NUZIVEEDU SEEDS PVT LTD. vs THE REGISTRAR, PROTECTION OF PLANT VARIETY AND FARMERS RIGHTS AUTHORITY & ANR.

2023-11-30 Information

$~A-1 & O-12 to 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 4312/2014
NUZIVEEDU SEEDS PVT. LTD. ….. Petitioner
Through: Mr. Chetan Lokur, Mr. K.V. Girish Chowdhry, Mr. D. Satya Sai Sumanth and Mr. Vaibhav Kaul, Advs.

versus

THE PROTECTION OF PLANT VARIETY AND FARMERS RIGHTS AUTHORITY AND ORS ….. Respondents
Through: Mr. Gaurav Rohila, Mr. Raj Ganesh, Mr. Arun Kumar, Ms. Shaheen Parveen and Ms. Yojana Chaudhary, Advs. for R-1 and R-2
Mr. R. Parthasarthy, Ms. Vindhya S. Mani, Ms. Surbhi Nautiyal, Mr. Devesh Aswal and Mr. Bhuvan Malhotra, Advs. for R-3
Mr. Ripu Daman Bhardwaj CGSC with Mr. Abhinav Bhardwaj, GP for UOI

+ W.P.(C)-IPD 8/2022
NUZIVEEDU SEEDS LTD. SURVEY NO. 69, GUNDLA POCHAMAPALLY ( VILLAGE AND PACHAYAT) MEDCHAL MANDAL, RANGA REDDY DISTRICT, SECUNDERABAD. ….. Petitioner
Through: Mr. Chetan Lokur, Mr. K.V. Girish Chowdhry, Mr. D. Satya Sai Sumanth and Mr. Vaibhav Kaul, Advs.

versus

UNION OF INDIA THROUGH SECRETARY, MINISTRY OF AGRICULTURE, NEW DELHI ….. Respondent
Through: Mr. Gaurav Rohila, Mr. Raj Ganesh, Mr. Arun Kumar, Ms. Shaheen Parveen and Ms. Yojana Chaudhary, Advs. for R-1
Mr. R. Parthasarthy, Ms. Vindhya S. Mani, Ms. Surbhi Nautiyal, Mr. Devesh Aswal and Mr. Bhuvan Malhotra, Advs. for R-3
Mr. Ripu Daman Bhardwaj CGSC with Mr. Abhinav Bhardwaj, Adv. for UOI

+ W.P.(C)-IPD 10/2022
NSL SEEDS PVT LTD. NSL ICON 4TH FLOOR, NO. 8-2-684/2/A ROAD NO. 12, BANJARA HILLS, HYERABAD.
….. Petitioner
Through: Mr. Chetan Lokur, Mr. K.V. Girish Chowdhry, Mr. D. Satya Sai Sumanth and Mr. Vaibhav Kaul, Advs.

versus

PROTECTION OF PLANT VARIETY AND FRAMERS RIGHTS AUTHORITY THROUGH ITS REGISTRAR, NASC COMPLEX, OPP. VILLAGE TODAPUR, DPS MARG, NEW DELHI ….. Respondent
Through: Mr. Gaurav Rohila, Mr. Raj Ganesh, Mr. Arun Kumar, Ms. Shaheen Parveen and Ms. Yojana Chaudhary, Advs. for R-1
Mr. R. Parthasarthy, Ms. Vindhya S. Mani, Ms. Surbhi Nautiyal, Mr. Devesh Aswal and Mr. Bhuvan Malhotra, Advs. for R-3
Mr. Ripu Daman Bhardwaj CGSC with Mr. Abhinav Bhardwaj, Adv. for UOI

+ W.P.(C)-IPD 9/2022
NUZIVEEDU SEEDS PVT LTD. ….. Petitioner
Through: Mr. Chetan Lokur, Mr. K.V. Girish Chowdhry, Mr. D. Satya Sai Sumanth and Mr. Vaibhav Kaul, Advs.

versus

THE PROTECTION OF PLANT VARIETY AND FARMERS RIGHTS AUTHORITY AND ANR ….. Respondents
Through: Mr. Gaurav Rohila, Mr. Raj Ganesh, Mr. Arun Kumar, Ms. Shaheen Parveen and Ms. Yojana Chaudhary, Advs. for R-1
Mr. R. Parthasarthy, Ms. Vindhya S. Mani, Ms. Surbhi Nautiyal, Mr. Devesh Aswal and Mr. Bhuvan Malhotra, Advs. for R-3
Mr. Ripu Daman Bhardwaj CGSC with Mr. Abhinav Bhardwaj, Adv. for UOI

+ W.P.(C)-IPD 4/2023
NUZIVEEDU SEEDS PVT LTD. ….. Petitioner
Through: Mr. Chetan Lokur, Mr. K.V. Girish Chowdhry, Mr. D. Satya Sai Sumanth and Mr. Vaibhav Kaul, Advs.

versus

THE REGISTRAR, PROTECTION OF PLANT VARIETY AND FARMERS RIGHTS AUTHORITY & ANR.
….. Respondents
Through: Mr. Gaurav Rohila, Mr. Raj Ganesh, Mr. Arun Kumar, Ms. Shaheen Parveen and Ms. Yojana Chaudhary, Advs. for R-1
Mr. Ripu Daman Bhardwaj CGSC with Mr. Abhinav Bhardwaj, Adv. for UOI

CORAM:
HON’BLE MR. JUSTICE C.HARI SHANKAR
J U D G M E N T (O R A L)
% 30.11.2023

W.P.(C) 4312/2014, W.P.(C)-IPD 8/2022, W.P.(C)-IPD 10/2022, W.P.(C)-IPD 9/2022 & W.P.(C)-IPD 4/2023

1. The issue involved in all these five writ petitions is substantially the same, though they have been instituted at different stages of the proceedings. They all relate to applications filed by various applicants seeking registration of new plant varieties stated to have been developed by them, under the Protection of Plant Varieties and Farmers Rights Act, 2001 (hereinafter the PPV Act).

2. The following provisions of the PPV Act merit reproduction, in the backdrop of the controversy which is before this Court:

14. Application for registration. Any person specified in Section 16 may make an application to the Registrar for registration of any variety

(a) of such genera and species as specified under sub-section (2) of Section 29; or

(b) which is an extant variety; or

15. Registrable varieties.

(1) A new variety shall be registered under this Act if it conforms to the criteria of novelty, distinctiveness, uniformity and stability.

(2) Notwithstanding anything contained in sub-section (1), an extant variety shall be registered under this Act within a specified period if it conforms to such criteria of distinctiveness, uniformity and stability as shall be specified under the regulations.

(3) For the purposes of sub-sections (1) and (2), as the case may be, a new variety shall be deemed to be

(a) novel, if, at the date of filing of the application for registration for protection, the propagating or harvested material of such variety has not been sold or otherwise disposed of by or with the consent of its breeder or his successor for the purposes of exploitation of such variety

(i) in India, earlier than one year; or

(ii) outside India, in the case of trees or vines earlier than six years, or in any other case, earlier than four years,

before the date of filing such application:

Provided that a trial of a new variety which has not been sold or otherwise disposed of shall not affect the right to protection:

Provided further that the fact that on the date of filing the application for registration, the propagating or harvested material of such variety has become a matter of common knowledge other than through the aforesaid manner shall not affect the criteria of novelty for such variety;

(b) distinct, if it is clearly distinguishable by at least one essential characteristic from any other variety whose existence is a matter of common knowledge in any country at the time of filing of the application.

Explanation. For the removal of doubts, it is hereby declared that the filing of an application for the granting of a breeder’s right to a new variety or for entering such variety in the official register of varieties in any convention country shall be deemed to render that variety a matter of common knowledge from the date of the application in case the application leads to the granting of the breeder’s right or to the entry of such variety in such official register, as the case may be;

(c) uniform, if subject to the variation that may be expected from the particular features of its propagation it is sufficiently uniform in its essential characteristics;

(d) stable, if its essential characteristics remain unchanged after repeated propagation or, in the case of a particular cycle of propagation, at the end of each such cycle.

(4) A new variety shall not be registered under this Act if the denomination given to such variety

(i) is not capable of identifying such variety; or

(ii) consists solely of figures; or

(iii) is liable to mislead or to cause confusion concerning the characteristics, value identity of such variety or the identity of breeder of such variety; or

(iv) is not different from every denomination which designates a variety of the same botanical species or of a closely related species registered under this Act; or

(v) is likely to deceive the public or cause confusion in the public regarding the identity of such variety; or

(vi) is likely to hurt the religious sentiments respectively of any class or section of the citizens of India; or

(vii) is prohibited for use as a name or emblem for any of the purposes mentioned in Section 3 of the Emblems and Names (Prevention of Improper Use) Act, 1950 (12 of 1950); or

(viii) is comprised of solely or partly of geographical name:

Provided that the Registrar may register a variety, the denomination of which comprises solely or partly of a geographical name, if he considers that the use of such denomination in respect of such variety is an honest use under the circumstances of the case.

*****

18. Form of application.

(1) Every application for registration under Section 14 shall

(a) be with respect to a variety;

(b) state the denomination assigned to such variety by the applicant;

(c) be accompanied by an affidavit sworn by the applicant that such variety does not contain any gene or gene sequence involving terminator technology;

(d) be in such form as may be specified by regulations;

(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 organisation 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;

(g) be accompanied by such fees as may be prescribed;

(h) contain a declaration that the genetic material or parental material acquired for breeding, evolving or developing the variety has been lawfully acquired; and

(i) be accompanied by such other particulars as may be prescribed:

Provided that in case where the application is for the registration of farmers’ variety, nothing contained in clauses (b) to (i) shall apply in respect of the application and the application shall be in such form as may be prescribed.

(2) Every application referred to in sub-section (1) shall be filed in the office of the Registrar.

(3) Where such application is made by virtue of a succession or an assignment of the right to apply for registration, there shall be furnished at the time of making the application, or within such period after making the application as may be prescribed, a proof of the right to make the application.

19. Test to be conducted.

(1) Every applicant shall, along with the application for registration made under this Act, make available to the Registrar such quantity of seed of a variety for registration of which such application is made, for the purpose of conducting tests to evaluate whether seed of such variety along with parental material conform to the standards as may be specified by regulations:

Provided that the Registrar or any person or test centre to whom such seed has been sent for conducting test shall keep such seed during his or its possession in such manner and in such condition that its viability and quality shall remain unaltered.

(2) The applicant shall deposit such fees as may be prescribed for conducting tests referred to in sub-section (1).

(3) The tests, referred to in sub-section (1) shall be conducted in such manner and by such method as may be prescribed.

20. Acceptance of application or amendment thereof.

(1) On receipt of an application under Section 14, the Registrar may, after making such inquiry as he thinks fit with respect to the particulars contained in such application, accept the application absolutely or subject to such conditions or limitations as he deems fit.

(2) Where the Registrar is satisfied that the application does not comply with the requirements of this Act or any rules or regulations made thereunder, he may, either

(a) require the applicant to amend the application to his satisfaction; or

(b) reject the application:

Provided that no application shall be rejected unless the applicant has been given a reasonable opportunity of presenting his case.

21. Advertisement of application.

(1) Where an application for registration of a variety has been accepted absolutely or subject to conditions or limitations under sub-section (1) of Section 20, the Registrar shall, as soon as after its acceptance, cause such application together with the conditions or limitations, if any, subject to which it has been accepted and the specifications of the variety for registration of which such application is made including its photographs or drawings, to be advertised in the prescribed manner calling objections from the persons interested in the matter.

(2) Any person may, within three months from the date of the advertisement of an application for registration on payment of the prescribed fees, give notice in writing in the prescribed manner, to the Registrar of his opposition to the registration.

(3) Opposition to the registration under sub-section (2) may be made on any of the following grounds, namely:

(a) that the person opposing the application is entitled to the breeder’s right as against the applicant; or
(b) that the variety is not registrable under this Act; or
(c) that the grant of certificate of registration may not be in public interest; or
(d) that the variety may have adverse effect on the environment.

(4) The Registrar shall serve a copy of the notice of opposition on the applicant for registration and, within two months from the receipt by the applicant of such copy of the notice of opposition, the applicant shall send to the Registrar in the prescribed manner a counter-statement of the grounds on which he relies for his application, and if he does not do so, he shall be deemed to have abandoned his application.

(5) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.

(6) Any evidence upon which the opponent and the applicant may rely shall be submitted, in the manner prescribed and within the time prescribed, to the Registrar and the Registrar shall give an opportunity to them to be heard, if so desired.

(7) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the registration is to be permitted and may take into account a ground of objection whether relied upon by the opponent or not.

(8) Where a person giving notice of opposition or an applicant sending a counter-statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the cost of proceedings before him and in default of such security being duly given may treat the opposition or application, as the case may be, as abandoned.

(9) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he may think fit.

22. Registrar to consider grounds of opposition. for The Registrar shall consider all the grounds on which the application has been opposed and after giving reasons for his decision, by order, uphold or reject the opposition.

*****
24. Issue of certificate of registration.
(1) When an application for registration of a variety (other than an essentially derived variety) has been accepted and either
(a) the application has not been opposed and the time of notice of opposition has expired; or
(b) the application has been opposed and the opposition has been rejected, the Registrar shall register the variety.

3. Additionally, Rules 29 to 32 of the Protection of Plant Varieties and Farmers Rights Rules, 2003 (the PPV Rules), which have been framed in exercise of the powers conferred by Section 96 of the PPV Act are also relevant:

29. Manner and method for conducting tests under section 19.
(1)(a) The Authority shall charge separate fees for conducting DUS test and special test on each variety.

(b) The special tests shall be conducted only when DUS testing fails to establish the requirement of distinctiveness.

(c) The DUS testing shall be field and multi-location based for at least two crop seasons and special tests be laboratory based.

(d) The fee for DUS and special tests shall be such as provided in column (3) of the Second Schedule for the purpose.

(2) If the Registrar, after initial scrutiny of the application for registration, is satisfied that the application is in order, he shall notify the applicant to deposit the requisite fee, as specified in column (3) of the Second Schedule, within a period of two months for conducting the DUS test.

(3) On receipt of the fee, demanded under sub-rule (1), the Registrar shall consider the application for further processing.

(4) The DUS test shall be necessary for all new varieties except essentially derived variety.

(5) The manner of testing essentially derived varieties shall be decided by the Authority on a case-to-case basis.

(6) The DUS test shall be conducted on a minimum of two locations.

(7) The Authority may recognise and empanel institutions having adequate facilities for conducting DUS or special tests in the country for conducting such tests.

(8) The Authority shall notify the adopted methods of conducting the DUS and special tests.

(9) The Authority shall develop and publish in its journal guidelines for the DUS test for each crop.

(10) The samples of seeds or propagules in respect of which an application for registration has been made and parental lines under registration submitted for the DUS and special tests and deposited at the National Gene Bank shall present the maintainable standards of generic purity, and uniformity and germination, sanitary and phytosanitary standards.

30. Advertising of application for registration under section 21.

(1) Every application for registration of a variety which has been accepted and the details thereof including specifications shall, upon such acceptance under sub-section (1) of section 20, be advertised by the Registrar in the manner specified in Form 01 of the Third Schedule.

(2) In every such advertisement under sub-rule (1), the Registrar shall mention that place or places where a specimen of the variety may be inspected.

(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;

(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.

31. Notice of opposition under sub-section (2) of section 21.

(1) Any interested person, may within three months from the date of advertisement of an application for registration, may give a notice of opposition to the registration of a plant variety in Form PV -3 of the First Schedule.

(2) The fee payable for filing an opposition referred to in sub-rule (1) shall be as specified in column (3) of the Second Schedule:

Provided that no such fee shall be payable in respect of an opposition made by a farmer or group of farmers, or village community.

(3) A copy each of the notice of opposition received against a specific application shall be referred to the applicant by the Registrar within three months from the last date of filing of opposition.

(4) An applicant shall be entitled to submit point-wise counter statement to the opposition not later than two months from the date of service of the copy of the notice of opposition, failing which the Registrar shall decide the merits of the opposition and notify his decision by giving reasons therefor.

(5) Every counter-statement under sub-rule (4) shall be in Form PV-4 of the First Schedule.

(6) The copies of counter to opposition submitted by the applicant within the time specified in sub-rule (4), shall be conveyed to the person opposing the application, within a period of thirty days of its receipt, requiring the opposing person to submit the final opposition within a period of thirty days from the date of service of the counter from the applicant.

(7) The Registrar, may at his discretion, allow any correction of error or amendments in the notice of opposition or counter statement if such alteration is requested by the persons concerned in writing.

(8)(a) The security referred to in sub-section (8) of section 21 shall be payable as an amount decided by the Authority.

(b) In case the opposition is found to be frivolous, the Registrar may direct payment of cost as determined by him to the applicant from out of the security amount received and the balance of the security amount shall be deposited in the Authority.

32. Compliance with time schedule. The time schedule provided for advertisement, opposition, defence, hearing and amendment of specification under these rules shall not be extended and failure in compliance with these time schedules shall forfeit the opportunity granted.

4. These writ petitions pertain to applications filed by various applicants for registration of plant varieties developed by them. Maharashtra Hybrid Seeds Company Pvt. Ltd. (Mahyco hereinafter) was the applicant in WP (C) 4312/2014, WP (C)-IPD 10/2022, WP (C)-IPD 9/2022 and WP (C)-IPD 4/2023 whereas M/s Sungro Seeds Research Ltd. (Sungro hereinafter) was the application in WP (C)-IPD 8/2022. I will, alternatively, be referring to Mahyco and Sungro as the private respondents, for convenience.

5. As is apparent from the statutory provisions reproduced supra, an application for registration of a plant variety, once filed, has to be accepted and advertised. After advertisement, persons who desire to oppose the registration of the plant variety may file their oppositions to the application. Depending on the outcome of the opposition, the plant variety either proceeds to registration, or the application for registration is rejected.

6. WP (C) 4312/2014

6.1 At this juncture, itself, it would be beneficial to reproduce the prayer clause in WP (C) 4312/2014, thus:

It is therefore prayed that this Hon’ble court may be pleased to issue a “Writ of Mandamus” or any other appropriate writ order or direction declaring the action of the respondents in not implementing the provisions of Protection of Plant Varieties and Farmers’ Rights Act, 2001 & Protection of Plant Varieties and Farmers’ Rights Rules, 2003 and in not causing a proper and detailed publication of advertisement as stipulated under the Act and in not carrying out “DUS” tests prior to inviting objections and in not bringing clarity with regard to essentially derived varieties at their registration prior to registration of new varieties as illegal, arbitrary, unconstitutional and violative of the provisions of the Protection of Plant Varieties and Farmers’ Rights Act, 2001 & Protection of Plant Varieties and Farmers’ Rights Rules, 2003 and consequently direct the respondents to strictly insist on the compliance of the various conditions as specified in the Act and the Rules with regard to the DUS testing and advertising of full details in the publication and pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case.

In the interim it is therefore prayed that this Hon’ble Court may be pleased to direct the respondents to enforce the provisions of Protection of Plant Varieties and Farmers’ Rights Act, 2001 & Protection of Plant Varieties and Farmers’ Rights Rules, 2003 and conduct DUS tests and furnish full particulars in the advertisements issued by the Authority by considering the petitioner’s representation dated 1.6.2010, pending the disposal of the writ petition and pass such other order or orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.

6.2 Mr. Parthasarthy, learned Counsel for the private respondents in all these cases points out that the prayer in WP (C) 4312/2014 is worded in general terms and is merely declaratory in nature and that the specific application which finds mention in the body of the writ petition, for registration of the MRC-7351 plant variety, is one of the applications in respect of which relief is sought in WP (C)-IPD 10/2022. As such, he submits that no separate orders would be required in WP (C) 4312/2014. Mr. Chetan Lokur, learned Counsel for the petitioner also concedes this position.

6.3 Inasmuch as relief, in respect of the grievance in WP (C) 4312/2014 has also been sought in WP (C)-IPD 10/2022, WP (C) 4312/2014 is disposed of without passing any separate orders thereon.

7. Plant varieties MRC 7326 BG II, MRC 6301 Bt, MRC 6025 Bt and MECH 12 Bt in WP (C) IPD 10/2022:

7.1 Let us clear the air further. Of the 9 plant varieties which form subject matter of the prayer in WP (C)-IPD 10/2022, Mr. Parthasarthy submits that plant varieties MRC 7326 BG II, MRC 6301 Bt, MRC 6025 Bt and MECH 12 Bt were already registered prior to the writ petition being filed.

7.2 Mr Lokur, on instructions, confirms this fact.

7.3 Inasmuch there is no prayer in this writ petition for setting aside the registration granted in respect of the said four plant varieties, this Court is not interfering with the said registrations.

7.4 The orders passed herein with respect to WP (C)-IPD 10/2022 would, therefore, by restricted to the five remaining varieties which are MRC 7351 BGII, MRC 6322 Bt, MRC 7383 BG II, MRC 6918 Bt and MRC 7301 BG II.

8. Stages at which the proceedings are pending:

8.1 Proceedings with respect to the applications filed by the concerned private respondents for registration of plant varieties, in these writ petitions, are at different stages.

8.2 Oppositions under Section 21(2) of the PPV Act were filed by the petitioner to the applications forming subject matter of all these four writ petitions, albeit belatedly.

8.3 The Registrar of the Protection of Plant Varieties and Farmers Rights Authority (hereinafter the Registrar) condoned the delay in filing the opposition in WP (C)-IPD 9/2022. The opposition is pending consideration on merits.

8.4 The opposition in WP (C)-IPD 10/2022 was filed within the statutory period of three months envisaged in Section 21(2) of the PPV Act, and is also pending consideration on merits.

8.5 The oppositions filed in WP (C)-IPD 4/2023 and WP (C)-IPD 8/2022 were rejected holding that no ground for condonation of delay was made out. However, Mr. Parthasarthy points out that, in WP (C)-IPD 4/2023, the application was re-advertised and a fresh opposition stands filed by the petitioner.

9. The Issue

9.1 Mr. Lokur submits that the principal grievance of the petitioner in these cases is that the applications of the private respondents ought not to have been advertised, before DUS (Distinctiveness, Uniformity and Stability) testing of the concerned plant varieties was undertaken in terms of Section 19 of the PPV Act.

9.2 Though oppositions in some of these matters are pending, Mr. Lokur submits that, as the Registrar has placed its stand on record, and as both the private respondents and the Registrar are espousing the view that, in respect of applications which were filed prior to 1 March 2012, the exercise of DUS testing need not necessarily have been conducted prior to advertising of the applications, this Court may clarify the legal position in that regard.

9.3 The request is not opposed either by Mr Parthasarathy or by Mr. Rohilla.

9.4 Besides, these matters were filed before various High Courts, and have been consolidated before this Court pursuant to orders of the Supreme Court. The issue in controversy is limited and, as would be noted later, is not res integra, as a learned Coordinate Bench of this Court of Vibhu Bakhru, J., has examined it in depth in his judgement in Pioneer Overseas Corporation v. Chairperson Protection of Plant Varieties Rights1 and concluded the controversy, in a manner which appears to me, with greatest respect, to be eminently acceptable. The decision of Bakhru, J., remains undisturbed to this day.

10. On 1 March 2012, the Protection of Plant Varieties and Farmers Rights Authority (hereinafter the Authority) issued the following Public Notice:

Public Notice

Sub: DUS testing before acceptance under Section 20 of PPV & PR Act, 2001.

It is hereby brought to the notice of the applicants that henceforth in accordance with section 19 of PPV & FR Act, 2001, the applicants shall along with the application for registration, deposit seeds of the variety applied for registration in such quantities as specified in the DUS test guidelines of respective crop species for DUS testing. Thereafter, in accordance with Rule 29 (2) of the PPV & FR Rules, 2003, if the application is found to be in order on initial scrutiny then the applicant will be notified to deposit the DUS test fee. On payment of said fee, the DUS test will be conducted.

Before acceptance of an application for registration, inquiry will be conducted under section 20(1) of PPV & FR Act, 2001 by examining the DUS test report along with application and other documents. Thereafter, if the application is found to be in order, it will be accepted under Section 20(1) and advertised under section 21(1) of PPV & FR Act, 2001.

(Manoj Srivastava)
Registrar

(Emphasis supplied)

11. It is also not in dispute that after 1 March 2012, in accordance with the afore-extracted Public Notice, the Authority was subjecting the plant varieties, in respect of which applications were filed, to mandatory DUS testing before accepting or advertising the application and calling for objections or oppositions thereto.

12. The question is whether, in respect of applications such as those forming subject matter of consideration in these writ petitions, which were filed prior to 1 March 2012, DUS testing was mandatory before advertising the applications. If, in fact, it was, Mr. Lokur would submit, invoking the Taylor v. Taylor2 principle3 that where the statute requires a particular act to be done in a particular manner, that act has to be done in that manner alone or not done at all, all alternative modes of doing the acts being necessarily forbidden, that the act of the Authority in proceeding to advertise the petitioners applications without prior DUS testing stands vitiated ab initio. He, therefore, prays that the said applications may be remanded for de novo consideration after subjecting the concerned plant varieties to DUS testing as envisaged by Section 19 of the PPV Act.

13. The decision in Pioneer Overseas Corporation:

13.1 Pioneer Overseas Corporation concludes the controversy.

13.2 The facts in Pioneer Overseas Corporation mirror those in the present. In that case, too, the applications for registration of plant varieties under the PPV Act were filed prior to 2012. No DUS testing was conducted before the applications were advertised. This was challenged by the petitioner before this Court as being contrary to the statutory provisions noted hereinbefore.

13.3 After a thorough study of the relevant statutory provisions, Bakhru, J. expressed his view in the matter thus:
43. It is apparent from the Scheme of Chapter III of the Act that on receipt of an application under Section 18 of the Act, the Registrar is required to make an enquiry as it thinks fit in respect of the particulars contained in such application and, thereafter, either accept the application absolutely or subject to certain conditions or limits as he deems fit. In terms of Section 19(1) of the Act, every applicant is required to make available to the Registrar such quantity of seeds of the variety for the purposes of conducting tests to evaluate whether the seeds of such variety conform to the standards, as may be specified by Regulations. It, plainly, follows that on receipt of an application, the Registrar is required to conduct the test as referred to under Section 19 of the Act.

44. One of the principal controversy raised in the present petition is whether Section 19 of the Act refers to a DUS test or a limited test for evaluating whether the seeds and the parental material conform to the standards as specified. It is Pioneer’s case that the test to be conducted in terms of Section 19 of the Act is a DUS test and an application for registration cannot be accepted unless such test has been conducted.

45. A plain reading of Section 19(1) of the Act indicates that every applicant is required to make available such quantity of seeds for the purposes of conducting tests to evaluate whether the seeds of such variety along with parental material conform to the standards as may be specified by regulations. The Authority has notified the 2006 Regulations (the Protection of Plant Varieties and Farmers’ Rights Regulations, 2006) in exercise of powers conferred under the Act. Regulation 11 of the 2006 Regulations is relevant and is set out below:

11. Standards for evaluating seeds or variety during tests. The test to be conducted for evaluation of a variety to be referred under the Act shall conform to the criteria of distinctness, uniformity and stability test guidelines published by the Authority in the Journal of Protection of Plant Varieties and Farmers’ Rights Authority and shall be revised and updated from time to time with the prior information to the Central Government. The Standards for evaluating seeds during tests under sub-section (1) of section 19 shall be such as notified under Seeds Act, 1966 or further amendments to that effect.

46. It is clear from the above that the test to be conducted for evaluation of the variety is required to conform to the test guidelines as published by the Authority for evaluating whether the variety conforms the criteria of distinctiveness, uniformity and stability (DUS). Regulation 11 further specifies that the standards for evaluating the seeds during tests shall be such as notified under the Seeds Act, 1966.

47. In view of the above, the contention that the tests referred to under Section 19(1) of the Act only pertains to evaluating whether the seeds conformed to the standards as notified under the Seeds Act, 1966, is erroneous. The tests referred to under Section 19(1) of the Act also include tests for determining whether the variety conforms to the DUS criteria. In terms of Regulation 11 of the said 2006 Regulations, such tests are required to be conducted in conformity with the guidelines as published by the Authority.

48. At this stage, it is also relevant to refer to Protection of Plant Varieties and Farmers Rights (Criteria for Distinctiveness, Uniformity and Stability for Registration) Regulations, 2009 (hereafter 2009 Regulations). Regulation 4 of the 2009 Regulations provides that the DUS criteria shall be determined by conducting field test for one season at two locations. The said Regulation 4 is set out below:

4. Criteria of Distinctiveness, Uniformity and Stability for registration of variety about which there is Common Knowledge.

(1) The criteria for distinctiveness, uniformity and stability for registration of a variety about which there is a common knowledge shall be determined by conducting a field test for one season at two locations for the purpose of confirming the distinctiveness, uniformity and stability following the descriptors and plot size as may be specified in the Journal.

(2) Any person who applies for registration under clause (b) of Section 14 of the Act shall submit half the quantity of seeds as divided into five equal numbers of packets for the purpose of field test and also for storing in the National Gene Bank and the seed supply procedures shall be such as may be specified in the Journal.

49. Any doubt as to the test to be conducted under Section 19 of the Act is put to rest by a plain reading of Rule 29 of the 2003 Rules, which is set out below:

29. Manner and method for conducting tests under section 19.

(1)(a) The Authority shall charge separate fees for conducting DUS test and special test on each variety.