delhi high court

Delhi High Court: An appeal was filed by the appellant under Section 56 of the Protection of Plant Varieties and Farmers Rights Act, 2001, challenging the order dated 03-12-2021 passed by the Protection of Plant Varieties and Farmers Rights Authority, revoking the appellant’s registration with respect to plant variety- FL 2027 potato variety, on the grounds provided under Section 34(a), (b), (c) and (h) of the Act. The appellant further challenges the authority’s letter dated 11-02-2022, rejecting the appellant’s application for renewal of its registration. Navin Chawla, J., finds no merit in the present appeal and upheld the revocation of the registration granted to the appellants with respect to its plant variety – FL 2027 for the manufacture of Lays.

The appellant is a subsidiary of PepsiCo Inc engaged in the business of manufacturing, distribution, and sale of various products including non-alcoholic beverages sold under the brand names/trademarks ‘Pepsi’, ‘Mirinda’, ‘7UP’, etc., packaged drinking water sold under the brand name/trademark ‘AQUAFINA’, caffeinated beverages, fruit juices, and salted snacks and foods such as potato chips sold under the brand name/trade mark ‘LAY’s’ and ‘Uncle Chipps’.

The appellant claims that FL 2027 is a chipping potato variety with low external defects, high dry matter/high solids content, stable sugars making it highly suitable for the manufacture of chips and as it requires more time and energy in the cooking process, making it unsuitable for use as a table potato. It is the case of the appellant that the potato variety FL 2027 (commercial name – FC-5) was developed in USA by Dr. Robert W. Hoopes, a plant breeder and a former employee of Frito-Lay Agricultural Research, a division of PepsiCo Inc., which is the parent company of the appellant and later assigned his rights in FL 2027 to Recot Inc., a group Company of PepsiCo Inc. and a Delaware Corporation, by a Deed of Assignment dated 26-09-2003.

The appellant applied for registration of FL 2027 variety on 18-02-2011, however, the appellant due to a bona fide mistake ticked the box in the form depicting FL 2027 as a “New Variety”, with the date of commercialization as 17-12-2009 in India. The Registrar informed the appellant that the application is being considered under the ‘Extant Category’ and was thus registered as an ‘extant variety’.

The issue under consideration is whether the Authority has erred in revoking the registration granted to the appellant by invoking grounds mentioned in Section 34(a), (b), (c) and (h) of Protection of Plant Varieties and Farmers Rights Act, 2001.

The Court noted that the Authority in its impugned order has stated that the appellant had, in its application, wrongly applied for registration under the category of “new variety” instead of “extant variety”, and secondly, had given an incorrect date of first commercialization of the variety. In the case of a “new variety”, an additional condition of it being “novel” must be met and the appellant had nothing to gain by misrepresenting FL 2027 as a “new variety”, as against what it truly was, an “extant variety”.

The Court further noted that Section 20 of the Act states that on receipt of an application, the Registrar may, after making such enquiry 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 may deem fit. It further provides that in case the Registrar is satisfied that the application does not comply with the requirements of the Act, or any Rules or Regulations made thereunder, he may require the applicant to amend the application to his satisfaction.

The Court observed that the Registrar raised certain queries against the first application filed by the appellant. The appellant, in answer, amended its application and filed a revised application. The revised application filed, admittedly, had an error. The Registrar, instead of calling upon the appellant to amend the application, proceeded to consider the application as if such amendment had been made. Thus, the appellant could not have been held guilty of having obtained the registration by providing incorrect information with respect FL 2027 being a “new variety”.

The Court remarked that the said mistake could not have provided a ground to the Authority to revoke the registration granted to the appellant by invoking Section 34(a) of the Act. This was a clerical error, which was noticed by the Registrar and the registration was granted in the correct category.

On the ground of the incorrect date of commercialization of the variety given by the appellant in its application, the Court observed that the onus of providing correct information in the application is on the applicant and the applicant cannot shift this onus on the Authority or, having given incorrect information, plead that no difference would have resulted in the consideration of the application had correct information been provided by the applicant. Thus, the applicant must therefore, be put to strict and vigilant compliance with the requirements of the Act, the Rules, and the Regulations, failing which it opens itself up to revocation of the registration granted.

The Court concluded that the Registrar, on the initial application filed by the appellant, had raised queries and granted opportunity to the appellant to rectify the mistakes/deficiencies. The appellant filed an amended application, however, again with the deficiencies as have been found by the Authority. The Registrar, however, proceeded to grant registration in favour of the appellant. The fact remains that in spite of opportunity granted, the application filed by the appellant was not in conformity with the Act, the Rules, and the Regulations. The appellant is now suffering for its own mistakes and for its casual manner of making application seeking the registration.

The Court also cautioned the Registrar that it has been vested with an important and solemn function under the Act. As registration vest in the applicant valuable rights, the Registrar is duty bound to ensure that the applicant fully qualifies for the grant of such rights. The Registrar is not to act at its whims and fancies as it has not been vested with any unbridled discretion under the Act. Mere filing of the litigations by the appellant against the farmers, even presuming the same to be completely frivolous, cannot be construed as satisfying the test of grant of registration itself not being in public interest.

The Court dismissed the appeal being devoid of merits.

[Pepsico India Holdings Pvt Ltd. v. Kavitha Kuruganti, 2023 SCC OnLine Del 3912, decided on 05-07-2023]

Advocates who appeared in this case :

Mr. Dayan Krishnan, Sr. Adv. with Mr. Dheeraj Nair, Mr. Kumar Kislay, Ms. Anjali Anchayil, Ms. Shruti Dass, Ms. Aishna Jain, Mr. Sanjeevi Shesasdri & Mr. Vikarsh Gupta, Advocates for the Appellants;

Mr. Colin Gonsalves, Sr. Adv. with Ms. Hetvi Patel & Mr. Rohit Saini Advocates for the Respondents.

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