Comment:
1. This
Judgment has been pronounced by Hon’ble Judge SANJAY KISHAN KAUL, J. of Delhi
High Court on The Protection of Plant Varieties and Farmers‟ Rights Act, 2001.
2. Rule 32 is not held to be ultra vires
of the Act (Para 35).
3. In a quasi judicial authority, the
Limitation Act can not be made applicable to extend time. (Para 44, 45).
4. Thus, the question as to whether a
statute is mandatory or directory depends upon the intent of the Legislature
and not merely on the language in which the intent is clothed. Thus,
the meaning and intention of the legislature can be ascertained not only from
the phraseology of the provision but also considering its nature, its design
and the consequences which would follow from construing it one way or the other
(Para 52).
5. No doubt, the ordinary principle of
interpretation is that words should neither be added nor deleted from a
statutory provision. However, there are some exceptions to the rule where the
alternative lies between either supplying by implication words which appear to
have been accidentally omitted, or adopting a strict construction which leads
to absurdity or deprives certain existing words of all meaning, and in this
situation it is permissible to supply the words (Para 53).
6. Rule 32 should be read as one which is
directory and not mandatory and, thus, power can be exercised in an appropriate
case by the Registrar to extend the time period for filing the application for
opposition. (Para 62)
The
contents of the judgment has been reproduced as herein below:
IN THE
HIGH COURT OF DELHI AT NEW DELHI
Reserved
on : 27.02.2013 Date of decision: 22.03.2013
W.P.(C)
4527/2010
MAHARASHTRA
HYBRID SEEDS CO LTD ..... Petitioner
versus
UOI AND
ORS ..... Respondents
W.P.(C)
640/2012
NUZIVEEDU
SEEDS (P) LTD ..... Petitioner
versus
UOI AND
ORS ..... Respondents
Through:
Mr. Sanjay Jain, Sr. Adv. with Mr. Anil Dutt, Ms. Ruchi Jain, Mr. Sudershan
Shekhawat & Ms. Namisha Gupta, Advs. for the Petitioner in WP (C)
No.4527/2010 and for Respondent No.3 in WP (C) No.640/2012.
Mr.
Jayant Bhushan, Sr. Adv. with Mr. Abhishek Saket, Mr. Amarjeet Kumar & Mr.
Manish Madhukar, Advs.
for
Respondent No.3 in WP (C) No.4527/2010 and
for the
Petitioner in WP (C) No.640/2012.
Mr.
Rajeeve Mehra, ASG with Mr. Sachin Datta, CGSC with Mr.Ashish Virmani,
Ms.Ritika Jhurani and Ms.Sapna Chauhan, Advocates for Respondents 1 & 2 in
WP (C) No.4527/2010 & WP (C) No.640/2012. WP (C) No. 4527-2010 &
640-2012
CORAM:
HON'BLE
MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE
MS. JUSTICE INDERMEET KAUR
SANJAY
KISHAN KAUL, J.
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. Thus, there was a hiatus period of
five years between receiving the assent of the President and the provisions of
the Act effectively coming into force.
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.
4. An
affidavit was filed by the Assistant Commissioner (Seeds) affirmed on
21.02.2013 itself. It is stated that the Act deals with sensitive issues
pertaining to farmers rights; determination of "extant varieties",
"farmers variety" and "varieties of common knowledge". The
criteria for registration of the plant/seed varieties requires a lengthy
process that includes field testing of the plant/seeds varieties in different
conditions and it is after completing this extensive process, that the
government formulated the Protection of Plant Varieties and Farmers‟ Rights (Criteria
for Distinctiveness, Uniformity and Stability for Registration) Regulations,
2009, which were notified on 29.06.2009 and came into force with effect from
30.06.2009. The Ministry of Agriculture being the Nodal Ministry addressed a
communication dated 02.07.2009 as referred to aforesaid for the transitional
provision to be implemented and the Department of Industrial Policy and
Promotion in turn is stated to have referred the matter to IPAB on 26.08.2009.
It furnished its comments on 14.09.2009. The Department of Industrial Policy
and Promotion vide a communication dated 15.10.2009 furnished the requisite
information to the Ministry of Agriculture. The Plant Varieties Protection
Appellate Tribunal (Applications and Appeals) Rules, 2010 are stated to have
been notified on 21.09.2010. The Protection of Plant Varieties and Farmers‟
Rights Rules (Recognition and Reward from the Gene Fund) Rules, 2012 were
notified on 31.07.2012 while the Protection of Plant Varieties and Farmers‟
Rights (Use of Denomination and Registered Variety) Rules, 2012 were notified
on 17.12.2012. The aspect of implementation of Section 59 of the said Act is
stated to be receiving the attention of the concerned Ministry, but there is
stated to be some circumspection of this being unchartered territory.
5. In
view of our order dated 21.02.2013, the same officer has filed another
affidavit affirmed on 28.02.2013 stating that the IPAB has given its consent
for invoking the transitional provision under Section 59 of the said Act and
the Chairman and Vice Chairman of the IPAB will act as judicial members along
with the Technical Member to be appointed under the said Act for purposes of
exercising the transitional power and authority conferred on the Appellate
Tribunal under the said Act. Earnest efforts are stated to be made by the
Ministry of Agriculture for appointment of the Technical Member. However, it
appears that the same is also at the stage of approval of the Expenditure
Finance Committee where after the Search-cum-Selection Committee would decide
the modalities of recruitment of the Technical Member. The time schedule laid
down is of one year apart from the time required for approval of the
Appointments Committee of the cabinet for which no time limit can be assigned.
Thus, we are talking about a period of more than a year, which is stated to be
realistic. So much for the interest in „protection of plant varieties and
rights of farmers‟!
6. We
need to only emphasize what we have observed in our order dated 21.02.2013.
Prior to the introduction and passage of a Bill in the Parliament, a number of
steps are taken and considerable ground work is required. This ground work
envisages not only the legislative drafting but the legislative impact of the
legislation. The legislative impact in turn includes the litigation which it
will generate, provisions for appropriately strengthening the judiciary to face
the increase in litigation, creation of infrastructure and where specialized
tribunals are envisaged, taking steps towards establishment of the same. The
assent of the President is the culmination of this process. The will of the
Parliament as reflected in the enactment of the said Act, which received the
assent of the President, remained unimplemented for five years when only the
basic provisions were brought into force without really the substantive
provisions, which in turn were brought into force after six and a half years.
Was this time not sufficient to analyze all aspects? Since the disputes would
have aspects of scientific knowledge, the Appellate Tribunal envisaged a
Technical Member. Leave aside the constitution of the Tribunal, even the
transitional provision has not been brought into force. The absence of any such
specialized Tribunal implies that it is the regular courts, which are already
short of adequate number of judges to handle matters apart from technical
issues which may arise, that will have to examine the controversy. The result
is that neither are these specialized tribunals being brought into force nor is
the existing judicial system strengthened to take care of the extra workload, a
painful aspect to note. We would end this chapter with a sanguine hope that at
least the transition policy is implemented on an urgent basis!
7. Now
coming to the factual matrix of the dispute in question, there are two writ
petitions before us. The first writ petition, being WP (C) No.4527/2010, has
been filed by the petitioner assailing the impugned order of respondent
No.2/Registrar. The notice of opposition had been filed by respondent No.3. The
said respondent No.3 has filed a separate writ petition, being WP (C)
No.640/2012 subsequently to challenge the vires of Rule 32 of the said Rules.
For convenience of reference throughout this judgement, though respondent No.3
in WP (C) No.4527/2010 is the petitioner in WP (C) No.640/2012, the said party
has been referred to as respondent No.3 hereinafter (for short „R-3‟). We are
concerned with what is claimed to be a novel variety of cotton C-5193. The
petitioner, a limited company, incorporated and registered under the Companies
Act, 1956 is stated to be engaged in the research and development of novel
varieties of seeds and plants and their commercialization. The petitioner filed
an application under the said Act to register its novel variety of cotton,
which application was published by the Protection of Plant Varieties and
Farmers‟ Rights Authority („the said Authority‟ for short) in the Plant Variety
Journal dated 01.09.2008. Chapter 3 of the said Act deals with registration of
plant varieties. Section 14 refers to the application for registration while
Section 15 defines „registrable varieties‟. A person who can make an
application for registration is specified in Section 16 while the form of the
application is set out in Section 18. Section 19 refers to the tests to be
conducted while Section 20 refers to the acceptance of an application or
amendment thereof. Once an application for registration of a variety is
accepted, the same has to be advertised under Section 21(1). In terms of
Section 21(2), a notice of opposition can be made by any person within three
months from the date of advertisement of the application. The remaining
provisions thereafter refer to the procedure as to how such an opposition
application is to be dealt with while Section 22 requires the Registrar to
consider the opposition and to pass order on the same.
8. It
is in view of these provisions that R-3 filed an opposition to the application,
but beyond the stipulated period of three months as prescribed. The delay was
of 86 days in filing the notice of opposition. The opposition was
considered by R-2 and the delay in filing the notice of opposition was condoned
ex parte vide the order dated 11.06.2009. The condonation of delay was assailed
by the petitioner before the Delhi High Court by filing WP(C) No. 10938/2009.
The petitioner succeeded in the same and the impugned order was set aside by
the High Court vide Order dated 03.11.2009 on the ground that the condonation
of delay was granted without notice to the petitioner. The matter was thus
remanded back for re- consideration before R-2 which thereafter proceeded to
hear both the petitioner and R-3 and vide order dated 09.03.2010 condoned the
delay.
9. A
perusal of the order dated 09.03.2010 shows that undisputedly on 02.04.2008 an
application was filed for registration which was published in the Plant Variety
Journal of India (Vol. 2, No. 9) under Section 21 (1) and (2) of the Act on
01.09.2008 while an application for extending the time for filing notice of
opposition was filed on 12.02.2009. The proposed opponent filed the said notice
of opposition on 26.02.2009 with the requisite fee and it is their case that
the description of C-5193 cotton given in the Plant Variety Journal and the
copy of the application for registration give contradictory statements; copy of
the journal was received by the opponents only on 24.10.2008; copy of the
application for registration was provided to them only on 27.01.2009.
10. On
the other hand, the case of the petitioner was that there was no provision
conferring power on the Registrar to extend the time for filing of notice of
opposition and that there was no discrepancy in the material published in the
advertisement. The impugned order notes in detail the rival contentions and
thereafter proceeds to determine what it perceives to be the three material
aspects.
11. On
the first aspect as to whether the advertisement published in the Plant Variety
Journal was valid or not, it found in favour of the petitioner. On the second
issue, as to what would be the date of advertisement, i.e., whether the date
born out on the Journal was the date of dispatch to the subscriber or the date
of knowledge, it found that time for filing of notice of opposition should be
computed form the date of dispatch of journal to the subscriber and thus found
that there was a delay of 44 days. However, on the third aspect, as to whether
the Registrar has the power to extend the time limit for filing notice of
opposition, it found that such a power existed and was exercisable in favour of
R-3 as sufficient cause was found to condone the delay.
12. On
a discussion of the provisions of Section 96 of the said Act, Rule 32 and Rule
33 of the said Rules, it has been opined that since Rule 33 (6) provides for
extension of time limit for filing of evidence, there is no reason why the same
principle should not be applied for pleadings more particularly notice of
motion. On sufficiency of cause, it has been held that R-3 may have been
misled as stated by them though there was no invalidity in the advertisement
published. It is this order which is sought to be assailed by the petitioner
in WP(C) No.4527/2010 under Article 226 of the Constitution of India to the
extent that it has been held that power is available for condonation of delay
in filing the opposition under the provisions of the said Act. A further
prayer is made to read down the headnote of Rule 33 in the light of Section
21(2) r/w Section 96 (xviii), 96 (xx) and Rule 33 to restrict its application
only to submission of evidence. The other writ petition bearing No. 640/2012
has been filed by R-3 in WP(C) No. 4527/2010 seeking a declaration that Rule 32
of the said Rule is illegal and void being ultra vires the Act and the rule
making power of the Central Government. A further direction is sought that
the provisions of Section 5 of the Limitation Act, 1963 should be held to be
applicable in case of notice of opposition under Section 21(2) of the said Act
and / or a direction to make necessary amendments in the Act and rules
incorporating the provision for extension of time for notice of opposition,
counter evidence in view of what was sought to be urged on behalf of Union of
India in WP(C) No.4527/2010 to the effect that such an amendment was under
contemplation.
13. In
order to appreciate rival submissions, it is necessary to first deal with the
provisions which are required to be interpreted. We have already discussed
aforesaid the provisions relating to the application for registration. In that
context, the main Section with which we are concerned is Section 21 which reads
as under:
"21.Advertisement
of application
(2)Any
person may, within three months from the date of the advertisement of an
application for registration on payment of the prescribed fee, give notice in
writing in the prescribed manner, to the Registrar of his opposition to the
registration." (emphasis supplied)
14. The
power of the Central Government to make rules is conferred under Section 96 of
the said Act and the relevant portion is extracted as under:
"96.
Power of Central Government to make rules -
1) The
Central Government may, by notification in the Official Gazette, make rules to
carry out the provisions of this Act.
(2) In
particulars, and without prejudice to the generality of the foregoing powers,
such rules may provide for all or any of the following matters, namely:-
.........
.........
(xviii)
the manner of giving notice and the fee payable therefore under section (2) of
section 21;
(xx) the
manner of submitting evidence and the time within which such evidence may be
submitted under subsection (6) of section 21;"
15. Now
coming to the sub-rules enacted in pursuance to the power conferred by
sub-section (1) of Section 96 of the said Act, Chapter III of the Protection of
Plant Varieties and Farmers‟ Rights Rules, 2003 deals with registration of
plant variety and consists of Rule 24 to 36. We reproduce the relevant rules as
under:
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 Form01 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;
(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.
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 therefore.
(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.
(c) In
case the opposition succeeds, the security amount shall be refunded to the
opposition party.
32.
Compliance with time schedule.-(1) 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.
33.
Manner of submitting evidence and time limit for filing notice of opposition,
counter-statement or producing evidences under section 21.
.........
(2) Any
evidence upon which the applicant may rely shall be submitted in duplicate to
the Registrar with a copy to the opponent within thirty days from the date of
receipt of opponent's evidence.
.........
(6) The
time-limit for filing the evidence shall not ordinarily be extended except by a
special order of the Registrar given on an application filed by the person
seeking extension of time and on payment of the fee specified in the Second
Schedule and such an
application
for extension shall be in Form PV -5 of the First Schedule."
(emphasis
supplied)
16. The
controversies raised inter se the parties are being dealt with hereinafter:
i)
Whether the power under Rule 33 (6) can be imported into Rule 32 to extend the
time for filing of notice of opposition
17. The
submission of learned counsel for the petitioner is that in the impugned order,
reliance has been placed on Rule 33 which relates to the manner of submitting
of evidence and the time limit for filing notice of opposition, counter
statement or producing evidence under Section 21. However, this rule appears to
have a misleading heading as undisputedly it deals only with the aspect of
submission of evidence, the time limit of which is fixed as 30 days in sub-Rule
(2). Sub-Rule (6) proscribes extension of time ordinarily except if the
Registrar on a given application seeking extension of time passes a special
order. Such an application has
to be
filed in format PV-5. The said format PV-5 is reproduced herein as under:
"FORM
PV-5 [See rule 3j(6)]
THE
PROTECTION OF PLANT VARIETIES AND FARMERS'
RIGHTS
ACT, 2001
REQUEST
FOR EXTENSION OF TIME
I/We1.................................................................
hereby request for extension oftime for .......................... months under
rule 33 for filing notice of opposition/evidence/counter- statement.
In
respect of application No .......................... . The reason for making
this application is/are follows:- 1
.............................................................................................
. 2
.............................................................................................
.
My /
address for service in India is as follows:- Dated this
..........................day of .......................... 20 ....... .
Signature2.....................
.
To
The
Registrar
The
Plant Varieties Registry
At
........................ .
1.
Insert the Name (in full), address and nationality of the Applicant.
2. To be
signed by the Applicant(s)."
18. A
reading of this format shows that even in this format, the request for
extension of time is sought with reference to filing notice of opposition,
evidence, counter statement, but in the context of Rule 33; while Rule 33 deals
only with the aspect of filing of evidence.
19.
Learned counsel for the petitioner thus submitted that Rule 33 has to be
necessarily confined to the extension of time for producing evidence in view of
the wording of various clauses of the rules, irrespective of the heading.
20. On
the other hand, Rule 32 specifically states that the time schedule for
advertisement, opposition, defence, hearing and amendment of specification
under the rules shall not be extended and the failure to comply would result in
forfeiture of the opportunity granted. Thus, there is an absolute prohibition
against extension of time under Rule 32 as distinct from Rule 33 where sub-Rule
(6) specifically provides for the extension of time for submission of evidence.
21. In a
nutshell, the submission was that the power to extend time under sub-Rule (6)
of Rule 33 meant only for producing evidence could not be used to extend time
for other purposes when such extension of time was clearly prohibited by Rule
32.
22. The
submissions of learned counsel for R-3 as also on behalf of UOI were more or
less in agreement with the submission of the learned counsel for the petitioner
in this behalf i.e. Rule 33 could not be imported into Rule 32. Thus the
conclusion in the impugned order was sought to be justified by the respondents
though for different reasons.
23. The
stand of R-3 was that the rules as they stood could create an impediment in
taking on record the notice of opposition beyond the time prescribed in view of
Rule 32 and that is the reason they had filed a separate petition for striking
down Rule 32. In the alternative, the submission was on parity with what was
the submission of UOI‟s counsel i.e. Rule 32 should be read down as not
completely proscribing extension of time. Thus, in the given factual situation,
the Registrar was within his rights to have come to the conclusion that it was
a fit case for grant of extension of time. The submission was that the word
"shall" should be read as "may" under Rule 32. A crucial
difference between the stand taken by UOI & R-3 was that while the stand of
UOI was that the Limitation Act, 1963 did not apply to the said Act, as per
learned senior counsel for R-3, it would apply. But, in the alternative, even
if it would not apply, it would not make any difference.
24. In
our view, qua this plea suffice to say that it is quite obvious that Rule 33
deals with a particular subject matter i.e. the submission of evidence. The
head note is clearly deceptive and an obvious mistake as no part of Rule 33
deals with the issue of filing of notice of opposition or counter statement.
Once the sub rules do not deal with this subject, the headnote cannot make the
same applicable. The Petitioner had relied on Raichurmatham Prabhakar&Anr. V. Rawatmal Dugar, (2004) 4 SCC 766 and Nalinakhya Bysack v. Shyam
Sundar Haddar 1953 SCR 533 in the pleadings (though not in the oral
arguments) to contend that the marginal note cannot be used to control the
meaning of a provision when the language employed therein is clear. The
reliance placed upon the aforementioned decisions would be of no avail to the
Petitioner and, in fact, further reaffirms our observation insofar as this mistake
in the headnote of Rule 33 is clearly carried forward in form PV-5, the format
of which appears to have been taken on the basis of the headnote of Rule 33.
25. We
are thus of the view that Rule 33 could not have been imported to the aspect of
extension of time for filing of notice of opposition. As to whether Rule 32,
which deals with the aspect of notice of opposition, is ultra vires the Act or
whether it has to be read down, will be dealt with hereinafter.
ii)
Whether Rule 32 is ultra vires the rule making power of the Central Government
and thus liable to be struck down.
26. The
common case of the petitioner and the UOI is that Rule 32 is not liable to be
struck down while R-3 has argued to the contrary. However, as to the import of
rule 32, there is divergence of views amongst the petitioner and R-3. It is the
case of the petitioner that Rule 32 has to be read strictly while the case of
UOI is that the said Rule is liable to be read down by reading the word
"shall" as "may" or "shall not ordinarily".
27.
Insofar as the rule making authority of the Central Government is concerned,
the same emanates from Section 96 (1), sub-section (2) of Section 96 begins
with the following : In particulars, without prejudice to the generality of the
foregoing powers, such rules may provide for all or any of the following
matters, namely:-. It is thus the submission of both the petitioner and UOI
that the aspects dealt with under sub-section (2) are only illustrative and not
exhaustive as the sub-section itself states that it is without prejudice to the
generality of the powers mentioned therein. Not only that, clause (lxviii) further
provides as under: "(lxviii) any other matter which is to be, or may be,
prescribed or in respect of which this Act makes no provision or makes
insufficient provision and provision is, in the opinion of the Central
Government, necessary for the proper implementation of this Act."
28. A
reading of the aforesaid along with main sub-section (2) is, thus, submitted to
have conferred the rule making power qua all subjects enlisted or not enlisted.
29. To
support the said plea, a reference has been made to Gone Rajasimha Rao and
Ors. V. The State of Andhra Pradesh and Ors.; AIR 1973 AP 236 advancing the
plea that when general provisions are followed by certain particular provisions
and when it is categorically provided that the latter are without prejudice to
the former, particular provisions do not cut down the generality of the meaning
of the preceding general provisions. The power conferred even under clause
(lxviii) is to frame rules where the Act makes no provisions or makes
insufficient provisions and such a provision is necessary in the opinion of the
Central Government for proper implementation of the said Act. Since the
Government was of the view that it was necessary to have a fixed time frame
within which notice of opposition was required to be filed, Rule 32 was so
enacted with the consequences of forfeiture of opportunity in case the notice
of opposition was not given within this specified period of time.
30. We
have already noticed the stand of the Central Government that the provision
should be read down though it is intra vires the Act, an aspect which will be
dealt with while dealing with that contention. On the other hand, learned
senior counsel for R-3 has drawn our attention to clauses (xviii) and (xx) of
Section 96 (2) which are once again reproduced below for convenience of
comparison.
"(xviii)
the manner of giving notice and the fee payable therefore under section (2) of
section 21; .........
(xx) the
manner of submitting evidence and the time within which such evidence may be
submitted under subsection (6) of section 21;"
31. It
is thus the submission that clause (xviii) mentions the manner of giving notice
and the fee payable therefor under Section 21(2), but the words "the time
within which" notice can be given are conspicuously absent. This is in
contrast to clause (xx) which relates to the evidence to be submitted under
Section 21(6), which not only provides the manner of submitting the evidence
but also the time within which such evidence may be submitted. Thus, the
provision as to time has been specifically mentioned. It is thus the submission
that the legislature in its wisdom has deliberately worded the two clauses
differently as under one the power to make rules qua time period was conferred,
while under the other, it was not so conferred. Thus, it was pleaded that the
rule making power did not include within it, the power to prescribe any time
for notice of opposition and while on the one hand, no provision was made for
prescribing time, under Rule 32 a bar was sought to be created for extension of
time for such notice of opposition and thus was clearly beyond the rule making
authority.
32. In
order to appreciate this plea, learned senior counsel has relied upon Sales Tax Officer v.
K.I.Abraham; 1967 3 SCR 518. The matter pertains to the assessment to sales
tax under the Central Sales Tax Act, 1956 where the appellant sought to contend
that the assessee had failed to file the declaration in the requisite format
and before the prescribed date according to the rules and thus could not take
advantage of a lower rate of assessment under Section 8(1) of that Act. The
decision on this question in turn was dependent on the construction of the
words "in the prescribed manner" in Section 8(4) which was held to
confer powers on the rule making authority to prescribe rules stating what
particulars are to be mentioned in the prescribed format, the nature and value
of the goods sold, the parties to whom they are sold and to which authority the
format is to be furnished. The phrase was, however, held not to include in it
the time element. It was thus held that the Section does not authorize the rule
making authority to prescribe a time limit within which the declaration is to
be filed by the registered dealer. This view was buttressed by the language of
Section 13(4)(g) of that Act which stated that the State Government may make
rules for the time within which, the manner in which and the authorities to
whom any change in the ownership of any business or in the name, place or
nature of any business carried on by any dealer was to be furnished. Thus, the
legislature was held to be conscious of the fact that the expression "in
the manner" would denote only the mode in which the Act was to be done,
and if any time limit was to be prescribed for doing of the Act, specific words
such as "the time within which" were also necessary to be put in the
statute.
33. In
our view the submission of the learned counsel for R-3 is based only on a
selective reading of the said clauses of Section 96 of the said Act. No doubt,
there is a difference in the wording of clause (xviii) and (xx) while dealing
with conferment of power under sub- section (2) and sub-section (6) of Section
21 of the said Act respectively. However, what cannot be ignored is the
substantive part of sub-section (2) which clearly mentions what is being
enlisted therein is without prejudice to the generality of the powers conferred
under sub-section (1) of Section 96 to make rules. This coupled with clause
(xviii) leaves no doubt that the power to make rules is qua any matter which
may or may not have been specifically prescribed in the different clauses or in
respect of which the Act makes no provision or insufficient provisions, but in
the opinion of the Central Government is necessary for proper implementation of
the Act. The powers are thus extremely wide and the legislative intent is
obvious. The said Act was dealing with a new subject matter and all ramifications
may not have been known when the different provisions were being framed. Thus,
a much wider power has been given by the Parliament to achieve the intent of
the Act if Section 96 is read as a whole.
34. The
restrictive meaning as enunciated by the Supreme Court in Sales Tax Officer v. K. I.
Abraham‟s case (supra), is in the context of the provisions of that act
which cannot be read into the present Act in view of the comprehensive powers
and the wording of the clauses and sub-sections of Section 96, which give wide
powers to the Central Government to make rules.
35. We
are thus of the view that the Central Government was not denuded of the power
to make Rule 32 and that the same is not ultra vires the provisions of the said
Act.
(iii) Whether the time period of three months
to file notice of opposition under Section 21 (2) is incapable of extension in
view of Rule 32:
36.
Section 21 (2) of the said Act gives right to "any person" to file a
notice of opposition. The same is reproduced hereinbelow:
"21.
Advertisement of application. -
(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."
37. The
significance of the aforesaid provision is that it is not applicable to any
class of persons but talks about "any person". It is a general term
followed by the expression "may". The notice of opposition has to be
filed within three months from the date of advertisement of the application for
registration on payment of the prescribed fee.
38. The
submission of the learned counsel for the petitioner is that while dealing with
the aspect of issuance of certificate of registration under Section 24 in
Chapter IV, the mandate is that the Registrar "shall" register the
variety. This is preceded by possibly two events - (a) the application has not
been opposed and the time of notice of opposition has expired; and (b) the
application has been opposed and the opposition has been rejected. It was,
thus, submitted that non-filing of notice of opposition within time results in
the mandatory consequence of registration of the variety. If this is read with
Rule 31 (1) it is in conformity with the requirement of the option available to
give a notice of opposition in terms of Form PV-3 of the First Schedule. Rule
32 makes it clear that the time period whether it be for advertisement,
opposition, defence, hearing or amendment of specification under these rules,
shall not be extended and failure in compliance of these time schedules would
result in forfeiture of the opportunity granted.
39. In
order to support the aforesaid contention reliance has been placed on the Full
Bench judgement of this Court in Hastimal Jain Trading as Oswal Industries
Vs. Registrar of Trademarks and connected matters 2000 PTC 24 (Del) (FB). A
similar question is stated to have arisen qua the Trade & Merchandise Marks
Rules, 1959. Section 21 of the Trade & Merchandise Marks Act, 1958
stipulates that the application for opposition to registration has to be made
within three months from the date of advertisement or within such further
period, not exceeding one month aggregate. Section 101 gives the power to the
Registrar to extend the time on an application made to him. Such power was held
to be circumscribed by the fact that he cannot extend the time which may have
already been expressly provided in the Act. In the context of Rule 53 (2) of
Rules therein it was observed that mere use of the word "shall" is
not sufficient to treat the Rule as mandatory. Not only that, a court may
ascertain the real intention of the Legislature by looking to the Statute as a
whole. The intention of the Legislature was to minimize delay for which a fixed
time period has been laid in the statute itself. It was, thus, held that for
procedural matters like filing evidence, the legislature was not laying down a
fixed time in the statute but time could not be extended by the Registrar where
it had been expressly provided in that Act.
40. A
reference was also made to Sharif-ud-din Vs. Abdul Gani Lone (1980) 1 SCC
403. The use of the word "shall" itself was held to be
inconclusive for determining the question i.e. whether a provision was
mandatory or directory. If the object of law is to be defeated by
non-compliance, it has to be regarded as a mandatory provision but when a
provision relates to the performance of any public duty and the invalidation of
any act done in disregard of that provision causes serious prejudice to those
for whose benefit it was enacted, then the performance of the duty is treated
as directory. It was observed in para 9 as under:
"9.
The difference between a mandatory rule and a directory rule is that while the
former must be strictly observed, in the case of the latter, substantial
compliance may be sufficient to achieve the object regarding which the rule is
enacted. Certain broad propositions which can be deduced from several decisions
of courts regarding the rules of construction that should be followed in
determining whether a provision of law is directory or mandatory may be
summarized thus: The fact that the statute uses the word 'shall' while laying
down a duty is not conclusive on the question whether it is a mandatory or
directory provision. In order to find out the true character of the
legislation, the Court has to ascertain the object which the provision of law
in question is to sub-serve and its design and the context in which it is
enacted. If the object of a law is to be defeated by non-compliance with it, it
has to be regarded as mandatory. But when a provision of law relates to the
performance of any public duty and the invalidation of any act done in
disregard of that provision causes serious prejudice to those for whose benefit
it is enacted and at the same time who have no control over the performance of
the duty, such provision should be treated as a directory one. Where however, a
provision of law prescribes that a certain act has to be done in a particular
manner by a person in order to acquire a right and it is coupled with another
provision which confers an immunity on another when such act is not done in
that manner, the former has to be regarded as a mandatory one. A procedural
rule ordinarily should not be construed as mandatory if the defect in the act
done in pursuance of it can be cured by permitting appropriate rectification to
be carried out at a subsequent stage unless by according such permission to
rectify the error later on, another rule would be contravened. Whenever a
statute prescribes that a particular act is to be done in a particular manner
and also lays down that failure to comply with the said requirement leads to a
specific consequence, it would be difficult to hold that the requirement is not
mandatory and the specified consequence should not follow."
(emphasis
supplied)
41. We
are unable, however, to appreciate how the first judgement would assist the
learned counsel for the petitioner as the ratio is that the court may decipher
as to what is the intent of the Legislature while using the expression
"shall". It appears that the second judgement is being relied upon
only in the context that not only is there a prohibition to do certain acts
under Section 21 (2) of the said Act but the consequences of not doing the same
confers an immunity on the other side in view of Section 24 (1) of the said
Act.
42. On
the other hand, the plea of learned senior counsel for R-3 was that there was
no specific time period provided for condonation of delay in Section 21 (2) of
the said Act contrary to Trade & Merchandise Marks Act, 1958 discussed
hereinabove. It was, thus, submitted that the benefit of Section 5 of the
Limitation Act, 1963 (hereinafter referred to as the "Limitation
Act") can be availed of, subject to satisfying the test of that Section
for condonation of delay. It was submitted that Section 5 has neither expressly
nor impliedly been excluded. If a period of condonation of delay was provided
then it could have been held that the power to condone under Section 5 was
excluded. In this behalf Section 29 (2) of the Limitation Act was referred to,
to submit that in the present case there is no special law prescribing the
period of limitation which could have excluded the provisions of Section 5 of
the Limitation Act. Relying upon Consolidated Engineering Enterprises Vs.
Principal Secretary, Irrigation Department & Ors. and connected matters
(2008) 7 SCC 169, this very proposition was sought to be supported.
43. On
this aspect, however, the Union of India is not ad idem with the submissions of
learned counsel for R-3 as it was pleaded that the provisions of Section 5 of
the Limitation Act would not be applicable to the proceedings before an
authority constituted under Section 3 of the said Act. This is so as the
provisions of the Limitation Act apply only to proceedings in "Court"
and not to bodies other than courts such as quasi-judicial tribunals or executive
authorities notwithstanding the fact that such authorities may be vested with
certain specified powers conferred on courts [reference: Sakuru Vs. Tanaji
(1985) 3 SCC 590; Birla Cement Works Vs. G.M. Western Railways (1995) 2 SCC
493; France B. Martins Vs. Mafalda Maria Teresa Rodrigues (1999) 6 SCC 627; and
State of Jharkhand &Ors. Vs. Shivam Coke Industries, Dhanbad & Ors.
(2011) 6 SCC 656].
44. In
our view, this issue is no more res integra in view of the settled legal
pronouncements and, thus, the endeavour of R-3 to import and take benefit of
Section 5 of the Limitation Act cannot be acceded to. It is an extremely
circuitous process through which R-3 seeks to make the provisions of the
Limitation Act applicable. In our view, the time period being clearly
prescribed and the provisions of the Limitation Act not being applicable to
such authorities, the benefit is not capable of being availed of by the
petitioner. We may also usefully refer to two other judgements in Hukumdev
Narain Yadav Vs. L.N. Mishra (1974) 2 SCC 133 and Zubeida Begum Vs. Indian Bank
(2012) 6 MLJ 801 laying down the legal principle that provisions of the Limitation
Act can be expressly or by implication excluded and, thus, cannot be extended
to enlarge the time prescribed under special statutes. It is not in dispute
that a specified time period of three months has been provided under Section 21
(2) of the said Act for filing a notice of opposition.
45. The
plea of learned counsel for R-3 for making the Limitation Act applicable is,
thus, without merit.
46.
However, the real crux of the dispute is revolving around the question as to
whether the so called prohibition contained in Rule 32 of the said Rules is to
be read absolutely, i.e., is the expression "shall" to mean
"shall" or "may". We have already recorded the submissions
of the learned counsel for the petitioner in this behalf at the inception.
However, the submissions of learned counsel for R-3 were in the alternative to
the plea of the Limitation Act applying, i.e., the expression "shall"
should be read as "may", an aspect emphasized even by learned counsel
for the Union of India.
47. The
basis of the aforesaid submission is that though Section 21 (2) of the said Act
prescribes the period within which the notice of opposition has to be filed,
the same should be read as directory and not mandatory since the consequence of
penalty for not complying with the time limit is not provided under the said
Act. This principle of law is also
sought to be supported by the plea that the prescription of such time period
falls within procedural law and the nature of statute is such that it deals
with rights of farmers and it is extremely inadvisable to give an
interpretation that forecloses their rights on the time period expiring even if
they are not fully aware of their legal rights in this behalf (of course
respondent No.3 in the present case is not a farmer). The judgement in Kailash Vs.
Nankhu & Ors. (2005) 4 SCC 480 has been relied upon in this behalf. The
insertion of the Proviso to Order 8 Rule 1 of the Code of Civil Procedure, 1908
(hereinafter referred to as the „said Code‟) and its consequences were being
examined and in that context it was observed that all the rules of procedure
are the handmaiden of justice. Thus, even if the language employed by the
draftsman of a procedural law may either be liberal or stringent, the fact
remains that the object of prescribing procedure is to advance the cause of
justice in an adversarial system, and no party should ordinarily be denied the
opportunity of participating in the process of justice dispensation. While
analyzing the Proviso which circumscribes the time period by the use of the
expression "shall not be later than 90 days", it was observed that
the consequences flowing from non-extension of time were not specifically
provided for, though they may be read in by necessary implication. The Supreme
Court went on to observe that merely because a provision of law is couched in a
negative language implying mandatory character, the same is not without
exceptions and the courts when called upon to interpret the nature of the provision
may, keeping in view the entire context in which the provision came to be
enacted, hold the same to be directory though worded in a negative form. The
Supreme Court while considering the plea that grave injustice may result if the
time-limit of days prescribed by Order 8 Rule 1 of the said Code was rigidly
followed as an insurmountable barrier, observed that a reasonable construction
would imply that the provision has to be read as directory and not mandatory
and, thus, in exceptional circumstances the court may extend the time for
filing the written statement though period of 30 days and 90 days, referred to
in the provision, has expired.
48. In
the same line of reasoning is the view of the learned Single Judge in
Liberty Footwear Company Vs. Force Footwear Company &Ors. 2009 (41) PTC 474
(Delhi), once again, emphasizing that a prohibition or bar requires a penal
consequence which should flow from non-compliance of such a procedural
provision.
49. It
has been emphasized that there is conspicuous absence of any such exclusionary
words or a language which may carry a negative import requiring an application
for opposition not be entertained after the expiry of the stipulated period. In
fact, it was pointed out that the reference by the petitioner to Section 21 (2)
of the Trade Marks Act, 1999 can be said to be misplaced as the language of
that Act is quite different. Section 21 deals with opposition to registration
and sub- section (2) reads as under:
"21.
Opposition to registration.--
xxxx
xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx
(2) The
Registrar shall serve a copy of the notice 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 WP (C) No. 4527-2010
& 640-2012 Page 32 of 40 which he relies for his application, and if he
does not do so he shall be deemed to have abandoned his application."
(emphasis
supplied)
50. If
the language is compared, there is an expression used at the end "and if
he does not do so he shall be deemed to have abandoned his application".
It was, thus, submitted that there is absence of any such negative connotation
in sub-section (2) of Section 21 of the said Act. Though such a negative
connotation is specified in Rule 32 of the said Rules, the said Rule must take
colour from the substantive provisions of the Act where there is no such
prohibition. Two other examples of such negative connotation have been stated
to be the Proviso to Section 34 (2) of the Arbitration & Conciliation Act,
1996 and Section 20 (3) of the Sales Tax Act, 1956.
51. As
far as the provision of Section 24 (1) (a) are concerned, the same is stated as
only to contemplate the consequences of non-filing of opposition to an
application within the permissible time but does not deal with the aspect of
non-adherence to the time incorporated in Section 21 (2) of the said Act. In
fact, the consequences, it was submitted, of a failure to file opposition
"within permissible time", would include even the extension of time
as may be applicable.
52. On
behalf of the Union of India, it was emphasized that the intent of the Act
being brought into force cannot be lost sight of as was emphasized in B.P.
Khemka Pvt. Ltd. Vs. Birendra Kumar Bhowmick&Anr. (1987) 2 SCC 407. Thus,
the question as to whether a statute is mandatory or directory depends upon the
intent of the Legislature and not merely on the language in which the intent is
clothed. Thus, the meaning and intention of the legislature can be
ascertained not only from the phraseology of the provision but also considering
its nature, its design and the consequences which would follow from construing
it one way or the other. To the same effect is the reliance on Shibu Chandra
Dhar Vs. Pasupati Nath Auddya (2002) 3 SCC 617.
53. A
further argument advanced on behalf of the Union of India is that Casus Omissus
may be supplied in Rule 33 to extend the time for filing opposition. The
heading of Rule 33 as well as Form PV-5 provide for extension of time for
filing opposition. However, the same is absent in sub-Rule (6) of Rule 33. This
sub-Rule, it was pleaded, must be read in the light of object sought to be
achieved by the enactment and in the light of Section 21 (2) of the said Act.
In this behalf, reliance was placed on Rajbir Singh Dalal (Dr.) Vs.
Chaudhari Devi Lal University, Sirsa&Anr. (2008) 9 SCC 284, where it
was observed in para 13 as under:
"13.
No doubt, the ordinary principle of interpretation is that words should neither
be added nor deleted from a statutory provision. However, there are some
exceptions to the rule where the alternative lies between either supplying by
implication words which appear to have been accidentally omitted, or adopting a
strict construction which leads to absurdity or deprives certain existing words
of all meaning, and in this situation it is permissible to supply the words
(vide Principles of Statutory Interpretation by Justice G.P. Singh, 9th edn. Pp
71-76)."
54. The
said Act being a beneficial legislation, it has been contended by the Union of
India that, there has to be a liberal construction for achieving the object for
which the enactment took place, i.e., to protect the rights of
farmers/interested persons. In Topline Shoes Ltd. Vs. Corporation Bank
(2002) 6 SCC 33 while dealing with the Consumer Protection Act, 1986 it was
held that the time limit comprising the initial period and the extended period
prescribed for filing of the opposite parties‟ version was directory and not
mandatory. The Statement of Objects & Reasons of that Act setting out
that it was to promote the rights and interests of consumers by speedy and
simple redressal mechanism was taken into account. No doubt time frames are
fixed to expedite hearing of the matters and to avoid unnecessary adjournments
but the expression "not exceeding 15 days" was held not to prescribe
any kind of period of limitation despite its phraseology. The provision was
treated as directory with object of achieving speedy justice.
55. A
further aspect, submitted on behalf of the Union of India, is that the mode of
service is by publication and not by any personalized service on any opposite
party. This may result in a situation where the advertisement may escape the
attention of an interested party and, thus, there should be power with the
Registrar to extend the time period in appropriate cases.
56. On
examination of the elaborate submissions in respect of the aforesaid, we are of
the view that the word "shall" used in Rule 32 has to be read as
"may". There are various reasons for arriving at such a conclusion,
primary amongst them being that there are no penal consequences provided under
Section 21 (2), which is the substantive provision prescribing three months‟
time period for a notice of opposition from the date of advertisement of the
application. In fact, a complete line of judgements has been cited by the
respondents to support this conclusion including the Liberty Footwear
Company case (supra) and Kailash Vs. Nankhu case (supra). If such a provision
is compared with Section 21 (2) of the Trade Marks Act, 1999 the significance
would be obvious, i.e., prescribing that the party shall be deemed to have
abandoned its application. The line of reasoning is that such procedures fixing
time limit are only to facilitate an early disposal and avoid unnecessary
adjournments but procedure being handmaid of justice they should not be put in
an absolute straightjacket. Thus, the intent of the legislature was directory
and not mandatory in character.
57.
There is also force in the contention that the very object and purpose of an
Act must be taken into account while construing such provisions. This is what
weighed with the Supreme Court while interpreting the provisions of the
Consumer Protection Act, 1986 in Topline Shoes Limited case (supra). The
present piece of legislation in question is also in the nature of a beneficial
legislation to provide for an effective system for protection of plant
varieties and the rights of the farmers and plant breeders. The fact that R-3
is not a farmer would not make a difference to the same as the construction of
the provisions has to be made keeping in mind that all the parties were going
to be affected by it.
58. To
draw strength for a plea of absolute prohibition under Section 21 (2) of the
said Act on the basis of Section 24 (1) (a), which only provides the
consequence for registration of an application in the absence of any
opposition, the reference to the expiry of time for giving notice of opposition
would obviously include any such time capable of being extended by the
competent authority.
59. We
are, however, unable to accept the plea that Rule 33 should be made applicable
to such an application for extension of time for opposition merely on the basis
of its heading when the substantive provision of the Rules made no reference
whatsoever to the aspect of an application for opposition. It is not as if it
is only in sub-Rule (6) of Rule 33 that there is absence of any reference to an
application for opposition for this Court to supply Casus Omissus but every
clause of it refers only to the aspect of evidence to be filed. Undoubtedly the
headnote and the Form both have been an obvious mistake. It is, of course,
possible that on a pari materia basis even on an application under Rule 32 of
the said Rules (no Form having been prescribed), Form PV-5 of First Schedule as
it exists may be utilized.
60. We
may, in the end, also take note of a communication placed before us by the
learned ASG appearing for the Union of India dated 25.2.2013 by the concerned
Ministry. This communication informs that on a detailed discussion between the
concerned Ministries it has been found that Rule 32 is not in alignment with
the provisions of the said Act, were it to be read strictly. Rule 33, in fact,
makes a reference not only to a notice of opposition but also a time schedule
for advertisement, hearing and amendment of the specification whereas in any
case no time schedule has been provided. Rule 32 is, thus, proposed to be
amended to obviate any such confusion and bring it in line with the legislative
intent. The aspect of the said Act being a beneficial legislation of farmers
has been again set out in the letter. It has been stated that the head note of
Rule 33 would also be omitted and Rule 32 would be properly worded in terms of
the intent of the Act. This is, of course, a matter for the respondents to
ensure that the confusion which has been created is obviated.
61. We,
thus, conclude that in view of the aforesaid discussion the mandate of Rule
32 should be read as one which is directory and not mandatory and, thus, power
can be exercised in an appropriate case by the Registrar to extend the time
period for filing the application for opposition.
(iv)
What is the nature of opposition proceedings:
62. In
view of our finding aforesaid the controversy qua the nature of opposition
proceedings has become academic in nature. However, some submissions were
advanced in this behalf, we are noticing the same.
63. It
is the plea of the petitioner that an opposition filed under Section 21 (2) is
an entirely independent adjudicatory process which commences from filing of the
opposition proceedings. It is in view thereof that, under Section 21 (4), a
counter-statement, which is in the nature of reply, is permitted to be filed by
the persons who have filed the application for registration whereafter a
replication which is labeled as „final opposition‟ is required to be filed,
followed by the evidence to be filed by the opponent and counter-evidence to be
filed by the applicant for registration. In this behalf reliance has been
placed on the findings of the Madras High Court qua proceedings under the Trade
Marks Act, 1999, where it has been held that such opposition is akin to filing
of a plaint, in Allied Blenders & Distillers Pvt. Ltd. Vs. Intellectual Property Appellate
Board, The Deputy Registrar of Trade Marks and John Distilleries Limited AIR
2009 Madras 196. The SLP against this judgement bearing No.36505/2009 is stated
to have been dismissed on 25.8.2011. Linked with this argument is the plea that
an opponent is not devoid of remedy as revocation proceedings can be filed
under Section 34 of the said Act as well as proceedings for
cancellation/variation of registration can be taken up under Section 36 of the
said Act. It has also been submitted that farmers‟ rights are protected under
Section 39 of the said Act through a non-obstante clause providing that nothing
shall prevent farmers from sowing, saving, using, resowing, exchanging, sharing
and selling their farm seeds of a variety protected under the said Act.
64. We
are, however, of the view that firstly, in view of our finding on the issue of
how Rule 33 has to be read, these issues do not remain germane as noticed.
Secondly, the nature of post registration opposition is different in character
and rights would be available till registration. No doubt a party is not
remediless but that will not imply that when the statute provides for an
opportunity to file a notice of opposition at the pre-registration stage, the
same should be defeated on the technical ground of not having been filed within
time, if condonation is permissible.
Conclusion:
65. We
may note that the issue of the advertisement of the application being proper or
not is stated to have been assailed by respondent No.3 before the Andhra
Pradesh High Court. The writ petition filed in the Andhra Pradesh High Court
has, however, been dismissed on the ground of forum non-conveniens against
which a Special Leave Petition is stated to be pending. In any case the finding
of the Registrar on this specific issue is that the advertisement is valid and
in accordance with law. The written synopsis of respondent No.3 does contain a
reference to the factum of the advertisement being erroneous. But we may note
that no arguments really took place on this aspect in view of the learned
senior counsel for the petitioner having confined his submissions to the single
aspect which affected the petitioner, i.e., condoning the delay in filing
notice of opposition while finding that there was no defect in the
advertisement.
66. We
are, thus, of the view that there is no need to strike down Rule 32 as framed
at present though certainly Rule 32 and Rule 33 leave much to be desired, the
proposal of Union of India to amend these Rules is a result of this. However,
even if Rule 32 is examined as it is, keeping in mind the intent and purpose of
the Act and the principles of law enunciated, the word "shall" in
Rule 32 may be read as "may" and, thus, the conclusion in the
impugned order where sufficient cause had been found to condone the delay and
the power, thus, exercised cannot be faulted though we cannot agree with the
reasoning adopted in the impugned order - an aspect with which even the
respondents agree.
67. The
result is that both the writ petitions are dismissed leaving the parties to
bear their own costs.
SANJAY
KISHAN KAUL, J
INDERMEET
KAUR, J
