Jayanta Kumar Biswas ( 1 ) THE writ petitioners are aggrieved by the decision of the Assistant Controller of Patents and Designs dated December 28, 2004 rejecting their application for exclusive marketing right under provisions of the Patents Act, 1970, section 24a. ( 2 ) ON August 25,1998 they submitted an application for patent of invention for the substances indicated in the fifteen claims mentioned in their application. Such application for patent was made under section 5 (2) of the Patents act. 1970. During pendency of that application, on August 30, 2000 they submitted an application for grant of exclusive marketing right of the substances for which they had claimed patent. ( 3 ) IN terms of provisions in section 24a of the Patents Act, 1970, the Controller sent the application for patent to an examiner for making report to him whether the inventions were not inventions within the meaning of the Patents act, 1970, section 3. The examiner submitted his report dated July 28, 2000 that substances of claims 9,12 and 13 were not inventions within the meaning of section 3 of the Patents Act, 1970. He did not say anything regarding the other claims, i. e. claims 1-8, 10, 11, 14 and 15. ( 4 ) THEREUPON the petitioners by their application dated Septemebr 21, 2000 requested the Controller to consider the case for grant of exclusive marketing right only with respect to claims 1-8. By an order dated May 3, 2002 the controller rejected the application. ( 5 ) FEELING aggrieved, the petitioners moved this Court by filling a writ petition. By order dated December 16, 2004 that writ petition was disposed of setting aside the order of the Controller and remanding the matter for a fresh decision. In compliance with that order the Controller has given the fresh decision dated December 28, 2004. It is impugned in the present writ petition. ( 6 ) I agree with Counsel for the petitioners that admittedly the Controller gave the impugned decision without considering the report dated July 28, 2000 submitted by the examiner. Counsel for the respondents finds little to say regarding this, when his attention is drawn to the impugned decision in which the Controller recorded at more than one place that he did not rely on any report while deciding the application for exclusive marketing right. Counsel for the respondents finds little to say regarding this, when his attention is drawn to the impugned decision in which the Controller recorded at more than one place that he did not rely on any report while deciding the application for exclusive marketing right. ( 7 ) COUNSEL for the petitioners argues that in view of provisions in section 24a of the Patents Act, 1970 the Controller was under an unqualified obligation to consider the report of the examiner. It seems to me that he is right in what he says. Counsel for the respondents argues that provisions in sub-section (2)of section 24a of the Patents Act, 1970 empowered the Controller to ignore the report of the examiner and decide the application on the basis of result of his own investigation. ( 8 ) I am afraid such contention, if accepted, is bound to defeat the legislative mandate given by sub-section (1) of section 24a of the Patents Act, 1970 that cast on the Controller an unqualified obligation to obtain a report from the examiner for the purpose of giving final decision in an application for grant of exclusive marketing right. Sub-section (2) of section 24a conferred on the Controller only a power to make further investigation, if he deemed necessary in the face of report of the examiner. Hence, it cannot be said that at the time of giving final decision he was empowered to ignore altogether the report of the examiner. He was bound to give due regard to it. ( 9 ) IT is argured by Counsel for the respondents that in view of provisions of the Patents (Amendment) Act, 2005, section 78, nothing remains to be decided in the present case. He says that in view of that section 78 application of the petitioners, if is directed to be decided afresh, can be decided only for the limited purpose of examination for grant of patent under section 11b (3) of the patents Act, 1970. ( 10 ) HE points out that Chapter IVA of the Patents Act, 1970 has been omitted, and hence the regime of granting exclusive marketing right has become a matter of history. According to him, at the present moment, there is no scope to consider the question of grant of such right to the petitioners, even if the impugned decision is set aside and the matter is remitted to the Controller. According to him, at the present moment, there is no scope to consider the question of grant of such right to the petitioners, even if the impugned decision is set aside and the matter is remitted to the Controller. ( 11 ) THE position is disputed by Counsel for the petitioners. According to him, even after the Patents (Amendment) Act, 2005, doing away with the regime of grant of exclusive marketing rights, the application submitted by the petitioners for such right has not lost its utility. He points out that at the date the amending provisions came into force, the application of the petitioners was not pending, and rather it had been disposed of before the cut off date, i. e. January 1, 2005. ( 12 ) HIS contention is that provisions of section 78 of the Patents (Amendment)Act, 2005 have no manner of application to proceedings which had stood concluded before the appointed date. He argues that if today the impugned decision is set aside and the matter is remitted, then the Controller is under the obligation to give fresh decision- in the application according to the then section 24a of the Patents Act, 1970. ( 13 ) HE cites to me the decisions in Babu Dhirendra Nath Roy vs. Ijjetali miah and Ors. , AIR 1940 Cal 423 (regarding saving of right to present application under provisions of the repealed statute); Hoosein Kasam Dada, (I) Ltd. vs. State of M. P. and Ors. , AIR 1953 SC 221 (to show that when a pre-existing right of appeal continues to exist, by necessary implication the old law which created the right of appeal also exists to support the continuation of that right, and hence the old law must govern the exercise and enforcement of that right ). ( 14 ) I am also referred to the decisions in the State vs. Judhabir Chetri, AIR 1953 Assam 35 (holding that rights of the parties with respect to pending proceedings are regulated by the law that was in force before the repealing statute came into force); National Planners Ltd. vs. Contributories etc. ( 14 ) I am also referred to the decisions in the State vs. Judhabir Chetri, AIR 1953 Assam 35 (holding that rights of the parties with respect to pending proceedings are regulated by the law that was in force before the repealing statute came into force); National Planners Ltd. vs. Contributories etc. , AIR 1958 Punj 230 (holding that proceedings commencing by virtue of statute subsequently repealed are not to be dismissed by the Court for want of jurisdiction, since such proceedings shall continue to be dealt with as before and shall be carried to final judgement and execution in exactly the same way, as if the statute had not been repealed ). ( 15 ) HE then gives me the decisions in The D. Brihan Maharashtra Sugar syndicate Ltd. vs. Janardhan Eamchandra Kulkarni and Ors. , AIR 1960 SC 794 (in support of his contention that in the absence of contrary intention in the repealing enactment, rights under the old statute are not destroyed); and gurcharan Singh Baldev Singh vs. Yashwant Singh and Ors. , 1992 (1) SCC 428 (in support of the contention that the right to proper consideration of an application by the statutory authority remains alive even after repeal of the enactment under which the consideration had been sought ). ( 16 ) COUNSEL for the respondents says that the decisions relied on by Counsel for the petitioners dealt with vested rights of the parties involved in those cases, and hence none of them have any manner of application to the present case. According to him, the application having been rejected before the amending statute came into force, no vested right had accrued in favour of the petitioners. He argues that if today the matter is remitted to the authority for a fresh decision, then the order of this Court shall amount to reviving the disposed of proceedings before the authority, and in view of provisions in section 6 (a) of the General Clauses Act, 1897 it is not permissible. ( 17 ) IN reply, Counsel for the petitioners refers me to section 21 of the patents (Amendment) Act, 2005 omitting the chapter concerned from the principal act. He draws my attention also to the provisions in section 6 of the general Clauses Act, 1897. ( 17 ) IN reply, Counsel for the petitioners refers me to section 21 of the patents (Amendment) Act, 2005 omitting the chapter concerned from the principal act. He draws my attention also to the provisions in section 6 of the general Clauses Act, 1897. His argument is that since the chapter concerned was just repealed, the situation has to be assessed and appreciated keeping in view the provisions in section 6 of the General Clauses Act, 1897. ( 18 ) IT seems to me that Counsel for the petitioners is again right in what he says. Provisions in section 78 of the amending enactment are transitional provisions. It is clear from them that they are not intended to govern a case where the application for exclusive marketing right had been rejected by the Controller before the chapter concerned was repealed by section 21 of the amending enactment. The chapter was simply repealed. This being the position the effect of repeal has to be ascertained by taking into consideration the provisions of section 6 of the General Clauses Act, 1897. ( 19 ) I recognize the force of the contention that right to get a proper decision being a valuable right of the petitioners was not destroyed by the omission of the chapter concerned. Provisions in sub-section (5) of section78 of the amending enactment, it seems to me, are also significant. With a view to removing doubt, the legislature mentioned that even completion of examination and investigation necessary to be carried out in connection with an application for exclusive marketing ritght would not create any obligation on the Controller to give a decision in a pending application. ( 20 ) I agree with Counsel for the petitioners that provisions of section 78 have no manner of application to a case of the present nature i. e. where the application had been rejected. If it is held that because of repeal of the chapter, and provisions in section 78 of the amending enactment, even the Writ Court will lose jurisdiction and power to give relief to the petitioners, if they are otherwise entitled to it, then perhaps one will travel far beyond the intendment of the legislature. It did not make any provision saying that litigations pending in Court, including the Writ Court, would stand abated. It did not make any provision saying that litigations pending in Court, including the Writ Court, would stand abated. Hence, to my mind, there is no just ground or reason to say that because of provisions of the amending enactment the Writ Court cannot make necessary order in the present case. ( 21 ) I have already found that decision of the Controller cannot be sustained in law. Admittedly he totally ignored the report of the examiner and gave the impugned decision appreciating the facts and circumstances revealed by the documents accompanying the application of the petitioners. I have already said that in my opinion the Controller could not have ignored the report of the examiner. He was bound to consider the effect of silence on the part of the examiner regarding the claims for which the petitioners ultimately wanted exclusive marketing right. Hence, the question that arises for consideration is to what reliefs the petitioners are entitled. ( 22 ) ON the strength of the Apex Court decision in the Comptroller and Auditor general of India vs. K. S. Jagannathan and Anr. , AIR 1987 SC 537 , Counsel for the petitioners argues that in a fit and proper case the Writ Court can issue a mandamus directing the authorities to give the benefit which they should have given to the aggrieved person. He adds that in other cases the Writ Court can quash the decision impugned and direct the authority concerned to give a fresh decision in the matter. ( 23 ) POINTING out the facts that on unsustainable grounds the Controller rejected the application of the petitioners twice, and that in the face of the examiner's report there was no scope to reject the application regarding the claims ultimately pressed by the petitioners, he argues that this is a fit case where the writ Court should issue a mandamus directing the authority to grant the benefit. ( 24 ) I fully agree with Counsel for the petitioners that in a fit and proper case the Writ Court can issue mandamus directing the authorities to grant the benefits which ought to have been granted by the authorities themselves. But the question is whether the present case is such a case. In my view, this is not a fit case where a mandamus should be issued straight granting the benefit of exclusive marketing rights to the petitioners. But the question is whether the present case is such a case. In my view, this is not a fit case where a mandamus should be issued straight granting the benefit of exclusive marketing rights to the petitioners. For undisclosed reasons the Controller simply ignored the examiner's report, when he was bound to consider it while disposing of the application of the petitioners. ( 25 ) THUS he has deprived this Court of the opportunity of examining the question of sustainability of the ground on which he thought that the report of the examiner should be ignored. The question of issuing a mandamus direct-ing grant of benefit straight could have been appropriately considered by this court, had the Controller recorded his reasons for ignoring or overruling the report of the examiner. This is precisely the reason why I think that the matter should go back to the Controller for a fresh decision according to the law that was existing at the date he gave the first decision, for the application lost the stage of pendency at that date. ( 26 ) FOR these reasons I set aside the impugned decision of the Controller dated December 28, 2004 and allow the writ petition to this extent without any order for costs. ( 27 ) I order that the Controller shall give a fresh decision in the application of the petitioners according to law that existed on May 03, 2002 when he gave the first decision rejecting the application. At the time of giving the fresh decision in compliance with this order, the Controller shall take into consideration the report of the examiner dated July 28, 2000 and appreciate the significance of silence of the examiner regarding claims which the petitioners ultimately pressed in the proceedings. The Controller shall not take into consideration any material or report except those which are on records. ( 28 ) BEFORE giving the fresh decision, the Controller shall give a reasonable opportunity of hearing to the parties who participated in the proceedings culminating into the decision dated December 28, 2004. The fresh decision in compliance with these directions shall be given within a fortnight from the date of receipt of a copy of this order by the Controller. The fresh decision in compliance with these directions shall be given within a fortnight from the date of receipt of a copy of this order by the Controller. If he finds that ritht as claimed by the petitioners is to be given, then he shall make appropriate order conferring such right effective from May 03, 2002 when the application concerned attained finality, though in an order of rejection. ( 29 ) COPY of this order duly countersigned by the Assistant Registrar (Court or Assistant Court Officer) shall be supplied to Advocates for the parties on usual undertakings. Writ petition allowed to the extent indicated.