THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY Writ Petition No.8031 of 2010 Date:23rd August, 2010 Between: Nuziveedu Seeds Pvt. Ltd., NSL ICON, 4th Floor, #8-2-684/2/A, Road No.12, Banjara Hills, Hyderabad, rep. by its Dy. General manager Mr.S.Sartaj Mohammed Khan ... Petitioner a n d 1. The Registrar, Protection of Plan Variety & Farmers’ Rights Authority, National Academy of Agricultural Science, (N.A.S.C. Complex), Opp: Village Todapur, DPS Marg, New Delhi & Anr. … Respondents *** THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY Writ Petition No.8031 of 2010 ORDER: This Writ Petition has been taken out by Nuziveedu Seeds Private Limited, a company registered under the Companies Act, 1956, seeking Mandamus directing the Registrar, Protection of Plant Variety and Farmers’ Rights Authority, New Delhi-1st respondent to consider its opposition to the application filed by Maharashtra Hybrid Seeds Co. Ltd., Mumbai-2nd respondent, under Section 14 of the Protection of Plan Varieties and Farmers’ Rights Act, 2001 (for short, ‘the Act’), for registration of C-5196. 2. Background facts are: The Act established the Authority called as ‘Protection of Plant Variety and Farmers’ Rights Authority’ and specified the composition thereof. Maharashtra Hybrid Seeds Company Ltd, Mumbai-2nd respondent filed an application seeking for registration of cotton varieties viz., C-5193 and C-5196 on 02.04.2008 under Section 14 of the Act. The Registrar of Protection of Plant Variety and Farmers’ Rights Authority, New Delhi-1st respondent advertised these two cotton varieties on 01.09.2008 calling for notice of opposition within three months from the date of advertisement. The time for filing opposition was upto 31.12.2008. The petitioner received a copy of application of C-5193 from the 2nd respondent on 27.01.2009 in connection with different matter. The petitioner noticed the variation in the characteristics given in the application and published in the Journal. The petitioner could notice that the characteristics given in respect of C-5193 variety in the application are nothing but its variety NC99. The petitioner also could notice that the characteristics given in respect of C-5196 are also exactly similar to C-5193 variety. The petitioner filed PV-5 requesting for extension of time along with notice of opposition in PV-3 against both varieties viz., C-5193 and C- 5196 of the 2nd respondent. The 1st respondent condoned the delay in filing the oppositions, by order dated 11.06.2009 and admitted notice of oppositions by the petitioner and directed the registry to examine it in accordance with law and take necessary action. The 2nd respondent challenged the order of the first respondent by filing W.P. [C] No.10939 of 2009 in the High Court of Delhi raising various grounds including violation of principles of natural justice. The Delhi High Court set aside the order dated 11.06.2009 passed by the 1st respondent and remanded the matter back to the Registrar, Protection of Plant Varieties and Farmers’ Rights Authority, New Delhi-1st respondent, for fresh adjudication after hearing the parties. The 1st respondent, heard the matter afresh and allowed extension of time in case of C-5193 variety and reused extension of time in case of C- 5196 variety. Hence, this Writ Petition by the petitioner assailing the action of the 1st respondent in not extending time for filing oppositions for the application filed by the 2nd respondent for registration of C-5196 variety. For better understanding of the grievance of the petitioner, I deem it appropriate to refer paras.11 to 16 of the affidavit filed in support of the Writ Petition, which read as hereunder: “11. The 1st Respondent neither properly dealt with nor considered the reason for the inability of the Petitioner to file opposition in respect of variety C.5196 until complete information pertaining to the variety C- 5193 was made available to the Petitioner. Without properly considering the grounds for extension offered by the Petitioner, the 1st respondent, in a summary and perfunctory manner, held that the delay of 44 days in filing of notice of opposition cannot be condoned. 12. It is respectfully submitted that the registration of variety confers a valuable right upon the registered application and forbids any other person in production and marketing of the said variety. 13. Such a right has to be therefore granted with a a great amount of caution and certainty. It would be necessary that the Opposition to the application must be given a full opportunity of being considered before the application under Section 14 is further processed for registration. 14. The authority must therefore act with a certain amount of latitude and liberality while dealing with the application seeking extension of time for filing opposition particularly in cases where cogent and reasonable extension has been asked for by the Opponent giving reasons for failing to file Opposition earlier. 15. It is a trite and well settled proposition that with regard to granting of exclusive right the court or tribunal must lean in favour of equities rather than technicalities. 16. The exercise of jurisdiction by the 1st Respondent is therefore contrary to the scheme, purpose and intent of the Act and defeats the valuable rights of the Petitioner of raising Opposition against the application filed under Section 14 of the PPV & FR Act by the 2nd respondent for registration of the Petitioner’s (Opponent) variety claiming as his own by giving a false and different denomination. The exercise of power is also whimsical and arbitrary violating Article 14 o the Constitution of India. The said orders are also resulting in the constitutional rights conferred on the Petitioner under Article 19(1)(g) and Article 300A of the Constitution of India being negated. The right to file Opposition under the provisions of the Act is granted to all citizens and is not limited to handful breeders. The Opposition can be filed not only on the identity or similarity of the varieties but also on the legal grounds that the variety is not registerable under the provisions of the Act and public policy. By denying the right to file Opposition (in this case the opposition was filed with a delay of 44 days) on mere technical ground will be against the public policy. While dealing with Opposition or even registration of a variety the 1st respondent must take a liberal approach and ensure that the variety for which registration is being sought goes through the test of fire. This approach has been adopted by several Courts including the Hon’ble High Court of Delhi and Chennai in matters related to registration of Trademark where opposition has been filed after much delay and in some cases even after the statutory period of three months and one month of extended period.” 3. Notice before admission came to be ordered on 12.04.2010. 2nd respondent entered appearance on the day when the matter came up for admission and sought time for filing counter-affidavit. An interim order came to be passed on the even date, which reads as hereunder: “Pending adjudication on the issue of maintainability of the writ petition, I am of the prima facie opinion that part of cause of action has arisen within the territory of Andhra Pradesh, where the magazine calling for objections has been circulated, the proceedings pending before respondent No.1, on the application of respondent No.2 for grant of registration, shall stand stayed.” 4. The 2nd respondent filed counter-affidavit and moved WVMP No.2086 of 2010 with a prayer to vacate the interim order dated 12.04.2010 passed in the writ petition. 5. The 2nd respondent raised preliminary objection with regard to maintainability of the writ petition. Paras.5 to 9 of the counter-affidavit need to be noted and they are as follows: “5. Before adverting to the paragraph-wise submissions in the Writ, the respondent humbly submits that the present Writ Petition is not maintainable on the following preliminary grounds:- A. This Hon’ble Court does not have the territorial jurisdiction to hear and adjudicate the present issue; B. The impugned order is ultra vires the powers of the Registrar, Protection of Plant Varieties and Farmers’ Rights Authority. This Hon’ble Court does not have the territorial jurisdiction to hear and adjudicate the present issue. 6. The petitioner (sic. 2nd respondent) submits that this Hon’ble does not have the territorial jurisdiction to hear this Writ. On this preliminary ground itself, the present writ petition is liable to be dismissed. 7. It is a settled principle of law that the territorial jurisdiction of a Court to hear and adjudicate any issue, even on a Writ Petition, is determined by the place where the ‘cause of action’ arises either wholly or in part or where the Respondent resides. 8. In the present matter, the Petitioner, is challenging the order dated 09.03.2010 whereby the Respondent No.1 was pleased to reject Form PV-5 filed by the Petitioner seeking condonation of delay and extension of time for the filing of Notice of Opposition to the Applicant’s application for the registration of novel variety of cotton (hereinafter ‘candidate variety’ or “C 5196”). The Respondent No.2 is a corporation having its registered office in Mumbai and the application was filed from the corporate office. The variety C 5196 was developed in Maharashtra. The application for the registration of the candidate variety was filed in New Delhi. The Respondent No.1, responsible for passing the impugned order is in Delhi. The application for condonation of delay and extension of time was filed by the Petitioner in New Delhi from its New Delhi address. The impugned order was also passed in Delhi, after hearing the parties in New Delhi, pursuant to the order of the Hon’ble Delhi High Court dated 03.11.2009. 9. The Petitioner has not made any submissions in the writ petition to show how the cause of action or part thereof has arisen within the territorial jurisdiction of this Hon’ble Court. It is a well settled principle of law that the jurisdiction of a Court has to be determined on the basis of the submissions of the Petitioner/Plaintiff. In the absence of the same and in view of the fact that neither the cause of action nor part thereof arose within the jurisdiction of this Hon’ble Court nor do either of the Respondents reside within the jurisdiction of this Hon’ble Court, the lis has no connection with the jurisdiction of this Hon’ble Court. Hence, the present writ petition ought to be dismissed in limine.” 6. The Writ Petitioner filed rejoinder to the counter-affidavit filed by the 2nd respondent. It is stated in the rejoinder that the petitioner has its corporate office and its factories (processing plants) at Hyderabad and largely functions within the territorial jurisdiction of this Court. The provisions of the Act have a transitional operation and application and the rights of the petitioner accruing within the territorial jurisdiction of this Court are also subject to the provisions of the said Act. The said Act provides for a centralized registry at Delhi, which has the power of registering the specified varieties under the Act. The procedure for such registration inter alia contemplates the publication of application in journals, which are published and transmitted throughout the territory of India. The objections with regard to any of the varieties which have been applied or registration can be raised by any Objector from any part of India before the authority. A part of cause of action has emanated and arisen within the territorial jurisdiction of this Court and therefore, the writ petition filed in this Court is maintainable. 7. Subsequently, the petitioner filed WPMP No.20235 of 2010 seeking amendment of the writ affidavit by adding paras.17(A) to (D) after para.17 and before para.18 of the writ affidavit. The amendment of the writ affidavit by adding the paras.17(A) to (D) is only to detail as to how this Court has territorial jurisdiction to entertain the writ petition. In a way, it is the contention of the petitioner that its processing units are located within the territorial jurisdiction of this Court and the threat of infringement of the petitioner’s right is acute and immediate within the territorial limits of this Court and therefore, this Court has territorial jurisdiction to deal with the matter under Article 226(2) of the Constitution of India. 8. The 2nd respondent filed counter-affidavit resisting the amendment application. It is stated in the counter-affidavit that mere presence of Branch Office, in the absence of cause of action or part thereof at the location of the branch office, would not be sufficient for finding territorial jurisdiction. The petitioner’s right to file its opposition from any part of the country is irrelevant for the present case. Threat of infringement is also not a relevant consideration for conferring territorial jurisdiction. The proceedings at hand relate to the registration of the respondent’s candidate variety C-5196 and the proposed opposition to the same by the petitioner, the consequences, if any, following subsequent to the registration of the candidate variety would not by any stretch of imagination be even a remote part of cause of action for the present case. It is further stated in the counter-affidavit that there is no averment either in the writ petition, or the rejoinder or the proposed amendment to the effect that the journal has been received by the petitioner within the territories of this Court. 9. WPMP 20235 of 2010 came to be allowed on 17.08.2010. The counter-affidavit filed in opposition of the amendment petition has been treated as additional counter-affidavit in the writ petition. 10. Heard Sri S.Niranjan Reddy, learned counsel appearing for the petitioner and Sri C.V.Mohan Reddy, learned Senior counsel appearing for the 2nd respondent. 11. Learned counsel appearing for the parties submitted their arguments on the issue as to whether this Court has territorial jurisdiction to entertain the writ petition, wherein the order passed by the 1st respondent in refusing to condone the delay in filing objections to C-5196 variety is assailed. 12. Before dwelling deep into the rival contentions of the parties, I feel it not out of place to mention that on earlier occasion when the 1st respondent authority condoned the delay in filing the oppositions to the application filed by the 2nd respondent, the 2nd respondent assailed the action of the 1st respondent by filing W.P.[C] Nos.10938 and 10939 of 2009 in the High Court of Delhi and the said Writ Petitions came to be allowed, remanding the matter back to the 1st respondent for passing orders afresh after giving opportunity to both the parties. On remand, the 1st respondent heard both the parties and condoned delay in filing the opposition by the petitioner herein in respect of C-5193 variety while refusing to condone the delay in filing the opposition in respect of some other variety i.e. C.5196. During the course of arguments, it is brought to my notice that 2nd respondent filed Writ Petition in the Delhi High Court assailing the order passed by the 1st respondent in condoning the delay in filing opposition by the petitioner herein in respect of C.5193 and the said writ petition is stated to be pending. It is also trite to note Clause (2) of Article 226 of the Constitution of India, which reads thus: “226. (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” 13. Although in view of Section 141 of the Code of Civil Procedure, the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20[c] of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20[c] CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further, it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action. As what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. 14. Section 20[c] of the Code of Civil Procedure reads as under: “20. Other suits to be instituted where defendants reside or cause of action arises.- Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction – (a) …. (b) …. (c) The cause of action wholly or in part, arises.” 15. Keeping in view the expressions used in clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction of cause of action accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter. 16. Learned counsel appearing for the petitioner submits that two events are to be taken into consideration for adjudicating the jurisdictional aspect: Firstly, the magazine wherein objections have been called for to the applications filed by the 2nd respondent for registration of its varieties has circulation in Hyderabad; Secondly, the petitioner has its corporate office and its factories (processing units) at Hyderabad and largely functions within the territorial jurisdiction of this Court. In elaborating his arguments, it is contended that in case the 2nd respondent’s variety is allowed to be registered, the business activity of the petitioner is going to be badly affected and as its corporate office and its factories are situated at Hyderabad, this Court has jurisdiction. He strongly urges that a part of cause of action has arisen within the jurisdiction of this Court and therefore, this Court has jurisdiction to entertain the Writ Petition as provided under Clause (2) of Article 226 of the Constitution of India. In support of his submissions, reliance has been placed on the following decisions: 1) Om Prakash Srivastava v. Union of India[1] 2) Ambica Industries v. Commissioner of Central Excise[2] 3) Godrej Sara Lee Ltd. V. Reckitt Benckiser Australia Pty. Ltd.[3] 17. Sri C.V.Mohan Reddy, learned counsel appearing for the 2nd respondent submits that no cause of action has arisen within the jurisdiction of this Court and mere location of corporate office and factories of the 2nd respondent does not confer jurisdiction on this Court to entertain the writ petition, wherein order passed by the 1st respondent has been assailed. He would also contend that in earlier round of litigation, the petitioner has not raised any objection as to the jurisdiction of the Delhi High Court and therefore, it is impermissible for them to invoke the jurisdiction of this Court on the ground that a part of cause of action has arisen within the jurisdiction of this Court. He strenuously contended that no part of cause of action, which is essential for adjudication of the dispute between the parties, arose within the jurisdiction of this Court and in which case, the Writ Petition filed by the petitioner is liable to be dismissed in limini on the ground of lack of jurisdiction. In support of his submissions, reliance has been placed on the following decisions of the Supreme Court as well as this Court. 1) Oil and Natural Gas Commission v. Utpal Kumar Basu[4] 2) Sarabjit Kaur v. Union of India[5] 3) State of Rajasthan v. Swaika Properties[6] 4) Alchemist Limited v. State Bank of Sikkim[7] 5) Subodh Kumar Gupta v. Shrikant Gupta[8] 6) Kusum Ingots & Alloys Ltd. v. Union of India[9] 7) Alind Workers Congress rep. by its Secretary v. United Shippers Ltd.[10] 18. I do not wish to burden the judgment in detailing the proposition of law laid down in each of the cases on which reliance has been placed by the learned counsel appearing for the parties. It is suffice to refer three decisions viz., Kusum Ingots & Alloys Ltd.’s case (6 supra); Ambica Industries’s case (2 supra); and Alind Workers Congress rep. by its Secretary’s case (7 supra). 19. In Kusum Ingots & Alloys Ltd’s case (6 supra), the Supreme Court held that even if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens. It is further held that cause of action implies a right to sue. The material facts, which are imperative for the suitor to allege and prove, constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgement of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action. Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily. The entire bundle of facts pleaded need not constitute a cause of action. As what is necessary to be proved before the petitioner can obtain a decree is the material facts. The expression material facts is also known as integral facts. All necessary facts must form an integral part of the cause of action. The question as to whether the Court has a territorial jurisdiction to entertain a writ petition, must be arrived at on the basis of averments made in the petition, the truth or otherwise thereof being immaterial. 20. In Ambica Industries’s case (2 supra), the Supreme Court held that although in view of Section 141 CPC, the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20[c] CPC, and Article 226(2), being in pari materia, the decisions of the Supreme Court rendered on interpretation of Section 20[c] CPC shall apply to the writ proceedings also. However, the entire bundle of fats pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts. The expression material facts is also known as integral facts. Keeping in view the expression “cause of action” used in Article 226(2) of the Constitution, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered. 21. In Alind Workers Congress rep. by its Secretary’s case (7 supra), a Division Bench of this Court held that a question whether cause of action either in whole or in part has arisen within the territorial jurisdiction of a particular High Court must only be decided on the basis of the pleadings. In determining the objection regarding lack of territorial jurisdiction, the court must take all the facts pleaded in support of the cause of action into consideration, albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. In other words, the question whether a High Court has territorial jurisdiction to entertain a writ petition must be answered on the basis of the averments made in the petition, the truth or otherwise whereof being immaterial. To put it differently, the question of territorial jurisdiction must be decided on the facts pleaded in the writ petition. In the absence of an averment that the cause of action, or a part of it, has arisen within the territorial jurisdiction of the concerned High Court, the writ petition would be dismissed. 22. Basing on the two events, the petitioner asserts that this Court has jurisdiction to entertain the writ petition for issue of writ of certiorari quashing the order dated 09.3.2010 passed by the 1st respondent- authority. The first event is circulation of Plant Variety Journal of India (Vol.2 No.9) dated 1.9.2008 at Hyderabad.