HALAR UTKARSH SAMITI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have approached this Court by way of this public interest litigation challenging the action/ proposed action on the part of the respondents Nos.1 to 3 of allowing the setting up of a huge pipeline through a declared marine sanctuary. They seek a Mandamus for setting aside the decision allegedly taken by the respondents Nos.1, 2, 3 & 5 to permit the respondent No.4 to lay pipeline as per the modified Route 2-A which passes through reserve forest and marine sanctuary in the Gulf of Kutch.

(2.) According to the petitioners, the respondent No.4, which is a public limited company promoted by Bharat Petroleum Corporation Limited and Oman Oil Company Limited, is in the process of setting up an oil refinery at Bina in Madhya Pradesh. The respondent No.4 made an application on 6.5.1996 to the respondents Nos.1, 2 & 3 for grant of permission for laying petroleum/ oil pipeline as mentioned in the plan. That pipeline was to be laid from a point off the Vadinar Coast in the Gulf of Kutch for the purpose of transporting crude oil and petroleum products. According to the petitioners, it was admittedly to pass through an ecologically sensitive area. It is alleged that in May 1998, the Prime Minister of India wrote a letter to the Chief Minister of Gujarat asking the Chief Minister to grant clearance to the pipeline of the respondent No.4. According to the petitioners, the Central Government by its letter dated 20.8.1998 had stated that the respondent No.4 should not be allowed to put its pipeline in the proposed area and, in fact, had asked the State Government to advise the respondent No.4 to explore an alternate alignment which excludes the area of Gulf of Kutch which was an ecologically sensitive area. It is further alleged in the petition that for some unknown and unfathomable reason, pressure was put upon the Central Ministry of Environment to reconsider its stand in November 1998 and it was compelled to inform the State Government that the Ministry of Environment had decided to give clearance to the project of the respondent No.4 under the Forest (Conservation) Act, 1980. However, the Ministry of Environment, even at that time, stipulated that clearance would not entitle the respondent No.4 to take up any activity in violation of the Wild Life (Protection) Act, 1972 and that it would be the responsibility of the State Government to ensure that the provisions of that Act were followed both in letter and spirit. It is alleged in paragraph 8 of the petition that, in spite of the aforesaid view conveyed by the Ministry of Environment, the office of the Prime Minister and at its behest the Ministry of Petroleum and Natural Gas continued to pressurise the State Government to expeditiously grant the permission. The Principal Secretary to the Prime Minister called for a meeting of various officers on 20.11.1998 to pressurise the Government of Gujarat to clear the said proposal, and the Ministry of Petroleum and Natural Gas addressed communications in December 1998 and March 1999 asking the Government of Gujarat to clear the project. It is also alleged that at about the time when the Central Government lost the confidence of the parliament, the Prime Minister's Secretariat addressed a strongly worded letter to the Government of Gujarat virtually ordering the Government of Gujarat to grant clearance to the said project and report the position immediately to the Prime Minister. Thereafter, the State Government called upon the respondent No.4 to give more particulars of the location of the pipeline. On 15.5.1999, the respondent No.4 made a presentation to the State Government setting out various alternative routes for the pipeline. According to the petitioners, the presentation itself shows that each one of the routes suggested would be passing through or was perilously close to the most precious coral preserve, marine life, flora and fauna and mangroves amongst others. Another application was made on 4.6.1999 by the respondent No.4 based on the presentation for routing the pipeline. The State Government thereafter by its letter dated 29.6.1999 informed the respondent No.4 that none of the routes suggested by the respondent No.4 could be justified for clearance under the Wild Life (Protection) Act, 1972 on account of the possible damage to corals, marine life and mangroves existing all along the four suggested routes. The respondent No.4, in June 1999, was asked by the State Government to suggest an alternative route where there was no possibility of damage to marine life, mangroves and coral habitat or where there was least possible revocable damage to the wild life and also to put forward a plan for regenerating the corals, mangroves and other wild life of marine ecosystem with details of specific mitigation measures for improvement of marine biota and environmental improvement in the existing marine sanctuary and the national park. According to the petitioners, in spite of this stand of the State Government, the respondent No.4 is insisting on choosing one of the routes mentioned by it in its presentation. The respondent No.4 made a representation dated 18.8.1999 in this regard. It is also alleged that in the State of Madhya Pradesh a Congress Government is in power and, according to that Government, there is an alleged delay in clearance of the project, for which delay, it wants to throw the blame on BJP Government at the Centre and in Gujarat. It is further alleged, on the other hand the BJP wants to get kudos from the electorate claiming that it could get an expeditious clearance for the pipeline and has thereby done great service to the State of Madhya Pradesh. It is alleged that in this political imbroglio, the Government of Gujarat and the people of Gujarat and all the precious national heritage are sacrificed and the Central Government is pressurising the State Government to grant such clearance, the advantage of which can be taken in the elections in Madhya Pradesh and a claim made that it could convince the BJP Government in Gujarat to clear the issue expeditiously. In this regard, the petitioners have referred to certain newspaper cuttings which are at Annexures-4 to 7 to the petition. It is also alleged that the Central Government is pressurising the State Government to go to the extent of opening up a large area of the sanctuary and marine park for such activities by passing a resolution of the State Legislature under Section 26-A (3) and Section 25 (3) of the said Act for de-notifying a large area of marine national park and sanctuary to enable the respondent No.4 to put up its pipeline and that the entire exercise is sought to be presented to the State and the nation as a fait accompli. By amendment in the petition, it is further contended that, from the latest press reports it appears that the State Government have decided to accord permission to the respondent No.4 to lay the pipe. It is stated that the Government have not denied the reports appearing in the press. It is also stated that the State Government had in exercise of its powers conferred under Section 18 of the said Act issued notifications dated 20.7.1982 and 12.8.1980 declaring certain areas specified therein as marine sanctuary. It is alleged that the proposed modified Route 2-A will seriously affect the marine sanctuary because of its adverse effect on the wild life. It is stated that Item No.14 of the Schedule to the Notification dated 20.7.1982 mentions "Coral area near Narara Reef" and that the proposed Route 2-A passes through Narara Reef area and it also passes through the reserve forest declared under Section 20 of the Forest Act as well as through the marine sanctuary declared by the Notification dated 20.7.1982. It is also alleged on the basis of press reports that a meeting was convened in New Delhi on 18.9.1999 in the office of the Prime Minister where again top functionaries were present and the State Government, according to the petitioners, has been irrevocably pressurised to grant permission to put up the pipeline on the Route 2-A. According to the petitioners, it has been recently decided to clear the project. It is also alleged that the proposed modified Rout 2-A passes through ecologically sensitive area which would destroy at least 15,000 mangroves and that it is the same old route which has been fraudulently described as a modified route. It is further alleged that the action of granting clearance by de-notifying the area would be hazardous and arbitrary. It is contended that the provisions of Sections 29 and 33 of the said Act totally prohibit carrying out of any activities in an area which is declared as a marine national park or a marine sanctuary.

(3.) In the affidavit-in-reply filed on behalf of the respondents Nos.1, 2 & 5, it has been stated that the petitioners have suppressed material facts inasmuch as they were also petitioners in Special Civil Application No.2840 of 1999 and Special Civil Application No.11271 of 1998 which were rejected by this Court. It is stated that they were attempting to challenge the laying down of pipelines for two other projects, i.e. Reliance Petroleum Limited and Essar Oil Limited and for the reasons stated in those judgments, their contentions were negatived. It is stated that the judgments of this Court in Special Civil Application No.11251 of 1998 as well as Special Civil Application No.403 of 1998 were available and known to the petitioners but they have suppressed them in the petition. It is further stated that the petition is premature inasmuch as no final decision as contemplated under the provisions of the Wild Life (Protection) Act has been taken by the Sate of Gujarat or by the Chief Wild Life Warden as alleged in the petition. It is stated that the entire process is being carried out in accordance with law and the matter is under active consideration of both the respondents Nos.1 & 2. It is further stated that this mega project of national importance is being implemented by a Central Government Undertaking i.e. Bharat Petroleum Corporation Limited and Oman Oil Company in view of the M.O.U. signed by them and also signed by the President of India and Sultanate of Oman. It is stated that this being a project of national importance, its progress is being reviewed and monitored by the Government of India from time to time. It is however denied that there is any pressure and/or endeavour on the part of the Government of India or the Honourable Prime Minister or any functionary or dignitary of the Government of India on the Government of Gujarat or on any of its functionaries or dignitaries for granting any permission in violation of the law. It is further stated that several studies as are mentioned in paragraph 4 of the affidavit were conducted and reports have been submitted to the State of Gujarat and/or the Chief Wild Life Warden for their consideration and they are under their active consideration. It is reiterated that no final decision has been taken in the matter. It is further stated that no pressure has been exerted on the State Government for taking any decision and the entire process under various provisions of the environmental laws is going through in accordance with the clear mandate of the various provisions of the laws applicable to the subject.