India: Delhi High Court Declares That Section 24(5) Of Plant Varieties Act Is Void And Can Be Abused.

Last Updated: 4 July 2017
Article by Infini Juridique

In a landmark judgement delivered by division bench of J. Ravinder Bhatt and J. R.K. Gauba of Delhi High Court holds section 24(5) of the Protection of Plant Varieties & Farmers’ Rights Act, 2001 (PPVFRA) as void. The Hon’ble Division Bench of the Hon’ble Delhi High Court held that section 24(5) of the Act is broad, sweeping, arbitrary and hence void.

The case went back to 2008 when MAHYCO MONSANTO filed an Application under Section 24(5) of the PPV&FR Act seeking direction from the Registrar to grant an ex-parte injunction against Nuziveedu Seeds Limited (NSL). MONSANTO MAHYCO had sought relief in the nature to (i) seeking direction against NSL its agents and distributors from selling any variety similar to one of their variety (ii) rendition of account (iii) appointment of Local Commissioner (iv) preventing farmers from selling or sowing any such variety.

A similar petition was filed by PIONEER OVERSEAS against KAVERI SEED LIMITED seeking a similar direction against Kaveri’s KMH-50.

Infini Juridique on behalf of NSL as well as Kaveri challenged the notice issued by the Registrar in their respective petitions and also questioned the legal validity of Section 24(5) of the PPVFRA. Section 24(5) of the PPVFRA reads as under:

SECTION 24. ISSUE OF CERTIFICATE OF REGISTRATION

(5) The Registrar shall have power to issue such directions to protect the interest of a breeder against any abusive act committed buy any third party during the period between filing of Application for Registration and decision taken by the Authority on such Application.

The main grounds of challenge was that the provision is ultra vires as it (i) creates a de-facto right in favour of the Applicant despite the variety yet to be registered (ii) it provides wide powers to the Registrar of PPV&FR to pass any order, which cant be even appealed (iii) the provision may be abused by applicants to stretch the protection beyond the statutory protection as provided under the Plant Varieties Act and it may be against the legislative intent.

Jayant Bhushan, Senior Advocate and Mr. Abhishek Saket of Infini Juridique argued the matter comprehensively. The Hon’ble Court finally opined in the favour of the Petitioners NSL and Kaveri while dismissing the arguments of Union of India as well as MAHYCO MONSANTO and PIONEER Overseas.

SUBMISSIONS BY THE PETITIONERS:

  1. First, section 24(5) is unreasonable and void, and that the impugned provision gives the Registrar the rights to issue injunctions or any kind of restraint order under Section 24(5) of the PPV&FR Act, despite the applicant not possessing any proprietary right and there may be an eventuality that the application for registration of the Variety may be ultimately rejected. Additionally, that such provisional or interim protection would in essence extend the exclusivity beyond the permissible 15 year limit under the Act.
  2. Moreover, the provision violates principle of natural justice as it contains no proper guidelines for making ex-parte orders, this enables an order against a third party, who is adversely affected, but deliberately kept out of the proceedings. The authority exercising such unlimited and uninhibited powers is not deemed a judicial institution.
  3. Further, analogy was drawn with Order 39 CPC, 1908 to describe that making of ex-parte ad interim orders is statutorily controlled and the discretion exercised, is tempered by prescribed principles, which makes it reasonable. It was highlighted that orders under 24(5) are not appealable as the right to appeal is limited to matters of Registration i.e. when registration is finally granted or rejected as prescribed under section 56 of the Act.
  4. Further it was submitted that substantial question of law can only be decided by tribunals consisting of sufficient number of judicial members. This being the condition, absence of any qualifications required on part of the Registrar and the absence of a provision for appeal of matters which are not final, aggravates the possibility of arbitrary orders under the impugned provision.

SUBMISSIONS BY THE RESPONDENTS:

  1. The foremost argument submitted by the Union of India (Resp. 1) that the impugned provision is necessitated by International Convention for the Protection of the New Varieties of Plants, 1991 (UPOV) and mere silence of any guidance in the statue would not per se invalidate the impugned provision.
  2. On arbitrary and sweeping powers, the UOI urged that other IP laws deals in business and industrial process whereas the PPV&FR Act is primarily for agricultural matters and time-span in obtaining plant breeder’s rights under the Act is longer than that required for obtaining any other IPR.
  3. On procedural vacuums in legislation, it was argued that the powers of the Civil Court and the principles applicable to them essentially would always fill the gap in the Act. Additionally, the same is in a nature of a preventive remedy, which can be tailored to suit the peculiar circumstances and facts of each case. Pioneer Overseas Corporation (Intervener) confined its submission that legislature, in its wisdom, enabled interim protection under the Act, which cannot be held arbitrary merely because the statue is inexplicit about the conditions of such power.
  4. Maharashtra Seeds (R 3) the breeder is under threat of losing exclusivity without a provision that protects the claim during the period when it is under examination, which is sound rationale for impugned provision. Unlike pure administrative discretion, which might be unguided, quasi-judicial discretion to a statutory authority asked to discharge the functions akin to a court, should be viewed differently.

Judgement/Conclusion:

  1. The Hon’ble Court observed that the impugned provision contains a unique power, to make an interim order anytime during the pendency of an application, from its filing to its disposal. The provision is broad and sweeping and its exercise is not in any manner conditioned upon consideration of any objective material of the Act. The solitary guidance given is that such order can be made if someone is indulging in an “abusive act”. Significantly abusive act is undefined and its breadth can comprehend a range of behaviour.
  2. The Court while negating the contention of the doctrine of sui generis to the Act with regard to the application of impugned provision, further, stated that the basis for grant of an order under the impugned provision is existence of a a vague and undefined state of affairs.
  3. Further the Court also noted that the provisions of the Act per se do not furnish guidance in this regard, both as to what power is conferred and at the same time, is incapable of control, having regard to its amplitude. Plainly the lack of guidance clothes the authority with arbitrary power.
  4. While concluding the Hon’ble judge stated that the protection granted is not only wide but in respect of an entirely inchoate claim. The court very comprehensively drew comparisons with other IP laws and finally noted that in the application under the Act, the claims are entirely inchoate.
  5. On qualifications of the Registrar, the Hon’ble court noted that the tribunal constituted under the Act comprised of members having experience of more than 10 years as judicial member or 12 years as lawyers. The omission to the factor in any qualification with legal experience for Registrar, who can issue wide interim orders that can sound a death knell spell to business of breeders, or even farmers, is a fatal omission.

The Hon’ble court observed that section 24(5) may undoubtedly be an adequate remedy to prevent abusive practices; yet the danger of abuse of the provision in view of the unguided nature of the power, is destructive of the rule of law and contrary to Article 14 of the Constitution of India. Based on the above, the Hon’ble Court held/declared that Section 24(5) of the Protection of Plant Varieties and Farmer’s Rights Act, 2001 is void.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.