IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1778 of 2000 and SPECIAL CIVIL APPLICATION NO. 5476 OF 2000 and SPECIAL CIVIL APPLICATION NO. 5928 OF 2000 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA and Hon'ble MR.JUSTICE R.R.TRIPATHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgement? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HALAR UTKARSH SAMITI THROUGH PRAKASH H DOSHI Versus STATE OF GUJARAT, THROUGH CHIEF SECRETARY -------------------------------------------------------------- Appearance: MR NIRUPAM NANAVATI, Sr.Counsel with MR SANDIP SINGHI, Advocate for Petitioners in SCA No.1778 of 2000. DR MUKUL SINHA, Advocate for petitioner in SCA No.5476 of 2000. MR SV RAJU, Advocate for petitioner in SCA No.5928 of 2000 MR BP TANNA, Sr.Counsel with MS MAHROOK N KERRAVALA, Advocate for Respondent No.1-State of Gujarat and the Chief Wildlife Warden. MR AKSHAY H MEHTA, Sr.Central Govt.Standing Counsel for Union of India. MR SN SHELAT, Sr.Counsel with MR GN SHAH, Advocate for Bharat Oman Refineries Ltd. (BORL) MR HARESH J TRIVEDI, Advocate for Gujarat Pollution Control Board. (GPCB) -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA and MR.JUSTICE R.R.TRIPATHI Date of decision: 13/07/2000, 18/07/2000, 20/07/2000, 27/07/2000, 03/08/2000 COMMON ORAL JUDGEMENT (per M.R. Calla, J.) Through these three petitions, the petitioners seek to challenge the authorisation by the State Government granted vide letter No.WLP-1098-CM-41-G1 dated 4th February 2000 issued under the signatures of Shri P.Sasu, Addl. Chief Secy., Forest and Environment Deptt., Govt. of Gujarat, Gandhinagar permitting the Chief Conservator of Forest (WL) and the Chief Wildlife Warden, Gujarat State, Gandhinagar to grant permission and the permission granted by the Chief Conservator of Forest and the Chief Wildlife Warden, Govt. of Gujarat, Gandhinagar to Bharat Oman Refineries Ltd., which will be hereinafter referred to as 'BORL' for the sake of brevity, vide letter No.FCA/WLP/29/C/3180-83/99-2000 dt. 4.2.2000 issued under the signatures of Shri G.A.Patel for laying the pipeline as mentioned in the said letter. Before we proceed further to narrate the case of the parties, it will be appropriate to mention the abbreviations which have been used in the pleadings, in judgments and various study reports with regard to the names of the Companies/Institutions/Bodies and other terms as under: BPCL Bharat Petroleum Corporation Limited. (a wholly owned Govt. of India Company). OOCL Oman Oil Company Limited. "the Refinery" A refinery complex at Bina, in the State of Madhya Pradesh. MNP Marine National Park. MS Marine Sanctuary. MOEF Ministry of Environment and Forest (the Central Govt.) MOP&NG Ministry of Petroleum and Natural Gas (the Central Govt.) SPM Single Point Mooring. COT Crude Oil Terminal (Crude off Loading Terminal). NIO National Institute of Oceanography. CWLW Chief Wild Life Warden. BORL Bharat Oman Refinery Limited. GPCB Gujarat Pollution Control Board. LFP Landfall Point. IOCL Indian Oil Corporation Limited. EMP Envionrment Management Plan. EIA Environmental Impact Assessment NOC No Objection Certificate RPL Reliance Petroleum Limited. LTL Low Tide Line. HTL High Tide Line. CRZ Coastal Regulation Zone. WL(P)A Wild Life (Protection) Act, 1979. E(P)A Environment (Protection) Act, 1986. E(P) Rules Environment (Protection) Rules, 1986. NEERI-Nagpur National Environmental Engineering Research Institute - Nagpur. FCA, 1980 Forest (Conservation) Act, 1980. CF Conservator of Forest CCF(WL) Chief Conservator of Forest (Wild Life) GOI Govt. of India. GOG Govt. of Gujarat. VLCCs Very Large Crude Carriers. EIA Environment Impact Assessment (Appraisal) MS Motor Spirit. HSD High Speed Diesel. LPG Liquified Petroleum Gas. MMTPA Million Metric Tonnes per Annum. MOU Memorandum of Understanding. JVC Joint Venture Company. JVA Joint Venture Agreement. ROU/ROW Right of Use/Right of Way. GMB Gujarat Maritime Board. KPT Kandla Port Trust INRIMT Indian National Resource and Information Technologies. 2. In September 1992, Bharat Petroleum Corporation Ltd., one of the promoters of BORL submitted an application to the Addl. Chief Secretary, Energy and Petrochemicals, State of Gujarat, seeking approval for laying the pipeline from the Single Point Mooring (SPM) in the high sea to the Crude Oil Terminal (COT) at Vadinar and for laying cross-country crude oil pipeline and also approached the Environment and Forest Department, Govt.of Gujarat as well as Conservator of Forests, Marine National Park to identify a suitable location of the COT from environmental consideration that is away from the sensitive area from the Marine National Park and Sanctuary. On 6.5.1996, BORL submitted an application for grant of permission for laying the petroleum/oil pipeline for the purpose of transporting crude oil and petroleum products. The said pipeline was to pass through the ecologically sensitive area which has been declared as Marine Sanctuary. In reply to the said application of Bharat Petroleum Corpn. Ltd. made in September 1992, the the Bharat Petroleum Corpn. Ltd. received approval in principle and clearance from Energy and Petrochemical Department, Gujarat and Conservator of Forest, Marine National Park, Jamnagar, as well as Forest and Environment Department during October 1992/April 1993 respectively along with the No Objection Certificate (NOC) (in principle) from Gujarat Pollution Control Board (GPCB) in May 1993 for setting up the said facilities. 3. Since the capital cost required for setting up of the refinery was huge of which a substantial portion is to be in foreign currency and one of the requirements of long term of the assurance of the supply of crude oil, the 'Government of India' and 'Sultanate of Oman' entered into a Memorandum of Understanding to which the BPCL and Oman Oil Co. Ltd. (OOCL) were also parties to form a Joint Venture Company (JVC) for implementation and operation of the oil refinery in Central India and Madhya Pradesh (M.P.) and it was further agreed that OOCL which is a Government Company of Sultanate of Oman will bring in 26% of the equity capital of the JVC. It was further agreed that foreign exchange agreement of the total cost will firstly met through equity portion of OOCL and the balance of amount of exchange will be arrived at by OOCL on behalf of the JVC at the most economical terms available. In this background and in terms of the JVC agreement signed on 23rd December 1993 between the BPCL and OOCL, a Limited Company namely, BORL was formed. 4. In December 1993, the Conservator of Forests, Marine National Park, Jamnagar, advised BPCL to carry out the preliminary survey for laying or aligning their pipeline connecting the SPM and COT along the pipeline of Indian Oil Corporation Ltd. (IOCL) and to make necessary application in prescribed format. 5. On the basis of the advice of the Conservator of Forests, Jamnagar, made in December 1993, a second application in the prescribed format was made on 20th January 1994 for laying the pipeline near that of the existing pipeline of IOCL. The Conservator of Forests, Marine National Park, Jamnagar, in turn, submitted his recommendations to the Chief Conservator of Forests-Wild Life (CCF-WL) vide his letter dated 10th February 1994 for consideration and approval. 6. Thereafter, as desired by the Govt. of Gujarat in September/November 1995, BORL agreed to shift SPM location to the TM location from its originally planned location, i.e. Kandla Port Trust waters to Gujarat Maritime Board waters, so that the Govt. of Gujarat can get the revenue from the crude oil to be imported by BORL. This change did increase the length of the pipeline between SPM and COT and the overall cost of the facilities, but considering the request of the State of Gujarat and the revenue that the State Govt. could earn as a result of this change, BORL accepted the request of the State of Gujarat and changed their proposal for laying the pipeline accordingly. 7. On account of this change, a revised (third) application was submitted by BORL in May 1996 (6th May 1996) based on the new location of the SPM in Gujarat Maritime Board waters though without any change in the COT location. 8. On receipt of the said third application dated 6th May 1996, subsequent to the shift of the SPM, the Dy. Secretary, Govt.of Gujarat, Forest and Environment Department, wrote a letter on 23rd July 1996 to the Chief Wildlife Warden advising the decision of the High Level Committee of the Govt.of Gujarat, consequent to the change of location of the SPM to Gujarat Maritime Board waters, to process/expedite the application of BORL. 9. On 16th November 1996, the Chief Wildlife Warden recommended diversion of 27.70 Hact. of forest land (including areas of Marine National Park/Sanctuary) for laying the pipeline between SPM and COT, under the Forest Conservation Act (FCA). The FCA recommendations as contained in the letter dated 11th November 1996 by CCF-WL to the Addl. Chief Secretary (Forest & Environment) (ACS-F&E), Gujarat, clearly indicated that the route for laying the pipeline was found to be prima facie acceptable. 10. On 20th August 1998, the Ministry of Environment and Forest, Govt. of India, sent a letter to the Addl. Chief Secretary, Forest and Environment, Govt. of Gujarat conveying therein that BORL should not be allowed to put its pipeline in the proposed area and in fact asked the State Govt. to advise the BORL to explore an alternate alignment which excludes the area of Gulf of Kutch which is an ecologically sensitive area. Thereafter, the concerned authority of the Govt. of Gujarat considered the alternate routes for the pipeline between the approved location of SPM (GMB waters) and the COT. It is said that the study was made with the help of National Institute of Oceanography (NIO) and the NIO had conducted various marine Environment Impact Assessment (EIA) studies and micro level indepth field studies along the route I-A (i.e. along the existing pipeline of IOC) as well as two other routes, i.e. Route 2 and Route 2A (through the Ballarpur Creek which is located beyond the eastern edge of Narara Belt). 11. Discussions were held and correspondence transpired from time to time between the State of Gujarat, Chief Wildlife Warden, BORL and other concerned authorities and it was thought fit that laying down of the pipeline through Route 2-A may be better, considering that it avoided crossing through the Marine National Park. On 15th May 1999, in presence of the representatives of NIO and the Indian National Resource and Information Management Technologies (INRIMT), BORL requested the State of Gujarat and the Chief Wildlife Warden to give permission to lay the pipeline through Route 2A. On 4th June 1999, BORL submitted a formal application in the prescribed format for laying the pipeline through Route 2-A. 12. The said revised proposal of BORL for laying the pipeline through Route 2-A had been considered by the State of Gujarat and the Chief Wildlife Warden and thereafter, vide letter dated 29th June 1999, the State of Gujarat requested that the proposal of BORL be reexamined and an alternative route be suggested where there is no possibility of damage to the marine life, mangroves, corals habitat or where there is least possible revocable damage to the wildlife with a possibility of regenerating the corals, mangroves and other wildlife of the marine eco-system. In this very letter dated 29th June 1999, it was further stated that the proposal of BORL should include specific mitigation measures for improvement of the marine biota and overall environmental improvement in the existing marine sanctuary and national park. 13. On receipt of the said letter dated 29th June 1999, BORL once again reexamined and revised their proposed route for laying the pipeline after taking the advice of the National Institute of Oceanography (NIO). The NIO submitted its report on 9th July 1999 whereby some changes were made in the route of the pipeline, i.e. towards landward portion (through marine sanctuary and forest areas), i.e. near southern end of the Ballarpur Creek. This new route was ddesignated as Route 2A (modified), to establish its distinction from the earlier proposal of Route 2A. 14. Subsequent to the said NIO report dated 9th July 1999, a diving operation in the Gulf of Kutch near the Narara Reef for mapping sub-tidal coals if any in the area through which the proposed Route 2A modified passes, was conducted in the presence of the officials of NIO on 26th July 1999 by Shree Venkatesh Engg. Works and after conducting such diving, the said Shree Venkatesh Engg. Works observed that, "it can be concluded that 700-800 m width between Narara Reef and Siri Reeef and thereafter in the creek, (in the centre of which the proposed line is to be routed) is devoid of any live or dead corals and has clayee bottom." Said Shree Venkatesh Engg. Works submitted its report dated 28th July 1999. 15. Thereafter a Rapid Marine EIA study for the proposed pipeline (through Route 2A modified) from SPM to COT of BORL at Vadinar was conducted by NIO and a report was submitted on 9th August 1999. 16. At this juncture, on 23rd September 1999, apprehending that the permission for laying down the pipeline as above may be granted to BORL, the petitioners in Special Civil Application No.1778 of 2000, i.e. Halar Utkarsh Samiti and its Secretary Shri Prakash H. Doshi of Jamnagar, filed Special Civil Application no. 7372 of 1999 before this Court challenging the proposal to grant the permission. 17. This Special Civil Application No. 7372 of 1999 was rejected by the Division Bench of this Court (Coram: R.K.Abichandani & D.H.Waghela, JJ.) on 10th December 1999 on the ground that the question was still under consideration before the Government, no final decision had been taken by the State Government and therefore, the petition was premature. The Court also directed the State Govt. to consider the alternate routes that may be available which would not violate the provisions of the Act and the other laws before taking the decision. 18. Thereafter, the Department of Forest and Environment Govt.of Gujarat authorised the Chief Conservator of Forests and Chief Wildlife Warden to permit BORL to lead the the crude import pipeline on 4th February 2000 and on the very same day, the Chief Conservator of Forests granted the permission to the BORL to lay the pipeline according to the modified Route 2A. 19. It is against this authorisation dt.4th Feb.2000 granted by the State Govt. and the consequential permission dated 4th February 2000 issued by the Chief Wildlife Warden that the present Special Civil Application No.1778 of 2000 was filed in this Court on 21st March 2000. When the matter came up before the Court on 22nd March 2000, the notice returnable for 29th March 2000 was issued. It was further ordered that the question whether the interim relief as prayed for by the petitioners should be granted or not will be considered by the Court on the returnable date, but it was clarified that action upon or in pursuance of permission dated 4th February 2000 shall be subject to further orders which will be passed by the Court in the petition. On 9th May 2000, Rule was issued and made returnable on 20th June 2000 after hearing the respondents and the direction which was issued by the Court on 22nd March 2000 was continued and kept operative till the final decision of this petition. 20. While the proceedings in Special Civil Application No. 1778 of 2000 were going on as stated above, Special Civil Application No. 5476 of 2000 was filed by 'Jan Sangarsh Manch' in this Court on 12th June 2000 against the very same authorisation and permission. In this Special Civil Application No.5476 of 2000, Rule was issued on 14th June 2000. The petitioner Jan Sangharsh Manch had arrayed the Chief Minister of State of Gujarat and the Prime Minister of India as respondents nos.5 and 6, but at the time of arguments, learned Counsel for the petitioner Dr.Mukul Sinha while maintaining allegations of malafides orally sought to delete these two respondents and these two respondents were accordingly deleted from the array of the respondents on 14th June 2000 i.e. the date of the issue of Rule. This Special Civil Application was directed to be heard with Special Civil Application No.1778 of 2000 and the Rule was made returnable on 20th June 2000. 21. The arguments in both these cases commenced on 20th June 2000 and on 22nd June 2000, yet another Special Civil Application No.5928 of 2000 was filed in this Court against the very same authorisation and permission, by Shri Alpesh Y. Kogje through Mr.S.V.Raju, Advocate while the petitioner Mr.Kogje himself is a practising Advocate of this Court. This Special Civil Application was circulated on the very same day, i.e. 22nd June 2000 before us with the permission of the Honourable Chief Justice. Rule was issued on 22nd June 2000 and the same was made returnable on 29th June 2000 and it was ordered that this Special Civil Application shall also be heard along with Special Civil Applications Nos.1778 of 2000 and 5476 of 2000. 22. So far as the pleadings in these matters are concerned, we have before us the pleadings in the following forms: I. Special Civil Application No.1778 of 2000: i) Special Civil Application with copies of documents, in all, page nos. 1 to 84. ii) Affidavit-in-reply dated 19th April 2000 filed on behalf of BORL with documents running from page nos. 85 to 257. iii) Affidavit-in-reply dated 20th April 2000 filed by State of Gujarat and Chief Wildlife Warden along with documents running from page nos.258 to 284 (285). iv) Affidavit-in-rejoinder dated 29th April 2000 filed on behalf of the petitioner (Shri Prakash H. Doshi) running from page nos.285 to 299. v) Affidavit-in-reply dated 2nd May 2000 filed on behalf of the Union of India with documents running from page nos.300 to 308. vi) Supplemental affidavit dated 29th June 2000 with copies of documents running from page nos.309 to 326. II. Special Civil Application No. 5476 of 2000: i) Special Civil Application dated 12th June 2000 with copies of the documents from page nos.1 to 49. ii) Affidavit-in-reply dated 27th June 2000 filed on behalf of the Chief Wildlife Warden, State of Gujarat with copies of documents running from page nos.50 to 123. iii) Affidavit-in-reply dated 29th June 2000 filed on behalf of BORL with copies of documents running from page nos.124 to 150. iv) Copy of the newspaper report as was published in the Ahmedabad edition of the Times of India dated 25th July 1999 at page no.151 as was produced by Dr.Mukul Sinha, learned Counsel for the petitioner in this matter on 4th July 2000. III. Special Civil Application No. 5928 of 2000: i) Special Civil Application dated 22nd June 2000 with copies of documents from page nos.1 to 18. ii) Affidavit-in-reply dated 27th June 2000 filed on behalf of the State of Gujarat and Wildlife Warden, along with documents running from page nos.19 to 89. iii) Affidavit-in-reply dated 29th June 2000 filed on behalf of respondent no.4 BORL at page nos.33 to 37, which ought to have been correctly numbered as page nos.90 to 94 and these pages have been accordingly marked as Page nos.90 to 94 in this Special Civil Application. 18th July 2000: For the purpose of arguing these cases, a general reference was made to the pleadings in the Special Civil Application No.1778 of 2000 to which we shall be making reference at appropriate places while dealing with the case of the parties in the later part of this judgment, both the sides also agreed to utilise the pleadings filed by any of the parties in any of these three matters along with the pleadings filed in each of these three matters together. At the same time, studies/reports etc. mentioned as under were also referred to: i) A Comparative Study on Offshore Terminal and Allied Facilities for the Central India Refinery, by Engineers India Ltd., a Govt. of India Undertaking, New Delhi [April-1993]. ii) Environmental Impact Assessment of Proposed Single Point Mooring and Crude Oil Terminal Facilities of BORL near Vadinar, Gujarat, Sponsor Bharat Oman Refineries Ltd., National Environmental Engineering Research Institute, Nehru Marg, Nagpur [November 1994]. iii) Risk Assessment of Proposed Single Point Mooring and Crude Oil Terminal Facilities of BORL near Vadinar, Gujarat, Sponsor Bharat Oman Refineries Ltd., National Environmental Engineering Research Institute, Nehru Marg, Nagpur [November 1994]. iv) Risk Assessment of Proposed Single Point Mooring Facility in GMB Water Limits and Crude Oil Terminal at Vadinar, Gujarat, Sponsor Bharat Oman Refineries Ltd., National Environmental Engineering Research Institute, Nehru Marg, Nagpur [February 1997]. v) Rapid Marine EIA for Proposed SPM and Associated Facilities of BORL at Sikka/Vadinar, Sponsored by Bharat Oman Refineries Ltd., Mumbai, by National Institute of Oceanography [February 1998]. vi) Delineation of Corridors for Pipeline Routings Through Remote Sensing Techniques at Vadinar, Jamnagar District, Gujarat, Technical Report, submitted to Bharat Oman Refineries Ltd., Mumbai by Indian Resources Information & Management Technologies Pvt.Ltd. (IN-RIMT) [1999]. vii) Final Report, Bharat Oman Refineries Ltd., Marine Environmental Study: Operation of Multiple SPMs in Environmentally Sensitive Areas, as prepared by Environmental Resources Management, London [October 1999]. 24. The present Special Civil Applications are preceded by a related litigation and we find it appropriate to mention the history of such litigation which will be relevant for the purpose of considering the questions as have been raised during the course of arguments: i) Special Civil Application No.403 of 1998 decided on 24th February 1998 by a Division Bench of this Court (Coram: S.D.Dave & S.D.Pandit, JJ.) against Reliance Petroleum Ltd. as was filed by the Gujarat Navodaya Mandal. A copy of the decision dated 24th Februaryt 1998 rendered by the Division Bench has been annexed with the Special Civil Application No.1778 of 2000 at page nos.134 to 154 as Annexure.A1. This was a petition challenging the order passed by the Chief Wildlife Warden, State of Gujarat on 8th August 1997 in favour of the Reliance Petroleum Ltd. granting permission to lay the pipeline without the approval of the State Govt. (ii) Against this decision of the Division Bench of this Court rendered on 24th February 1998, an Special Leave Petition No.10045 of 1998 was preferred before the Supreme Court. This SLP was decided on 11th December 1998 (page nos.187 - 188) and the copy has been annexed as Annexure.A3 with Special Civil Application No.1778 of 2000). It is clear from the order passed by the Supreme Court that during the pendency of the SLP, the Government had passed an order on 30th November 1998 authorising the Chief Wildlife Warden and in view of this order dated 30th November 1998 passed by the State of Gujarat, the SLP was dismissed, but while dismissing the SLP, it was made clear that the Supreme Court had not concluded that the judgment under challenge was correct and further that the petitioner, i.e. Gujarat Navodaya Mandal shall be entitled to challenge the order dated 30th November 1998 in appropriate proceedings. This order dated 11th December 1998 as had been passed by the Supreme Court is reproduced as under for ready reference: "In view of the order dated 30th November 1998 of the State of Gujarat, the SLP is dismissed. It is made clear that by dismissing the SLP we have not concluded that the judgment under challenge was correct. It is also made clear that the petitioner shall be entitled to challenge the order dated 30th November 1998 in appropriate proceedings." (iii) Thereafter, yet another petition being Special Civil Application No.11251 of 1998 was filed in this Court by Gujarat Navodaya Mandal against the Reliance Petroleum Ltd. (page nos.155 to 186 as Annexure.A2) and yet another petition being Special Civil Application No. 11271 of 1998 had been filed by Halar Utkarsha Samiti, Jamnagar against the grant of permission and authorisation as had been granted by the State of Gujarat on 30th November 1998, and both these petitions were decided by a common judgment and order dated 12th May