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Published : February 10, 2014 | Author : sumitpandey
Category : Environmental Law | Total Views : 3991 | Rating :

I like to write and express my views on the topics which I deem worthy !!

 Developments in Biodiversity Act, 2002

Any kind of development is always welcomed if it’s a fruitful one on the whole. But sometimes development becomes signified in such a crude manner that it apparently conceals the disdainful consequences to follow. One of the consequences which are not a scarce sight these days is the adverse effects to biodiversity. There is no denying the fact that development is very important for any country to prosper but not at the stake of destroying its very own ecology. The Government has become highly ignorant of the fact that this sprawling spree of development measures is actually ruining the very genesis of ecology and hence the biodiversity. Recently not so welcomed “nod” has been given to a bounty of projects which readily disparages the importance and value of ecosystem. There are actually many events which have had happened lately and which can be enlisted but I have enlisted a few relevant ones. These events will essentially illustrate the sorry state of our biodiversity. They are as follows:

1. The Mosanto/Mahyco Case:
In The High Court of Karnataka At Bangalore

Environment Support Group, Represented By Ms. Bhargavi S. Rao and Mr. Leo F. Saldanha
Respondent: National Biodiversity Authority, Represented By its Chairman and Ors

Facts of the case:
1. The petitioners have drawn attention of the court to the continuing failure on the part of regulatory authorities against various public agricultural universities that are involved in criminal bio piracy of local varieties of eggplant.

2. The petitioners have also highlighted that one of the notifications issued in 2009 by Ministry of Environment and Forest has got 18 critically endangered plants among its 190 plants as normally traded communities.

3. The petition also argues that Section 40 of the Biodiversity Act, 2002 which arbitrarily allows such unfettered trade in India’s biological wealth to label something as normally traded communities and hence paves the way for rampant bio piracy.

Section 40 Biodiversity Act, 2002: Power of Central Government to exempt certain biological resources.

Notwithstanding anything contained in this Act, the Central Government may, in consultation with the National Biodiversity Authority, by notification in the Official Gazette, declare that the provisions of this Act shall not apply to any items, including biological resources normally traded as commodities.

4. Environment Support Group had raised the contention that the entire process by which the proprietary product had been developed was in comprehensive violation of the Biological Diversity Act, 2002. They have constituted an outrageous act of bio piracy of India’s endemic eggplant varieties.

5. The Environment Support Group initiated public interest litigation before The Karnataka High Court seeking directions to compel the regulatory agencies to move against Mosanto/Mahyco for bio piracy and to strengthen the regulatory processes to prevent any further act of bio piracy. It was done to ensure that the Biological Diversity Act was implemented in its letter and spirit.

Status of the case:
It may be recalled that National Biodiversity Board and Karnataka Biodiversity Board filed a criminal complaint of bio piracy before the High Court of Karnataka. However the petition filed for criminal proceedings was stayed for an unprecedented period of 6 months in January 2013. But in a significant ruling the High Court of Karnataka dismissed on 11th October, 2013 petitions that sought quashing of criminal prosecution against Mosanto /Mahyco who have been accused by the National Biodiversity Authority and Karnataka State Biodiversity Board of committing serious criminal acts of bio piracy as of now.

2. National Green Tribunal orders Status Quo on activities of DRDO, BARC, ISRO, IISC’S in Challakere, Chitradurga (Karnataka):
In recent years, a variety of industrial, defense, infrastructure and institutional investments have been proposed in the Amrit Mahal Kaval of Challakere Taluk of Chitradurga district, Karnataka. The Government of Karnataka has systematically diverted these Kaval grasslands for the establishment of a massive weaponized drone testing and manufacturing facility by DRDO( Defence Research & Development Organization), a major nuclear fuel enrichment plant by BARC( Bhabha Atomic Research Centre), a synchrotron by IISc(Indian Institute of Science), a space applications centre by ISRO(Indian Space Research Organization), and also a massive solar power plant by an unknown company called Sagitaur. In addition, there are various other associated industrial and infrastructure developments proposed, both Indian and foreign, especially in the defense manufacturing sector which has recently been opened up for foreign direct investment. The 10,000 acres of Kaval land is a destination of rich bio diversity and ecosystem. It consists of endangered species of plants and animals.

It was contended that the rea that has been diverted to vairous environmentally risky projects are Amrit Mahal Kaval grassland ecosystems. This as per the Karnataka Forest Act are deemed District Forests. Thereby, the entire diversion is in blatant contravention of the Forest Conservation Act. In addition, the project proponents have commenced project activities without securing any clearance under any environmental and pollution control laws of India.

In an unprecedented decision, the Hon'ble National Green Tribunal (South Zone), Chennai ordered status quo on all project activities proposed in the Amrit Mahal Kaval grassland ecosystems of Challakere Taluk, Chitradurga, Karnataka with immediate effect. The directions were issued on the interim prayers filed in Applications by the undersigned which complained that Defence Research Development Organisation, Indian Institute of Science, Indian Space Research Organisation, Bhabha Atomic Research Centre, Karnataka Small Scale Industries Development Corporation, Karnataka Housing Board, Sagitaur Pvt. Ltd. have commenced project activities in these ecologically sensitive areas in comprehensive violations of laws protecting the environment, wildlife, forests, people's rights, etc.

3. Colva Lake Fields, Goa:
Pursuant to an application filed by CCCF( Colva Civic and Consumer Forum) to GSBB( Goa State Biodiversity Board) to protect low lying fields in Colva Lake, located opposite to the Colva church. The Goa State Biodiversity Board has issued directions prohibiting the reclamation of the fields.

The board ordered officials from Goa State Biodiversity Board along with the officials from Department of Agriculture, Water Resources Department, Town and Country Planning Department and South Goa District Collect orate to carry out an inspection of the said field(Colva Fields).

The report of the inspection established that the reclamation or filing of the plot could interfere with the hydro-dynamics and may also result in habitat loss for seasonal biodiversity.

Following the report the Goa State Biodiversity Board said that “until such time that the biodiversity of the area is not documented across the seasons, no decisions to reclaim the area is to be taken at any level. The board further clarified that “ a seasonal inventory of flora and fauna of the site must be carried out before any decision of reclamation is arrived at to rule out the possibilities of any species with conservation concern occurring here”.

4. The Goa State Biodiversity Board and Nuvem bypass:
The Goa State Biodiversity Board prepared a brief report on the construction of the road through the wetland at Rumder, Nuvem and made some significant observations relating to various aspects.

The wetland through which the road is being cut through is a habitat for migratory and residents. The proposed bypass road also reduces the area foraging. The wetland is known for its apple snail (pila ghobasa) , locally known as konge and for its rich biodiversity. The tenants association of Nuvem had approached the Goa State Biodiversity Board, as their occupations, including farming and fishing had been affected by the project.

The National Green Tribunal (NGT) has directed that notices be issued to the chief conservator of forests, South Goa, public works department and the state government in connection with the construction of the Nuvem bypass along the banks of River Sal. PWD (Public Works Department) authorities had stated that the bypass is a necessity due to congestion on the Nuvem stretch of the highway and limited scope for widening the NH 17.

A complaint filed by Sunil S Keshkamat, a resident, is expected to be taken up by NGT on January 20, 2014. Notices had been issued to the chief conservator of forests, South Goa, public works department and the state government. "It appears that the road construction is also going on near the river bank. In December 2013 the National Green Tribunal noted the fact that due to the road construction marshy areas are bound to be destructed.

5. Soil Oil Extraction Case in Bhopal, Madhya Pradesh (Section 7 and 57 Biodiversity Act, 2002):

In a bid to wider the net on imposing benefit sharing levy on corporate houses that use locally available bio-resources, the Madhya Pradesh Government is still considering finer points of State Biodiversity Act, 2002.

According to the provisions of the Act, it is mandatory for all the soya bean oil extracting companies to register themselves with their State Biodiversity Boards and share two per cent of their income for environmental protection.

The said provision comes under Section 7 of the Biodiversity Act, 2002:
No person, who is a citizen of India or a body corporate, association or organization which is registered in India, shall obtain any biological resource for commercial utilization, or bio-survey and bio-utilization for commercial utilization except after giving prior intimation to the State Biodiversity Board concerned:

Provided that the provisions of this section shall not apply to the local people and communities of the area, including growers and cultivators of biodiversity, and vaids and hakims, who have been practicing indigenous medicine.

Madhya Pradesh is the first Indian state to implement these kinds of provisions in consultation with Madhya Pradesh State Biodiversity Board for levying or sharing the profit. The State Biodiversity Board has already issued notices to various companies that use bio-resource to inform the State Biodiversity Board or else face penal actions which may be imprisonment to an extent of three years. It is mandatory on their part to follow the guidelines issued by the State Biodiversity Board. The provision of Biodiversity Act, 2002 under which a company can be held liable is:

Section 57 Biodiversity Act, 2002:
(1) Where an offence or contravention under this Act has been committed by a company, every person who at the time of the offence or contravention was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

(2) Notwithstanding anything contained in sub-section (1), where an offence or contravention under this Act has been committed by a company and it is proved that the offence or contravention has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence or contravention and shall be liable to be proceeded against and punished accordingly.

One has to take the initiative and it better be from the Government end so that it can be validated easily. The pitiful state of biodiversity and ecosystem has to be attended diligently. An ecological imbalance can have dreadful consequences. To enlist some of those are tsunamis, irrational climatic changes, droughts etc. Though Bio diversity Act,2002 was implemented with a clear mindset to improve its sorry state on the whole. But it has been camouflaged with some greedy objectives to qualify as a developed nation.

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