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~By Shaheen Parween

The Uttarakhand High Court had ordered a company associated with Baba Ramdev to share a percentage of its profits with the local farmers and populace.

A bench of the High Court presided by Justice Sudhanshu Dhulia while dismissing a PIL has held that National Biodiversity Authority (NBA) has got powers to frame regulations in order to give monetary compensation as well as other non monetary benefits to claimants as the National Biodiversity Authority may deem fit and the State Biodiversity Boards in turn have powers and duties to collect Fair and Equitable Benefit sharing (FEBS) under its regulatory power. The PIL was filed by Divya Pharmacy which manufactures Ayurvedic medicines and Nutraceutical products, at its manufacturing unit at Haridwar in Uttarakhand. The petitioner had filed the PIL against the demand raised by Uttarakhand Biodiversity Board under the head “Free and Equitable Sharing” (FEBS) under the Biological Diversity Act, 2002. The bench held that biological resources constitute the main ingredient and raw materials in the manufacture of ayurvedic and nutraceutical products, the pharmacy to share Rs. 2 crore out of its Rs. 421-crore profit with the farmers of the raw product.

The main contention of the petitioner was that the Uttarakhand Biodiversity Board lacked power and jurisdiction to   raise a demand under the head “Fair and Equitable Benefit Sharing”. Moreover since the petitioner did not fall in any of the categories as defined under Section 3 (2) of the Act, therefore the requirement of prior approval from National Biodiversity does not arise and hence the petitioner was not required to contribute under FEBS since the contribution under FEBS is mandatory only for those who require prior approval from the National Biodiversity Authority. The petitioner further contended that FEBS were only for foreigners and that the National biodiversity Authority did not have the power to impose FEBS on an Indian entity and therefore it does not have the power to delegate the authority to State Biodiversity Authority.

On the other hand the State Biodiversity Authority contended that as far as FEBS are concerned, there is no distinction between a foreign entity and an Indian entity and if any distinction is made between a foreign entity and an Indian Entity then it would defeat the very purpose and object of the Act and would also violate International treaties and Conventions to which India is a signatory. Putting across its submissions the State Biodiversity Authority contended that whereas a foreign entity was required to take prior permission before dealing with biological resources, an Indian entity was required to give prior intimation to State Biodiversity Authority before venturing into this area. Moreover the regulation and control of an Indian entity is under the State Biodiversity Authority and hence FEBS was being imposed on the petitioner by State Biodiversity Authority as one of its regulatory functions.

Hearing both the parties Justice Sudhanshu Dhulia was of the view that “regulating an activity in the form of demand in the form of a fee is an accepted practice recognized in law. Therefore, in case the State Biodiversity Board 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, it cannot be said that it has no powers to do so.”

The court further held that Fair and Equitable Benefit Sharing cannot be given a restricted definition and has to be interpreted in accordance with the broad parameters of the scheme of the Act, and hence State Biodiversity Board has got powers to demand Fair and Equitable Benefit Sharing from the petitioner.

—India Legal Bureau 

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