Case Laws (SC/HC/NGT)

Some Case Laws on Biodiversity and Access and Benefit Sharing (SC/HC/NGT)

SUPREME COURT CASES

1. Pradeep Krishen Vs. Union of India and Others Read here
2. S. Jagannath Vs. Union of India and Others Read here
3. Vellore Citizens Welfare Forum Vs. Union of India and Others Read here
4. M/s Vishwanath Paper & Boards Ltd & Another Vs. State of Uttarakhand and Others Read here

HIGH COURT CASES

1. Central India AYUSH Drugs Manufacturers Association and Ors. Vs.  State of Maharashtra and Ors Read here
2. ESG & Another Vs.NBA and Others Read here
3. M/s Century Pulp & Paper & Another Vs. State of Uttarakhand and Others Read here
4. The University of Agricultural Sciences, Dharwad & others Vs. State of Karnataka and Others Read here
5. M/s Chembra Peak Estates Limited vs State of Kerala & Others Read here

NGT CASES

1. Subhas Dutta Vs. State of West Bengal & Ors Read here
2. Som Distilleries Pvt. Ltd. Vs. M.P. State Bio Diversity Board & Ors.
3. Associated Alcohols & Breweries Ltd. Vs. M.P. State Bio Diversity Board and Others
4. Regent Breweries & Wines Ltd. Vs. M.P. State Bio Diversity Board & Ors.
5. Mount Everest Breweries Ltd. Vs. M.P. State Bio Diversity Board & Ors.
6. M.P. Beer Products Ltd. Vs. M.P.State Bio Diversity Board & Ors
7. Agro Solvent Products Pvt. Ltd. Vs. MP State Bio Diversity Board & Ors.
8. Lilasons Breweries Ltd. Bhopal Vs. MP State Bio Diversity Board & Ors.
9. Ruchi Soya Industries Vs. MP State Bio Diversity & Ors
10. Great Galleon Limited Vs. M.P. State Biological Diversity Board & Three Ors.(CZ)
11. Dabur India Ltd. Vs. M.P. State Bio Diversity Board and Others
12. Gwalior Alcobrew Pvt. Ltd. Vs.  M.P. State Biological Diversity Board & 2 Ors.
13. Sanwaria Agro Oils Ltd. Vs. M.P. State Biological Diversity Board & 3 Ors.
14. M/s Som Distilleries & Breweries Pvt. Ltd. Vs. M.P.S.B.B. & Ors
15. Divya Pharmacy vs Union Of India And Others on 21 December, 2018 Read here

The Court directions for all the above cases can be Read here

15. Bio Diversity Management Committee, Keonti Janpad Panchayat, MP vs Union Of India & Others PDF

Other cases

Monsanto Wheat Patent Case at the European Patent Office, EP 445929 B1 2003052 PDF

Case Notes on some Important Cases

• Central India AYUSH Drug Manufacturers Association v. State Of Maharashtra (2016)

The petitioner filed the present case before the Bombay High Court (Nagpur Bench) under Article 226 of the Constitution of seeking a declaration that Rule 17 of the Maharashtra Biological Diversity Rules, 2008 does not apply to the Indian entities or body corporates. The petitioner, in the alternate prayed, for the declaration of the said rules as being ultra vires to the Biological Diversity Act, 2002 and as such unconstitutional. The Regulation[1] made under the Biodiversity Act, 2002 was also sought by the petitioner to be declared ultra vires to section 23 and 24 of the Biodiversity Act, 2002.

Preliminary objection on jurisdiction

The respondent raised a preliminary objection regarding the jurisdiction of the present Court to entertain the petition. The objection raised by the respondent was based on section 14 of the National Green Tribunal Act, 2010 read with section 16, 18, 19 and schedule-1 of the said Act. The respondent contended that the suitable forum to decide the case is National Green Tribunal[2] (hereinafter NGT) since Section 14 of the NGT provides that all the disputes of civil nature arising out of the implementation of  the enactments mentioned in the first schedule are exclusively try-able by the NGT[3]. The respondent submitted that the challenge is made to the sub-ordinate legislation passed under the Biodiversity Act, 2002 and hence the provision of section 14 (NGT Act) shall be applicable.

In response to the objection raised by the respondent, the petitioner contended that a question relating to the validity of an Act or Rules can only be decided in a Court of law and not by any Tribunal. Section 14 of the NGT Act deals with the disputes related to the implementation of the various enactments mentioned in schedule 1; however it does not allow the NGT to decide the validity of those enactments.

Court’s Decision

The Court observed that appellate jurisdiction is conferred upon NGT under various enactments as per section 16 read with schedule 1 of the NGT Act. Appellate jurisdiction is different from the original jurisdiction mentioned in Section 14 and 15 of the NGT Act. The Court relied upon Alpha chem & another v. State of U.P. & others cases[4] wherein the Supreme Court had held that the constitutional validity of a statute could only be challenged under Article 226 and 32 of the Constitution and not before an authority which is constituted under any statute.

The Court observed that NGT will have jurisdiction to settle a dispute only if the three ingredients of section 14 of NGT Act are satisfied viz. the dispute must be civil in nature, must arise out of implementation of enactments specified in Schedule-I and therein substantial question relating to environment must be involved. In other words, not all disputes of civil nature related to the implementation of enactment mentioned in schedule 1 can be entertained. The present case does not satisfy the third element, i.e., the substantial question is not related to any relief directly or indirectly affecting the environment.

The Court also referred to the judgment in L. Chandra Kumar[5] wherein the Supreme Court held that Administrative tribunal established under the Administrative Tribunal Act, 1985 is competent to hear disputes where vires of statutory provisions are questioned, however, while discharging these duties, the Tribunal cannot act as a substitute of the High Court and the Supreme Court.

The High Court in the present case found that the NGT does not have absolute jurisdiction to decide all types of civil cases. It has a limited jurisdiction to deal with only a specific type of civil disputes, thus power to pronounce upon the vires of any statutory provision or of any subordinate legislation cannot be read into any of the provisions which confer either appellate or original jurisdiction upon National Green Tribunal

For the reasons mentioned above the High Court rejected the preliminary objection and stated that the petitioners do not have any alternative remedy before the NGT. The Court however did not decide upon the constitutional validity of Rule 17 of the Maharashtra Biological Diversity Rules, 2008 and Access and Benefits Sharing Regulations, 2014 against Sections 23 and 24 of the Biological Diversity Act, 2002, and hence the matter remains sub-judice.

Impact of the Judgment/ order:

The High Court has only passed its decision with respect to the preliminary objections raised by the Respondents. The matter is yet to be heard on merits.

[1] Access to Biological resources and associated knowledge and benefit sharing Regulations, 2014

[2]. The National Green Tribunal has been established under the National Green Tribunal Act, 2010 for dealing with cases relating to environmental protection and conservation of forests and other natural resources including enforcement of any legal right relating to the environment.

[3]. It means the disputes must involve a substantial question related to environment or enforcement of any legal right related to it.

[4]. Alpha Chem & another v. State of U.P. and Ors. 1991 Supp (1) SCC 518. Supreme Court, while considering the challenge to Section 4A of the U.P. Sales Tax Act, 1948 held that the challenge to the constitutionality of a statute is maintainable under Article 226 or Article 32 of the Constitution of India and it is not open in proceedings before authorities constituted under a statute itself or even in appeal or revision before the High Court from such proceedings.

[5] L. Chandra Kumar v. Union of India A.I.R 1997 SCC 1125 Here, Article 323 A and 323 B of the Indian Constitution along with the Administrative Tribunal Act, 1985 formed under it were challenged. The Court observed that tribunals cannot perform the functions inherently vested in the Higher Judiciary and that tribunals will have limited powers of, not substituting the mainstream judiciary but supplementing its work.

• Social Action For Forest And Environment v. Union Of India, (W.P.(C) 12517/2018 & CM APPL. 48579/2018)

Background

The Ministry of Environment, Forest and Climate Change (MoEFCC) had issued a draft notification on 13^th March, 2018 to streamline the permissions for building and construction sector so as to be able to achieve housing for all by 2022. The notification stated that after assessment of a large number of cases of Environmental Clearances (EC) for buildings objective criteria could be laid down for grant of EC. It was also proposed to increase the threshold of cover of environmental regime for buildings & construction from 20,000 sq. mtrs. to 50,000 sq. mtrs, thereby exempting Environmental Impact Assessment (EIA) for projects up to 50,000 sq. mtrs.

The above draft notification was challenged in the Delhi High Court in W.P.(C) 11027/2018 by an NGO, Social Action for Forest and Environment (SAFE). The court noted that an earlier Notification relaxing the rigors of similar Notification had also been quashed by the National Green Tribunal (and that matter is now sub-judice in the Supreme Court), however since the present matter related to a draft notification hence the Court via order dated 1^st Nov., 2018, decided not to intervene in the matter and granted liberty to the Petitioner (SAFE) to file a detailed representation within a period of four weeks.

Matter in Issue in Present Order

Even before the expiry of the above mentioned four weeks, the Respondents came out with two more notifications on 14^th and 15^th of November, 2018, delegating the power to local bodies such as Municipalities, Development Authorities, District Panchayats, to ensure the compliance of the environmental conditions in respect of building or construction projects with built-up area 20,000 sq. mtrs. to 50,000 sq. mtrs. and industrial sheds, educational institutions, hospitals and hostels for educational institutions from 20,000 sqm upto 1,50,000 sqm. thus exempting real estate projects below 50,000 sq. m. and 1,50,000 sq. m. (as per the subject matter) from EIA and EC.

As per the current criteria any construction above 20,000 sq. m. must fulfil an EIA and get an EC, hence the two notifications were substantially diluting the EIA notification of September 14, 2006 by bringing such projects out of purview of the regulatory regime of the Environment (Protection) Act. The said notifications of 14^th and 15^th November were challenged by SAFE and Society for Protection of Environment & Biodiversity (SPENBIO) before the Delhi High Court.

Court Order

In light of the earlier NGT Order and taking into consideration the fact the said notifications would result in dilution of the laws for environment protection, the Delhi High Court passed a stay order dated 26^th Nov., 2018 on the operation of the said notifications. The matter has been further listed for hearing on 19^th Feb., 2019.

• MONSANTO TECHNOLOGY LLC AND Ors Vs NUZIVEEDU SEEDS LTD. AND Ors. (2019), Civil Appeal Nos. 4616-4617 of 2018

Background and Facts

The dispute initially arose over license and royalty of patented seed technology, between Monsanto and Nuziveedu Seeds Company in 2015 which lead to major debate over legality of patent 214436 consisting of Bt. Technology that was granted to Monsanto. The patent No. 214436 in this case was titled “METHODS FOR TRANSFORMING PLANTS TO EXPRESS BACILLUS THURINGIENSIS DELTAENDOTOXINS”. This patent was a biotechnological invention that contained infusion of Bt. Gene into cotton genome.
The Monsanto technology LLC (hereinafter referred as Appellant/ Plaintiff/Respondent) in civil appeal no. 4616-4617 of 2018 instituted civil suit no. 132 of 2016, seeking permanent injunction against nuziveedu seeds Ltd and ors. (hereinafter referred as defendant) from using the registered trademark “BOLGUARD” AND “BOLGUARD II” brand cotton technology, infringing the registered patent no. 214436 of the plaintiffs and also to further restrain the defendants from selling or using seeds/hybrid seeds bearing the patented technology during the pendency of the suit in view of the termination of the agreement .

Plaintiff in pursuance to their patented rights had entered into a sub-licence agreement dated 21/02/2004 with defendants, for a period of 10 years. The agreement authorized the defendants to develop “genetically modified hybrid cotton planting seeds” with help of the plaintiffs technology and to commercially exploit the same subject to certain limitations prescribed in the agreement. In the agreement the payment of license fee/ trait value by the defendant, for use of patented technology, was also prescribed. Due to the dispute regarding payment of license fee/ trait value in view of subsequent price control regime introduced by the state government, the agreement was terminated by the plaintiff on 14/11/2015 and also proceeded an arbitration proceeding against the appellant and other licensees to recover the amount Rs. 400 crore. Along with arbitration, the Plaintiff filed an application for injunction, to restrain the further actions of the defendants during the pendency of the suit.

In answer to the infringing claim, the appellants/ Defendant filed a counter claim to revoke the respondent/plaintiff’s patent. The single judge bench rejected the claim of the appellants to revoke the patent of the plaintiff. And ordered the appellants to pay the trait fees in accordance with the norms set by the state government. Court also allowed the appellants to use the patent till the pendency of the suit.
Both the parties filed counter appeals before the division bench of the Delhi High Court. Delhi High court, through its division bench, struck down the decision of the single bench where the plaintiff (respondent in the case before division bench) had questioned the legality of patent No. 214436. The appellate court held that since the respondent (plaintiff in the case of single bench) claim was not filed appropriately and that he had failed to disclose the required details along with the source of their invention, therefore their patent was disallowed. Court also refused respondent claim of Rs. 400 crore from the appellants and other licensees.
Challenging the ruling of the division bench, respondent has filed an appeal before the Supreme Court of India.

Defendants claim ( Nuziveedu seeds Ltd) –
Defendant in their written statement contended that their rights were protected under the protection of plant varieties and farmers right act, 2001. The defendant also filed a counter claim under section 64, on various grounds such as absence of novelty, absence of obviousness, complete specification not revealing any “invention”, deficiency in complete specification and claims, false suggestions or representations, non-compliance of the requirements of section 8, non-disclosure of source or geographical origin and invention claimed in the complete specification being not useful.
Apart from above grounds the defendant also focussed on section 3(j), which served as the main ground for the revocation of the mentioned patent i.e.., 214436. Defendant states that section 3(j) clearly explains as to what are not inventions, i.e.., plants and animals in whole or any part thereof other than micro-organisms but including seeds, varieties and species and essentially biological process for production or propagation of plants and animals.
Defendant further claims that the suit patent was bad because claims 1-24 were “process claims” genetic engineering or biotechnology method to insert “nucleic acid sequence” (NAS) into a plant cell as in claim 25 to 27 practiced in laboratory conditions, unlike the complete biological process adopted by the defendants. The NAS was a chemical composition incapable of reproducing itself and was thus not micro-organism.
Defendant, stressed on the history of India’s ratification to the TRIPS agreement, as consequence to which plant variety act was enacted, with the objective to protect the plant varieties and the rights of the breeders and also to encourage the development of new varieties of plants. Defendant contended that since the questioned patent comes under the definition of microscopic living entity and a part of a plant variety, thus it should rather be protected under plant variety act instead of patent act, 1970. It was also stated that Monsanto had used biological resources from India without the prior permission of the National Biodiversity Authority and therefore it was in violation of the Biological Diversity Act, 2002.
Defendant further claimed that by virtue of seeds included under the essential commodity act, 1955, the central government is empowered to fix the license fee/ trait value of the seeds, exceeding which, One cannot terminate the agreement on non-payment of the fee.

Monsanto’s claim –
Explained the term ‘plant’ under section 3(J) as a “living organism” and further asserted that exclusion would apply to biological entities, and not to inventions, which properly fit the description of “micro-organisms” and are excluded specifically from the mischief of the provision. Explained that DNA is the substance responsible for the processes within a living organism and a Gene is merely a code which is used for production of protein in a living organism, thus it is not a living thing. Therefore the patent is manmade DNA sequences comprising the CryAb gene which confers insect resistant to plant, when incorporated into the plant genome. Further stated that no part of DNA sequence is a living organism and thus DNA cannot be called as part of a plant or physical attribute of a plant like flower, fruit, etc. and that it is a method of creating transgenic varieties and micro-organisms that are new and is very much a patentable subject-matter under the patent act,1970.
Monsanto denied the contentions of nuziveedu by averring that the patented DNA is outside the scope of expression of “plant variety”. Further he explained the history of patent amendments in order to explain that through various amendments of the concerned act,2002 and 2005 and on observing section 3(j) and section 2(1)(j) under patent act he asserted that termination of license was perfectly legal as nuziveedu failed to pay the required license fee for using the patented technology. As a matter of right, they can enjoin nuziveedu from using their patented technology and trademark. Further, once the agreement has been terminated it cannot be restored and the parties cannot be directed to perform the obligations contained therein as per section 14 of specific relief act.

Conclusion
Supreme Court on Tuesday 08-01-2019 set aside the order of Delhi high court division bench and said the division bench ought to have “confined its adjudication to the question whether grant of injunction was justified or unjustified in the facts and circumstances of the case”.
Court further stated that before a patent is revoked, section 64 of patent act and the civil procedure code require consideration of the claims in a suit and the counter claims, as well as the examination of the expert witnesses and inspection of documents.
The order of the division bench is set aside by the Supreme Court and order of the single judge bench dated 28-03-2017 is restored and the suit is remanded to learned single judge for disposal in accordance with law.