Judgment

GOSWAMI, J.:- The petitioners Nos. 2 to 5 in Writ Petition No, 37 of 1970 are the sole partners of petitioner No, 1 which is a registered partnership firm (briefly the firm) carrying on the business of manufacturing, marketing and selling bidis under the pictorial representation and the trade name "Chhatrapati Shivaji Bidi", The firm is the sole proprietor of the Registered Trade Mark No. 12549 in respect of the pictorial representation of the picture of "Chhatrapati Shivaji" and of the Registered Trade Mark No, 12550 in respect of the trade name "Chhatrapati Shivaji" registered in the Registry of Trade Marks, Bombay. The Petitioner in Writ Petition No. 38 of 1970 supporting the petitioners in Writ Petition No. 37 of 1970 has submitted the additional petition claiming the same reliefs. In fact the petitioner in Writ Petition No. 38 of 1970 (briefly the company) has also been impleaded as respondent No. 4 in Writ Petition No. 37 of 1970.

2. According to the petitioners the business of manufacturing bidis according to special formula and processes and of marketing and selling them under the pictorial representation of Chhatrapati Shivaji" and under the trade name "Chhatrapati Shivaji" was first started in about the year1928 by one Raghunath Ramchandra Sable, the father of petitioners 2 and 4. It is stated that Raghunath Ramchandra Sable adopted the said pictorial representation and the said trade name in response to a call of the then popular leaders to adopt the name of Chhatrapati Shivaji in relation to all articles designed for public use or consumption with a view to popularise and keep before the public eye the image of the national hero, Chhatrapti Shivaji, By a declaration dated November 25, 1938, filed with the Registrar of Assurances at Bombay, petitioner No. 2 obtained protection for the user of the said pictorial representation of "Chhatrapati Shivaji" and for the use of the said trade name as the exclusive proprietor thereof. In due course under an agreement dated June 29, 1967, the firm while retaining exclusive proprietary rights in respect of the Registered Trade Marks Nos. 12549 and 12550 gave exclusive right of user thereof to the company for valuable consideration. It is said that the bidi business developed on a very vast and extensive scale and the sale of bidis marketed and sold under the pictorial representation of "Chhatrpati Shivaji" and the words "Chhatrapati Shivaji" associated therewith came to over Rs. 2 crores. The business also spread to different States.

3. Trouble started when by a Notification No. SO/1020 dated March 16, 1968, issued by the Central Government under Section 8 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (briefly the Act) and published in the Gazette of India on March 23 1968, in item No. 9A in the Schedule to the Act after the words "Pictorial representation of , the words "Chhatrapati Shivaji Maharaj or" were inserted, We have therefore, to turn our attention to the Act.

4. The long title of the Act is The Emblems and Names (Prevention of Improper Use) Act 1950. The preamble shows that it is "an act to prevent the improper use of certain emblems and names for professional and commercial purposes". The Act extends to the whole of India and also applies to citizens "of India out side India. It was brought into force from September 1, 1950, Section 3 which is the most important section reads as under:

Prohibition of Improper use of certain emblems and names.3. "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 Governm