TABLE OF CONTENTS

Acknowledgement ................................................................... Error! Bookmark not defined.

Abstract ...................................................................................................................................... 2
Introduction ................................................................................................................................ 2
Literature Review ...................................................................................................................... 3
Scope of Project ......................................................................................................................... 5
Statement of Problem................................................................................................................. 5
Hypothesis ................................................................................................................................. 5
Research Question ..................................................................................................................... 5
Objective of Study ..................................................................................................................... 5
Structure of the Paper ................................................................................................................ 5
Part-I
NGT Judgment: ....................................................................................................................... 6
Bio Diversity Management Committee v. Western Coalfield and Others (2015) .............. 6
Facts of the Case .................................................................................................................... 6
Arguments on behalf of Appellant ......................................................................................... 6
Argument on behalf of Respondent ....................................................................................... 7
Judgment ................................................................................................................................ 7
Part-II
Analysis ..................................................................................................................................... 8
Part-III
Conclusion .............................................................................................................................. 10
Bibliography ............................................................................................................................ 11

P a g e 1 | 11
 ABSTRACT

One of the key objectives of the BD Act, 2002 is conservation of biological diversity.
The conservation of living resources in other words is concerned with plants, animals
and micro- organisms and with those non-living elements of environment on which they
depend. Even the term biological resources as defined by the Convention Biological
Diversity clearly deals only with living organisms. But by suggesting that even coal
extraction falls within provisions of the Biological Diversity Act, 2002 and its specific
provision of access and benefit-sharing, the Madhya Pradesh State Biodiversity Board
has raised important questions relating to the interpretation of the law.

This Seminar Paper aims to study the Judgment passed by NGT Tribunal in respect
with the issue of definition of coal that whether it is a bio-resource or not, while
attempting to answer these questions. This paper is divided into three parts. The first
part explains the judgment passed by the NGT tribunal. The second part deals with the
analysis part which has been done in respect of the judgment. The third part makes
conclusion part.

INTRODUCTION

Biological Diversity (BD) Act was enacted in 2002 by the Parliament of India. With that the
country got a formal legal regime for the conservation of, access to and sustainable use of both
biological resources (hereinafter referred to as bio-resources), as well as people’s knowledge
associated with their local biological heritage. A three-tier system for biodiversity management
was set up under the BD Act: a National Biodiversity Authority (NBA) at the Centre, state
biodiversity boards (SBBs) in each of the twenty-nine Indian states and local-level biodiversity
management committees (BMCs) to be set up in both municipalities and panchayats. These
implementing bodies have had to respond to both local realities and national requirements for
regulating use and access to bio-resources and related knowledge. Despite the law was enacted
long before, still there is no clarity in definition provisions of the Act.

This paper seeks to study the judgment passed by the National Green Tribunal in the case of
Bio Diversity Management Committee v. Western Coalfield and Others (2015) to find whether
the tribunal was justified in declaring that Coal is not included in the definition of Bio-resource
under section 2(c) of the Biological Diversity Act, 2002. The relevant provision in this regard
is Section 2(c) of the Biological Diversity Act, 2002 which defines Bio-resource as:

P a g e 2 | 11
 "biological resources" means plants, animals and micro-organisms or parts thereof,
their genetic material and by-products (excluding value added products) with actual
or potential use or value, but does not include human genetic material”1

MP SBB’s initiative to push a certain interpretation amidst the uncertainty brings to the fore
the objectives in the real-time practice of the BD Act in India. A letter by the Member Secretary
of the MPSBB to the NBA dated 3 April 2013, states emphatically that:

“In the absence of any guideline by the NBA for access and benefit sharing to the State
Biodiversity Board, we are not able to implement third and most important objective
of the Biological Diversity Act, 2002 and, i.e. access and benefit sharing”2

Seeking to expand the definition of bio-resource under section 2(c) of the Biological Diversity
Act, 2002 to include coal a fossil fuel, as a bio-resource and thereby extend the benefit sharing
obligations of the BD Act, the MP SBB issued notices to PSUs like South Eastern Coalfield
Limited (SECL) in January 2013. The notices stated that neither prior intimation had been
given to the SBB for use of bio-resource in the form of coal, nor payment had been made
towards ensuring benefit sharing (BS).3 Several of the industries that received notices have
dragged it to the National Green Tribunal (NGT). The Central Zone Bench of the NGT at
Bhopal has admitted cases filed by several private companies.

LITERATURE REVIEW

1. Litigating India’s Biological Diversity Act: A Study of Legal Cases

-By Shalini Bhutani & Kanchi Kohli

In November 2012 the MP SBB issued notices to 538 companies involved in ‘illegal’ collection
of bioresources, especially medicinal plants, for commercial utilization. On 11 January 2013
the SBB served notice to the three CIL subsidiaries — South Eastern Coalfields, Western
Coalfields and Northern Coalfields, for extraction of coal for commercial purpose without
informing the board, as a punishable offence, saying that coal comes under the BD Act’s
definition of a ‘bio-resource’.

In March 2013, Northern Coalfields Limited (NCL) responded to the notice by MP SBB stating
that under Section 2(c) of the BD Act, ‘biological resource means plants, animals and micro-
organisms or parts thereof, their genetic material and by-products…’ On 28 May 2013, in a
matter admitted by the NGT’s CZ Bench at Bhopal, the legal question considered was the

1
The Biological Diversity Act, 2002, section 2.
2
Shalini Bhutani & Kanchi Kohli, The Legal Meaning of Biodiversity, (2013)
3
Shalini Bhutani & Kanchi Kohli, Litigating India’s Biological Diversity Act: A Study of Legal Cases, (2016)

P a g e 3 | 11
interpretation of the term ‘biological resources’ and whether the product in question in this case
- ‘malt’, used in the manufacture of beer is covered under the said term. 36 MP SBB’s position
was that malt is a by-product of a plant and therefore must be regarded as a bio-resource.
Disagreement on such an interpretation has led to the many cases by industries.

2. Is coal mineral or bio-resource: Biodiversity board in Madhya Pradesh challenges

coal companies.
-By Jyotika Sood

THE Madhya Pradesh State Biodiversity Board (MPSBB) has stirred a hornet’s nest by saying
that coalis a biological resource and should, therefore, come under the rules of Biological
Diversity Act (BDA), 2002. If the board proves its point, it will be a big win for the state
biodiversity boards (SBBs), which are struggling in absence of financial aid for conservation
of biological resources.

Ram Gopal Soni, member secretary of MPSBB, who opened the Pandora’s Box, says, “The
board has classified different categories of industries which are using bio-resources. Under this,
coal is one. Coal is a fossil fuel formed when ancient plants get buried in the crust of the earth
for millions of years and are converted into peat.” Thus, going by BDA’S definition of a
biological resource, coal is a genetic material of plants, he adds.

3. Protecting India’s Biodiversity: Are we all Criminals?

-by Pankhuri Agarwal

Real trouble started in 2012 when a newly established Biodiversity Management Committee
(BMC) from Madhya Pradesh statutory body, as per the Act, created to implement the Act at
local self-government level, filed a case seeking benefits f coal mining company arguing that
coal is a product of biological resources and mining of coal is nothing but commercialization
of biological resources and the profits be shared with it as per the Act. After long discussion
and consultation, the NBA clarified before the court that coal cannot be considered a biological
resource per se.

4. The Legal Meaning of Biodiversity

-by Kanchi Kohli, Shalini Bhutani

The logic of the MPSBB as stated in its letter to the NBA in April 2013 is that “coal is a plant
fossil and it has a genetic material of a plant”, and therefore it needs to be treated as a biological
resource under the BD Act. Similarly, “limestone is a genetic material of marine organisms
and is made after calcifi cation of marine organisms”. Further, it argues, that it is not just coal
mining but also thermal and other industrial operations, which use coal, that need to come into
the purview of ABS. The MPSBB has sought a response from the NBA, which it is yet to
receive.

P a g e 4 | 11
 SCOPE OF PROJECT

The scope of this paper is limited to examine the definition Bio-resource under Section 2(c) of
the Biological Diversity Act, 2002 in context of coal that whether coal is a bio-resource or just
a mineral.

STATEMENT OF PROBLEM

Whether the tribunal in the case of Bio Diversity Management Committee v. Western Coalfield
and Others (2015) was justified in declaring that Coal is not included in the definition of Bio-
resource under section 2(c) of the Biological Diversity Act, 2002?

HYPOTHESIS

Coal is formed from the remains of vegetation and is a part of plant’s genetics, therefore, it
should be included in the definition of Bio-resource under Biological Diversity Act, 2002.

RESEARCH QUESTION

1. Whether coal has a genetic structure and that it is similar to that of plants to eligible to be
considered as a Bio-resource?
2. Whether coal can be treated either as a part of the plant or as a by-product of plant?

OBJECTIVE OF STUDY

To examine the hypothesis in light of answers to the research questions arrived at.

STRUCTURE OF THE PAPER

This Seminar Paper is divided into three parts. The first part explains the judgment passed by
the NGT tribunal. The second part deals with the analysis part which has been done in respect
of the judgment. The third part makes conclusion part.

P a g e 5 | 11
 PART-I
NGT JUDGMENT:
Bio Diversity Management Committee v. Western Coalfield and
Others (2015)

FACTS OF THE CASE

MPSBB issued notices to South Eastern Coalfields Limited, Northern Coalfields Limited and
Western Coalfields Limited, all subsidiaries of Coal India Limited, stating that Section 2 (c) of
BDA calls coal a biological resource, and that companies were extracting it from the coalmines
of Madhya Pradesh for commercial purpose without giving prior intimation to the board.
MPSBB has also served notices to industries that use coal, such as cement and steel factories.
The MPSBB notices stated that since the companies are using the biological resource, under
BDA they are required to pay fee or share a part of the profit made from utilization of such
resources with the state biodiversity management committees (BMC) under directions from
MPSBB.

Responding to MPSBB’S notice, Western Coalfields Limited wrote back stating that coal is
not a bio-resource even by the definition of Biological Diversity Act. At the same time the
BMC of Eklahara filed a case before the National Green Tribunal’s CZ Bench in Bhopal
seeking its intervention.

ARGUMENTS ON BEHALF OF APPELLANT

Applicant argued that coal is “biological resource” as is evident from its process of formation.
As per the Applicant coal is a fossil fuel because it is formed from the remains of vegetation
that grew as far as back 400 million ago and that it is often referred to as “buried sun shine”
because the plant which formed coal captured energy from the sun through photosynthesis
created the compounds that makes up plant tissues. By that logic, coal being of plant origin has
to be treated as a biological resource. Further, the main element in the plant materials carbon
which gives coal most of its energy and, therefore, the Respondents fall within the ambit of the
BD Act, 2002 and are thus liable to share benefits with the Applicant.

The Applicant argued that the two letters issued by the Ministry of Environment & Forests &
Climate Change, Govt. of India, dated. 02.09.2013 by the Secretary, MoEF&CC & the letter
dated. 06.09.2013 by Section Officer, MoEF & CC / Respondent No. 3 wherein it was clarified
that coal is not a biological resource and, therefore, does not fall within the jurisdiction of the
BD Act, 2002, is not correct. Not only the interpretation is wrong but even the Secretary of
MoEF&CC / Respondent No. 3 has no authority to interpret the provisions of the BD Act, 2002
and issue instructions to any person to exclude any biological resources from the purview of
the BD Act, 2002 and that the sole intent is to benefit to various coal companies.

P a g e 6 | 11
ARGUMENT ON BEHALF OF RESPONDENT

The Respondents argued that coal is governed by Mines & Mineral (Development &
Regulation) Act, 1957 (for short “MMDR” Act) and the said enactment relates to mines and
minerals of which coal is a specified major mineral listed in first schedule of the MMDR Act.
Further the Section of MMDR, Act confers powers to make rules and levy charges on coal only
upon the Central Government and as a result of this the State Government and its authority do
not have competence and jurisdiction to levy any charges.

The Respondents further argued that the definition of the term biological resource as provided
under section 2 (c) of the BD Act, 2002 is exhaustive and only includes plants, animals, micro-
organism and their genetic material and by-product and since coal does not fall in any of the
above categories it cannot be termed as biological resource. The Respondents further go on to
contend that coal is combustible, sedimentary and organic rock and, therefore, cannot be
compared to a living organism. It takes approximately 300 million years to form coal and thus
it is fossil and by no stretch of imagination coal can be categorized as biological resource as
defined in the Act.

JUDGMENT

After hearing the arguments of both the parties, discussing the various aspects of definition of
coal, the Tribunal held that coal does not qualify to be a biological resource and does not come
within the purview of the Biological Diversity Act, 2002.

P a g e 7 | 11
 PART-II
ANALYSIS

After reading the whole judgment, it is noted that the conclusion in the order that coal is not a
bio-resource, was drawn after discussing various aspects of the Definition clause under section
2(c) of the Act, which are:

 In respect of key objectives of Biological Diversity Act, 2002

One of the key objectives of the BD Act, 2002 is conservation of biological diversity. The
conservation of living resources in other words is concerned with plants, animals and micro-
organisms and with those non-living elements of environment on which they depend. The
living biological resources have two important properties, the combination of which
distinguishes them from non-living resources. They are renewable, if conserved, and they are
destructible, if not. On the sheer yardstick of its lack of amenability to conservation in the
manner described above, coal does not have characteristic of a living biological resource.

 In respect of objectives of Convention on Biological Diversity.

While examining the disputed issue, the Tribunal analyzed the Convention of Biological
Diversity and the Botanical Survey of India and found that The Secretariat of the CBD had
clearly expressed the view that the term biological resources as defined by the CBD clearly
deals only with living organisms. Further, this interpretation was supported by many decisions
of the Conference of Parties since entry into force of the conventions 20 years ago which have
focused on living organisms including genetic material (but excluding of human genetic
material) and finally that the Convention on Biological Diversity was often referred to as
“Convention on Life on Earth” and is thus indicative of the scope and purpose of the term
“biological resource” as defined in the Article 2 of the CBD.

 In respect of coal as a genetic material.

Biological resources are renewable and exhibit characters of growth and reproduction. These
are the primary attributes of life. Any material or resource which does not possess these
attributes cannot be categorised as a biological resource. Genetic material do have ability for
replication and regeneration, a property of life, and calling coal a genetic material, which does
not have this ability, therefore, is not scientifically justified.

The use of biological resources is premised on the assumption that biological resources which
primarily consist of the genetic material of plants, animals & micro-organisms are amenable to
genetic interventions. Such genetic interventions are possible only if the integrity of genetic
structure present in the genetic material is intact. There is no credible scientific evidence

P a g e 8 | 11
 available, nor has it been advanced by the Learned Counsel for the Applicant, to suggest that
coal is a genetic material which is amenable to scientific interventions for bringing about
genetic improvement in other plants and animals or can be subjected to genetic improvements
through genetic interventions from other plants, animals or micro-organisms. The inability of
coal to be used as a genetic material automatically makes it a candidate unsuitable to be
categorised as biological resource.

 In respect of DNA

The DNAs (De-oxy Ribonucleic Acid) are the functional units of heredity and, therefore, any
genetic material from plants, animals or microbes which have functional units of heredity, that
is DNA, will qualify to be included within the ambit of “Biological Resource”. Absence of the
functional units of heredity will automatically disqualify the material to be classified as genetic
resource and consequently as biological resource. The interpretation of the definition of
biological resource, as in the Article 2 of the CBD, and that given under the BD Act, 2002,
although apparently look somewhat at variance with each other, particularly, in the way it has
been described in Section 2(c) of the BD Act 2002, however, exploring it further, the
conclusion is inescapable that both the definitions lead to the same conclusion.

Any material which does not have the genetic make-up or in other words DNA, cannot be
qualify to be a heritable genetic material and hence cannot also be called a biological resource.
Coal is the complex material formed by mix of substances; plant remains and mineral matters
and goes through various geo-chemical and bio-chemical processes which are not completely
understood due to burial under heat and pressure over time. Since it has taken millions of years
to form coal from a mixture of plant remains and minerals, and no trace of plant DNA could
be found in coal in any form, it will be improper term coal as a genetic material. There is no
scientific study to date which suggests that coal has a genetic structure and that it is similar to
that of plants.

 In respect of coal as a part of plant or animals

The by-products have a potential for exploitation of the plant or animal from which these by
products are obtained, the legislature in their wisdom have included by-products of plants and
animals within the ambit of biological resource under section 2(c) of the BD Act 2002 and
thereby to secure protection to the concerned plants and animals whose by-product are in use
or have potential uses in future. A by-product is something which is incidental to something
else being produced. The Tribunal found no merit in the vague assertion of the Applicant that
coal is a by-product of plant in the absence of any direct correspondence to any plant and the
fact that coal is a mineralized form of plant as a result of the fossilization processes.

P a g e 9 | 11
 In respect of coal as a by-product of plant or animals.

Only such parts which when joined together will form the “whole” can be interpreted to be part
of the „whole‟. In respect of the plants and animals only parts like leaves, fruits and bones etc
which are part of the plant and animal, have genetic configuration same as that of the plant or
animal of which they are part can be categorized as part of the plant or animal. Such linkage
does not operate in vacuum. There has to be a linkage and a direct correspondence to a specific
plant or animal of which it alleged to be a part of. Therefore, coal cannot be treated either as a
part of the plant.

After analysis of the order passed by the Tribunal, it seems that the judgment passed by NGT
is according to law and has no infirmity.

PART-III
CONCLUSION

The BD Act, 2002 is a result of the International Convention on Biological Diversity, 1992 to
which the Govt. of India is a signatory and which entered into force in December, 1993. If we
look at the Convention on Biological Diversity, we find that the convention only deals with the
conservation and sustainable use of genetic resources and the living organism of plant, animal
and micro-organism. Neither the Convention document nor all the subsequent meetings of the
Conference of Parties (COPs), of which nation states are members, give any indication or
suggestion that the Convention would have been concerned with any other material or
resources other than living organisms or their genetic material. Therefore, in the light of above
discussion and the judgment passed by NGT, the hypothesis assumed stands incorrect because
it is clear that Coal is not eligible to be considered as a bio-resource.

P a g e 10 | 11
 BIBLIOGRAPHY

Books and Articles

Shalini Bhutani & Kanchi Kohli, The Legal Meaning of Biodiversity, (2013)……………........5

Jyotika Sood, Is coal mineral or bio-resource: Biodiversity board in Madhya Pradesh

challenges coal companies……………………………………………………………………………..5

Shalini Bhutani & Kanchi Kohli, Litigating India’s Biological Diversity Act: A Study of Legal
Cases, (2016)…………………………………………………………………………………..6

Web Sources

Pankhuri Agarwal, Protecting India’s Biodiversity: Are we all Criminals?, Available at

https://spicyip.com/2018/07/protecting-indias-biodiversity-are-we-all-criminals.html (last
accessed 09.09.2018, 12:00 pm)……………………………………………………………….7

Shashikant Trivedi, Is Coal a mineral or a Bio-resource?: MoEF, National Biodiversity

Autority given more time on coal, Available at
http://www.business.standard.com/article/economy-policy/is-coal-a-mineral-or-a-bio-
resource-113091100946_1.html (last accessed 09.09.2018, 12:00 pm) ……………………….6

P a g e 11 | 11