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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.
Central India AYUSH Drugs Manufacturers Association, c/o. Shree Baidyanath Ayurved Pvt. Ltd. and Ors. - Petitioners
Versus
State of Maharashtra through its Secretary, Department of Revenue and Forest, Mantralaya and Ors. - Respondents
WRIT PETITION NO. 6360/2015
Decided On : 28-09-2016
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. Court finds 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 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.
National Green Tribunal Act, 2010 - Section 2(1)(c)-"Environment".-Impact of natural elements upon living creatures or property constitutes environment.
Section 2(1)(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, microorganism and property. Thus, natural elements mentioned in said definition and he impact upon it of living creatures or property, therefore, constitute environment. Thus, interrelationship between these elements and other factors stipulated therein together, jointly and severally constitute environment.
National Green Tribunal Act, 2010 - Section 2(1)(m)-"Substantial question relating to environment".- Direct violation of specific statutory environmental obligation covered in sweep of definition of "substantial question relating to environment.
Section 2(1)(m) of NGT Act defines "substantial question relating to environment". The definition is wide and inclusive. It stipulates that if there is 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 as to make it a question relating to environment. It is the degree of this impact which may then make it a substantial question.
National Green Tribunal Act, 2010 - Section 14-Jurisdiction of NGT.-If issue relating to environment is involved and form subject-matter of civil case then only Tribunal will have jurisdiction under Section 14 of Act.
Perusal of Section 14 of NGT 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 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.
National Green Tribunal Act, 2010 - Section 14(1)(2), Schedule I-Jurisdiction of Tribunal.-If disputes involved substantial question relating to environment then National Green Tribunal will have jurisdiction.
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 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 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 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
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