3RD VOX ANATOLIS NATIONAL MOOT COURT COMPETITION

TC: 11

3RD VOX ANATOLIS NATIONAL MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE EASTERN ZONE BENCH OF

NATIONAL GREEN TRIBUNAL OF REPUBLIC OF INDRI
--------------------------------------------------------------------------------------------------------------------------------------

Original Application No. 122 of 2021

With

M.A. No. 195 of 2021 & M.A No. 199 of 2021

IN RE: VIOLATION OF THE BIODIVERSITY ACT RULES IN EXTRACTION OF

NATURAL RESOURCE – ADONG

Clubbed With

Original Application No. 126 of 2021

With

M.A No. 201 of 2021

MADNI GROUP OF COMPANIES

v.

THE STATE BIODIVERSITY BOARD.

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MEMORIAL ON BEHALF OF THE PETITIONERS.

MEMORIAL ON BEHALF OF THE PETITIONERS

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TABLE OF CONTENTS

TABLE OF ABBREVIATIONS ……………………………………………………… 3

INDEX OF AUTHORITIES …………………………………………………………...4

STATEMENT OF JURISDICTION…………………………………………………...5

STATEMENT OF FACTS…………………………………………………………….6-7

STATEMENT OF ISSUES…………………………………………………………….8

SUMMARY OF ARGUMENTS…………………………………………………….9-10

ARGUMENTS ADVANCED……………………………………………………….11-23

a) The Hon’ble NGT have appropriate jurisdiction to suo - motu initiate proceedings
against any alleged illegality/ violations.
b) The Principal Bench of NGT should be placed at a superior position to direct one of the
other Benches of the NGT to initiate suo-motu proceedings.
c) The State Government have the power to grant exclusive licence to an individual/entity
to extract biological resources from specific areas.
d) An individual/entity is entitled to claim exceptions from not sharing the access and
benefits with the local communities and the State.
e) The applicable laws envisage that an individual/entity compulsorily requires prior
permission under the Act and Rules to extract biological resources.
f) The scheme of Access and Benefit sharing forms an integral part of the mechanism
under the law and under no circumstances can an individual/entity, looking to
commercially extract the biological resource, claim exemptions from sharing access
and benefit.

PRAYER ………………………………………………………………………………….24

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LIST OF ABBREVIATIONS.

Serial No. ABBREVIATIONS FULL FORMS

1. AIR ALL INDIA REPORTER

2. & AND

3. Co. COMPANY

4. FEBS FAIR AND EQUITABLE BENEFIT

SHARING
5. Hon’ble HONOURABLE

6. NBA NATIONAL BIODIVERSITY

AUTHORITY
7. NGT NATIONAL GREEN TRIBUNAL

8. Ors. OTHERS.

9. PIL PUBLIC INTEREST LITIGATION

10. SBB STATE BIODIVERSITY BOARD

11. SC SUPREME COURT

12. SCC SUPREME COURT CASES

13 Sec. SECTION

14. u/s UNDER SECTION

15. v. VERSUS

16. WP WRIT PETITION

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INDEX OF AUTHORITIES

TABLE OF CASES

1. Divya Pharmacy v. Union of India & ors, 2018, Utt. High Court
2. Municipal Corporation of Greater Mumbai v. Ankita Sinha & ors, SC Civil Appeal No.
12122-12123 of 2018

STATUTES REFERRED

1. The National Green Tribunal Act, 2010

2. The National Green Tribunal (Practice and Procedure) Rules,

2011.

3. The Biological Diversity Act,2002

4. The Assam State Biodiversity Rules, 2010

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STATEMENT OF JURISDICTION

The Hon’ble Bench of the NGT has the jurisdiction to hear the case under Section 14 of the
NGT Act of 2010.

Sec.14 of NGT Act 2010 reads as under:

(1) The Tribunal shall have the jurisdiction over all civil cases where a substantial question
relating to environment (including enforcement of any legal right relating to environment), is
involved and such question arises out of the implementation of the enactments specified in
Schedule I.

(2) The Tribunal shall hear the disputes arising from the questions referred to in sub-section
(1) and settle such disputes and pass order thereon.

(3) No application for adjudication of dispute under this section shall be entertained by the
Tribunal unless it is made within a period of six months from the date on which the cause of
action for such dispute first arose: Provided that the Tribunal may, if it is satisfied that the
applicant was prevented by sufficient cause from filing the application within the said period,
allow it to be filed within a further period not exceeding sixty days.

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STATEMENT OF FACTS

1. There is no scientifically proven treatment protocol for treating the COVID-19 infection.
The traditional medicines, especially the nutraceuticals proved to benefit the immune
system.
2. Traditional medicines are looked after and regulated the nodal ministry of AYUSH. One
nutraceutical is of prime importance, a mixture called ABX. Its effectiveness depends on
ZYM, a plant component present in the mixture. The Adong variety of ABX contains the
highest concentration of ZYM, roughly 65-75%.
3. Due to rampage of Covid-19, demand for nutraceuticals increased. Due to the benefits of
ABX being highlighted in news articles and electronic media, the demand of Adong
skyrocketed.
4. Mr. Natwar, Managing Director of Madni Group of Co., seeing the potential, bought off
stakes in 3 local companies producing Adong capsules. Hereafter, the Madni Group
invested heavily in the region.
5. Madni Group got the lease of certain areas of govt lands with high yield of Adong. This
hereafter blocked the access of local communities to those lands. Soon, business
commercial and the total trade value was estimated to be above Rs. 100 crores per month.
6. Upon seeking clarification by Mr. R.P. Das, a local Environmentalist and Social Activists,
the State Forest Department and Biodiversity board furnished the following details:
• The agreement under which Madni Group was to commercially extract
Adong in a sustainable manner was not being honored.
• Furthermore, under the agreement, the Madni group executed an
undertaking that within 1 year, the group shall fulfill all the obligations
under the Biodiversity Act, 2010 and regularize their operations in terms of
applicable laws.
7. Furthermore, in the response, it was also stated that the period of 1 year to fulfill all
obligations had lapsed (operations started in May 2020 and date of filing of application was
April 2021). Also, it was furnished that the State Forest department had issued multiple
notices to Madni Group to fulfill their undertaking.

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Also, the State Forest department issued or warnings to Madni Group to withdraw the
provisional permission issued due to a medical emergency on the grounds of non-compliance.
8. The response from the Madni group implied that they are of the view that:
The Act and Rules are not applicable to their operations.
The undertaking given by them is a result of misinterpretation of the provisions and the Madni
Group hereby expressed their intention to take corrective measures and actions.
Lastly, the response from the State Forest dept. also stated that neither the State Government
nor the local tribal communities and their villages were being given any benefit or share of the
profit that the Madni group was carving.
A letter concerning the commercial exploitation and rampant violations of applicable laws, was
addressed to the Chief Minister of the State and the Minister of forests. Accordingly, a
committee was formed by the Minister of forests under the guidance of the Chief Minister. The
committee after examining the situation and documents concluded that Madni group was trying
to evade applicable laws to gain profit and suggested the State to impose restrictions on the
concerned activities and impose penalties.
Accordingly, State Biodiversity Board issued final warning cum demand letter to Madni group
with following demands:
Execute the undertaking and regularize activities in terms of provisions of the Act within 30
days.
i. Furnish the accounts to State Biodiversity Board in respect to trade in Adong.
ii. Deposit an amount equal to 40% of the total trade carried on for the period May
2020 to July 2021 in respect to Adong.
iii. The deposit amount will go to local tribal communities who have been denied
access to areas where Adong is naturally found.
2. An order was issued on 11 August 2021 with the following instructions:
i. Actions and activities of Madni group to be that with immediate effect.
ii. Seat and lock the Madni facilities of Madni by District Administration.
iii. Already extracted Adong is to be distributed to the local communities to prevent
wastage.

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STATEMENT OF ISSUES

a) Whether the Hon’ble NGT has appropriate jurisdiction to suo - motu initiate
proceedings against any alleged illegality/ violations?

b) Whether the Principal Bench of NGT is placed at a superior position to direct one
of the other Benches of the NGT to initiate suo-motu proceedings?

c) Whether under the scheme of the Act and the Rules, the State Government has
the power to grant exclusive licence to an individual/entity to extract biological
resources from specific areas?

d) Whether under the provisions of the applicable laws, an individual/entity is

entitled to claim exceptions from not sharing the access and benefits with the local
communities and the State?

e) Whether the applicable laws envisage that an individual/entity compulsorily

requires prior permission under the Act and Rules to extract biological resources?

f) Whether the scheme of Access and Benefit sharing forms an integral part of the
mechanism under the law and under no circumstances can an individual/entity,
looking to commercially extract the biological resource, claim exemptions from
sharing access and benefit?

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SUMMARY OF ARGUMENTS.

a) The Hon’ble NGT have appropriate jurisdiction to suo - motu initiate proceedings
against any alleged illegality/ violations.

It is humbly submitted before the Hon’ble Bench of NGT that the NATIONAL GREEN
TRIBUNAL has the power to take suo motu cognizance to initiate proceedings against any
illegality/ violations even though it has not been expressly provided under the NGT ACT, 2010.
Moreover, the NGT may also perform other functions necessary to carry out the provisions of
the BIODIVERSITY ACT, 2002.

b) The Principal Bench of NGT should be placed at a superior position to direct one of
the other Benches of the NGT to initiate suo-motu proceedings.

It is humbly submitted to the Hon’ble bench of NGT that though the Central bench of NGT is
refereed as Principal bench but the other three benches will have the same set of powers as that
of the former bench to initiate suo-motu proceedings since the powers and functions of all the
benches of NGT are given as a whole under Sec 14 of the NGT ACT,2010

c) The State Government have the power to grant exclusive licence to an

individual/entity to extract biological resources from specific areas.

It is humbly submitted to the Hon’ble bench that the State Govt. u/sec 23(b) of the
BIODIVERSITY ACT,2002 shall grant approval or otherwise requests (exclusive licence) for
commercial utilization or bio-survey and bio-utilisation of any biological resources by an
individual/entity to extract biological resources from specific areas.

d) An individual/entity is entitled to claim exceptions from not sharing the access and
benefits with the local communities and the State.

It is humbly submitted before the Hon’ble bench of NGT that an individual/ entity is entitled
to claim exceptions u/sec 14 of the BIOLOGICAL DIVERSITY ACT,2002. Sec 14 of the said
Act specifies the list of entities who can claim such exceptions and the respondent does not fall
under that category.

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e) An individual/entity compulsorily requires prior permission under the Act and Rules
to extract biological resources.

It is humbly submitted to the Hon’ble bench that prior permission is required u/sec 3 of the Act
from NBA to obtain any biological resource occurring in India. Furthermore, the State Govt.
u/sec 23(b) of the BIODIVERSITY ACT,2002 shall grant approval or otherwise requests
(including an exclusive licence) for commercial utilization or bio-survey and bio-utilisation of
any biological resources by an individual/entity to extract biological resources from specific
areas.

f) The scheme of Access and Benefit sharing forms an integral part of the mechanism
under the law and under no circumstances can an individual/entity, looking to
commercially extract the biological resource, claim exemptions from sharing access
and benefit.
It is humbly submitted to the Hon’ble bench that the importance of FEBS has been
emphasized by preamble of the Act of 2002, (which refers to the Rio de Janeiro Convention
of 1992), where "Fair and Equitable Benefit Sharing" is one of the three important posts of
the entire movement of conservation of biodiversity, and one of the main purposes of the
Act. Particular emphasis should be given to Nagoya Protocol of 2010 where the entire
emphasis is on “fair and equitable benefit sharing” and the importance of indigenous
community in this regard.

Moreover, at the cost of Repetition, it is emphasised that an individual/ entity is not entitled to
claim exceptions under the BIOLOGICAL DIVERSITY ACT,2002. Also, Section 21 contains
the provisions for the NBA to grant approvals in such a way that it secures equitable sharing
of benefit arising out of the accessed biological Resource.

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ARGUMENTS ADVANCED

a. Whether the Hon’ble NGT has the appropriate jurisdiction to suo motu initiate
proceedings against any alleged illegality/violations?

1. The National Green Tribunal, established in 2010, as per the National Green Tribunal Act,
is a specialized judicial body equipped with expertise solely for the purpose of adjudicating
environmental cases in the country.

2. Recognizing that most environment cases involve multi-disciplinary issues which are better
addressed in a specialized forum, the Tribunal was setup as per recommendations of the
Supreme Court, Law Commission and India’s international law obligations to develop
national laws on environment and implement them effectively.

3. The Tribunal is tasked with providing effective and expeditious remedy in cases relating to
environmental protection, conservation of forests and other natural resources and
enforcement of any legal right relating to environment. The Tribunal’s orders are binding
and it has power to grant relief in the form of compensation and damages to affected
persons.

4. Any person seeking relief and compensation for environmental damage involving subjects
in the legislations mentioned in Schedule I of the National Green Tribunal Act, 2010 may
approach the Tribunal.
4.1.The statutes in Schedule I are:
4.1.1. The Water (Prevention and Control of Pollution) Act, 1974;
4.1.2. The Water (Prevention and Control of Pollution) Cess Act, 1977;
4.1.3. The Forest (Conservation) Act, 1980;
4.1.4. The Air (Prevention and Control of Pollution) Act, 1981;
4.1.5. The Environment (Protection) Act, 1986;
4.1.6. The Public Liability Insurance Act, 1991;
4.1.7. The Biological Diversity Act, 2002.
5. In a recent decision of Municipal Corporation of Greater Mumbai v Ankita Sinha &
Others, a three-judge bench of Supreme Court of India held that the National Green
Tribunal (NGT) has power to take suo motu cognizance of environmental issues, even
though the National Green Tribunal Act, 2010 (NGT Act) does not expressly provide the
NGT with power to take suo motu cognizance.
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The judgment was rendered in a batch of connected matters with the same issue – whether the
NGT has the power to exercise suo motu jurisdiction in discharge of its functions under the
NGT Act.

6. The Court ruled that the NGT, which safeguards the right to life under Article 21 of the
Constitution of India, "even in the absence of an application, can self-ignite action either
towards amelioration or towards prevention of harm." At the same time, it clarified that
NGT's suo motu jurisdiction would be subject to the principles of natural justice and fair
play – before passing an adverse order, an opportunity of hearing should be provided to a
party that is likely to be affected by NGT's order.

7. In this light, the Court analyzed scheme of the NGT Act and the attendant rules to conclude
that the legislature vested suo motu jurisdiction of wide amplitude akin to writ courts in
NGT, but limited it to the sphere of environmental issues under Article 21. The Court
explained sui generis role of NGT in delivery of environmental justice and its distinct status
as compared to other statutory tribunals

8. It noted that NGT's powers are of wider amplitude than mere adjudication of disputes by
two rival parties. The use of term "to secure ends of justice" under Rule 24 of National
Green Tribunal (Practice & Procedure) Rules, 2011 (Rules) indicates that NGT has been
given wide discretionary power to secure justice, which is followed by the duty to exercise
this power for achieving the objective. The power also encompasses inter alia, advancing
causes of environmental rights, granting compensation to victims of calamities, creating
schemes for giving effect to environmental principles and hauling up authorities for
inaction, when need be. Under the NGT Act, conferment of wide powers on locus
standi (similar to that of writ courts), and the power to mould relief even if not specifically
prayed for by a party indicate that powers of wider amplitude are vested in NGT.

9. It was further observed that the NGT is armed with "self-activating capacity" under Section
14(1) of the NGT Act which suggests that an application is not necessary to trigger NGT's
jurisdiction in action. In situations where the three prerequisites of Section 14(1) are
satisfied, viz., no civil cases, involvement of substantial question of environment, and
implementation of the enactments in Schedule I, the jurisdiction and power of NGT gets
activated.

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10. In addition to above, use of term "decision" in addition to "award" or "order" under Section
20 of the NGT Act indicates the wide amplitude of NGT's jurisdiction while applying the
"precautionary principle".

11. Lastly, the Court also delved into the relevance and importance of environmental justice
and equity in India. Even when it is not feasible for individuals to initiate action before
NGT due to lack of means to access justice, their rights may not be curtailed. NGT's
affirmative role, beyond mere adjudication at the instance of an applicant, is thus held to
be certainly required for serving the ends of environmental justice.

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b) Whether the Principal Bench of NGT is placed at a superior position to direct one of
the other Benches of the NGT to initiate suo-motu proceedings?
1. The National Green Tribunal was established under Section 3 of the National Green
Tribunal Act 2010 for effective and expeditious disposal of cases relating to environmental
protect ion and conservation of forests and other natural resources including enforcement
of any of the legal rights relating to the environment and giving relief and compensation
and imposing fines for damages to person and property for matters connected or incidental
thereto.
2. As per section 4(1) of the Act1 the Tribunal shall consist of:-

Full time chairperson, Ten to twenty full time Judicial Members, Ten to twenty full time
Expert Members.

Zone Place of Sitting Territorial Jurisdiction

1. Northern Delhi Uttar Pradesh, Uttarakhand, Punjab, Haryana,
(Principal Bench) Himachal Pradesh, Jammu and Kashmir, Goa,
National Capital Territory of Delhi and Union
Territory of Chandigarh, Daman and Diu and
Dadra and Nagar Haveli
2. Western Pune Maharashtra, Gujarat.

3. Central Bhopal Madhya Pradesh, Rajasthan and Chhattisgarh.

4. Southern Chennai Kerala, Tamil Nadu, Andhra Pradesh,

Karnataka, Union Territories of Puducherry and
Lakshadweep.
5. Eastern Kolkata West Bengal, Odisha, Bihar, Jharkhand,
Assam, Arunachal Pradesh, Manipur,
Meghalaya, Mizoram, Nagaland, Sikkim and
Union territory of Andaman and Nicobar
Islands.
Note:- As per the order dated 11.10.2017 of Hon’ble High Court of Bombay at
Goa Bench in PIL Writ Petition No. 22 of 2017, Goa will be under the jurisdiction
of Western Zone Bench at Pune.

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3. Vide notification number F. No. 17(4)2010-PL/NGT (Vol. IV) dated 17th August 2020, The
Central Government has Specified the following ordinary places of sitting of the National
Green Tribunal which shall exercise jurisdiction in the area indicated against each.
4. That the place of sitting of the Chairperson of the Hon’ble National Green Tribunal is the
principal seat of Delhi, which itself is also called the principal seat as mentioned in the
notification issued by the Central Government 1.

5. Moreover, it is humbly submitted that, as per section 3 of the National Green Tribunal
(Practice and Procedure) Rules 2011, it is stated that –

i. The Chairperson may constitute a bench of two or more members consisting of at

least one Judicial Member and the one Expert member.
ii. The Chairperson shall have the power to decide the distribution of business of the
tribunal amongst other members of the tribunal sitting at different places by order
and specify the matters which may be dealt with by each such sitting in accordance
with the provisions of Clause (d) of subsection 4 of the Act.
iii. If any question arises as to whether any matter falls within the purview of the
business allocated to a place of sitting, the decision of the chairperson shall be final.

Explanation: The expression “matter” includes application for interim relief.

Thus, from the abovementioned Facts and provisions, it is humbly submitted that the chairman
has the power to direct the members to take up by order and the decision of the chairman to
allocate businesses of the sittings are final. And, since the chairman sits at the principal bench
of the National Green Tribunal, it can be rightly said that the Principal bench is placed at a
superior position to direct one of the other benches of the NGT to initiate suo-moto
proceedings.

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c) Whether under the Scheme of the Act and Rules, the state government has the power
to grant exclusive license to an individual /entity to extract biological resources from the
specific areas.

1. It is humbly submitted by the petitioners that the State Biodiversity Boards have been
vested with their powers to grant exclusive license to an individual / entity to extract
biological resources from the specific areas under section 23(b) of The Biological Diversity
Act 2002.
2. Sec 23 of The Biodiversity Act 2002 states the functions of the state Biodiversity Board
The functions of the SBB shall be to-
(a) advise the State Government, subject to any guidelines issued by the Central
Government, on matters relating to the conservation of biodiversity, sustainable use of
its components and equitable sharing of the benefits arising out of the utilization of
biological resources; Functions of State Biodiversity Board The Biological Diversity
Act & Rules 19
(b) Regulate by granting of approvals or otherwise requests for commercial utilization
or bio-survey and bio-utilization of any biological resource by Indians.
(c) Perform such other functions as may be necessary to carry out the provisions of this
Act or as may be prescribed by the State Government.

3. Sec 23(b), as mentioned before, specifies the authority of the state government to issue
approvals and other requests for commercial utilization or bio –survey and bio-utilization
of any biological resources by Indians. Granting of an exclusive license shall come under
the approval and other request part of the act.
4. In furtherance, the Assam State Biodiversity Rules is also in consonance with the Section
23 (b) regarding the authority of the State to grant approval or other request regarding the
commercial utilization, bio survey or bio utilization of natural resources by Indians.
5. In adherence to the above mentioned arguments, Section 14(iv) of the Assam State
Biodiversity Rules state that ;

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Without prejudice to the provisions of the Act in general, the Board may perform the following
particular functions, viz regulate by granting approvals or otherwise requests for commercial
utilization or bio-survey and bio-utilization of any biological resource by Indian Nationals.

Thus the petitioner humbly submits that the claim of the State Government to have the authority
to grant approval and other request, which may include granting of licences, to be prima facie
valid and regarding the matter of VIOLATION OF THE BIODIVERSITY ACT IN
EXTRACTION – ADONG, the state government was well within its rights to issue exclusive
license to Madni Group of Companies for extraction of Adong.

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d) Whether under the provisions of the applicable laws, an individual \ entity is entitled
to claim exceptions from not sharing the access and benefits with the local communities
and the State?

The petitioners humbly submit that the Fair and Equitable Benefit Sharing is one of the three
major objectives sought to be achieved by the Act in accordance with the international treaties
and conventions to which India is a signatory. It is submitted that with regard to FEBS, there
is no distinction between a "foreign entity" and an "Indian entity", otherwise the very basis of
the international treaties and conventions will be defeated.

It is alleged that the regulation and control of the Indian entities is given to SBB under the Act
and SBB has the authority to impose FEBS as one of its regulatory functions under Section 23
of the Act.

Also it has been specified in on Section 32 of the Act that which provides for constitution of
State Biodiversity Fund ,where ,inter alia ,all sums received by the State Biodiversity Board or
such sources to be kept ,hence a holistic reading of entire provisions of the Act ,would show
that FEBS has got an important role to play ,

In Divya Pharmacy vs Union of India and others the importance of FEBS has been emphasized
by the Learned Council for SBB, relying upon the preamble of the Act of 2002 (which refers
to the Rio de Janeiro Convention of 1992), where “Fair and Equitable Benefit Sharing” is one
of the important parts of the entire movement of the conservation of biodiversity and one of
the main purposes of the statute.

The concept of FEBS, as we have seen, is focused on benefits for the “local and indigenous
communities”, and the Nagoya Protocol makes no distinction between foreign entity and an
Indian entity, as regards their obligation towards local and indigenous communities in this
regard.

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e) Whether the applicable laws envisage that an individual \ entity compulsorily requires
prior permission under the Act and Rules to extract biological resource?

1. The functions of SBB are defined under Section 23 of the Act of 2002, which read as
under:-

(a) advise the State Government, subject to any guidelines issued by the Central Government,
on matters relating to the conservation of biodiversity, sustainable use of its components and
equitable sharing of the benefits arising out of the utilization of biological resources;

(b) regulate by granting of approvals or otherwise requests for commercial

utilization or bio-survey and bio-utilization of any biological resource by Indians;

(c) perform such other functions as may be necessary to carry out the provisions
of this Act or as may be prescribed by the State Government."

2. 19. The powers of SBB are given under Section 24 of the Act of 2002, which read as under:-

(1) Any citizen of India or a body corporate, Organisation or association registered in India
intending to undertake any activity referred to in section 7 shall give prior intimation in such
form as may be prescribed by the State Government to the State Biodiversity Board.

(2) On receipt of an intimation under sub-section (1), the State Biodiversity Board
may, in consultation with the local bodies concerned and after making such enquires as
it conservation, may deem fit, by order, prohibit or restrict any such activity if it is of
opinion that such activity is detrimental or contrary to the objectives of conservation
sustainable use of biodiversity or equitable sharing of benefits arising out of such
activity:

Provided that no such order shall be made without giving an opportunity of being heard
to the person affected. Any information given in the form referred to in sub-section (1)
for prior intimation shall be kept confidential and shall not be disclosed, either
intentionally or unintentionally, to any person not concerned thereto."

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It is hereby submitted that sub -sec (a) of Sec 23 of the Act of 2002, powers are given to the
SBB to advise the State Government in this area of biodiversity, whereas in sub-section (b)
of Section 23, the SBB has got powers to regulate the grant of approvals or otherwise to request
for commercial utilization or bio-survey and bio-utilization of any biological resource by
Indians. The powers given under Sub-section (c) of Section 23 of the Act of 2002 are general
powers given to SBB to carry out the provisions of the Act or as may be prescribed by the State
Government.

In Divya Pharmacy v. Union of India and Ors., It has been held that Sub-section (b) of Section
23 has to be read with Section 7 of the Act of 2002 and reading of the two provisions together
would mean that although an Indian entity has only to give "prior information" (as against
"prior approval" to NBA, in case of a foreign entity), it does not mean that SBB has no control
over an Indian entity. Section 23 stipulates that SBB has powers to "regulate by granting of
approvals or otherwise requests for commercial utilization or bio-survey and bio- utilization of
any biological resource by Indians". Regulation by imposition of fee is an accepted form of
regulatory mechanism, the learned counsel for SBB would argue. This has again to be seen
with sub-section (2) of Section 24 where the SBB, in consultation with the local bodies and
after making such enquiries can prohibit or restrict any such activity, if it is of opinion that such
activity is detrimental or contrary to the objectives of conservation and sustainable use of
biodiversity or equitable sharing of benefits arising out of such activity. Thus, every individual
or entity compulsorily requires prior permission under the Act and Rules to extract biological
resource.

High Court of Uttarakhand, India; 2018

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f. Whether the scheme of Access and Benefit sharing forms an integral part of the
mechanism under the law and under no circumstances can an individual \entity , looking
to commercially extract the biological resource ,claim exemptions from sharing access
and benefit ?

1. The petitioner humbly submits that the scheme of access and benefit sharing forms an
integral part of mechanism under the law and under no circumstances an individual or an
entity, looking to commercially extract the biological resource, claim exceptions from
sharing access and benefit.

2. "Fair and Equitable Benefit Sharing" is defined under Section 2(g) of the Act, which reads
as under:

"2. Definitions. - In this Act, unless the context otherwise requires, -

(a)...

(b)...

(c)....

(d)....

(e)....

(f)....

(g) "Fair and equitable benefit sharing" means sharing of benefits as determined by the
National Biodiversity Authority under Section

3. Section 21 of the Act reads as under:

The National Biodiversity Authority shall while granting approvals under section
19 or section 20 ensure that the terms and conditions subject to which approval is granted
secures equitable sharing of benefits arising out of the use of accessed biological resources,
their by-products, innovations and practices associated with their use and applications and
knowledge relating thereto in accordance with mutually agreed terms and conditions between
the person applying for such approval, local bodies concerned and the benefit claimers.

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(3.2) The National Biodiversity Authority shall, subject to any regulations made
in this behalf, determine the benefit sharing which shall be given effect in all or any of the
following manner, namely:-

(a) Grant of joint ownership of intellectual property rights to the National Biodiversity
Authority, or where benefit claimers are identified, to such benefit claimers;

(b) Transfer of technology;

(c) Location of production, research and development units in such areas which
will facilitate better living standards to the benefit claimers;
(d) Association of Indian scientists, benefit claimers and the local people with research and
development in biological resources and bio-survey and bio-utilisation;
(e) Setting up of venture capital fund for aiding the cause of benefit claimers;

(f) Payment of monetary compensation and other non- monetary benefits to the benefit
claimers as the National Biodiversity Authority may deem fit.

(3.3.) Where any amount of money is ordered by way of benefit sharing, the National
Biodiversity Authority may direct the amount to be deposited in the National Biodiversity
Fund:

Provided that where biological resource or knowledge was a result of access from specific
individual or group of individuals or organizations, the National Biodiversity Authority may
direct that the amount shall be paid directly to such individual or group of individuals or
organizations in accordance with the terms of any agreement and in such manner as it deems
fit.

(3.4) For the purposes of this section, the National Biodiversity Authority shall, in
consultation with the Central Government, by regulations, frame guidelines."

4. The importance of FEBS has been emphasized by preamble of the Act of 2002, (which
refers to the Rio de Janeiro Convention of 1992), where "Fair and Equitable Benefit Sharing"
is one of the three important posts of the entire movement of conservation of biodiversity, and
one of the main purposes of the statute .Particular emphasis should be given to Nagoya Protocol
of 2010 where the entire emphasis is on “fair and equitable benefit sharing” and the importance
of indigenous community in this regard.

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5. Thus It must be stated, even at the cost of repetition, that the conservation of biological
diversity has three main pillars or objectives. The first is the conservation of biological
diversity, the second is sustainable use of its components and the third is fair and equitable
sharing of the benefits arising out of utilization of genetic resources. Nagoya Protocol of 2010
focuses on the third component (with which we are presently concerned), which is fair and
equitable sharing of genetic material, including the traditional knowledge associated with the
genetic resources and the benefits arising out from their use.

6. As per Section 7 of the Act of 2002, no person, who is a citizen of India or a body corporate,
association or organization which is registered in India, can obtain any biological resources for
commercial utilization, etc. without giving a prior intimation to the SBB concerned. Only local
communities, vaids and hakims are exempted from this provision.

7. Thereafter sub-section (b) of Section 23 of the 2002 Act is relevant for our purposes, which
reads as under:

"23. Functions of State Biodiversity Board. - The functions of the State Biodiversity Board
shall be to -

(a)....

(b) regulate by granting of approvals or otherwise requests for commercial utilization or

bio-survey and bio-utilisation of any biological resource by Indians."

8. At this juncture, it must be stated that regulating an activity in form of demand of a fee is
an accepted practice recognized in law. Therefore, in case the SBB as a regulator, demands a
fee in the form of FEBS from the petitioner when the petitioner is admittedly using the
biological resources for commercial purposes.

9. Thus, it is humbly submitted that the scheme of Access and benefit sharing is an integral
part of the law mechanism and no individual/entity, Indian or Foreign, can claim exceptions to
it.

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PRAYER

WHEREFORE, in the light of the issues raised, arguments advanced and authorities cited, it is
most humbly and respectfully requested to the Hon’ble Bench of NGT to adjudge and declare:

That the petitioners were well within their powers to pass the order to shut down the operations
of the respondent by revoking the license issued by it to the petitioners.

That the Respondent is liable to fulfill its obligations and pay the amount as FEBS as
determined by SBB.

And/or

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
And for this, the Petitioners as in duty bound, shall ever pray.

Sd/-

COUNSELS FOR THE PETITIONER

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MEMORIAL ON BEHALF OF THE PETITIONERS