2004 (1) TMI 692 - SC - Indian Laws

Interpretation of the provisions of statutes - Magna-Carta - Can pipelines carrying crude oil be permitted to go through the Marine National Park and Sanctuary and if so has Essar Oil Ltd. (appellant) in fact been so permitted? - HELD THAT - 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 . The power of the Chief Wild Life Warden to grant a permit is generally controlled u/s 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 . 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. Whether it can be stated that the laying of pipelines through a sanctuary necessarily results in the destruction of the wild life - 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 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 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. 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. 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. 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.

Summary

Issues Involved:
1. Interpretation of Section 29 of the Wild Life (Protection) Act, 1972.
2. Grant of permission to Essar Oil Ltd. for laying pipelines through the Marine National Park and Sanctuary.
3. Compliance with the Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986.

Summary:

Issue 1: Interpretation of Section 29 of the Wild Life (Protection) Act, 1972 (WPA)
The core issue in all appeals was the interpretation of Section 29 of the WPA. The section prohibits:
(a) Destruction, exploitation, or removal of any wildlife from a sanctuary.
(b) Destruction or damage to the habitat of any wildlife.
(c) Deprivation of any wild animal of its habitat within such sanctuary.
The High Court held that the State Government could only grant permission if it was necessary for the improvement and better management of wildlife. The Supreme Court, however, clarified that the State Government's satisfaction regarding the betterment of wildlife is a precondition only for prohibition (a) and not for (b) and (c). The Court emphasized the need to balance economic development with environmental protection, referencing the Stockholm Declaration of 1972.

Issue 2: Grant of Permission to Essar Oil Ltd.
Essar Oil Ltd. sought permission to lay pipelines through the Marine National Park and Sanctuary. The High Court had restrained the State Government from granting such permissions, interpreting Section 29 to mean that the laying of pipelines was not necessary for the better management of wildlife. The Supreme Court found that the High Court erred in its interpretation and that the State Government had, in substance, granted permission to Essar Oil Ltd. The Court directed the State Government to issue formal authorization to regularize the de facto permission.

Issue 3: Compliance with the Forest (Conservation) Act, 1980 (FCA) and the Environment (Protection) Act, 1986 (EPA)
The Supreme Court noted that the permissions under the FCA and EPA were independently granted by the Central Government. The appellant had complied with the conditions imposed under these statutes. The Court emphasized that clearance under each of the three statutes (WPA, FCA, EPA) is essential before any activity otherwise prohibited under those Acts may proceed. The Court found no reason to interfere with the grant of permission under the WPA, given the stringent conditions imposed to obviate possible damage and the opinion of expert bodies.

Conclusion:
The Supreme Court set aside the High Court's decision, allowing Essar Oil Ltd. to proceed with the project in accordance with the permissions granted under the WPA, FCA, and EPA. The State Government was directed to issue the authorization in the requisite format within a fortnight. The appeal involving issues of law was remanded back to the High Court to determine any outstanding factual controversies. The transferred case was also remanded back to the High Court to decide in accordance with the Supreme Court's judgment.