MAHARASHTRA HYBRID SEEDS CO LTD Vs. UOI

JUDGEMENT

(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.

(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 to when the transitional provision of Section 59 of the said Act would be given effect to. One of the reasons stated before us was that the IPAB was reluctant to take up the work especially on account of lack of infrastructure even for its existing work. We thus called upon the Secretary of the two concerned Ministries to discuss the matter and to file an affidavit before us setting out the details of what prevented them from bringing into force at least the transitional provision through properly constituted consisting of a technical member.