By order dated 28.09.2016, the Division Bench of the Bombay High Court (Nagpur Bench) in Central India Ayush Drugs Manufacturers Association and Ors. vs. State of Maharashtra and Ors. (Writ Petition No.6360 OF 2015) dismissed a preliminary objection raised by the respondents as to the maintainability of the writ petition before the High Court. The High Court held that it has the jurisdiction to entertain the writ petition and that the petitioners do not have any alternative remedy before the NGT to raise the grounds asserted in the writ petition.

Facts in Brief:

The Petitioners, Central India Ayush Drugs Manufacturers Association and Ors. filed a writ petition before the Division Bench of the Bombay High Court (Nagpur Bench) under Art.226 of Constitution of India in November 2015. In said writ petition, the Petitioners inter alia sought the following reliefs:

  • A declaration that Rule 17 of the Biological Diversity Rules, 2004 (BD Rules) does not apply to Indian entities or body corporates;
  • As an alternate to the above, a declaration that to the extent Rule 17 of the Rules envisage equitable sharing of benefits by the Indian entities, it should be declared ultra vires to the provisions of the Biological Diversity Act, 2002 (BD Act) and, therefore, unconstitutional;
  • A declaration that the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014 (ABS Regulations, 2014) apply only to transactions involving non-Indian entities and that the same do not apply to the Indian entities not trading any biological resources with non-Indian entities;
  • A declaration that ABS Regulations, 2014 is ultra vires Sections 23 and 24 of the BD Act;

The Division Bench of the Bombay High Court vide order dated 2nd December, 2015 issued notices to the concerned respondents (National Biodiversity Authority, Maharashtra State Biodiversity Board, State of Maharashtra and Union of India) and restrained the respondents from taking any coercive action against the petitioners under the BD Act and the BD Rules. Subsequently, the respondents raised a preliminary objection as to the maintainability of the instant writ petition before the Bombay High Court on the ground that the issues raised by the petitioners in the instant writ petition, could be decided by the National Green Tribunal (NGT) by virtue of Section 14 of the National Green Tribunal Act, 2010 (NGT Act).

Section 14 of the NGT Act reads as follows:

  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.

Contentions raised:

The respondents placed reliance upon the Constitutional Bench judgment of the Hon'ble Supreme Court in the case of L. Chandrakumar v. Union of India and Ors[1]. and submitted that Tribunals such as the NGT were constituted with a view to reduce frivolous litigation in the High Courts and that the reliefs claimed by the petitioners in the instant petition could be examined by the NGT, as the petitioners are challenging the vires of the BD Act and not the NGT Act or Rules which constitute the parent enactment of the NGT.

The petitioners on the other hand, argued that when there is challenge to the vires of any Act or Rule; a Tribunal does not possess the jurisdiction to look into the validity of said challenged statutory provision. It was further argued that Section 14 of the NGT Act does not confer any jurisdiction beyond what is provided in the enactments mentioned under Schedule-I of the NGT Act. Thus, it was contended that the NGT only has the power to entertain an appeal as provided under Section 52A of the BD Act and that it does not have the power to adjudicate upon any challenge to the vires of the provisions under the BD Act or BD Rules or any Regulations made thereunder.

Order of the Division of Bench of the Bombay High Court:

The Division Bench considered the provisions of the NGT Act, the BD Act and the provisions of the enactments under Schedule-I of the NGT Act and interpreted that under Section 14 of the NGT Act, the NGT has been conferred with only a limited jurisdiction to deal with specific types of civil disputes. The Bench held that the NGT has the power to entertain disputes subject to the fulfilment of the following ingredients:

  • that the disputes must be civil in nature; and
  • the disputes must necessarily arise out of the implementation of enactments specified in Schedule I; and
  • the disputes must involve a substantial question relating to the environment.

It was held that only if the above ingredients are satisfied, the bar under Section 14(1) of the NGT Act gets attracted, such that the jurisdiction in such cases lies solely with the NGT. On the question as to whether the NGT can adjudicate the issues raised in the instant writ petition, the Bench, placing reliance on an earlier Division Bench judgment[2] of the same high court, wherein a similar contention under the City of Nagpur Corporation Act, 1948 was dealt with, held that the NGT does not have the power to adjudicate upon any dispute arising out of a challenge as to the vires of any provision of any subordinate legislation mentioned under Schedule I of the NGT Act or any regulations made thereunder. The Bench reasoned that the scheme of NGT Act does not permit the NGT to decide upon the vires of any enactment that confers appellate or other jurisdiction upon it, and accordingly dismissed the preliminary objection.