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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.            

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2.      SLP (C) Nos.10008-11 of 2001

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 - 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

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notification specifying the limits of the areas which shall be  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.-No 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.- 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

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State Government or other authority for seeking the prior  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.  

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In these appeals there is no challenge to the grant of  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

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"subsequent to the laying of pipelines in connection with the  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

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

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The importance of maintaining a balance between economic  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

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Warden. 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 .... 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 - 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

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

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necessity to preserve the environment so that the earth as we  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

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

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given subject to grant of permission by the State Government to  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

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petroleum  refinery".    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

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Gujarat authorised the Chief Conservator of Forests and Chief  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

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of Gujarat" and was beyond the scope of review.   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

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the appellant.  The appellant has agreed to these conditions.    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.