SHOGUN ORGANICS LTD., MUMBAI Vs. UNION OF INDIA

JUDGEMENT

(1.) APPELLANT is the petitioner in the writ petitioner. The writ petition is filed seeking the following prayers:

(2.) BRIEFLY put, the case of the appellant is as follows : The petitioner is a closely held Limited Company engaged in the business of manufacture of insecticides. The petitioner during the course of its business, based on research and tests has invented several new process of manufacture. To protect its inventions from being misused, the petitioner has obtained patent of the process of manufacture of the chemical compositions ''D -trans allethrin '' and ''Transfluthrin '' for a term of 20 years. Central Insecticides Board Registration Committee (CIBRC) constituted in accordance with section 5 of the Insecticides Act is the authority empowered to registering authority granting permission for manufacture of insecticides under the Act. As per section 9(1) of the Act, any person desiring to import or manufacture any insecticide shall apply to the 2nd respondent for the registration of such insecticide. An application for registration for manufacture of an insecticide has to be accompanied by details showing the chemical identity, chemical composition, specifications, establishment of chemical equivalence, process of manufacture, step wise manufacture process and flow sheet diagram of process of manufacture. The petitioner has obtained registrations under the Insecticides Act from the 2nd respondent for the manufacture of the insecticide by names ''D -trans allethrin '' and ''Transfluthrin ''. Section 9(4) of the Insecticides Act, enables any person to seek registration for manufacture of the insecticide which is already registered by a previous registrant which is commonly known as ''me too '' registration. For granting registration under section 9(4), the applicant has to follow the same condition includes same 'process of manufacture' for arriving at the same chemical composition. When the process of manufacture is patented, a registration can be legally applied by a subsequent manufacture in respect of a patented insecticide only when the patent rights holder has consented, to the use of the patented process. Without obtaining any such consent, the 4th respondent has made application to register the said two insecticide chemicals for manufacturing using the patented 'process of manufacture' held by the petitioner. It is without mentioning the fact that the petitioner is the patent holder of the process of manufacture that these applications have been made to the 2nd respondent. Once registration is granted, the applicant has no other option but to adopt the same manufacturing process patented by the petitioner for manufacturing these chemicals. Though the petitioner sent detailed representations dated 27.3.2012 and 14.8.2012 to the 1st and 2nd respondents, objecting to the grant of registration, the same is ignored by the 2nd respondent. The 2nd respondent cannot grant registration under section 9(4) thereby violating the Patent right of others. Section 2 of the Insecticides Act, 1968 clearly states that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. Therefore processing of applications for grant of registration under section 9(4) allowing applicants to use patented process of manufacture is arbitrary, illegal and violative of the provisions of the Act. Hence the writ petition.

(3.) IT is accordingly the appellant filed the writ petition. Counter affidavits have been filed by the respondents 1 and 2 as also the 4th respondent. During the pendency of the writ petition, a company has been impleaded as additional 5th respondent and it would appear that an interim order has been obtained by the appellant which fettered the power of authority to grant registration. The 5th respondent also filed counter affidavit.