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CASE NO.:

Appeal (civil) 352-353 of 2004

PETITIONER:

ESSAR OIL LTD.

RESPONDENT:

HALAR UTKARSH SAMITI & ORS.

DATE OF JUDGMENT: 19/01/2004

BENCH:

RUMA PAL & B.N. SRIKRISHNA

JUDGMENT:

J U D G M E N T

[Arising out of SLP (C) Nos.9454-9455 of 2001]

WITH

Civil Appeal Nos. 354-357, 362-364

Arising Out of SLP (C) Nos.10008-10011, 17691-17693,

17694-17696, 22137 OF 2001, SLP (C) No.________ @

CC No.5083 AND T.C. (C) No.39 of 2001

RUMA PAL, J.

SLP (C) Nos.10008-10011, 17691-17694, 17695-17696 AND SLP

(C) No.________ @ CC No.5083 of 2001.

Delay condoned. Leave granted.

The Jamnagar Marine National Park and Sanctuary lie

along the lower lip of the Gulf of Katchch in the State of Gujarat

covering reserve forests and territorial waters. Essar Oil Ltd.,

Bharat Oman Refineries Ltd. (BORL) and Gujarat Positra Port

Co. Ltd., seek to lay pipelines to pump crude oil from a single

buoy mooring in the Gulf across a portion of the Marine

National Park and Marine Sanctuary to their oil refineries in

Jamnagar District. On the basis of separate public interest

litigation petitions filed by Halar Utkarsh Samity and

Jansangharsh Manch the High Court, by the impugned

judgment, has held that BORL may lay its pipelines but the

others may not and has restrained the State Government from

granting any more authorizations and permissions for laying

down any pipeline in any part of the sanctuary or national park.

BORL was allowed to lay its pipelines by the High Court, since

permission to do so had already been granted to it by the State

government and since no such permission had, according to

the High Court, been granted to Essar Oil, its application

together with all pending applications were to be decided in

accordance with what had been decided by the Court. This

decision of the High Court has given rise to a series of Special

Leave Petitions, which are:

1. SLP (C) Nos.9454-9455 of 2001

ESSAR OIL LTD. v. HALAR UTKARSH SAMITI & ORS.

2. SLP (C) Nos.10008-11 of 2001

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ESSAR OIL LTD. v. JANSANGHARSH MANCH & ORS.

3. SLP (C) Nos.17691-93 of 2001

BHARAT OMAN REFINERIES LTD. v. HALAR UTKARSH SAMITI & ORS.

4. SLP (C) Nos.17694-96 of 2001

STATE OF GUJARAT & ANR. v. HALAR UTKARSH SAMITI & ORS.

5. SLP (C) No.22137 of 2001

M/s GUJARAT POSITRA PORT CO. LTD. v.

HALAR UTKARSH SAMITI JAMNAGAR & ORS..

6. SLP (C) No.________@ CC No.5083 of 2001

HALAR UTKARSH SAMITI & ANR. v. STATE OF GUJARAT & ORS.

Leave is granted in all these matters. In addition there is a

transfer petition relating to a writ petition filed by Halar Utkarsh

Samity challenging three specific orders passed by the State

Government in connection with the grant of permission to

BORL. The writ petition is transferred to this Court and is

disposed of by us.

The legal issue in all the matters is the same. There are

additional issues of fact relating to the grant of permission to

Essar Oil Ltd., Gujarat Positra Pvt. Ltd., and BORL. We

propose to take up the appeals relating to Essar Oil first, both

for the determination of the common legal issue and the

particular factual controversy in its case.

The questions involved in these appeals are \027 Can

pipelines carrying crude oil be permitted to go through the

Marine National Park and Sanctuary and if so, has Essar Oil

Ltd., (referred to hereafter as the appellant) in fact been so

permitted?

The answer to the first question depends on an

interpretation of the provisions of three statutes namely, the

Wild Life (Protection) Act, 1972, the Forest (Conservation) Act,

1980 and the Environment (Protection) Act, 1986.

Chronologically, the Wild Life (Protection) Act, 1972 (referred to

hereafter as the WPA) is the earliest statute. It defines 'wildlife'

in Section 2(37) as including:

"any animal, bees, butterflies, crustacea, fish and

moths; and aquatic or land vegetation which form

part of any habitat";

Section 18 empowers the State Government to notify its

intention to constitute any area other than an area comprised

within any reserve forest or the territorial waters as a sanctuary

if it considers that such area is of adequate ecological, faunal,

floral, geomorphological, natural or zoological significance, for

the purpose of protecting, propagating or developing wild life or

its environment. The Collector has been empowered to

entertain and determine claims in respect of or over the notified

area under Sections 21 to 24. After all claims in response to

the Section 18 notification are disposed of, the State

Government is required under Section 26A to issue a

notification specifying the limits of the areas which shall be

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comprised within the sanctuary, after which the area shall be a

sanctuary on and from such date as may be specified in the

notification. Under sub-section (3) of Section 26A, "no

alteration of the boundaries of a sanctuary shall be made

except on a resolution passed by the Legislature of a State". It

is not in dispute that the prescribed procedure has been

followed and defined areas along the Gulf have been declared

a sanctuary in accordance with the provisions of the WPA nor is

it in dispute that the limits declared under Section 26A have not

been altered under Section 26-A(3). Once an area has been

declared as a sanctuary, entry into the area is restricted and

regulated under Sections 27 and 28 and subject to permission

being granted by the Chief Wild Life Warden who has, under

Section 33, to control, manage and maintain all sanctuaries.

The Chief Wild Life Warden is appointed under Section 4 of the

Act and sub-section (2) of Section 4 provides that "in the

performance of his duties and exercise of his powers by or

under this Act, the Chief Wild Life Warden shall be subject to

such general or special directions, as the State Government

may, from time to time, give."

The procedure for declaring an area as a National Park is

substantially similar to the procedure relating to sanctuaries and

has been provided for in Section 35. It is nobody's case that

the procedure has not been complied with by the State

Government declaring the Jamnagar National Park as a

National Park.

What we are really concerned with is Section 29 of the

WPA and its interpretation. This can be said to be the core

issue in all the appeals. Section 29 reads:

"29. Destruction, etc., in a sanctuary prohibited

without permit.\027No person shall destroy, exploit or

remove any wild life from a sanctuary or destroy or

damage the habitat of any wild animal or deprive any

wild animal of its habitat within such sanctuary except

under and in accordance with a permit granted by the

Chief Wild Life Warden and no such permit shall be

granted unless the State Government, being satisfied

that such destruction, exploitation or removal of wild life

from the sanctuary is necessary for the improvement

and better management of wild life therein, authorises

the issue of such permit.

Explanation.\027 For the purposes of this Section,

grazing or movement of live-stock permitted under

clause (d) of section 33 shall not be deemed to be an

act prohibited under this section."

The corresponding provision relating to National Parks is

Section 35 sub-section (6).

The next Statute which is of relevance is the Forest

(Conservation) Act, 1980 (described as FCA subsequently).

The Act is a brief one consisting of five Sections. The relevant

Section is Section 2 which inter alia provides that

notwithstanding anything contained in any other law for the time

being in force in a State, no State Government or other

authority shall make, except with the prior approval of the

Central Government, any order directing inter alia "that any

forest land or any portion thereof may be used for any non-

forest purpose". Rule 4 of the Forest (Conservation) Rules,

1981 provides for the procedure required to be followed by the

State Government or other authority for seeking the prior

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approval. Rule 4(1) requires the proposal to be in the

prescribed form and sub-rule (2) provides that the proposal

should be addressed to the Secretary, Ministry of Environment

and Forests, Government of India. The form requires several

particulars, some of the relevant ones being:

1. Project details;

2. Location of the project/scheme;

3. Item-wise break-up of the total land required for the

project/scheme alongwith its existing land use;

4. Details of forest land involved;

5. Details of compensatory afforestation scheme;

6. Cost-benefit analysis;

7. Whether clearance from environmental angle is

required;

8. Detailed opinion of the Chief Conservator of

Forests/Head of the Forest Department concerned.

The Central Government may, under Rule 6, after

referring the matter to a Committee if the area involved is more

than 20 hectares, and holding such enquiry as it may consider

necessary, grant approval to the proposal with or without

conditions or reject the same.

The next Statute to be considered is the Environment

(Protection) Act, 1986 (referred to as EPA). This Act was

passed as a measure to implement the decisions taken at the

United Nations conference on the Human Environment held in

Stockholm in June, 1972 to which India was a party. The

conference passed a resolution known as the Stockholm

Declaration, which is dilated upon later by us. At this stage it is

sufficient to note that the EPA reflects, in large measure, the

Stockholm Declaration. According to the Statement of Objects

and Reasons in the EPA, because of a multiplicity of regulatory

agencies, there was need for an authority which could assume

the lead role for study, planning, implementing long-term

requirements of environment safety and to give directions for

and co-ordinate a system of speedy and adequate response to

emergency situations threatening the environment. Under

Section 24, the provisions of the EPA and the Rules or orders

made thereunder have been given overriding effect over any

other enactment.

On 19th February, 1991, the Central Government under

the provisions of Section 3(1), (2)(v) of EPA Act read with Rule

5 of the Environment (Protection) Rules, 1986 declared coastal

stretches of seas, bays, estuaries, creeks, rivers and

backwaters which are influenced by tidal action in the landward

side upto 500 metres from the High Tide Lines (HTL) and the

land between the Low Tide Lines (LTL) and the HTL as Coastal

Regulation Zone (CRZ) with effect from the date of the

notification. Certain restrictions were placed on the setting up

and expansion of industries, operations or processes etc. in the

CRZ. Amongst the prohibited activities within the CRZ were:

"2(xi) construction activities in ecologically sensitive

areas as specified in Annexure-I of this Notification;

2(xii) any construction activity between the Low

Tide Line and High Tide Line except facilities for

carrying treated effluents and waste water

discharges into the sea facilities for carrying sea

water for cooling purposes, oil gas and similar

pipelines and facilities essential for activities

permitted under this Notification;"

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Annexure-I referred to in paragraph 2(xi) quoted above

refers in turn to four categories of CRZs described in paragraph

6(1) of the Annexure. What is material for our purpose is

Category-I (CRZ-I):

"(i) Areas that are ecologically sensitive and

important such as national parks/marine parks,

sanctuaries, reserve forests, wildlife habitats,

mangroves, corals/coral reefs, areas, close to

breeding and spawning grounds of fish and other

marine life, areas of outstanding natural beauty,

historical heritage areas, areas rich in genetic

diversity, areas likely to be inundated due to rise in

sea level consequent upon global warming and

such other areas as may be declared by the Central

Government or the concerned authorities at the

State/Union Territory level from time to time.

(ii) Area between the Low Tide Line and the High

Tide Line."

Paragraph 6(2) states that the development or

construction activities in different categories of CRZ areas shall

be regulated by the concerned authorities at the State/Union

Territory level, in accordance with the following norms:

"CRZ-I

No new construction shall be permitted within

500 metres of the High Tide Lines. No construction

activity, except as listed under 2(xii), will be

permitted between the Low Tide Line and the High

Tide Line." (Emphasis added )

This notification was subsequently amended on 12th April,

2001 by the Central Government by issuing a fresh notification

of that date being notification S.O. 329(E). Under the heading

CRZ-I, the following paragraph was substituted:

"No new construction shall be permitted in CRZ-I

except (a) Projects relating to Department of Atomic

Energy and (b) Pipelines, conveying systems

including transmission lines and (c) facilities that are

essential for activities permissible under CRZ-I.

Between the LTL and the HTL, activities are

specified under paragraph 2 (xii) may be permitted.

In addition, between LTL and HTL in areas which

are not ecologically sensitive and important, the

following may be permitted: (a) Exploration and

extraction of Natural Gas (b) activities as specified

under proviso of sub-paragraph (ii) of paragraph 2,

and (c) Construction of dispensaries, schools, public

rain shelters, community toilets, bridges, roads,

jetties, water, supply, drainage, sewerage which are

required for traditional inhabitants of the

Sunderbans Bio-sphere reserve area, West Bengal,

on a case to case basis, by the West Bengal State

coastal zone Management authority."

The permits to be granted by the Central Government

under the FCA and under EPA are independent of each other

and of the permission which the State Government is required

to give under Sections 29 and 35 of the WPA. Clearance under

each of the three statutes is essential before any activity

otherwise prohibited under those Acts may be proceeded with.

In these appeals there is no challenge to the grant of

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permission to the appellant under the FCA and the EPA by the

Central Government. The challenge by the respondent/writ

petitioners before the High Court which was accepted, rested

on an interpretation of Sections 29 and 35 of the WPA.

Construing Section 29, the High Court held that the marine

sanctuary and marine national park were not to be utilized for

any purpose other than the purposes prescribed under the Wild

Life (Protection) Act and except in accordance with Sections

26-A (3), 30 and Section 35(6) thereof. The High Court said

that "the Government could arrive at the satisfaction that it is

necessary to grant such permission for destruction of wildlife,

as otherwise in case such permission for destruction,

exploitation or removal is not granted the same would adversely

affect the improvement and better management of the wildlife".

The word "necessary" was construed to mean indispensable,

needful or essential. It was held that unless the Government

was satisfied "beyond reasonable doubt" that the laying of the

pipeline was indispensable for the better management of the

wildlife, no permission could be granted under Section 29. The

High Court found that it could not be said that the laying of

crude oil pipeline was necessary or indispensable for the

purpose of improvement and better management of the wildlife.

The reports given by the Institute of Oceanography and NEERI

were held not to be binding on the Court. It was further

held that neither of the expert bodies had reported that the

laying of the crude pipeline in the sanctuary area was

necessary for the better health, improvement and management

of the wildlife therein. The High Court was also of the view that

it was not open to the Executive to interfere with the power of

the Legislature under Section 26A(3) by granting permission to

lay pipelines thus "directly or indirectly" affecting the alteration

of the boundaries of the sanctuary. Summing up, the High

Court's view was that the State Government can accord

permission under Section 29 of the Wild Life (Protection) Act

only if it is necessary for improvement and better management

of wild life and since the laying of pipeline through the

sanctuary was not for the improvement and better management

of the wild life no permit could be granted under Section 29.

The appellant's contention is that Section 29 requires the

satisfaction of the State Government as a pre-requisite for a

grant of permit by the Chief Conservator only in respect of the

destruction, exploitation or removal of any wildlife from a

sanctuary and not in respect of the destruction or damage of

the habitat of any wild animal or deprivation of any wildlife of its

habitat within such sanctuary. Even in respect of the first class

of cases, according to the appellant, the State Government

could grant a permit if in the facts of a given case, the damage

or destruction to the wildlife would result in the improvement

and better management of wildlife.

According to the State Government, which has supported

the appellant, the High Court had misconstrued Section 29 of

the WPA to restrain the State Government from granting any

more permits for laying down any pipelines in any part of the

Sanctuary or the National Park. According to the State

Government, if Section 29 envisaged a total prohibition of any

development in an ecologically sensitive area then the

legislation would have simply said in clear words "no

permission would ever be granted" but when the Section itself

stipulates that permission can be granted subject to certain

conditions, the State Government has a right to grant such

permission subject to forming the requisite satisfaction.

According to the State Government, research has shown that

"subsequent to the laying of pipelines in connection with the

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project of GSFC that even after laying of the pipeline with

attendant care, the area which was earlier devoid of marine life,

living coral and mangroves has improved in marine biota, with

regeneration of coral".

BORL has criticised the decision of the High Court on the

additional ground that the Division Bench had ignored an earlier

decision of the same High Court relating to Reliance Petroleum

Limited as well as the decision of the High Court on litigation

filed by the Samiti against BORL. The earlier decisions had

construed S. 29 of the WPA as contended by the appellant and

this Court had rejected the Special Leave Petitions against

those decisions.

The Halar Utkarsh Samiti, one of the initiators of the

public interest litigation in respect of the laying of the pipelines

before the High Court and who is now a respondent before us

(referred to hereafter as 'the Samiti') has submitted that the

prohibition under Section 29 puts a complete ban on

destruction, exploitation, removal of any wildlife from a

sanctuary unless sanction is accorded by a permit issued by

the Chief Wildlife Warden. The Chief Wildlife Warden does not

have an absolute discretion to grant such permits and his

power is subject to being authorised by the State Government

in this behalf and only if the State Government is satisfied that

the destruction, exploitation and removal of the wildlife is

necessary for the improvement and better management of the

wildlife in that sanctuary. It is also submitted by the Samiti that if

permission were granted under Section 29 to the laying of

pipelines, this would defeat the mandate of Sections 26-A(3)

and 35(5) of the WPA since it would amount to an alteration of

the area of the sanctuary or national park which was

impermissible except by means of a resolution passed by the

State Legislature.

The Jan Sangharsh Manch, the respondent No.1 in one

of the appeals and also an initiator of public interest litigation

before the Gujarat High Court against BORL (referred to

hereinafter as the Manch ), has submitted that the Marine Park

in Jamnagar was the first of its kind in India and housed diverse

eco-systems with a variety of flora and fauna including rare

species of both. It was submitted that neither Section 29 nor

Section 35(6) admit of a situation where the permitted activity

would involve severe damage to the wildlife, forest and marine

environment. Examples of such "necessary" destruction etc. of

wildlife/forest would be the cutting of trees to prevent the

spread of forest fires or an infestation or the culling of animals

or weed eradication. It is pointed out that such measures

originate from the Chief Wildlife Warden himself and were only

for the purpose of enhancing the wildlife and its habitat. Even

this power was subject to check by the State Government. It is

pointed out that there was a distinction between the provisions

of the WPA and the FCA. Whereas under the latter Act a

situation could arise when the Central Government would have

to balance the conflicting interests of development and ecology

and grant permission to use forests for non forest purposes,

under the WPA there is no question of any such balancing. No

non-forest activity is permitted at all as long as the area

continues to be part of a park or sanctuary and until the State

Legislature denotifies the affected area in the manner

prescribed under Section 26A(3) for sanctuaries and under

Section 35(5) for national parks. Our attention was drawn to

the provisions of the WPA particularly Sections 35(4) and 35(7)

which completely prohibit any non-forest activity within the

national park where the prohibition was more stringent than the

prohibition in respect of sanctuaries under Section 24(2)(1) and

33(a). Given the nature of the prohibition, it is submitted that it

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was inconceivable that the laying and maintenance of pipelines

could at all be permitted in a national park. The final

submission was that unless the prohibition was considered to

be absolute with regard to parks, it would lead to the absurd

result that permission from the Central Government was

necessary to use a forest for non-forest purposes but a State

Government's satisfaction would be enough in respect of

sanctuaries in national parks where the statutory requirement

was more stringent and the ecology more fragile.

As already noted, the High Court held that the appellant

could not be allowed to lay its pipeline because, unlike BORL,

the permission had not till then been accorded to the appellant

by the State Government. We could have allowed these

appeals on the simple ground that the High Court should not

have decided the issue whether the appellant had in fact been

granted permission under the WPA, without issuing any notice

to the appellant or giving it any opportunity to be heard. This

was the very ground which persuaded this Court to set aside

the decision of the Calcutta High Court in Iskcon & Anr. v.

Nanigopal Ghosh & others [(2000) 10 SCC 595], a public

interest litigation, and remand the matter back to the High Court

for redisposal after giving an opportunity of being heard to the

affected parties. However, we do not propose to follow the

same course of action as the matter has been argued on merits

at length, and given the nature of the stakes involved, brooks

no further delay.

The pivotal issue, as we have already noticed, is the

interpretation of Section 29 of the WPA. In our opinion this must

be done keeping in mind the Stockholm Declaration of 1972

which has been described as the "Magna-Carta of our

environment". Indeed in the wake of the Stockholm Declaration

in 1972, as far as this country is concerned, provisions to

protect the environment were incorporated in the Constitution

by an amendment in 1976. Article 48A of the Constitution now

provides that the "State shall endeavour to protect and improve

the environment and to safeguard the forests and wildlife of the

country". It is also now one of the fundamental duties of every

citizen of the country under Article 51A (g) "to protect and

improve the natural environment including forests, lakes, rivers

and wildlife and to have compassion for living creatures".

Certain principles were enunciated in the Stockholm

Declaration giving broad parameters and guidelines for the

purposes of sustaining humanity and its environment. Of these

parameters, a few principles are extracted which are of

relevance to the present debate. Principle 2 provides that the

natural resources of the earth including the air, water, land,

flora and fauna especially representative samples of natural

eco-systems must be safeguarded for the benefit of present

and future generations through careful planning and

management as appropriate. In the same vein, the 4th principle

says "man has special responsibility to safeguard and wisely

manage the heritage of wild life and its habitat which are now

gravely imperiled by a combination of adverse factors. Nature

conservation including wild life must, therefore, receive

importance in planning for economic developments". These

two principles highlight the need to factor in considerations of

the environment while providing for economic development.

The need for economic development has been dealt with in

Principle 8 where it is said that "economic and social

development is essential for ensuring a favourable living and

working environment for man and for creating conditions on

earth that are necessary for improvement of the quality of life".

The importance of maintaining a balance between economic

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development on the one hand and environment protection on

the other is again emphasized in Principle 11 which says "The

environmental policies of all States should enhance and not

adversely affect the present or future development potential of

developing countries nor should they hamper the attainment of

better living conditions for all;"

This, therefore, is the aim - namely to balance economic

and social needs on the one hand with environmental

considerations on the other. But in a sense all development is

an environmental threat. Indeed, the very existence of

humanity and the rapid increase in the population together with

consequential demands to sustain the population has resulted

in the concreting of open lands, cutting down of forests, the

filling up of lakes and pollution of water resources and the very

air which we breathe. However there need not necessarily be a

deadlock between development on the one hand and the

environment on the other. The objective of all laws on

environment should be to create harmony between the two

since neither one can be sacrificed at the altar of the other.

This view was also taken by this Court in Indian Council for

Enviro-Legal Action v. Union of India (1996) 5 SCC 281,

296 where it was said:

"while economic development should not be

allowed to take place at the cost of ecology or by

causing wide spread environment destruction and

violation, at the same time the necessity to preserve

ecology and environment should not hamper

economic and other developments. Both

development and environment must go hand in

hand, in other words, there should not be

development at the cost of environment and vice

versa but there should be development while taking

due care and ensuring the protection of

environment".

Section 29 must be construed with this background in

mind. The section has been quoted verbatim earlier. Analysed

it provides for three prohibitions: (a) destruction, exploitation or

removal of any wild life from a sanctuary; (b) destruction or

damage to the habitat of any wildlife; and (c) deprivation of any

wild animal of its habitat within such sanctuary. Prohibition '(a)'

is concerned with wild life and its protection. Wild life, which

includes any animal, bees, butterflies, crustacea, fish and

moths and aquatic or land vegetation which form part of any

habitat under sub-section (37) of Section 2, cannot be

destroyed, removed or exploited.

Prohibitions '(b) & (c)' relate to the habitat of 'wild

animals', The word "habitat" has been defined in section 2 (15)

as including "land, water or vegetation which is the natural

home of any wild animal". Therefore while some habitats may

fall within the definition of wild life, namely vegetation, habitats

which do not consist of vegetation would not. The difference in

the definition is of significance and reflects the varying

standards of protection afforded under the provisions of the

WPA. The protection afforded to wild life is more rigorous, but

in no case is the prohibition absolute in the sense that the

prohibited activities may not be allowed under any

circumstances whatsoever. Thus wild life may be destroyed,

exploited or removed from a sanctuary under and in

accordance with a permit granted by the Chief Wild Life

Warden. Similarly, the habitat of the wild animals within the

sanctuary may be destroyed or damaged and a wild animal can

be deprived of its habitat within such sanctuary under and in

accordance with a permit granted by the Chief Wild Life

Warden.

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The power of the Chief Wild Life Warden to grant a permit

is generally controlled under Section 4(2) which requires him to

perform his duties and exercise his powers under the directions

of the State Government. But the State Government is itself

statutorily restrained from directing the grant of a permit in

respect of the destruction, exploitation or removal of wild life

from the sanctuary unless it is satisfied that "such destruction,

exploitation or removal \005. Is necessary for the improvement

and better management of wild life therein". The phrase does

not, as has been rightly contended by the appellant, relate to

prohibitions (b) and ( c ) The particular satisfaction regarding

betterment of wild life is a precondition to be fulfilled only when

there is destruction, exploitation or removal of wild life

prohibited under (a). Plainly stated - when wild life is to be

bettered, its destruction, exploitation or removal may be

permitted. The example of 'culling' given by the Manch is apt.

To destroy means to deprive of life, kill, wipe out or

annihilate . In other words Section 29 bars anyone from

completely, irreparably and irreversibly putting an end to wild

life or to the habitat in a sanctuary. The word "removal" would

have a similar connotation. However "exploitation" or using the

wild life for any purpose, although it may not lead to extinction

of wild life, or "damage" which may not cause any irreparable

injury to the habitat, are forbidden nevertheless. It is necessary

to note at this stage, that there is no allegation in the present

case that the proposed activity will remove or exploit wild life

within the sanctuary or national park.

In view of the plain language of the statute, we are not

prepared to accept the submission on behalf of the private

respondents that permits allowing activities relating to the

habitat and covered by '(b) & (c)' also require the State

Government to come to the conclusion that the proposed

activities should result in the betterment of wild life before it can

be allowed. This is not to say that permits can ever be given

indiscriminately. The State must, while directing the grant of a

permit in any case, see that the habitat of the wild life is at least

sustained and that the damage to the habitat does not result in

the destruction of the wild life. That is the underlying

assumption and is the implicit major premise which is contained

in the definition of the word "sanctuary" in Section 2(26) and the

declaration under Section 18 of the WPA - that it is an area

which is of particular ecological, faunal, floral,

geomorphological, natural or zoological significance which is

demarcated for protecting, propagating or developing wild life.

The next question \027 is whether it can be stated that the

laying of pipelines through a sanctuary necessarily results in

the destruction of the wild life. That is - is it an activity falling

under prohibition (a )? It would be instructive to compare the

legal position with those obtaining in other countries. In

England, for example, there is no absolute prohibition on laying

pipelines. The laying of pipelines across the continent shelf is

regulated under the Oil & Gas (Enterprise) Act, 1982 and the

Petroleum and Sub-Marine Pipelines Act, 1975. Authorisation

may be given by the State for laying of pipelines subject to the

Government being satisfied that the route, design and the

capacity of the pipelines do not interfere with the sustainable

development of the environment. The authorisation may

contain further stipulations which the applicant has to abide by.

As far as laying of pipelines across the country is concerned,

this is covered by the Pipelines Act, 1962 which provides for

transporting materials other than the air, water, steam or water

vapour. Apparently "even though there is now a network of oil

& gas pipelines nation wide, this legislation seems to have been

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generally uncontroversial in practice despite the fact that

pipelines run through many scenic areas" . The CRZ

notifications quoted earlier issued under the EPA in 1991 and

2001 clearly allowed the laying of pipelines across ecologically

sensitive areas such as national parks/marine parks and

sanctuaries. The laying of pipelines is one of the exceptions to

the general bar against any construction in CRZ-1 areas.

It cannot therefore be said, as the High Court seems to

have held, that the invariable consequence of laying pipelines

through ecologically sensitive areas has been the destruction or

removal of the wild life. It would ultimately be a question of fact

to be determined by experts in each case. We will have the

occasion to consider the opinion of the expert bodies on this

when we take up the facts of the appellant's case. Suffice it to

say at this stage that there is no a priori presumption of

destruction of wild life in the laying of pipelines. Cases of oil

spills have undoubtedly been ecologically disastrous and have

drawn the attention of the world but our attention was not drawn

to any instance of leakage resulting from the laying of pipelines.

These observations however are not meant and should

not be read as a general licence to lay a net work of pipelines

across sanctuaries and natural parks. Every application must

be dealt with on its own merits keeping in view the need to

sustain the environment. Before according its approval to the

grant of any permit under Sections 29 or 35, the State

Government should consider whether the damage in respect of

the proposed activity is reversible or not. If it is irreversible it

amounts to destruction and no permission may be granted

unless there is positive proof of the betterment of the lot of the

wild life. Where activities are covered by '(a)', mitigation of

damages would not do. There must be betterment of the wildlife

by the proposed activity. Mitigation of damages would be

relevant to proposed projects under '(b) and ( c )'.

For this purpose the State Government must ask for and

obtain an environmental impact report from expert bodies. The

applicant must also come forward with an environmental

management plan which must be cleared by the experts. To

prevent possible future damage, the State Government must

also be satisfied that the damage which may be caused is not

irreversible and the applicant should be prepared and must

sufficiently secure the cost of reversing any damage which

might be caused. The State Government should also have in

place the necessary infrastructure to maintain periodical

surveys and enforce the stipulations subject to which the permit

may be granted. In future the State Government should, before

granting the approval, also call upon the applicant to publish its

proposal so that public, particularly those who are likely to be

affected, are made aware of the proposed action through the

sanctuary or natural park. This will ensure transparency in the

process and at least safeguard against a decision of the State

Government based solely upon narrow political objectives.

Besides the citizens who have been made responsible to

protect the environment have a right to know. There is also a

strong link between Article 21 and the right to know particularly

where "secret Government decisions may affect health, life and

livelihood" . The role of voluntary organisations as protective

watch-dogs to see that there is no unrestrained and

unregulated development, cannot be over-emphasized.

Voluntary organisations may ofcourse be a front for competitive

interests but they cannot all be tarred with the same brush. Our

jurisprudence is replete with instances where voluntary

organisations have championed the cause of conservation and

have been responsible for creating an awareness of the

necessity to preserve the environment so that the earth as we

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know it and humanity may survive.

Once the State Government has taken all precautions to

ensure that the impact on the environment is transient and

minimal, a court will not substitute its own assessment in place

of the opinion of persons who are specialists and who may

have decided the question with objectivity and ability. [See:

Shri Sachidanand Pandey v. The State of West Bengal &

ors. (AIR 1987 SC 1109, 1114-15)]. Courts cannot be asked to

assess the environmental impact of the pipelines on the wild life

but can at least oversee that those with established credentials

and who have the requisite expertise have been consulted and

that their recommendations have been abided by, by the State

Government. If it is found that the recommendations have not

been so abided by, the mere fact that large economic costs are

involved should not deter the Courts from barring and if

necessary undoing the development.

This then is the law in the background of which the facts

of the appellants case are to be considered in answer to the

second question formulated at the outset. Was permission to

lay the pipelines in fact granted and if so should it have been

granted to the appellant by the State Government under the

WPA ?

It is the appellant's case and the records show that it was

encouraged by the State Government to set up a major venture

at Vadinar in Jamnagar District of Gujarat as a 100% export

oriented unit for refining of petroleum products with a capacity

of 9 Million Tons per annum at an estimated project cost of

Rs.1900 crores in collaboration with M/s Bechtel Inc., USA. By

letter dated 11th April, 1990, the then Chief Minister of the State

of Gujarat wrote to the Ministry of Planning, Government of

India, stating that the project was expected to generate foreign

exchange earnings of over Rs.3000 crores within a period of 5

years and that it was expected to be set up in 36 months. It

was anticipated by the State Government that the project would

"completely change the face of the Vadinar area, which is

traditionally a backward area of Gujarat offering direct and

indirect employment and will encourage growth of various other

ancillary industries in that region". The letter further said that

the project had the full support of the Government of Gujarat

and it was being accorded highest priority and that the

appellant's proposal for setting up the oil refinery should be

cleared by the Government of India urgently. The clearance for

setting up the oil refinery was then granted by the Government

of India.

In January, 1993, the appellant applied to the Gujarat

Pollution Control Board (GPCB) for grant of a No Objection

Certificate to establish the refinery for manufacturing several

kinds of petroleum products. By letter dated 15th February,

1993, the GPCB stated that it had no objection from the

Environmental Pollution potential point of view in the setting up

of the refinery project subject to certain environmental pollution

control measures to be taken by the appellant. The appellant's

proposal regarding the environmental pollution control system

was approved by the GPCB on 17th April,1993 and a Site

Clearance Certificate was issued on that date.

The appellant also submitted an application to the

Conservator of Forests for right of way over 15.49 hectares of

forest land for laying submarine crude oil and discharge

pipelines for its refinery at Vadinar. Undisputedly the 15.49

hectares of forest land applied for includes 8.79 hectares of the

Jamnagar Marine National Park and Sanctuary. Therefore

permission under Section 2 of the FCA was required for the

entire 15.49 hectares. At the same time, permission of the

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State Government was required under the WPA for the 8.79

hectares. It is the appellant's case and we have also found

that both these permissions were independently granted by the

Central Government as far as the 15.49 hectares were

concerned under Section 2 of the FCA, and by the State

Government under Sections 29 and 33 of the WPA in respect of

the 8.79 hectares within the Marine National Park and

Sanctuary.

The sequence of events for grant of permission by the

Central Government under Section 2 of the FCA was as

follows:

The Conservator of Forests submitted a proposal to the

Chief Conservator of Forests (WL) by letter dated 2nd June,

1995 along with an application in the prescribed form seeking

prior approval from the Central Government under Section 2 of

the FCA, the project profile, a detailed map showing the

required facilities, details of flora and fauna, details of

vegetation, scheme for compensatory afforestation, certificate

regarding suitability of non-forest land for compensatory

afforestation, NOC from Gujarat Pollution Control Board and

the Site clearance certificate, Ministry of Environment &

Forests' (Government of India) letter regarding Environmental

Clearance; and a Note on Environmental Management and

Conservation. The application with its enclosures together with

the recommendation of the State Government that 15.49

hectares of forest land be made available to the appellant, was

forwarded to the Central Government by the Central Chief

Conservator of Forests on 3rd February, 1997. Upon receipt of

the proposal of the State Government, the Central Government

constituted a team for joint inspection of the area. The report of

the joint inspection report was that the proposed activity of the

appellant would not have much ramification from the forestry

point of view and the damage would only be temporary in

nature in a localized area during the construction phase.

On 27th November, 1997, the Ministry of Environment and

Forests, Government of India accorded the approval in

accordance with Section 2 of the FCA. This approval was

subject to fulfillment of twenty conditions, two of which were

required to be fulfilled before formal approval would be issued

under Section 2 of the Forest (Conversation) Act, 1980. The

two conditions are:

"(i) immediate action should be taken for transfer

and mutation of equivalent non-forest land in favour

of Forest Department;

(ii) the user agency will transfer the cost of

compensatory afforestation (revised as on date to

incorporate existing wage structure) over equivalent

non-forest land in favour of Forest Department."

The other 18 conditions are to be complied with during

the course of execution and working of the project. The State

Government's Forest & Environment Department then certified

the fulfillment of the two pre-conditions to the Ministry of

Environment and Forests, Government of India by its letter

dated 8th February, 1999. By letter dated 8th December, 1999,

after a "careful consideration of the proposal of the State

Government", the Central Government conveyed its approval

under Section 2 of the FCA for diversion of 15.49 hectare of

forest land for laying pipe line, construction of jetty and off

shore facility and widening/extension of bund road/s by the

appellant. It was however made clear that the clearance was

given subject to grant of permission by the State Government to

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carry out the proposed activity in the National Park and

Sanctuary under the WPA.

The factual run up to the grant of permission under the

WPA was as follows :

The aspect of the appellant's application relating to the

Marine National Park and Sanctuary included the setting up of

a Single Buoy Mooring / Crude Oil Terminal (COT)/Jetty/laying

the Pipeline (ROW). For the purpose of its application the

appellant sought the expert opinion of the National Institute of

Oceanography as to how the project could be completed

without damaging the wild life or the ecological system therein.

On 5th September, 1995, the National Institute of

Oceanography (NIO) wrote a letter to the appellant in

connection with its proposal relating to the site selection for the

Single Buoy Mooring, Jetty and routing of submarine pipelines

etc. In the letter, NIO suggested that disturbance to the

ecology could be kept to a minimum in an environmentally

sensitive area such as the Gulf of Kachch by laying the crude

oil pipelines in the "intertidal area in the available corridor of

IOC". This selection of the site was made by NIO considering

various environmentally relevant factors. What is of significance

is that the NIO used the word "disturbance" and not

"destruction" of the ecology.

By letter dated 8th September, 1995, the Government of

Gujarat, Forest & Environment Department wrote to the Ministry

of Environment & Forest, Government of India stating that the

Forest & Environment Department of Gujarat had agreed, in

principle, to allow the appellant's proposal to install

SBM/COT/Jetty and connected pipeline in the National Marine

Park and Sanctuary area at Vadinar "on the terms and

conditions to be decided in due course by the Government of

Gujarat". Copies of the letter were forwarded to the appellant,

and the Conservator of Forests and Chief Conservator of

Forests (Wild Life).

On 5th August, 1997, the Conservator of Forests,

Jamnagar wrote to the Chief Conservator of Forests ( Wild Life)

who was also the Chief Wild Life Warden, stating that the total

forest area proposed for diversion by the appellant was 15.50

hectare out of which 8.79 hectare falls in the Marine National

Park and Sanctuary. It was submitted that permission of the

Chief Wildlife Warden of the State was required under Sections

29 and 33 of the Wild Life (Protection) Act, 1972 and that it was

necessary to obtain such permission prior to the final approval

from the Government of India.

On 18th September, 1997, the Conservator of Forests

wrote a second letter to the Chief Conservator of Forests (WL)/

Chief Wild Life Warden giving details of the project

requirements of the appellant's refinery. The possible pollution

implications were also described. As IOC had already been

given permission for similar activities in the same area and

Kandla Port Trust already had "similar type of facilities" it was

recommended to give permission to the appellant. However,

before granting permission, the stipulation of 8 pre-conditions

were suggested. It was further stated that if the suggested

conditions were complied with, the environmental damage to

the fragile marine ecosystem would be reduced to a

considerable extent and that the project of the appellant "may

be granted permission for Right of way to install and establish

the required marine and on-shore facilities like laying of

pipelines product jetty RoRo/LoLo jetty required for their

petroleum refinery".

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The Principal Chief Conservator of Forests (WL)/Chief

Wild Life Warden forwarded the right of way proposal of the

appellant to the State Government substantially reiterating the

stand taken by the Conservator of Forests in his letter on 18th

September, 1997 and stating in addition that the matter may be

examined under the provisions of the WPA and appropriate

orders passed subject to the compliance of various conditions

including a mitigation plan "to reduce likely effect on wildlife"

and a disaster management plan both of which were to be

approved by the State Government. It was also stated that the

Government had in 1997 given similar permission to the

refinery of M/s Reliance Petroleum Ltd.

On the basis of the letter dated 30th September, 1997 of

the Principal Chief Conservator of Forests, on 16th October,

1997 the State Government conveyed its permission under

section 29 of the WPA to the appellant's proposal of Right of

way through the National Park and Sanctuary subject to the

appellant's compliance with various terms and conditions

including (a) the conditions as suggested by the Conservator of

Forests in his letter dated 18th September, 1997; (b) the

measures suggested by NIO; (c) the measures suggested by

the Principal Chief Conservator of Forests; (d) any further

measures that may be imposed during the

construction/operation of the project; (e) the same conditions

and environmental safeguards which had been imposed on

M/s Reliance Industries Ltd. by the Government of India; (f) the

conditions prescribed by the Chief Conservator of Forests in

connection with the approval under the Forest (Conservation)

Act; and (g) any further condition that may be imposed in the

interest of the preservation and protection of the flora and fauna

of the area. The permission is otherwise in categorical terms.

However, in the last paragraph of the letter, it is stated that

"since the permission sought for the MNP/Sanctuary area also

forms the part of the forest land for which a proposal seeking

prior approval under Forest (Conservation) Act, 1980 is under

consideration of Government of India, therefore, this permission

is subject to the FCA clearance and will get effect after the

permission is accorded under FCA from Government of India".

This permission was conveyed to the appellant by the

Conservator of Forests under cover of his letter dated 18th

October, 1997. The permission was however restricted to the

Kandla Port Trust Area. The Kandla Port Trust granted

permission to the appellant to install "marine facilities" on 10th

October, 1997.

One would have thought that the clearance under the

WPA was completed by this. In fact, according to the appellant,

they had invested Rs.5,388.41 Crores in setting up the project

on 4500 acres of land in Jamnagar District. The labour

colonies had been built up for 10000 labourers and other

constructions were well under way. It has also claimed that for

the purposes of the project the appellant has obtained finances

inter alia from IDBI, ICICI, Nationalised Banks, IFCI, LIC and

GIC. However on 30th January, 1999 the Chief Conservator of

Forests wrote a letter to the State Government stating that the

appellant was yet to be granted a "specific order" under

sections 29 and 33 of the WPA. The reason for this apparent

contrary stance is the developments which had taken place

consequent upon public interest litigation initiated against

Reliance Petrochem Limited ( RPL) also relating to the laying of

pipelines across the National Park and Sanctuary. The

challenge had been rejected by the Gujarat High Court . While

the Special Leave Petition from the decision was pending

before this Court, on 30th November, 1998, the Government of

Gujarat authorised the Chief Conservator of Forests and Chief

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Wild Life Warden to issue permission to RPL to lay the

pipelines. We have already held that such authorisation of the

Chief Wild Life Warden is required only in cases of destruction,

exploitation or removal of wild life ( i.e. prohibition ( a ) ) after

the State Government has formed the requisite satisfaction that

such activity is for improvement and better management of wild

life. In RPL's case the State Government was satisfied that the

laying of the pipelines may result in damage which was

temporary and reversible but "in the light of subsequent

measures to be taken by the project proponents, will help in

improvement and better management of Marine Sanctuary and

National Park as well as of the wild life therein".

There has been no finding in the appellant's case that the

proposed activity would fall under prohibition ( a ). Assuming it

does, the State Government has by the letter dated

16th October, 1997 in substance authorized the grant of

permission and the absence of a formal order, as was issued in

RPL's case, is an irregularity which will not invalidate the

permission already granted. The Chief Wild Life Warden's

permission after authorisation would have to be in accordance

with the decision of the State Government. The legislative intent

of Sections 29 and 35 is that the State Government itself should

apply its mind and form the requisite satisfaction. Once the

State Government has exercised this power, it is not open to

the Chief Wild Life Warden to decide to the contrary. This is

particularly so when, as in this case, the State Government's

permission included the suggestions and was based on the

recommendation of the Chief Wild Life Warden/Chief

Conservator of Forests.

At this stage, litigation in the form of a public interest

litigation was initiated by the respondent no.1 alleging illegal

construction in the National Park or Sanctuary by the appellant.

The State Government filed an affidavit claiming that no

permission had in fact been given to the appellant under the

WPA for laying a pipeline in the National Park or Sanctuary.

Penal action was initiated against the appellant. The writ

petition was dismissed on the undertaking by the appellant that

it would not carry out construction without clearance under the

WPA and the other forest laws.

A Public Interest Litigation was then initiated in

connection with the laying of pipelines by BORL. The writ

petition was rejected as premature as the Chief Conservator of

Forests had not yet granted permission to BORL to lay the

pipeline. After such permission was granted to BORL, another

writ petition was filed against grant of the permission to BORL.

The appellant was not a party to the last two proceedings. The

last writ petition was disposed of by the impugned judgment.

In the meanwhile, the State Government by letter dated

5th July, 2000 recommended the appellant's case to the Central

Government for approval under the CRZ notification. Such

approval was granted to the appellant by the Ministry of

Environment and Forests, Government of India on 3.11.2000.

On 4.11.2000, the appellant wrote to the State

Government that since all clearances had been received it

should be permitted to set up its project. However, the

Conservator of Forests wrote two letters dated 20.11.2000 and

30.11.2000 to the appellant stating that the appellant had not

been granted approval under the Wild Life (Protection) Act as

had been found by the High Court in the impugned decision.

The appellant then filed an application for review of the

impugned decision substantially stating the facts we have

recorded earlier. The review application was rejected by the

High Court on the ground that the grievance was based on

"some factual controversy between the appellant and the State

of Gujarat" and was beyond the scope of review.

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The High Court erred in rejecting the application for

review. It was an opportunity for the High Court to rectify the

error made earlier in deciding against the appellant without

hearing it. We are also handicapped by the absence of any

discussion by the High Court on the factual controversy in the

appellant's case. This has resulted in an unnecessarily arduous

exercise and an entirely avoidable delay.

Given the prolonged and in depth scrutiny of the possible

damage which could be caused by the laying of the pipelines by

the appellant and the stringent conditions imposed to obviate

such possible damage, and the opinion of the expert bodies, we

see no reason to interfere with the grant of permission under

the WPA. On the other hand there has been no study of any

recognised expert body that the environmental impact of laying

the pipeline would be such as would lead to irreversible

damage of the habitat or the destruction of wild life. In the

absence of this, the High Court erred in rejecting the reports of

the experts who had opined in favour of BORL and the

appellant. The interpretation of the provisions of Section 29 and

35 by the High Court was also, apart from being erroneous,

contrary to the earlier decision of the High Court i.e. Gujarat

Navodaya Mandal v. State (supra ). The appellant has

accepted the suggestion of NIO and is laying the pipeline along

the pipeline installed by IOC. Apart from the IOC, RPL which

had applied for laying its pipeline at the same time as the

appellant has been granted permission to do so subject to

certain terms and conditions. The same conditions have been

imposed on the appellant. There was, in the circumstances, no

question of denotifying any area under Section 26A(3).

It is clear from the evidence on record that the State

Government and the appellant have taken precautions after

consulting experts to see that the pipeline route causes minimal

and reversible damage to the wild life. The permissions given

by the Central Government under the FCA and EPA are on the

basis of the laying of the pipeline as proposed. There is no

challenge to these permissions. A change in the lay out would

set these permissions at naught.

As permission under the WPA had, in substance, been

granted by the State letter dated 16th October, 1997 (this is also

the stand of the State Government before us) all that can

reasonably now be required is a direction to issue formal

authorisation by the State Government so as to regularize the

de facto permission.

For all these reasons the impugned decision of the High

Court must be set aside. But before disposing of the appeals a

further fact which took place during the pendency of these

matters needs to be noted.

On 11th July, 2001, corals were included in Schedule I of

the WPA. Because of the possible impact on the provisions of

the CRZ notifications under the EPA as well as on the FCA the

State Government sought a clarification from the Central

Government whether fresh permission was required under the

EPA. By letter dated 12th March, 2003, the Central Government

wrote to the State clarifying that the approvals already granted

would not be affected by the amendment under the WPA and

that the appellant's project could proceed subject to the State

Government's surveying the area for determining the density of

corals and preparing a management plan which should include

relocation of the corals coming in the way of the proposed

pipeline. This survey is required to be done through an

institution having expertise in the field and the funds for

relocation and management of the corals should be borne by

the appellant. The appellant has agreed to these conditions.

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However, the Central Government has also said that "in future

the State Government should not consider any fresh proposal

to allow laying of pipelines through this area and all other user

agencies should be diverted to some other port in Gujarat".

As far as the appellant is concerned however the way is

now clear to proceed with the project in accordance with the

permissions granted to it under the WPA, FCA and EPA. The

State Government will issue the authorization in the requisite

format under Sections 29 and 35 within a fortnight. We

therefore allow the appeals to the extent stated with no order as

to costs.

SLP (C) No.22137 OF 2001.

Leave granted.

In so far as this appeal involves issues of law which have

been decided in the above judgment, such issues stand

concluded. However, the matter is remanded back to the High

Court for determining whether there are, and if so to decide,

any outstanding factual controversies in accordance with the

observations in our judgment. The appeal is accordingly

disposed of with no order as to costs.

TRANSFER CASE (C) No.39 of 2001.

In view of our judgment delivered today in Essar Oil Ltd.

v. Halar Utkarsh Samiti & Ors., the transferred case is

remanded back to the High Court to decide the Special Civil

Application No.4779 of 2001 in accordance with our

judgment.