Holding

Section 29 of the WPA requires State Government satisfaction only for activities involving destruction, exploitation or removal of wildlife; it does not bar permits for pipeline laying that cause only reversible habitat damage, and the earlier permission to Essar is deemed valid and must be regularised.

Summary

Essar Oil Ltd., Bharat Oman Refineries Ltd. and Gujarat Positra Port Co. sought to lay crude‑oil pipelines through the Jamnagar Marine National Park and Sanctuary. Public‑interest litigants challenged the Gujarat State Government's permission under the Wild Life (Protection) Act, 1972 (WPA) sections 29 and 35(6), arguing that the statutes prohibit any activity that damages wildlife or its habitat. The Gujarat High Court held that no further permission could be granted, except for BORL, which already had approval. On appeal, the Supreme Court interpreted section 29, holding that the State Government's satisfaction that the activity is necessary for the "improvement and better management of wildlife" is required only for activities involving destruction, exploitation or removal of wildlife (prohibition a), not for mere damage to habitat (prohibitions b and c). Since the pipeline activity causes only reversible, minimal habitat disturbance and expert reports support this, the permission already granted to Essar is valid and must be regularised. The Court set aside the High Court's order, directed the State to issue formal authorization under sections 29 and 35, and remanded the matter for any remaining factual disputes.

Issues considered

The scope of Section 29 of the Wild Life (Protection) Act, 1972 – whether the State Government's satisfaction that the activity is necessary for improvement and better management of wildlife applies to habitat‑damage activities.
Whether laying oil pipelines through a marine national park and sanctuary constitutes "destruction, exploitation or removal" of wildlife prohibited under clause (a) of Section 29.
Whether the permission granted to Essar Oil Ltd. under the WPA is legally valid despite the High Court's refusal to recognise it.
Whether the High Court erred in rejecting expert reports and in its interpretation of Sections 29 and 35(6).

Legislation cited

Environment (Protection) Act, 1986s. 24
Forest (Conservation) Act, 1980s. 2
Wild Life (Protection) Act, 1972s. 18, s. 2(15), s. 2(26), s. 2(37), s. 26A(3), s. 29, s. 33, s. 35(4), s. 35(6), s. 35(7), s. 4(2)

Subjects

Wild Life (Protection) ActSection 29Section 35Marine National ParkPipeline layingPublic interest litigationEnvironmental impact assessmentForest Conservation ActEnvironment Protection ActCoastal Regulation ZoneStockholm Declaration

Judgment

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

JANUARY !9, 2004
B
[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 pelitiuns-
Correctness 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 life-
E 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
the permission has already been granted by the State Government. The
H 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. c
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.
D
Respondent-Writ Petitioners contended that the permission granted
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 LT!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,
F
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.
G
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.
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.

2.SLP (C) Nos.10008-11 of 2001
E
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
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.
D
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
satisfied that such destruction, exploitation or removal of wild lifo
F
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 non-
forest 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: c
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; D
4. Details of forest land involved;
5. Details of compensatory afforestation scheme;
6. Cost-benefit analysis;
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;"
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):
F "(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
G
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 LTL and the
HTL, activities are specified under paragraph 2 (xii) may be pennitted.
In addition, between LTL and HTL in areas which are not ecologically
sensitive and important, the following may be permitted: (a)
Exploration and extraction of Natural Gas (b) activities as specified 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". c
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 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
.• ~ 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 "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. 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". D
Certain principles were enunciated in the Stockholm Declaration giving
broad parameters and guidelines for the purposes of sustaining humanity and
its environment. Of these parameters, a few principles are extracted which
are of relevance to the present debate. Principle 2 provides that the natural
resources of the earth including the air, water, land, flora and fauna especially 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". 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 H
824 SUPREME COURT REPORTS (2004] I S.C.R.

A adversely affect the present or 'future development potential of developing
countries nor should they hamper the attainment of better living conditions.
for all;"

This, therefore, is the aim-namely to balance economic and social
needs on the one hand with environmental considerations on the other. But
B in a sense all development is an environmental threat. Indeed, the very
existence of humanity and the rapid increase in the population together with
consequential demands to sustain the population has resulted in the concreting
of open lands, cutting down of forests, the filling up of lakes and pollution
of water resources and the very air which we breathe. However there need
C not necessarily be a deadlock between development on the one hand and the
environment on the other. The objective of all laws on environment should
be to create harmony between the two since neither one can be sacrificed at
the altar of the other. This view was also taken by this Court in Indian
Council for Enviro-Legal Action v. Union of India, (1996] 5 SCC 28!, 296
where it was said:
D
"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
E 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:
F (a) destruction, exploitation or removal of any wild life from a sanctuary; (b)
destruction or damage to the habitat of any wildlife; and (c) deprivation of "" '
any wild animal of its habitat within such sanctuary. Prohibition '(a)' is
concerned with wild life and its protection. Wild life, which includes any
animal, bees, butterflies, crustacea, fish and moths and aquatic or land
G vegetation which form pa11 of any habitat under sub-section (37) of Section
2, cannot be destroyed, removed or exploited.

Prohibitions '(b) and (c)' relate to the habitat of 'wild animals', The
word "habitat" has been defined in section 2 (15) as including "land, water
or vegetation which is the natural home of any wild animal". Therefore
H while some habitats may fall within the definition of wild life, namely
ESSAR OIL LTD. v. HALAR UTKARSH SAMIT! [RUMA PAL,J.). 825

.>, vegetation, habitats which do not consist of vegetati0i1 would not. The A
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 B
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
c
controlled under Section 4(2) which requires him to perform his duties and
exercise his powers under the directions of the State Government. But tl'e
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 D
removal ..... Is necessary for the improvement and better management of wild
life therein". The phrase does not, as has been rightly contended by the
appellant, relate to prohibitions (b) and ( c ) The particular satisfaction
regarding betterment of wild life is a precondition to be fulfilled only when
there is destruction, exploitation or removal of wild life prohibited under (a).
Plainly stated - when wild life is to be bettered, its destruction, exploitation E
or removal may be permitted. The example of 'culling' given by the Manch
is apt.

To destroy means to deprive of life, kill, wipe out or annihilate'. In
other words Section 29 bars anyone from completely, irreparably and F
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 G
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
I. The New Shorter Oxford Dictionary. H
826 SUPREME COURT REPORTS [2004] I S.C.R.

A allowing activities relating to the habitat and covered by '(b) and (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
B 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, fauna!, floral,
geomorphological, natural or zoological significance which is demarcated for
C protecting, propagating or developing wild life.

The next question - is whether it can be stated that the laying of pipelines
through a sanctuary necessarily results in the destruction of the wild life.
That is - is it an activity falling under prohibition (a)? It would be instructive
to compare the legal position with those obtaining in other countries. In
D England, for example, there is no absolute prohibition on laying pipelines.
The laying of pipelines across the continent shelf is regulated under the Oil
and 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
E 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 and gas pipelines
F nation wide, this legislation seems to have been generally uncontroversial in
practice despite the fact that pipelines run through many scenic areas"'. The -" •
CRZ notifications quoted earlier issued under the EPA in 1991 and 200 I
clearly allowed the laying of pipelines across ecologically sensitive areas
such as national parks/marine parks and sanctuaries. The laying of pipelines
G is one of the exceptions to the general bar against any construction in CRZ-
1 areas.

It cannot therefore be said, as the High Court seems to have held, that ;. i
the invariable consequence of laying pipelines through ecologically sensitive

H 2. Hughes' Environment Law, 2nd Edition, Page 228.
ESSAR OIL LTD. v. HALAR UTKARSH SAM!TI [RUM:A PAL,J.]. 827

areas has been the destruction or removal cifthe wild life. It Y. :lUld ultimately A
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 apriori 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 B
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
c
t~e grant of any permit under Sections 29 or 35, the State Government should
consider whether the damage in respect of the proposed activity is reversible
or not. If it is irreversible it amounts to destruction and no permission may
be granted unless there is positive proof of the betterment of the lot of the
wild life. Where activities are covered by '(a)', mitigation of damages would D
not do. There must be betterment of the wildlife by the proposed activity.
Mitigation of damages would be relevant to proposed projects under '(b) and
( c )'.

For this purpose the State Government must ask for and obtain an
E
environmental impact report from expert bodies. The applicant must also
come forward with an environmental management plan which must be cleared
by the experts. To prevent possible future damage, the State Government
must also be satisfied that the damage which may be caused is not irreversible
and the applicant should be prepared and must sufficiently secure the cost of

. ~
reversing any damage which might be caused. The State Government should F
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
G
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
H
828 SUPREME COURT REPORTS (2004] I S.C.R.

A "secret Government decisions may affect health, life and livelihood" 3• The
role of voluntary organisations as protective watch-dogs to see that there is
no unrestrained and unregulated development, cannot be over-emphasized.
Voluntary organisations may ofcourse be a front for competitive interests but
they cannot all be tarred with the same brush. Our jurisprudence is replete
with instances where voluntary organisations have championed the cause of
B conservation and have been responsible for creating an awareness of the
necessity to preserve the environment so that the earth as we know it and
humanity may survive.

Once the State Government has taken all precautions to ensure that the
C impact on the environment is transient and minimal, a court will not substitute
its own assessment in place of the opinion of persons who are specialists and
who may have decided the question with objectivity and ability. [See: Shri
Sachidanand Pandey v. The State of West Bengal and 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
D 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.
E 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?

p 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 I00% export oriented unit for refining of petroleum
products with a capacity of 9 Million Tons per annum at an estimated project
cost of Rs.1900 crores in collaboration with Mis Bechtel Inc., USA. By letter
dated I Ith April,-1990, the then Chief Minister of the State of Gujarat wrote
G to the Ministry of Planning, Government of India, stating that the project was
expected to generate foreign exchange earnings of over Rs.3000 crores within
a period of 5 years and that it was expected to be set up in 36 months. It was
anticipated by the State Government that the project would "completely

H 3. Reliance Petrochemicals Ltd. v. Proprietors uf Indian Express Newspapers. AIR (1989)
SC 190. 202.
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI [RUMA PAL,J.] 829
change the face of the Vadinar area, which is traditionally a backward area A
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 B
Government of India.

41 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
c
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. D
The appellant also submitted an application to the Conservator of Forests
-./ for right of way over 15.49 hectares of forest land for laying submarine crude
oil and discharge pipelines for its refinery at Vadinar. Undisputedly the 15.49
hectares of forest land applied for includes 8. 79 hectares of the Jamnagar
Marine National Park and Sanctuary. Therefore permission under Section 2 E
of the FCA was required for the entire 15.49 hectares. At the same time,
permission of the State Government was required under the WPA for the
8.79 hectares. It is the appellant's case and we have also found that both
these permissions were independently granted by the Central Government as
far as the 15.49 hectares were concerned under Section 2 of the FCA, and by F
~ ~ 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:
G
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
H
830 SUPREME COURT REPORTS [2004] l S.C.R.

A 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 and 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
B 15.49 hectares of forest land be made available to the appellant, was forwarded
to the Central Government by the Central Chief Conservator of Forests on
3rd February, 1997. Upon receipt of the proposal of the State Government,
the Central Government constituted a team for joint inspection of the area. ,.
The report of the joint inspection report was that the proposed activity of the
C appellant would not have much ramification from the forestry point of view
and the damage would only be temporary in nature in a localized area during
the construction phase.

On 27th November, 1997, the Ministry of Environment and Forests,
Government of India accorded the approval in accordance with Section 2 of
D 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
E 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."

F The other 18 conditions are to be complied with during the course of
execution and working of the project. The State Government's Forest and _.., i
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
G Government conveyed its approval under Section 2 of the FCA for diversion
of 15.49 hectare of forest land for laying pipe line, construction of jetty and
off shore facility and widening/extension of bund road/s by the appellant. It .olr •
was however made clear that the clearance was given subject to grant of
permission by the State Government to carry out the proposed activity in the
H National Park and Sanctuary under the WPA.
·,
't---

ESSAR OIL LTD_ v_ HALAR UTKARSH SAMITI [RUMA PAL,J.]' 831

The far.tual run up to the grant of permission under the WPA was as A
follows :

The aspect of the appellant's application relating to the Marine National
Park and Sanctuary included the setting up of a Single Buoy Mooring I Crude
Oil Terminal (COT)/Jetty/laying the Pipeline (ROW). For the purpose of its
application the appellant sought the expert opinion of the National Institute B
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 c
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 ofKachch 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 D
is that the NIO used the word "disturbance" and not "destruction" of the
ecology.
-J
By letter dated 8th September, 1995, the Government of Gujarat, Forest
and Environment Department wrote to the Ministry of Environment and Forest,
Government of India stating that the Forest and Environment Department of E
Gujarat had agreed, in principle, to allow the appellant's proposal to install
-. SBM/COT/Jetty and connected pipeline in the National Marine Park and
'
Sanctuary area at Vadinar "on the terms and conditions to be decided in due
course by the Government of Gujarat''. Copies of the letter were forwarded
to the appellant, and the ·conservator of Forests and Chief Conservator of
Forests (Wild Life).
F
~

On 5th August, 1997, the Conservator of Forests, Jamnagar wrote to
the Chief Conservator of Forests ( Wild Life) who was also the Chief Wild
Life Warden, stating that the total forest area proposed for diversion by the
appellant was 15.50 hectare out of which 8.79 hectare falls in the Marine G
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
t 'I- 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 H
832 SUPREME COURT REPORTS [2004) 1 S.C.R.

A 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
B 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 considei'able extent and that the project of
the appellant "may be granted permission for Right of way to install and
,.
establish the required marine and on-shore facilities like laying of pipelines
C product jetty RoRo/LoLo jetty required for their petroleum refinery".

The Principal Chief Conservator of Forests (WL)/Chief Wild Life
Warden forwarded the right of way proposal of the appellant to the State
Government substantially reiterating the stand taken by the Conservator of
Forests in his letter on 18th September, 1997 and stating in addition that the
D matter may be examined under the provisions of the WPA and appropriate
orders passed subject to the compliance of various conditions including a
mitigation plan "to reduce likely effect on wildlife" and a disaster management
plan both of which were to be approved by the State Government. It was also
stated that the Government had in 1997 given similar permission to the
E refinery of Mis 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
F 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
G on Mis Reliance Industries Ltd. by the Government of India; (f) the conditions
prescribed by the Chief Conservator of Forests in connection with the approval
under the Forest (Conservation) Act; and (g) any further condition that may
be imposed in the interest of the preservation and protection of the flora and
fauna of the area. The permission is otherwise in categorical terms. However,
H in the last paragraph of the letter, it is stated that "since the permission
ESSAR OIL LTD. v. HALAR UTKARSH SAMIT! (RUMA PAL, J.] 833
sought for the MNP/Sanctuary area also forms the part of the forest land for A
which a proposal seeking prior approval under Forest (Conservation) Act,
1980 is under consideration of Government of India, therefore, this permission
is subject to the FCA clearance and will get effect after the permission is
accorded under FCA from Government of India". This permission was
conveyed to the appellant by the Conservator of Forests under cover of his
letter dated 18th October, 1997. The permission was however restricted to B
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. Jn fact, according to the appellant, they had invested. C
Rs.5,388.41 Crores in setting up the project on 4500 acres of land in Jamnagar
District. The labour colonies had been built up for 10000 labourers and other
constructions were well under way. It has also claimed that for the purpose'>.
of the project the appellant has obtained finances inter alia from IDBI, ICICI,
Nationalised Banks, IFCI, LIC and GIC. However on 30th January, I 999 the
Chief Conservator of Forests wrote a letter to the State Government stating D
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
developnients which had taken place consequent upon public interest litigation
initiated against Reliance Petrochem Limited (RPL) also relating to the laying
of pipelines across the National Park and Sanctuary. The challenge had been E
rejected by the Gujarat High Court'. While the Special Leave Petition from
the decision was pending before this Court, on 30th November, 1998, the
Government of Gujarat authorised the Chief Conservator of Forests and Chief
Wild Life Warden to issue permission to RPL to lay the pipelines. We have
already held that such authorisation of the Chief Wild Life Warden is required
only in cases of destruction, exploitation or removal of wild life (i.e. prohibition F
(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 resuli in damage which was temporary and reversible but "in the light
of subsequent measures to be taken by the project proponents, will help in G
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

4. Gujarat Novadaya Manda/ v. State, AIR (1998) Gujarat 14.
>
H
834 , SUPREME COURT REPORTS [2004) I S.C.R.

A 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
B 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
C 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. I alleging illegal construction in the National
Park or Sanctuary by the appellant. The State Government filed an affidavit
D 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 ;· .. est laws.

E 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
F 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
G the Ministry of Environment and Forests, Government of India on 3.11.2000.

On 4.11.2000, the appellant wrote to the State Government that since
all clearances had been received it should be permitted to set up its project.
However, the Conservator of Forests wrote two letters dated 20.11.2000 and
30.11.2000 to the appellant stating that the appellant had not been granted
H approval under the Wild Life (Protection) Act as had been found by the High <
ESSAROIL LTD. v. HALAR UTKARSH SAMITI l[RUMAPAL,J.]. 835
Court in the impugned decision. The appellant then filed an application for A
review of the impugned decision substantially stating the facts we have
recorded earlier. The review application was rejected by the High Court on
the ground that the grievance was based on "some factual controversy between
the appellant and the State of Gujarat" and was beyond the scope of review.

The High Court erred in rejecting the application for review. It was an B
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 avoi.dable delay. C
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 D
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 expe1is who had opined in favour of BORL and the appellant. The
interpretation of the provisions of Sections 29 and 35 by the High Court was
also, apart from being erroneous, contrary to the earlier decision of the High E
Court i.e. Gujarat Navodaya Manda/ v. State (supra ). The appellant has
accepted the suggestion of NIO and is laying the pipeline along the pipeline
installed by IOC. Apart from the IOC, RPL which had applied for laying its
pipeline at the same time as the appellant has been granted permission to do
so subject to certain terms and conditions. The same conditions have been F
imposed on the appellant. There was, in the circumstances, no question of
denotifying any area under Section 26A(3 ).

It is clear from the evidence on record that the State Government and
the appellant have taken precautions after consulting experts to see that the
pipeline route causes minimal and reversible damage to the wild life. The G
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 H
836 SUPREME COURT REPORTS [2004] I S.C.R.

A 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
B 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 I Ith 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
c 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
D 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
E 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
F 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.

G SLP (C) No.22137 OF 2001.

Leave granted.

In so far as this appeal involves issues of law which have been decided 't
in the above judgment, such issues stand concluded. However, the matter is
H remanded back to the High Court for determining whether there are, and if
ESSAR OIL LTD. v. HALAR UTKARSH SAMITI [RUMA PAL, J.] 837
so to decide, any outstanding factual controversies in accordance with the A
observations in our judgment. The appeal is accordingly disposed of with no
order as to costs.

TRANSFER CASE (C) No.39 of 200 I.

In view of our judgment delivered today in Essar Oil Ltd. v. Ha/ar B
Utkarsh Samiti and Ors., the transferred case is remanded back to the High
Court to decide the Special Civil Application No.4 779 of 200 I in accordance
with our judgment.
1
B.S. Appeals disposed of.