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It is not obliged to seek prior environmental clearance for notifying land under NH Act: SC

Central government not obliged to seek prior environmental clearance for notifying land under National Highway Act, 1956.


Considering the interplay of provisions empowering the Central Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act. (Para 69)


The Project Director, Project Implementation Unit v. P.V. Krishnamoorthy & Ors.

Civil Appeal Nos. 39763977 of 2020 (Arising out of SLP(C) Nos. 1338413385/2019)

08 December, 2020.


The Hon’ble Supreme Court comprising of Justice A.M. Khanwilkar Justice B.R. Gavai and Justice Krishna Murari held in a case that it is not for the Supreme Court to sit as court(s) of appeal over the decisions of the Competent Authority


The Project (Bharatmala Pariyojna Phase I) has been conceived as a new umbrella program for the highways sector that focuses on optimising efficiency of freight and passenger movement across the country traversing across around 24,800 kms in Phase I. In addition, Phase I also includes 10,000 kms. of balance road works under National Highways Development Program. Although the Project stretches had been identified taking into account integration of economic corridors with the ongoing projects under NHDP and infrastructure asymmetry in major corridors, an express discretion has been bestowed on Minister – Road Transport & Highways to substitute/replace upto 15% length of 24,800 kms. For the Project (Phase I of program) by other suitable projects, if development of certain identified stretches cannot be taken up on account of issues pertaining to alignment finalisation, land availability and other unforeseen factors.


A meeting was held on 19.1.2018 under the Chairmanship of Secretary (Road Transport & Highways). After due deliberations and considering all aspects, the Committee proceeded to unanimously substitute the project C-K-S (NC) in the place of the proposed C-M (EC). Subsequently, notifications under Section 2(2) of the 1956 Act came to be issued, declaring the stretch/section from Tambaram (Chennai) to Harur as NH179B and from Harur to Salem as NH179A.


The notifications under Section 3A of the 1956 Act were challenged by the affected land owners and also by way of public interest litigation. In addition, in Writ Petition No. 21242/2018, the notifications issued under Section 2(2) of the 1956 Act declaring the concerned stretches/sections being NH179A and NH179B respectively, came to be challenged. The Madras High Court all but on one issue held in favour of the land owners. Regarding the jurisdiction of the entire land acquisition proceedings as a declaration under Section 2(2), the Court held in favour of NHAI.

Aggrieved, three sets of appeals have been filed before this Court. First, by the NHAI, second by the Union of India and third, by the land owner(s) in reference to rejection of challenge to notifications under Section 2(2) of the 1956 Act.


Counsel for the Appellants submitted that (i) There is ample power bestowed in the appellant – NHAI and the Central Government in particular, in terms of the 1956 Act and the NHAI Act, 1988 to acquire open land for the purposes of construction of national highway, as may be declared under Section 2(2) of the 1956 Act. (ii) The High Court also completely glossed over the mandate of Section 3D of the 1956 Act, predicating that the final declaration there under ought to be issued within one year from the date of publication of notifications under Section 3A, (iii) The High Court has misled itself by holding that prior environmental and forest clearances ought to be obtained even before issuing notifications under Section 3A of the 1956 Act. (iv) The High Court has interfered with the policy decision of the competent authority (the MoRTH) dated 19.1.2018, completely overlooking the discretion bestowed in the Ministry


The Counsels for the Respondents urged that (i) The notifications under Section 3A(1) of the 1956 Act issued without obtaining prior environmental clearance from the MoEF in terms of the notification dated 14.9.2006 are void and bad in law. (ii) A harmonious reading of the provisions of the 1956 Act and the 1988 Act go to show that the competent authority under the 1988 Act (NHAI) is expected to initiate the process by undertaking survey of the land and identifying the land under Section 16(2) of the 1988 Act (iii) The action of the competent authority is replete with undue haste and non application of mind besides being in violation of the standard operating procedures applicable to such Project including of not obtaining prior environmental/forest clearances before issuing notifications under Section 3A of the 1956 Act.


Holding that the challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence is devoid of merits, the Court referred extensively to the statement of objects and reasons of the 1956 Act, various provisions of the 1956 Act, Article 246, 257 of the Constitution, its judgment in K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka, (2011) 9 SCC 1, Synthetics and Chemicals Ltd. & Ors. vs. State of U.P. & Ors., (1990) 1 SCC 109 and observed the following:

A priori, the Central Government is free to construct/build a new national highway keeping in mind the obligations it has to discharge under Part IV of the Constitution for securing a social order and promotion of welfare of the people in the concerned region, to provide them adequate means of livelihood, distribute material resources as best to subserve the common good, create new opportunities, so as to empower the people of that area including provisioning new economic opportunities in the area through which the national highway would pass and the country’s economy as a whole. The availability of a highway in any part of the State paves way for sustainable development and for overall enhancement of human wellbeing including to facilitate the habitants thereat to enjoy a decent quality of life, creation of assets (due to natural increase in market value of their properties) and to fulfill their aspirations of good life by provisioning access to newer and present day opportunities. (Para 32)


Referring to section 3A to 3J of the 1956 Act, the court noted that the substance of the Act is ascribable to entry 23 of list 1 of schedule 7 and observed the following words:

As aforesaid, Sections 3A to 3J have been inserted by way of amendment of 1997. On close examination, the 1956 Act, as amended and applicable to the present case, is an Act to authorise Central Government to declare the notified stretches/sections in the State concerned as a highway to be a national highway; and for matters connected therewith including acquisition of “any land” for building or construction of a new highway (which need not be an existing road/highway). The substance of this Act is ascribable to Entry 23 of the Union List and matters connected therewith. (Para 35)


Having said thus, we have no hesitation in concluding that the challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence, is devoid of merits. The High Court justly negatived the same and we uphold that conclusion. (Para 36)


Emphasizing on section 2(2) of the 1956 Act and referring to the meaning of “Highways” and “National Highways” in Venkataramaiya’s Law Lexicon and P. Ramanatha Aiyar’s Advanced Law Lexicon, the Court observed the following with regard to the Central Government acquiring Greenfield roads for National Highways:

The Central Government, whilst exercising power under Section 2(2) of the 1956 Act creates a right in the locals of the concerned area to pass and repass along a highway from one marked town or inhabited place to another inhabited place for the purpose of legitimate travel. Such highway is dedicated for the ordinary and reasonable user of the road as a national highway from one designated town (Chennai) upto another town (Salem), which will be common to all the subjects. As expounded hitherto, the Central Government is fully competent to notify “any land” (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway. (Para 41)


Regarding the issue of changing the Section from C-M (EC) to C-K-S (NC), the court, referring to its judgment in Sooraram Pratap Reddy & Ors. vs. District Collector, Ranga Reddy District & Ors., (2008) 9 SCC 552 and Somawanti & Ors. vs. State of Punjab & Ors, AIR 1963 SC 151, observed the following:

This Court in Sooraram Pratap Reddy (supra) had held that it is the primary duty of the competent authority to decide whether there exists public purpose or not. The Courts may not ordinarily interfere with that unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so called purpose is no public purpose at all and fraud of statute is manifest. Further, it is not for the Courts to sit over such decision as a Court(s) of appeal and to disregard it merely because another option would have been more beneficial. (Para 46)


Applying the above legality in the facts of the present case, the Court observed the following:

Suffice it to observe that the decision taken by the Committee which culminated with the issuance of notification under Section 2(2) of the 1956 Act is in complete conformity with the governing provisions and guidelines and founded on tangible and objective facts noted in the minutes dated 19.1.2018. The Central Government had full authority to adopt such a change of stretch/section, by way of substitution/replacement whilst ensuring that there is no need for higher budgetary allocation than envisaged in the already approved programme for Phase I. Thus, there is no legal basis to doubt the validity of the notification under Section 2(2) and ex consequenti Section 3A of the 1956 Act as well. (Para 47)


On the issue of seeking prior permission from the forest department before issuing the notification, the Court referred to the notification issued by MoEF on 14.09.2006 and the Office Memorandum of MoEF dated 7.10.2014 and observed the following:

On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The competent authority in the former, may be satisfied that the acquisition of land in question is for public purpose, but if the competent authority under the latter legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/permission can be granted after the public hearing. (Para 55)


Considering the interplay of provisions empowering the Central Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act. (Para 69)


Reverting to the dictum of this Court in Karnataka Industrial Areas Development Board (supra), it must be understood to mean that the declaration under Section 3D regarding acquisition of notified land, be made only after environmental/forest clearance qua the specific land is granted. To put it differently, the necessity of prior environmental/forest clearance would arise only if finally, the land in question (site 128 specific) is to be notified under Section 3D, as being acquired for the purposes of building, maintenance, management or operation of the national highway or part thereof. Such interpretation would further the cause and objective of environment and forest laws, as also not impede the timeline specified for building, maintenance, management or operation of the national highway or part thereof, which undeniably is a public purpose and of national importance. This would also assuage the concerns of the land owners that even if eventually no environment permission or forest clearance is accorded, the land cannot be reverted to the original owner as it had de jure vested in the Central Government upon issue of notification under Section 3D of the 1956 Act and no power is bestowed on the Central Government under this Act to withdraw from acquisition. ( Para 70)


Rejecting the contention of the land owners that the expression “shall” occurring in Section 3D(1) of the 1956 Act be construed as “may”, the Court observed the following:

The argument of the writ petitioners that the expression “shall” occurring in Section 3D(1) be interpreted as “may”, though attractive on the first blush, deserves to be rejected. If that interpretation is accepted, it would render the efficacy of Section 3D(3) of lapsing of the acquisition process otiose. It is a mandatory provision. Instead, we have acceded to the alternative argument to give expansive meaning to the proviso in Section 3D(3) of the 1956 Act by interpretative process, including by invoking plenary powers of this Court under Article 142 of the Constitution to hold that the dictum of this Court in Karnataka Industrial Areas Development Board (supra) be regarded as stay granted by the Court to all notifications issued under Section 3A of the 1956 Act until the grant or nongrant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. (Para 72)


With regard to the issue of mutation entries entered in favour of the acquiring bodies, the Court noted the following:

The High Court directed the concerned revenue authorities to restore the mutation entries effected in favour of the acquiring body/NHAI merely on the basis of notification under Section 3A of the 1956 Act. By virtue of notification under Section 3A of the 1956 Act, neither the acquiring body nor the NHAI had come in possession of the concerned land nor had the land vested in them, so as to alter the mutation entry in their favour. To that extent, we agree with the High Court that until the acquisition process is completed and possession of land is taken, the question of altering the mutation entry merely on the basis of notification under Section 3A of the 1956 Act cannot be countenanced and, therefore, the earlier entries ought to be restored. That direction of the High Court needs no interference. (Para 76)


Consequently, the appeals were partly allowed. However, the land owners appeal stand dismissed. The challenge to impugned notifications under Sections 2(2) and 3A of the 1956 Act, respectively, is negatived. The direction issued (in paragraph 106 of the impugned judgment) to the concerned authorities to restore the subject mutation entries is, however, upheld.



Kalidharun K M

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