# ES SAR OIL LTD v. HALAR UTKARSH SAMITI AND ORS

- **Citation:** [2004] 1 S.C.R. 808
- **Court:** Supreme Court of India
- **Decided:** 2004
- **Case number:** Civil Appeal Nos. 352-353 of 2004
- **Bench:** Ruma Pal, B.N. Srikrishna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/es-sar-oil-ltd-v-halar-utkarsh-samiti-and-ors-19858
- **Pages:** 30

## Headnote

Wild life (Proleclion) Act, 1972--Sections 29 and 35(6)-Public Interest
litigation petitions before High Court challenging grant of permission by
C Stale Governmelll to oil companies for laying down pipelines through National
Park and Sanc/UGJ)' in violation of the Act-High Court allowing the pelitiunsCorrectness of-Held. satisfaction of State Government before granting permit
for beuerment uf wild life is required for des/rue/ion, exploilalion or removal
of an wild life and not for des/ruction or damaging the habitat of any wild
animal or depriving any wild animal of its habitat-However, permits cannot
D be given indiscriminale~y--Stale Government must see that the habitat of the
wild life is sustained and that the damage to the habitat does not result in the
des/ruclio11 of the wild life-There is nu a priori presumption of destruction
of wild life in the laying of piple/ines-On evidence, State Governmelll and
the oil companies have taken precautions afler consulting experts lo see that
the pipeline route causes minimal and reversible damages lo the wild lifeE llence, Court cannot intetfere and make its own assessment-Fores/
(Conservation) Act, 1980; Section 2-Environment (Prulec/ion) Act, 1986.
Three oil companies E, BORL and G sought to lay oil pipeline to
pump crud(! oil from a single huoy mooring in Gulf of Kutch across a
F portion of Jamnagar Marine National Park and Sanctuary to their
respective oil refineries. The respondents filed Public Interest Litigation
Writ Petitions before High Court challenging the grant of permission to
..,, •
the oil companies to lay oil pipeline across the National Park and
Sanctuary hy the State Government in violation to the provisions under
sections 29 and 35 of the Wild Life (Protectioni Act, 1972 (WPA). The
G High Court took the view that the laying down of oil pipelines through
the National Park and Sanctuary was not for the improvement and better
management of the wild life and held that no permission can be granted
by the State Government under section 29 of WPA. The High Court,
.ti i
however, held that BORL can proceed to lay down its oil pipelines since
H the permission has already been granted by the State Government. The
808
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI
809
High Court restrained the State Government from p;ranting any such A
permission to oil companies through National Park or Sanctuary. Hence
the appeals by the oil companies E, BORL and G and the State
Government. The Writ Petition of the respondents before High Court
was transferred to this Court.
Appellant-oil company E contended that section 29 of WPA requires B
the satisfaction of the State Government as a pre-requisite for grant of
permit by the Chief Conservator only in respect of 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.
The State Government, supporting the appellant-oil companies,
contended that section 29 of WPA does not envisage total prohibition of
any development in an ecologically sensitives area but only stipulates
that the permission can be granted subject to certain conditions.
Respondent-Writ Petitioners contended that the permission granted
c
D
to the oil companies under Section 29 of WPA for the laying of pipelines
would defeat the mandate of Sections 26A(3) and 35(5) of WP.A since it
would amount to an alteration of the area of the sanctuary or the national
park; that a non-forest activity is not permitted until the State Legislature E
de-notifies the affected area under Section 26A(3) ofWPA for sanctuaries
and under Section 35(5) of WPA for national parks; and that Sections
35(4) and 35(7) of WPA completely prohibits any non-forest activity
within the National Park which is more stringent than the prohibition in
respect of sanctuaries under Sections 24(2)(1) and 33(a) of WPA.
F
Disposing of the matters, the Court
HELD: I.

## Text

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A
B
ES SAR OIL LTD.
v.
HALAR UTKARSH SAMITI AND ORS.
JANUARY !9, 2004
[RUMA PAL AND B.N. SRIKRISHNA, JJ.]
Wild life (Proleclion) Act, 1972--Sections 29 and 35(6)-Public Interest
litigation petitions before High Court challenging grant of permission by
C Stale Governmelll to oil companies for laying down pipelines through National
Park and Sanc/UGJ)' in violation of the Act-High Court allowing the pelitiunsCorrectness of-Held. satisfaction of State Government before granting permit
for beuerment uf wild life is required for des/rue/ion, exploilalion or removal
of an wild life and not for des/ruction or damaging the habitat of any wild
animal or depriving any wild animal of its habitat-However, permits cannot
D be given indiscriminale~y--Stale Government must see that the habitat of the
wild life is sustained and that the damage to the habitat does not result in the
des/ruclio11 of the wild life-There is nu a priori presumption of destruction
of wild life in the laying of piple/ines-On evidence, State Governmelll and
the oil companies have taken precautions afler consulting experts lo see that
the pipeline route causes minimal and reversible damages lo the wild lifeE llence, Court cannot intetfere and make its own assessment-Fores/
(Conservation) Act, 1980; Section 2-Environment (Prulec/ion) Act, 1986.
Three oil companies E, BORL and G sought to lay oil pipeline to
pump crud(! oil from a single huoy mooring in Gulf of Kutch across a
F portion of Jamnagar Marine National Park and Sanctuary to their
respective oil refineries. The respondents filed Public Interest Litigation
Writ Petitions before High Court challenging the grant of permission to
..,, •
the oil companies to lay oil pipeline across the National Park and
Sanctuary hy the State Government in violation to the provisions under
sections 29 and 35 of the Wild Life (Protectioni Act, 1972 (WPA). The
G High Court took the view that the laying down of oil pipelines through
the National Park and Sanctuary was not for the improvement and better
management of the wild life and held that no permission can be granted
by the State Government under section 29 of WPA. The High Court,
.ti i
however, held that BORL can proceed to lay down its oil pipelines since
H the permission has already been granted by the State Government. The
808
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI
809
High Court restrained the State Government from p;ranting any such A
permission to oil companies through National Park or Sanctuary. Hence
the appeals by the oil companies E, BORL and G and the State
Government. The Writ Petition of the respondents before High Court
was transferred to this Court.
Appellant-oil company E contended that section 29 of WPA requires B
the satisfaction of the State Government as a pre-requisite for grant of
permit by the Chief Conservator only in respect of 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.
The State Government, supporting the appellant-oil companies,
contended that section 29 of WPA does not envisage total prohibition of
any development in an ecologically sensitives area but only stipulates
that the permission can be granted subject to certain conditions.
Respondent-Writ Petitioners contended that the permission granted
c
D
to the oil companies under Section 29 of WPA for the laying of pipelines
would defeat the mandate of Sections 26A(3) and 35(5) of WP.A since it
would amount to an alteration of the area of the sanctuary or the national
park; that a non-forest activity is not permitted until the State Legislature E
de-notifies the affected area under Section 26A(3) ofWPA for sanctuaries
and under Section 35(5) of WPA for national parks; and that Sections
35(4) and 35(7) of WPA completely prohibits any non-forest activity
within the National Park which is more stringent than the prohibition in
respect of sanctuaries under Sections 24(2)(1) and 33(a) of WPA.
F
Disposing of the matters, the Court
HELD: I.I. Section 29 of the Wild Life (Protection) Act, 1972 (WPA)
must be construed keeping in mind the Stockholm Declaration of 1972.
The section provides for three prohibitions: (a) destruction, exploitation G
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. The difference in the definition reflection
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 H
810
SUPREME COURT REPORTS
(2004] I S.C.R.
A may not be allowed under any circumstances whatsoever.
(824-F; 825-A, BJ
1.2. The power of the Chief Wild Life Warden to grant a permit is
generally controlled under Section 4(2) of WPA which requires him to
perform his duties and exercise his powers under the directions of the
B 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. It does not
C relate to (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). (825-D, E(
1.3. There is no allegation by respondents that the proposed activity
will remove or exploit wild life within the sanctuary or national park. In
D view of the plain language of the statute, it cannot be accepted that
permits allowing activities relating to the habitat and covered by
prohibitions '(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. But such permits cannot be given
E indiscriminately. The State must, while directing the grant of a permit in
any case, see that the habitat of the wild life is atleast 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 implict major premise
which is contained in the definition of the word "sanctuary" in Section
2(26) and the declaration under Section 18 of WPA. (826-A, B, q
F
2.1. It cannot be said 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. There is no apriori presumption of
G destruction of wild life in. the laying of pipelines. No instance of oil leakage
resulting from the laying of pipelines was brought to the notice of the
Court. These observation, 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
H according its approval to the grant of any permit under Sections 29 or 35
ESSAR OIL L T!J. v. HALAR UTKARSH SAMITI
811
of WPA, the State Government sliould consider whether the damage in A
respect of the proposal 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 B
would be relevant to proposed projects under '(b)' and (c)'. 1827-A-D]
2.2. The State Government must ask for and obtain an
environmental impact report from expert bodies. l'he applicant must
also come forward with an environmental management plan which must
be cleared by the experts. To prevent possible future damage, the State C
Government must also be satisfied that the damage which may be caused
is not irreversible and the applieant should be prepared and must
sufficiently secure the cost of reversing any damage which might be
"ca~sed. The State Government should also have in place the necessary
infrastructure to maintain periodical surveys and enforce the stipulations D
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 atleast safeguard against a decision of the State Government based E
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 of the Constitution of India
and the right to know particularly "where secret Government decisions
may affect health, life and livelihood." The role of voluntary organisations F
as protective watch-dogs to see that there is no unrestrained and
) -+
unregulated development, cannot be over-emphasized. 1827-E-H; 828-AI
2.3. 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 ofthe opinion of persons G
who are specialists and who may have decided the question with objectivity
and ability. 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 the State
Government. If it is found that the recommendations have not been so H
812
SUPREME COURT REPORTS
(2004] I S.C.R.
A abided by, the mere fact that large economic costs are i'nvolved should
not deter the courts from barring and if necessary undoing the
development. (828-C-EJ
/sl(con and Anr. v. Nanigopal Ghosh and Ors., 120001 IO SCC 595;
Indian Council for Enviro-Legal Action v. Union of India. 119961 5 SCC 281
B and Shri Sachidanand Pandey v. The Stale of West Bengal and Ors., AIR
(1987) SC 1109, referred to.
3.1. There has been no finding in appellant's case that the proposed
activity would fall under prohibition (a). Assuming it does, the State
Government has in substance authorized the grant of permission and the
C absence of a formal order 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 of
WPA is that the State Government itself should apply its mind and form
D 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 the State Government's permission
included the suggestions and was based on the recommendation of the
Chief Wild life Warden/Chief Conservator of Forests. (833-H; 834-A-Cf
E
3.2. Given the prolonged and in depth scrutiny of the possible
damage which could be caused by laying of the pipelines by the appellant
and the stringent conditions imposed to obviate such possible damage,
and the opinion of the expert bodies, there is no reason to interfere with
the grant of permission under the WPA. On the other hand, there has
F 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
G provisions of Sections 29 and 35 of WPA by the High Court was also,.
apart from being erroneous, contrary to earlier decision of the High
Court. There was, in the circumstances, no question of de-notifying any
area under Section 26A(3) of WPA. 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
H minimal and reversible damage to the wild life. The permissions given by
ES SAR OIL LTD. v. HALAR UTKARSH SAMITI [RUMA PAL, J.] · 813
the Central Government under the Forest (Conservation) Act, 1980 (FCA) A
and Environment (Protection) Act, 1986 (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 Government, all that can reasonably now be required is a
direction to issue formal authorisation by the State Government so as to B
regularize the de facto permission. 1835-C, D, F, G, H; 836-AI
3.3. The appellant can 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 C
Sections 29 and 35 of WPA. (836-Fl
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 352-353 of
2004.
From the Judgment and Order dated 13, 18, 20, 27.7.2000, 3.8.2000 D
and 23.2.200 I of the Gujarat High Court in S.C. App In. No. l 778/2000 and
M.C. Appln. No. 250 of 200 I (R.P.)
WITH
C.A. Nos. 354-357, 362-364, 359-361, 365, 358/2004 and T.C. (C) E
No. 39 of 200 I.
K.N. Rawat, Mukul Rohtagi, Additional Solicitor Generals, C.A.
Sundaram, Rajeev Dutta, V.R. Reddy, N.D. Nanavati, Kailash Vasdev, Rishi
Agarwal, Mahesh Agarawal, Vivek Sharma E.C. Agrawala, D.S. Nanavati,
S.A. Mehta, Ms. V.D. Khanna, Ms. Hemantika Wahi, Ms. Sunita Hazarika,
Parijat Sinha, Huzefa Ahmedi, Ejaj Maqbool, Ujjwal Kr. Jha, Nakul Dewan,
Ms. Minakshi Nag, Colin Gonsalves, Ms. Apama Bhat, P.P. Ramesh Kumar,
Vipin M. Benjamin, M.N. Singh, Sanjay R. Hegde, Hemant Sharma, P.
Parmeshwaran, B.K. Prasad, C.K. Ganguli and S.M. Jadhav for the appearing
parties.
The Judgment of the Court was delivered by
RUMA PAL, J. SLP (C) Nos.10008-10011, 17691-\7694, 17695-
\7696 and C.A. No. 358 of 2004.
Delay condoned. Leave granted.
F
G
H
814
SUPREME COURT REPORTS
(2004) I S.C.R.
A
The Jamnagar Marine National Park arid 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
B 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
C 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
D Petitions, which are:
l.SLP (C) Nos.9454-9455 of 2001
Essar Oil ltd v. Ha/ar Utkarsh Samili and Ors.
E
2.SLP (C) Nos.10008-11 of 2001
Essar Oil Ltd v. Jansangharsh Manch and Ors.
3.SLP (C) Nos.17691-93 of 200 I
Bharat Oman Refineries Ltd v. Halar Utkarsh Samili and Ors.
F
4. SLP (C) Nos.17694-96 of 2001
Stale qf Gujaral and Anr. v. Ha/ar Utkarsh Samili and Ors.
5. SLP (C) No.2213 7 of 200 I.
G
Mis. Gujarat Positra Port Co. Ltd. v. Halar Utkarsh Samiti Jamnagar
ant( Ors.
6. SLP (C) No.1491/04 @CC No.5083 of2001
Halar Utkarsh Samili and Ors. v. Stale of Gujarat and Ors.
H
Leave is granted in all these matters. In addition there is a transfer
..
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI [RUMAPAL,J.] 815
petition relating to a writ petition filed by Halar Utkarsh Samity challenging A
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 B
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 C
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 D
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 E
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, fauna!, floral, geomorphological, natural or zoological significance, F
for the purpose of protecting, propagating or developing wild life or its
environment. The Collector has been empowered to entertain and determine
claims in respect of or over the notified area under Sections 21 to 24. After
all claims in response to the Section 18 notification are disposed of, the State
Government is required under Section 26A to issue a notification specifying
the limits of the areas which shall be comprised within the sanctuary, after G
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 H
816
SUPREME COURT REPORTS
(2004] I S.C.R.
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
I3 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
ti1ne, give.''
c
D
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. Des/ruction, etc., in a sanctumy prohibited without permit.-No
E
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
F
satisfied that such destruction, exploitation or removal of wild lifo
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
G
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,
H 1980 (described as FCA subsequently). The Act is a brief one consisting of
...
ES SAR OIL LTD. v. HALAR UTKARSH SAMIT! [RUMA PAL, J.] · 817
five Sections. The relevant Section is Section 2 which'inter a/ia provides that A
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 nonforest purpose". Rule 4 of the Forest (Conservation) Rules, 1981 provides
for the procedure required to be followed by the State Government or other B
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:
I.
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;
c
D
7.
Whether clearance from environmental angle is required;
E
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 F
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. G
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 H
818
SUPREME COURT REPORTS
[2004] I S.C.R.
A 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
B 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
C landward side upto 500 metres from the High Tide Lines (HTL) and the land
between the Low Tide Lines (L TL) 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:
D
"2 (xi) construction activities in ecologically sensitive areas as
specified in Anncxure-1 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 fol'
E
cooling purposes, oil gas and similar pipelines and facilities essential
for activities permitted under this Notification;"
F
G
Annexure-1 referred to in paragraph 2(xi) quoted above refers in turn
to four categories of CRZs described in paragraph 6( I) of the
Annexure. What is material for our purpose is Category-I (CRZ-1):
"(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."
H
Paragraph 6(2) states that the development or construction activities in
-
•.
ESSAR' OIL LTD. v. HALAR UTKARSH SAMIT! [RUMA PAL, J.] · 819
different categories of CRZ areas shall be regulated by the concerned A
authorities at the State/Union Territory level, in accordance with the following
norms:
"CRZ-1
No new construction shall be permitted within 500 metres of the B
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 C
notification S.O. 329(E). Under the heading CRZ-1, the following paragraph
was substituted:
"No new construction shall be permitted in CRZ-1 except (a) Projects
relating to Department of Atomic Energy and (b) Pipelines, conveying
systems including transmission lines and (c) facilities that are essential D
for activities permissible under CRZ-1. Between the L TL and the
HTL, activities are specified under paragraph 2 (xii) may be pennitted.
In addition, between L TL 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 E
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."
F
~ "°"
The perm its to be granted by the Central Government under the FCA
•
and under EPA are independent of each other and of the pennission which
the State Government is required to give under Sections 29 and 35 of the
WPA. Clearance under each of the three statutes is essential before any
activity otherwise prohibited under those Acts may be proceeded with. In G
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 H
820
SUPREME COURT REPORTS
[2004] I S.C.R.
A· 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 cou Id 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
B 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
C 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
D 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
E 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·improwmcnt
and better management of the wild life no permit could be granted under
Section 29.
F
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
G 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,
H the High Court had misconstrued Section 29 of the WPA to restrain the State
ESSAR OIL LTD. v. HALAR UTKARSH SAMIT! [RUMA PAL, J.] · 821
Government from granting any more permits for laying down any pipelines A
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 B
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
c
the High Court on litigation tiled by the Samiti against BORL. The earlier
decisions had construed S. 29 o(the WPA as contended by the appellant and D
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 E
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 ifthe State Government is satisfied that the destruction, F
exploitation and removal of the wildlife is necessary for the improvement
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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(J) 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 G
passed by the State Legislature.
~ A.
The Jan Sangharsh Manch, the respondent No. I 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 H
822
SUPREME COURT REPORTS
[2004] I S.C.R.
A Marine Park in Jamnagar was the first of its kina in India and housed diverse
eco-syskms 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
B 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
C and the FCA. Whereas under the latter Act a situation could arise when the
Central Government would have to balance the confiicting 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
D 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 Sections
E 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 m 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 pern1ission from the Central Government was necessary
to use a forest for non-forest purposes but a State Government's satisfaction
F 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
G 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
H lskcon and Anr. v. Nanigopal Ghosh and Ors .. [2000] IO SCC 595, a public
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI [RUMA PAL.J.]. 823
interest litigation, and remand the matter back to the High Court for redisposal A
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 a !ready noticed, is the interpretation of B
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 "MagnaCarta 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. C
.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 51 A (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
D
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 E
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 F
of adverse factors. Nature conservat.ion 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 G
working environment for man and for creating conditions on earth that are
necessary for improvement of the quality of life".