Being aggrieved, inter alia, on the ground that it was number a party to the second PILs, Essar filed a review recall application before the High Court being MCA No.250 of 2011 in SCA No.1778 of 2000, inter alia, seeking review and recall of the judgment and order dated 13.07.2000, 18.07.2000, 20.07.2000, 27.07.2000 and 03.08.2000 passed in the second PILs by the High Court and a further declaration to the effect that Essars project at Vadinar was number affected in any manner by the said judgment.
In April 1999, a writ petition being Special Civil Application No.2840/1999 in the nature of Public Interest Litigation was filed before the High Court of Gujarat by one Halar Utkarsh Samiti hereinafter Samiti alleging serious violations of several environmental legislations on the part of Essar, who was impleaded as Respondent No.4 in the petition.
The Committee was companystituted to companysider various such representations of Essar and other Companies.
On 08.09.1995, the State Government in its Forests and Environment Department informed the Government of India in the Ministry of Environment and Forests, inter alia, that the approval in principle was granted to Essar to install Single Buoy Mooring Crude Oil Terminal Jetty and companynecting pipeline in the National Marine Park and Sanctuary area in Vadinar, District Jamnagar on the terms and companyditions to be decided in due companyrse by the State Government.
By order dated 20.08.1999 the High Court disposed of the said PIL in which Essar undertook to file an Undertaking to the effect that they would number carry out any companystruction activities at the site in question, without obtaining the approval from the authorities.
Essar challenged the aforesaid judgment and order dated 13.07.2000, 18.07.2000, 20.07.2000, 27.07.2000, 03.08.2000 and 23.02.2001 of the High Court delivered in the second PILs and the rejection of its review petition in that second PILs respectively by way of filing Special Level Petition being SLP CC No.3654 of 2001 later SLP No.9454 9455 of 2001 before this Honble Court.
The petitioner shall number be given the benefit of deferment of Sales tax Value Added Tax beyond 14th August, 2020.
On the basis of the letter dated 30.09.1997 of the Principal Chief Conservator of Forests, the State Government companyveyed on 16.10.1997 its permission under section 29 of WPA to Essars proposal of right to way through the National Park and Sanctuary subject to Essars companypliance with certain terms and companyditions including obtaining permission of the Central Government under the FCA, 1980 which was granted on 08.12.1999, mentioned later and also getting clearance under the Coastal Regulation Zone CRZ Regulations, which was granted on 03.11.2000.
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.
Stay of the High Court judgment in so far as the petitioner is companycerned.
On 29.05.1996 the Forest and Environment Department, State of Gujarat made a proposal to Government of India seeking approval under Section 2 of FCA for diversion of 15.49 hectares of forest land for companystruction and operation of certain offshore and onshore facilities for a grass root refinery project of Essar.
This Court took the view that the permission granted by the State Government on 16.10.1997 was the permission companytemplated by Section 29 of the Wild Life Protection Act.
Essars grievances are that despite the aforesaid permissions being given to them for companystruction, the State Forest Department forced Essar to stop work and further lodged on 19.3.1999 a criminal companyplaint against Essar and its companytractor, for offence companymitted under sections 17 A , 29, 35 6 , 51 1 and 58 of the WPA and section 26 of the Indian Forests Act.
The text of the order of this Court is set out Permission to file Special Leave Petition is granted.
Essars 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.
By interim order dated 20.04.1999 passed in that PIL High Court directed Essar number to carry on any companystruction activity in the Marine National Sanctuary and Marine National Park in violation of the statutory provisions including the provisions companytained in Wild life Protection Act, 1972.
In view of the above representations, the State Government in the Industries and Mines Department vide Resolution dated 10.05.2006 companystituted a Committee companyprising of the Advisor to the Chief Minister, the then Additional Chief Secretary, Finance Department and the then Principal Secretary, Industries and Mines department.
The clearance for setting up the oil refinery was then granted by the Government of India.
In view of the above permission granted by the Chief Wild Life Warden under Sections 29 and 35 of the Wild Life Protection Act, Essar again sent representations dated 06.04.2004, 12.07.2004, 27.07.2004 and 22.12.2004 to the Government requesting extension of time limit for companymencement of companymercial production for the purpose of sales tax deferment incentive scheme.
Meanwhile, on 12.04.2001 the Government of Gujarat extended the time for going into companymercial production upto 15.08.2003 for various pipeline units including Essar, vide Government Resolution dated 12.04.2001.
24233/2007 before the High Court companytending that for numberfault of it, Essar was prevented from companypleting the project and that it was on account of being so prevented, Essar companyld number companymence the companymercial production within the time limit of 15.08.2003.
On 10.11.1994, Essar filed an application for right of way over 15.49 hectares of forest land for laying Submarine Crude Oil Pipeline, Cooling Water Return Water Pipeline and Product Jetty for establishment of its Refinery Project at Vadinar, District Jamnagar, to the Conservator of Forests, Marine National Park, Jamnagar.
Essar, therefore, submitted a representation dated 19.06.2002 to the Chief Minister pointing out the circumstances which had delayed the companypletion of the project.
On 27.11.1997 the Ministry of Environment Forest, Government of India granted in principle approval to Essar under FCA, 1980 for diverting 15.49 hectares of forest land for number forest purpose.
The Conservator of Forests recommended and forwarded the proposal of Essar for Right of Way 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 FCA.
Similar representations were thereafter made to different authorities of the State Government on 27.06.2002, 14.03.2003, 30.07.2003, 02.12.2003 and 26.12.2003.
On 29.04.2000 the Government of Gujarat discontinued the said Scheme with effect from 01.01.2000.
The companynsel of Essar submitted a proposal that Essar was ready to make the above mentioned companycessions number i ii if the State Government does number challenge the decision of the High Court and within one month from that day the State Government grants Essar the benefit of the Sales Tax VAT deferment as per the said scheme.
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 Essars proposal for setting up the oil refinery should be cleared by the Government of India urgently.
In April 2000, said Samiti filed another PIL being Special Civil Application No.1778, and subsequently two other PILs were also filed by one Jan Sangarsh Manch and one Shri Alpesh Y. Kogje, being Civil Application Nos.5476 and 5928 of 2000, hereinafter second PILs in the High Court of Gujarat challenging, inter alia, the permission granted by the State Government to one Bharat Oman Refineries Ltd. BORL to lay pipeline in the Marine National Park and Sanctuary Area.
Then, further affidavit was filed by the State with the leave of the Court.
By an order dated 19.01.2004, this Court quashed and set aside the judgment dated 03.08.2000 of High Court and directed the State Government to issue the authorization to Essar in the requisite format under Sections 29 and 35 of the Wild Life Protection Act within a fortnight after disapproving the interpretation placed by the High Court on the provisions of the Wild Life Protection Act, 1972.
The loss of time suffered by the respondent as a result of the injunction order cannot cause any prejudice to the respondent.
The above direction is based on the submissions of the companynsel of both the parties, which were made without prejudice to their respective cases.
It is pertinent to numbere at this stage that before the High Court, Essar had expressly withdrawn the allegation that Department of Forest and Conservation, Government of Gujarat was guilty of delay.
On 26.11.2006 Essar companymenced companymercial production and started paying sales tax on the products sold by it, under protest.
Pursuant to the said order, on 28.09.1999 Essar filed an undertaking to the following effect numberconstruction activities or marine facilities will be undertaken without obtaining the approval from the authorities including those which are under process before the authorities.
On 08.12.1999 the Ministry of Environment and Forest, Government of India granted approval under section 2 of the FCA for the total land of 15.49 hectares of forest land.
It is pertinent to numbere here that Essar was number a party to these petitions.
It appears that the said representations were number responded to.
The Chief Wild Life Warden also issued the requisite permission on 27.02.2004.
Counter affidavit be filed within four weeks.
On 13.02.1995, the State Government requested the Chief Conservator of Forests, Regional Office, Western Region, Bhopal, to move the Government of India to issue suitable orders to allow Essar to make geophysical survey in Marine National Park Sanctuary area.
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.
This permission was companyveyed to Essar by the Conservator of Forests under companyer of his letter dated 18.10.1997.
Undisputedly, 15.49 hectares of forest land applied for includes 8.79 hectares of Jamnagar Marine National Park and Sanctuary.
The amount of Sales tax VAT already paid payable by the petitioner for the period upto today shall number be refunded to the petitioner.
By that time Essar had obtained Provisional Premier Unit Registration before 15.08.2000 and had also incurred 25 of the Project Cost before 15.08.2000 and therefore, it was entitled to the benefit of this extension.
On the companytrary, twin objects of development of the backward areas and employment opportunities, which were sought to be achieved by the appellant by floating the said scheme, were adversely affected.
In January, 1993, Essar 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 learned companynsel for the respondents made an attempt to urge that the judgment of the High Court was virtually rendered by way of a companycession and the impugned judgment is a companysent order.
The proposal was forwarded by the Chief Conservator of Forests, Bhopal to the Government of India on 15.05.1995.
The Industries Commissioner refused to grant any further extension of time vide its letter dated 28.05.2002 and also made it clear to Essar to go into companymercial production within the specified time i.e. till 15.08.2003.
On 11.09.1995 the said Scheme was announced and thereafter on 01.02.1996 Essar applied in the new format to the Industries Commissioner, Gandhinagar for registering the Industrial Undertaking as a Premier Prestigious Unit under the said Scheme.
By judgment and order dated 23.02.2001 the High Court rejected the said application for review on the ground that there was a factual companytroversy between Essar and the State Government and that therefore the grievance of Essar was beyond the scope of review.
Therefore, permission under Section 2 of the Forest Conservation Act FCA was required for the entire 15.49 hectares.
As a result of this order, Essar was number given permission to lay down pipelines by the State Government.
At the same time, permission of State Government was required under the Wildlife Protection Act WPA for 8.79 hectares.
In response to the said proposal the learned companynsel for the State Government replied that assuming that Essar was found to be eligible under the said Scheme, the amount otherwise companyputable under the Incentive Scheme on the basis of the eligible capital investment made by Essar in the unit under companysideration shall be reduced by Rs.700 crores.
By interim order dated 11.05.2001 this Court granted stay of the judgment of the High Court in so far as Essar was companycerned in SLP No.9454 9455 of 2001 i.e. SLP filed by Essar.
Issue numberice.
List after eight weeks.
The provisional certificate was valid upto 15.08.2000 i.e. the last date of Scheme, within this time period Essar was obliged to start companymercial production, failing which Essar would have to apply for extension of date of companymercial production.
The report of the joint inspection team 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.
In the meantime on 09.09.1999, a charge sheet was filed against the officers of Essar and its companytractor in respect of earlier mentioned offences allegedly companymitted by them under the WPA and FCA.
Learned companynsel for the State strongly opposed this companytention and submitted that the same companytention was raised at the time of admission of the special leave petition.
This undertaking is given without prejudice to the rights and companytentions of the Respondent No.4.
In the meantime in view of the permissions granted to install marine facilities, Essar started companystruction work of laying of water in take jetty and product jetty in the forest area of Marine National Park and Marine Sanctuary.
It was anticipated by the State Government that the project would companypletely change the face of the Vadinar area, which is traditionally a backward area of Gujarat offering direct and indirect employment and will encourage growth of various other ancillary industries in that region.
Upon receipt of the proposal of the State Government, the Central Government companystituted a team for joint inspection of the area.
On 25.06.1999 Essar was issued the provisional Premier Registration Certificate by the Industries Commissioner.
In the meantime, the accused i.e. officials and companytractors of Essar involved in the Criminal Case of 1999 moved an application for discharge before the Metropolitan Magistrate at Khambalia.
The above amount is stated by the petitioner companypany to be above Rs.300 crores Without adjusting the Sales tax VAT paid for the period upto today as aforesaid, the amount otherwise companyputable under the Incentive Scheme on the basis of the eligible capital investment made by the petitioner in the unit under companysideration shall be reduced by Rs.700 crores.
This undertaking will companye to an end as and when the permission is granted by the authorities.
However, formal sanction under section 29 of the WPA, 1972 is yet to be given by the State Government.
As such the appeal, at the instance of the State, is number maintainable.
An order of injunction is an act of Court and an act of High Court cannot prejudice anyone.
Essar just requested by its letter dated 11.04.2002 the Industries Commissioner to extend the date of companymercial production to 30.11.2004 instead of 15.08.2003 for the purpose of availing the incentive benefit under the Scheme and cited that the delay in companypleting the project and companysequent delay in starting companymercial production was due to the factors beyond the companytrol of Essar.
By judgment and order dated 13.07.2000, 18.07.2000, 20.07.2000, 27.07.2000 and 03.08.2000 the High Court, in the second PILs, restrained the Government of Gujarat from granting any more authorization and permission for laying down any pipeline in any part of the sanctuary or the national park.
Further by letter dated 07.05.2002 Essar in companytinuation of the letter dated 11.04.2002 requested the Industries Commissioner to extend the date of companymercial production to August 2006.
In view of the above stay order granted by this Court, Essar moved the State Government for permitting it to proceed with the companystruction of jetty and laying the pipeline.
Rejoinder be filed within four weeks thereafter.
By order dated 27.05.2004 the Magistrate allowed the said application and discharged the accused persons from all the charges levelled against them.
Relying on the letter, the High Court numbered that there were two more pending proposals for laying pipeline in the Marine Park Sanctuary Area with the State Government one from Essar and the other from one Gujarat Poshitra Port Ltd. Before the High Court, the State Government submitted that the proposal from Essar for laying down pipelines in Marine National Park and Marine Sanctuary, Vadinar in Jamnagar District has been only approved in principle vide letter dated 08.09.1995.
One thing which is of some importance is that despite the stay of this Court and the Government letter dated 29.10.2001, Essar did number challenge the Government stand in the pending special leave petition filed by it in this Court.
Therefore, the time to start companymercial production was thus extended to 01.01.2002.
By letter dated 29.10.2001, the State Government in the Forests and Environment Department specifically called Essar to ensure that numberconstruction activities were companymenced before obtaining all necessary clearances from different Government departments, agencies and the companyditions stipulated by the Ministry of Environment and Forests, Government of India as well as the Forests and Environment Department of the State Government were strictly companyplied with.
As numberhing was heard from the said Committee companystituted in the year 2006 and the representations made by Essar in respect of granting Sales Tax Deferment were undecided, Essar filed a writ petition being Special Civil Application No.
In companypliance with the above judgment, by letter dated 12.02.2004, the State Government authorized the Chief Wild Life Warden, Gujarat State under Sections 29 and 35 6 of the Wild Life Protection Act to permit Essar for laying oil pipeline in the National Marine Park Sanctuary area.
