National Green Tribunal; Central India Ayush Drugs Manufacturers Association Vs. State of Maharashtra [Bombay High Court, 28-09-2016]

National Green Tribunal Act, 2010 – Section 28 – the scheme of N.G.T. Act does not permit National Green Tribunal to decide upon the vires of any of the enactments which confer appellate or other jurisdiction upon it and find mention mention in Schedule-I of N.G.T. Act. It also does not empower it to examine validity of any Rules or Regulations made under these enactments.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR

CORAM : B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.

PRONOUNCED ON : 28.09.2016

WRIT PETITION NO. 6360/2015. 1. Central India AYUSH Drugs Manufacturers Association, c/o. Shree Baidyanath Ayurved Pvt Ltd., Great Nag Road, Nagpur- 440 009 through Shri Vijay Kumar Sharma Honorary Secretary. 2. Aroma Herbal & Ayurvedic Industries Pvt. Ltd., through Shri Pranay Tidke, Director, D-19, MIDC Hingna, Nagpur. 3. Vicco Laboratories, Proprietors : Vicco Products (Bombay) Pvt. Ltd., through Shri Amit Pendharkar, Director, Office at Plot No.78, Farmland, Ramdaspeth, Nagpur 440 010. 4. Shree Baidyanath Ayurved Bhavan Pvt. Ltd., Through Dr. R.R. Thakare, Chief Factory Manager, Great Nag Road, Nagpur- 440 009 5. Anil Cottage Industries, through Shri Arun Shankar Waze, Proprietor A/31, MIDC Wardha, Wardha 442 006 (MS) 6. Pathak Ayurvedic Pharmacy through Mr. Sanjay Laxman Pathak Proprietor, Plot No.3, Dwarkapuri Kashinagar, Rameshwari, Nagpur 440 027. 7. Shivayu Ayurved Limited, through Shri Vijay Kumar Sharma Director Marketing, 84/114, Tawakkal Layout, Off. Katol Road By pass, Wadi, Nagpur 440023 (MS) India. ig …. PETITIONERS. VERSUS 1. State of Maharashtra through its Secretary, Department of Revenue and Forest, Mantralaya, Madam Cama Road, Mumbai 440 032. 2. Maharashtra State Biodiversity Board, Kadim Bag, Civil Lines, Nagpur – 440001, Maharashtra through its Member Secretary. 3. Union of India, Ministry of Environment, Forests and Climate Change, 6, Krushak Road, New Delhi 110 011. 4. National Biodiversity Authority having its office at 5th Floor, TICEL Bio Park, CSIR Road, Taramani, Chennai 600 113. through its Secretary. …. RESPONDENTS. Shri S.V. Manohar, Senior Advocate with Shri Akshay Naik, Advocate for the Petitioners. Shri S.M. Bahirwar, Advocate for Respondent Nos.1 & 2. Shri Aditya Sondhi, Senior Advocate with Mrs. Anjali Joshi, Adv. for Respondent Nos.3 & 4

JUDGMENT ON PRELIMINARY OBJECTION

(Per B.P. Dharmadhikari, J)

1. By this writ petition, filed under Article 226 of the Constitution of India, the petitioners seek a declaration that Rule 17 of the Biological Diversity Rules, 2004 does not apply to the Indian entities or body corporates. In the alternate, it is prayed that to the extent the said Rule envisages equitable sharing of benefits by the Indian entities, it should be declared ultra vires to the provisions of the Biological Diversity Act, 2002 and, therefore, unconstitutional.

Further declaration sought is, that the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014 (hereinafter referred to as “the Regulations” for short) apply only to transactions involving non-

Indian entities and the same do not apply to the Indian entities not treading any biological resources with non-Indian entities.

By amendment, a prayer to declare said regulations ultra vires to

Sections 23 and 24 of the Biological Diversity Act, 2002

(hereinafter referred to as “the B.D. Act” for short) is also sought. The other prayers challenge orders and notices served upon the petitioners in the light of this provision.

2. This Court has, on 2.12.2015 while issuing notices in the matter, restrained the respondents from taking any coercive action.

3. We have heard learned Senior counsel Shri S.V. Manohar with Shri Akshay Naik, learned counsel for the petitioners, learned counsel Shri S.M. Bahiware for respondent Nos.1 and 2, and learned Senior counsel Shri Aditya Sondhi with Mrs. Anjali Joshi, learned counsel for respondent Nos.3 and 4.

4. Learned Senior counsel Shri Aditya Sondhi for respondent Nos.3 and 4 has raised a preliminary objection.

According to him, the present grievance in writ petition should be raised before the National Green Tribunal in view of provisions contained in

Section 14 of the National Green Tribunal Act, 2010

(hereinafter referred to as “the N.G.T. Act” for short) He has invited our attention to provisions ofSections 14, 16, 18, 19, and also to Schedule-I thereto of the N.G.T. Act. He draws support from the judgment of the Hon’ble Apex Court in the case of

Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India and others, (2012) 8 SCC 326

particularly paragraph Nos.40 and 41, to urge that challenges of such nature can be looked into by the National Green Tribunal and, hence, this Court should not entertain the petition. He submits that all civil disputes, in which question of implementation of the enactments specified in Schedule-I arises, are exclusively triable by the National Green Tribunal. There is no challenge before this Court to any provision contained in the N.G.T. Act or Rules framed thereunder. The challenge is to subordinate legislation framed under the B.D. Act and, hence, Section 14 of the N.G.T. Act has to apply. He has attempted to draw assistance from order dated 2.12.2013, passed by the Division Bench of the Karnataka High Court, in Writ Petition No.41532 of 2012.

5. Learned Senior counsel Shri S.V. Manohar for the petitioners, in reply, relies upon the judgment of the Division Bench of this Court in the case of

Indian Oil Corporation Ltd. v. Nagpur Municipal Corporation and another, 2012 (1) BCR 526

and the judgment of the Hon’ble Apex Court in the case of

Committee of Management and another v. Vice Chancellor and others, (2009) 2 SCC 630

According to him, when there is challenge to vires of any Act or Rule, such a Tribunal does not possess jurisdiction to look into it. He contends that an appeal to the National Green Tribunal is provided under Section 52A of the B.D. Act and that Section only prescribes a form of appeal. Section 14 of the N.G.T. Act is not a substantive provision which confers any other jurisdiction upon the National Green Tribunal independent of seven enactments mentioned in Schedule-I. If Schedule-I Enactments provide for a channel of grievance redressal, which enables the party to approach the National Green Tribunal, then only various provisions of the N.G.T. Act are attracted. In this situation, as vires of Rules or Guidelines/Regulations could not have been looked into by any authority functioning under the B.D. Act, same also cannot be looked into by the Tribunal constituted under the National Green Tribunal Act, 2010. Learned senior counsel Shri S.V. Manohar, therefore, prays for dismissal of preliminary objection, and prays to entertain the petition on merits.

6. In brief reply, learned Senior counsel Shri Aditya Sondhi for respondent Nos.3 and 4 invites our attention to the judgment of the Seven Judges Bench of the Hon’ble Apex Court in the case ofL. Chandrakumar ..vs. Union of India and others (1997) 3 SCC 261]. He presses paragraph Nos.90 and 93 into service to submit that when such Tribunals are constituted, idea is to reduce frivolous litigation in the High Courts. Hence, the present prayers can also be examined by the National Green Tribunal, as vires or subordinate legislations are to be examined in the light of parent enactment i.e. the B.D.Act. He places emphasis on the fact that the National Green Tribunal is not constituted and functioning under the B.D. Act. He submits that, in this situation, the National Green Tribunal is not prohibited from examining the challenge as it arises under B.D. Act and relates to its implementation.

7. It will be appropriate to briefly examine seven enactments which are included in Schedule-I of the National Green Tribunal Act, 2010. The National Green Tribunal Act, 2010 has received assent of the Hon’ble President on 2.6.2010 and has been brought into force from 18.10.2010.

8.