I posted on the above mentioned topic here. After perusing the concerned Orders passed by the High Court, I have now decided to pen down my views. The Orders are available here and here. Please read [this, this, this and that] for background.
As to make it easy for readers, I shall reproduce some of the main points of Orders of both AR and IPAB from here.
Order of AR (31 December 2013):
- “Popular perception” has no statutory sanction as a basis for GI protection.
- The AR had looked into documents which are 50 years old and the same create a factum of Basmati cultivation in the State of MP and APEDA gave no reasons for excluding other states which have been producing Basmati since 1900s.
- It is vital to demarcate actual producing area even up to the level of village panchayat and not even a micron point space of actual cultivation area should be left uncovered.
- From the data published by the Directorate of Rice Development (DRD), Patna, it is clear that some of the States like MP, Rajasthan, Bihar have been cultivating Basmati rice and the said areas are left uncovered in APEDA’s application.
Accordingly, the AR held that not even a “micron point space” of actual cultivation area should be left uncovered and directed APEDA to file an amended application by including “the uncovered area” within 60 days of the order.
IPAB Order (5 February 2016):
- APEDA is an authority established under law for the purposes of Section 11 of the GI Act and as such has the locus standi to file the GI application.
- Reputation is a standalone factor for recognition of a GI under the GI Act.
- In view of the documents filed by APEDA in support of its application and taking note of the efforts undertaken by APEDA for protecting the cause of Basmati, there is no justification in prolonging and protracting the grant of “GI Tag” for Basmati rice for the traditional Basmati rice grown areas in its application.
- The AR placed reliance only on the MP Opponents’ evidence and failed to test or analyze the same properly and brushed aside and overlooked APEDA’s evidence.
As such, the IPAB held that APEDA “is entitled to get GI Tag for Basmati rice” in respect of the areas stated in its application. Accordingly, it directed the AR to issue a certificate of registration within four weeks of receipt of copy of its Order. As for the inclusion of the areas claimed by the MP Opponents, the IPAB directed the AR to reconsider the matter afresh by affording a reasonable opportunity to both sides within 6 months from the date of receipt of the IPAB’s order.”
Set in this background, I shall give my views on the HC Orders.
a) The Petitioner sought the following: a) Writ, Order or Direction calling for the records of IPAB pertaining to its Order on 5 February 2016 and quashing the same; b) direction to the AR to de novo hear the entire matter; and c) interim stay on the IPAB order.
b) The Court vide its Order held that it would examine only a limited issue. I shall explain by setting out the background. As for the inclusion of the areas claimed by the Petitioner, the IPAB directed the AR to reconsider the inclusion of MP afresh by affording a reasonable opportunity to both the sides within 6 months from the date of receipt of the IPAB’s order.
The Petitioner argued that the choice of areas by APEDA is ipso facto unscientific. Basically, the Petitioner tried to argue that the practice of choosing states in toto rather than specific areas is unscientific.
It is pertinent to note that the Petitioner didn’t assail the AR’s order which directed APEDA to file an amended application by including “the uncovered area” (which includes MP) within 60 days of the Order. More importantly, the Petitioner did not challenge the areas already included in APEDA’s application.
In this regard, the Court decided to take up only a limited issue for consideration i.e whether the submissions made by the Petitioner can be examined in light of the following facts: a) it never assailed the AR’s order and a) it never challenged the areas included in APEDA’s application.
c) The Court did not grant any stay order as such. Instead the Court passed the following orders in the application for interim stay (Miscellaneous petition) : “It is directed that till the decision is taken in the writ petition, no precipitative acton will be taken by the second respondent in respect of the produce from the State of Madhya Pradesh qua the existing areas where such rice is alleged to have been grown.”
d) “Precipitative action” is not legally defined. I consulted several lawyers in this regard. I have arrived at the following conclusions: APEDA shall not interfere with Basmati production in MP pending decision in the Writ Petition. As I see it, in the light of the Order, APEDA doesn’t enjoy the freedom to interfere with the existing arrangement in MP vis-à-vis production of Basmati which it would have enjoyed had the Order not been passed. It is not a stay order as such. Accordingly, AR will hear the GI Application afresh within 6 months from the date of receipt of the IPAB’s order to look at MP’s claim of inclusion.
e) Considering the above, I am of the view that the Madras HC has awarded a limited relief to the Petitioner. It is, however, too early to give a conclusive opinion on the matter.