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TMI Blog2004 (1) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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. X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etres 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;" 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny activity otherwise prohibited under those Acts may be proceeded with. 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words "no permission would ever be granted" but when the Section itself stipulates that permission can be granted subject to certain conditions, the State Government has a right to grant such permission subject to forming the requisite satisfaction. According to the State Government, research has shown that "subsequent to the laying of pipelines in connection with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-forest activity is permitted at all as long as the area continues to be part of a park or sanctuary and until the State Legislature denotifies the affected area in the manner prescribed under Section 26A(3) for sanctuaries and under Section 35(5) for national parks. Our attention was drawn to the provisions of the WPA particularly Sections 35(4) and 35(7) which completely prohibit any non-forest activity within the national park where the prohibition was more stringent than the prohibition in respect of sanctuaries under Section 24(2)(1) and 33(a). Given the nature of the prohibition, it is submitted that it 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 4th principle says "man has special responsibility to safeguard and wisely manage the heritage of wild life and its habitat which are now gravely imperiled by a combination of adverse factors. Nature conservation including wild life must, therefore, receive importance in planning for economic developments". These two principles highlight the need to factor in considerations of the environment while providing for economic development. The need for economic development has been dealt with in Principle 8 where it is said that "economic and social development is essential for ensuring a favourable living and working environment for man and for creating conditions on earth that are necessary for improvement of the quality of life". The importance of maintaining a balance between economic 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 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, habitats which do not consist of vegetation would not. The difference in the definition is of significance and reflects the varying standards of protection afforded under the provisions of the WPA. The protection afforded to wild life is more rigorous, but in no case is the prohibition absolute in the sense that the prohibited activities may not be allowed under any circumstances whatsoever. Thus wild life may be destroyed, exploited or removed from a sanctuary under and in accordance with a permit granted by the Chief Wild Life Warden. Similarly, the habitat of the wild animals within the sanctuary may be destroyed or damaged and a wild animal can be deprived of its habitat within such sanctuary under and in accordance with a permit granted by the Chief Wild Life Warden. 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether it can be stated that the laying of pipelines through a sanctuary necessarily results in the destruction of the wild life. That is - is it an activity falling under prohibition (a)? It would be instructive to compare the legal position with those obtaining in other countries. In England, for example, there is no absolute prohibition on laying pipelines. The laying of pipelines across the continent shelf is regulated under the Oil & Gas (Enterprise) Act, 1982 and the Petroleum and Sub-Marine Pipelines Act, 1975. Authorisation may be given by the State for laying of pipelines subject to the Government being satisfied that the route, design and the capacity of the pipelines do not interfere with the sustainable development of the environment. The authorisation may contain further stipulations which the applicant has to abide by. As far as laying of pipelines across the country is concerned, this is covered by the Pipelines Act, 1962 which provides for transporting materials other than the air, water, steam or water vapour. Apparently "even though there is now a network of oil & gas pipelines nation wide, this legislation seems to have been generally uncontroversial in prac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproval 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, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 ₹ 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 permitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence 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 Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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