.401-407

8. Friedmann, H. and A. McNair, 2008.  Whose Rules Rule? Contested projects to Certify ‘ Local
    Production for Distant Consumer’s. In: Journal of Agrarian Change, Volume 8, Issue 2-3, 408-434. 

9. Grote, U., 2008. Environment Labeling, Protected Geographical Indications, and the Interests of
    Developing Countries.  The Estey Centre Journal of International Law and Trade Policy, Volume 9,
    Number 2,138-154.

10. Grant.,2005.Geographical Indications: Implications for Africa.  Taalac Trade Brief, No.6, November.

11.  IPR Commission (Commission of the Intellectual Property Rights, 2002. Intergrating Intellectual
       Property Rights and Development Policy.Accessed on 30.7.2007 at 
       http://www.iprcommission.org/graphic/documents/final_report/.htm

12. Josling,T., 2006.  The War on Terrior : Geographical Indications as a Transatlantic Trade Conflict.  In          Journal of Agricultural Economics, Vol.57,No.3,337-363,

13. Landes, W.M., Posner R.A., 2003. The Economic Structure of Intellectual Property Law, Belknap Press

14. Landes, W.M., Posner R.A., 1987. Trademarks Law: an Economic Perspective. Journal of Law and
      Economics, 30(2) 265-309.

15. Lori E.Simon, 1983 Appellations of Origin. The Continuing Controversy, 5J. Intl. L.Bus, 132-137

16. Pettigrew Jane, 2000.  Darjeeling Tea’s New Cerigicate of Origin Tea and Coffee trade journal,
      20 June, accessed on 5.2.2009 at  http://www.teaandcoffee.net/0600/tea.htm

17. Rangnekar, D., 2004.  The Socio-Economics of Geographical Indications.ICTSD- UNCTAD project on
      IPRS and Sustainable Development, Geneva. 

18. Rao, Niranjan, 2003.  Geographical Indications in Indian context: A case study of Darjeeling tea.
      ICRIER, New Delhi

19. Raustiala, K. and Munzer, S.R., 2007. The Global Struggle over Geographic Indications.
      The European Journal of International Law, 18(2) 337-365

20. Ravi, V., 2003.  Protection of GIs in India.  Presented at WIPO Asia Pacific Symposium on GIs, Delhi
      18-20 November

21. Sharma, K.R and Das, T.C., 2009. Globalization and Plantation Workers in North- East India.  Kalpaz
      Publications. Delhi

22. Suh, J. and Alan Macpherson, 2007.  The impact of geographical indication on the revitalization of a
      regional economy: a case study of ‘Boseong’ green tea. In: Area, Vol.39(4), 518-527

23. Tirkey,L., 2005. Tea Plantations in the Darjeeling District, Indi: Geo-ecological and Socio-
      economic Impacts in Post- Independence Period. Unpublished Thesis submitted to the University of
      Manitoba, India

24. TRIPS,1994. Agreement on Trade-Related Aspects of Intellectual Property. Geneva: W.T.O.
      Accessed on 20.1.2009 at http://www.wto.org/English/docs_e/legal_e/27-trips_04b_e.htm#3

25. Zou,J., 2005. Rice and Cheese, Anyone? The Fight over TRIPS Geographical Indications Continues.
      Accessed on 20.1.2009 at http://www.brooklaw.edu/students/journals/bjil/bjil30iii_zou.pdf.

 

 

 

No  Man  shall  Take Advantage  of  His  Own  Wrong,  Especially 

A  Tenant against  the  Landlord  who  is  the  True  Owner  of  the  Premises

(By T.S. Murali, Ottapalam)

 

“No one can take a profit out of his own wrong” is a well known maxim. By committing a wrong, one shall not take a profit out of it. He should restore that which he has thereby acquired. Otherwise it will be an inducement to commit a wrong again. Lord Baron Bramwell in Hooper & Anr. v. Lane & Ors. (6 House of Lords Cases 443 at 460, 461) has observed this maxim in an exceptional way. His Lordship recites, “If A lends a horse to B, who uses it, and puts in his stable, (without returning it to A) and A comes for it and B is away, and finds the stable locked, and A breaks it open, and takes his horse, he is liable to an action for the trespass to the wrong he has committed. But, though a man might be indicted at common law for a forcible entry, he could not be turned out (right to regain the horse) if his title were good”.

 

Afraid of a similar punishment for an action of forcible entry into his own premises but which is in the unauthorised possession of the tenant, landlords cannot forcefully evict their tenant from the encroached portion without taking recourse to the provisions of law. “The law does not require a person whose property is forcibly tried to be occupied by trespassers, to run away and seek the protection of the authorities, there being nothing more degrading to human spirit than to run away in the face of peril”. This observation in Chandu Lal v. Delhi Municipality, (AIR 1978 Delhi 174 (F.B.)) will not come to the help of owners of immovable property (fondly called landlords) similar to what has happened in the case of Orkatkandiyil Shuhaib v. Maniyoth Moidu and Anr. (2014 (2) KLT 177) since the tenant who was granted lease of a building encroached upon the land of the same landlord and reduced it to his wrongful possession and constructed shop. The Landlord filed a Suit for recovery of possession under Sections 5 and 7 of the Specific Relief Act, 1963 and it was decreed by the lower courts. The Hon’ble High Court held that when the lessee failed to establish any right in the property either by way of oral lease or by way of adverse possession, lessee cannot take a plea that he accessed the property of the lessor and hence is entitled to the rights under Section 108(d) of the Transfer of Property Act, 1882. The High Court further held, to get protection of the said Act, such accession of land must be some other land or a Puramboke land and not the land of the lessor itself.

 

What bewilders a studious person in law is why the landlord in the above case did not substantiate or claim a relief under Section 1l(4)(ii) of The Kerala Buildings (Lease and Rent Control) Act, 1965. Section 1l(4)(ii) of the Act clearly stipulates, “a landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building, if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently”. Section 2(1)(a) of the Act stipulates that, “building” means any building or hut or part of a building or hut, let or to be let separately for residential or non residential purposes and includes the garden, grounds, wells, tanks and structures, if any, appurtenant to such building, hut, or part of such building or hut and let or to be let along with such building or hut. In the case of Orkatkandiyil Shuhaib (supra), the relationship of landlord-tenant has been accepted by both parties. The facts of the case clearly show that an existing tenant has encroached upon the land and property of the same landlord. The tenant could not establish that the encroached property is a part of the original lease or there was another lease from the landlord or a case of oral lease. The tenant has constructed shop by accessing the adjacent land belonging to the same landlord. Encroachment and Construction by the tenant will reduce the utility of the appurtenant land from the viewpoint of the landlord and will attract the ground of eviction under Section 1l(4)(ii) of the Rent Control Act.

 

Encroachment is defined as “to go beyond what is just or natural”. In other words, it can also be described as an encumbrance or burden on the landlord’s property by the unlawful act of the tenant. In a Suit before the Civil Court, the landlord can get relief against the tenant by way of Mandatory Injunction on the encroached property, whereas in a Rent Control Petition the landlord can evict the tenant from the tenanted premises as well as the encroached property. In Narayani v. District Judge (1991 (1) KLT 646), Hon’ble Chief Justice Malimath (as he then was) of the Kerala High Court held that, “the Court which has jurisdiction to entertain the applications under Section 11 of the Rent Control Act is the Rent Control Court constituted under Section 3 of the Act.

 

In Aboobacker v. Sahithya P.S. Sangham Ltd  (2004 (2) KLT 947), Hon’ble Mr.Justice K.S.Radhakrishnan held as follows :- “Rent Control Court is legally obliged if it is satisfied that the claim of the landlord under Sub-sections (3), (4), (7), (8) of Section 11 is bona fide to make an order specifying a date for enabling the tenant to put the landlord in possession of the ‘buildings’. The word ‘claim’ used in Section 11(10) is thus nothing but the grounds mentioned under Sub-sections (3), (4), (7), (8) of Section 11. The word ‘claim’ has been defined in Chambers Dictionary, inter alia, to mean “right or ground for demanding”. The Hon’ble Apex court in Hameedia Hardware Stores v. Mohanlal Sowear ((1988) 2 SCC 13) held that, “the word ‘claim’ under Section 10(3)(a)(iii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 means ‘as a demand for something due’ or ‘to seek or ask on the ground of right’. The word ‘claim’ means something on which right is sought to be enforced for which there is a denial”.

 

Section 9 of the Civil Procedure Code stipulates that, “the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”. In Antony v. Thandiyode Plantations (Pvt.) Ltd. (1995 (2) KLT 512 (F.B.)) the Full Bench of the High Court of Kerala referring to S.9 of C.P.C. held that, “the exclusion of the jurisdiction of the civil courts to entertain a civil cause cannot be assumed unless a particular statute contains an express provision to that effect or leads to a necessary and inevitable implication of that nature”. In Sushil Kumar Mehta v. Gobind Ram Bohra  ((1990) 1 SCC 193), it has been held by the Hon’ble Apex Court that, “Courts without jurisdiction passing decree is a nullity and non est, as the premises in question was governed by the Haryana Urban (Control of Rent and Eviction) Act 11 of 1973. The Rent Controller under the Act was the Competent Authority regarding claims for ejectment and by necessary implication, the Civil Court was divested of jurisdiction to take cognizance and pass a decree for ejectment. It is a coram non judice. A decree passed by such a court is a nullity and is non est”. In the above Haryana Rent Act also, ‘building’ has been defined to include any land appurtenant to such building. In Bahadur Singh v. Muni Subrat Dass  (1968 KLT SN 26 (C.No.50) SC = (1969) 2 SCR 432), it was held, “the decree under execution was made on the basis of an award and the decree was passed in contravention of Section 13(1) of the Rent Control Act. Thereby the decree was held to be void and hence no execution could be levied on the basis of the void decree”. A similar view was taken by the Hon’ble Apex Court in Smt.Kaushalya Devi & Ors. v. K.L.Bansal (AIR 1970 SC 838). This was a case under the Delhi and Ajmer Rent Control Act.

 

In Barrachlough v. Brown ((1897) A.C.615), the House of Lords held that when a Special Statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction”. Lord Tenterdan has held in Doe v. Bridges ((1831) 1 B & Ad.847) at 859 that, “where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner”. In Mumthas Beegam v. Maitheen Sahib (1988 (1) KLT 473), the Hon’ble High Court of Kerala held that, “the tenancy of a building governed by the provisions of a Rent Control Statute is actually terminated on the passing of the Order or Decree for eviction of the building. Section 11 of the Act is a self- contained legislation and it is wholly unnecessary to go outside the Statute and determine whether the tenant is liable to be evicted or not under the Transfer of Property Act”. In Nai Bau v. Lala Ramnarayan (AIR 1978 SC 22), the Hon’ble Apex Court held that, “Rent Acts are special Acts and it prevails over the general Act. i.e; the Transfer of Property Act”. In Paul v. Saleena ( 2004 (1) KLT 92), it was held by the Hon’ble High Court of Kerala that, “rights available to the tenant and landlord under the general law and the Transfer of Property Act are substantially curtailed by the provisions of the Rent Control Act. The Act is a self contained statute and the rights and liabilities of the landlord and tenant are to be governed by its provisions. Though Rent Control Act is a piece of social legislation mainly to protect tenants from frivolous eviction, certain statutory provisions have also been made in the Act in order to do justice to the landlord. When eviction is sought by the landlord under the provisions of the Rent Control Act and once the requirement contemplated under the Rent Control Act are satisfied, tenant cannot claim total prohibition of eviction on the basis of the provisions contained in the Transfer of Property Act or the provisions contained in the Contract Act”.

 

In Cheru Ouseph v. Kunjipathumma (1981 KLT 495), the Hon’ble High Court of Kerala has made a brilliant observation regarding the powers of Tribunals like the Rent Control Courts. “A Court is constituted for doing justice and must be deemed to possess all powers as may be necessary to do the right and undo wrongs in the course of administration of justice. If you do not like the name, call it by another; but as long as the tribunal is deciding legal disputes and determining the rights of citizens as any other court, you cannot, without endangering its efficiency, deny to it all powers which are necessary for the administration of justice. This is not to convert every tribunal into a tyrant, but only to recognize the reality that tribunals have come to stay as instruments of administration of justice, and that occasions may arise where they too will have to step into areas unchartered by the statute and rules, in the interest of justice. If a tribunal goes out of its way in the fullness of its powers, the superior courts are there to correct it, as noticed by Allen; and as also observed by him, the first adjudication is more important to the litigant than the last”.

 

In Parthakumar v. Ajith Viswanathan (2006 (2) KLT 250 (F.B.)), the Full Bench of the Kerala High Court has observed, “if a person is a tenant, he is entitled to the protection of Section 11(1) of the Act. He cannot be thrown out of possession of a building except in accordance with the provisions of the Act. The vital and crucial protection to a tenant is thus declared in Section 11(1). The Statute protects the tenant of a building within the notified area from eviction except under an order passed by the Rent Control Court in accordance with the provisions of the Act. A tenant can be evicted only on the specified grounds enumerated under Ss.11(2) to 11(8) of the Act. Unless these grounds are satisfied, a landlord cannot claim eviction. Notwithstanding the provisions of the Transfer of Property Act or the terms of the contract between the parties or any decree passed by any civil court, the tenant is entitled to continue as a tenant until and unless an order of eviction is passed under Section 11 of the Act. While this is the crucial benefit relating to liability for eviction conferred on the tenant, the Statute does confer certain benefits on the landlords also. A landlord can claim eviction before the Rent Control Court by filing a petition. It is not necessary for him to go before a civil court and sue for eviction. Statutory Tribunals - Rent Control Court and Appellate Authorities are constituted so that the claims for eviction on specified grounds shall be considered summarily and expeditiously. The most important right, which a landlord gets under the Rent Control Act is his right to claim expeditious and inexpensive eviction on specified grounds before the Special Tribunals constituted under the Act. Only when the landlord-tenant relationship in respect of the building exists, does and can the Special Tribunal have jurisdiction to consider a claim for eviction.

 

In Sivarama Menon v. Raghavan & Ors. (1972 KLT 188), it was held by the Hon’ble High Court of Kerala that, “the two grounds recognized by the Act under Section 11(1) for ousting the jurisdiction of the Rent Control Act are :- 1) denial of title of the land; and 2) claim of permanent tenancy by the tenant. In such cases, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court and such Court may pass a decree for eviction on any of the grounds mentioned in this Section. In Lelitha v. Ayisumma ((1977 KLT 587 (F.B.)), the Full Bench of the Hon’ble High Court of Kerala held that, “Section 11(1) of the Rent Control Act clearly stipulates that, notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this Act. Section 11 is a self-contained section and it is wholly unnecessary to go outside the Act for determining whether a tenant is liable to be evicted or not, and under what conditions he can be evicted”.

 

In the case of Orkatkandiyil Shuhaib (supra), the tenant has not denied the title of the landlord nor has he claimed permanent tenancy. He is paying rent for the tenanted premises. The moment the tenant encroaches the adjacent land or building of the landlord, he does not come out of the purview of Section 11(1) of the Rent Control Act. The landlord can evict him once he proves that, by the unilateral actions of the tenant, the tenant is liable to be evicted by the provisions contained in Section 11(4)(ii) of the Act. For the sake of argument, one can claim that the jural relationship of landlord and tenant exists only in relation to the tenanted premises and not for the encroached premises. If such an argument is relied on, then justice will become a casuality. It is common sense that the existing tenant and not a trespasser has encroached the appurtenant property belonging to the same landlord and hence the tenant’s action will come under the purview of Section 1l(4)(ii) of the Act.

 

In Malayi Kumudam v. Venugopal (2013 (1) KLT SN 132 (C.No.118)), the Division Bench of the Hon’ble High Court held that, “the definition of the word ‘building’ takes in grounds and other structures appurtenant to the building. The case of the landlords is that a portion of the surrounding land was also utilised for the extension of the then existing building. The arguments advanced by the learned counsel for the tenant was that construction made by the tenant will not come within the ambit of Section 11(4)(ii) as the same has not destroyed or reduced the value or utility of the building materially and permanently. In other words, the alteration was not a destructive alteration, but it was an ameliorative alteration. The learned counsel for the landlord, per contra, would submit that on account of the additional construction encroaching upon a portion of the surrounding land, the utility of the vacant space has been materially affected and thus, it would come within the purview of Section 11(4)(ii) of the Act, thereby inviting an order of eviction under the said provision. It was also pointed out that in the original suit filed by the landlords, they have obtained a decree of mandatory injunction and that has become final. According to the learned counsel for the tenant once that decree is satisfied, the original status could be restored thereby disentitling the landlords to claim an order of eviction under Section 1l(4)(ii)”. The Hon’ble High Court held that any additional construction which reduces the utility of the appurtenant land also will attract the ground of eviction under Section 11(4)(ii) of the Act.

 

In Michael v. Paramara Group Devaswom (2006 (1) KLT 979), the Division Bench of the Hon’ble High Court held that, “the tenants have encroached into open spaces of the landlord and made unauthorised constructions covering the open area while making alterations and additions to the structure. The tenants contended that by the additions, the value of the building has been increased”. The Court held that so far as the landlord is concerned, the landlord has been deprived of the vacant space outside the original building. Based on the reasoning that the impairment should be assessed from the landlords’ point of view and not of the tenant, it was held that the construction was sufficient to infer that the value or utility of the building has been materially affected. So long as the definition of the building includes the appurtenant land as well as other structures, any additional construction which reduces the utility of the appurtenant land also will attract the ground of eviction under Section 11(4)(ii). In Gurumoorthy Gopalakrishnan v. Lakshmi Bhai  (2005 (1) KLT 256), the High Court of Kerala held that, “construction affected by the tenant in the land appurtenant to the building also fail within the mischief of Section 11(4)(ii) of the Act. Section 1l(4)(ii) read along with Section 2(1)(a) of the Act takes not only the building but the garden, grounds, wells, tanks and structure, if any, appurtenant to such building, hut, or part of such a building or hut and let or to be let along with such building. Therefore in a given case, if the landlord could establish that the tenant has used the land appurtenant to the building which has been leased out, in such a manner as to destroy or reduce its value and utility materially and permanently, landlord will have a cause of action”.

 

In Abdul Gafoor & Anr., v. K.V. Ipe, R.C.Rev.No.344 of 2012, the Hon’ble High Court of Kerala held that, “the tenants are running a hotel in the plaint schedule building and on the basis of the Advocate Commissioner’s report and other evidence in the case, the tenants have dug a borewell in the eastern room of the building without the permission or concurrence of the landlord. In the rent deed, there is mention of a well situated outside the building. The tenants have demolished the front portion of the building and widened the entrance. Another room has been constructed by the tenant and it is being used for business purposes after getting that room numbered from the Municipality. All the above acts done by the tenant will amount to  destruction or reduction in the value and utility of the building materially and permanently. Hence the tenant is liable to be evicted under Section 1l(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act”.

 

In Pariyath Suresh Chandran v. Padinhare Veettil Kunhambu, R.C.Rev.No.286 of 2008, the Hon’ble High Court held that, “in the instant case the allegation of the landlord was that the tenant has closed for himself the common verandah lying immediately in front of the petition schedule rooms by partitioning the same using glass and cement sheets and by fixing a wooden door for facilitating entry into the above portion. The front verandah is a common verandah for all the rooms in the first floor of the double storied building. The landlord’s contention is that the utility of the building, i.e; the verandah portion has been permanently reduced. The commonness of the verandah has been lost on account of the act of the tenant. The Advocate Commissioner’s report will clearly prove the landlord’s contention. The utility of the verandah is to be appreciated from the point of view of the landlord. As far as the landlord is concerned, had it not been for the acts of the tenant, it would have been possible for the landlord and other tenants to make use of the entire length and width of the common verandah lying in front of all the rooms in the first floor. Hence, we are in agreement with the learned Appellate Authority that the acts of the tenant has permanently reduced the utility of the common verandah and hence the tenant is liable to, be evicted under Section 1l(4)(ii) of the Kerala Buildings (Lease and Rent Control) Act”.

 

In Krishna Menon v. District Judge (1988 (1) KLT 131), the Hon’ble High Court has adopted a wider interpretation of the definition of building in relation to Section 11(3) of the Act. The definition of building provides sufficient play at the joints while fixing the parameters of the scope of the expression building in different situations. The contextual flexibility permitted in Section 2(1) is meant to be used according to the particular need in different situations. In Black’s “Law Dictionary” the meaning of building is given as follows :- “A structure or edifice inclosing a space within its walls”. The author of this article is of the opinion that the words used in the definition of “building” in the Rent Control Act, “let or to be let along with such building”, emphasizes other rooms belonging to the same landlord. So in a given case, if the tenant has encroached another vacant room of the landlord without his permission and without paying him rent, such action must come under the purview of Section 11(4)(ii) of the Act. The landlord is deprived of the utility of the adjacent room (by the unauthorised use of the tenant) which the landlord could use for himself or let out to others according to his own volition and discretion. The tenant’s encroachment of the adjacent room will deprive the landlord from getting rent which is surely an act by the tenant which will reduce the utility and value (intrinsic) of the building. Materially means substantially and what more substantial can it be, if the acts of the tenant deprives the utility of the room to the landlord and the rent rightfully receivable by the landlord who makes a living out of the rental income from the premises.

 

In Bhagwanram v. Thakurji Shri Hanumanji Maharaj (1989 (1) Rent Control Reporter 526), where the tenant illegally took the possession of another portion of the building, the Hon’ble High Court of Rajasthan held that, “the word “nuisance” is derived from the French word “nuirs” which means to injure, hurt or harm. Anything injurious or obnoxious to the community or to the individual as a member of it for which some legal remedy may be found is nuisance. Encroachment or illegal possession by the tenant over the said portions of the trust property is nuisance under Section 13(l)(d) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The illegal encroachment of the aforesaid portions of the landlord has adversely and substantially affected his interest within the meaning of last clause of Section 13(1)(d) of the Act”. A similar contention was held in Jayanti Prasad v. Trilok Chand Jain, (1977 (1) RCR 17) and Bhanwar Singh &  Ors. v. Smt. Meva Devi &  Anr.(RLW 2007 (1) Raj. 733). In Ganga Prasad v. Choube Jagadish Prasad, (1967 ALJ 708), the Allahabad High Court held that, “taking of possession of another part of the building belonging to the landlord in an assertion to a right of tenancy by the tenant amounts to creating nuisance within the meaning of Section 3(l)(d) of the U.P.(Temporary) Control of Rent and Eviction Act, 1947.

 

A question of Adverse Possession on the encroached premises by the tenant will not arise under the proceedings of the Rent Control Act. In Ahammed v. Krishnalal, (2005 (3) KLT 1004) and Sadanandan v. Pradeepan (2001 (2) KLT 913) and Syed Aboobacker Bafakhi Thangal v. Hamza (2011 (4) KLT 342), the Hon’ble High Court of Kerala held that the Rent Control Act does not prescribe any period of limitation for making an application for eviction under any of the grounds provided under Section 11 of the Act. Section 29(2) of the Limitation Act, 1963 and Article 137 of the Act does not apply to initiation of proceedings before the Rent Control Court. The Rent Control Act only prescribes a period of limitation for filing an appeal. When the landlord established a ground under Section 11(4)(i), (ii), (iii), and (iv) to the satisfaction of the Rent Control Court, that by itself is proof that the claim is bona fide. In Mohanan v. Muhiyudheen (2010 (1) KLT 512), it was held by the Hon’ble High Court that, “the demolition of the compound wall will definitely affect the value and utility of the land and it is of a permanent nature. Merely because the structures removed from the property can be restored in an easy manner, it cannot be said that the alterations are not permanent. Contentions of the tenants that the landlords have no right to question such alterations at a highly belated stage of about 30 years was also turned down observing that there is no time limit prescribed under the Act to seek eviction. A plea of Acquiescence nor a plea of Limitation cannot be raised by a tenant against an order seeking eviction under the Act within the purview of Section 1 l(4)(ii)”. In Shrinivas Kasherlal Palid v. Vithal Shivagir Gosavi, ((1994) SCC, Supl.(2) 212), the Hon’ble Apex Court held that, “in a suit under the Rent Act, mere acquiescence would not bar the landlord from seeking a decree for eviction.

 

In Krishnan v. Vijayaraghavan (1977 KLT 1013), the Hon’ble High Court of Kerala held that, “a particular statute should be so construed as to carry out effectually its object and to defeat all attempts to contradict or in a circuitious matter to do, what it prohibits. A construction to narrow down the language of a statute and to allow persons to escape from within its purview should not be encouraged. It is not the mere form of the language but the substance that has to be given weight. No attempt to abuse the power conferred by a statute should also be encouraged. It is also settled rule of interpretation of statutes that a construction most agreeable to justice and reason should be adopted in construing the provisions of a statute. No statute should be construed as to produce wholly unreasonable or inconvenient result”. In Madhava v. Pathumabi (2005 (3) KLT 369), the Hon’ble High Court held that, “the court should read the statutory provisions as it is and cannot rewrite it to suit its convenience. The normal rule of interpretation is that the words used by the Legislature are generally a safe guide to its intention. The court cannot rewrite, recast or reframe the legislation. In a case where the Statute is plain and unambiguous, the court shall not interpret it in a different manner”.

 

If due protection is not given to landlords by way of the provisions stipulated in the Rent Control Acts, then the feeling that only ‘fools build houses for wise men to live in’ will become the order of the day. In Abdul Gafoor v. Saleam Sahib  (AIR 1955 Mad 93), it was held that, “the Rent Restriction Acts are primarily for the protection of tenants and not for penalising the landlord”. One should not forget that the Legislature was very conscious about the protection of valuable rights of the landlord to keep his leased out premises intact. The principle behind Section 11(4)(ii) is that no limited estate holder (tenant) is entitled to commit any waste in the premises. The acts of waste done by the tenant diminishes the value of the property, increases the burden on the property or impairs the evidence of title. The intention of the Legislature is very clear and the tenant need not be given a chance for curing his faults. Otherwise Section 1l(4)(ii) would contain a provision for giving notice as provided under Section 11(2)(b) for rent arrears and Section 11 (4)(i) for sub-lease. Value means worth and utility means the condition of being useful or profitable. So any act done by a tenant which affects the usefulness or profitability of a building, adversely, must attract the eviction under this ground.

Cheque's Validity Period

(By  S.A.Karim,  Advocate,  Vanchioor, Thiruvananthapuram)

 

In a case reported in 2014(2) KLT 203 (SC) between Ramesh Chandra  Ambalal v. State of Gujarat  Hon‘ble  Justices  C.K.Prasad and  Jagadish Khehar held for the purpose of calculating the validity period of six months of a cheque , the issue date of the cheque  is to be excluded and the last date of the six months has to be included.  The ruling further explains the cheque is issued on 31st December. So that the date is excluded.  The six month ends on 30th June. Hence the last date is included.  In this situation, there comes 181 days in six month. There may be one more day in the case of leap year intervenes.  So the total days will be 182 days.  The explanation is trouble free as the date of cheque is on the last day of a month and ends on the last day of the sixth month.  This may be accidental coincidence. In most of the cases, cheque is issued any day between first day and last day of a month.  If a cheque is issued on 10th of January six months comes on 9th of July.  Here, the six months  principle is calculated on 30 days a month. 

 

Validity period of a cheque is six months under section 138(a) of the Negotiable Instruments Act, 1881. Now validity period has been changed to three months from 1st April 2012. 

 

Whatever may be the period, the principle is the same.  There is no mention of days under Section 3(35) of the General Clauses Act, 1867.  Month shall mean a month reckoned  according to British calendar.  There is no reference of days.  It indicates six month validity period of a cheque has to be considered in months only.  In case a cheque is issued on any day of January, that month has to be taken a month irrespective  of issue date of a cheque.  In the instant case the sixth month will be the last day of June.  The wording of Section 138(a) of N.I.Act does not expect to convert the month into days and decides the six month.

"The Tall V.R.V."

(By Hon'ble Mr. Justice V. Chitambaresh, Judge,  High Court of Kerala)

 

Those were the days when Original Suits had to be filed in the High Court during summer recess for interim reliefs. The then Vacation Court presided by Mr.Justice M.M.Pareed Pillai was flooded with cases. An application for temporary injunction in a suit came up for hearing after service of  notice. Mr.V.R.Venkitakrishnan, Advocate entered appearance for the respondent and sought time to file a counter statement. The learned Judge adjourned the case after passing the  following order:

 

“Respondent appears. Seeks time for counter. Interim injunction in the meanwhile."

 

The interim injunction was to prohibit the defendant from conducting the  finals of a foot ball tournament !

 

2. Mr.V.R.Venkitakrishnan was taken aback since the interim order was the least expected in the circumstances. The suit itself was for a declaration that a goal reckoned in the semi finals of the tournament was bad for ‘off side’. Mr.V.R.Venkitakrishnan sent his client to me for drafting a counter statement to the application for injunction. The counter statement was duly filed and the application for injunction brought up for further hearing. Mr.Justice S.Padmanabhan who succeeded as the vacation Judge vacated the interim injunction and allowed the finals of the tournament to go on.

 

3.  I was doubly happy at the whole episode for the following two reasons:-  Firstly, I was entrusted with a brief in relation to a case outside Palakkad District. Secondly, a favourable verdict could be obtained though after an initial set back. This is a classic example of Mr.V.R.Venkitakrishnan giving opportunities to the junior members of the bar. Mr.Justice KT.Sankaran would not have been of what he is but for such opportunities. Mr.V.R.Venkitakrishnan very much discouraged the junior advocates sporting a beard. He would often say that a lawyer should maintain his chin like an ‘egg shell’ for a pleasant appearance. Mr.V.R.Venkitakrishnan was ‘Mr.Clean’ not only in his looks but also in his dealings with his clients. His bold assertions at the bar laced with rhetorics still   lingers  in my mind.

 

4.  I would often kindle Mr.V.R.Venkitakrishnan for his mischievous remarks in the otherwise sleepy senior advocates' room. The room has become silent and the bar has lost one of its tall members on the death of Mr.Venkitakrishnan. He was the last link in the chain of lawyers who migrated from Madras on the formation of the Kerala State.The juniors of Mr.V.R.Venkitakrishnan celebrated his 61st year of legal practice. I however confess that celebration of events was a weakness for him. Mr.V.R.Venkitakrishnan lived a good innings of 90 years and has left behind a legacy. I really miss him.