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Bombay High Court (HC) has recently passed an order stating that cases related to access and benefit sharing (ABS) non - compliance will not be transferred to National Green Tribunal (NGT) and will be heard at HC till further notice.
NGT had in the past heard such cases and passed an order directing companies engaged in commercial utilisation of castor oil and other bio-resources to pay ABS payment, as per November 21, 2014 notification of Biological Diversity Act, 2002.
The NGT had directed Maharashtra State Biodiversity Board (MSBB) to take appropriate action against defaulting parties and in case the parties do not respond, their names to be published in newspapers and thereafter prosecution to be filed against them.
One such case is related to Central India Ayush Drug Manufacturers Association (CIDMA) writ petition filed in the Nagpur bench of Bombay HC for seeking clarity on whether Indian companies fall under the purview of ABS payment.
Maharashtra State Biodiversity Board (MSBB) had requested the Bombay HC that cases related to access and benefit sharing non- compliance be transferred to National Green Tribunal for adjudication and redressal. Bombay HC clarified that HC is the appellate authority to hear such cases as per the law of the land.
Meanwhile, ASU manufacturers from Maharashtra are also planning to move to Supreme Court of India if they fail to get clarity on ABS non- compliance cases based on November 21, 2014 notification which mandates Indian companies to pay royalty.
The NGT order specified that ABS is applicable to bio-resources from agriculture or forest area as well. Castor oil which is an agriculture bio-resource when utilised for general commodities, no ABS is applicable. However, when utilised for commercial purposes for use in drugs and cosmetic products, ABS is applicable to it. ABS is also applicable for access to biological resources, bio survey and bio-utilisation for commercial utilisation.
It has been further directed that violation of Sections 7 and 24(2) of Biological Diversity Act, 2002 by not giving prior intimation to State Biodiversity Board (SBB) in case of access to biological resources for commercial purposes, companies shall be held liable and punishable with imprisonment for a term which may extend to 3 years or with fine which may extend to Rs.5 lakhs or with both under Section 55(2) of the BD Act.
ASU industry is also seeking clarity on the ABS compliance with reference to its consultation with National Biodiversity Authority (NBA) for specifying as to what is a value added product (VAP).
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