TMI Blog2004 (1) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctuary 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 simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. [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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tares 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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/Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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