Cases

Essar Oil Ltd. v/s Halar Utkarsh Samiti and others

Civil Appeal No. 352-353 of 2004 (with C.A. Nos. 354-357, 362-364, 359-361,
365, 358/204 and T.C. (C) No. 39 of 2001)

Decided On, 19 January 2004

At, Supreme Court of India

By, THE HONOURABLE MRS. JUSTICE RUMA PAL & THE

HONOURABLE MR. JUSTICE B.N. SRIKRISHNA

Appearing Advocates: K.N. Rawal, Mukul Rohtagi, Additional Solicitor

Generals, C.A. Sundaram, Rajeev Dutta, V.R. Reddy, N.D. Nanavati, Kailash
Vasdev, Sr. Advs., 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, H

Judgment Text

Ruma Pal, J.

(SLP(C) Nos. 10008-10011, 17691-17694, 17695-17696 and SLP CA. 358/04

@ (C) No. 1491/04 @ CC No. 5083 of 2001.
1. Delay condoned. Leave granted.

2. The Jamnagar Marine National Park and 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 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 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 Petitions, which are:

1. SLP(C) Nos. 9454-9455 of 2001

ESSAR OIL LTD. VS. HALAR UTKARSH SAMITI & OTHERS

2. SLP(C) Nos. 10008-11 of 2001

ESSAR OIL LTD. VS. JANSANGHARSH MANCH & OTHERS

3. SLP(C) Nos. 17691-93 of 2001

BHARAT OMAN REFINERIES LTD. VS. HALAR UTKARSH SAMITI

AND OTHERS

4. SLP(C) Nos. 17694-96 of 2001

STATE OF GUJARAT AND ANOTHER VS. HALAR UTKARSH SAMITI

AND OTHERS

5. SLP(C) No. 22137 of 2001

M/S. GUJARAT POSITRA PORT CO. LTD. VS. HALAR UTKARSH

SAMITI JAMNAGAR AND OTHERS

6. SLP(C) No. 1491/2004 @ CC No. 5083 of 2001

HALAR UTKARSH SAMITI AND ANR. VS. STATE OF GUJARAT AND
OTHERS

3. Leave is granted in all these matters. In addition there is a transfer petition

relating to a writ petition filed by Halar Utkarsh Samity challenging 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.

4. The legal issue is all the matters is the same. There are additional issues of
fact relating to the grant of permission to Essar Oil Ltd., Gujarat 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.

5. The questions involved in these appeals are - Can pipelines carrying crude oil
be permitted to go through the Marine National Park and Sanctuary and if so,
has Essar Oil Ltd., (referred to hereafter as the appellant) in fact been so
permitted?

6. The answer to the first question depends on an interpretation of the provisions

of three statutes namely, the Wild Life (Protection) Act, 1972, the Forest
(Conservation) Act, 1980 and the Environment (Protection) Act, 1986.
Chronologically, the Wild Life (Protection), Act, 1972 (referred to hereafter at
the WPA) is the earliest statute. It defines ‘wildlife’ in Section 2(37) as
including:

"any animal, bees, butterflies, crustacea, fish and months; and aquatic or land
vegetation which form party of any habitat";

7. Section 18 empowers the State Government to notify its intention to

constitute any area other than an area comprised within any reserve forest or the
territorial waters as a sanctuary if it considers that such area is of adequate
ecological, faunal, floral, geomorphological, natural or zoological significance,
for the purpose of protecting, propagating or developing 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 the areas which shall be comprised within the sanctuary, after 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 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 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 time, give."

8. 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.

9. What we are really concerned with Section 29 of act.

Case- 2 Samir Mathur Vs. State of A.P. and ors.

to the power of the chief wildlife warden to seize wild life trophies declared by a
person arises for consideration in this writ petition.2. the petitioner herein filed a
declaration as required under section 40 of the wild life (protection) act, 1972 (for
short, the act), and rule 34 of wild life (protection) (andhra pradesh) rules, 1974 .....
also noticed under various provisions of chapter-v(a) which is introduced by wild life
(protection) (amendment) act, 1986 trade or commerce in trophies, animals, articles
etc., derived from certain animals is prohibited and under section 50 of the act, they
are offences.4. rule 35 of the rules lays down the procedure to be ..... to a conclusion
as to whether such trophy is kept illegal. in every case where the person gives
declaration either under section 40(1) of the act or rule 35 of the rules, the law does
not contemplate seizure of the article. be that as it may, before recording a finding that
there ..... referred to in sub-rule (3), identification marks as far as possible in indelible
ink. 5. from a reading of section 40(1) of the act and rule 35 of the rules it becomes
very clear that after making a declaration the authorised officer has to give notice to
the declarant as to ..... of the petitioner. after having come to know that a declaration is
required to be filed with the chief wild life warden under section 40 of the act, such a
declaration was made. respondents 2 and 3 came to petitioner's house on 4.9.1993 and
confiscated the tiger skin in a box.

Case-3 Dr. T. Patanjali Sastry, ... vs Chairman, Andhra Pradesh

S.B.Sinha,C.J.

(1) ALL these Writ Applications involving common questions of fact and law were
taken up for hearing together and are being disposed of by this common Judgment.

(2) THOUGH W.P.No. 12497 of 2001 was heard separately, since it is interconnected
to the other petitions involving similar questions of fact and law, we are inclined to dispose of this
Writ Petition also by this common Judgment.

(3) BEFORE we deal with the rival contentions, it may be useful to notice the prayers made in the
respective writ petitions.

(4) W.P. NOS. 23210 of 1999 and 4350 and 4375 of 2000 are filed by Kolleru Fishermen and
Agricultural Small Farmers association, Prathikolla Lanka, Eluru mandal, West Godavari District;
dr. Ambedkar Harijan Fisherman Cooperative Society Ltd., Bogapuram village, w.G. Dt. and Dr.
Ambedkar Co-operative collective Farming Society Ltd., bogapuram village, respectively seeking
the following relief: to issue a. Writ, Order or direction more especially one in the nature of
mandamus declaring the notification of the Government in G. O. Ms. No. 120, environment,
Forest, Science and technology (For. III) Department dated 4-10-1999 published in the A.P. Gazette
on 5-10-1999 as illegal, unconstitutional and violative of articles 14 and 21 of the Constitution and
consequently set aside the same.

(5) W.P. NO. 33587 of 1998 is filed by one dr. T. Patanjali Sastry claiming to be the president,
Environment Centre, danavaipeta, Rajahmundry as Public interest Litigation for the following relief:
to issue an Order, direction, or a Writ, more particularly one in the nature of writ of Mandamus
declaring the action of the respondents in not stopping the discharge of effluents from the industries
that have come up in the vicinity of Kolleru lake and in permitting the construction of houses and
roads in the catchment area of the lake and not checking the conversion of hundreds of acres of land
into fish ponds etc. , besides not checking the bird hunting by the forest officials as illegal and
unlawful and to direct the respondents to take appropriate steps to restore the lake to its pristine glory
as before.

(6) W. P. NO. 2354 of 2001 is filed by two petitioners, residents of Vadlakutitippa village, Kaikalur
Mandal, Krishna District, questioning the action of the respondents in interfering with the repairing
works undertaken to their fish/prawn tanks and prayed for the following relief: to issue a Writ or
order or direction more particularly in the nature of Writ of Mandamus declaring the action of the
respondents in interfering with the rights of the petitioners to repair their fish/prawn tanks in the
lands to the extent of Ac. 7. 00 and Ac. 6. 00 situate in S. Nos. 116/1a, 117/1 to 7 etc. , of
vadlakutitippa village h/o penchikalamarru, Kaikalur Mandal, krishna District as arbitrary, illegal
and violative of Articles 14,19, 21 and 300-A of the Constitution of India.

(7) ONE Sri Yemeni Nagendranath, a former member of State Drainage Board and who claims to
have studied the problems of Kolleru Lake in depth, seeks the following reliefs in W. P. No. 12497
of 2001 in larger interest of preserving the lake.

(a) To remove all encroachments of kolleru lake bed area up to Plus 5 contour level in consonance
with G.O. Ms. No. 120 dated 5-10-1999; (b) To direct the respondents to remove all obstructions to
free flow of water in Kolleru lake at it normal monsoon level. i.e., Plus 7 contour in pursuance of the
international obligations cast on them as constituents of Federal republic of India which is the
signatory of Ramsar Convention; (c) To prevent discharge of untreated urban sewage, industrial
effluents and residues from fertilizers and pesticides used in aquaculture etc. , into Kolleru lake; and
(d) To remove the obstructions to the natural course of rivulets and other sluices to all roads laid and
proposed to be laid in Kolleru lake area.

(8) ISSUES of environmental pollution and encroachment of Kolleru lake situated in west Godavari
and Krishna Districts and the ecological impact on the lake by reason of pollution being caused on
account of prawn culture/aquaculture undertaken in the lake-bed area by various agencies and also
letting of industrial/municipal effluents into the lake and the validity of final notification issued by
the State under section 26-A of the Wild Life (Protection) act, 1972 declaring Kolleru lake as 'wild
life Sanctuary' arise for consideration in these writ applications.

(9) PROTECTION of lakes of national importance from pollution, ecology, encroachment, etc. ,
should be the primary concern of the State. In the context of rapid globalization and the imminent
threat it posed to environment, ecology vis-avis the rights of the citizens to have pollution free
environment, the right to water, etc. , recognized by the Apex Court under article 21 of the
Constitution of India, the duty of the Government to protect the lakes has assumed much more
importance. It is now well settled principle of law that directive Principles of State Policy under part
IV of the Constitution are enforceable under Article 21 of the Constitution of india. Under Article
48-A of the constitution, the State shall endeavour to protect and improve the environment and to
safeguard the forests and wild life of the country.

Article 49 of the Constitution casts an obligation on the State to protect every monument or place of
object of artistic or historic interest declared by or under law made by Parliament to be of national
importance, from spoliation, disfigurement, destruction, removal, disposal, export, as the case may
be. At the same time, it shall be the fundamental duty of every citizen of india under Article 51-A (g)
of the constitution of India, to protect and improve the natural environment including forests, lakes,
rivers and wild life, and to have compassion for living creatures.
(10) IN the light of the above constitutional provisions and the environmental laws such as
Environment protection Act, 1986, the Water (Prevention and Control of Pollution) Act, 1974, and
the wild Life (Protection) Act, 1972, the various issues raised in the petitions have to be examined.
History of Kolleru Lake:

(11) KOLLERU lake is one of the largest fresh water lakes in the country besides Lokhtak in
Manipur and Dal Lake in Kashmir and is the biggest shallow water lake in Asia spread over 2,330
sq. kms. In the Imperial gazette it was described as "peerless fishermen's Paradise and birds
Heaven". It was formed between the alluvial plains of river Godavari and river Krishna due to
natural geological formation covering two mandals in West Godavari district and seven mandals in
Krishna District, without any defined margins and situated nearly 35 kms. away from the coastline.
Ecologically, it is a wetland eco-system. In its mean season, the lake has mean water level of 3 feet
above the Mean Sea Level (MSL) popularly known as Plus 3 contour (contour means one foot of
mean water level). The water surface area and consequently the contours of the lake vary depending
upon the seasonal flow of water into the lake. It is one of the largest wet lands in the east coast with a
total catchment area of 4763 Sq. kms. spreading over West Godavari and Krishna districts, it is
haying initial capacity of 20 tmc of water. In normal monsoon, the lake extends from Plus 7 contour
to Plus 10 contour. At plus 3 contour level it spreads over 70 square miles and at Plus 7 contour level
the capacity of the lake is 30 TMC and plus 10 contour capacity of the lake is about 54 MC covering
an area of 348 sq. miles. The peak level inflow into the lake would be of the order of 1,10,000
cusecs.

(12) FOUR rivers namely, Budameru, ramileru, Tammileru and Erra Kalva and 18 drains and 22
irrigation channels empty out into the lake and the drain Upputeru is the only outlet to the Sea. 15
minor drains also feed the lake. The catchment area of the lake consists of 3403 sq. kms. of upland
an
Case-4 State Of Bihar vs Murad Ali Khan, Farukh Salauddin & ... on 10 October, 1988

M.P.Jha for the Appellant.

Dr. Y.S. Chitale, Kapil Sibal. K.M. Lahari, R.F. Nariman K.K. Lahiri, Raian Karanjawala
Mrs. Manik Karanjawala and Miss Meenakshi for the Respondents.

The Judgment of the Court was delivered by VENKATACHALIAH, J. SLP 1879 of 1987 is
by the State of Bihar for special leave under Art. 136 of the Constitution to appeal from the
order dated 13.2.1987 of the High Court of Patna in Crl. Misc. 223 of 1987 quashing, in
exercise of powers under s. 482 of code of Crl. Procedure 1973, the order dated 1.7.1986 of
the Judicial Magistrate Chaibasa, ,taking cognizance of an offence under Section 9(1) read
with sec. 51 of the Wild Life Protection Act. 1972 against respondent-Vikram Singh.

3. The accusation against the three respondents is that on 8.6.1986 at 2.0() P.M. they along
with two others named in the complaint, shot and killed an elephant in compartment No. 13
of Kundurugutu Range Forest and removed the ivory tusks of the elephant. On 25.6.1986 the
Range Officer of Forest of that Range lodged a written complaint with the Judicial
Magistrate, Ist Class Chaibasa, in this behalf alleging offences against respondents under
Section 51 of the Wild Life Protection Act, 1972. The learned Magistrate took cognisance
of this offence and ordered issue of process to the accused.

It would appear that at the Police Station. Souna, a case had been registered under sections
447, 429 and 379 IPC read with sec 54 and 39 of the Wild Life Protection Act, 1972 and
that the matter was under investigation by the police. The respondents, WhO Were amongst
the accused, moved the High Court under Sec. 482 Cr.P.C. or quashing of the order of the
Magistrate taking cognizance he alleged offence and issuing summons. The High Court was
persuaded to the view that this was a case to which section 210(1) of Code of Criminal
Procedure, 1973 was attracted and that as an investigation by the Police was in progress in
relation to the same offence the learned Magistrate would be required to stay the proceedings
on the complaint and call for a report in the matter from the police; and that the learned
Magistrate acted without jurisdiction in taking cognizance of the offence and ordering issue
of process against the accused. The High Court, accordingly, quashed the proceedings against
the respondents. From the orders under appeal it would appear that two grounds commended
themselves for acceptance to the High Court. The first was that the learned Magistrate acted
contrary to the provisions of sec.

"I have to report that on 8.6.86 at about 2 P.M. 1 learnt from Sri Aghnu Mahto, Forester,
Jomatai Beat, that somebody has killed an elephant in compartment No. 13 of Kundrugutu
Reserve Forest. The matter was serious and so I immediately reported it to Officer incharge,
Sonua Police Station to register a case and for investigation. It was further reported that Jiwan
Mesi Longa, Coupe Oversee, Jomtal Beat has (been) seen the accused persons entering into
the forest during the night time and had returned on the same Jeep No. BRX 9588 at about 8
or 9 A.M. He could indentify only Sri Prabhu Sahay Bhengra in the jeep, was is driver of
Block Development Officer, Bandgoan. During my enquiry I visited the spot and dug out the
body of the elephant and found that both of the tusk had PG NO 465 been extracted out, from
the mouth of the elephant. It was also learnt from the admission of the accused Prabhu Sahay
Bhengra, who was interrogated by me during the course of enquiry, that the elephant was
killed in the early morning of 1.6.86 before dawn i.e. on 1.6.86 by him and (1) Sri Abranham
Bhengra (2) Sri Murad ali Khan (3) Sri Vikram Sing, (4) Sri Farukh Salauddin (5) Sri Babu
Khan (name above) by two Riffles and had used 6 rounds of bullet. On the spot two empty
cartridges tusk with him and other tusk was taken away by Murad Ali Khan and his
associates. Later one of the tusks w as produced by Sri Prabhu Sahay Bhengra to the officer-
in- charge, Sonua Police Station in my presence. On the basis of the information resolved
from Bhengra I immediately proceeded to Jamshedpur with D.S.P., Chakardharpur and the
D.F.O. Pornahat Division, Sri Murad Ali Khan and his associates. Sri Baby Khan was
interogated who admitted that they, brought one of the. tusks and has sent it to Lucknow for
disposal. They were brought to Chaibasa with jeep No BRX 9588 and they were handed over
in the custody of the S.P. Singhbhum. Chaibasa, for needful. Mr. Murad Ali Khan promised
na produce the tusk in a few days time but did not disclosed the place where he had sent the
tusk at Lucknow ....' The complaint further proceeds to say that elephant is included in the
Schedule-1 of the Wild Life (Protection) Act. 1972 and that the complainant was authorised
by the Bihar Government's notification No SO-1022/418/73 to file complaints under Act.