*THE HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY + WRIT PETITION Nos.16892 and 20326 of 2010 W.P.No.16892 of 2010 % Dated: 01-07-2011 # Nuziveedu Seeds Pvt., Ltd., Hyderabad. Petitioner VERSUS $ The Protection of Plant Variety & Farmers’ Rights Authority, New Delhi & others. Respondents ! Counsel for the petitioner: Sri S. Niranjan Reddy, Counsel for respondents 1-3: Sri Rajasekhar for Sri Ponnem Ashok Goud Counsel for respondent No.4: Sri C.V. Mohan Reddy for Sri Lakshmi Kumaran <GIST: > HEAD NOTE: ? Cases referred 1. AIR 2007 SC 1812 2. (1994) 4 SCC 711 3. (1985) 3 SCC 217 4. AIR 2002 SC 126 5. (2004) 6 SCC 254 6. AIR 1954 SC 340 7. (2005) 10 SCC 704 8. (1991) 4 SCC 270 9. (2006) 6 SCC 207 10. (1990) 1 SCC 328 11. (2010) 2 SCC 535 12. AIR 1953 SC 210 13. AIR 1961 SC 532 14. (1873) 8 CP 107 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIRST DAY OF JULY, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.16892 and 20326 of 2010 W.P.No.16892 of 2010: Between: Nuziveedu Seeds Pvt., Lted., Hyderabad. … Petitioner And The Protection of Plant Variety & Farmers’ Rights Authority, New Delhi & others. … Respondents Counsel for the petitioners: Sri S. Niranjan Reddy, Counsel for respondents 1-3: Sri Rajasekhar for Sri Ponnem Ashok Goud Counsel for respondent No.4: Sri C.V. Mohan Reddy for Sri Lakshmi Kumaran This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION Nos.16892 and 20326 of 2010 COMMON JUDGMENT:- As these two Writ Petitions filed by the same petitioner, raised issues, which are intricately connected with each other, they are heard and being disposed of by this common judgment. I. Background facts:- Nuziveedu Seeds Private Limited, which filed both these Writ Petitions, is a company incorporated under the provisions of the Companies Act, 1956 and inter alia, engaged in the business of production, marketing and sale of seeds. Maharashtra Hybrid Seeds Company Limited is also a company registered under the said Act with its registered office at Mumbai, engaged in the same business as Nuziveedu Seeds is. For convenience, the Maharashtra Hybrid Seeds Company Limited (respondent Nos.4 and 2 in W.P.Nos.16892/2010 and 20326/2010, respectively) is hereinafter referred to as “the private respondent”. With a view to provide for a separate legislation for protection of plant varieties, the Parliament enacted the Protection of Plant Varieties and Farmers’ Rights Act, 2001 (for short, “the Act”). Feeling dissatisfied with the procedure being followed by respondent No.1 and its Registrar, who is impleaded as respondent No.2 in Writ Petition No.16892 of 2010, hereinafter referred to as “respondent No.2”, in issuing advertisements inviting oppositions for registration of plant varieties by some of the seed breeders/producers, the petitioner filed Writ Petition No.16892 of 2010 for a Mandamus to declare the action of respondent Nos.1 and 2 in not implementing the provisions of the Act and Protection of Plant Varieties and Farmers’ Rights Rules, 2003 (for short, “the Rules”), in not causing proper and detailed publication of advertisement, as stipulated under the Act, in not carrying out ‘DUS’ test prior to inviting objections and in not bringing clarity with regard to essentially derived varieties at their registration prior to registration of new varieties, as illegal, arbitrary, unconstitutional and violative of the provisions of the Act and the Rules. The petitioner sought for a consequential direction to respondent Nos.1 to 3 to strictly insist on the compliance of the various conditions as specified in the Act and the Rules with regard to the ‘DUS’ testing and advertising of full details in the publication. After filing Writ Petition No.16892 of 2010, the petitioner filed Writ Petition No.20326 of 2010 on 16.08.2010 for a Mandamus to declare the action of respondent Nos.1 and 2 in causing the advertisement of the applications of the private respondent in the Plant Varieties Journal of India by not following the procedure specified under the provisions of the Act and in not disclosing the particulars of the parental lines while issuing the advertisement, as illegal, unconstitutional and contrary to the provisions of the Act. The petitioner also sought for a consequential declaration that the advertisement issued by respondent No.1 in the Plant Variety Journal of India, Volumn No.4, Book No.5, dated 03.05.2010 in relation to the varieties applied for by the private respondent, as illegal and set aside the same and consequential direction to respondent No.1 to only cause proper advertisement in accordance with Sections 19, 20 and 21 of the Act and Rules 29 and 30 of the Rules by giving full particulars of the parental lines and after conducting the ‘DUS’ test to verify the characteristics. Along with the Writ Petition, the petitioner filed WPMP.No.25803 of 2010 for stay of all further proceedings in pursuance of the private respondent’s application made in respect of about 8 varieties referred to therein as advertised and notified in the Plant Varieties Journal of India, Volumn No.4, Book No.5, dated 03.05.2010. On 17.08.2010, this Court granted stay as prayed for, for a period of four weeks. The said order was extended on 08.09.2010 until further orders. The petitioner did not implead the private respondent in W.P.No.16892/2010. WPMP.No.28109 of 2010 was filed by the private respondent for its impleadment, which was ordered by this Court on 29.12.2010. II. The preliminary objection:- Separate counter affidavits have been filed on behalf of the official respondents and also the private respondent. Both the counter affidavits dealt with the various averments made by the petitioner on merits, besides the preliminary objection raised by the private respondent to the territorial jurisdiction of this Court to entertain and adjudicate the Writ Petitions. Sri S. Niranjan Reddy, learned counsel for the petitioner and Sri C.V.Mohan Reddy, learned Senior counsel appearing for the private respondent advanced extensive arguments both on the preliminary objection and also on merits. As the preliminary objection pertains to the very jurisdiction of this Court, both the learned counsel agreed that the necessity for this Court to adjudicate upon the various contentions raised on merits on behalf of the petitioner will depend upon the findings rendered on the preliminary issue. If this Court sustains the preliminary objection raised by the private respondent, the need for considering the cases on merits is obviated. Therefore, it is not necessary at this stage to refer to the various contentions advanced by both the learned counsel on merits. They will be referred to and dealt with, if need be after disposal of the preliminary objection. The objection to the territorial jurisdiction of this Court to entertain and adjudicate the cases is based on clauses (1) and (2) of Article 226 of the Constitution of India. The learned Senior counsel for the private respondent submitted that neither respondent Nos.1 and 2 function within the territories in relation to which this Court exercise its jurisdiction nor any cause of action, wholly or in part, arose within the territories in relation to which this Court exercise its jurisdiction. Per contra, the learned counsel for the petitioner argued that as a part of cause of action arose within the State of A.P., this Court can exercise its jurisdiction to entertain the Writ Petitions and grant the reliefs claimed therein. III. Submissions:- Sri C.V. Mohan Reddy, learned Senior counsel, submitted that respondent No.2 functions from New Delhi and it has no branches, the private respondent has its corporate office in Maharastra, applications for registration were made from Maharastra and the advertisement calling for opposition was issued from the office of respondent No.2 at New Delhi, the oppositions will be considered and a decision will be taken thereon by respondent No.2 at the registered office at New Delhi. The learned counsel therefore submitted that neither of the sub- clauses (1) and (2) of Article 226 of the Constitution of India is attracted for the petitioner to invoke the jurisdiction of this Court. In support of his submissions, the learned Senior counsel relied upon the following judgments: Alchemist Limited and another vs. State Bank of Sikkim and others[1], Oil and Natural Gas Commission vs. Utpal Kumar Basu and others[2], State of Rajasthan and others vs. M/s. Swaika Properties and another[3], Union of India and others vs. Adani Exports Ltd., and another[4], Kusum Ingots and Alloys Ltd., vs. Union of India and another[5], Kiran Singh and others vs. Chaman Paswan and others[6] and Shree Subhlaxmi Fabrics (P) Ltd., vs. Chand Mal Baradia and others[7]. Sri S. Niranjan Reddy, learned counsel for the petitioner, while opposing the above submissions argued that the petitioner has seed processing plant at Hyderabad, right to file objections was available to the petitioner from the date of receiving Plant Varieties Journal in Hyderabad and that if the applications of the private respondent are accepted and its proposed plant varieties are registered that would seriously affect the petitioner’s business, which is being carried on within the territorial jurisdiction of this Court. The infringement or threat of infringement of the petitioner’s rights, submits the learned counsel, is likely to take place within the territory of this Court. He further contended that as a Writ Petition even against threatened and violation of a person’s legal or constitutional rights is maintainable under Article 226 of the Constitution of India and there is every threat of violation of the petitioner’s rights in the event of registration of the plant varieties proposed by the private respondent, the cause of action has accrued within the territories of this Court. Alternatively, the learned counsel submitted that having regard to the nature of the relief claimed, which is general in nature and not with reference to any specific action of respondent No.2, this Court has territorial jurisdiction to entertain and adjudicate at least Writ Petition No.16892 of 2010, if not Writ Petition No.20326 of 2010. The learned counsel sought to fortify these submissions by placing reliance on the following judgments: Kusum Ingots (5 supra), Patel Roadways Limited, Bombay vs. Prasad Trading Company[8], Om Prakash Srivastava vs. Union of India and another[9], S.M.D. Kiran Pasha vs. Government of A.P., and others[10] and Godrej Sara Lee Limited vs. Reckitt Benckiser Australia Pty., Limited and another[11]. IV. Consideration:- There is no serious dispute that the facts of these cases do not satisfy the requirements of clause (1) of Article 226, because none of the respondents function within the territorial jurisdiction of this Court. Indeed, the circumstance of the petitioner carrying on its business activities within the State of Andhra Pradesh is not pressed into service, as that is hardly relevant for the purpose of clause (1) of Article 226. The whole emphasis of the learned counsel for the petitioner is on clause (2) of Article 226 based on the purported cause of action. i) The legislative history of Article 226:- Prior to the commencement of the Constitution, the powers of issuing prerogative writs could be exercised in India only by the High Courts of Calcutta, Madras and Bombay and that too within very rigid and defined limits. The writs could be issued only to the extent that the power in that respect was not taken away by the Codes of Civil and Criminal procedure and they could be directed only to persons and authorities within the original civil jurisdiction of these High Courts. The Constitution introduced a fundamental change of law in this respect. While dealing with this change, the Supreme Court in Election Commission, India vs. Saka Venkata Rao[12] held that while Article 225 of the Constitution refers to the existing High Courts’ powers and jurisdictions which they had obviously, Article 226 confers on all the High Courts, new and very wide powers in the matter of issuing writs, which they never possessed before. Article 226 of the Constitution, prior to its amendments, did not contain the concept of cause of action. It empowered every High Court to pass orders or issue writs including the writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari throughout the territories in relation to which it exercises jurisdiction, to any person or authority including, in appropriate cases, any Government within those territories. I n Election Commission (12 supra) the petitioner applied to the High Court of Madras under Article 226 of the Constitution for a writ of Prohibition restraining the Election Commission having its office permanently located at New Delhi from enquiring into the alleged disqualification of the petitioner from membership of the Madras Legislative Assembly. The High Court of Madras issued a writ. While reversing the said judgment in the appeal filed by the aggrieved party, speaking for the Court, Patanjali Sastri, C.J. observed as under: “The makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the States' sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., "for any other purpose" being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King's Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised "throughout the territories in relation to which it exercises jurisdiction", that is to say, the writs issued by the court cannot run beyond the territories subject to its jurisdiction. Secondly, the person or authority to whom the High Court is empowered to issue such writs must be "within those territories", which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.” (Emphasis added) While dealing with cause of action, the Supreme Court held: “As to the cause of action, the Court stated: "The rule that cause of action attracts jurisdiction in suits is based on statutory enactment and cannot apply to writs issuable under Article 226 which makes no reference to any cause of action or where it arises but insists on the presence of the person or authority 'within the territories' in relation to which the High Court exercises jurisdiction". A Bench of seven judges in Khajoor Singh vs. Union of India[13] examined the correctness of the judgment in Election Commission (12 supra), and the majority reaffirmed and approved the view taken by the Supreme Court in the said case. As these judgments has lead to a situation where no Writ Petition against the Union of India would lie except in the High Court of Punjab (as Delhi High Court was not established by that time) the Parliament amended Article 226 under the Constitution (15th Amendment) Act, 1963 by inserting clause (1-A) after clause (1) which reads as under: “(1-A) 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.” The Constitution (42nd amendment) Act, 1976 renumbered clause (1-A) as clause (2). The object of the amendment was stated as under: “Under the existing Article 226 of the Constitution, the only High Court which has jurisdiction with respect to the Central Government is the Punjab High Court. This involves considerable hardship to litigants from distant places. It is, therefore, proposed to amend Article 226. So that when any relief is sought against any Government, authority or person for any action taken, the High Court within whose jurisdiction the cause of action arises may also have jurisdiction to issue appropriate directions, orders or writs.” (Emphasis added) As a result of the abovementioned constitutional amendment brought out in the year 1963, the High Courts are empowered to issue writs to a person or authority even outside the territories, provided the cause of action either wholly or in part arose within the territories of such High Courts. ii. Cause of action:- This phrase is not defined either in the Constitution or in any other statutory enactment including the Code of Civil Procedure. As long ago as 1873, Lord Brett in Cooke vs. Gill[14] lucidly described “cause of action”. He observed: “ ‘Cause of action’ means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.” Every fact pleaded will not constitute cause of action. But it is only the bundle of facts, taken with the law applicable to them gives the plaintiff a right to relief against the defendant, constitutes cause of action. For every action, there has to be a cause of action. If there is no cause of action, the plaint or petition has to be dismissed. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. The facts, which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned. (see: Oil and Natural Gas Commission (2-supra), State of Rajasthan (3-supra), and Alchemist Limited (1-supra). iii. Whether circulation of Plant Varieties Journal and publication of advertisement constitute cause of action:- Let me consider this aspect in the light of the relevant case law. In Oil and Natural Gas Commission (2 supra), the Oil and Natural Gas Commission issued an advertisement in leading newspapers of the country inviting tenders for setting up of a Kerosene Recovery Processing Unit at ONGC’s Hazira complex in Gujarat. As per the said advertisement, the tenders containing offers were to be communicated to the EIL at New Delhi. A company called NICCO, having its registered office in Calcutta, read and became aware of the tender notice printed in the Times of India circulated within the jurisdiction of the Calcutta High Court. The tenders were to be scrutinized by the Tender Committee and the final decision was to be taken by the Steering Committee at New Delhi presided over by the Chairman of the ONGC. NICCO, along with others, submitted their bids in response to the tender notice. All the bids were scrutinized by EIL at New Delhi. NICCO’s bid was rejected on the ground that it did not fulfill the requisite experience criteria stipulated in the tender. The tender committee eventually accepted the recommendation of the EIL and a final decision was taken by the Steering Committee at New Delhi in pursuance of which the contract was awarded to M/s. CIMMCO Limited. NICCO filed a Writ Petition in the Calcutta High Court for an order to restrain the ONGC from awarding the contract to any other party and if awarded, to cancel the same. The objection taken by M/s. CIMMCO with regard to the jurisdiction of the Calcutta High Court on the ground that no cause of action has arisen within its territories, notwithstanding, the Calcutta High Court passed an order directing the ONGC to consider the offer of NICCO along with others in the event the petitioner’s offer is otherwise found to be valid and the lowest. On an appeal filed by the ONGC under Article 136 of the Constitution, the Supreme Court upheld the ONGC’s objection on the territorial jurisdiction of Calcutta High Court and rejected the plea of NICCO that as it has read the advertisement at Calcutta, submitted the offer from Calcutta, made representations from Calcutta and sent fax messages from Calcutta apart from receiving a reply thereto at Calcutta, by holding that they would not constitute facts forming integral part of cause of action. In State of Rajasthan and others (3 supra), which was referred to and relied upon by the Supreme Court in Oil and Natural Gas Commission (2 supra), the Special Officer, Town Planning Department, Jaipur at the instance of the Improvement Trust, Jaipur issued a notice intimating that the State Government proposed to acquire a large part of the lands situated on the outskirts of Jaipur for public purpose, namely; implementation of a development scheme. The said notice was served on the owners of the land at their Calcutta office. After holding enquiry, a final notification was issued for acquisition of the land. The attempt of the land owners to seek exemption under the provisions of Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 went in vain. Thereupon the land owners filed a Writ under Article 226 of the Constitution in the High Court of Calcutta. The ex parte ad interim relief granted by the Calcutta High Court was questioned before the Supreme Court. Setting aside the interim order of the High Court, the Supreme Court held that mere service of notice under Section 52(2) of the Urban Land (Ceiling and Regulation) Act, 1976 on the respondents at their registered office at 18-B, Brabourne Road, Calcutta could not give rise to a cause of action within that territory, unless the service of such notice was an integral part of the cause of action. It was further held that the entire cause of action culminating in the acquisition of the land under Section 52(1) of the said Act arose within the State of Rajasthan i.e., within the territorial jurisdiction of the Rajasthan High Court of the Jaipur Bench. In Alchemist Limited (1 supra), the appellant is a company having its registered and corporate office at Chandigarh. Respondent No.1 is the State Bank of Sikkim and respondent No.2 is the State of Sikkim. Respondent No.2, desirous of disinvesting 49% of its equity capital in the first respondent bank to a strategic partner with transfer of management in the first respondent bank, issued an advertisement in Economic Times and invited offers for strategic partnership. It was stipulated in the advertisement that the offers made by the parties would be subject to scrutiny by the Board of Directors of the first respondent bank with the right reserved by the Board of Directors to accept or reject the offer without assigning any reason. The appellant submitted its formal proposal for the strategic business partnership vide its offer dated 03.02.2004. After short-listing the offers, the Board of Directors in its meeting held negotiations with the appellant. The Chairman and the Managing Director of the first respondent bank visited Chandigarh for further negotiations. On being asked, the appellant deposited a sum of Rs.4.50 crores to show its bona fides with the State Bank of India Chandigarh. Respondent No.1 bank informed the appellant company that its proposal was accepted in principle subject to consideration and approval of the Government of Sikkim. However, the appellant received a communication at Chandigarh on 23.02.2006 by which the first respondent bank informed the appellant company that the Government of Sikkim has not approved the proposal submitted by the appellant and sought to withdraw the communication, dated 20.02.2004. Thereupon the appellant filed a Writ Petition in the High Court of Punjab and Haryana challenging the letter-cum-order dated 23.02.2006. The High Court of Punjab and Haryana dismissed the Writ Petition on the sole ground that it did not have the territorial jurisdiction to entertain the Writ Petition, as no cause of action has arisen within its territorial jurisdiction. Accordingly, without entering into the merits of the