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High Court of Delhi
SANJAY KISHAN KAUL & INDERMEET KAUR, JJ.
Maharashtra Hybrid Seeds Co Ltd
Versus
UOI & Others
W.P.(C) 4527 of 2010 & W.P.(C) 640 of 2012
Decided on : 22-03-2013
PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS ACT, 2001 - SECTION 21(2) - RULE 32 OF THE PROTECTION OF PLANT VARIETIES AND FARMERS' RIGHTS RULES, 2003 - EXTENSION OF TIME FOR FILING NOTICE OF OPPOSITION - INTERPRETATION - WHETHER RULE 32 IS ULTRA VIRES THE ACT - WHETHER THE LIMITATION ACT, 1963 APPLIES TO PROCEEDINGS UNDER THE ACT - WHETHER THE TIME PERIOD OF THREE MONTHS TO FILE NOTICE OF OPPOSITION UNDER SECTION 21(2) IS INCAPABLE OF EXTENSION IN VIEW OF RULE 32 - WHETHER THE WORD "SHALL" IN RULE 32 SHOULD BE READ AS "MAY" - WHETHER THE OPPOSITION PROCEEDINGS ARE IN THE NATURE OF AN INDEPENDENT ADJUDICATORY PROCESS.
Fact of the Case:
The petitioner, a limited company, incorporated and registered under the Companies Act, 1956 is stated to be engaged in the research and development of novel varieties of seeds and plants and their commercialization. The petitioner filed an application under the said Act to register its novel variety of cotton, which application was published by the Protection of Plant Varieties and Farmers Rights Authority ("the said Authority for short) in the Plant Variety Journal dated 01.09.2008. Respondent No.3 filed an opposition to the application, but beyond the stipulated period of three months as prescribed. The delay was of 86 days in filing the notice of opposition. The opposition was considered by Respondent No.2 and the delay in filing the notice of opposition was condoned ex parte vide the order dated 11.06.2009. The condonation of delay was assailed by the petitioner before the Delhi High Court by filing WP(C) No. 10938/2009. The petitioner succeeded in the same and the impugned order was set aside by the High Court vide Order dated 03.11.2009 on the ground that the condonation of delay was granted without notice to the petitioner. The matter was thus remanded back for re-consideration before Respondent No.2 which thereafter proceeded to hear both the petitioner and Respondent No.3 and vide order dated 09.03.2010 condoned the delay.
Finding of the Court:
1. Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003 is not ultra vires the Protection of Plant Varieties and Farmers' Rights Act, 2001. 2. The Limitation Act, 1963 does not apply to proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001. 3. The time period of three months to file a notice of opposition under Section 21(2) of the Protection of Plant Varieties and Farmers' Rights Act, 2001 is capable of extension in view of Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003. 4. The word "shall" in Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003 should be read as "may". 5. The opposition proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001 are not in the nature of an independent adjudicatory process.
Issues: 1. Whether Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003 is ultra vires the Protection of Plant Varieties and Farmers' Rights Act, 2001? 2. Whether the Limitation Act, 1963 applies to proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001? 3. Whether the time period of three months to file a notice of opposition under Section 21(2) of the Protection of Plant Varieties and Farmers' Rights Act, 2001 is capable of extension in view of Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003? 4. Whether the word "shall" in Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003 should be read as "may"? 5. Whether the opposition proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001 are in the nature of an independent adjudicatory process?
Ratio Decidendi: 1. The power to make rules under Section 96(1) of the Protection of Plant Varieties and Farmers' Rights Act, 2001 is not limited to the matters specifically enumerated in Section 96(2) of the Act. The power to make rules also extends to any other matter which is necessary for the proper implementation of the Act. 2. The provisions of the Limitation Act, 1963 do not apply to proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001 because the proceedings under the Act are not proceedings in a "court" as defined in Section 2(b) of the Limitation Act, 1963. 3. The time period of three months to file a notice of opposition under Section 21(2) of the Protection of Plant Varieties and Farmers' Rights Act, 2001 is capable of extension in view of Rule 32 of the Protection of Plant Varieties and Farmers' Rights Rules, 2003. Rule 32 provides that the time schedule for advertisement, opposition, defence, hearing and amendment of specification under the rules shall not be extended and failure in compliance with these time schedules shall forfeit the opportunity granted. However, the word "shall" in Rule 32 should be read as "may" in order to give effect to the intent of the Act, which is to protect the rights of farmers and plant breeders. 4. The opposition proceedings under the Protection of Plant Varieties and Farmers' Rights Act, 2001 are not in the nature of an independent adjudicatory process. The opposition proceedings are part of the registration process and are intended to ensure that only novel and distinct varieties of plants are registered.
Final Decision: Both the writ petitions are dismissed leaving the parties to bear their own costs.
Sanjay Kishan Kaul, J.
1. The variety of crops both edible and for commercial purposes has grown as the size and need of the human population has grown. This has resulted in experimentation of plant varieties and a need was felt for protection of the plant varieties and the right of the farmers and plant breeders to encourage development of the new varieties of plants. This is essential for accelerated agricultural development. It is towards this objective that India ratified the agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994 requiring it to make provisions for giving effect to various articles of the agreement relating to protection of plant varieties. The Protection of Plant Varieties and Farmers’ Rights Act, 2001(‘the Act’) was thus born. The Act received the assent of the President of India on 30.10.2001, but it was not till four years later on 11.11.2005 that some of the provisions i.e. Sections 2 to 13 and Sections 95 to 97 came into force. However, these Sections only dealt with the creation of the Authority and the Registry as also the power to make Regulations and Rules. Substantive provisions being Section 1 and Section 14 to Section 94 came into force on 19.10.2006. Thus, there was a hiatus period of five years between receiving the assent of the President and the provisions of the Act effectively coming into force.
2. This has some significance which we will discuss later. We may, however, add that in exercise of a right conferred under Section 96 on the Central Government to make Rules, the Protection of Plant Varieties and Farmers Rights Rules, 2003 were enacted and were published in the Gazette on 12.09.2003. Chapter VIII of the Act envisages setting up of an Appellate Tribunal. This chapter consists of Sections 54 to 59. Section 59 is a transitional provision requiring the Intellectual Property Appellate Board (‘IPAB’) established under Section 83 of the Trade Marks Act, 1999 to exercise jurisdiction of the Tribunal till the Tribunal is established under Section 54 of the said Act but requiring a technical member to be appointed under the said Act who would be deemed to be a Technical Member for constituting a Bench under Section 84(2) for the purposes of this Act. Despite the lapse of almost six and a half years, there is no sight of this Tribunal being constituted or implementation of the transitional provision. This is in addition to the hiatus period of five years from bringing into force the provisions of the said Act.
3. It is in these circumstances that this court was constrained to entertain this petition under Article 226 of the Constitution of India in view of neither any duly constituted Tribunal nor even the transitional provision being implemented. The rules for such an appellate Tribunal were brought into force only on 21.09.2010. Since we found an unexplained inaction in implementing the mandate of the Parliament, we called upon the Union of India to file an affidavit setting out the steps taken for constitution of the Tribunal for the implementation of the transitional provision from 2001 till date and to produce the relevant records in respect thereof. An affidavit affirmed by the Assistant Commissioner (Seeds), Department of Agriculture and Cooperation, Ministry of Agriculture referred to only the aforesaid dates and the factum of the Ministry of Agriculture being the Nodal Ministry for Protection of Plant Varieties and Farmers Rights Authority. It appears that the first communication in this behalf was addressed only vide letter dated 02.07.2009 to the Department of Industrial Policy and Promotion requesting to take note of Section 59 of the said Act and intimate the modalities for operationalization of the transitional provision. A request was also made to the IPAB to suggest the procedure for appointment of the Technical Member. Almost four years hence there appears to be no development. Not only that, even now no date was specified before us as
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