Madras High Court
The State Of Madhya Pradesh vs The Intellectual Property Appellate ... on 27 February, 2020
Author: R. Subbiah
Bench: R.Subbiah, C. Saravanan
wp 5798 of 2016
THE HIGH COURT OF JUDICATURE AT MADRAS
Orders reserved on : 08.08.2019
Order Pronounced on : 27-02-2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR. JUSTICE C. SARAVANAN
Writ Petition Nos. 5798 and 9564 of 2016
---
The State of Madhya Pradesh
rep. by the Additional Director of Agriculture
Department of Farmer Welfare & Agriculture Development
Government of Madhya Pradesh
State Institute of Agriculture Extension & Training
Bhadbhada Road, Bhopal .. Petitioner in WP No.
Madhya Pradesh 5798 of 2016
Madhya Kshedtra Basmati Growers Association Samiti
Village Harsili Vikaskhand Badi
Tehsil Badi, District Raisen .. Petitioner in WP No.
Madhya Pradesh 9564 of 2016
Versus
1. The Intellectual Property Appellate Board, Chennai
Guna Complex, Annexe-1
2nd Floor, No.443, Anna Salai
Teynampet, Chennai - 600 018
2. The Agricultural and Processed Food Products
Export Development Authority
3, NUCI Building, Siri Institutional Area
August Kranti Marg
New Delhi - 110 016
3. The Assistant Registrar of Geographical Indications
Office of the Geographic Indications Registry
IP Building, GST Road, Guindy
Chennai - 600 032
http://www.judis.nic.in
1/49
wp 5798 of 2016
4. New Darpan Social Welfare Society
A-11, Tilak Nagar E-8 Extension
Gulmohar Colony, Bhopal
Madhya Pradesh
5. Basmati Growers Association
1-C, Brar Street, Hira Nagar .. Respondents in WP
Patiala - 14701, Punjab No. 5798 of 2016
1. The Intellectual Property Appellate Board, Chennai
Guna Complex, Annexe-1
2nd Floor, No.443, Anna Salai
Teynampet, Chennai - 600 018
2. The Agricultural and Processed Food Products
Export Development Authority
3, NUCI Building, Siri Institutional Area
August Kranti Marg
New Delhi - 110 016
3. The Assistant Registrar of Geographical Indications
Office of the Geographic Indications Registry
IP Building, GST Road, Guindy .. Respondents in
Chennai - 600 032 WP No. 9564 of 2016
WP No. 5798 of 2016:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records of the first respondent in its proceedings in OA/5/2014/GI/CH and M.P.
No. 9/2014 in OA/5/2014/GI/CH dated 5th February 2016 and quash the same and
further direct the third respondent to de novo hear the entire matter.
WP No. 9564 of 2016:- Writ Petition filed under Article 226 of The
Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for
the records of the first respondent in its proceedings in OA/6/2014/GI/CH and M.P.
Nos. 10 and 11/2014 in OA/6/2014/GI/CH dated 5th February 2016 and quash the
same and consequently direct the third respondent to cancel the Geographical
Indication on 'Basmati Rice' registered as Geographical Indication No. 145 vide
Certificate No.238 dated 15th February 2015 and de novo hear the entire matter.
For petitioner : Mr. J. Sai Deepak
Mr. Avinash Sharma
Mr. R. Abhishek and
Mr. Vikram P. Jain
for Mr. T.K. Bhaskar in WP No. 5798 of 2016
Mr. Satish Parasaran, Senior Advocate
with Mr. Mohit Goel
Malika N
http://www.judis.nic.in for Mr. T.K. Bhaskar in WP No. 9564 of 2016
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wp 5798 of 2016
For respondents : Mr. P.S. Raman, Senior Advocate
for Mr. Rajendra Kumar
Mr. Ashish Kanta Singh,
Ms. Gladys Daniel
Mr. K. Muthu Selvam for R2
in both the Writ Petitions
Mr. P. Sanjay Gandhi for R4 in WP No. 5798
Mr. Ashok Kumar for R5 in WP No. 5798
COMMON ORDER
R. Subbiah, J Both these writ petitions are filed assailing the common order dated 05.02.2016 passed by the Intellectual Property Appellate Board, (IPAB) Chennai (in short 'Board') in various Original Applications.
2. WP. No. 5798 of 2016 is filed questioning the validity and/or correctness of the Order passed by the first respondent-Board on 05.02.2016 in OA/5/2014/GI/CH and M.P.No.9/2014 in OA/5/2014/GI/CH, seeking to quash the said order dated 05.02.2016 and to direct the third respondent to conduct a de novo hearing of the matter.
3. WP No. 9564 of 2016 has been filed praying to quash the order dated 05.02.2016 passed by the first respondent-Board in OA/6/2014/GI/CH and M.P.Nos.10 and 11/2014 in OA/6/2014/GI/CH and to issue a consequential direction directing the third respondent to cancel the Geographical Indication on 'Basmati Rice' registered as Geographical Indication No. 145, vide Certificate No.238, dated 15th February 2015 and to conduct a de novo enquiry in the matter. http://www.judis.nic.in 3/49 wp 5798 of 2016
4. The learned counsel on either side advanced common arguments in both these writ petitions since the common order dated 05.02.2016 passed by the Board is under challenge in both the writ petitions. Therefore, we are taking up both the writ petitions for hearing together for disposal.
5. For the purpose of disposal of these writ petitions, certain facts, which are germane and absolutely warranted are elucidated hereunder.
6. The second respondent in the respective Writ Petitions namely Agricultural and Processed Food Products Export Development Authority (hereinafter referred as 'APEDA') had filed an application dated 26.11.2008 before the third respondent, The Assistant Registrar of Geographical Indications, Chennai to register Geographical Indication (in short 'GI') for 'Basmati rice' under Class 30 of the Geographical Indication of Goods (Registration & Protection) Act, 1999 (in short 'Act').
7. The said application was numbered as Application No.145. Thereafter, the third respondent issued a formality compliance report to APEDA on 23.12.2009. On 29.12.2009, the third respondent by communication to APEDA, intimated the constitution of a Consultative group under Rule 33 of the Geographical Indication of Goods (Registration & Protection) Rules, 2002 (in short 'Rules') and the meeting was to be held between the consultative group on 29.01.2010.
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8. On 20.01.2010, APEDA filed their response to formality compliance report sought for by the third respondent and it was also subjected to deliberation and recommendations by the consultative group. Upon appraisal of the same, the third respondent issued a formal Examination Report on 04.03.2010 seeking certain information. Even in the Formality Compliance Report, the third respondent permitted APEDA to file a revised application based on the reply sent to the Formality Compliance Report within a period of two months. Accordingly, on 22.04.2010, APEDA filed a response to the Formality Compliance Report together with a revised application.
9. The said application was accepted by the third respondent and published in the GI Registry Journal No.34 on 31.03.2010. On coming to know about the acceptance of the application filed by the APEDA, the State of Madhya Pradesh, the petitioner herein, filed its Statement of Opposition in TOP.No.19 before the third respondent. Similar oppositions were also filed by others from Madhya Pradesh which are numbered as TOP.Nos.13 to 17. Resisting the applications for opposition, APEDA filed its counter affidavit on 13.12.2010 before the third respondent.
10. At this stage, on 26.04.2013, State of Madhya Pradesh has filed an application under Section 12 of the Act read with Rule 37 of the Rules, seeking withdrawal of the acceptance of the application submitted by APEDA. Similar applications were also filed by the other parties from the State of Madhya Pradesh under Section 12 as well as Section 14 of the Act.
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11. The third respondent heard the submissions of the counsel for the APEDA as also the State of Madhya Pradesh and passed an order dated 31.12.2013 holding that APEDA failed to satisfy the fundamental requirement to specify the demarcation of actual Basmati cultivating areas and therefore, directed APEDA to re-file an application seeking GI to register 'Basmati rice' within sixty days by including the actual Basmati cultivation areas along with a map clearly demarcating such areas.
12. Aggrieved by the order dated 31.12.2013 passed by the third respondent, APEDA filed an appeal before the first respondent - Intellectual Property Appellate Board (IPAB). Pending the Appeal, the first respondent, by order dated 12.02.2014, granted interim stay of operation of the Order dated 31.12.2013 of the third respondent. The Petitioner - State of Madhya Pradesh filed its counter statement on 09.08.2014. APEDA has also filed a reply, dated 26.09.2014 to the counter statement of the State of Madhya Pradesh. Upon hearing the submissions of the parties to the appeal, the first respondent passed the impugned order dated 05.02.2016 and allowed the appeal filed by APEDA and issued certain directions to the third respondent.
13. The operative portion of the impugned order dated 05.02.2016 of the IPAB reads as follows:-
"69. To sum up
1) OA/8/2014/GI/CH filed by Basmati Growers Association, Lahore, Pakistan is hereby dismissed.
2) OA/9/2014/GI/CH filed by Dawaat Foods Limited questioning the locus standi of APEDA to file GI Application No. http://www.judis.nic.in 145 is hereby dismissed and the findings in relation to that aspect 6/49 wp 5798 of 2016 of the Assistant Registrar, Geographical Indications in the impugned order dated 31.12.2013 in GI Application No. 145 is hereby upheld.
3) APEDA is entitled to get GI Tag for Basmati rice in respect of the areas and region specified in the certified copies of the maps annexed with the GI Application No.145 and consequently the Assistant Registrar, GI Registry, Chennai shall proceed with the registration and issue the certificate of registration within a period of four weeks from the date of receipt of the order copy of this Bench.
4) The findings of the Assistant Registrar of Geographic Indications in the impugned order dated 31.12.2013 in so far as the same relates to the inclusion of State of Madhya Pradesh in the GI Application No.145 and consequential direction to the appellant/applicant APEDA to amend the GI Application No.145 including the uncovered area with the map of the region demarcating the area of production within 60 days is hereby set aside.
5) The Assistant Registrar, Geographical Indications Registry, Chennai shall re-consider the matter afresh in respect of the claim of respondents/opponents for the inclusion of the areas specified in the State of Madhya Pradesh and other places mentioned in the impugned order by the Assistant Registrar by affording reasonable opportunity to both sides and by receiving any further evidence from both sides and pass an order in accordance with law within the period of six months from the date of receipt of the order copy of this Bench
14. It is as against this order dated 05.02.2016 of the IPAB these writ petitions have been filed by the State of Madhya Pradesh as well as the Madhya Kshedtra Basmati Growers Association Samiti, Madhya Pradesh respectively
15. Mr. Sai Deepak, learned counsel appearing for the writ petitioner in WP.No.5798 of 2016 namely State of Madhya Pradesh, would vehemently contend that the application filed under Section 12 of the Act by the petitioner and other Madhya Pradesh based parties, was filed by invoking Rule 37 of the Rules and Section 60 of the Act, based on the objections raised by the third respondent in the Formal http://www.judis.nic.in Examination Report, dated 04.03.2010 issued to APEDA. 7/49 wp 5798 of 2016
16. According to the learned counsel for the petitioner in WP No. 5798 of 2016, in the application filed under Section 12 of the Act, attention of the third respondent was drawn to the vague and unclear particulars furnished by APEDA in the GI Application with respect to demarcation of areas claimed by it. Notwithstanding such objections, the third respondent had proceeded to accept the GI Application and advertised it under Section 13 of the Act. It is on this basis, the petitioner sought withdrawal of the acceptance to the GI Application filed by APEDA in terms of Section 12 of the Act.
17. Further, in the application under Section 12, the petitioner sought for re-constitution of the Consultative Group, inter alia, a direction to undertake an in- depth scientific mapping exercise to identify the Basmati growing regions in every State in India and publish the GI application for acceptance after a thorough mapping exercise had been undertaken. In other words, the Opposition under Section 14 of the Act seeks inclusion 13 Districts of Madhya Pradesh, which are Basmati growing regions, especially when the application filed by APEDA under Section 12 of the Act only seeks to reduce the over-broad and non-specific territorial claims. The third respondent, on an objective analysis of the issues and the distinction between the objections raised under Section 14 of the Act and the nature of the application filed by APEDA under Section 12 of the Act, held that the application filed by APEDA lacks specific demarcation of areas.
18. The learned counsel for the petitioners also contended that earlier, an application for registration of Basmati, as a GI, was filed by an entity called Heritage http://www.judis.nic.in 8/49 wp 5798 of 2016 and the same was referred to the Consultative Group as required under Rule 33 of the GI Rules. The Consultative Group recommended for its rejection and the recommendations made by the Consultative Group had set the benchmark for examination of similar application filed by APEDA. However, the benchmark set by the Consultative Group in the matter of examination of the application submitted by Heritage, has not been followed while examining the application submitted by APEDA.
19. In this context, the learned counsel for the petitioner had invited our attention to the Order dated 31.12.2013 passed by the third respondent. The learned counsel for the petitioner has taken us to the various paragraphs of the order dated 31.12.2013 to contend that the third respondent has rendered a specific finding that APEDA was requested to clarify that the Basmati growing area is mapped through a scientific exercise and if any part of the area is excluded, the reason for exclusion was to be explained with supporting documents. In para No.37 of the order dated 31.12.2013, the third respondent also specifically listed out the areas indicated by the petitioner in the Opposition and submitted proof of cultivation of Basmati rice within the State of Madhya Pradesh since 1990. Further, in para No.49 of the order dated 31.12.2013, it was specifically pointed out that as per the data published by the Directorate of Rice Development, Patna, some of the States like Madhya Pradesh, Rajasthan, Bihar were having Basmati rice cultivation, but they are left out in the GI Application No.145 filed by APEDA. It was also pointed out therein that when documents and evidence have been filed along with the Opposition to show the actual area of cultivation, the application of APEDA, without http://www.judis.nic.in 9/49 wp 5798 of 2016 including the areas of actual Basmati Cultivation in Madhya Pradesh pointed out in the Opposition, required re-examination.
20. It is in those circumstances, the third respondent, in the order dated 31.12.2013, has concluded that Application No.145 should also include the uncovered area, with the map of the region clearly demarcating the area of production within 60 days from the date of this order. In order to fortify his submission, it is submitted that APEDA had left out certain Basmati growing areas, which areas ought to have been included in Application No.145. The learned counsel for the petitioner also relied on para No.24, 36, 49, 50, 51 and 99 of the order dated 31.12.2013 of the third respondent and contended that the third respondent considered the provisions contained under Section 12 of the Act and rightly dismissed the application submitted by APEDA for registration of GI.
21. Proceeding further with his submission, the learned counsel for the petitioner would submit that the order dated 31.12.2013 of the third respondent is indeed a composite Judgment, which relied on the negative applications under Section 12 of the Act and positive Oppositions under Section 14 of the Act, whereby a factual finding has been rendered that the application of APEDA is imperfect and lacks clarity. When such a factual finding has been given holding that the application of APEDA is improper and requires to be re-submitted, the petitioner did not file any appeal before IPAB for non-adjudication of the application filed under Section 12 of the Act, especially when the application under Section 12 stood adjudicated and allowed by the third respondent. Therefore, the contention of http://www.judis.nic.in 10/49 wp 5798 of 2016 APEDA that the petitioner did not challenge the non-adjudication of application under Section 12 of the Act, is untenable. This is more so that APEDA never objected to the filing of the application under Section 12 of the Act either on grounds of maintainability or non-compliance of Rule 37 of the GI Rules. In this context, the learned counsel for the petitioner also placed reliance on the written submissions made by APEDA on 01.07.2013 before the third respondent, to contend that APEDA has not raised any sort of objection, including maintainability of the application under Section 12 of the Act even while responding to the said application orally while making arguments on 13.03.2013. It is also vehemently contended that the written statement filed on behalf of APEDA before the third respondent, was not filed before the IPAB for its consideration as part of the appeal memorandum. This is relevant in the context of the assertion made on behalf of APEDA before the IPAB that the third respondent, in the composite Judgment dated 31.12.2013, did not consider or dealt with the contentions raised as against the applicability of Section 12 of the Act. The fact remains that APEDA was aware that the Judgment dated 31.12.2013 of the third respondent was based on Sections 12 and 14 of the Act. Therefore, according to the learned counsel for the petitioner, the question of res-judicata as contended by APEDA before the IPAB, does not survive for consideration by this Court.
22. The learned counsel for the petitioner would proceed to contend that APEDA, while filing an application for getting GI registration for Basmati rice, ought to have included the State of Madhya Pradesh as well, inasmuch as it was aware of the purchase of Basmati rice from major rice exporters from the State of Punjab http://www.judis.nic.in 11/49 wp 5798 of 2016 and Haryana and other States. This is more so that the State of Madhya Pradesh has placed adequate evidence in the website of APEDA itself that the State of Madhya Pradesh has been contributing significantly for export of Basmati rice from India to other Countries. In fact, APEDA not only is aware of such exports, but also expressly permitted such exports from the ICD Depot in Mandideep, Madhya Pradesh. The learned counsel for the petitioner also took us to the export data of Basmati rice from ICD Mandideep and contended that the petitioner has legitimately expected in good faith that APEDA would file the Application for GI for Basmati rice by including 13 out of 51 Districts of Madhya Pradesh, but intentionally the other Basmati cultivating areas have been excluded in the application. It is also contended that two parties cannot file GI application for the same product, as it would defeat the object of protecting the purity of GI. In such circumstances, it is open to the petitioner to file an opposition for inclusion of certain uncovered areas in the application for GI filed by APEDA. The non-inclusion of certain Basmati cultivating areas in the State of Madhya Pradesh, would affect those who legitimately produce and sell Basmati rice in the State of Madhya Pradesh. When the State Government of Madhya Pradesh came to know about the decision taken by the Consultative Group and the GI Registry in relation to an earlier application filed by M/s. Heritage for GI registration of Basmati rice, the State Government and other Madhya Pradesh based parties preferred applications under Section 12 of the Act to expose the over-broad claims of APEDA to the third respondent. Therefore, it is contended that APEDA has conducted itself in a most partisan manner, even though it claims to be the guardian of Basmati rice in the interest of farmers cultivating Basmati rice.
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23. The learned counsel for the petitioner has taken us through the various portions of the order passed by the IPAB and contended that there are patent error, perversities and infirmities in the same. According to the learned counsel for the petitioner, in para No.18 of the order, which is impugned in this writ petition, the conclusions reached by IPAB are without application of mind with respect to distinction between Section 12 and Section 14 of the Act. The IPAB also did not appreciate the express provisions contained under Section 2(1)(e) of the Act, which goes against the grant of GI jurisprudence and Agreement on Trade related Aspects of Intellectual Property Rights (in short TRIPS) history. By pointing out the observations rendered in para No.39 of the impugned order, the learned counsel would contend that the observation that "Basmati rice has been traditionally grown and produced in a specific region of the Indo-Gangetic Plain below the foot hills of Himalayas" is without any reasoning and evidence. Such observation alters the very basis on which the third respondent had arrived at a conclusion to direct APEDA to include the 13 Districts of State of Madhya Pradesh. Similarly, the learned counsel for the petitioner has drawn our attention to each and every one of the observations made by the Board in Para Nos.40, 45, 47, 48, 49, 50, 57, 62 and 65 of the order of the IPAB and contended that Sections 12 and 14 of the Act have been misconstrued and not properly considered by the IPAB while appreciating the Opposition of the petitioner. The IPAB also failed to consider as to whether APEDA has strictly complied with the requirements under Section 11 of the Act despite the Madhya Pradesh based parties raising grave and fundamental objections in the manner in which APEDA claimed GI registration only in respect of five States without any demarcation of Basmati growing areas within the said http://www.judis.nic.in 13/49 wp 5798 of 2016 States, including Delhi. It is further stated that IPAB erred in holding that the Indo- Gangetic Plain is the traditional Basmati growing area without any documentary evidence to substantiate the same. The IPAB, while directing the third respondent to grant GI registration to APEDA for Basmati rice, ought to have tested the veracity of the claim made by APEDA, even in the absence of any objections from the Madhya Pradesh based parties. APEDA, being a statutory body and claiming themselves to have taken several steps to protect the national interest, has in fact acted against the public interest. The finding of the IPAB that Indo-gangetic Plain is the traditional Basmati rice growing area, has defeated the very object of remanding the case for inclusion of certain areas claimed by Madhya Pradesh based parties, especially when the IPAB has positively directed the third respondent to grant GI registration in favour of APEDA for Basmati rice. Therefore, according to the learned counsel for the petitioner, the remand proceedings resorted to by the IPAB has become an empty formality. On the one hand, the IPAB has remanded the matter back to the third respondent for fresh consideration and at the same breath, it had directed issuance of GI Registration Certificate to APEDA for Basmati rice. By accepting APEDA's claim that Indo-Gangetic Plain is the only traditional Basmati rice growing area, the IPAB has completely set aside the well merited findings rendered by the third respondent in the Judgment dated 31.12.2013. Further, the finding of the IPAB that "Popular perception" is the criterion for grant of GI, is wholly untenable and it goes against the spirit of Section 2(1)(e) of the Act, which sets out three important requirements, namely "quality", "reputation" and other "Characteristic" in relation to geographical origin of the goods. The IPAB has only considered the element of "reputation" of the areas http://www.judis.nic.in 14/49 wp 5798 of 2016 claimed by APEDA, instead it ought to have examined the claim of APEDA in proper perspective. Further, no where in the order which is impugned in these writ petitions, the IPAB has undertaken an analysis of APEDA's claim for including the entire State of Delhi as a traditional Basmati growing area, since Delhi as well as Uttar Pradesh are not even associated with Basmati cultivation.
24. The learned counsel for the petitioner contended that IPAB failed to take note of Section 8 (4) of the Act, whereby the third respondent is treated as the authority to appreciate the facts in relation to an application filed for grant of GI registration. When the third respondent has come to an irresistible conclusion that APEDA has not satisfied the fundamental requirements of GI application, the IPAB ought not to have interfered with such finding. As per Section 8 (4) of the Act, the IPAB ought to have enquired if it had the jurisdiction to entertain the appeal on the issue of area demarcation. The IPAB, as an Appellate Tribunal, ought to have undertaken an exercise to define its own jurisdiction while examining the claim of APEDA for GI registration. In such circumstances, the piecemeal inclusion of certain areas, as claimed by APEDA, while excluding certain areas as claimed by the Madhya Pradesh based parties, is required to be interfered with by this Court in exercise of the powers conferred under Article 226 of the Constitution of India. According to the learned counsel for the petitioner, this Court is empowered to venture into a finding in exercise of writ jurisdiction to examine as to whether the inclusion of five States by APEDA namely Punjab, Haryana, Himachal Pradesh, Delhi and Uttarkhand without any clear, specific and reasoned demarcation and to adjudicate the same in this writ petition and to correct the perverse findings http://www.judis.nic.in 15/49 wp 5798 of 2016 rendered by the IPAB. In this context, the learned counsel for the petitioner placed heavy reliance on the decision of the Honourable Supreme Court in Atlas Cycle (Haryana) Limited vs. Kitab Singh reported in 2013 (12) Supreme Court Cases 573 to contend that when irregularity and infirmity are glaringly evident in the order passed by a statutory authority, the Writ Court would be fully justified in interfering with such conclusion and the relevant portion of the said order of the Supreme Court reads as follows:
"11. .. ... We are conscious of the fact that the High Court exercising writ of certiorari would not permit to assume the role of the appellate Court, however, the Court is well within its power to interfere if it is shown that in recording the said finding the Tribunal/Labour Court had erroneously referred to admit the admissible and material evidence, or had erroneously admitted only inadmissible evidence which has influenced the impugned finding, the Writ Court would be justified in exercising its remedy. In other words, if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by way of a writ of certiorari."
25. For the same proposition, with respect to maintainability of a writ petition as against a perverse order passed by a quasi-judicial Tribunal or Forum, the learned counsel for the petitioner placed reliance on the decision of the Honourable Supreme Court in Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and others), reported in 1984 (4) SCC 635.
26. Mr. Satish Parasaran, learned Senior Counsel appearing for the petitioner in WP. No. 9564 of 2016 would vehemently contend that the basis on which certain areas have been included by APEDA in their application for registration of GI, is without any scientific evidence. The areas mentioned by http://www.judis.nic.in 16/49 wp 5798 of 2016 APEDA in the application for GI are the entire States of Punjab, Haryana, Himachal Pradesh, Delhi, Uttarkhand, parts of Uttar Pradesh and Jammu and Kashmir. Upon consideration of the application under Section 12 of the Act, the third respondent rightly directed APEDA to withdrew the acceptance of such application filed by APEDA on the ground that it failed to satisfy the fundamental and basic requirement to make a clear, specific and reasoned demarcation of actual Basmati rice cultivating areas. It was also reasoned that the actual Basmati cultivating areas must be included in the GI application and such areas must be identified upto the Village and Panchayat level. Therefore, the third respondent directed APEDA to re- submit the application by rectifying the defects pointed out therein. However, APEDA filed an appeal before the Board and it was allowed without considering the objections raised by the petitioners with respect to the areas indicated in the application filed by APEDA. The learned Senior Counsel appearing for the petitioner would further contend that a bare perusal of the application under Section 12 of the Act would show that the very basis of the said application was the unreasoned and unscientific manner in which the entire States were included by APEDA in the GI application. By pointing out Section 11 of the Act, the learned Senior Counsel would contend that the objection of Section 11 of the Act is to identify with specificity the territories/areas sought to be included and supported by history and commercial production of the product for a significant period of time prior to the date of filing of the application for GI. The application under Section 12 of the Act clearly captures the history of the region where Basmati rice is grown and it was also part of the deliberations with the Consultative Group under Rule 33 of the GI Rules on 26.11.2008. Even in the meeting convened on 28.01.2010 between http://www.judis.nic.in 17/49 wp 5798 of 2016 the Consultative Group and representatives of the second respondent, it was directed to ascertain the correctness of the particulars furnished by APEDA with respect to area of demarcation inter-alia to provide relevant information on the mapping of the area which was guided by the National Basmati field trials. The second respondent/APEDA was also asked to furnish the names and address of farmers who constituted the authority provided under the APEDA Act. However, the response of APEDA to the above clarification sought for by the Consultative Group was manifestly evasive.
27. The learned Senior Counsel appearing for the petitioner in WP.No.9564 of 2016 would also contend that the application under Section 12 of the Act dealt with in detail the reply filed by APEDA to the questions raised by the Consultative Group. In the reply filed to the application under Section 12 by the APEDA, it merely listed out certain areas as Basmati Cultivating regions without an element of clarification regarding the boundaries or the extent of area or on what basis the areas were identified. In the reply, the second respondent also relied on Section 2(e) of the GI Act and Article 22.1 of the TRIPS Agreement to state that a Geographical Indication can be afforded protection solely on the basis of the reputation attributable to the geographical area. This submission, according to the learned Senior Counsel appearing for the petitioner cannot be sustained, inasmuch as reputation is not the sole basis for granting a GI and it had no statutory support or could not be relied upon. A product's reputation or popular perception might not be an accurate reflection of facts, especially in the case of agricultural goods. By pointing the reply filed by APEDA to the application under Section 12 of the Act, the http://www.judis.nic.in 18/49 wp 5798 of 2016 learned Senior Counsel would contend that the reply with reference to the claim of APEDA that they have used scientific tests and research to confirm that the variety of rice growing in the pre-defined areas claimed in the GI application comply with the notified parameters for Basmati, is far from truth. According to the learned Senior Counsel appearing for the petitioner, even on the date of publication of the Basmati as GI and until this date, APEDA has not clearly submitted an account for inclusion of the areas indicated in the GI application.
28. The learned Senior Counsel appearing for the petitioner in WP No.9564 of 2016 also would further point out the counter affidavit filed by the petitioner before the IPAB to the appeal filed by APEDA and contend that the petitioner had listed out various Districts in the States claimed by APEDA in the GI application by referring to a book titled "Aromatic Rices" by R.K. Singh, U.S. Singh and G.S. Singh published in 2000 to substantiate that the areas indicated in the GI application of the APEDA is palpably without any clarity or rationale. However, the IPAB did not consider the fact that APEDA fundamentally failed to identify the actual basmati cultivating areas in the State of Madhya Pradesh and also did not consider the claim of the opposition parties for inclusion of certain areas.
29. The learned Senior Counsel further submitted that as per the Act, an Opposition can be made prior to grant of GI Registration and subsequent to publication for acceptance, namely, an Opposition under Section 14 (1) of the Act and withdrawal of acceptance by the GI Registrar under Section 12 of the Act. In an Opposition under Section 14 of the Act, the third respondent has the power to http://www.judis.nic.in 19/49 wp 5798 of 2016 consider even those grounds which are not raised by an opponent in the Opposition. In other words, according to the learned Senior Counsel appearing for the petitioner, the third respondent has enormous power for either granting or refusing to grant GI registration. In the light of the above statutory safeguards provided under the Act, Oppositions were filed but they were not properly considered by the IPAB while allowing the appeal filed by APEDA.
30. As regards the alternative remedy provided under Section 27 of the Act, it is contended by the learned Senior Counsel appearing for the petitioner that Section 27 envisages initiation of a proceeding either before the GI Registrar or the IPAB. The IPAB is the Appellate Authority under the provisions of the Act. The IPAB has taken a decision, although unreasoned and erroneous, with respect to the grant of GI Registration to the areas included by APEDA in the GI Application, while so, it is practically futile on the part of the petitioner to approach the subordinate of the Appellate Authority, namely the third respondent/Registrar and to agitate the same issue. It is even more futile exercise for the petitioner to approach the IPAB under Section 27 of the Act, since the IPAB is pre-disposed on the issue thereby rendering the proceedings under Section 27 otiose and academic. Even though the IPAB has the power under Section 27 to look into the objections raised by the petitioner with respect to the areas included by the second respondent/ APEDA, the IPAB took a conscious decision to limit the scope of the petitioner's future remedy to seek for exclusion of the State of Madhya Pradesh in the GI registration. In such circumstances, the petitioner has no other remedy but to approach this Court with this writ petition. Therefore, the learned Senior Counsel appearing for the petitioner http://www.judis.nic.in 20/49 wp 5798 of 2016 prayed for allowing this writ petition and to direct the third respondent to conduct a de-novo enquiry in the matter afresh, after affording adequate and sufficient opportunity to all the parties.
31. Opposing the submissions made by the learned counsel for the petitioner in both the Writ Petitions, Mr. P.S. Raman, learned Senior Counsel appearing for the second respondent in these writ petitions, namely APEDA, would vehemently oppose the writ petitions filed by the petitioners. It is the contention of the learned Senior Counsel appearing for the second respondent that APEDA is a statutory authority established under the Agricultural and Processed Food Products Export Development Authority Act, 1985 (for short, 'the APEDA Act') enacted by the Parliament. The APEDA Act was enacted for development and promotion of export of certain agricultural and processed food products from India, including Basmati rice. According to him, APEDA is a non-trading body constituted to represent the interest of the producers/stakeholders, including farmers, exporters and importers of Basmati. As per the APEDA Act, apart from a Chairman to be appointed by the Central Government, three other Members of Parliament, 8 Members appointed by the Central Government to represent the Ministry of Agriculture and Rural Development, commerce, finance, industry, food, civil supplies, civil aviation, shipping and transport; 5 members to represent the State and Union Territories; 7 members to represent the Indian Council of Agricultural Research, National Horticulture Board, the National Agricultural Cooperative Marketing Federation, the Central Food Technological Research Institute etc., 12 members to represent fruit and vegetable product industries, other scheduled products industries etc., and 2 http://www.judis.nic.in 21/49 wp 5798 of 2016 members from amongst the Specialists and Scientists in the field of agriculture, economics and marketing of scheduled products, were included. Therefore, it is submitted by the learned Senior counsel that APEDA has wide representation from all the stakeholders with diverse interest in the field. From the constitution of APEDA in the year 1995, it had taken several initiatives to protect the goodwill and propriety of "Basmati rice" on a global basis for the benefit of all the stakeholders by enforcing the common law rights on their behalf. Listing out the details of the efforts taken by APEDA as required under Section 10(2)((b) of the APEDA Act, the learned Senior Counsel submitted that several actions have been taken to prevent the attempt by third party persons to misappropriate the name 'Basmati' and its deceptive variants such as Texmati, Kasmati, Basnati, Basmall etc., and APEDA has been enforcing labelling guidelines in India through legal actions initiated at various stages. APEDA has also successfully challenged and forced a voluntary surrender/revocation of claims of patent taken out in United States of America by Ricetec Inc., during the year 2000, seeking to confer monopoly upon Ricetec towards production and marketing of rice grains inter-alia claiming rights with respect to export of Basmati rice to United States of America. During the year 2003, APEDA along with All India Rice Exporters Association (in short, AIREA) established a society, by the name of Basmati Export Development Foundation (BEDF) with the objective of undertaking the promotion and development of supply chain of Basmati rice and in particular, to promote, develop and coordinate the integrated activities with diverse stakeholders, such as farmers, traders, exporters and consumers.
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32. Thus, according to the learned Senior Counsel, for the past 25 years, APEDA has been successfully tackling illegal attempts towards usurpation of goodwill and propriety in the name of third parties. According to the learned Senior Counsel appearing for the second respondent, Basmati rice has been recognised as a product produced and grown in specific region below the foothills of Himalayas, in North India.
33. The origin of Basmati rice, according to the learned Senior Counsel appearing for the second respondent, was in Indo-Gangetic Region and therefore, the entire region is the place of origin within the scope and definition of Section 2(e) of the Act. In order to curb any such attempt to get GI tag by the third party and to get a statutory protection for Basmati, a Bill for amending APEDA Act was passed in the Lok Sabha on 25.02.2019 with specific reference to the word 'Basmati' to be conferred with Geographic Indication. As a sequel thereof, on 26.11.2008, APEDA filed an application to register 'Basmati' as a Geographical Indication in Class 30 under the GI Act and it was numbered under Application No.145. Thereafter, deliberations took place and the consultative group was formed for making a recommendation as required under Rule 33 of the Rules.
34. Pursuant thereto, the third respondent issued a formal Examination Report on 23.12.2009 seeking certain information which were complied with by APEDA on 29.12.2009 and the application of APEDA was accepted by the third respondent which was also advertised in the GI Journal No.34 dated 31.03.2010. http://www.judis.nic.in 23/49 wp 5798 of 2016
35. While so, on 19.10.2010, the third respondent communicated to the APEDA that the writ petitioner herein and other opponents from the State of Madhya Pradesh have filed oppositions as contemplated under Section 14 of the GI Act. The main opposition of the writ petitioner is to include the State of Madhya Pradesh, particularly Morena, Bhind, Gwalior, Sheopur, Datia, Shivpuri, Guna, Vidisha, Raisen, Sehore, Hoshangabad, Jabalpur and Narsinghpur in the application for registration of Basmati as "GI". In the said application, after completion of pleadings and evidence, arguments were heard by the third respondent on 18.03.2013. In the meantime, petitioner filed an application on 09.04.2013 purportedly under Section 12 of the Act read with Rule 37 of the Rules. The application for opposition was allowed by the third respondent with a direction to APEDA to re-file the application by including "uncovered areas".
36. Aggrieved by the same, an appeal was filed before the IPAB and it was allowed on 05.02.2016 with a direction to the third respondent to register Basmati in respect of undisputed area claimed by APEDA and to re-consider the matter afresh for inclusion of the areas specified in the State of Madhya Pradesh. Pursuant to such direction, the third respondent issued a Certificate of Registration for "Basmati" in favour of APEDA on 15.02.2016.
37. Further, as directed by the IPAB in the order dated 05.02.2016, the third respondent has to complete the re-adjudication proceedings within six months, however, it was the petitioner who did not take any steps to conclude the proceedings before the third respondent by repeatedly taking adjournments. In any http://www.judis.nic.in 24/49 wp 5798 of 2016 event, now final order has been passed by the third respondent on 15.03.2018, which is also challenged in WP. Nos. 567 and 7030 of 2018 and they are pending before this Court.
38. The learned Senior Counsel appearing for APEDA would also contend that the bone of contention raised on behalf of the petitioners is that APEDA cannot claim entire States in its registration, but only certain specified areas of the States forming part of the registered GI areas. However, it is the contention of the learned Senior Counsel appearing for APEDA that traditionally, Basmati rice is grown in the region set out in the application submitted by APEDA before the third respondent. It is his contention that in view of the international recognition given for Basmati rice as a product of the Indo-Gangetic Plain, any efforts to arbitrarily vary or modify the Basmati growing areas would compromise and lower India's image in the comity of nations, besides it would dilute and undermine the integrity of Basmati rice as a prized product of India.
39. As regards the similar application submitted by an entity, called Heritage and rejection thereof by the Consultative Group, the learned Senior Counsel appearing for the second respondent would contend that the rejection was warranted on the ground that the Heritage, as a Society, was formed only by farmers, traders, commission agents and millers of Karnal District of Haryana District, however, the Society does not adequately represent the interest of all the producers in the areas other than Karnal District of Haryana. Therefore, the benchmark set for rejection of the application of Heritage cannot be the basis for http://www.judis.nic.in 25/49 wp 5798 of 2016 consideration of application of APEDA. Further, in the case of the application submitted by APEDA, the third respondent has conclusively held that all the requisite criteria have been fulfilled by APEDA as required under Section 11 of the Act. Therefore, the rejection of the application submitted by an entity called Heritage, has nothing to do with the application of APEDA.
40. Next, it is the submission of the learned Senior Counsel appearing for the second respondent that the writ petitioners never challenged the application submitted by APEDA with respect to the area of cultivation mentioned therein. In other words, the issue with regard to area of Basmati cultivation was never an issue before the third respondent as well as in the appeal filed by APEDA before the IPAB. Even in the notice of opposition filed by the petitioner under Section 14 of the GI Act, it was only submitted that APEDA had not included in the application for registration of the areas that produce and cultivate Basmati rice in Madhya Pradesh. Therefore, it was submitted in the notice of Opposition that if the application of APEDA is entertained for GI registration, without including Madhya Pradesh in its area, even though, the State of Madhya Pradesh is in Indo Gangetic Plain and is producing Basmati in several areas, Basmati growers in the State of Madhya Pradesh as well as the consuming public and trade would be put to irreparable loss. Precisely, the prayer sought for in the notice of Opposition is only to include the State of Madhya Pradesh, in the application for registration of Basmati rice as GI and not otherwise. Thus, it could be evident from the notice of Opposition that the petitioner never opposed the area of cultivation indicated by APEDA in the application, rather, the petitioner wanted to include certain areas that http://www.judis.nic.in 26/49 wp 5798 of 2016 produce and cultivate Basmati rice in Madhya Pradesh. However, in the order dated 31.12.2013 of the third respondent, while allowing the application of Opposition, the third respondent directed the second respondent/APEDA to file an amended GI Application No.14 by including the uncovered area, with map of the region clearly demarcating the area of production within 60 days. The order dated 31.12.2013 of the third respondent was subjected to challenge before the IPAB by APEDA and it was allowed by setting aside the order dated 31.12.2013 of the third respondent. It is specifically contended by the learned Senior Counsel appearing for the second respondent/APEDA that as against the order dated 31.12.2013 of the third respondent, the second respondent/APEDA has filed an appeal before the IPAB. However, the writ petitioners never assailed the order dated 31.12.2013 insofar as it relates to confirmation of the APEDA's demarcation of Basmati growing areas in the GI application. Thus, the demarcation of Basmati growing areas specified by APEDA, has attained finality. While so, according to the learned Senior Counsel appearing for the second respondent/APEDA, the present writ petitions themselves are barred by the doctrines of res-judicata and estoppel.
41. Elaborating on the issue of res-judicata and estoppel, the learned Senior Counsel appearing for the second respondent would contend that when once a Judgment in a formal suit or proceedings reached a finality, it binds the parties to the 'lis' in all respects and for the same cause of action, another suit or proceedings is barred. The principle of res-judicata, according to the learned Senior Counsel, is based on the need to give a finality to judicial decisions. When a case has been decided on a question of fact or law and it reaches finality, the same http://www.judis.nic.in 27/49 wp 5798 of 2016 cannot be permitted to be agitated again and again. Otherwise, it will frustrate the litigant in whose favour a decision has been rendered. This principle, according to the learned Senior Counsel, is based on the touch stone of principles of fair play and justice. In order to buttress this submission, the learned Senior Counsel appearing for the second respondent relied on the decision of the Honourable Supreme Court in the case of Satyendra Kumar and others vs. Raj Nath Dubey and others reported in AIR 2016 SC 2231 to drive home the point that no man should be vexed twice for the same cause and this principle is to be applied to put an end to the litigation. When a judicial decision has reached a finality, it must be accepted as correct and binding between the parties and no one can thereafter be permitted to either directly or indirectly sue the other in any other form.
42. The learned Senior Counsel appearing for the second respondent would further contend that when the petitioner did not challenge the order dated 31.12.2013 of the third respondent in relation to demarcation of the area indicated in the application under Section 14 of the GI Act filed by the second respondent, the IPAB felt it necessary to direct the third respondent to issue certificate of registration to APEDA with respect to the areas specified in the application under Section 14 of the Act. In this context, the learned Senior Counsel appearing for the second respondent invited the attention of this Court to paragraph No.50 the order dated 05.02.2016 of the IPAB, which is impugned in these writ petitions, and contended that the IPAB has rendered a specific finding that APEDA has filed GI Application No.145 on 26.11.2008, however, for about seven years, for compliance of various formalities, the application was kept pending. Therefore, the IPAB, taking http://www.judis.nic.in 28/49 wp 5798 of 2016 note of the fact that APEDA is a statutory body and it may not have any personal interest or bias against any individual or group of individual, directed the third respondent to issue certificate of registration to APEDA in respect of the areas indicated in its GI application. Such an order came to be passed by the IPAB after hearing elaborately the parties. While so, the order passed by the IPAB, which is impugned in these writ petitions, need not be interfered with by this Court.
43. The learned Senior Counsel appearing for the second respondent would also further contend that pursuant to the order passed by the IPAB, which is impugned in these writ petitions, the third respondent has registered Basmati as a GI in Class 30 in respect of rice originating from the areas indicated in the application filed by APEDA. When GI certificate has already been issued to APEDA, the present writ petitions are not maintainable. According to the learned Senior Counsel appearing for the second respondent, there is an alternative, efficacious and statutory remedy available to the petitioners, but without exhausting the same, the present writ petitions have been filed under Article 226 of The Constitution of India. The learned Senior Counsel also drew our attention to Section 27 of the Act, which is corresponding to the provisions contained under Section 57 of the Trade Marks Act. In this context, the learned Senior Counsel appearing for the second respondent placed reliance on the Full Bench decision of the Delhi High Court passed on 05.02.2016 in the case of Data Infosys Limited and others Vs. Infosys Technologies Limited reported in 2016 (65) CTC Delhi 209, wherein it was held that in respect of matters relating to invalidity of registration of a trademark, the jurisdiction to decide the merits of the disputes is exclusively with the http://www.judis.nic.in 29/49 wp 5798 of 2016 statutory authorities and the Civil Court jurisdiction is barred. The learned Senior Counsel appearing for the second respondent therefore would contend that the powers to be exercised by the third respondent under the Act has been conferred by the Legislature, while so, the parallel remedy sought for by the petitioners to exercise the powers vested with this Court under Article 226 of the Constitution of India need not be granted. Therefore, the learned Senior Counsel appearing for second respondent prayed for dismissal of these writ petitions as not maintainable and to direct the petitioners to avail the statutory remedy conferred under Section 27 of the Act.
44. Mr. Sanjay Gandhi, learned counsel appearing for the fourth respondent in WP.No.5798 of 2016 - New Darpan Social Welfare Society, Bhopal, PLACED reliance on the counter affidavit AND would contend that the State of Madhya Pradesh has been producing Basmati rice for many decades now, however, the second respondent, at the time of filing application for GI registration before the third respondent, has not considered the long-standing production of Basmati rice in the State. The failure on the part of the second respondent to include the areas of cultivation within the State of Madhya Pradesh, would result in monopolization of certain vested interested farmers and thereby excluding the genuine farmers from the State of Madhya Pradesh. By pointing out Section 17(1) of the Act, it is stated that the Basmati farmers in the State of Madhya Pradesh qualify themselves as genuine producers within the meaning of Section 17(1) of the Act, however, they were omitted to be included in the application filed by APEDA before the third respondent. This has resulted in ruining of the economic condition http://www.judis.nic.in 30/49 wp 5798 of 2016 of farmers who have been surviving on the production of Basmati rice in Madhya Pradesh for many generations. It is also stated that the farmers in these region are poor and uneducated and they did not understand their right associated with the production of Basmati rice. The non-inclusion of Basmati producing areas of Madhya Pradesh, will severely harm the conditions of the Madhya Pradesh farmers. It is also stated that the Basmati rice possess an enormous international demand and export potential. The rice is well-suited to many Asian dishes and is exported to numerous foreign countries all over Asia, Europe and America. According to the fourth respondent, the areas in Madhya Pradesh alone cultivated and exported approximately 40 quintals of Basmati rice during the year 2009 and a large quantity of Basmati rice exported from India is produced in Madhya Pradesh by the local farmers of the State. While so, non-inclusion of the State of Madhya Pradesh had crippled the export opportunities to the farmers in this region. The second respondent, being a statutory body and proprietor of Geographic Indication of Basmati rice under Section 2(n) of the Act, has a responsibility to sufficiently analyse and identify the production areas of the rice before filing the application seeking GI. However, the second respondent, without undertaking any scientific or accurate analysis of the areas where the Basmati rice is grown, has hastily filed the application before the third respondent excluding the areas of cultivation in Madhya Pradesh. In such circumstances, according to the fourth respondent the IPAB failed to consider the aforesaid aspects and the order, which is impugned in these writ petitions, violates the basic objectives of the Act and the Rules to protect the genuine interest of the farmers who are engaged in cultivating Basmati rice. Therefore, the fourth respondent prayed for allowing the writ petitions as prayed for. http://www.judis.nic.in 31/49 wp 5798 of 2016
45. On the contrary, Mr. Ashok Kumar, the learned counsel appearing for the fifth respondent in WP.No.5798 of 2016 would contend that the writ petitions are an abuse of process of law and they are not maintainable. According to the learned counsel, when a GI Certificate has been issued in favour of the second respondent by the third respondent and it was also acted upon, the present writ petitions are not maintainable. If the petitioners are in any manner aggrieved by the issuance of the Certificate, the remedy available to them is to challenge the Certificate under the Act. Further, the opposition filed by the writ petitioner herein under Section 14 of the Act was objectively considered by the IPAB after affording opportunity to the parties, and the IPAB directed the third respondent to consider the matter afresh for inclusion of State of Madhya Pradesh, more particularly the areas indicated by the petitioners herein in their application under Section 14 of the Act. When such being the case, the petitioners ought to have only approached the third respondent/GI Registrar, instead of filing the present writ petition to set aside the order of the IPAB. Pursuant to the said order passed by the IPAB, on 26.11.2008, GI Registration was issued to APEDA by the third respondent. Even during the pendency of the writ petitions, the third respondent heard the parties to the present writ petitions and passed an order dated 15.03.2018 holding that the writ petitioners failed to produce any documentary evidence with respect to the area of cultivation in the State of Madhya Pradesh. It was also held that the documents and evidence filed by the opponents only show the importance and special characteristic of rice cultivated in Madhya Pradesh and not Basmati Cultivation. In other words, it was held by the third respondent that the plea of the petitioners is not supported by any documentary evidence and therefore, disallowed the http://www.judis.nic.in 32/49 wp 5798 of 2016 Oppositions filed by the writ petitioners herein. Challenging the order dated 15.03.2018, the petitioners also filed WP.Nos. 567 and 7030 of 2018 before this Court and they are pending. Therefore, it is submitted that the order, which is impugned in these writ petitions, is in the nature of an interim order with a direction to the third respondent to consider the matter afresh and now the final order has been passed by the third respondent on 15.03.2018. Therefore, the order dated 05.02.2016 passed by the IPAB, which is impugned in these writ petitions, has got merged with the final order passed on 15.02.2016 by the third respondent issuing a GI Certificate in favour of APEDA.
46. The learned counsel appearing for the fifth respondent further submitted that in direct Geographical Indication, the place of origin is explicit and it is always either prefixed or suffixed with the goods. One commodity may have two or more Geographical Indication, for example Madurai Jasmine and Mysore Jasmine or Malabar Coffee or Malabar Pepper. It is contended that the aforesaid aspects have been considered by the Consultative Group, an expert body constituted in accordance with Rule 33 of the Rules who have gone into the intricate specialisation involved in the claim made by APEDA. The Expert body have gone through all the aspects and determined the territory where Basmati rice is grown and cultivated. Such a determination by the expert body does not call for interference by this Court and he prayed for dismissal of the writ petitions.
47. In reply, as regards maintainability of the writ petitions, the learned counsel for the petitioner in WP No. 5798 of 2016 would contend that this Court, in http://www.judis.nic.in 33/49 wp 5798 of 2016 exercise of writ jurisdiction, can interfere with the order passed by the IPAB. In order to buttress this submission, the learned counsel for the petitioner relied on several decisions. He placed reliance on the decision of the Honourable Supreme Court in Ram and Shyam Company vs. State of Haryana and others reported in 1985 (3) Supreme Court Cases 267 to contend that the Rule, which requires the exhaustion of alternative remedies is a rule of convenience and discretion rather than rule of law. Further, an appeal, in all situations, cannot be expected to provide an alternative remedy keeping aside the distinction between jurisdiction and merits. For the same proposition, he has also relied on decisions of the Supreme Court rendered in (i) Dhampur Sugar Mills Limited vs. State of U.P. and others (2007 (8) SCC 338); (ii) A.V. Venkateswaran, Collector of Customs, Bombay vs. Ramachand Sobraj Wadhwani and another (AIR 1961 SC 1506) and
(iii)ABL International Limited and another vs. Export Credit Guarantee Corporation of India Limited and others (2004 (3) SCC 553 and 2005 (10) SCC
495).
48. Above all, it is contended by the learned counsel for the petitioner that the GI registration granted to APEDA has resulted in exclusion of certain areas where Basmati rice is cultivated and had put the petitioner to immense hardship. The IPAB has given undue importance to APEDA as a statutory creation while neglecting the interest of farmers involved in Basmati rice cultivation in the State of Madhya Pradesh. The order passed by the IPAB, which is impugned in these writ petitions, will have a long-term adverse consequences for the evolution of GI jurisprudence in India. Therefore, the learned counsel for the petitioner prays this http://www.judis.nic.in 34/49 wp 5798 of 2016 Court to set aside the order of the Board with a direction to the third respondent to conduct a de-novo enquiry within a time bound manner for adjudication of GI application of APEDA taking into account the objections raised by the Madhya Pradesh based parties in the applications filed by them under Section 12 of the Act.
49. We have given our thoughtful consideration to the submissions made by the counsel on either side and perused the materials placed on record. As we have dealt with the contentions urged on behalf of either side, we refrain ourself from reiterating the factual aspects any further in this order, however, certain facts which are absolutely germane and necessary alone are dealt with hereunder for the purpose of disposal of these writ petitions.
50. APEDA, a statutory body established by the Government of India under the Ministry of Commerce, is governed by the APEDA Act. The object of the APEDA Act is to ensure development and promotion of certain agricultural and processed food products from India, including Basmati rice. It is also an admitted fact that APEDA involved itself in various activities intended to protect the farmers. As a statutory body, APEDA has initiated actions by way of oppositions/ rectifications/civil suits/issuing cease and desist letters/amicable settlements etc., against third party registrations and use of the term "Basmati", the usurpers of goodwill and propriety to gain monopoly. In this direction, APEDA has filed an application dated 27.11.2008 for registration of the name "Basmati" as a Geographical Indication in India to ensure that the rice sold under it are recognised as "Basmati" grown in the geographical areas mentioned therein. In Para No.17 of http://www.judis.nic.in 35/49 wp 5798 of 2016 the application dated 27.11.2008, APEDA has indicated that in India, Basmati rice is being cultivated in the following areas:-
(i) Punjab : Entire State
(ii) Haryana : Entire State
(iii) Himachal Pradesh : Entire State
(iv) Delhi : Entire State
(v) Uttarkhand : Entire State
(vi) Uttar Pradesh : Agra, Aligarh, Badaun, Bagpat, Bareily, Binor,
Bullandhshahr, Etah, Etawah, Farrukhabad,
Firozabad, Gautam Budh Nagar, Ghaziabad,
Hathras, JP Nagar, Kannauj, Mainpuri, Mathura,
Meerut, Moradabad, Muzaffar Nagar, Oraiya,
Pilibhit, Rampur, Sahajahanpur and Saharanpur
Jammu & Kashmir : Jammu & Kathua
51. According to APEDA, as per the provisions of the Seeds Act, 1966 and the recommendations of the Central Sub-Committee on Crops Standards Notification and Release of Varieties for Agricultural Crops constituted by the Central Seed Committee established under Section 3 of the Seeds Act, the rice grown in the aforesaid areas satisfy the qualification and conform to certain pre- determined standards set out for declaring a rice variety as Basmati rice. Reference was also made to the fact that the variety of rice should be either a traditionally known BASMATI or evolved through breeding process. Further, a reference was made to the testing and evaluation done through the National Basmati Trials (NBT) for quality parameters set out by the All India Coordinated Rice Improvement Project, released and notified under the Seeds Act, 1996. It was also stated therein that the varieties should be suitable to be grown in the areas of India in the Indo-gangetic Plains. The primary quality characteristics of Basmati rice was also tabulated in Para No.19 of the Application of APEDA dated 27.11.2008 with http://www.judis.nic.in reference to the standardized protocol set out by the Directorate of Rice 36/49 wp 5798 of 2016 Research, Hyderabad. However, in the application submitted by APEDA, State of Madhya Pradesh has not been included. This according to the writ petitioners, is a serious omission on the part of APEDA in not including the areas where Basmati rice is grown and cultivated in the State of Madhya Pradesh. Therefore, the writ petitioner filed a Notice of Opposition during August 2010 for the application for registration of Geographical Indication submitted by APEDA before the third respondent.
52. In the Notice of Opposition filed by the writ petitioner before the third respondent/GI Registrar, it was contended that Basmati rice grown in the areas of Madhya Pradesh has all the qualities of Basmati Rice with reference to primary quality and other ancillary characteristics. It was also stated by the petitioners that the farmers in Madhya Pradesh have been cultivating the traditional varieties of Basmati rice for several decades now. It was also claimed in the Notice of Opposition that the processing of Basmati in Madhya Pradesh is akin to the one indicated in the application submitted by APEDA in the other States. Reference was also made to the fact that due to increasing demand of the farmers in the State, Madhya Pradesh Seed and Farm Development Corporation (a Government Undertaking) has also been distributing seed of Basmati varieties to the farmers of Madhya Pradesh since late 1990. Therefore, in the Notice of Opposition, it was prayed to include the State of Madhya Pradesh, particularly, Morena, Bhind, Gwalior, Sheopur, Datia, Shivpuri, Guna, Vidisha, Raisen, Sehore, Hoshangabad, Jabalpur, Narshinghpur.
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53. The application for Opposition was taken up by the third respondent. The third respondent, after hearing extensively the submission of both sides concluded that from the data published by the Directorate of Rice Development, Patna, there are some States like Madhya Pradesh, Rajasthan and Bihar, which are engaged in cultivation of Basmati rice and those areas were left uncovered by APEDA in their application seeking registration for Basmati as a GI. Therefore, by order dated 31.12.2013, the third respondent directed APEDA to file an amended GI Application No.145 by including the uncovered areas, with map of the region clearly demarcating the area of production within 60 days. Assailing the order dated 31.12.2013, APEDA has filed the Appeal before the IPAB. The IPAB, by order dated 05.02.2016, allowed the appeal filed by APEDA, which is challenged in the above writ petitions.
54. Earlier, when these writ petitions were taken up for hearing by this Court, by order dated 17.02.2016, this Court directed APEDA not to take any precipitative action in respect of Basmati rice produced in the State of Madhya Pradesh in the existing areas where it is grown. By the same order, this Court has listed out the issues that were required to be adjudicated in these writ petitions. The order dated 17.02.2016 can usefully be extracted hereunder:
"The learned Senior Counsel for the petitioner fairly states that the issue of inclusion of certain areas of Madhya Pradesh as Basmati growing areas would have to be examined by the Assistant Registrar of Geographical Indications, in view of the impugned order of the Intellectual Property Appellate Board and there are already directions to conclude that aspect within a period of six months. The issue which is sought to be raised before us, as per the submissions made, is that certain States have been included in toto, while actually what should have been included http://www.judis.nic.in was certain specified areas of those States where the cultivation 38/49 wp 5798 of 2016 of Basmati rice goes on. It is his contention that such plea is not capable of being raised in the proceedings before the Assistant Registrar of Geographical Indications and can be raised before this Court as a consequence of the impugned order.
2. Per contra, it is pleaded by the learned Senior Counsel for respondent No.2 that the petitioner never assailed the earlier order of the Assistant Registrar of Geographical Indications and has thus lost its right to raise this issue as otherwise they could always raise this issue before the Assistant Registrar of Geographical Indications, subject to the meeting of the terms and conditions required for raising such an objection.
3. The aforesaid is the limited controversy which will have to be examined by this Court as agreed to by both sides.
4. Let counter-affidavits be filed by the respondents restricting to the aforesaid aspects within a period of three weeks.
5. Rejoinder, if any be filed within two weeks thereafter. 6. The learned counsel for parties to keep ready short synopsis running into not more than two pages each.
7. List on 05.04.2016 at the end of the Board. 8. The learned counsel for parties assured that they will not take more than one half day between themselves.
55. Therefore in the light of the above order passed by this Court, the learned counsel for both sides have advanced elaborate arguments and we have heard them and also perused the documents produced in support of their respective case, including their written submissions filed before us.
56. The learned counsel for both the petitioners vehemently contended that the IPAB erroneously allowed the appeal filed by APEDA without objectively considering the oppositions filed by them. Therefore, in order to consider this submission, it is necessary to look into certain provisions of the Act and Rules and they are extracted hereunder:-
"Section 12. Withdrawal of acceptance:- Where, after the acceptance of an application for registration of a geographic indication but before the registration, the Registrar is satisfied http://www.judis.nic.in (a) that the application has been accepted in error; or 39/49 wp 5798 of 2016
(b) that in the circumstances of the case the geographical indication should not be registered or should be registered subject to conditions or limitations or to conditions additional to or different from the conditions or limitations subject to which the application has been accepted, the Registrar may, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if the application had not been accepted.
13......
"Section 14. Opposition to registration:- (1) Any person may, within three months from the date of advertisement or re- advertisement of an application for registration or within such further period, not exceeding one month, in the aggregate as the Registrar, on application made to him in such manner and on payment of such fee as may be prescribed allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration.
(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 which he relies for his application, and if he does not do so, he shall be deemed to have abandoned his applicant.
(3) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition.
(4) Any evidence upon which the opponent and the applicant may rely shall be submitted in such manner and within such time as may be prescribed to the Registrar, and the Registrar shall give an opportunity to them to be heard, if they so desire.
(5) The Registrar shall, after hearing the parties, if so required, and considering the evidence, decide whether and subject to what conditions or limitations, if any, the Registration is to be permitted, and may take into account a ground of objection whether relied upon by the opponent or not.
(6) Where a person giving notice of opposition or an applicant sending counter-statement after receipt of a copy of such notice neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceeding before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned.
(7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a http://www.judis.nic.in counter-statement on such terms as he thinks fit."40/49
wp 5798 of 2016
57. Section 12 of the Act deals with withdrawal of an application for registration of a Geographical Indication. As per Section 12(1) of the Act, when an application for registration of a Geographical Indication has been accepted by the third respondent, whether in whole or subject to certain conditions or limitations, the third respondent shall, cause the application to be advertised in such manner as may be prescribed. Section 12(2) of the Act provides the power to the third respondent to re-notify the application for the defects or error that may be pointed out. In other words, as per sub-section (2) of Section 12, after advertisement of an application for registration of GI, if any error made in the application, has been corrected or any amendment was permitted to be made under Section 15 of the Act, the third respondent, in his discretion, may cause the application to be re- advertised or to notify it in the manner prescribed. In the present case, APEDA has filed an application in the year 2008 for registration of Basmati as GI by including certain areas of cultivation in various States of the Country in which Madhya Pradesh was not included as an area of Basmati cultivation. The notice thereof was made by the third respondent viz., a Formality Compliance Report on 23.12.2009. When the application of APEDA was under process, Statement of Opposition in TOP.No.19 was filed by the petitioner--State of Madhya Pradesh and other Madhya Pradesh based parties in TOP Nos.13 to 17 on 29.09.2010 to include 13 Districts in the State of Madhya Pradesh also as Basmati cultivating areas. The Statement of Opposition was opposed by APEDA by filing a counter affidavit. After hearing the rival submissions and considering the materials placed on record, the third respondent passed an order dated 31.12.2013 holding that APEDA had failed to satisfy the basic and fundamental requirement in indicating a clear, specific and http://www.judis.nic.in 41/49 wp 5798 of 2016 reasoned demarcation of actual Basmati Cultivation areas. This order dated 31.12.2013 is in consonance with Section 12 of the Act, inasmuch as the third respondent found certain fundamental defects in submitting an application for registration of GI. Furthermore, the order dated 31.12.2013 has been passed after considering the Oppositions filed by the petitioner and other Madhya Pradesh based parties as contemplated under Section 14 of the Act. When such an order was passed by the third respondent rejecting the application of APEDA, the petitioner cannot be expected to file an appeal thereof before the Appellate Authority. Therefore, the argument of the learned Senior Counsel appearing for the second respondent/APEDA that the order dated 31.12.2013 has reached finality insofar as it relates to confirmation of the APEDA's demarcation of Basmati Growing areas in the GI application, cannot be countenanced. Had it been so, APEDA need not have filed an appeal before the Board. The order dated 31.12.2013 cannot be construed as the one to grant GI Registration to Basmati rice insofar as it relates to the areas indicated by the APEDA in the application for GI Registration, but it was rejected or merely returned to more specifically indicate clearly and specifically the demarcation of actual Basmati Cultivation areas. Consequently, the issue of res- judicata or estoppel does not survive for our consideration in these writ petitions.
58. The vehement contention of the counsel for the petitioners in these writ petitions is that the IPAB, as an appellate authority, committed grave error and irregularity in considering the appeal preferred by APEDA on several counts. In this context, the learned counsel for the petitioners has taken us to each and every http://www.judis.nic.in 42/49 wp 5798 of 2016 observation of the IPAB to contend that the Board ought to have considered this submission of the petitioner or ought not to have considered such a plea raised by the second respondent/APEDA. He also placed heavy reliance on the application filed under Section 12 of the Act and contended that the IPAB has failed to consider the Opposition in proper perspective. For example, one of the contentions made by the learned counsel for the petitioner in W.P.No.5798 of 2016, which is also reflected in para No.14 (i) of his written submission is that "Senior Counsel Shri. P.S. Raman was not the counsel for APEDA before the Assistant Registrar in 2013 and therefore his submissions with respect to what transpired in the hearing of June 2013, are without any personal knowledge or factual basis. On the contrary, the Written Submissions filed by APEDA in 2013 prove the contentions of the State of MP that APEDA had waived all formalities and had indeed responded to the contentions. Similarly, in para No.16 of the Written Submission, it is stated that "no where in the discussion on Section 12 in APEDA's appeal before the IPAB, APEDA has challenged the maintainability of Section 12 Application or non- compliance of procedure under Rule 37 of the GI Rules. This proves once more that contrary to the submissions made by the Senior counsel for APEDA, Shri.P.S.Raman, on August 8, 2019 before this Honourable Court, no procedural objections were raised on June 13, 2013 by Shri.Jyoti Sagar, APEDA's counsel, on the final date of hearing before the Assistant Registrar. Instead, Shri.Sagar had waived notice and the right to file reply on the ground that he would respond to it orally and address it as part of APEDA's written Submission before the Assistant Registrar." This is one of the tip of the ice bergs and there are several claims made by the learned counsel for the petitioners with respect to the written submissions http://www.judis.nic.in 43/49 wp 5798 of 2016 filed before the Board. While assailing the order of the IPAB, the learned counsel for the petitioners has made similar averments with respect to each paragraph. The argument of the learned counsel for the petitioners, though attractive, but not impressive. We hasten to add that written submissions are entertained by the Court to enable the parties to the 'lis' to more elaborately and extensively make their submissions to substantiate their pleadings. However, such written statement cannot have any evidentiary value to be looked into. In other words, non- consideration of the averments made in the Written Submission, will not make a judicial order invalid. The pleadings raised by a party to the "lis" at the first instance or any additional pleadings permitted to be raised alone, will be taken as the one which has an evidentiary value and not the written submissions. In the present case, much has been argued by the learned counsel for the petitioner in W.P.No.5798 of 2016 as regards non-consideration of the written submissions made before the appellate Board, which we cannot countenance. The portions of the written submissions and the points that are sought to be agitated before this Court in these writ petitions, are all matters which relates to factual submissions raised by the learned counsel before the Assistant Registrar or the IPAB. Whether such arguments were in fact raised, or not raised or the manner in which arguments were advanced, cannot be considered by this Court in these writ petitions, nor are they relevant for our consideration while examining the correctness or validity of the order passed by the IPAB, which is impugned in these writ petitions. All that the writ Court can examine, in exercise of its power under Article 226 of the Constitution of India, is that whether the order under challenge has been passed by considering all the relevant material particulars or they are omitted to be considered and whether http://www.judis.nic.in 44/49 wp 5798 of 2016 there were any irrelevant materials which have been considered while coming to the conclusion. While dealing with a writ petition, this Court cannot conduct a roving enquiry to fish out certain facts or venture into an arena which has to be best left to be decided by the statutory authority. This is more so that in the present case, the dispute is with respect to inclusion or exclusion of certain areas in Madhya Pradesh, where Basmati rice is grown by the farmers. This is a factual dispute which has to be gone into by the third respondent or the IPAB and this Court in exercise of its power under Article 226 of the Constitution of India, cannot venture into it. It is needless to mention that while dealing with a writ petition, this Court can only examine the manner in which the statutory authority had arrived at a decision and not the correctness of such decision.
59. Notwithstanding the above observation, we have also gone through the order passed by the Board, which is impugned in these writ petitions. In para Nos.15 to 18 of the order dated 05.02.2016, the Board has dealt with the Opposition Applications filed by the petitioners. Similarly, the arguments advanced by the petitioners herein before the Board, as also the learned counsel for APEDA, have been briefly summarised by the Board from para Nos.19 to 29. From Para No.30, the Board has summarised the origin of the dispute, the claim made by the APEDA, as also the petitioners herein, the plea with respect to locus-standi raised by the petitioners as against APEDA, etc., While examining the Opposition filed by the petitioners under Section 12 of the Act, the Board, in para Nos.47, 50 and 51 held as follows:-
"47. It is also pertinent to state that the opponents have http://www.judis.nic.in filed an application under Section 12 of the Act with a main prayer 45/49 wp 5798 of 2016 to withdraw the acceptance of the GI Application No.145 and sought for re-constitution of the consultative group. The perusal of the said applications filed by the opponents in TOP 13 to 17 and TOP 19 reflects that they have come forward with a parrot like version similar to that of their version in their oppositions in TOP 13 to 17 and TOP 19 and it is stated by them categorically and uniformly that the primary contention between the parties pertains to the boundaries and extent of the Basmati growing regions. Therefore, it is very clear that their only grievance is the non- inclusion of the State of Madhya Pradesh in the GI Application No.145. As we have already pointed out it is to be stated that GI Application No.145 fulfils the requirements contemplated as per provision under Section 11 of the Act and we would deal with the said grievance in the later portion of the Judgment.
50... It is pertinent to note that GI Application No.145 has been filed by APEDA as early as on 26.11.2008 and even after the lapse of seven years APEDA has been kept waiting for the GI recognition of Basmati rice relating to the areas and region specified in GI Application No.145. We are also constrained to state that the APEDA is a statutory body created by an Act of Parliament and one of the responsibility shouldered by APEDA is to protect Basmati rice which is an iconic heritage of India and we cannot overlook and brush-aside the serious threat of infringement and misappropriation of the name "Basmati" rice produced from our country and there is a paramount need to preserve and protect globally in the national interest. History reveals that APEDA is fighting for such public cause and initiated several actions in our country and as well as in other countries and Rich-tech case is an eye opener for becoming more vigilant in protecting Basmati rice which has obtained world reputation and recognition. We are also hastened to state that APEDA being a public statutory body, it may not have any personal interest or bias against anybody, group or state for denying their genuine right for their inclusion in respect of the Basmati rice grown area in GI application.
51. Considering the above said undisputed facts, we are constrained to arrive at the irresistible and inevitable conclusion that the Registrar of GI Registry shall grant GI TAG for Basmati in respect of the geographic region and areas specified by APEDA in GI Application No.145. In view of the above said reasons, we have no hesitation to hold that APEDA is entitled to get GI TAG for the region and areas specified in the certified maps of Basmati rice grown areas produced in GI Application No.145. Accordingly, the Registrar of GI Registry shall proceed with the registration of GI for Basmati rice in respect of the geographic region and area specified in APEDA in GI Application No.145 and the certificate of registration is to be issued within a period of four weeks from the date of receipt of the order copy of this Bench."
http://www.judis.nic.in 46/49 wp 5798 of 2016
60. Admittedly, even before this Court, the petitioners have no qualm or grievance with respect to the areas of Basmati cultivation indicated by APEDA in their application for registration of Basmati in Application No.145. On the other hand, the grievance of the petitioners appears to be that certain areas in the State of Madhya Pradesh have been excluded in Application No.145. Therefore, when there is no dispute with respect to the areas included by APEDA in Application No.145, the IPAB is justified in directing the third respondent to issue GI Registration with respect to geographic region and area specified in GI Application No.145. Accordingly, GI Registration Certificate was also issued by the third respondent on 15.02.2016 to APEDA in respect of the areas which are covered in their Application No.145. Challenging the grant of GI Registration, the petitioners have also filed WP.Nos.567 and 7030 of 2018 and they are pending before this Court. Therefore, we are of the view that the issue as regards the validity of the issuance of GI Registration, has to be examined by this Court only in WP. Nos. 567 and 7030 of 2018 and not in the present writ petitions. As mentioned above, in the present writ petitions, the challenge is to the validity of the order dated 05.02.2016 passed by the IPAB, which we have extracted above. The IPAB, in our opinion, has rightly directed the third respondent to issue GI Registration Certificate to APEDA in respect of the areas indicated in Application No.145, over which the petitioners have no qualm or grievance. Of course, for a same produce, two GI Certificates of Registration cannot be issued and precisely that is the reason why the petitioners have come up with the present writ petitions. At the same time, when once a certificate for Registration of GI for Basmati Rice was issued and it was also http://www.judis.nic.in 47/49 wp 5798 of 2016 challenged by the petitioner by filing WP. Nos. 567 and 7030 of 2018 and they are pending before this Court, the relief sought for in these writ petitions had only become academic.
61. The learned counsel appearing for the petitioners in both the writ petitions have vehemently contended that still the present writ petitions are maintainable before this Court and this Court can examine the validity of the order dated 05.02.2016 passed by the IPAB de-hors the GI Registration Certificate issued in favour of APEDA. In this context, the learned counsel for the petitioners relied on decision of the Honourable Supreme Court in the case of Shankara Cooperative Housing Society Limited vs. M. Prabhakar and others reported in (2011) 5 Supreme Court Cases 607 to contend that when there are error apparent on the face of the records, a writ petition is always maintainable. For the same proposition, the learned counsel appearing for the petitioners also relied on several decisions which we are not inclined to refer to in this Order. Given the subsequent development that had taken place in this case during the pendency of the present writ petitions, we are not inclined to go into the question as regards maintainability of the present writ petitions. At the same time, we have to observe that the petitioners have an alternative and efficacious remedy available by filing an application to the Registrar of Trade Mark under Section 27 of the Act seeking to cancel or vary the GI Certificate issued to APEDA. It is a statutory remedy, which the petitioners ought to have availed instead of pursuing with the present writ petitions. Therefore, we are of the view that the contentions raised on behalf of the second respondent/APEDA relating to maintainability of these writ petitions are well founded.
http://www.judis.nic.in 48/49 wp 5798 of 2016
62. In the result, both the Writ Petitions fail and the same are accordingly dismissed. No costs.
(R.P.S.J) (C.S.N.J.,)
27.02.2020
Index : Yes
Speaking Order : Yes
rsh
To
1. The Intellectual Property Appellate Board, Chennai Guna Complex, Annexe-1 2nd Floor, No.443, Anna Salai Teynampet, Chennai - 600 018
2. The Assistant Registrar of Geographical Indications Office of the Geographic Indications Registry IP Building, GST Road, Guindy Chennai - 600 032 http://www.judis.nic.in 49/49