Professional Documents
Culture Documents
Scouts & Guides for Animals & Birds with OIPA – IPFA
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Versus
INDEX
Sr. Particulars Page
No.
1. Copy of Petition with Prayers 3-6
Naresh Kadyan
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Versus
Respondents………
Complaint under 133 CrPc to remove public nuisance, protecting biodiversity, restoring
five freedoms of animals and birds: Threat on public life & property.
Respectfully showeth:
As per section 41 of the Biological Diversity Act, 2002; every local body shall constitute a
Biodiversity Management Committee within its area of jurisdiction, whereas under
section 45 of the said Act, the annual reports of the BMCs are to be submitted to the local
body of the concerned area, besides it section 47 of the said Act also mandate the BMCs to
submit a copy of the same to the concerned District Magistrate having jurisdiction of the
area of the local body.
It would also be pertinent to mention here that as per section 22 (6)(8-11) of the Biological
Diversity Rules, 2004 that the main function of the BMC is to prepare Peoples Biodiversity
Register in consultation with local people, the Register shall contain comprehensive
information on availability and knowledge of local biological resources, their medicinal or
any other use or any other traditional knowledge associated with them.
It is humbly intimated that:
1. Animal Welfare Board of India issued advisory on dated May 9, 2018; keeping in view
section 6 of the said advisory, Urban & Local Bodies were held responsible for
Monkey, claimed to be stray, which seems to be a Wild Monkey, as per their shape &
size but don’t have wild character, besides it animal birth control of stray cat.
2. Ministry of Environment, Forest & Climate Change clarified that Monkey being
protected under the Wildlife Protection Act, 1972 is a responsibility of the Forest
Department instead Urban & Local Bodies.
3. Monkey Menace:
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“There are provisions under the Wild Life (Protection) Act, 1972 to deal with the
issues relating to monkey menace, section 11 & 12 of the Act empowers Chief Wildlife
Wardens to control monkey menace.
The Ministry has issued guidelines / advisories in context of human-wildlife conflict to
the Chief Wildlife Wardens of all the State Governments / Union Territory
Administrations dated 24th December, 2014 and 1st June, 2015. Further, the Ministry
has approved a pilot project on the immuno-contraception for controlling the
population of wild animals responsible for damage and destruction of crops, namely;
elephant, wild boar, monkey, and nilgai”. This information was given by Minister of
State for Environment, Forest and Climate Change, Dr. Mahesh Sharma in a written
reply to a question in Lok Sabha, copies attached as ready references.
Guidelines on Access to Biological Resources and Associated Knowledge and Benefits
Sharing Regulations, 2014, which were issued in exercise of the powers conferred by
section 64 read with sub-section (1) of section 18 and sub-section (4) of section 21 of the
Biological Diversity Act, 2002 (18 of 2003).
Prayers:
1. Whether Monkey menace being public nuisance, handled by which Authority,
either by Department of Wildlife or Urban & Local Body, needs clarification?
2. Abandoned Monkey needs to be declared vermin being public nuisance as per legal
provisions under section 62 of the Wildlife Protection Act, 1972 to handle as stray
animal by the Urban & Local Bodies along with the Society for Prevention of
Cruelty to Animals, exercise of the powers conferred by section 62 of the Wild Life
(Protection) Act, 1972 (53 of 1972), the Central Government, can declare Rhesus
Macaque (Macaca mulatta), listed at serial number 17-A of Part I of Schedule II to
the said Act, as vermin and included in Schedule V of the said Act, for a period as
per decision of the competent Authority.
3. Status report on the private ownership of wild reptiles, restoring their five
freedoms, keeping in view private ownership for personal gain & profit.
4. Biological Management Committee’s may be directed to identify the families of
stray Monkey being rich species, maintaining People’s Biodiversity Register along
with actual numbers, to rescue for further rehabilitation, restoring their five
freedoms, keeping in view the feeding charges along with treatment expenditure
bear by the said Authorities as budgetary provisions.
5. Award and compensation for the victims of the public nuisance created by the
abandoned monkeys, became threat to public life and property.
6. Status report on the strict compliance of the Judgment passed by the Hon'ble
National Green Tribunal (Principal Bench), New Delhi in original Application No.
347 of 2016 on 08.08.2018.
7. Status report on the Guidelines on Access to Biological Resources and Associated
Knowledge and Benefits Sharing Regulations, 2014, which were issued in exercise of
the powers conferred by section 64 read with sub-section (1) of section 18 and sub-
section (4) of section 21 of the Biological Diversity Act, 2002 (18 of 2003).
Naresh Kadyan
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Subject: Guidelines on Access to Biological Resources and Associated Knowledge and Benefits
Sharing Regulations, 2014.
Greetings,
In a landmark judgment delivered in December 2018 in the Divya Pharmacy versus Union of India
case, the Uttarakhand High Court held that all Indian companies which are extracting biological
resources are liable to seek prior approval as well as share part of their revenue with the local
communities that are responsible for conserving and protecting such resources. The final judgment
was an outcome of a litigation spanning multiple hearings over two years in which Divya Pharmacy
vehemently opposed either seeking prior approval from the State Biodiversity Board or sharing a
part of its revenue with the local communities as ‘fees’ under what is termed as ‘fair and equitable
sharing of benefit’.
The Biological Diversity Act, 2002 regulates the extraction of biological resources through the State
Biodiversity Boards and the National Biodiversity Authority. Biological resources include plants,
animals and micro-organisms but exclude those which are normally traded as commodities. The
powers and functions are divided between the State Biodiversity Boards and the NBA. Broadly, all
foreign entities (companies, institutions, individuals) are within the jurisdiction of the NBA while all
Indian entities are the subject matter of the State Board. The law contemplates that before a
commercial entity extracts biological resources, it must take prior approval of the State Board or
the NBA and also undertake to share the benefits arising out of the use of such biological entities
with the local community, which has conserved and protected these biological resources. The
benefits can be in the form of monetary compensation as well as ‘joint ownership of intellectual
property rights’ and or ‘transfer of technology’. The central idea behind this provision is that the
biological diversity in the form of plants and animals that exists in certain regions is because of the
traditional knowledge and practices of local communities. Thus, when a company extracts herbs,
roots, seeds and other biological resources and sells them commercially, it is, in fact, benefiting
from the traditional knowledge and practices of the local community. It, therefore, has to not only
pay for the product but also for the traditional knowledge and practices without which the
biodiversity would not have existed. This is the central idea behind fair and equitable benefit
sharing, which became a law in 2014 as a result of Access and Benefit Sharing Guidelines.
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Divya Pharmacy’s contention was simple: a swadeshi company was not required under the law to
share its revenue with desi people and only a videshi company should share its revenue with Indian
people. It is pertinent to point out that all that Divya Pharmacy was required to pay by way of fees
is 0.5 per cent of its gross revenue minus taxes. According to Divya Pharmacy, for an Indian entity,
all that is required is “prior intimation” to be given to the State Biodiversity Board.
The judgment, delivered by Justice Sudhanshu Dhulia, rejected every contention of Divya
Pharmacy. In a precedent-setting judgment, the court stated that though on “the first blush” it may
seem that an Indian entity is not required to share its revenue, however, “what seems obvious, may
not always be correct”. The court extensively relied on the Convention on Biological Diversity, 1992
and the Nagoya Protocol on Access and Benefit Sharing of 2010 to hold that “Indigenous and local
communities, who either grow ‘biological resources’, or have a traditional knowledge of these
resources, are the beneficiaries under the Act.” In return for their parting with this traditional
knowledge, certain benefits accrue to them as fair and equitable benefit sharing. This benefit the
indigenous and local communities get under the law is over and above the market price of their
biological resources. Unlike most judgments that attribute international conventions to the efforts
of the government, Justice Dhulia credits the Convention on Biological Diversity and the fair and
equitable sharing of benefits to the “long history of the movement for conservation” and the “long
struggle, by and on behalf of the local and indigenous communities”. The court emphasized that the
rights of indigenous and local communities “have to be protected, equally from outside as well as
from within”. The court finally held that the State Biodiversity Board does have the jurisdiction to
demand “fair and equitable sharing of benefits” from Divya Pharmacy and, by implication, from
all Indian companies.
The high court’s decision has brought clarity to the interpretation as well as implementation of the
Access and Benefit Sharing regime. However, the real test will be in ensuring that the amount
collected by way of fees goes to the communities which have conserved biodiversity, and is used for
the purpose of conservation of biodiversity. Only then will the purpose of the fair and equitable
sharing of benefit be achieved. Otherwise, the fees will only end up as a licence to plunder the
resources.
Keeping in view the legal status of introduction of Delhi State Biodiversity Board, which is not
possible due to Union Territory, hence National Biodiversity Authority responsible to implement
the Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing
Regulations, 2014 all around Delhi, including rest 6 other UT’s, whereas there are so many sale
outlet of Patanjali all around Delhi including rest 6 UT’s, trading out the product of Divya
Pharmacy, hence National Biodiversity Authority hereby requested to ensure the profit sharing as
per law for the commercial use of biological resources, Mrs. Sukanya Berwal, Commissioner of
Education, Scouts & Guides for Animals & Birds – OIPA: Indian People for Animals offered her
tireless services for the cause to safe guard flora & fauna.
Yours in Scouting’s,
Forwarded with all papers as advance copy for immediate necessary action & reply, before
moving to the Court of law: