2004 Supreme(SC) 66

2004(1) Supreme 787
Supreme Court of India
(From Gujarat High Court)
Mrs. Ruma Pal & B.N. Srikrishna, JJ.
Essar Oil Ltd. -Appellant
versus
Halar Utkarsh Samiti and Ors. -Respondents
Civil Appeal Nos. 352-353 of 2004
[Arising out of SLP (C) Nos. 9454-9455 of 2001]
With
Civil Appeal Nos. 354-357, 362-364, 359-361, 365/2004
[Arising out of SLP (C) Nos. 10008-10011, 17691-17693, 17694-17696, 22137 of 2001, C.A. No. 358/04 @ SLP (C) No. 1491/04 @ CC No. 5083 and T.C. (C) No. 39 of 2001]
Decided on 19-1-2004
Counsel for the Parties :
For the Appearing Parties : K.N. Rawal, Mukul Rohtagi, Additional Solicitor Generals, C.A. Sundaram, Rajeev Dutta, V.R. Reddy, N.D. Nanavati, Kailash Vasdev, Sr. Advocates, Rishi Agarwal, Mahesh Agarwal, 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, Ejaz Maqbool, Ujjwal Kr. Jha, Nakul Dewan, Ms. Minakshi Nag, Colin Gonsalves, Ms. Aparna 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, Advocates.

Important point
Pipelines carrying crude oil can be permitted to go through the Marine National Park and Sanctuary but every application must be dealt with on its own merits keeping in view the need to sustain the environment.

Headnote:Wild Life (Protection) Act, 1972-Sections 2(37), 18, 21 to 24, 26A, 27, 28, 29, 33 and 35-Forest (Conservation) Act, 1980-Section 2-Forest (Conservation) Rules 1981-Rules 4, 6-Environment (Protection) Act, 1986-Sections 3(1), 2(v)-Environment (Protection) Rules, 1986-Rule 5-Jamnagar Marine National Park and Sanctuary in State of Gujarat-Public interest litigation in respect of laying of pipelines in sanctuary or national park to pump crude oil from a single buoy mooring in the Gulf for their oil refineries in the District-High Court held that appellant could not be allowed to lay its pipeline because, unlike Bharat Oman Refineries Ltd., (BORL), permission had not till then been accorded to appellant by State Government-Whether pipelines carrying crude oil can be permitted to go through the Marine National Park and Sanctuary-It would be a question of fact to be determined by experts in each case-Whether Essar Oil Ltd., appellant in fact been so permitted-(Yes).

       Held : It cannot therefore be said, as the High Court seems to have held, 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. We will have the occasion to consider the opinion of the expert bodies on this when we take up the facts of the appellant’s case. Suffice it to say at this stage that there is no a priori presumption of destruction of wild life in the laying of pipelines. Cases of oil spills have undoubtedly been ecologically disastrous and have drawn the attention of the world but our attention was not drawn to any instance of leakage resulting from the laying of pipelines. These observations however are not meant and should not be read as a general licence to lay a net work of pipelines across sanctuaries and natural parks. Every application must be dealt with on its own merits keeping in view the need to sustain the environment. Before according its approval to the grant of any permit under Sections 29 or 35, the State Government should consider whether the damage in respect of the proposed activity is reversible or not. If it is irreversible it amounts to destruction and no permission may be granted unless there is positive proof of the betterment of the lot of the wild life. Where activities are covered by ‘(a)’, mitigation of damages would 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 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 also have in place the necessary infrastructure to maintain periodical surveys and enforce the stipulations subject to which the permit may be granted. In future the State Government should, before granting the approval, also call upon the applicant to publish its proposal so that public, particularly those who are likely to be affected, are made aware of the proposed action through the sanctuary or natural park. This will ensure transparency in the process and at least safeguard against a decision of the State Government based solely upon narrow political objectives. (Paras 34 to 36)

       There has been no finding in the appellant’s case that the proposed activity would fall under prohibition (a). Assuming it does, the State Government has by the letter dated 16th October, 1997 in substance authorized the grant of permission and the absence of a formal order, as was issued in RPL’s case is an irregularity which will not invalidate the permission already granted. The Chief Wild Life Warden’s permission after authorisation would have to be in accordance with the decision of the State Government. The legislative intent of Sections 29 and 35 is that the State Government itself should apply its mind and form the requisite satisfaction. Once the State Government has exercised this power, it is not open to the Chief Wild Life Warden to decide to the contrary. This is particularly so when, as in this case, the State Government’s permission included the suggestions and was based on the recommendation of the Chief Wild Life Warden/Chief Conservator of Forests. (Para 54)

       The High Court erred in rejecting the application for review. It was an opportunity for the High Court to rectify the error made earlier in deciding against the appellant without hearing it. We are also handicapped by the absence of any discussion by the High Court on the factual controversy in the appellant’s case. This has resulted in an unnecessarily arduous exercise and an entirely avoidable delay. (Para 59)