Himachal Pradesh High Court
People For Responsible Goverance vs . State Of H.P. & Anr. on 11 November, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
People for Responsible Goverance vs. State of H.P. & Anr.
CWP No. 4379 of 2019 11.11.2022 Present: Mr. Rajnish Maniktala, Sr. Advocate with Mr. Naresh .
Verma, Advocate, for the petitioner.
Mr. Ashok Sharma, A.G. with Mr. J. S. Guleria, Dy. A.G. and Mr. Rajat Chauhan, Law Officer, for the respondent-State.
None for respondent No. 3.
Mr. Murari Lal Thakur, Coordiantor, Bio Diversity Board, in person.
r to We have heard the matter for a sufficiently long time. Some of the bottlenecks in recovery of benefits sharing under the Bio Diversity Act and the possibilities have been highlighted by the respondents and few of them are as under:-
1. Major bottleneck in implementing the benefit sharing regulations 2014, is that procurement of biological resources by the industry is done from mandis namely Khari Baoli (Delhi), Shivpuri (Madhya Pradesh), Kolkata, Amritsar (Punjab) etc., which are located outside the state.
2. The same biological resources from various states are traded in these mandis. There is no mechanism to ascertain the origin of the same biological resources coming from different states.
3. Industries have actually no clue about the origin when they do large scale procurements in these big mandis.
State Board also has no mechanism to ascertain the origin of the biological resources as to whether it is actually coming from Himachal Pradesh.
4. As a mechanism for ensuring benefit sharing from traders and user industry, a system for registration of user industry and traders, both situated within and outside the State, and filing of details of biological resources on annual basis has been devised and notified by the HP State Biodiversity Board.
5. Due to efforts of the Biodiversity Board, some of the user entities have filed the prior intimation applications ::: Downloaded on - 14/11/2022 20:32:12 :::CIS -2- as, 5 have been processed (ABS amount of more than Rs. 89 Lac has been secured), 4 are under processing and .
one user industry has been finned with 1.86 Lac.
6. Latest Prior Intimation application has been received on 19th October 2022 from the Amrutanjan Health Care Limited.
7. Further, to address this issue the state may establish designated mandis within its boundaries for sale of tradable biological resources including mainly the medicinal plants and the user industry can make procurement from these designated mandis and Board would be at much ease to ascertain the origin and the recovery of benefits from the user industry can be ensured.
8. Under the transit permit system followed in the Forest Department the permits can be issued upto to these mandis instead of allowing outside the State by suitably amending their Transit Rules under the Indian Forest Act, 1927.
9. However, marketing would still be a challenge in these designated mandis as the bigger mandis are located outside the State and user industry may prefer these bigger mandis for procurement being well-established markets.
10. One possibility is that the HP State Forest Development Corporation already having registered Timber Depots in the border areas such as Baddi Depot can designate some space for marketing biological resources.
11. They also have some marketing capabilities in selling of timber. If they can take this responsibility of trade of biological resources in that case the issue can be suitably addressed.
12. But before any order is passed, Hon'ble Court may like to take inputs from the Forest Department and the HP State Forest Development Corporation.
::: Downloaded on - 14/11/2022 20:32:12 :::CIS -3-2. The petitioner also submitted response to the aforesaid, which is as under:-
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1. These difficulties projected by the Board have come for the first time when the Principal Secretary to Government was ordered to attend the Court vide order dated 12.10.2022. None of the responses filed so far have projected this stand. It looks like a pretext to avoid displeasure of the Court.
2. Let the Board produce the original office file containing the noting sheets about initiation of process for recovery of equitable benefits. This will demonstrate the casual approach of the Board to implement provisions of the Act.
3. The difficulties which are projected, form no excuses towards non-implementation of the Act. The law of the land is to be implemented.
4. No notice, whatsoever, has been issued by the Board to 150 manufacturers initiating the process for recovery of equitable benefits. This is despite the repeated orders of the Hon'ble Court including orders dated 15.9.2021 and 24.8.2022.
5. Guidelines for Access to Biological Resources Associated Knowledge and Benefit Sharing Regulations 2014 contemplate the procedure for payment of Benefit Sharing. Regulation 3 contemplates benefit sharing to the extent of 3 to 5% of purchase price on manufacturer.
Additionally, there is an option to pay equitable benefit on gross ex-factory sale as per Regulation 4.
6. When Board could earn an amount of Rs. 89 Lakhs from isolated transaction of only 7 industries, had it been recovery from 150 manufacturer, the amount of equitable benefits could be monumental.
3. Today, when the matter was taken up, the petitioner again invited out attention to the Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations - 2014, more particularly, the regulations 2 to 4, would impress upon the Court and would like to know as to ::: Downloaded on - 14/11/2022 20:32:12 :::CIS -4- why the respondents cannot procure the list of manufacturers of Ayurvedic medicines and other users of biological resources, .
after all the grave and serious penalties have been provided under the Act for contravention and violations of the provisions in all these regulations, which is evident from perusal of Section 56 of the Bio Diversity Act, which reads as under:-
56. Penalty for contravention of directions or orders of Central Government, State Government, National Biodiversity Authority and State Biodiversity Boards.--If any person contravenes any direction given or order made by the Central Government, the State Government, the National Biodiversity Authority or the State Biodiversity Board for which no punishment has been separately provided under this Act, he shall be punished with a fine which may extend to one lakh rupees and in case of a second or subsequent offence, with fine which may extend to two lakh rupees and in the case of continuous contravention with additional fine which may extend to two lakh rupees every day during which the default continues.
4. In the given facts and circumstances of the case, we, at this stage, deem it proper to implead the Department of Industries as also the Department of Ayurveda, as party-
respondents, which shall now figure as respondents No. 3 and 4, respectively.
5. Issue notice to the newly added respondents. Mr. Rajat Chauhan, learned Law Officer, appears and waives service of notice on behalf of respondents No. 3 and 4.
6. Newly added respondents are directed to furnish latest list of manufacturers of Ayurvedic medicines and other ::: Downloaded on - 14/11/2022 20:32:12 :::CIS -5- users of biological resources on or before the next date of hearing.
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7. At this stage, Mr. Murari Lal Thakur, Coordinator, Bio Diversity Board, who is present in person states that respondent No. 2 has already procured the list of 158 industrial units and notice has also been given to such industrial units.
Let this information alongwith the status of the notices be r to placed on record by way of an affidavit.
List on 18.11.2022.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge November 11, 2022 (Sanjeev) ::: Downloaded on - 14/11/2022 20:32:12 :::CIS