Bombay High Court
Central India Ayush Drugs ... vs State Of Maharashtra Through Its ... on 28 September, 2016
Bench: B.P. Dharmadhikari
Judgment wp6360.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
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)
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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.
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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.
--------------------------
CORAM : B.P. DHARMADHIKARI &
A.S. CHANDURKAR, JJ.
CLOSED ON : 14.09.2016
PRONOUNCED ON : 28.09.2016
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.
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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
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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 of Sections 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 ..vs.. 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
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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.
.vrs. 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 .vrs. 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
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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 of L. 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
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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. Section 28 of the Water (Prevention and Control of
Pollution) Act, 1974 provides for an appeal against an order made
by the State Board. The appellate authority is to be prescribed and
constituted by the State Government. As per Sub-section (2) of
Section 28, the appellate authority is to consist of a single person
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or three persons. Section 29 confers revisional jurisdiction of the
State Government. It can be exercised suo motu or on an
application made to it by the aggrieved party. Section 33-B has
been added by amendment. It provides for an appeal to the
National Green Tribunal against the appellate adjudication or
revisional adjudication or directions issued under Section 33-A.
This section has been added w.e.f. 18.10.2010.
9. Section 13 of the Water (Prevention and Control of
Pollution) Cess Act, 1977 prescribes an appeal by any person or
local authority against an order of assessment to such authority as
may be prescribed by the Rules made under the said Act. Section
13-A has been added w.e.f. 18.10.2010, and it allows further
appeal to the National Green Tribunal.
10. The Forest (Conservation) Act, 1980, vide its Section
2-A, provides for an appeal to the National Green Tribunal against
an order, or a decision of the State Government or other authority
made under Section 2 of that Act. This Section 2-A has been
added w.e.f. 18.10.2010.
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11. The Air (Prevention and Control of Pollution) Act,
1981, vide its Section 31, provides for an appeal against an order
of the State Board to the appellate authority, as the State
Government may constitute. Section 31-A enables the Board to
issue certain directions. Section 31-B allows further challenge to
the adjudication by the appellate authority before the National
Green Tribunal. This Section has been added w.e.f. 18.10.2010.
12. The Environment (Protection) Act, 1986, vide its
Section 5-A, provides for an appeal to the National Green Tribunal
against directions issued under Section 5 of the said act. This
Section 5-A has been added w.e.f. 18.10.2010.
13. The Public Liability Insurance Act, 1991, enables
Collectors to award relief under Section 7. Section 13, enables the
Central Government or the person authorized by it to move an
application to the Courts for restraining owner from handling
hazardous substances. Section 12, confers powers on the Central
Government to issue such directions, in writing, as it may deem fit
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for the purposes of the said Act. This enactment does not provide
for any remedy before the National Green Tribunal.
14. The B.D. Act with which we are concerned in the
present matter, vide its Section 50, provides procedure for
settlement of disputes between the State Biodiversity Boards and
the National Biodiversity Authority. An appeal can be filed to the
Central Government if a dispute is between the State Biodiversity
Boards, the Central Government shall refer the same to the
National Biodiversity Authority.
Section 52, enables aggrieved persons to challenge
determination of benefit sharing or order of the National
Biodiversity Authority or a State Biodiversity Board by filing an
appeal to the High Court. However, this provision subsisted, under
Section 52A, on 18.10.2010. Since then, by virtue of Section 52A,
an appeal against such determination or an order is to be filed
before the National Green Tribunal.
15. The provisions of Sections 14, 16, and 18 of the
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N.G.T. Act need to be construed in this background.
16. Section 14 of the N.G.T. Act, empowers the Tribunal to
settle disputes. All civil cases specified in sub-section [1] thereof
are amenable to its jurisdiction and sub-section [2] specifically
provides for all disputes arising from questions referred to in sub-
section [1] are to be heard and settled by it. An application for
adjudication of such disputes cannot be entertained by the
Tribunal, if it is made beyond a period of six months from the date
of cause of action. It has been given power to condone delay of
period not exceeding 60 days. Section 15 points out relief,
compensation and restitution which Tribunal is empowered to
grant under Section 15[3]. Application for grant of any
compensation or relief or restitution of property or environment
under Section 15, cannot be entertained by the Tribunal, if it is not
made within a period of 5 years from the date on which cause
therefor first arose. Again it has been given power to condone
delay for a period not exceeding 60 days. Under Section 16
Appellate jurisdiction of National Green Tribunal has been
specified. It can entertain an appeal filed by a person aggrieved
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against 10 orders as specified therein, which include enactments
mentioned in Schedule-I of the N.G.T. Act. Appeal is required to
be filed by the aggrieved person within a period of 30 days, and
the Tribunal can condone delay of a period not exceeding 60 days.
Under Section 17, if death or injury to any person (other than a
workman) or damage to any property or environment has resulted
from an accident or adverse impact of any activity or operation or
process, under any enactment specified in Schedule-I, the person
responsible for it has to give such relief or pay compensation, as
specified in Section 17[1]. Section 18 deals with the procedure for
filing an application or appeal to the Tribunal.
17. Section 18 of the N.G.T. Act specifies that an
application under Sections 14 and 15 or an appeal under Section
16 thereof has to be made in such a form or has to contain such
particulars and should be accompanied by such document and
such fees, as may be prescribed by Rules framed under the said
Act. Sub-section [2] of Section 18 provides for an application for
grant of relief of compensation or settlement of dispute to be made
by a person stipulated therein. As per sub-section [3]. such
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application or appeal is to be decided expeditiously by the Tribunal
and effort is to be made to adjudicate it finally within 6 months.
Section 19 specifies that the Tribunal is not bound by the
procedure laid down by Civil Procedure Code, but, is guided by the
principles of natural justice. Proceedings before the Tribunal are
deemed to be judicial proceedings within the meaning of Section
193, 219 and 228 for the purpose of Section 196 of Indian Penal
Code. Tribunal is deemed to be a Civil Court for the purpose of
Section 195 and Chapter XXVI of Criminal Procedure Code, 1973.
Section 20 obliges the Tribunal to apply principles of sustainable
development, precautionary principle and polluter pays principle,
while adjudicating the proceedings before it. Section 21 requires it
to take decision by majority. Section 22 provides for an appeal to
Supreme Court.
18. Discussion above therefore, shows that appellate
jurisdiction is conferred upon National Green Tribunal under
various enactments as stipulated in Section 16, read with
Schedule-I of the N.G.T. Act, and against certain other orders as
stipulated therein. But, then it is apparent that the appellate
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jurisdiction is distinct from the jurisdiction under Section 14 and
Section 15 thereof. This is also seen in a judgment delivered by the
Division Bench of this Court reported at 2015 SCC Online Bom
3699 (Anil Hoble .vrs. Kashinath Jairam Shetye and others)
and a judgment delivered by Single Judge of Rajasthan High Court
reported at 2014 SCC Online Raj 4699 (M/s. Manglam
Warehousing Pvt. Ltd. .vrs. Rajasthan State Pollution Control
Board and others).
19. In 1991 Supp (1) SCC 518 (Alpha Chem and another
.vrs. State of U.P. and others), the Hon'ble Apex Court has held
that the challenge to constitutionality of a statute is maintainable
under Article 226 or Article 32 of the Constitution of India and it is
not open in proceedings before authorities constituted under a
statute itself or even in appeal or revision before the High Court
from such proceedings. These observations have been made while
considering the challenge to Section 4-A of the U.P. Sales Tax Act.
20. In judgment reported at (2012) 8 SCC 326 (Bhopal
Gas Peedith Mahila Udyog Sangathan and others .vrs. Union of
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India and others), in paragraph no.14 the provisions of N.G.T. Act
have been looked into by the Hon'ble Apex Court and it is laid
down that environmental issues and matters covered under N.G.T.
Act in Schedule-I should be understood and litigated before the
National Green Tribunal only, and not before any High Court.
The judgment of Hon'ble 7 Judges in case of L. Chandra Kumar
.vrs. Union of India (supra), calls for consideration in this
background.
21. Perusal of Section 14 of N.G.T. Act, reveals that civil
cases covered under Section 14[1] are referred to as disputes in
sub-section [2]. These disputes therefore, must be civil in nature,
must arise out of implementation of enactments specified in
Schedule-I and therein substantial question relating to
environment must be involved. If these three ingredients are
satisfied, bar under section 14[1] gets attracted. Thus all civil
cases are not cognizable by National Green Tribunal, though they
may arise out of implementation of Schedule-I enactments, if
substantial question relating to environment does not arise
therefrom. In section 14[1] words "including enforcement of any
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legal right relating to environment" are inserted after the word
"environment". Thus, issue of enforcement of a legal right relating
to environment or a substantial question relating to environment
must surface and form subject-matter of a civil case arising out of
implementation of Schedule-I enactments. Then only National
Green Tribunal will have jurisdiction under Section 14.
22. Section 2[m] of N.G.T. Act defines substantial question
relating to environment. The definition is wide and inclusive. It
stipulates that if there is direct violation of specific statutory
environmental obligation or then environmental consequences
relating to a specific activity or a point source of pollution, the
same are covered in the sweep of this inclusive definition.
Ingredients under sub- clause [i] of this definition is direct
violation of specific statutory environmental obligation by a person
affecting the community at large other than an individual or group
of individuals or the gravity of damage to environment or property
substantially, or the damage to public health is broadly
measurable. Thus, reading of this definition shows that the cause
giving rise to civil case must have some impact on environment so
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as to make it a question relating to environment. It is the degree
of this impact which may then make it a substantial question.
23. Section 2[c] defines 'Environment'. Again the definition
is deliberately inclusive. It includes water, air and land, and the
inter relationship which exists among and between water, air and
land and human beings, other living creatures, plants, micro-
organism and property. Thus, natural elements mentioned in said
definition and the impact upon it of living creatures or property,
therefore, constitute environment. Thus, inter-relationship between
these elements and other factors stipulated therein together,
jointly and severally constitute environment.
24. When Section 14[c] is read along with and construed
with Section 2[c] and [m], it is clear that civil cases which can be
considered by the National Green Tribunal must affect
environment. If it is not affecting environment, the Tribunal will
not have jurisdiction. In present facts, reliefs sought for do not
directly or indirectly affect environment.
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25. The Division Bench judgment of this Court in case of
Indian Oil Corporation Ltd. .vrs. Nagpur Municipal Corporation
and another (supra), considers the scope of jurisdiction available
to such Tribunal. There question of validity of subordinate
legislation i.e. Octroi Rules framed under the City of Nagpur
Corporation Act, 1948 arose and Nagpur Corporation contended
that it can be looked into by an appellate authority which was
hearing appeals under Section 387 of the Corporation Act against
the octroi demands/penalties. This Court found that the said
Authority could not have considered such issue of validity or vires.
Judgment of Hon'ble Supreme Court in case of Alpha Chem and
another .vrs. State of U.P. and others (supra), considers this aspect
and other judgments of Hon'ble Supreme Court taking similar view
have been followed by the Division Bench in this judgment.
26. The observations of Hon'ble Apex Court in case of
Bhopal Gas Peedith Mahila Udyog Sangathan and others ..vs..
Union of India and others (supra), needs to be read in the
backdrop of the above mentioned statutory provisions of the
N.G.T. Act. The Hon'ble 7 Judges in a judgment in case of L.
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Chandra Kumar ..vs.. Union of India and others, (supra), were
considering the scope of jurisdiction of Administrative Tribunals
functioning under Administrative Tribunals Act,1985. The
Administrative Tribunal functioning at Center or in States under
the Administrative Tribunals Act, 1985 is an independent body not
interested with lis which arises between employer State and its
employees. Its jurisdiction to decide such lis is absolute ie not
limited or eclipsed by any stipulation in said enactment. In the
background of its aims and object, the Hon'ble Apex Court has
evaluated the constitutional scheme and provisions of the
Administrative Tribunals Act, 1985. It has been held in paragraph
no.93 of the said judgment that said Tribunal is competent to hear
matters where vires of statutory provisions are questioned,
however, while discharging these duties, the Tribunal cannot act as
a substitute of the High Court and the Supreme Court.
27. Here, considering the jurisdiction given to the National
Green Tribunal only to decide civil cases, where substantial
question involved is in relation to environment, it is apparent that
the NGT cannot be said to be conferred with the absolute
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jurisdiction to adjudicate all types of disputes or even all civil
disputes. A limited jurisdiction to deal with specific type of civil
disputes is only made available to it. Bare reading of Section 28 of
the N.G.T. Act prescribing the bar of jurisdiction also substantiates
this. Thus, power to pronounce upon the vires of any statutory
provision or of any subordinate legislation can not be read into any
of the provisions which confer either appellate or original
jurisdiction upon National Green Tribunal. The Parliament which
has deliberately employed wide or liberal words while laying down
the compass or the scheme of N.G.T. Act, has not used such words
while phrasing Section 14 of that Act or conferring jurisdiction
upon National Green Tribunal. On the contrary, its intention to
limit the power to decide certain specified nature of disputes is
apparent. We find that 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.
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28. We therefore find that controversy presented to this
Court in writ petition does not qualify as a civil case wherein
substantial question relating to environment is involved. Similarly,
the National Green Tribunal does not posses power to adjudicate
upon the vires or validity of any enactment in Schedule-I or of
subordinate legislation framed under such enactment.
29. We therefore dismiss the preliminary objection and
declare that the petitioners do not have any alternate remedy
before the National Green Tribunal to raise its challenge in this
writ petition.
JUDGE JUDGE
Rgd.
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