Maharashtra Hybrid Seeds Co. Ltd vs Uoi And Aors
2011 Latest Caselaw 5837 Del

33.

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   Date of Decision: 30.11.2011

%      W.P.(C) 8431/2011 and C.M. Nos. 19048-49/2011


       MAHARASHTRA HYBRID SEEDS CO. LTD        ..... Petitioner
                    Through:  Mr. Sanjay Jain, Senior Advocate,
                              along with Mr. Anil Dutt, Ms. Ruchi
                              Jain, Ms. Namisha Gupta &
                              Mr.Sudarshan Singh, Advocates.
               versus

       UOI AND AORS                                   ..... Respondents
                        Through:    Mr. Jatan Singh, CGSC, along with
                                    Mr. Prashant Ghai, Advocate, for
                                    the respondent No. 1/UOI.
                                    Mr. Ram Niwas, Advocate for the
                                    respondent No. 2.
                                    Mr. Abhishek Saket & Mr. Amarjeet
                                    Kumar,     Advocates       for  the
                                    respondent No. 3.

       CORAM:
       HON'BLE MR. JUSTICE VIPIN SANGHI


VIPIN SANGHI, J. (Oral)

1. This writ petition under Article 226 of the Constitution of India

has been preferred to assail the order dated 17.11.2011 passed by

Mr.Manoj Srivastava, Registrar of Plant Varieties Registry, New Delhi.

2. The background facts are that the petitioner made several

applications for registration of its plant varieties under the Protection

of Plant Varieties and Farmers' Rights Act, 2001 (the Act), in April

2008. According to the petitioner, these applications were accepted by

respondent No. 2, i.e. the Protection of Plant Varieties & Farmers'

Rights Authority and advertised by him on 01.12.2008 to invite

objections. Respondent No. 3, i.e. Nuziveedu Seeds Pvt. Ltd., filed its

notice of objections to a couple of these applications on 26.02.2009.

Some of these applications were advertised on 01.06.2009, and

thereafter respondent No. 3 filed objections to these applications also

on 12.08.2008 & 31.08.2009.

3. It appears that between 2009 and September 2010, the

pleadings were completed and evidence by way of affidavit were filed

by the parties. The respondent No. 2 fixed the hearing of the

objections of respondent No. 3 in respect of all the applications on

17.11.2011.

4. On the said date, respondent No. 3 stated before respondent No.

2 authority that despite its application in form PV-33 being pending for

a long time, respondent No. 3 had not been provided certified copies of

the applications and the proceedings. The said application in form PV-

33 had been made for obtaining copies of the entire applications form

including photographs and correspondence.

5. The petitioner opposed the grant of the entire information, as

aforesaid, by contending that Rule 76 of the Protection of Plant

Varieties and Farmers' Rights Rules, 2003 (the Rules), provides for

providing of extracts of plant variety application and, therefore, the

entire application containing plant details, could not be provided. The

Registrar, by the impugned order, brushed aside the aforesaid

objection of the petitioner and directed the Registry to furnish the

certified copies of the petitioners applications in pursuance of PV 33 in

the matters before him, within ten days. The matters are now posted

for hearing on 17.02.2012 by the Registrar.

6. The submission of Mr. Sanjay Jain, learned senior counsel for the

petitioner, is that along with the applications, the petitioner had

entrusted confidential information to respondent No. 2. The grievance

of the petitioner is that without looking into the petitioner's objections

to the release of the entire information furnished by the petitioner

along with its registration applications, the Registrar has directed the

provision of the registration applications with all the information and

correspondence to respondent No. 3, who is a competitor. The

petitioner's apprehension is that by obtaining the said information,

which is claimed to be of confidential nature, respondent No. 3 could

put further defences by resorting to reverse engineering and by falsely

claiming prior user. It is argued by Mr. Jain that the objections of the

petitioner to the release of the entire application and information

submitted with it and the correspondence exchanged with the

registrar, should have been considered and a reasoned order passed

by respondent No. 2, which has not been done.

7. Mr. Jain submits that the advertisement of the registration

application is made in terms of Section 21 of the aforesaid Act read

with Rule 30 of the aforesaid Rules. The requirement of disclosure of

information contained in the registration application, by advertisement,

is limited only to the information mentioned in Rule 30 (3), which reads

as follows:

"30. Advertising of application for registration under section 21.-

x x x x x x x x x x

(3) The contents of such advertisement shall include-

(a) name, passport data and source of parental line or initial variety used to develop the variety in respect of which an application for registration has been made;

(b) description of the variety bringing out its character profile as specified under the DUS test Schedule;

(c) essential characteristics conferring distinctiveness to the variety;

(d) important agronomic and commercial attributes of the variety;

(e) photographs or drawings, if any, of the variety submitted by the applicant; and

(f) claim, if any, on the variety."

8. Mr. Jain submits that the entire information is not published as

there could be confidential information filed by the applicant with the

Registrar, along with the registration application. Mr. Jain submits that

even under the Right to Information Act (RTI Act), the information

including commercial confidence, trade secrets or intellectual property,

the disclosure of which would hurt the competitive position of a third

party, need not be disclosed by the public authority, unless the

competent authority is satisfied that larger public interest warrants the

disclosure of such information. Respondent No. 2 has not addressed

the issue whether the disclosure of the information, which is claimed to

be confidential information by the petitioner, was in larger public

interest. It is submitted that the impugned order has been passed

mindlessly by respondent No. 2. In support of his submissions, he

relies upon the Supreme Court judgment in Nagarjuna Construction

Co. Ltd. Vs. Govt. of Andhra Pradesh and Ors., (2006) 12 SCC

276.

9. Respondents have put in appearance on advance notice. Copies

of the petition have been supplied in Court to the learned counsel for

the respondents. They have made their respective submissions to

oppose the petition. Learned counsel for the respondents have drawn

my attention to Section 84 of the Act and Rule 76 of the Rules. These

provisions being relevant are reproduced hereinbelow:

Section 84 "84. Document open to public inspection.- Any person may, on an application to the Authority or the Registrar, as the case may be, and on payment of such fees as may be prescribed, obtain a certified copy of any entry in the Register or any other document in any proceedings under this Act pending before such Authority or Registrar or may inspect such entry or document.

Rule 76

76. Manner of issuing certified copy under section

84.- Any interested person may, under section 84, make an application in Form PV-33 of the First Schedule, along with fee specified in the Second Schedule, to the Authority or Registrar for obtaining certified copies of any entry in the Register, certificates or extracts of plant variety application or other records maintained by the Authority and any document required in any proceedings under this Act and pending before such Authority or Registrar; and he may make a request in similar manner and for similar purpose to inspect such entry or document."

10. The submission of the learned counsel for the respondents is that

Section 84 vests an absolute right on any person to obtain from the

Authority or the Registrar, on payment of such fees as may be

prescribed, certified copy of any entry in the Register or any

other document in any proceedings under this Act pending

before such Authority or Registrar or may inspect such entry or

document. It is argued that Rule 76 similarly provides that an

application may be made in Form PV-33 of the First Schedule to the

said Rules for obtaining certified copies of any entry in the Register,

certificates or extracts of plant variety application or other documents

maintained by the Authority and any document required in any

proceedings under this Act and pending before such Authority or

Registrar. It is argued that the registrar was bound to supply the said

information in discharge of his statutory obligation and in pursuance of

the respondents statutory rights.

11. Having heard learned counsel for the parties, I am of the view

that there is no merit in this petition. The same is liable to be

dismissed. In my view, there is a fundamental flaw in the submission

of the petitioner that while making an application under the Act to seek

registration of a plant variety, the applicant furnishes to the Registrar

any confidential information, i.e. any information which the Registrar

can hold in confidence. The whole concept of the law of patents, as

also of the Act, is that the registration applicant, who claims to have

developed a new invention or a new plant variety, may get the same

registered so as to claim statutory protection for the period provided

under the law. Under the Act, this protection is granted for the period

prescribed by section 24(6) readwith section 28 of the Act. However,

this right/protection is coupled with the obligation that the applicant

should make a complete disclosure of his claimed

invention/development of plant variety in all its detail, so that at the

end of the period of statutory protection the invention/developed plant

variety may be produced by any person. In this regard, reference may

be made to section 18, which prescribes the form of application for

registration of a plant variety. The information required to be furnished

by the applicant includes, inter alia,:

"(e) contain a complete passport data of the parental lines from which the variety has been derived along with the geographical location in India from where the genetic material has been taken and all such information relating to the contribution, if any, of any

farmer, village community, institution or organization in breeding, evolving or developing the variety;

(f) be accompanied by a statement containing a brief description of the variety bringing out its characteristics of novelty, distinctiveness, uniformity and stability as required for registration".

12. Reference may also be made to section 34 of the Act, which lays

down the grounds on which a registration may be revoked. The

grounds for revocation include:

"(a) that the grant of the certificate of registration has been based on incorrect information furnished by the applicant;

              x     x     x     x     x     x     x     x

       (c)    that the breeder did not provide the Registrar with

such information, documents or material as required for registration under this Act;

13. The complete disclosure has to be made by the registration

seeker/applicant alongwith the application, and any person wishing to

raise an objection is entitled to receive complete information, so that

he may raise one or more of the available objections to the registration

of the claimed plant variety.

14. The disclosure is made to the Registrar, who then publishes the

same and invites objections. The objections are made to the claims of

development/invention made in the application, and not merely to the

information which may be published. The advertisement, in most

cases, possibly cannot be with respect to the entire application and all

the information furnished along with it, for it may run into hundreds of

pages. Therefore, Rule 30 provides the salient features that need be

published. However, any person from the public is entitled to scrutinize

the application and all the information furnished by the applicant, and

to challenge the claim made by the applicant on the grounds available

in law to oppose the grant of registration. For this purpose, and to

empower the interested person to effectively raise any objection, it is

obvious that the complete information is required to be provided by

the Registrar. There is no scope for any secrecy or confidentiality in

the entire process, and it has to be transparent so as to defeat any

false claim of invention or new development of a plant variety. As

aforesaid, a complete disclosure is mandated also for the reason that,

at the expiry of the statutory protection period, any person should be

able to exploit the invention/plant variety developed by the registration

applicant, without having to turn to the said applicant for any other

information.

15. The argument of Mr. Jain that because the advertisement is not

required to be published of the entire application and the information

furnished with it, the Registrar gets vested with discretion to decide,

whether, or not to part with the complete information on an application

being made in form PV-33 is misplaced. Firstly, the words used in Rule

30 is "shall include". Therefore, the list of information that may be

published is not exhaustive. Rule 30 merely lays down the minimum

information that should be published. Secondly, this submission is not

supported by the plain language of Section 84 and Rule 76. As

extracted above, Section 84 is absolute in its terms and the authority

or the Registrar are bound to provide certified copies and inspection of

any entry in the Register or any document or any proceedings under

the Act pending before the such authority or Registrar. The objections

raised to an application for registration are certainly "proceedings"

under the Act. The only exception found in the Act is contained in

section 78 of the Act, which entitles the Authority or the Registrar not

to disclose information relating to registration of a variety which is

considered prejudicial to the interest of the security of India. Even this

provision, it appears, comes into play post registration, and not during

the consideration of an application for registration or during the

consideration of the objections to a registration application. It is not

the petitioners case that the present case is covered by section 78 of

the Act.

16. The submission of Mr. Jain that if the complete information is

disclosed to the respondent competitor, it may resort to misuse of that

information by undertaking reverse engineering process to put up a

false claim of prior user is also misplaced. Under section 24(5) of the

Act, the Registrar is empowered to issue such directions to protect the

interests of a breeder against any abusive act committed by any third

party during the period between filing of registration application and

decision taken by the authority on such application. Moreover, the

application is required to be disposed of in a time bound manner.

Reference may be made to section 24(3) in this regard.

17. Reliance placed on Section 8(1)(d) of the RTI Act, 2005 is also

misplaced for the couple of reasons. Firstly, the Protection of Plant

Varieties and Farmers' Rights Act, 2001 and the Rules framed

thereunder are a complete code in themselves and reference to the

provisions of the RTI Act to determine what information can be

disclosed with regard to an application for registration of a plant

variety is, therefore, misplaced. Secondly, even under Section 8(1)(d)

the competent authority is obliged to disclose information which is of

commercial confidence or a trade secret or intellectual property, if he

is satisfied that larger public interest warrants the disclosure of such

information. The scheme of the Protection of Plant Varieties and

Farmers' Rights Act, 2001, and particularly, Section 84 clearly shows

that public interest lies in disclosure of the applications, all information

contained therewith and the proceedings undertaken under the

aforesaid Act.

18. Reliance placed on Nagarjuna Construction Co. Ltd. (supra) is

also misplaced for the reason that there is no right vested in the

petitioner to oppose the application made in Form PV-33.

Consequently, there is no obligation to give any notice to, or grant any

hearing to the registration applicant before providing the

information/documents sought under section 84, readwith Rule 76,

readwith Form PV-33. There is no right vested in the petitioner to be

heard on the issue whether or not the said application should be

allowed and, if so, to what extent.

19. For all the aforesaid reasons, I find no merit in this petition. The

same is, accordingly, dismissed.

VIPIN SANGHI, J NOVEMBER 30, 2011 'BSR'/SR