Section 24(5) of the Protection of Plant Varieties and Farmers’ Rights Act, 2001, has been declared void by the Delhi High Court. Prabhat Agri Biotech Ltd, Nuziveedu Seeds (P) Ltd and Kaveri Seed Company Ltd. challenged the vires of Section 24(5) of the Protection of Plant Varieties & Farmers’ Rights Act in a writ before the Delhi High Court. The writ has recently been allowed.
Section 24(5) empower the Registrar to issue “such directions to protect the interests of a breeder against any abusive act” during the period between filing of application for registration and decision taken by the Authority on such application. The said impugned provision reads as follows: “(5) The Registrar shall have power to issue such directions to protect the interests of a breeder against any abusive act committed by any third party during the period between filing of application for registration and decision taken by the Authority on such application.”
The petitioner’s challenged this section on various grounds like:-
- the provision does not envisage any compliance with principles of natural justice when such orders are issued;
- the provision gives the power to issue interim directions even before the concerned breeder’s application for registration has been accepted and any rights have accrued,
- The provision does not provide any details of the orders that can be issued by the Registrar, such as, the conditions subject to which they can be issued, or the duration of their operation etc.
- the Act does not provide for any appeal against the issuance of an order under the impugned provision, and therefore any error in the order is difficult to be corrected
- the Act does not prescribe any qualifications for the Registrar who is empowered to issue such orders, and it is a well settled principle that substantial questions of law can only be decided by tribunals consisting of an adequate number of judicial members with legal qualifications
The Court agreed with the Petitioner and held that, “although the provision envisages the issuance of orders to injunct the commission of abusive acts, it does not explain what acts are to be considered abusive. This further fortifies the argument that the Registrar has been vested with unbridled power under the Act”. The Court further went on to state that, “The term “abusive act” is not defined; likewise, the question of decision taken by the authority on such application. More importantly the decision – final – taken upon an application for registration according to the provision is “by the Authority””.
Further, the Court held the provisions to be arbitrary and void, as infringement is a matter to be determined by regular courts, as the orders made under the impugned provision can have lasting adverse consequences, and there is no statutory provision ensuring that Registrars have minimum experience as quasi-judicial officials.
Whilst the qualification of Registrars as technical experts allows them to be capable of deciding whether the DUs test (to determine infringement) is satisfied; it does not fully dispose to handle issue of the moment especially concerning interim measures. This is of particular significance given that there is no appellate remedy against such orders which makes outcome fraught, undermining the rule of law and injecting arbitrariness to the entire exercise.