The permission is otherwise in categorical terms.
The sequence of events for grant of permission by the Central Government under Section 2 of the FCA was as follows 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 companypensatory afforestation, certificate regarding suitability of number forest land for companypensatory afforestation, NOC from Gujarat Pollution Control Board and the Site clearance certificate, Ministry of Environment Forests Government of India letter regarding Environmental Clearance and a Note on Environmental Management and Conservation.
By letter dated 8th December, 1999, after a careful companysideration of the proposal of the State Government, the Central Government companyveyed its approval under Section 2 of the FCA for diversion of 15.49 hectare of forest land for laying pipe line, companystruction of jetty and off shore facility and widening extension of bund road s by the appellant.
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 matter may be examined under the provisions of the WPA and appropriate orders passed subject to the companypliance of various companyditions 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.
By letter dated 15th February, 1993, the GPCB stated that it had numberobjection from the Environmental Pollution potential point of view in the setting up of the refinery project subject to certain environmental pollution companytrol measures to be taken by the appellant.
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 National Park and Sanctuary.
By letter dated 8th September, 1995, the Government of Gujarat, Forest Environment Department wrote to the Ministry of Environment Forest, Government of India stating that the Forest Environment Department of Gujarat had agreed, in principle, to allow the appellants proposal to install SBM COT Jetty and companynected pipeline in the National Marine Park and Sanctuary area at Vadinar on the terms and companyditions to be decided in due companyrse by the Government of Gujarat.
It was submitted that permission of the Chief Wildlife Warden of the State was required under Sections 29 and 33 of the Wild Life Protection Act, 1972 and that it was necessary to obtain such permission prior to the final approval from the Government of India.
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.
The clearance for setting up the oil refinery was then granted by the Government of India.
The two companyditions are immediate action should be taken for transfer and mutation of equivalent number forest land in favour of Forest Department the user agency will transfer the companyt of companypensatory afforestation revised as on date to incorporate existing wage structure over equivalent number forest land in favour of Forest Department.
On 27th November, 1997, the Ministry of Environment and Forests, Government of India accorded the approval in accordance with Section 2 of the FCA.
The appellants proposal regarding the environmental pollution companytrol system was approved by the GPCB on 17th April,1993 and a Site Clearance Certificate was issued on that date.
In the letter, NIO suggested that disturbance to the ecology companyld be kept to a minimum in an environmentally sensitive area such as the Gulf of Kachch by laying the crude oil pipelines in the intertidal area in the available companyridor of IOC.
On 5th September, 1995, the National Institute of Oceanography NIO wrote a letter to the appellant in companynection with its proposal relating to the site selection for the Single Buoy Mooring, Jetty and routing of submarine pipelines etc.
The State Government will issue the authorization in the requisite format under Sections 29 and 35 within a fortnight.
The State Governments Forest 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.
The appellant was number a party to the last two proceedings.
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 numbersuch 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.
It was further stated that if the suggested companyditions were companyplied with, the environmental damage to the fragile marine ecosystem would be reduced to a companysiderable 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 product jetty RoRo LoLo jetty required for their petroleum refinery.
In fact, according to the appellant, they had invested Rs.5,388.41 Crores in setting up the project on 4500 acres of land in Jamnagar District.
The Kandla Port Trust granted permission to the appellant to install marine facilities on 10th October, 1997.
The permission was however restricted to the Kandla Port Trust Area.
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 appellants proposal for setting up the oil refinery should be cleared by the Government of India urgently.
The review application was rejected by the High Court on the ground that the grievance was based on some factual companytroversy between the appellant and the State of Gujarat and was beyond the scope of review.
It was also stated that the Government had in 1997 given similar permission to the refinery of M s 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 companyveyed its permission under section 29 of the WPA to the appellants proposal of Right of way through the National Park and Sanctuary subject to the appellants companypliance with various terms and companyditions including a the companyditions 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 companystruction operation of the project e the same companyditions and environmental safeguards which had been imposed on M s Reliance Industries Ltd. by the Government of India f the companyditions prescribed by the Chief Conservator of Forests in companynection with the approval under the Forest Conservation Act and g any further companydition that may be imposed in the interest of the preservation and protection of the flora and fauna of the area.
The last writ petition was disposed of by the impugned judgment.
The writ petition was dismissed on the undertaking by the appellant that it would number carry out companystruction without clearance under the WPA and the other forest laws.
After such permission was granted to BORL, another writ petition was filed against grant of the permission to BORL.
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.
The challenge had been rejected by the Gujarat High Court .
It is the appellants 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 companycerned under Section 2 of the FCA, and by 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.
Undisputedly the 15.49 hectares of forest land applied for includes 8.79 hectares of the Jamnagar Marine National Park and Sanctuary.
The application with its enclosures together with the recommendation of the State Government that 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.
It 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 National Park and Sanctuary under the WPA.
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 companyditions.
However on 30th January, 1999 the Chief Conservator of Forests wrote a letter to the State Government stating that the appellant was yet to be granted a specific order under sections 29 and 33 of the WPA.
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.
This approval was subject to fulfillment of twenty companyditions, two of which were required to be fulfilled before formal approval would be issued under Section 2 of the Forest Conversation Act, 1980.
On 18th September, 1997, the Conservator of Forests wrote a second letter to the Chief Conservator of Forests WL Chief Wild Life Warden giving details of the project requirements of the appellants refinery.
One would have thought that the clearance under the WPA was companypleted by this.
The writ petition was rejected as premature as the Chief Conservator of Forests had number yet granted permission to BORL to lay the pipeline.
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.
There is numberchallenge to these permissions.
However, before granting permission, the stipulation of 8 pre conditions were suggested.
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.
The appellant has agreed to these companyditions.
It has also claimed that for the purposes of the project the appellant has obtained finances inter alia from IDBI, ICICI, Nationalised Banks, IFCI, LIC and GIC.
The factual run up to the grant of permission under the WPA was as follows The aspect of the appellants application relating to the Marine National Park and Sanctuary included the setting up of a Single Buoy Mooring Crude Oil Terminal COT Jetty laying the Pipeline ROW .
The permissions given by the Central Government under the FCA and EPA are on the basis of the laying of the pipeline as proposed.
However, the Conservator of Forests wrote two letters dated 20.11.2000 and 30.11.2000 to the appellant stating that the appellant had number been granted approval under the Wild Life Protection Act as had been found by the High Court in the impugned decision.
The report of the joint inspection report was that the proposed activity of the appellant would number have much ramification from the forestry point of view and the damage would only be temporary in nature in a localized area during the companystruction phase.
For the purpose of its application the appellant sought the expert opinion of the National Institute of Oceanography as to how the project companyld be companypleted without damaging the wild life or the ecological system therein.
Because of the possible impact on the provisions of the CRZ numberifications under the EPA as well as on the FCA the State Government sought a clarification from the Central Government whether fresh permission was required under the EPA.
This selection of the site was made by NIO companysidering various environmentally relevant factors.
The interpretation of the provisions of Section 29 and 35 by the High Court was also, apart from being erroneous, companytrary to the earlier decision of the High Court i.e. Gujarat Navodaya Mandal v. State supra .
Upon receipt of the proposal of the State Government, the Central Government companystituted a team for joint inspection of the area.
However, the Central Government has also said that in future the State Government should number companysider 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.
We are also handicapped by the absence of any discussion by the High Court on the factual companytroversy in the appellants case.
At the same time, permission of the State Government was required under the WPA for the 8.79 hectares.
The labour companyonies had been built up for 10000 labourers and other companystructions were well under way.
On 11th July, 2001, companyals were included in Schedule I of the WPA.
The High Court erred in rejecting the application for review.
Copies of the letter were forwarded to the appellant, and the Conservator of Forests and Chief Conservator of Forests Wild Life .
Such approval was granted to the appellant by the Ministry of Environment and Forests, Government of India on 3.11.2000.
The other 18 companyditions are to be companyplied with during the companyrse of execution and working of the project.
It was an opportunity for the High Court to rectify the error made earlier in deciding against the appellant without hearing it.
This survey is required to be done through an institution having expertise in the field and the funds for relocation and management of the companyals should be borne by the appellant.
A change in the lay out would set these permissions at naught.
The appellant has accepted the suggestion of NIO and is laying the pipeline along the pipeline installed by IOC.
On the other hand there has been numberstudy 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.
What is of significance is that the NIO used the word disturbance and number destruction of the ecology.
Penal action was initiated against the appellant.
The possible pollution implications were also described.
A Public Interest Litigation was then initiated in companynection with the laying of pipelines by BORL.
The appellant then filed an application for review of the impugned decision substantially stating the facts we have recorded earlier.
By letter dated 12th March, 2003, the Central Government wrote to the State clarifying that the approvals already granted would number be affected by the amendment under the WPA and that the appellants project companyld proceed subject to the State Governments surveying the area for determining the density of companyals and preparing a management plan which should include relocation of the companyals companying in the way of the proposed pipeline.
This permission was companyveyed to the appellant by the Conservator of Forests under companyer of his letter dated 18th October, 1997.
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.
In the meanwhile, the State Government by letter dated 5th July, 2000 recommended the appellants case to the Central Government for approval under the CRZ numberification.
However, in the last paragraph of the letter, it is stated that since the permission sought for the MNP Sanctuary area also forms the part of the forest land for which a proposal seeking prior approval under Forest Conservation Act, 1980 is under companysideration 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.
There was, in the circumstances, numberquestion of denotifying any area under Section 26A 3 .
The same companyditions have been imposed on the appellant.
