THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT versus P.V. KRISHNAMOORTHY AND ORS.

[2020] 14 S.C.R. 86

[2020] 14 S.C.R.

ATHE PROJECT DIRECTOR, PROJECTIMPLEMENTATION UNIT

P.V. KRISHNAMOORTHY AND ORS.

B(Civil Appeal Nos. 3976-3977 of 2020)

DECEMBER 08, 2020[A. M. KHANWILKAR, B. R. GAVAI ANDKRISHNA MURARI, JJ.]

Constitution of India – Arts.246, 248 – Union List, Entry 23C– Declaration of open green-field lands as national highway –Legislative competence of Parliament to enact law for –Development/construction of Chennai-Krishnagiri-Salem (NationalCorridor) [C-K-S (NC)] 8 Lanes new National Highway (NH-179Aand NH-179B) being part of the larger Project (BharatmalaDPariyojna-Phase I) – Notifications issued u/s.2(2), 1956 Actdeclaring C-K-S (NC) as national highway stretch/section (NH-179A and NH-179B) – Notifications u/s.3A(1), 1956 Act specifyingthe lands proposed to be acquired for the national highway(s) issuedfor the concerned stretches/sections – Challenged – High Courtinter alia held notifications issued u/s.3A(1) as illegal – On appeal,Eheld: 1956 Act authorises Central Government to declare the notifiedstretches/sections in the State concerned as highway to be anational highway; and for matters connected therewith includingacquisition of “any land” for building or construction of newhighway (which need not be an existing road/highway) – NothingFin the Constitution or the 1956 Act limits this power only in respectof existing roads/highways within the State – Substance of this Actis ascribable to Entry 23, Union List and matters connected therewith– Expression “highway” has not been defined in the 1956 Act or1988 Act – Central Government is fully competent to notify “anyland” (not necessarily an existing road/highway) for acquisition,Gto construct highway to be national highway – Further, at thestage of issuing notifications u/ss.2(2) or 3A there is no need toseek prior environmental/forest clearance – Clearance is requiredto be obtained by the executing agency “before commencing theactual work or executing the proposed work/project” – Also, thereis no substance in the argument that the change of stretch/sectionH

from Chennai-Madurai (Economic Corridor) [C-M (EC)] originallyincluded in the Project to C-K-S (NC) as regards State of TamilNadu was not based on tangible material – Challenge to impugnednotifications u/ss.2(2) and 3A negatived – Impugned judgmentmodified to the extent indicated – National Highways Act, 1956 –ss.2(2), 3A – National Highway Rules, 1957 – National HighwayAuthority of India Act, 1988 – ss.3, 11-13, 16 – Doctrine of pithand substance –Environment (Protection) Act, 1986 – Interpretationof Statutes – Harmonious Construction.

Constitution of India – Union List, Entry 23; State List, Entry13 – Held: Fact that Entry 13 of List II bestows exclusive powerupon the legislature of any State concerning subject “roads”, cannotbe the basis to give restricted meaning to Entry 23 in List I, dealingwith all matters concerning “national highways”.

National Highways Act, 1956 – Scheme of – ss.2, 3, 3A-3J,4-6, 9 – Discussed.

Constitution of India – Part XI, Chapter II – Art.257 – Held:Art.257 expounds about the control of the Union over States incertain cases – Clause (2) predicates that the executive power ofthe Union shall also extend to giving directions to State as to theconstruction and maintenance of means of communication declaredto be of national and military importance – Proviso makes it clearthat power of the Parliament is not restricted in any way to thematters specified therein.

Land Acquisition – Judicial review – Scope of – Discussed.

National Highway Authority of India Act, 1988– ss.11-13 –Scope of – Discussed.

National Highways Act, 1956 – Public hearing under –Purpose of – Discussed – National Highway Authority of India Act,1988 – Environment (Protection) Act, 1986.

National Highways Act, 1956 – ss.3A, 3D(3) – Declarationu/s.3D not issued within one year from the date of publication ofthe notification u/s.3A – Deemed lapse of notification u/s.3Apredicated in s.3D(3) – Held: It is possible that whilst pursuing theproposal for environmental/forest clearance after notification u/s.3A, some time may be lost, even though the process under the

A1956 Act for acquisition of the land had become ripe for issue ofdeclaration of acquisition u/s.3D – To get over this predicament,the dictum in paragraph 100(1) of Karnataka Industrial AreasDevelopment Board v. C. Kenchappa & Ors. reported as [1996]10 Suppl. SCR 12 shall operate as stay by an order of the Courtfor purposes of s.3D(3) in respect of all projects under the 1956BAct, in particular for excluding the time spent after issue of s.3Anotification, in obtaining the environmental clearance as well asfor permissions under the forest laws – Constitution of India –Art.142.

Disposing of the appeals, the CourtCHELD: 1.1 LEGISLATIVE COMPETENCE OF THEUNION

This Court shall first deal with the legislative power of theUnion. Is it limited to making law in exercise of powers ascribableDto Entry 23 of List I in respect of an existing highway to bedeclared as national highway, as is contended? The legislativepower of the Parliament can be traced to Article 246. Indisputably,law made by the Parliament in the present case is the 1956 Actand the 1988 Act in reference to Entry 23 of List I of the SeventhSchedule. If the stated law made by the Parliament is ascribableEto Entry 23 of List I of the Seventh Schedule, the Parliament hasthe exclusive power to make law on that subject and for mattersconnected therewith. The fact that Entry 13 of List II bestowsexclusive power upon the legislature of any State concerningsubject “roads”, cannot be the basis to give restricted meaningFto Entry 23 in List I, dealing with all matters concerning “nationalhighways”. It is well-established position that if the law made bythe Parliament is in respect of subject falling under Union List,then the incidental encroachment by the law under the State list,per se, would not render it invalid. The doctrine of pith andsubstance is well-established in India. The doctrine is invokedGupon ascertaining the true character of the legislation. It may beuseful to advert to Article 248 of the Constitution, bestowinglegislative powers on the Parliament to make law with respectto any matter not enumerated in the Concurrent List or the State

List. Concededly, the expression “highways” as such, is notmentioned either in the State List or the Concurrent list. Whilemaking law on the subject falling under the Union List in termsof Entry 97 thereof, it is open to the Parliament to make law onany other matter not enumerated in List II or List III includingany tax not mentioned in either of those lists. Indisputably, theentries in the legislative lists are not sources of legislative powers,but are merely topics or fields in respect of which concernedlegislative body is free to make law. The entries must receive aliberal and expansive construction, reckoning the wide spiritthereof and not in narrow pedantic sense. Entry 23 in List Irefers generally to “highways” declared or to be declared by theParliament as national highways and all matters connectedtherewith. This empowers the Parliament to declare any stretch/section across any State as highway for being designated as anational highway. There is no indication in the Constitution tolimit the exercise of that power of the Parliament only in respectof an existing “highway”. Further, whenever and wherever thequestion of legislative competence is raised, the test is whetherthe law enacted, examined as whole, is substantially with respectto the particular topic of legislation falling under the concernedlist. If the law made by the Parliament or the legislature of anyState has substantial and not merely remote connection withthe Entry under which it is made, there is nothing to precludethe concerned legislature to make law on all matters concerningthe topic covered under the Union List or the State List, as thecase may be. Power of law-making itself would be rendered otioseif it does not provide for suitable coverage of matters that areincidental as well as intrinsically connected to the expresslygranted power. Further, Chapter II of Part XI of the Constitutiondealing with administrative relations between the Union and theStates makes it amply clear that the executive power of everyState shall be so exercised as to ensure compliance with the lawsmade by Parliament and any existing laws which applied in thatState, and the executive power of the Union shall extend to thegiving of such directions to State as may appear to theGovernment of India to be necessary for that purpose. Article257 expounds about the control of the Union over States in certain

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Acases. Clause (2) predicates that the executive power of the Unionshall also extend to the giving of directions to State as to theconstruction and maintenance of means of communicationdeclared in the direction to be of national and military importance.The proviso makes it further clear that the power of the Parliamentis not restricted in any way to the matters specified therein. ThereBis nothing in the Constitution which constricts the power of theParliament to make law for declaring any stretch/section withinthe State not being road or an existing highway, to be nationalhighway. Whereas, the provisions in the Constitutionunambiguously indicate that the legislative as well as executiveCpower regarding all matters concerning and connected with ahighway to be designated as national highway, vests in theParliament and the laws to be made by it in that regard. For thesame reason, the complete executive power also vests withinthe Union. [Paras 27-29][137-B-C; G-H; 138-A-H; 139-A-C;140-B-E]DK.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka(2011) 9 SCC 1; Synthetics and Chemicals Ltd. & Ors.

v. State of U.P. & Ors. (1990) 1 SCC 109 – followed.

1.2 The seminal question is whether the 1956 Act is lawEascribable to Entry 23 of the Union List and it provides forconstruction of national highway on non-existing road/highwaytraversing through green-field lands. In the present case, theCourt has to consider the sweep of the 1956 Act in light of theamended provisions, which came into force with effect from24.1.1997. The 1956 Act extends to the whole of India and hasFcome into force on 15.4.1957. Section 2(1) thereof is in the natureof declaration by the Parliament that each of the highwaysspecified in the schedule appended to the 1956 Act to be nationalhighway. The Schedule appended in the end gives the descriptionof such highways. Sub-Section (2) of Section 2, however,Gempowers the Central Government to declare “any otherhighway” to be national highway by publishing notification inthe Official Gazette in that behalf and upon such publication, thehighway shall be deemed to be specified in the stated Schedule.This provision contains legal fiction. This provision annunciates

that the Parliament has entrusted the power in the CentralGovernment or the Union to declare from time to time and whenrequired, any other stretch/section in any State to be nationalhighway, which power could be exercised exclusively by theParliament itself under the Constitution. Sub-Section (3) of Section2 empowers the Central Government to omit any highway fromthe Schedule and upon such publication, it would cease to be anational highway. In other words, Section 2, as enacted by theParliament, declared the highways referred to in the Schedule tobe national highways and empowered the Central Governmentto add other highways to be national highway and including omitthe scheduled highways from time to time as per the evolvingexigencies and administrative concerns. There is nothing in thisAct to constrict the power of the Central Government to notifyany stretch/section (not being an existing road/highway) withinany State, to be national highway. priori, the CentralGovernment is free to construct/build new national highwaykeeping in mind the obligations it has to discharge under Part IVof the Constitution for securing social order and promotion ofwelfare of the people in the concerned region, to provide themadequate means of livelihood, distribute material resources asbest to subserve the common good, create new opportunities,so as to empower the people of that area including provisioningnew economic opportunities in the area through which the nationalhighway would pass and the country’s economy as whole. Theavailability of highway in any part of the State paves way forsustainable development and for overall enhancement of humanwell-being including to facilitate the habitants thereat to enjoy adecent quality of life, creation of assets (due to natural increasein market value of their properties) and to fulfil their aspirationsof good life by provisioning access to newer and present-dayopportunities. [Paras 30-32][140-F; 141-E-H; 142-A-E]

1.3 Sections 3A to 3J of the Act expound the procedurefor acquisition of the land for the purpose of building nationalhighway. Section 3A of the 1956 Act inserted by way of anamendment in 1997, empowers the Central Government todeclare its intention to acquire “any land”. It need not be linked

Ato an existing road or State highway. For, the expression “anyland” ought to include open green-fields for construction orbuilding of national highway, consequent to declaration underSection 2(2) of the same Act in that regard. The central conditionfor exercise of such power by the Central Government is that itshould be satisfied that such land is required for the publicBpurpose of building national highway or part thereof. Section3B of the 1956 Act empowers the person authorised by theCentral Government to enter upon the notified lands for thelimited purpose of survey etc., to ascertain its suitability foracquisition for the stated purpose or otherwise. The finalCdeclaration of acquisition is then issued under Section 3D of theAct after providing opportunity to all persons interested in thenotified land to submit their objections and participate in publichearing under Section 3C. The contour of issues debated duringthis public hearing are in reference to matters relevant forrecording satisfaction as to whether the notified land is or is notDrequired for public purpose for building, maintenance,management or operation of national highway or part thereof.Consequent to publication of declaration under Section 3D, theland referred to in the notification vests absolutely in the CentralGovernment, free from all encumbrances. Possession of suchEland is then taken under Section 3E of the Act, upon depositingthe compensation amount in the manner provided in Section 3Hof the Act and as determined under Section 3G. Section 3Fempowers the Central Government to enter upon the land afterthe same is vested in terms of Section 3D of the Act. Notably,Section 3J of the Act is non-obstante provision and it predicatesFthat nothing in the Land Acquisition Act, 1894 shall apply to anacquisition under the 1956 Act. The national highways vest inthe Union in terms of Section 4 of the 1956 Act and theresponsibility for development and maintenance thereof isprimarily that of the Central Government in terms of Section 5.GThe Central Government is competent to issue directions to theGovernment of any State in respect of matters specified in Section6 of the Act. Section 9 empowers the Central Government tomake rules in respect of matters provided therein for carrying

out the purposes of the 1956 Act. Sections 3A to 3J have beeninserted by way of amendment of 1997. On close examination,the 1956 Act, as amended and applicable to the present case, isan Act to authorise Central Government to declare the notifiedstretches/sections in the State concerned as highway to be anational highway; and for matters connected therewith includingacquisition of “any land” for building or construction of newhighway (which need not be an existing road/highway). Thesubstance of this Act is ascribable to Entry 23 of the Union Listand matters connected therewith. The challenge to thenotifications issued under Section 2(2) of the 1956 Act on theargument of lack of legislative competence, is devoid of merits.The High Court justly negatived the same and that conclusion isupheld. [Paras 33-36][142-F; 148-A-H; 149-A-B]

2. EXECUTIVE POWER OF THE UNION

fortiori, even the challenge to the stated notifications onthe ground of being ultra vires the Constitution derived executivepowers of the Union, must fail. That challenge is founded on thepurport of Article 257. Article 257 of the Constitution, as aforesaid,deals with administrative relations between the States and theUnion. In the first place, having said that the Parliament hasexclusive legislative competence to make law in respect ofnational highways and all matters connected therewith, whichincludes declaring any stretch/section within the State (not beingexisting roads/highways) as national highway, it must follow thatthe Central Government alone has the executive powers toconstruct/build new national highway in any State and to issuedirections to the Government of any State for carrying out thepurposes of the 1956 Act. It is incomprehensible as to how theargument of lack of executive power of the Central Governmentdespite such law, can be countenanced. Concededly, the validityof Section 2 of the 1956 Act, which empowers the CentralGovernment to notify any other highway (other than the schedulednational highways) as national highway, has not been put in issue.No declaration is sought that the said provision is ultra vires theConstitution or the law. The challenge to notifications issued by

Athe Central Government under Section 2(2) of the 1956 Act onthe ground of being ultra vires the Constitution derived executivepowers, is also devoid of merits. [Para 37][149-C-H]

3. SCOPE OF SECTION 2(2)

This Court may revert to the argument that the CentralBGovernment, even if is competent to declare any stretch/sectionas national highway, can do so only in respect of an existingroad/highway within the State and not in respect of non-existentroad, much less traversing through the open green-field lands.For building new highway, as in the present case, betweenCstretch/section C-K-S (NC) NH-179A and NH-179B respectively,the Central Government can do so in exercise of power conferredupon it under Section 2(2) of the 1956 Act. That empowers theCentral Government to notify any other highway (not formingpart of the Schedule appended to the Act) as national highwayand upon such publication of notification in the official gazette,Dthe said highway is deemed to be specified in the Schedule as anational highway. This power is not constricted or circumscribedby any other inhibition, such as to declare only an existing roador highway within the State as national highway. Therequirement of national highway within the country as wholeEand State-wise, in particular, is to alleviate evolving socio-economic dynamics, for which such wide power has beenbestowed upon the Central Government. The CentralGovernment is obliged to do so to facilitate it to discharge itsobligations under Part IV of the Constitution. There is nothingin the Constitution of India or for that matter, the 1956 Act toFlimit that power of the Central Government only in respect ofexisting roads/highways within the State. To say so would becounter-productive and would entail in piquant situation thatthe Central Government cannot effectively discharge itsobligations under Part IV of the Constitution unto the remoteGinaccessible parts of the country until the concerned StateGovernment constructs road/highway within the State. On theother hand, if the concerned State, due to reasons beyond itscontrol or otherwise, is unable/flounder to provision road/highway in given segment of the State; despite being imperative

to do so to assuage the perennial difficulties faced by the localsin that belt due to lack of access, the Central Government maycome forward and step in to construct national highway andconnect the area with the other parts of the country. Theexpression “highway” has not been defined in the 1956 Act oreven in the 1988 Act. The Central Government, whilst exercisingpower under Section 2(2) of the 1956 Act creates right in thelocals of the concerned area to pass and repass along highwayfrom one marked town or inhabited place to another inhabitedplace for the purpose of legitimate travel. Such highway isdedicated for the ordinary and reasonable user of the road as anational highway from one designated town (Chennai) upto anothertown (Salem), which will be common to all the subjects. [Paras38, 39 and 41][150-A-B; F-H; 151-A-D; 154-C-D]

Venkataramaiya’s Law Lexicon (Second Edition); P.Ramanatha Aiyar’s Advanced Law Lexicon (6th Edition)– referred to.

4. MODIFICATION OF PROJECT AND EXTENT/SCOPE OF REVIEW

It was next contended that the decision to change thestretch/section to C-K-S (NC) was arbitrary and was not backedby scientific study. The original Project (Bharatmala Pariyojna -Phase I) included section – C-M (EC), as approved by the CabinetCommittee on Economic Affairs (CCEA) in October, 2017. ThisProject, being macro level project, does not reckon the nuancedimperatives of particular region or area, which may only be aminiature of the whole Project traversing across around 24,800kms. in Phase I. For that reason, the approved Project itselfbestows discretion upon the Ministry of Road Transport &Highways (MoRTH) to substitute/replace up to 15% length of24800 kms., of the Project (Phase I), by other suitable projects.It could thus be understood that alteration to the extent of 15%is permissible, if development of certain identified stretches underthe program cannot be taken up on account of issues pertainingto alignment finalisation, land availability and other unforeseenfactors and concerns relating to congestion, reduction of distance,operational efficiency are some of the factors which may attract

Asuch alteration. In the meeting convened on 19.1.2018, chairedby the Secretary, MoRTH for examining the micro levelimplementation of the comprehensive Project and keeping in mindthe pressing requirements of the concerned State, the Committeeopted for substitution/replacement of the original stretch/section[C-M (EC)] for the reasons recorded in the minutes. It decidedBto change the section - C-M (EC) to C-K-S (NC) as regards Stateof Tamil Nadu. It was well-considered decision taken by thesaid Committee set up under the aegis of the MoRTH. It mustbe assumed that the broad-based committee of experts in thefield, was fully aware of the governing policies and criteria forCdesignating national highways. It was also cognizant of therequirements and priorities of the concerned area and the normsspecified for prioritising the stretches/sections. There is nosubstance in the argument that the change of stretch/section toC-K-S (National Corridor) was not based on any tangible materialto sustain the stated decision of the Committee. Indeed, theDnecessity to enhance the existing section of Economic Corridorbetween Chennai-Madurai was taken note of in the principalPariyojna. However, the Committee, as per the discretionbestowed in it in terms of the approved Pariyojna, whilst reckoningthe imperatives of the region under consideration for micro levelEimplementation, took conscious decision to opt for C-K-S(National Corridor) being relatively more beneficial and tostrengthen the National Corridor; and at the same time increaseefficiency of the existing economic corridor. Such decision,obviously, partakes the colour of policy decision of the CentralGovernment, which is also backed by the guidelines issued onF26.2.2018 by the competent authority of the same Ministry ofthe Government of India, MoRTH (Planning Zone). Thiscommunication refers to the approval of the Project (BharatmalPariyojna Phase I) by the CCEA in October, 2017 recordingobstructions/difficulties faced during upgradation of the existingGroad arteries. There is no challenge to these guidelines. Indeed,these guidelines have been issued after the decision was alreadytaken on 19.1.2018 in respect of section - C-K-S (NC) in lieu ofC-M (EC) section. However, it needs to be understood that the

decision was taken by the broad-based Committee of experts, ofwhich the Secretary of the same Ministry (MoRTH) which hadissued the guidelines on 26.2.2018, was the Chairperson alongwiththe other officials including the officials of NHAI. The decisionregarding change is policy decision. Moreso, keeping in mindthat the change in alignment and the purpose of such change isstated to be for strengthening the national corridor in preferenceto the economic corridor in the region, it is not open to disregardthis opinion of the Central Government based on therecommendation of the Committee constituted by it for thatsingular purpose. It is the primary duty of the competent authorityto decide whether there exists public purpose or not. The Courtsmay not ordinarily interfere with that unless the power is beingexercised malafide or for collateral purposes or the decision isdehors the Act, irrational or otherwise unreasonable or so-calledpurpose 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 aCourt(s) of appeal and to disregard it merely because anotheroption would have been more beneficial. The notifications underSection 2(2) to declare the C-K-S (NC) section as NH-179A andNH-179B, as the case may be, were issued only after duedeliberation by the broad-based committee of experts, whichdecision is also in conformity with the guidelinescontemporaneously issued by the concerned department on thesame subject matter. Such decision cannot be labelled asmanifestly arbitrary, irrational or taken in undue haste as such.As result, it was not open to the High Court to interfere withthe change so articulated in the meeting held on 19.1.2018 orthe notifications issued under Section 2(2) of the 1956 Actdeclaring C-K-S (NC) as national highway (i.e. NH-179A andNH-179B). The declaration of highway being national highwayis within the exclusive domain of the Central Government in termsof Section 2(2) of the 1956 Act. As the decision regarding changeof stretch/section has been taken by the concerned departmentof the Central Government itself and the approved Project(Bharatmala Pariyojna - Phase I) also recognises that such changein the form of substitution/replacement of the stretch/section can

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Abe done by the Ministry upto 15% length of 24,800 kms., so longas it does not entail in incurring of additional costs, it becomesintegral part of the originally approved project (for Phase I) forall purposes. In the present case, the costs for construction ofC-K-S (NC) were bound to be less than the originally conceivedC-M (EC), as the length of the road is reduced significantly. InBother words, it would operate as minor change to the originalplan with deemed approval thereof and get interpolated therein.The decision taken by the Committee which culminated with theissuance of notification under Section 2(2) of the 1956 Act is incomplete conformity with the governing provisions and guidelinesCand founded on tangible and objective facts noted in the minutesdated 19.1.2018. The Central Government had full authority toadopt such change of stretch/section, by way of substitution/replacement whilst ensuring that there is no need for higherbudgetary allocation than envisaged in the already approvedprogramme for Phase I. Thus, there is no legal basis to doubt theDvalidity of the notification under Section 2(2) and ex consequentiSection 3A of the 1956 Act as well.The High Court has completelyglossed over these crucial aspects and entered into the domainof sufficiency and adequacy of material including theappropriateness of the route approved by the competent authority.ESuch enquiry, in exercise of judicial review is forbidden.Furthermore, the High Court, despite noting that judicialinterference in acquisition matters is limited, went on to interferein the guise of extra-ordinary circumstances obtaining in this case.On thorough perusal, the impugned judgment does not revealany just circumstance for invoking the judicial review jurisdiction.FChallenge to the decision of the Committee and ex consequentiof the Central Government, regarding change of section – C-M(EC) to C-K-S (NC) at the micro level for the implementation ofthe original Project as approved, ought not to have been doubtedby the High Court. Notably, in the final conclusion and declarationGissued by the High Court, it has justly not struck down thenotifications under Section 2(2) of the 1956 Act. In other words,so long as Section 2(2) of the 1956 Act was to remain in force andthe decision regarding change of stretch/section to C-K-S (NC)being the foundation for issue of notification under Section 3A,

would continue to bind all concerned and in particular, the officialsof NHAI being the executing agency. [Paras 42, 44-48][154-F-H; 155-A-B; C-F; 159-D-H; 166-A-E; 169-C-H; 170-A-G]

Sooraram Pratap Reddy & Ors. vs. District Collector,Ranga Reddy District & Ors., (2008) 9 SCC 552 – reliedon.

Somawanti & Ors. v. State of Punjab & Ors. [1963] 2SCR 774 – followed.

5.1 PRIOR ENVIRONMENTAL/FOREST CLEARANCE:STAGE

The question as to whether the competent authority underthe 1956 Act is obliged to take prior permission before issuingnotification under Section 3A of the Act, must be answeredprimarily on the basis of the scheme of the enactments underconsideration. As regards power to acquire land for the purposeof building, maintenance, management and operation of nationalhighway or part thereof, the same has been bestowed on theCentral Government in terms of Section 3A of the 1956 Act. Thereis nothing in the 1956 Act, which impels the Central Governmentto obtain prior environment clearance before exercise of thatpower and in issuing notification under Section 2(2), much lessSection 3A expressing its intention to acquire the designatedland. The Central Government has framed rules in exercise ofpower under Section 9 of the 1956 Act, titled as the NationalHighways Rules, 1957. These rules are required to be followedby the executing agency. There is nothing, even in these Rules,to remotely suggest that the Central Government is obliged toobtain prior permission(s) under environmental/forest laws beforeissuing notification under Section 3A. The executing agency isnone else, but established under the 1988 Act, namely, the NHAI.Before NHAI commences the execution of any original work, ithas to abide by the norms specified in the 1957 Rules regardingpreparation of estimate of work etc. The Schedule of the 1957Rules stipulates conditions for the issue of technical approvaland financial sanction to plan and estimate for execution of anyoriginal work on national highway costing an amount not

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Aexceeding Rs.50 lakhs by the executing agency concerned.Neither the 1956 Act, the Rules framed thereunder i.e. the 1957Rules nor the 1988 Act and the Rules made thereunder have anybearing on the question under consideration. None of theseenactments/rules specify any express condition requiring CentralGovernment to obtain prior environmental/forest clearanceBbefore issuing notification under Section 2(2) declaring thestretch/section to be national highway or Section 3A of the 1956Act to express intention to acquire land for the purpose of building,maintenance, management or operation of national highway, asthe case may be. Reverting to the notification issued by the MoEFCdated 14.9.2006, even this notification does not constrict thepower of Central Government to issue notification under Section2(2) or Section 3A of the 1956 Act. There is nothing to suggestthat before expressing intention to acquire any land for thepurpose of the 1956 Act, prior environmental/forest clearance isrequired. The environmental/forest clearance, however, is,Drequired to be obtained by the executing agency in terms of thisnotification “before commencing the actual work or executingthe proposed work/project”. That would happen only after theland is vested in the NHAI or the NHAI was to be entrusted withthe development work of concerned national highway by theECentral Government in exercise of powers under Section 5 ofthe 1956 Act read with Section 11 of the 1988 Act. The land wouldvest in the Central Government under the 1956 Act only afterpublication of declaration of acquisition under Section 3D. Anduntil then, the question of Central Government vesting it in favourof NHAI under Section 11 of the 1988 Act would not arise.FHowever, until the vesting of the land, the Central Governmentand its authorised officer can undertake surveys of the notifiedlands by entering upon it in terms of Section 3B of the Act.Pertinently, the activities predicated in Section 3B are ofexploration for verifying the feasibility and viability of land forGconstruction of national highway. These are one-time activitiesand not in the nature of exploitation of the land for continuouscommercial/industrial activities as such. There is remotepossibility of irretrievable wide spread environmental impact due

to carrying out activities referred to in Section 3B for assessingthe worthiness of the land for using it as national highway. Thus,the question of applying notification of 2006 at this stage doesnot arise, much less obligate the Central Government to followdirectives thereunder. [Paras 50-52][172-A-H; 173-A-E]

5.2 Section 4 of the 1956 Act provides for vesting of thenational highway in the Union and after such vesting, the primaryresponsibility of developing and maintaining the national highwayis that of the Central Government. In terms of Section 5, it isopen to the Central Government to call upon the Government ofthe State within which the national highway is situated or by anyofficer or authority subordinate to the Central Government or tothe State Government. As per Section 6, the Central Governmentis competent to issue directions to the Government of any Statefor carrying out the provisions of the Act within the State. It isindisputable that NHAI is an authority appointed by the CentralGovernment under the 1988 Act. This authority is functionalbody constituted under Section 3 of the 1988 Act. Chapter III ofthe 1988 Act provides for the manner of dealing with the contractsto be entered into by NHAI. Sections 11 to 13 deal with the powerof the Central Government to vest in or entrust to the Authority(NHAI), transfer of assets and liabilities of the CentralGovernment to the Authority (NHAI) and the compulsoryacquisition of land for the Authority. Chapter IV of the 1988 Act,in particular, Section 16 thereof, deals with the functions of theAuthority (NHAI). On plain and harmonious construction of theprovisions of the two enactments (i.e. the 1956 Act and the 1988Act), it is amply clear that at the stage of issuing notificationsunder Section 2(2) or for that matter, Section 3A of the Act, thereis 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 concernedenactments (namely, the 1956 and 1988 Acts on the one handand the 1986 Act or forest laws, on the other) is qualitativelydifferent and contextual to matters relevant under the concernedenactment. The competent authority in the former, may besatisfied that the acquisition of land in question is for public

Apurpose, but if the competent authority under the latterlegislations is of the view that the execution of the project inquestion (construction of national highway) or any portionthereof may cause irretrievable comprehensive impact on theenvironment or the forests, as the case may be, would becompetent to deny permission to such project as whole orBpart thereof. That decision must then prevail, being in publicinterests. This is not to say that one competent authority issuperior to the other, but such balancing becomes essential toeffectuate the public purposes under the stated enactments. It isquite possible that the executing agency (NHAI) may be able toCconvince the competent authority under the latter enactmentsthat certain remedial steps can minimise or mitigate theenvironmental impact or to the forest, as the case may be, andcommend it to accord conditional approval/permission to executethe project so as to conform to the tenets of sustainabledevelopment. If that suggestion commends to the competentDauthority under the environmental/forest laws, such clearance/permission can be granted after the public hearing. Thesatisfaction regarding public interests or necessity to acquire theland in question for public purpose for construction of newnational highway, is matter which needs to be considered byEthe competent authority during the public hearing under Section3C of the 1956 Act. [Paras 53-57][173-F; 174-B-D; 177-B-G;178-C]

5.3 The notification of 2006 (14.09.2006) is in the nature ofguidelines/directives issued by the Central Government in

Fexercise of its statutory powers. These directions need to beadhered by the executing agency (NHAI) whilst undertaking thework in furtherance of the approved project. To put it differently,it is incomprehensible that the stated 2006 notification obligesthe Central Government to take prior permission even before

the stage of “planning” and “finalisation of the project(s)” suchGas in terms of the minutes dated 19.1.2018 followed bynotifications under Sections 2(2) and 3A of the 1956 Act, as thecase may be. The activities required to be undertaken infurtherance of notification under Section 3A of the 1956 Act,referred to in Section 3B of the same Act are only to explore theH

feasibility and viability of the stretch/section to be used as anational highway and no further. These activities are outside thepurview of notification of 2006. [Paras 60, 61][187-E-H; 188-A]

5.4 The prior environmental clearance in terms of 2006notification issued under Section 3 of the Environment(Protection) Act, 1986 Act read with Rule 5 of the Environment(Protection) Rules, 1986, is required to be taken beforecommencement of the “actual construction or building work” ofthe national highway by the executing agency (NHAI). That willhappen only after the acquisition proceedings are taken to itslogical end until the land finally vests in the NHAI or is entrustedto it by the Central Government for building/management of thenational highway. Applying the tenet underlying this notification,it is amply clear that before the process of acquisition of land isripe for declaration under Section 3D of the 1956 Act, it would beopen to the executing agency (NHAI) to make an application tothe competent authority for environmental clearance. Thatprocess can be commenced parallelly or alongside the acquisitionprocess after preliminary notification under Section 3A of the1956 Act, for acquisition is issued. As in this case, after notificationunder Section 3A of the 1956 Act came to be issued, NHAI musthave, and in fact has, moved into action by making application tothe competent authorities under the environmental laws, as wellas, forest laws to accord necessary permissions. Considering theprovisions of the 1956 Act and the 1988 Act, NHAI can takeover the work of development and maintenance of the concernednational highway only if the notified land is vested in it or whenthe same is entrusted to it by the Central Government. From thescheme of the enactments in question, as soon as notificationunder Section 3A is issued, it is open to the Central Governmentto issue direction/notification in exercise of power under Section5 of the 1956 Act read with Section 11 of the 1988 Act so as toentrust the development of the proposed national highway toNHAI. Upon such entrustment, NHAI assumes the role of anexecuting agency and only thenceforth can move into action toapply for requisite permissions/clearances under theenvironmental/forest laws including as provided in terms of

Anotification/Office Memorandum dated 14.9.2006 and 7.10.2014respectively. It is not in dispute that environmental/forestclearance is always site specific and, therefore, until the site isidentified for construction of national highways manifested videSection 3A notification, the question of making any applicationfor permission under the environmental/forest laws would notBarise, as predicated in Office Memorandum dated 7.10.2014. Thesite is identified only in reference to the notification under Section3A of the 1956 Act, giving description of the land which isproposed to be acquired for public purpose of building,maintenance, management or operation of the national highwayCor part thereof. [Paras 65-68][189-B-D; 190-G-H; 191-A-G]

6.1 RE: DEEMED LAPSING AND THE WAY FORWARD

The necessity of prior environmental/forest clearance wouldarise only if finally, the land in question (site specific) is to benotified under Section 3D, as being acquired for the purposes ofDbuilding, maintenance, management or operation of the nationalhighway or part thereof. Such interpretation would further thecause and objective of environment and forest laws, as also notimpede the timeline specified for building, maintenance,management or operation of the national highway or part thereof,Ewhich undeniably is public purpose and of national importance.This would also assuage the concerns of the land owners thateven if eventually no environment permission or forest clearanceis accorded, the land cannot be reverted to the original owner asit had de jure vested in the Central Government upon issue ofnotification under Section 3D of the 1956 Act and no power isFbestowed on the Central Government under this Act to withdrawfrom acquisition. This Court is conscious of the fact, as has beenrightly argued by the appellants-authorities, that it is essential toissue declaration under Section 3D of the 1956 Act within aperiod of one year from the date of publication of the notificationGunder Section 3A in respect of the notified land, failing whichnotification under Section 3A ceases to have any effect. It ispossible that whilst pursuing the proposal for environmental/forestclearance after notification under Section 3A, some time may belost, even though the process under the 1956 Act for acquisition

of the land had become ripe for issue of declaration of acquisitionunder Section 3D. There is no express provision in the 1956Act, which excludes the time spent by the Central Governmentor the executing agency in obtaining prior environmentalclearance or permission under forest laws, as the case may be.To get over this predicament, by an interpretative process andalso by invoking plenary powers of this Court under Article 142of the Constitution, it is held that the dictum in paragraph 100(1)of Karnataka Industrial Areas Development Board, shall operateas stay by an order of the Court for the purposes of Section3D(3) in respect of all projects under the 1956 Act, in particularfor excluding the time spent after issue of Section 3A notification,in obtaining the environmental clearance as well as forpermissions under the forest laws. Time spent by the executingagency/Central Government in pursuing application before theconcerned authorities for grant of permission/clearance underthe stated laws need to be excluded because of stay by the Courtof actions (limited to issue of notification under Section 3D),consequent to notification under Section 3A. Thus, the acquisitionprocess set in motion upon issue of Section 3A notification cango on in parallel until the stage of publication of notification underSection 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. [Paras 70, 72][192-B-E;193-D-H]

Karnataka Industrial Areas Development Board v. C.Kenchappa & Ors. (2006) 6 SCC 371 – relied on.

6.2 In the present case, concededly, the permissions/clearances have been issued by the concerned authorities underthe environment and forest laws after notification under Section3A and before issuance of declaration under Section 3D of the1956 Act. In terms of this decision, therefore, the time spent forobtaining such clearances including till the pronouncement of thisdecision and until the stated permissions/clearances attain finality,whichever is later, as the matter had remained sub judice, needto be excluded. Even after excluding such period, if anynotification under Section 3A impugned before the High Court is

Anot saved from the deemed lapsing effect predicated in Section3D(3), the Central Government may have to issue freshnotification(s) under Section 3A of the 1956 Act and recommencethe process of acquisition, if so advised. Any final opinion is notbeing expressed in that regard. However, such fresh notificationsmay be issued only in respect of land forming part of permissions/Bclearances given by the competent authority under theenvironment/forest laws, being site specific. [Para 73][194-A-G]

7.1 CONCLUSION

The High Court directed the concerned revenue authoritiesCto restore the mutation entries effected in favour of the acquiringbody/NHAI merely on the basis of notification under Section 3Aof the 1956 Act. By virtue of notification under Section 3A of the1956 Act, neither the acquiring body nor the NHAI had come inpossession of the concerned land nor the land had vested in them,so as to alter the mutation entry in their favour. To that extent,Dthis Court agrees with the High Court that until the acquisitionprocess is completed and possession of land is taken, the questionof altering the mutation entry merely on the basis of notificationunder Section 3A of the 1956 Act cannot be countenanced and,therefore, the earlier entries ought to be restored. That directionEof the High Court needs no interference. [Para 76][196-B-D]

7.2 The appeals filed by the Union of India and NHAI (CivilAppeals arising out of SLP(C) Nos. 13384-85/2019, 16098-16100/2019, 18577-18580/2019, 19160-19166/2019, 1775-1776/2020,1777-1780/2020 and 1781-1783/2020) are partly allowed in theFaforementioned terms; but the appeal filed by the land owner(s)/aggrieved party(ies) (Civil Appeal arising out of SLP(C) No.18586/2019) stands dismissed. The impugned judgment and orderis modified to the extent indicated in this judgment. The challengeto impugned notifications under Sections 2(2) and 3A of the 1956Act, respectively, is negatived. The direction issued (in paragraphG106 of the impugned judgment) to the concerned authorities torestore the subject mutation entries is, however, upheld. TheCentral Government and/or NHAI may proceed further in thematter in accordance with law for acquisition of notified lands forconstruction of national highway for the proposed section/

stretch - C-K-S (NC), being NH Nos. 179A and 179B. [Paras 80,81][197-C-F]

Union of India vs. Kushala Shetty & Ors. (2011) 12SCC 69; Akhil Bharat Goseva Sangh v. State of A.P. &Ors. (2006) 4 SCC 162 : [ 2006] 3 SCR 543; K.Vasudevan Nair & Ors. v. Union of India & Ors. 1991Supp (2) SCC 134; Col. A.S. Sangwan vs. Union ofIndia & Ors. AIR 1981 SC 1545; Systopic Laboratories(Pvt.) Ltd. v. Dr. Prem Gupta & Ors. 1994 Supp (1)SCC 160; Secretary, Ministry of Chemicals &Fertilizers, Government of India vs. Cipla Ltd. & Ors.(2003) 7 SCC 1 – relied on.

K. Lubna & Ors. v. Beevi & Ors. (2020) 2 SCC 524;Shrilekha Vidyarthi & Ors. v. State of U.P. &Ors.(1991)1 SCC 212 : [1990]1 Suppl. SCR 625;Dwarkadas Marfatia & Sons v. Board of Trustees ofthe Port of Bombay (1989) 3 SCC 293 – heldinapplicable.

State of Bombay v. R.S. Nanji [1956] SCR 18; M.C.Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 : [1996]10 Suppl. SCR 12; M.C. Mehta v. Union of India &Ors. (2004) 12 SCC 118 : [2004] 3 SCR 126; RaghbirSingh Sehrawat v. State of Haryana & Ors. (2012) 1SCC 792 : [2011] 14 SCR 1113; State of Uttaranchalv. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 :[2010] 1 SCR 678; Bengaluru Development Authorityv. Sudhakar Hegde & Ors. 2020 SCC Online SC 328;Hanuman Laxman Aroskar v. Union of India (2019) 15SCC 401 : [2019] 5 SCR 916; Delhi DevelopmentAuthority & Anr. Vs. Joint Action Committee, Allottee ofSFS Flats & Ors. (2008) 2 SCC 672 – referred to.Diljit Singh & Ors. vs. Union of India & Ors. 2010SCC Online P&H 11847; M. Velu v. State of Tamil Nadu& Ors. 2010 SCC Online Madras 2736; B. Nambirajan& Ors. v. District Collector, Kanyakumari District,Nagercoil & Ors. CDJ 2018 MHC 2862; Jayaraman& Ors. v. State of Tamil Nadu & Ors. 2014 SCC OnlineMadras 430; J. Parthiban & Ors. v. State of Tamil Nadu& Ors. AIR 2008 Mad 203 – referred to.

ACommonwealth of Massachusetts v. James G. Watt 716F.2d.946 (1938); California v. Watt 683 F.2d 1253 (9thCir. 1982) Roosevelt Lathan and Pearline Lathan, hiswife, v. John A. Volpe, Secretary of the United StatesDepartment of Transportation 455 F.2d 1111 ArlingtonCoalition on Transportation v. John A. Volpe, SecretaryBof Transportation 458 F.2d.1323 (1972) Jones v. Districtof Columbia 458 F.2d.1323 (1972) – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3976-77 of 2020

From the Judgment and Order dated 08.04.2019 of the High Courtof Judicature at Madras in Writ Petition No. 16630 of 2018 and WritPetition No. 16961 of 2018

With

CIVIL APPEAL NOS. 3978-3980, 3981-3984, 3985-3991, 3992,3993-3994, 3995-3998, 3999-4001 OF 2020

Tushar Mehta, SG, K.M. Nataraj, ASG, G. Rajagopalan, S.Nagamuthu, Sanjay Parikh, Nikhil Nayyar, Ms. Anitha Shenoy, Sr. Advs.,Gurmeet Singh Makker, Nikhil Rohatgi, Sanchar Anand, DevashishBharukha, Ms. Swati Ghildiyal, Ms. Madhu Sweta, Ms. Shivangi Khanna,Ms. Subhashree Mohapatra, Siddharth Raj Agarwal, Ms. Astha Tyagi,Saurabh Mishra, Rajat Nair, Bhuvan Mishra, Sanskriti Pathak, Mrs. AnilKatiyar, K. Paari Vendhan, Prabu Ramasubramanian, RaghunathaSethupathy, Karuppaiah Meyyappan, Hardik Gautam, Ms. SrishtiAgnihotri, Ms. Tanvi N.S., Ms. Sanjana Srikumar, Ms. Anmol Gupta, S.Thananjayan, Gautam Narayan, Ms. Asmita Singh, Naveen Hegde,Adithya Nair, Kabilan Manoharan, P. Soma Sundaram, T. V. S.Raghavendra Sreyas, Akshay Girish Ringe, Ms. Megha Mukerjee, HarishPandey, Alok Kumar Pandey, Balaji Srinivasan, Aishwarya Choudhary,T. R. B. Sivakumar, K. Balu, B. Karunakaran, S. Gowthaman, M.P.Parthiban, Deepak Anand, Advs. for the appearing parties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. Leave granted.

2. These appeals emanate from the common judgment and order[1]of the High Court of Judicature at Madras[2] holding the notificationsissued under Section 3A(1) of the National Highways Act, 1956[3] foracquisition of specified lands for development/construction of Chennai-Krishnagiri-Salem (National Corridor) 8 Lanes new National Highway[4]

1 dated 8.4.2019 in W.P. Nos. 16146/2018, 16630/2018, 16961/2018, 19063/2018,19385/2018, 20014/2018, 20194/2018, 20625/2018, 20626/2018, 20627/2018, 20647/2018, 20764/2018, 20969/2018, 21242/2018, 22334/2018 and 22371/2018

– for short, “the impugned judgment”

2 for short, “the High Court”

3 for short, “the 1956 Act”

4 for short, “C-K-S (NC)”

A(NH-179A and NH-179B) being part of the larger project - “BharatmalaPariyojna – Phase I[5]”, as illegal and bad in law on the grounds stated inthe impugned judgment.

THE PROJECT

3. The Project (Bharatmala Pariyojna - Phase I) has beenBconceived as new umbrella program for the highways sector thatfocuses on optimising efficiency of freight and passenger movementacross the country by bridging critical infrastructure gaps througheffective interventions like development of Economic Corridors, InterCorridors and Feeder Routes (ICFR), National Corridor EfficiencyCImprovement, Border and International connectivity roads, Coastal andPort connectivity roads and Green-field expressways, traversing acrossaround 24,800 kms in Phase-I. In addition, Phase I also includes 10,000kms. of balance road works under National Highways DevelopmentProgram[6]. The estimated outlay for Phase I came to be specified asRs.5,35,000 crores spread over 5 years. The objective of the Program isDstated as optimal resource allocation for holistic highway development/improvement initiative. The two distinguishing features are said to be -effective delegation in appraisal/approval of individual project stretchesand encouraging State Governments to participate in the developmentprocess through ‘Grand Challenge’. This Project intends to further theEobjective of the NHDP, which was being implemented in the past andhad reached level of maturity. Resultantly, it was thought appropriate toredefine road development and have macro approach while planningexpansion of the national highways network with focus on recastingroad development by bridging critical infrastructure gaps. The Programenvisages corridor approach in place of the existing package-basedFapproach which has, in many cases, resulted in skewed developmentreferred to therein, causing impediment in seamless freight and passengermovement.

4. The components and outlay of the Project, as approved by theCabinet Committee on Economic Affairs[7] to be implemented over aGperiod of 5 years i.e. 2017-2018 to 2021-2022, provide for the breakupof length of the different components and the outlay therefor. Althoughthe Project stretches had been identified taking into account integration

5 for short, “the Project”

6 for short, “NHDP”

H7 for short, “the CCEA”

of economic corridors with the ongoing projects under NHDP andinfrastructure asymmetry in major corridors, an express discretion hasbeen bestowed on Minister – Road Transport & Highways to substitute/replace upto 15% length of 24,800 kms. for the Project (Phase-I ofprogram) by other suitable projects, if development of certain identifiedstretches cannot be taken up on account of issues pertaining to alignmentfinalisation, land availability and other unforeseen factors whilst retainingthe target and budget proposed for Phase I.

5. In furtherance of the Project, meeting was held on 19.1.2018under the Chairmanship of Secretary (Road Transport & Highways) foroptimising Economic Corridors in the State of Karnataka, AndhraPradesh, Tamil Nadu and Kerala identified under the Project, whichwas also attended by Member (P), National Highway Authority of India[8],Joint Secretary of the Ministry of Road Transport & Highways[9] andCGM (T), NHAI. The members deliberated upon the micro aspects ofthe section delineated as Chennai-Madurai in the State of Tamil Nadu,as was done in respect of other sections of the concerned State. Afterdue deliberations and considering all aspects, the Committee proceededto record its unanimous opinion in respect of stretch/section referred toin the Project – C-K-S (NC) and Chennai-Madurai (EconomicCorridor)[10] in the State of Tamil Nadu, as follows: -

“2.4 Chennai-Krishnagiri-Salem (National Corridor) & Chennai-Madurai (Economic Corridor):

(i)The traffic from Chennai bound to Salem/Coimbatoreand Pallakad (Kerala) currently use the Chennai-Krishnagiri section of the Golden Quadrilateral(Chennai-Bengaluru) and the Krishnagiri-Salem sectionof the North-South corridor or the Chennai-Tindivanam-Ulundurpet section of the Chennai-Madurai Economiccorridor and the Ulunderpet-Salem Inter-corridor route,thereby congesting Chennai-Krishnagiri section ofGolden Quadrilateral and Chennai-Tindivanam (72,000PCU) – Ulundurpet (47,000 PCU) section of theChennai-Madurai Economic Corridor. Accordingly, itwas decided that instead of 6/8 laning of Tindivanum

8 for short, “the NHAI”

9 for short, “the MoRTH”

10 for short, “C-M (EC)”

ATrichy section, crow-flight green-field alignment bedeveloped between Chennai and Salem via Harur underNational Corridor Efficiency Improvement. This willnot only reduce the distance between Chennai andSalem/Coimbatore by 40 km but also diversify the trafficfrom the congested Chennai-Krishnagiri section ofBGolden Quadrilateral and Chennai-Ulundurpet sectionof the Chennai-Madurai Economic Corridor.

(ii)It was also observed that instead of 6/8 laning ofTovarankuruchi-Melur-Madurai section (64 km) of theChennai-Madurai Economic Corridor, it would be betterCto develop Tovarankuruchi-Natham section (27 km) asthe Madurai-Natham stretch is already being developedas feeder-route, which will reduce the Trichy-Maduraidistance by 8 km and would result into diversificationof traffic from Tovarankuruchi to Madurai via NathamDand via Melur.”

It was also decided in the said meeting that the CCEA shall beapprised of the proposed alignment in the upcoming biannual update.

6. In the backdrop of this decision, notifications under Section2(2) of the 1956 Act came to be issued, declaring the stretch/sectionEfrom Tambaram (Chennai) to Harur as NH-179B and from Harur toSalem as NH-179A. Consequent to such declaration, notifications underSection 3A(1) of the 1956 Act specifying the lands proposed to beacquired for the national highway(s), came to be issued for the concernedstretches/sections, which was also duly published in the local newspapers.

FPROCEEDINGS BEFORE THE HIGH COURT

7. The notifications under Section 3A of the 1956 Act werechallenged by the affected land owners and also by way of public interestlitigation. In addition, in Writ Petition No. 21242/2018, the notificationsissued under Section 2(2) of the 1956 Act declaring the concernedGstretches/sections being NH-179A and NH-179B respectively, came tobe challenged.

8. The High Court considered challenges to the stated notificationson diverse counts by way of common judgment, which is impugned inthese appeals. The High Court formulated 15 questions, which arose

for its consideration in the context of the challenge to the respectivenotifications. The same read thus:-

“(i)Whether the Writ Petitions are maintainable, since all thathas been done by the respondents is to notify their intentionto acquire the lands by publishing notification under Section3A(1) of the Act and the petitioners cannot be stated to beBaggrieved;

(ii)Whether the entire land acquisition proceedings are whollywithout jurisdiction as declaration under Section 2(2) ofthe Act enables only to declare an existing highway, as aNational Highway and not for creating National Highwayfrom non-existing road or plain land;

(iii)Whether if the project is allowed to be implemented withoutprior environmental clearance, would it be against theprinciples of sustainable development and would violate theprovisions of the Articles 19, 46, 48A and 51A of theConstitution of India;

(iv)Whether there is need for the proposed project Highwaygiven the statistics regarding the Passenger Car Units inthe existing three highways;

(v)Whether there is any hidden agenda for the proposed projectand whether it was intended to benefit chosen few;

(vi)Whether Chennai-Salem proposed highway project was noteven considered as viable proposal, when lots were invitedunder Bharat Mala Priyojana and Chennai-Maduraiproposal was found to be viable resulting in appointment ofthe consultant (Feedback), could there have been changeof the project after appointment of the Consultant for adifferent project;

(vii)Whether the respondents who had originally notified theproject between the Chennai and Madurai could havechanged the same after the tender for awarding theconsultancy contract was finalised for Chennai-MaduraiSection;

(viii)What would be the impact of the proposed project on Forestlands, Water Bodies, Wild Life, flora and fauna as admittedlythe proposed alignment passes through all these areas;

A(ix)Whether public hearing is pre-requisite and should itprecede any step that may be taken under the provisions ofthe Act;

(x)Whether public consultation which includes public hearingat site should have preceded the land acquisitionBproceedings or at what stage it is required to be done;

(xi)If the notification as initially notified by the CentralGovernment (Chennai-Madurai) was modified is the draftfeasibility report liable to be scrapped, as the award ofconsultancy contract was entirely for different project;

C(xii)Whether the report prepared by the Consultant (Feedback)contains plagiarized contents, whether it was prepared ingreat haste, replete with errors apparent on the face of therecord and should the report be held to be an outcome ofnon-application of mind;

D(xiii)Whether guidelines prescribed in the Indian HighwayCapacity Manual were ignored while preparing the draftfeasibility report;

(xiv) Whether on account of the reduction of the right of way invarious sections including the proposed alignment, whichEpasses through Forest area, whether the scope of the projectstood totally amended and whether the respondents canproceed in the manner they propose to do.

(xv)Whether the feasibility report has failed to analyse thefinancial consequences of the Chennai-Salem express wayFbecoming an additional toll way or competing road to theexisting toll way and thus triggering series of contractualobligations under the present concessional agreements thatwould get extended by 50 to 100% of the remaining period.

G9. The High Court, at the outset considered the preliminaryobjection regarding maintainability of writ petitions being premature, asraised by the NHAI and the Union of India. In that, the stated notificationsunder Section 3A(1) were only expression of intention to acquire landsand all objections thereto could be considered by the designated authorityHat the appropriate stage. Further, the challenge to the said notifications

under Section 3A could be entertained by the High Court only if thecompetent authority had taken recourse to that option as colourableexercise of power. And it was not open to the Court to substitute itsown judgment for the judgment of the Government as to what constitutespublic purpose. The High Court noted that ordinarily, the constitutionalCourts would be loath to interdict any land acquisition process at theinception. However, it then went on to observe that the same is self-imposed restriction. Whereas, the circumstances of the present casewould warrant interference at the very threshold. Further, the land owners/losers cannot be made to wait till the final outcome of the decision of thecompetent authority and more so, when it is case of high-handed actionof the officials. The High Court noting the decision in State of Bombayvs. R.S. Nanji[11] and Somawanti & Ors. vs. State of Punjab & Ors.[12],observed that if the constitutional Court is convinced that the impugnednotifications are the outcome of colourable exercise of power by theauthorities concerned and the decision being replete with irrationality,unreasonableness and arbitrariness, ought to intervene at the threshold.

10. The High Court then proceeded to examine the next pointpertaining to the validity of notifications issued under Section 2(2) of the1956 Act. The challenge on this count was founded on the argumentthat the pre-requisite for issuing such notifications to declare highwayas “National Highway”, is that, it should be pre-existing State highway.For, in terms of powers conferred in Entry 23 of List I (Union List) ofthe Seventh Schedule, the Parliament is empowered to make law limitedto declaring an existing highway to be “National Highway”. Whereas,the State legislature has exclusive power to notify new highway, as italone is competent to enact laws concerning roads, bridges, ferries etc.not specified in List I. The argument regarding stated notifications underSection 2(2) of the 1956 Act being violative of Articles 257(2) and 254(4)of the Constitution, has been referred to in paragraph 43 of the impugnedjudgment. To wit, only the State Government is empowered to declare aland or road to be highway in terms of the Tamil Nadu HighwaysAct, 2001[13] and only such notified highway could be declared as aNational Highway by the Central Government. At any rate, the CentralGovernment cannot declare an open land passing through the green-fields as National Highway in exercise of power under Section 2(2) of

11 AIR 1956 SC 294 = 1956SCR 18

12 AIR 1963 SC 151 = (1963) 2 SCR 774

13 For short, “the 2001 Act”

Athe 1956 Act and consequently, the power under Section 3A of the 1956Act cannot be invoked in respect of such open lands. The High Courtnegatived this argument of the writ petitioners by relying on the decisionof the same High Court in B. Nambirajan & Ors. vs. District Collector,Kanyakumari District, Nagercoil & Ors.[14], which had followed theexposition in Jayaraman & Ors. vs. State of Tamil Nadu & Ors.[15].BThe High Court opined that where the Central Government is satisfiedthat for public purpose, any land is required for building, maintenance,management or operation of National Highway or part thereof, it may,by notification in the official gazette in exercise of powers under Section2(2) of the 1956 Act issue declaration and also initiate follow up actionCincluding notification under Section 3A. In substance, it is held that theCentral Government had sufficient power to acquire even open green-fields land for the purposes of construction of National Highways orpart thereof. (This part of the decision has been challenged by theappellant in appeal arising out of SLP(C) No. 18586/2019).

D11. The High Court then proceeded to examine point No. (iii) asto whether prior environmental clearance was imperative before issuingnotifications under Section 3A(1) and at what stage of acquisitionproceedings such environmental clearance ought to be made pre-condition. For dealing with this contention, the High Court noticed decisionof the Division Bench in J. Parthiban & Ors. vs. State of Tamil NaduE& Ors.[16] and of this Court in Karnataka Industrial Areas DevelopmentBoard vs. C. Kenchappa & Ors.[17]. The decision of the same HighCourt in M. Velu vs. State of Tamil Nadu & Ors.[18]was also noticed, asalso, the notification issued by the Ministry of Environment, Forest andClimate Change[19], dated 14.9.2006, to hold that prior environmentalFclearance/permission ought to have been obtained before issuance ofnotifications under Section 3A of the 1956 Act. The High Court thennoted the principles expounded by this Court concerning doctrine of “publictrust” in M.C. Mehta vs. Kamal Nath & Ors.[20] and M.C. Mehta vs.Union of India & Ors.[21]. It also noticed another decision of this Court

14 CDJ 2018 MHC 2862G15 2014 SCCOnline Madras 43016 AIR 2008 Mad 20317 (2006) 6 SCC 37118 2010 SCCOnline Madras 273619 for short, “the MoEF”20 (1997) 1 SCC 388H21 (2004) 12 SCC 118

in Raghbir Singh Sehrawat vs. State of Haryana & Ors.[22] and theexposition of Courts in the United States of America in Commonwealthof Massachusetts vs. James G. Watt[23], California vs. Watt[24], RooseveltLathan and Pearline Lathan, his wife, vs. John A. Volpe, Secretaryof the United States Department of Transportation[25], ArlingtonCoalition on Transportation vs. John A. Volpe, Secretary ofTransportation[26] and Jones vs. District of Columbia[27], and concludedthat being welfare State, the authorities while implementing the projectwhich, in the opinion of the Government, is in public interest, cannot turna nelson’s eye to reality and forget that protecting agriculture is equallyin public interest. It went on to observe that the interpretation of therelevant provisions in Indian context should lean towards protectingagriculturists and for that reason, went on to observe that if the Projectis allowed to be implemented without prior environmental clearance, itwould be gross violation of the principle of sustainable developmentand in particular, provisions of Articles 19, 21, 46, 48A and 51A of theConstitution of India.12. The High Court then proceeded to consider point Nos. (iv) to(vi) together. It noted the contention of the writ petitioners that until theProject (Bharatmala Pariyojna – Phase I) was reviewed on 24.1.2018and when the Minister of State – MoRTH replied to questions in RajyaSabha about new highway projects under various stages including DetailedProject Reports[28] stage on 5.3.2018, there was no inkling about theproposed Project made applicable to stretch/section – C-K-S (NC).Whereas, the stretch/section identified in the Project was – C-M (EC),which was completely different. Moreover, there was no tangible basisbefore the members of the Committee on 19.1.2018, to abruptly changethe Chennai-Madurai (Economic Corridor) - C-M (EC) project to oneas Chennai-Krishnagiri-Salem (National Corridor EfficiencyImprovement) – C-K-S (NC) or as green-field expressways. Nodocument/material had been produced before the Court in support ofthe Minutes recorded on 19.1.2018 - to justify C-K-S (NC) section. If

22 (2012) 1 SCC 792

23 716 F.2d.946 (1938)

24 683 F.2d 1253 (9th Cir. 1982)

25 455 F.2d 1111

26 458 F.2d.1323 (1972)

27 499 F.2d.502 (1974)28 for short, “the DPR”

Athe authorities intended to make such change, they ought to haveobtained prior approval/clearance from the Public Investment Board[29]and in-principle approval of the Ministry of Finance and the Comptrollerand Auditor General[30] in that regard. No audit of project formulation byCAG was done nor the alignment report and approval given was as perthe DPR guidelines of the MoRTH. Further, the Consultant – M/s.BFeedback Infra Pvt. Ltd. appointed for the original Project concerningsection C-M (EC), was continued for the changed stretch/section withoutfollowing the tendering process as predicated by the MoRTH and thePost Award Portal Guidelines for procurement, preparation, review andapproval of DPR etc. The High Court noted that the appellants hereinC(State authorities/NHAI/Union of India) had supported their actionregarding the changed/modified project on three grounds – (i) existingcapacity is fully utilised; (ii) there will be economic development ingeneral; and (iii) there will be reduction in carbon foot print, as the lengthof subject stretch/section was at least 40 kms. less than the correspondingsection falling under C-M (EC), as originally conceived. The High CourtDnoted that the Central Government had not filed any counter affidavit onthe subject matter. The counter affidavit was filed by the NHAI, whichdid not touch upon the factual matrix pointed out by the writ petitionersregarding the circumstances in which the stretch/section was changedto C-K-S (NC) except asserting that it was policy decision. The HighECourt was conscious of the fact that the issues raised by the writpetitioners were quasi-technical issues, but clarified that as to whetherthe stretch-section was part of the Project (Bharatmala Pariyojna –Phase I) at the first instance, is question of fact, which ought to havebeen answered and clarified by MoRTH. The Court, after referring tothe original Project, noted that C-K-S (NC) section does not find placeFtherein. Instead, C-M (EC) had been mentioned at S.No.19 of the originalProject. Further, there was nothing on record to indicate that the changedstretch/section had been approved by the Cabinet Committee or thePublic Private Partnership Appraisal Committee[31], as mandated in theguidelines issued by the CAG. Thus, the High Court held that the decisionGwas taken by the Committee in hot haste and without following necessaryformalities and standard operating procedures specified in that regard.As matter of fact, no proper scrutiny of all relevant facts and moreparticularly, possible alternatives had been explored before final decision29 For short, “the PIB”30 for short, “the CAG”H31 for short, “the PPPAC”to implement such major project was taken (costing around Rs.10,000crores, covering around 277 kms. and construction of new NationalHighway traversing through green-fields). At the same time, the HighCourt rejected the allegation about the hidden agenda for such changeof stretch/section from C-M (EC) to C-K-S (NC). The High Court foundthat the allegations regarding hidden agenda to favour private limitedcompany remained unsubstantiated.

13. The High Court then proceeded to examine point No. (vii)regarding the continuation and appointment of the Consultant in respectof the changed stretch/section i.e. C-K-S (NC), although its initialappointment was in respect of the stretch/section originally conceivedi.e. C-M (EC). The High Court recorded disparaging and condemnatoryremarks in reference to continuation of the same Consultant for thechanged stretch/section without following proper procedure. The HighCourt also accepted the criticism regarding Draft Feasibility Report[32]prepared by the Consultant being bereft of any credible material/information, but was replete with mechanical reproduction of contentsresembling with some other projects. The argument of the Consultantthat no other bidder (Consultant) had challenged its appointment in respectof changed stretch/section - C-K-S (NC), came to be rejected. TheHigh Court proceeded to hold that the authorities ought to have invitedfresh tenders and offers from the qualified Consultants as per the standardoperating procedure and ought not to have continued with the sameConsultant for the entirely different stretch/section – C-K-S (NC).

14. The High Court then considered point No. (viii) regardingimpact assessment and in-principle approval to study the impact of theProject on flora and fauna. The High Court noticed that the changedstretch/section was to pass through the forest areas to the extent of 10kms., yet no prior permission of the Forest Department had been obtained.Further, no impact assessment analysis was done before taking decisionto change the project to C-K-S (NC). Also that in the name of the subjectproject, 100 trees were unauthorizedly felled from the lands in closeproximity with the proposed alignment in the guise of allowing somepersons to remove the damaged trees. The Court also took into accountthe inaction of the authorities in some other locations in the neighbourhood,failing to remove encroachments in the forest area and the firm stand ofthe Forest Department for denying permission to erect even small

32 For short, “the DFR”

Abridge to facilitate the villagers to cross Moiyar river to reach theirresidence. Taking judicial notice of that fact, the High Court proceededto assume that it was most unlikely that permission will be given forconstruction of new National Highway passing through the forest area.This aspect had not been seriously considered by the appropriate authority.The decision, however, was based on report which was preparedBmechanically on the basis of geo-mapping without physical verificationon site. Similarly, the proposed alignment was without collecting data ofPassenger Carrying Units[33] or ascertaining the correctness of data(referred to in the report) collated from the toll plazas. At the end, theHigh Court noted that the procedure adopted by the NHAI in asking theCConsultant to carry out the work, which was never the scope of the biddocument, by an oral arrangement, was unacceptable. It then observedthat if the Central Government was still of the opinion that the subjectproject concerning section – C-K-S (NC) is required to be implemented,then it must comply with the required formalities of obtaining requisiteenvironmental and forest clearances/permissions, after undertakingDcomprehensive study of the environmental impact.15. The High Court then proceeded to examine point Nos. (ix)and (x) together and concluded that fair procedure ought to be adoptedand the fact that there would be delay if such procedure is followed, willbe of no avail. Prior environmental clearance must be obtained after aEpublic hearing is held, before the project is implemented. The High Courtthen went on to examine the remaining points for consideration separately;and concluded as follows: -

“101. For all the above reasons, we are of the considered viewthat the project highway as conceived and sought to beFimplemented is vitiated on several grounds as mentionedabove and consequently, the notifications issued foracquisition of lands under Section 3A(1) are liable to bequashed.

102. In the result, the Writ Petitions are allowed and the landGacquisition proceedings are quashed.103. In view of the above, Crl.O.P. No. 22714 of 2018 is closed.Consequently, connected Miscellaneous Petitions are closed. Thereshall be no order as to costs.

H33 for short, “the PCUs”

104. During the pendency of these Writ Petitions, when we heardthe cases, the learned counsel for the land owners pointed outthat the revenue records were mutated and stood transferred asGovernment lands. This had happened even much prior to issuanceof the Notification under Section 3D of the Act. We had pointedout that such an action could not have been initiated, as, by issuanceof Notification under Section 3A of the Act, the Governmentonly conveyed its intention to acquire the lands.

105. The learned Government Pleader sought to explain bycontending that those entries were only temporary in nature andthat in the event of the lands get excluded from the project, theentries would stand reverted back.

106. We do not agree with the said stand taken by the learnedGovernment Pleader at that juncture itself. Now that we hadallowed the writ petitions, all the entries in the revenuerecords, which stood mutated, shall be reversed in thenames of the respective land owners and fresh orders beissued and communicated to the respective land ownerswithin two weeks thereafter. This direction shall be compliedwith within period of eight weeks from the date of receiptof copy of this judgment.”

(emphasis supplied)

16. The High Court in the impugned judgment also took note ofother decisions[34], presumably referred to by the parties during argumentbefore it. However, in the impugned judgment, no analysis thereof isfound.

34 State of U.P. & Ors. vs. Babu Ram Upadhya, AIR 1961 SC 751;Col. A.S. Sangwan vs. Union of India & Ors., AIR 1981 SC 1545;Life Insurance Corporation of India vs. Escorts Ltd. & Ors., (1986) 1 SCC 264;Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay, (1989) 3SCC 293;State of Tamil Nadu & Anr. Vs. A. Mohammed Yousef & Ors., (1991) 4 SCC 224;Ujjain Vikas Pradhikaran vs. Raj Kumar Johri & Ors., (1992) 1 SCC 328;Jilubhai Nanbhai Khachar & Ors. vs. State of Gujarat & Anr., 1995 Supp (1) SCC 596;State of Tamil Nadu & Ors. vs. L. Krishnan & Ors., (1996) 1 SCC 250;Secretary, Ministry of Chemicals & Fertilizers, Government of India vs. Cipla Ltd. &Ors., (2003) 7 SCC 1;

Delhi Development Authority & Anr. Vs. Joint Action Committee, Allottee of SFSFlats & Ors., (2008) 2 SCC 672;

ATHE CHALLENGE

17. Aggrieved, three sets of appeals have been filed before thisCourt. First, by the NHAI, second by the Union of India and third, bythe land owner(s) in reference to rejection of challenge to notificationsunder Section 2(2) of the 1956 Act. The grounds urged in the concernedBappeals are more or less recapitulation of the points canvassed beforethe High Court and exhaustively dealt with in the impugned judgment.Besides the oral arguments, the concerned parties have filed writtensubmissions as per the liberty given to them by this Court upon conclusionof the oral arguments through video conferencing (virtual Court hearing).

C18. The arguments were opened by Mr. Tushar Mehta, learnedSolicitor General of India. The gist of the points urged by him can bestated thus. Writ Petitions filed to assail the notifications under Section3A of the 1956 Act including Section 2(2) were premature. In that, thequestion whether the acquisition is for public purpose is matter to bedealt with by the appropriate authority in light of the objections filed byDthe aggrieved persons in response to the notifications under Section 3A(1)of the 1956 Act, which is merely an expression of intent to acquire thespecified land for construction of national highway under the Project(Bharatmala Pariyojna – Phase I). He would contend that the HighCourt also committed manifest error in concluding that such notificationsEunder Section 3A of the 1956 Act could be issued only after prior

Sooraram Pratap Reddy & Ors. vs. District Collector, Ranga Reddy District & Ors.,(2008) 9 SCC 552;Bondu Ramaswamy & Ors. vs. Bangalore Development Authority & Ors., (2010) 7SCC 129;

K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka, (2011) 9 SCC 1;FUnion of India vs. Kushala Shetty & Ors., (2011) 12 SCC 69;

Alaknanda Hydropower Company Limited vs. Anuj Joshi & Ors., (2014) 1 SCC 769;Jal Mahal Resorts Private Ltd. vs. K.P. Sharma & Ors., (2014) 8 SCC 804;Rajendra Shankar Shukla & Ors. vs. State of Chhattisgarh & Ors., (2015) 10 SCC 400;The Industrial Development and Investment Co. Pvt. Ltd. & Anr. Vs. State ofMaharashtra & Ors., AIR 1989 Bom 156;

O. Fernandes vs. Tamil Nadu Pollution Control Board & Ors., (2005) 1 L.W. 13;GGeorge Joseph and Ors. vs. Union of India, 2008 (2) KLJ 196;New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association vs. Union ofIndia & Ors., (2012) 1 MLJ 207;

Madan Malji Kambli & Ors. vs. State of Goa & Ors., 2012 SCCOnline Bom 694; andPrithvi Singh & Ors. vs. Union of India & Ors. – of the High Court of Punjab &Haryana at Chandigarh in CWP 689/2012, dated 16.5.2013.H

environmental and forest clearances/permissions are granted in thatbehalf. The High Court has misread and misapplied the decision of thisCourt in support of that view. It is urged that the acquisition processinitiated under the 1956 Act, which is self-contained code, is completelyindependent and cannot be fusioned with the formalities and procedureto be complied with before commencement of the Project constructionwork, in reference to the environment or forest laws. The appellants –NHAI and MoEF had unambiguously stated before the High Court andreiterate before this Court that all formalities will be complied with in itsletter and spirit before the construction work of the stated national highwayactually commences. It is essential to authoritatively decide as to atwhat stage the appellant – NHAI is required to obtain the environmentalor forest clearance as per the extant laws including the notification andOffice Memorandum dated 14.9.2006 and 7.10.2014, respectively, ofthe MoEF. The applicable notification/Office Memorandum explicitlyexcludes the need for prior environmental clearance for “securing theland”. It is urged that prior environmental clearances have been ordainedbefore any construction work of specified project including for preparationof land by the project management (except for securing the land) isstarted on the project. Indeed, before commencement of such work orpreparation, as the case may be, the concerned agency is obliged tomake application in Form-1. That may be possible only after identificationof prospective site for the Project and/or activities to which the applicationrelates. The identification of site for the construction of national highwaysbecomes possible only upon completing the process of public hearingconsequent to publication under Section 3A of the 1956 Act. It is thenurged that the High Court justly rejected the argument of the land ownersthat open lands cannot be acquired for construction of national highwaysor that national highway can be declared only in reference to an existinghighway. He submits that there is ample power bestowed in the appellant– NHAI and the Central Government in particular, in terms of the 1956Act and the National Highway Authority of India Act, 1988[35] to acquireopen land for the purposes of construction of national highway, as maybe declared under Section 2(2) of the 1956 Act. These legislations havebeen enacted well within the legislative competence of the Parliamentbeing subject specified in List I of the Seventh Schedule. Similarly, theargument of notifications being in violation of constitutional provisionsrelating to executive powers is misplaced. On the other hand, the

35 for short, “the 1988 Act”

Anotifications issued under Section 2(2) of the 1956 Act and the follow upnotifications issued under Section 3A of the same Act, proposing toacquire the subject lands, were fully compliant of the legal requirements.No violation of any nature can be attributed to the issuance of thesenotifications including that the same were not in good faith. He submitsthat the question whether the subject land referred to in the notificationsBunder Section 3A(1) of the 1956 Act is required for public purpose orotherwise can be and ought to be answered in reference to the objectionstaken by the land owners/aggrieved persons during public hearing. Theauthority considering such objection can also consider the question aboutthe viability and feasibility of the Project. He would contend that theCland acquisition proceedings under the 1956 Act and grant ofenvironmental clearance are two different and distinct processes. Theyoperate in different fields. The High Court, therefore, completely misleditself in confusing the issue by holding that prior environmental and forestclearances ought to be obtained even before issuing notifications underSection 3A of the 1956 Act. The High Court also completely glossedDover the mandate of Section 3D of the 1956 Act, predicating that thefinal declaration thereunder ought to be issued within one year from thedate of publication of notifications under Section 3A, else the commencedprocess would be deemed to have lapsed. The provisions such as Sections3A to 3J of the 1956 Act, have been enacted by way of amendment ActEof 1997 to ensure speedy conclusion of acquisition proceedings andprompt execution of highway projects. By interpretative process, theHigh Court has in fact, created an artificial barrier for issue of Section3D notification and has re-written the amended provisions of 1997. Hewould submit that the principle expounded by the American Courts haveno bearing in the context of the express statutory scheme propoundedFunder the 1956 Act and the 1988 Act or for that matter, under theenvironmental and forest laws including the notifications issuedthereunder. The latter enactments (environmental/forest laws) wouldget triggered when the project work was to actually commence. Inother words, execution of the Project could commence only after suchGclearances are in place. It is contended that the High Court proceededto examine the need and viability of proposed C-K-S (NC) sector onerroneous basis and on assumptions. It proceeded to examine thecomparative merits of different routes, which cannot be countenancedas it is beyond the scope of judicial review. As matter of fact, the HighCourt has interfered with the policy decision of the competent authorityH(the MoRTH) dated 19.1.2018, completely overlooking the discretionbestowed in the Ministry vide Project (Bharatmala Pariyojna – Phase I)itself, empowering it to replace/substitute upto 15% length of 24,800kms. of Phase-I of the Project by other suitable stretches/sections. Thesector of C-K-S (NC) was finalized by the Committee in the meetingdated 19.1.2018 for the reasons recorded in the minutes, including thegeneral principles governing development of national highways and alsoreckoned in the Project. It is contended that the High Court ought not tohave interfered with the judicious and well-considered decision taken bythe competent authority. He would contend that even if the section/project finalised vide minutes dated 19.1.2018 was not referred to in theoriginal Project, however, as the decision was taken by the competentauthority about the replacement/substitution to the extent permissible, itforms part of Phase I of Bharatmala Pariyojna (the Project) - in place ofthe originally envisaged sector of C-M (EC). The change was for thebetterment of the area covered under the Project and would pay dividendsin posterity at the micro levels in different ways of providing access andnew opportunities and strengthening the national road network at themacro level. As regards the observation made in reference to theConsultant appointed for the subject Project, it is urged that the samewas completely misplaced and in any case, extraneous for answeringthe challenge regarding validity of notifications under Section 3A(1) ofthe 1956 Act or for that matter, Section 2(2) of the same Act issued bythe competent authority. As matter of fact, no relief was claimed in theconcerned writ petitions filed before the High Court against the Consultantnor its appointment order issued by the competent authority was underchallenge. The Consultant was duly appointed for the stated Project tobe paid on per kilometre basis, vide contract dated 22.2.2018.Indisputably, no financial loss will be caused to public exchequer as theConsultant fees is fixed on kilometre basis only. For, the subject stretch/section [C-K-S (NC)] involves only 277 kms. as against the stretch/section originally conceived [C-M (EC)] of around 350 kms. Thus, itwould entail in less consultant fees than was envisaged for the originallyconceived section for the Project. In substance, it is urged that the HighCourt was persuaded to undertake roving inquiry despite the officialrecord indicating that necessary formalities and procedure has beencomplied with before declaration of C-K-S (NC) section as replacement/substitution of the originally conceived section, and duly approved by thecompetent authority. The High Court should have dismissed the writ

Apetitions. In support of his submissions, he has relied on the decisions ofthis Court in Akhil Bharat Goseva Sangh vs. State of A.P. & Ors.[36],Sooraram Pratap Reddy (supra), K.T. Plantation Pvt. Ltd. (supra),Kushala Shetty (supra) and Somawanti (supra); He has also invitedour attention to decisions of Punjab & Haryana High Court in DiljitSingh & Ors. vs. Union of India & Ors.[37] and of the Madras HighBCourt in B. Nambirajan (supra) and Jayaraman (supra).

19. Mr. S. Nagamuthu, learned senior counsel appearing for theland owners/aggrieved persons, who had filed writ petitions before theHigh Court, urged that notifications under Section 3A(1) of the 1956 Actissued without obtaining prior environmental clearance from the MoEFCin terms of the notification dated 14.9.2006 are void and bad in law.Moreover, as per the recommendation of the Environment AssessmentCommittee[38], no environment clearance could be given to the subjectsection (Chennai-Salem) of the Project and in absence thereof, it mustfollow that no construction will be permissible on the specified lands andDthus it cannot be used for the stated public purpose within the meaningof Section 3A(1) of the 1956 Act. On this count alone, no interferencewith the decision of the High Court in setting aside the notificationsunder Section 3A of the 1956 Act is necessary. According to him, theHigh Court has justly interpreted the sweep of notification dated 14.9.2006,which has statutory force and mandates that prior clearance/permissionEought to be taken before the commencement of acquisition processincluding issuing notifications under Section 3A(1) of the 1956 Act. Inthat, the satisfaction reached by the competent authority that the landreferred to in such notification is required for public purpose, could betaken forward only upon grant of environmental/forest clearances. He

Fhas placed reliance on the exposition of this Court in KarnatakaIndustrial Areas Development Board (supra) and of the High Courtof Judicature at Madras in M. Velu (supra), to buttress his submission.He then submits that the competent authority under the 1956 Act andthe 1988 Act are different. Thus, the application for environmental

clearance cannot be pursued by the competent authority under the 1956GAct, as in law, such application ought to be made by the competentauthority under the 1988 Act before the commencement of the acquisitionprocess. In other words, the competent authority under the 1956 Act

36 (2006) 4 SCC 162

37 2010 SCC Online P&H 11847H38 For short, “the EAC”

cannot hasten issuance of notification under Section 3A(1) in anticipation.He submits that harmonious reading of the provisions of the 1956 Actand the 1988 Act go to show that the competent authority under the1988 Act (NHAI) is expected to initiate the process by undertakingsurvey of the land and identifying the land under Section 16(2) of the1988 Act; and then submit application for environment/forest clearance.Further, only after securing essential permission(s) therefor, the notificationunder Section 3A(1) of the 1956 Act could be issued by the CentralGovernment to commence the acquisition process of such identified land.This course is not only desirable, but should be made compulsory byinterpretative process - in absence of any provision in the 1956 Actauthorising the Central Government to return the unutilised land (due torefusal of essential clearances), to the erstwhile owner (unlike theprovisions in the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013[39]). He wouldsubmit that the role of the MoRTH, the MoEF and the NHAI is welldefined. In the alternative, it is submitted, that the authority under the1956 Act may be permitted to continue with the acquisition process untilthe stage of notification under Section 3D(1) of the 1956 Act and toissue such notification only upon grant of permission/clearance by thecompetent authority under the environment and forest laws.This isbecause upon issuance of notification under Section 3D(1) of the 1956Act, the land would vest absolutely in the Central Government free fromall encumbrances. For that purpose, the expression “shall” occurring inSection 3D(1) of the 1956 Act be construed as “may” and byinterpretative process, liberal meaning be ascribed to the proviso in Section3D(3) of the 1956 Act. Such approach would preserve the interest ofthe land owners, as well as, effectuate the public purpose underlying theacquisition process.

20. Even Mr. Sanjay Parikh, learned senior counsel espousing thecause of the land owners and aggrieved persons would submit that theconclusion reached by the High Court in the impugned judgment that theacquisition process in question was vitiated because of the reasons notedin the judgment, needs no interference. He would submit that the subjectsection i.e. C-K-S (NC) was not part of the original Project (BharatmalaPariyojna - Phase I) and no tangible reason is forthcoming as to whysuch change was approved by the competent authority, especially when

Athe State Government was keen on developing the existing C-M (EC)section as priority project. He submits that the selection of C-K-S(NC) section is arbitrary and violative of guidelines/rules for selection ofa national highway. Further, the stated section traverses through thegreen-fields and the agricultural lands including the forest area to theextent of 10 kms. Hence, the High Court was justified in concluding thatBthe decision to change the section from C-M (EC) to C-K-S (NC) wasflawed and unsustainable. The selection of the said section was in violationof the original Project (Bharatmala Pariyojna – Phase I) itself, whichwas based on scientific survey and research envisaging development ofC-M (EC) section. The Project conceived after scientific process hadCthe approval of CCEA and the authorities specified in ‘Section E’ of theoriginal Project (Bharatmala Pariyojna) document. It mandates thatCCEA approval is mandatory for projects involving expenditure of morethan Rs.2,000 crores in respect of Public-Private Partnership and if it isan Engineering Procurement & Construction project – involvingexpenditure of more than Rs.1,000 crores. No such approval has beenDobtained in respect of the subject changed section/project, although itwould involve expenditure upto Rs.10,000 crores. Moreover, the proposedchange would be permissible only if the State was ready to bear at least50% cost of the land acquisition. Even that condition is not fulfilled.Similarly, no survey of PCUs was undertaken in respect of the subjectEsection unlike it was done in respect of the C-M (EC) section. Nojustification is forthcoming as to why C-M (EC) section has beencompletely shelved by the authorities concerned in terms of the minutesdated 19.1.2018. As per the prescribed norms in the Project, newgreen-field highway is to be constructed only when the PCUs of theexisting road exceeds 50,000. In the present case, as per the detailedForigin–destination studies, the combined PCUs of the three routes betweenChennai-Salem do not meet the threshold of 50,000 PCUs. Despite that,the change recorded in the minutes dated 19.1.2018 predicatesconstruction of highway through green-fields and that too without priorenvironmental approvals therefor. It is clear from the record that theGauthorities were aware of the need to obtain CCEA approval when theychanged the scope of the Project from brown-field expansion to green-field section between Chennai-Salem. The said change is in violation ofthe NHAI Works Manual, 2006[40]. It is in breach of paragraph 1.8.1,which is to be followed uniformally by all units of the NHAI and can be

H40 for short, “the NHAI Manual”

modified only by the Chairman, after recording reasons. No modificationin the application of the NHAI Manual in respect of the Project is done.Similarly, paragraph 2.7 thereof postulates that package scheme suchas the present one, should receive approval of the Central Governmentand individual projects will be approved after the DPR and cost estimatesbecome available. Further, no fresh tender was issued by the NHAI forappointment of new Consultant despite the change of scope of the earlierProject. The Consultant, who was appointed for the C-M (EC) section,was entrusted with the work of changed section i.e. C-K-S (NC). Theissue regarding improper appointment of the Consultant has bearing onthe challenge to the subject section of the Project being illegal. Reliancewas placed on the decision of this Court in K. Lubna & Ors. vs. Beevi& Ors.[41]. It has been held therein that question of law can be raised atany stage, as long as factual foundation had been laid. This decision ispressed into service to support the finding and observations recorded bythe High Court concerning the improper appointment of Consultant forthe said section i.e. C-K-S (NC).His argument was focussed on theimproper appointment of the Consultant for the subject section of C-K-S (NC) and supported the observations made by the High Court in theimpugned judgment in that regard. To that end, reliance is placed onShrilekha Vidyarthi & Ors. vs. State of U.P. & Ors.[42]. In substance, itis argued that the action of the competent authority is replete with unduehaste and non-application of mind besides being in violation of the standardoperating procedures applicable to such Project including of not obtainingprior environmental/forest clearances before issuing notifications underSection 3A of the 1956 Act. Such clearances are necessary at the stageof appraisal under notification of 2006, as the Project pertains to green-fields and being category-A Project. The learned counsel elaboratelytook us through the procedure to be adopted by the Expert AppraisalCommittee before according in-principle approval for the project. Heinvited our attention to the MoEF Office Memorandum (O.M.) dated7.10.2014 to buttress his argument that all environmental clearances aresite-specific and are required to be obtained beforehand. He would submitthat only after such permission is granted, the acquisition process becommenced by issuing notification under Section 3A of the 1956 Act inrespect of such lands for construction of national highway. Alternatively,he submits that the Court may also consider exempting/excluding the

41 (2020) 2 SCC 52442 (1991) 1 SCC 212

DEF

Atime taken in obtaining environmental clearance from the period of oneyear specified in Section 3D(3) of the 1956 Act. He has highlighted thepoints taken note of by the High Court in the impugned judgment andsupported the conclusion reached by the High Court in setting asidenotifications under Section 3A(1) of the 1956 Act. The learned counselhad relied upon the decisions of this Court in Karnataka IndustrialBAreas Development Board (supra) and State of Uttaranchal vs.Balwant Singh Chaufal & Ors.[43]. Similarly, of the Madras High Courtin M. Velu (supra), of the Punjab & Haryana High Court in Diljit Singh(supra) and of the American Courts in Commonwealth ofMassachusetts (supra), California (supra), Roosevelt Lathan andCPearline Lathan, his wife (supra), Arlington Coalition onTransportation (supra) and Jones (supra).21. Mr. Nikhil Nayyar, learned senior counsel espousing the causeof land owners/aggrieved persons adopted the aforementioned argumentsand also supported the conclusion reached by the High Court in theDimpugned judgment. Most of the points made during his oral submissionshave been articulated by him in his written submissions. He submits thatthe impugned notifications under Section 3A as issued, have, in any case,lapsed by operation of law. On merits, he contends that the original Projectincluding C-M (EC) section, had received approval of the CCEA.However, the changed section i.e. C-K-S (NC) had no such prior approvalEof the CCEA. There is nothing in the Project document to authoriseswapping of project/section, as done in the present case in the guise ofdiscretion of 15%. He submits that reliance placed on the original approvedproject enabling exercise of discretion by the Minister-RTH is completelymisplaced. That discretion cannot be invoked for provisioning completely

Fdifferent project/section, as in this case between Chennai-Salem, andmoreso when admittedly, three alternative routes are already available.He invited our attention to the specific grounds articulated in the writpetition(s) filed by the aggrieved persons before the High Court, pointingout gross defects and flaws in regard to the changed section. He wouldcontend that the authorities cannot walk away with the argument ofGpolicy decision and the limited scope for intervention by the Courts inthat regard. He invited our attention to Bengaluru DevelopmentAuthority vs. Sudhakar Hegde & Ors.[44] to support the argument thatnotification under Section 3D of the 1956 Act can be issued after appraisal43 (2010) 3 SCC 402H44 2020 SCCOnline SC 328

for grant of environmental clearance under the notification, 2006. Hesubmits that this interpretation would be consistent with the scheme ofthe 1956 Act, as hearing of objection under Section 3C is mandatoryrequirement and must precede the declaration under Section 3D. In thealternative, he submits that notification under Section 3D should not beissued until environmental and forest clearances are obtained in respectof the subject project. He submits that the decision in Diljit Singh (supra)does not enunciate the correct legal position. On the other hand, therequirement of law is that the environmental clearance must be obtainedbeforehand. He submits that the Punjab & Haryana High Court did nothave the benefit of MoEF O.M. dated 7.10.2014, which makes theposition amply clear about the stage of obtaining environmental clearance.He had relied on paragraph 100 of Karnataka Industrial AreasDevelopment Board (supra) and also the High Court decision in M.Velu (supra). He also contended that the subject section of the Projecthas not been sanctioned by the competent authority, as required in termsof the NHAI Manual. He submits that the change of section is withoutany tangible basis and is not supported by data required for justifyingsuch change. The change is brought about contrary to the guidelinesissued by the MoRTH. In substance, the argument is that the changehas been effected hastily and without application of mind, as has beenjustly concluded by the High Court. He submits that no interferencewith the High Court decision is warranted.22. The next in line to argue was Ms. Anita Shenoy, learned seniorcounsel. She espouses the cause of the land owners/aggrieved persons.She has supported the conclusion reached by the High Court and alsoadopted the submissions made by learned counsel preceding her. Shehas commended to us that environmental clearances must precede thecommencement of acquisition process. That is because the EIA processinvolves steps such as details of alternative sites examined, status ofclearances, details of forest land and the physical changes to topography,land use, change in water bodies because of construction and operationof the project, etc. Public consultation also highlights the impact of theproject on the people in the area and on the environment. Only on thebasis of such empirical data, an informed decision can be taken for grantof environmental clearance. This process ought not to be viewed as anyimpediment in the project, such as construction of national highways, butas tool for taking just and appropriate decision including to uphold the

Adoctrines of “public trust”, “precautionary principle” and “sustainabledevelopment”. That is the requirement also under the notification of2006 and MoEF O.M. dated 7.10.2014. Reliance has been placed byher on Hanuman Laxman Aroskar vs. Union of India[45] to highlightthe significance of notification, 2006. She has also placed reliance onthe exposition in Kamal Nath (supra) to submit that the Courts are freeBto examine whether the project fulfils the requirements of good faith, forthe public good and in public interest and does not encroach upon thenatural resources and convert them into private ownership. Accordingto her, notifications under Section 3A have been justly quashed at thethreshold stage itself because of serious errors in the decision-makingCprocess, which had vitiated the entire process and not merely becauseof lack of prior environmental clearance. She also highlighted thecircumstances emanating from the record, which according to her, clearlygo to show that the change of section was hasty decision and notbacked by any study/enquiries which ordinarily ought to precede suchdeclaration. In that, the project stretches under the original ProjectD(Bharatmala Pariyojna – Phase I) had been identified after thoroughand scientific exercise, carried out on the basis of detailed origin-destination studies, freight flow projections and verification of the identifiedinfrastructure gaps through geo-mapping, using data fromBhaskaracharya Institute for Space Applications and Geo-InformaticsE(BISAG), as well as from other sources, and also integration of economiccorridors with ongoing projects under the NHDP and infrastructureasymmetry in major corridors. For changing such well-informeddecision, very strong evidence ought to have been produced by theauthority deciding to change the same in the short span (i.e. 24.10.2017,when the Cabinet had approved the Phase I of the original ProjectFconsisting of section C-M (EC); and the decision of MoRTH dated19.1.2018 concerning C-K-S (NC) section). Not even DPR was placedbefore the MoRTH when such decision regarding change was taken on19.1.2018. Further, approval accorded by the Cabinet/CCEA for thechanged section of the Project, valued at more than Rs.500 crores wasGnot forthcoming. In fact, the Central Government did not file any counteraffidavit to justify why the change was adopted in the meeting dated19.1.2018. It merely relied upon the counter affidavit of NHAI whereinit is asserted that it was policy decision. The learned counsel alsocommented upon the manner in which the Consultant appointed for theH45 (2019) 15 SCC 401earlier section of the Project was continued for the changed sectionwithout following necessary fresh tendering procedure. She thencommented about the DPR submitted by the Consultant consisting ofinaccurate and plagiarised contents. She submitted that good quality roadsare essential for development of the area and all concerned, but thereare already three existing highways between Chennai-Salem. Resultantly,the new section/project passing through the fertile agricultural landbetween Chennai-Salem was bound to impact the environment and alsothe livelihood of the land owners/farmers without any tangible advantageor gains accruing to them. Judicial review of such decision wasimperative and has been rightly struck down by the High Court.

23. The next learned counsel espousing the cause of land owner(s)/aggrieved person(s) is Mr. Kabilan Manoharan. He had appeared in thecross-appeal filed to challenge the opinion of the High Court rejectingassail to the notifications issued under Section 2(2) of the 1956 Act,declaring NH-179A and NH-179B traversing through non-existent roadsand on open green-field lands. He would contend that the High Courtfailed to comprehend the core aspects agitated by the writ petitioners.He has articulated the ground as follows: -

“….. That, the Petitioner had sought to Quash the 1st RespondentMoRTH’s Sec. 2(2) Declaration dated 01-03-2018 under theNational Highways Act, 1956 on the GROUND that it was issuedwithout an enabling provision of law, as Sec. 2(2) of the NationalHighways Act, 1956 only enables an existing Highway to bedeclared as National Highway and thus the G.O. was issued in“Arbitrariness” and in violation of Art. 14 of the Constitution andwhich is ultra vires the Constitution derived Legislative Powersof the Union (w.r.t. Roads under Entry 23 of the Union List in theVII Schedule under Art. 246 seen in contract with Entry 13 of theState List) and also ultra vires the Constitution derived ExecutivePowers of the Union (w.r.t. Roads under Art. 257).”

And again: -

“(10) That, the Petitioner will now go on with submissions todemonstrate how the Policy Decision of the Respondents will besubject to Judicial Review given the evident facts that the Sec.2(2) Declaration of new National Highway NH-179B over Non-existent road and on plain land, that which is Decision/Declaration

[2020] 14 S.C.R.

Ain furtherance of the Policy Decision to implement the Chennai-Salem Expressway Project, is in fact

A.Issued in violation of Constitutional Provisions relatingto Legislative Powersof the Union w.r.t. Roads as seenfrom Entry 23 of the Union List in the VII ScheduleBunder Art. 246 seen in contracts with Entry 13 of theState List

B.Issued in violation of Constitutional Provisions relatingto Executive Powers of the Union w.r.t. Roads as seenfrom Art. 257

C.Issued in violation of Statutory Provisions (i.e. Sec. 2(2)of National Highways Act, 1956)

D.Issued by the Delagatee (1st Respondent MoRTH) inan Act beyond the delegated powers (without all requiredPIB approval, PPPAC Approval, CCEA Clearance thatwas mandated)

E.Issued in violation of larger Policy (BharatmalaPariyojna Phase – I; “Bharatmala-I”)

F.Issued without any demonstrable Public Purpose asevident from the instances of Non-application of mindEover available data on

(i)Characteristics of the project

(ii)Traffic Analysis

(iii) Study of Alternatives

(iv) Economic Analysis

(v)Financial Analysis

(vi) Sensitivity Analysis

(vii) Burden to Exchequer

(viii) Benefits to existing Tollway Concessionaires

(ix) Development tied to new Roads

(x)Carbon Foot-print reduction from cheaper ways”

These salient points have been elaborated in the written submissionsdrawn by Mr. Kabilan Manoharan, learned counsel assisted by Mr. P.Soma Sundaram, Advocate-on-Record. In his submission, this Courtshould be slow in interfering with the conclusion recorded by the HighCourt in reference to notifications under Section 3A of the 1956 Act.Learned counsel though has supported the conclusion reached by theHigh Court, yet assailed the adverse findings and conclusion in referenceto the impugned notifications under Section 2(2) of the 1956 Act.According to him, the challenge to the stated notifications had beenanswered without reference to the points specifically raised by the writpetitioners. The same were only adverted to in paragraph 43 of theimpugned judgment while dealing with point No. (ii). He would submitthat the High Court ought to have set aside the notifications issued underSection 2(2) of the 1956 Act declaring new national highways, namely,NH-179A and NH-179-B, as they would traverse through non-existentroads and on green-field lands, being without authority of law. Therefore,the entire process was null and void. Learned counsel has relied uponthe decisions of this Court in Col. A.S. Sangwan (supra), DwarkadasMarfatia & Sons (supra), Synthetics and Chemicals Ltd. & Ors. vs.State of U.P. & Ors.[46] and Cipla Ltd. (supra).

24. Two more written submissions have been filed by the learnedcounsel espousing the cause of land owners/aggrieved persons, namely,by learned counsel - Mr. T.V.S. Raghavendra Sreyas and Mr. S.Thananjayan. More or less, same points have been urged in theirrespective written submissions. Even according to them, considering theavailability of three existing routes between Chennai-Salem and whichhave not achieved the maximum traffic, there was no need for newproject in the garb of connecting industries along the Chennai-Salemroute. In that, there are no existing, approved or proposed industrial zones/SEZs along this route as per Government data. Further, the changerecorded in the minutes of the meeting dated 19.1.2018 is not supportedby any survey reports or documents containing empirical data to justifynew national highway. The Consultant, who was appointed for the originalProject concerning C-M (EC) section, presented alignments for thechanged section i.e. C-K-S (NC) in the meeting held on 19.2.2018 eventhough the intimation regarding change of scope of the Project was madeknown on 22.2.2018. As the decision was taken on the basis of the DPR

Aprepared by the Consultant on the basis of incorrect facts mechanicallycopied from other reports and which was made the base document forconsideration by the MoEF for issuance of Terms of Reference, theentire EIA process was vitiated. They have adopted the reasons andfindings recorded by the High Court for quashing of the notificationsunder Section 3A(1) of the 1956 Act and pray for dismissal of the appealsBpreferred by the NHAI and the Union of India.

25. We have heard learned counsel for the parties and have alsoconsidered the relevant pleadings and documents including writtensubmissions filed by the learned counsel appearing for the concernedparties.C

LEGISLATIVE COMPETENCE OF THE UNION

26. The threshold issue, we propose to answer at the outset isabout the legislative competence of the Parliament to enact law fordeclaring open green-field lands as national highway. Notably, noDdeclaration was sought by the writ petitioners in reference to theprovisions of the 1956 Act, the 1988 Act and in particular, Section 2 ofthe 1956 Act, to be ultra vires as such. The argument is that since onlythe State legislature is competent to make law for construction of newroads traversing through the open green-fields, where no road existsand only in case of an existing road/highway, would the CentralEGovernment have power to declare it as national highway. To buttressthis submission, reliance is placed on Entry 13 of List II (State List) ofthe Seventh Schedule dealing with the subject on which the Statelegislature has exclusive power to make law, namely: -

“13. Communications, that is to say, roads, bridges, ferries, andFother means of communication not specified in List I; municipaltramways; ropeways; inland waterways and traffic thereon subjectto the provisions of List I and List III with regard to suchwaterways; vehicles other than mechanically propelled vehicles.”

In contradistinction, Entry 23 of List I of the Seventh Schedule inGrespect of which the Parliament has exclusive power to make law, is“highways declared by or under law made by Parliament to be nationalhighways”. It is, therefore, urged that the Central Government had nopower to invoke Section 2(2) of the 1956 Act, as it merely enables theCentral Government to declare an existing highway to be nationalhighway. Resultantly, the issue of impugned notifications by the CentralH

Government under Section 2(2) of the 1956 Act declaring the sectionbetween C-K-S (NC), traversing through non-existent road/highway andthrough open green-fields, is arbitrary exercise of power and violatesArticle 14 of the Constitution. It is, therefore, ultra vires the Constitution.It is also ultra vires the Constitution derived executive powers of theUnion (w.r.t. “Roads” under Article 257).

27. As aforesaid, we shall first deal with the legislative power ofthe Union. Is it limited to making law in exercise of powers ascribable toEntry 23 of List I in respect of an existing highway to be declared as anational highway, as is contended before us? The legislative power ofthe Parliament can be traced to Article 246, which reads thus: -

“246. Subject-matter of laws made by Parliament and bythe Legislatures of States.- (1) Notwithstanding anything inclauses (2) and (3), Parliament has exclusive power to make lawswith respect to any of the matters enumerated in List I in theSeventh Schedule (in this Constitution referred to as the “UnionList”).

(2) Notwithstanding anything in clause (3), Parliament and, subjectto clause (1), the Legislature of any State also, have power tomake laws with respect to any of the matters enumerated in ListIII in the Seventh Schedule (in this Constitution referred to as the“Concurrent List”).

(3) Subject to clauses (1) and (2), the Legislature of any State hasexclusive power to make laws for such State or any part thereofwith respect to any of the matters enumerated in List II in theSeventh Schedule (in this Constitution referred to as the ‘StateList’).

(4) Parliament has power to make laws with respect to any materfor any part of the territory of India not included in Statenotwithstanding that such matter is matter enumerated in theState List.”

Indisputably, law made by the Parliament in the present case isthe 1956 Act and the 1988 Act in reference to Entry 23 of List I of theSeventh Schedule. If the stated law made by the Parliament is ascribableto Entry 23 of List I of the Seventh Schedule, the Parliament has theexclusive power to make law on that subject and for matters connected

Atherewith. The fact that Entry 13 of List II bestows exclusive powerupon the legislature of any State concerning subject “roads”, cannot bethe basis to give restricted meaning to Entry 23 in List I, dealing with allmatters concerning “national highways”. It is well-established positionthat if the law made by the Parliament is in respect of subject fallingunder Union List, then the incidental encroachment by the law under theBState list, per se, would not render it invalid. The doctrine of pith andsubstance is well-established in India. The doctrine is invoked uponascertaining the true character of the legislation. It may be useful toadvert to Article 248 of the Constitution, bestowing legislative powerson the Parliament to make law with respect to any matter notCenumerated in the Concurrent List or the State List. Concededly, theexpression “highways” as such, is not mentioned either in the State Listor the Concurrent list. While making law on the subject falling under theUnion List in terms of Entry 97 thereof, it is open to the Parliament tomake law on any other matter not enumerated in List II or List III includingany tax not mentioned in either of those lists.D

28. Indisputably, the entries in the legislative lists are not sourcesof legislative powers, but are merely topics or fields in respect of whichconcerned legislative body is free to make law. The entries must receivea liberal and expansive construction, reckoning the wide spirit thereofand not in narrow pedantic sense. Entry 23 in List I refers generally toE“highways” declared or to be declared by the Parliament as nationalhighways and all matters connected therewith. This empowers theParliament to declare any stretch/section across any State as highwayfor being designated as national highway. There is no indication in theConstitution to limit the exercise of that power of the Parliament only in

Frespect of an existing “highway”. Further, whenever and wherever thequestion of legislative competence is raised, the test is whether the lawenacted, examined as whole, is substantially with respect to theparticular topic of legislation falling under the concerned list. If the lawmade by the Parliament or the legislature of any State has substantialand not merely remote connection with the Entry under which it isGmade, there is nothing to preclude the concerned legislature to make lawon all matters concerning the topic covered under the Union List or theState List, as the case may be. Reliance has been justly placed on thedictum of the Constitution Bench of this Court in K.T. Plantation Pvt.Ltd. (supra), that the test is identicalness or diversity between dominantH

intention of the two legislations. Moreover, power of law-making itselfwould be rendered otiose if it does not provide for suitable coverage ofmatters that are incidental as well as intrinsically connected to theexpressly granted power. Further, Chapter II of Part XI of the Constitutiondealing with administrative relations between the Union and the Statesmakes it amply clear that the executive power of every State shall be soexercised as to ensure compliance with the laws made by Parliamentand any existing laws which applied in that State, and the executivepower of the Union shall extend to the giving of such directions to aState as may appear to the Government of India to be necessary for thatpurpose. Article 257 expounds about the control of the Union over Statesin certain cases. The same reads thus: -“257. Control of the Union over States in certain cases.- (1)The executive power of every State shall be so exercised as notto impede or prejudice the exercise of the executive power of theUnion, and the executive power of the Union shall extend to thegiving of such directions to State as may appear to theGovernment of India to be necessary for that purpose.

(2) The executive power of the Union shall also extend to thegiving of directions to State as to the construction andmaintenance of means of communication declared in the directionto be of national or military importance.

Provided that nothing in this clause shall be taken as restrictingthe power of Parliament to declare highways or waterways to benational highways or national waterways or power of the Unionwith respect to the highways or waterways so declared or thepower of the Union to construct and maintain means ofcommunication as part of its functions with respect to naval, militaryand air force works.

(3) The executive power of the Union shall also extend to thegiving of directions to State as to the measures to be taken forthe protection of the railways within the State.

(4) Where in carrying out any direction given to State underclause (2) as to the construction or maintenance of any means ofcommunication or under clause (3) as to the measures to be takenfor the protection of any railway, costs have been incurred inexcess of those which would have been incurred in the discharge

Aof the normal duties of the State if such direction had not beengiven, there shall be paid by the Government of India to the Statesuch sum as may be agreed, or, in default of agreement, as maybe determined by an arbitrator appointed by the Chief Justice ofIndia, in respect of the extra costs so incurred by the State.”

BClause (2) predicates that the executive power of the Union shallalso extend to the giving of directions to State as to the constructionand maintenance of means of communication declared in the directionto be of national and military importance. The proviso makes it furtherclear that the power of the Parliament is not restricted in any way to thematters specified therein. The seven-Judge Constitution Bench inCSynthetics and Chemicals Ltd. (supra) had observed that constitutionalprovisions specifically dealing with delimitation of powers in federalpolity must be understood in broad common-sense point of view, asunderstood by common people for whom the Constitution is made.

29. Suffice it to observe that there is nothing in the ConstitutionDwhich constricts the power of the Parliament to make law for declaringany stretch/section within the State not being road or an existing highway,to be national highway. Whereas, the provisions in the Constitutionunambiguously indicate that the legislative as well as executive powerregarding all matters concerning and connected with highway to beEdesignated as national highway, vests in the Parliament and the laws tobe made by it in that regard. For the same reason, the complete executivepower also vests within the Union.

30. The seminal question is whether the 1956 Act is lawascribable to Entry 23 of the Union List and it provides for constructionFof national highway on non-existing road/highway traversing throughgreen-field lands. It may be useful to advert to the Statement of Objectsand Reasons for enacting the 1956 Act. The same reads thus: -

“Statement of Objects and Reasons

1. Under an agreement entered into with the then existingGProvinces, the Government of India provisionally accepted entirefinancial liability, with effect from the 1st April, 1947, for theconstruction, development and maintenance of certain highwaysin the Provinces which were considered suitable for inclusion in asystem of national highways. Upon the creation of the Part

States and the new Part States under the Constitution, theNational Highways scheme was extended to those States also.

2. Under entry 23 of the Union List. Parliament hasexclusive power of legislation with respect to highwayswhich are declared to be national highways by or under lawmade by Parliament. It is, therefore, proposed that the highwayscomprised in the Schedule annexed to this Bill should be declaredto be national highways. Such declaration would help theCentral Government in exercising its powers with respectto the development and maintenance of these highwaysmore effectively. Power is also sought to be vested in theCentral Government to declare by notification otherhighways to be national highways. Power should also be givento the Central Government to enter into agreements with the StateGovernments or municipal authorities with respect to thedevelopment or maintenance of any portion of any national highwayand fees may have to be levied in respect of certain types ofservices rendered on national highways.

3. The present Bill is designed to achieve the objects set forthabove.”

(emphasis supplied)

In the present case, we have to consider the sweep of the 1956Act in light of the amended provisions, which came into force with effectfrom 24.1.1997. The 1956 Act extends to the whole of India and hascome into force on 15.4.1957. Section 2(1) thereof is in the nature ofdeclaration by the Parliament that each of the highways specified in theschedule appended to the 1956 Act to be national highway. The Scheduleappended in the end gives the description of such highways. Sub-Section(2) of Section 2, however, empowers the Central Government to declare“any other highway” to be national highway by publishing notificationin the Official Gazette in that behalf and upon such publication, thehighway shall be deemed to be specified in the stated Schedule. Thisprovision contains legal fiction.

31. This provision annunciates that the Parliament has entrustedthe power in the Central Government or the Union to declare from timeto time and when required, any other stretch/section in any State to be anational highway, which power could be exercised exclusively by the

ABC

142SUPREME COURT REPORTS

AParliament itself under the Constitution. Sub-Section (3) of Section 2empowers the Central Government to omit any highway from theSchedule and upon such publication, it would cease to be nationalhighway. In other words, Section 2, as enacted by the Parliament, declaredthe highways referred to in the Schedule to be national highways andempowered the Central Government to add other highways to be aBnational highway and including omit the scheduled highways from timeto time as per the evolving exigencies and administrative concerns. Thereis nothing in this Act to constrict the power of the Central Governmentto notify any stretch/section (not being an existing road/highway) withinany State, to be national highway.C32. priori, the Central Government is free to construct/build anew national highway keeping in mind the obligations it has to dischargeunder Part IV of the Constitution for securing social order and promotionof welfare of the people in the concerned region, to provide themadequate means of livelihood, distribute material resources as best toDsubserve the common good, create new opportunities, so as to empowerthe people of that area including provisioning new economic opportunitiesin the area through which the national highway would pass and thecountry’s economy as whole. The availability of highway in any partof the State paves way for sustainable development and for overallenhancement of human well-being including to facilitate the habitantsEthereat to enjoy decent quality of life, creation of assets (due to naturalincrease in market value of their properties) and to fulfil their aspirationsof good life by provisioning access to newer and present-day opportunities.

33. Sections 3A to 3J of the Act expound the procedure foracquisition of the land for the purpose of building national highway.FThe same are set out hereunder: -

3A. Power to acquire land, etc.—(1) Where the CentralGovernment is satisfied that for public purpose any land is requiredfor the building, maintenance, management or operation of anational highway or part thereof, it may, by notification in theGOfficial Gazette, declare its intention to acquire such land.

(2) Every notification under sub-section (1) shall give briefdescription of the land.

(3) The competent authority shall cause the substance of thenotification to be published in two local newspapers, one of whichHwill be in vernacular language.

3B. Power to enter for survey, etc.—On the issue of anotification under sub-section (1) of section 3A, it shall be lawfulfor any person, authorised by the Central Government in this behalf,to—

(a)make any inspection, survey, measurement, valuation orenquiry;

(b)take levels;

(c)dig or bore into sub-soil;

(d)set out boundaries and intended lines of work;

(e)mark such levels, boundaries and lines placing marksCand cutting trenches; or

(f)do such other acts or things as may be laid down byrules made in this behalf by that Government.

3C. Hearing of objections.—(1) Any person interested in theland may, within twenty-one days from the date of publication ofthe notification under sub-section (1) of section 3A, object to theuse of the land for the purpose or purposes mentioned in that sub-section.

(2) Every objection under sub-section (1) shall be made to thecompetent authority in writing and shall set out the grounds thereofand the competent authority shall give the objector an opportunityof being heard, either in person or by legal practitioner, and may,after hearing all such objections and after making such furtherenquiry, if any, as the competent authority thinks necessary, byorder, either allow or disallow the objections.

Explanation.—For the purposes of this sub-section,“legalpractitioner” has the same meaning as in clause (i) of sub-section(1) of section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under sub-section(2) shall be final.

3D. Declaration of acquisition.—(1) Where no objection undersub-section (1) of section 3C has been made to the competentauthority within the period specified therein or where the competentauthority has disallowed the objection under subsection (2) of that

section, the competent authority shall, as soon as may be, submita report accordingly to the Central Government and on receipt ofsuch report, the Central Government shall declare, by notificationin the Official Gazette, that the land should be acquired for thepurpose or purposes mentioned in sub-section (1) of section 3A.

B(2) On the publication of the declaration under sub-section (1),the land shall vest absolutely in the Central Government free fromall encumbrances.

(3) Where in respect of any land, notification has been publishedunder sub-section (1) of section 3A for its acquisition but noCdeclaration under sub-section (1) has been published within aperiod of one year from the date of publication of that notification,the said notification shall cease to have any effect:

Provided that in computing the said period of one year, the periodor periods during which any action or proceedings to be taken inDpursuance of the notification issued under sub-section (1) of section3A is stayed by an order of court shall be excluded.

(4) declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by anyother authority.

E3E. Power to take possession.—(1) Where any land has vestedin the Central Government under sub-section (2) of section 3D,and the amount determined by the competent authority undersection 3G with respect to such land has been deposited undersub-section (1) of section 3H, with the competent authority by theFCentral Government, the competent authority may by notice inwriting direct the owner as well as any other person who may bein possession of such land to surrender or deliver possession thereofto the competent authority or any person duly authorised by it inthis behalf within sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any directionGmade under sub-section (1), the competent authority shall apply—

(a)in the case of any land situated in any area falling withinthe metropolitan area, to the Commissioner of Police;

(b)in case of any land situated in any area other than thearea referred to in clause (a), to the Collector of aDistrict,

and such Commissioner or Collector, as the case may be, shallenforce the surrender of the land, to the competent authority or tothe person duly authorised by it.

3F. Right to enter into the land where land has vested inthe Central Government.—Where the land has vested in theCentral Government under section 3D, it shall be lawful for anyperson authorised by the Central Government in this behalf, toenter and do other act necessary upon the land for carrying outthe building, maintenance, management or operation of nationalhighway or part thereof, or any other work connected therewith.

—3G. Determination of amount payable as compensation.(1) Where any land is acquired under this Act, there shall be paidan amount which shall be determined by an order of the competentauthority.

(2) Where the right of user or any right in the nature of an easementon, any land is acquired under this Act, there shall be paid anamount to the owner and any other person whose right ofenjoyment in that land has been affected in any mannerwhatsoever by reason of such acquisition an amount calculatedat ten per cent, of the amount determined under sub-section (1),for that land.

(3) Before proceeding to determine the amount under sub-section(1) or sub-section (2), the competent authority shall give publicnotice published in two local newspapers, one of which will be ina vernacular language inviting claims from all persons interestedin the land to be acquired.

(4) Such notice shall state the particulars of the land and shallrequire all persons interested in such land to appear in person orby an agent or by legal practitioner referred to in sub-section (2)of section 3C, before the competent authority, at time and placeand to state the nature of their respective interest in such land.

(5) If the amount determined by the competent authority undersub-section (1) or sub-section (2) is not acceptable to either of

the parties, the amount shall, on an application by either of theparties, be determined by the arbitrator to be appointed by theCentral Government.

(6) Subject to the provisions of this Act, the provisions of theArbitration and Conciliation Act, 1996 (26 of 1996) shall apply toevery arbitration under this Act.

(7) The competent authority or the arbitrator while determiningthe amount under sub-section (1) or sub-section (5), as the casemay be, shall take into consideration—

(a)the market value of the land on the date of publicationof the notification under section 3A;

(b)the damage, if any, sustained by the person interestedat the time of taking possession of the land, by reasonof the severing of such land from other land;

(c)the damage, if any, sustained by the person interestedat the time of taking possession of the land, by reasonof the acquisition injuriously affecting his otherimmovable property in any manner, or his earnings;

(d)if, in consequences of the acquisition of the land, theperson interested is compelled to change his residenceor place of business, the reasonable expenses, if any,incidental to such change.

3H. Deposit and payment of amount.—(1) The amountdetermined under section 3G shall be deposited by the CentralGovernment in such manner as may be laid down by rules madein this behalf by that Government, with the competent authoritybefore taking possession of the land.

(2) As soon as may be after the amount has been deposited undersub-section (1), the competent authority shall on behalf of theCentral Government pay the amount to the person or personsentitled thereto.

(3) Where several persons claim to be interested in the amountdeposited under sub-section (1), the competent authority shalldetermine the persons who in its opinion are entitled to receivethe amount payable to each of them.

(4) If any dispute arises as to the apportionment of the amount orany part thereof or to any person to whom the same or any partthereof is payable, the competent authority shall refer the disputeto the decision of the principal civil court of original jurisdictionwithin the limits of whose jurisdiction the land is situated.

(5) Where the amount determined under section 3G by thearbitrator is in excess of the amount determined by the competentauthority, the arbitrator may award interest at nine per cent, perannum on such excess amount from the date of taking possessionunder section 3D till the date of the actual deposit thereof.

(6)Where the amount determined by the arbitrator is in excess ofthe amount determined by the competent authority, the excessamount together with interest, if any, awarded under sub-section(5) shall be deposited by the Central Government in such manneras may be laid down by rules made in this behalf by thatGovernment, with the competent authority and the provisions ofsubsections (2) to (4) shall apply to such deposit.

3I. Competent authority to have certain powers of civilcourt.—The competent authority shall have, for the purposes ofthis Act, all the powers of civil court while trying suit under theCode of Civil Procedure, 1908 (5 of 1908), in respect of thefollowing matters, namely:—

(a)summoning and enforcing the attendance of any personand examining him on oath;

(b)requiring the discovery and production of any document;

(c)reception of evidence on affidavits;

(d)requisitioning any public record from any court or office;

(e)issuing commission for examination of witnesses.

3J. Land Acquisition Act 1 of 1894 not to apply.—Nothing inthe Land Acquisition Act, 1894 shall apply to an acquisition underthis Act.”

34. Section 3A of the 1956 Act inserted by way of an amendmentin 1997, empowers the Central Government to declare its intention toacquire “any land”. It need not be linked to an existing road or State

Ahighway. For, the expression “any land” ought to include open green-fields for construction or building of national highway, consequent todeclaration under Section 2(2) of the same Act in that regard. The centralcondition for exercise of such power by the Central Government is thatit should be satisfied that such land is required for the public purpose ofbuilding national highway or part thereof. Section 3B of the 1956 ActBempowers the person authorised by the Central Government to enterupon the notified lands for the limited purpose of survey etc., to ascertainits suitability for acquisition for the stated purpose or otherwise. Thefinal declaration of acquisition is then issued under Section 3D of theAct after providing opportunity to all persons interested in the notifiedCland to submit their objections and participate in public hearing underSection 3C. The contour of issues debated during this public hearing arein reference to matters relevant for recording satisfaction as to whetherthe notified land is or is not required for public purpose for building,maintenance, management or operation of national highway or partthereof. Be it noted that consequent to publication of declaration underDSection 3D, the land referred to in the notification vests absolutely in theCentral Government, free from all encumbrances. Possession of suchland is then taken under Section 3E of the Act, upon depositing thecompensation amount in the manner provided in Section 3H of the Actand as determined under Section 3G. Section 3F empowers the CentralEGovernment to enter upon the land after the same is vested in terms ofSection 3D of the Act. Notably, Section 3J of the Act is non-obstanteprovision and it predicates that nothing in the Land Acquisition Act, 1894shall apply to an acquisition under the 1956 Act. The national highwaysvest in the Union in terms of Section 4 of the 1956 Act and theresponsibility for development and maintenance thereof is primarily thatFof the Central Government in terms of Section 5. The Central Governmentis competent to issue directions to the Government of any State in respectof matters specified in Section 6 of the Act. Section 9 empowers theCentral Government to make rules in respect of matters provided thereinfor carrying out the purposes of the 1956 Act.G35. It is not necessary to dilate on the other provisions of the 1956Act for the time being. As aforesaid, Sections 3A to 3J have been insertedby way of amendment of 1997. On close examination, the 1956 Act, asamended and applicable to the present case, is an Act to authorise CentralGovernment to declare the notified stretches/sections in the State

concerned as highway to be national highway; and for mattersconnected therewith including acquisition of “any land” for building orconstruction of new highway (which need not be an existing road/highway). The substance of this Act is ascribable to Entry 23 of theUnion List and matters connected therewith.

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

EXECUTIVE POWERS OF THE UNION

37. fortiori, even the challenge to the stated notifications onthe ground of being ultra vires the Constitution derived executive powersof the Union, must fail. That challenge is founded on the purport ofArticle 257, which has been reproduced above. It is urged that Article257 pointedly refers to the sphere of executive powers of the Union.Article 257 of the Constitution, as aforesaid, deals with administrativerelations between the States and the Union. In the first place, havingsaid that the Parliament has exclusive legislative competence to make alaw in respect of national highways and all matters connected therewith,which includes declaring any stretch/section within the State (not beingexisting roads/highways) as national highway, it must follow that theCentral Government alone has the executive powers to construct/builda new national highway in any State and to issue directions to theGovernment of any State for carrying out the purposes of the 1956 Act.It is incomprehensible as to how the argument of lack of executive powerof the Central Government despite such law, can be countenanced.Concededly, the validity of Section 2 of the 1956 Act, which empowersthe Central Government to notify any other highway (other than thescheduled national highways) as national highway, has not been put inissue. No declaration is sought that the said provision is ultra vires theConstitution or the law. Therefore, the argument essentially requires usto examine the question as to whether Section 2(2) of the 1956 Actenables the Central Government to declare national highway in respectof non-existing road(s)/highway(s) and on open green-fields land withinthe State. Suffice it to observe that the challenge to notifications issuedby the Central Government under Section 2(2) of the 1956 Act on theground of being ultra vires the Constitution derived executive powers,is also devoid of merits.

DEF

ASCOPE OF SECTION 2(2)

38. We may revert to the argument that the Central Government,even if is competent to declare any stretch/section as national highway,can do so only in respect of an existing road/highway within the Stateand not in respect of non-existent road, much less traversing through theBopen green-field lands. Somewhat similar question was dealt with by thesame High Court (Madras High Court) in reference to the provisions ofthe Tamil Nadu Highways Act, 2001 in Jayaraman (supra). However,we are called upon to examine the question under consideration inreference to the 1956 Act and the 1988 Act. Hence, we proceed toexamine Section 2 of the 1956 Act, which reads thus: -C

“-2. Declaration of certain highways to be national highways.(1) Each of the highways specified in the Schedule is herebydeclared to be national highway.

(2) The Central Government may, by notification in the OfficialDGazette, declare any other highway to be national highway andon the publication of such notification such highway shall bedeemed to be specified in the Schedule.

(3) The Central Government may, by like notification, omit anyhighway from the Schedule and on the publication of suchEnotification, the highway so omitted shall cease to be nationalhighway.”

We have briefly adverted to the scope of sub-Section (1), whichis in the nature of declaration by the Parliament that each of the highwaysspecified in the Schedule appended to the 1956 Act shall be nationalFhighway. For building new highway, as in the present case, betweenstretch/section C-K-S (NC) NH-179A and NH-179B respectively, theCentral Government can do so in exercise of power conferred upon itunder Section 2(2) of the 1956 Act. That empowers the CentralGovernment to notify any other highway (not forming part of the Scheduleappended to the Act) as national highway and upon such publication ofGnotification in the official gazette, the said highway is deemed to bespecified in the Schedule as national highway. This power is notconstricted or circumscribed by any other inhibition, such as to declareonly an existing road or highway within the State as national highway.The requirement of national highway within the country as wholeand State-wise, in particular, is to alleviate evolving socio-economicH

dynamics, for which such wide power has been bestowed upon theCentral Government. The Central Government is obliged to do so tofacilitate it to discharge its obligations under Part IV of the Constitution.There is nothing in the Constitution of India or for that matter, the 1956Act to limit that power of the Central Government only in respect ofexisting roads/highways within the State. To say so would be counter-productive and would entail in piquant situation that the CentralGovernment cannot effectively discharge its obligations under Part IVof the Constitution unto the remote inaccessible parts of the countryuntil the concerned State Government constructs road/highway withinthe State. On the other hand, if the concerned State, due to reasonsbeyond its control or otherwise, is unable/flounder to provision road/highway in given segment of the State; despite being imperative to doso to assuage the perennial difficulties faced by the locals in that beltdue to lack of access, the Central Government may come forward andstep in to construct national highway and connect the area with theother parts of the country. By its very nomenclature, national highwayis to link the entire country and provide access to all in every remotecorner of the country for interaction and to promote commerce andtrade, employment and education including health related services. Thisapproach would enhance and further the federal structure. This isbecause, the existence of national highway in the neighbourhood pavesway for the fulfilment of aspirations of the locals and their empowerment.It not only brings with it opportunity to travel across, but also propels theeconomy of that region and the country as whole. It gives impetus tomyriads of social, commerce and more importantly, access to otheractivities/facilities essential for the health, education and general well-being of the locals, in particular.

39. The expression “highway” has not been defined in the 1956Act or even in the 1988 Act. Dictionary meaning of the term “highway”as per Venkataramaiya’s Law Lexicon (Second Edition) is as follows: -

“Highway.- highway is the physical track along which vehicletravels. [See Kelani Valley Motor Transit Co. Ltd. v.Colombo, etc. Ltd., A.I.R. 1946 P.C. 137. Public roads, whichevery subject of the kingdom has right to use. Wharton’s LawLexicon.] The common definition of highway which is given in allthe text-books of authority is that it is way leading from onemarket town or inhabited place to another inhabited place, which

is common to all the Queen’s subjects (per Coleridge, C.J. Baileyv. Jamieson, 34 L.T. 62) but if the dedication to the public is clear,a thoroughfare is not essential to highway, e.g. cul desac maybe highway. – Rugby Trustees v. Merryweathers, 103 E. R.109.

The common definition of “highway” is that it is way leadingfrom one marked town or inhabited place to another inhabitedplace, and which is common to all the subjects of the sovereign.Public bridges are highways so far as the right of passage isconcerned. [Halsbury’s Laws of England, Vol. 16, para. 1] Abridge is not the private property of an individual, but is the propertyof the State, and is public bridge. – K.K. Wadhwani, Mrs. V.State of Rajasthan, I.L.R. (1967) Raj. 850 at p. 852 : A.I.R.1958 Raj. 138.

The right of the public in highway is merely to pass and repass.Such right can be restricted at the time of the dedication andDwhether the right is restricted or not is generally established bythe nature of the user. The presumption generally is that thededication is for the ordinary and reasonable user of the road as ahighway. It is well settled that the question of the kind of trafficfor which highway is dedicated is question of fact and it has toEbe answered having regard to the character of the way and thenature of the user. It is also settled that right of passage onceacquired will extend to “more modern forms of traffic reasonablysimilar to those for which the highway was originally dedicated,so long as they do not impose substantially greater burden onthe owner of the soil, nor substantially inconvenience personsFexercising the right of passage in the manner originallycontemplated”.

The right of the public is right to “pass along” highway for thepurpose of legitimate travel not to be on it except so far as theirpresence is attributable to reasonable and proper user of thehighway as such. person who is found using the highway forother purposes must be presumed to have gone there for suchpurposes and not with legitimate object and as against the ownerof the soil he is to be treated as trespasser – Moti Lal v. UttarPradesh Government, A.I.R. 1951 All. 257 at p.267.

In order to constitute valid dedication to the public of highwayby the owner of the soil, it is clearly settled that there must be anintention to dedicate – there must be an animus dedicandi ; ofwhich the user by the public is evidence, and no more ; and asingle act of interruption by the owner is of much more right, upona question of intention, than many acts of enjoyment.

There may be dedication to the public for limited purpose ; asfor boot-way, house-way or drift-way ; but there cannot be adedication to limited part of the public. Muhammad Rustam AliKhan v. Municipal Committee of Karnal City, 38 M.L.J. 455 atp.460.

The normal use of the word “highway” includes “road”, particularlywhen the reference is to places where “there is public right oftravel”. – R. ex rel. Johnson v. Johansen, (1962) 38 W.W.R.381, per manning, J. at p. 383; Words and Phrases LegallyDefined, 2nd Ed., Vol. II, p. 360.”

40. The meaning of expression “highway”, as expounded in the P.Ramanatha Aiyar’s Advanced Law Lexicon (6th Edition) reads thus:-

“Highway. Means National Highway declared as such undersection 2 of the National Highways Act, 1956 and includes anyExpressway or Express Highway vested in the CentralGovernment, whether surfaced or unsurfaced, and also includes-

(i)all lands appurtenant to the Highway, whetherdemarcated or not, acquired for the purpose of theHighway or transferred for such purpose by the StateGovernment to the Central Government;

(ii)all bridges, culverts, tunnels, causeways, carriagewaysand other structures constructed on or across suchHighway; and

(iii)all trees, railings, fences, posts, signs, signals, kilometrestone and other Highway accessories and materials onsuch Highways. [Control of National Highways and LandTraffic Act, 2002 (13 of 2003), section 2(e)]”

The expression “national highway” has been defined in the sameLaw Lexicon as follows: -

“National Highway. National highway is invariably metalledroad and it could be road within the meaning of section 2(6) ofthe Act if it is maintained by the State Government. Bhulli v. State,MLJ : QD (1961-1965) Vol V C1769 : 1964 All WR (HC) 512 :1964 All Cr R 379 [U.P. Road Side Land Control Act (10 of 1965),section 2(6)]

“NATIONAL HIGHWAYS” means the highways specified in theSchedule to the National Highways Act, 1956 or any other highwaydeclared as national highway under sub-section (2) of Section 2of the said Act. [Motor Vehicles (Driving) Regulations, 2017,Regn.2(1)(i)]”C

41. The Central Government, whilst exercising power underSection 2(2) of the 1956 Act creates right in the locals of the concernedarea to pass and repass along highway from one marked town orinhabited place to another inhabited place for the purpose of legitimatetravel. Such highway is dedicated for the ordinary and reasonable userDof the road as 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 tonotify “any land” (not necessarily an existing road/highway) foracquisition, to construct highway to be national highway.

EMODIFICATION OF PROJECT AND EXTENT/SCOPEOF REVIEW

42. It was next contended that the decision to change the stretch/section to C-K-S (NC) was arbitrary and was not backed by scientificstudy. The original Project (Bharatmala Pariyojna - Phase I) includedFsection – C-M (EC), as approved by the CCEA in October, 2017. It istrue that the Project (Bharamala Pariyojna Phase I) was conceived aftera scientific study as comprehensive project at the macro (national)level for 24,800 kms. in Phase I, spanning over period of 5 years(2017-18 to 2021-22) at an estimated outlay of INR 5,35,000 crores withGan objective to improve the efficiency of freight and passenger movementacross the country by bridging critical infrastructure gaps througheffective interventions like development of Economic Corridors, InterCorridors and Feeder Routes (ICFR), National Corridor EfficiencyImprovement, Border and International connectivity roads, Coastal andPort connectivity roads and Green-field expressways. This Project, being

macro level project, does not reckon the nuanced imperatives of aparticular region or area, which may only be miniature of the wholeProject traversing across around 24,800 kms. in Phase I. For that reason,the approved Project itself bestows discretion upon the MoRTH tosubstitute/replace up to 15% length of 24800 kms., of the Project (PhaseI), by other suitable projects. It is so provided in clause III, which readsthus: -

“III. Minister -RTH is authorized to substitute/replace up to 15%length of 24,800 kms for Phase I of the program by other suitableprojects, if development of certain identified stretches under theprogram cannot be taken up on account of issues pertaining toalignment finalization, land availability and other unforeseen factors.MoRTH shall retain the same target and budget proposed above.”

It could thus be understood that alteration to the extent of 15% ispermissible, if development of certain identified stretches under theprogram cannot be taken up on account of issues pertaining to alignmentfinalisation, land availability and other unforeseen factors and concernsrelating to congestion, reduction of distance, operational efficiency aresome of the factors which may attract such alteration, as we shall see.In the meeting convened on 19.1.2018, chaired by the Secretary, MoRTHfor examining the micro level implementation of the comprehensiveProject and keeping in mind the pressing requirements of the concernedState, the Committee opted for substitution/replacement of the originalstretch/section [C-M (EC)] for the reasons recorded in the minutes. Itdecided to change the section - C-M (EC) to C-K-S (NC) as regardsState of Tamil Nadu. It was well-considered decision taken by the saidCommittee set up under the aegis of the MoRTH. It must be assumedthat the broad-based committee of experts in the field, was fully awareof the governing policies and criteria for designating national highways.It was also cognizant of the requirements and priorities of the concernedarea and the norms specified for prioritising the stretches/sections. Inthat, national highways are regarded as arteries of the country’s economy.That there is marked distinction and importance of being NationalCorridor, in preference to the Economic Corridor which is for connectionof economically important production and consumption centres (44identified) under the Project (Bharatmala Pariyojna - Phase I). Hence,it was unanimously resolved by the Committee to opt for National Corridorfor the stretch/section Chennai-Salem inter alia because it would be the

Ashortest route with very minimal logistical issues in completion thereof.That was also for efficiency improvement of existing Economic Corridor[C-M (EC)] and for decongestion of corridor network with seamlessconnectivity with National corridor. Even the Project (BharatmalaPariyojna - Phase I) focuses on enhanced effectiveness of already builtinfrastructure, multimodal integration, bridging infrastructure gaps forBseamless movement and integrating National and Economic Corridors.As per this project, the Golden Quadrilateral and NS-EW Corridorscarrying 35% of India’s freight were to be declared National Corridors.The criteria for selection of corridors has been spelt out thereunder asfollows: -

C“I. Criteria for selection of corridors

Selection criteria for projects to be taken up under BharatmalaPhase-I are to be as follows: -

EFGH

(emphasis supplied in italics)

43. Be that as it may, one of the reasons recorded in the minutesis that instead of opting for expansion of the existing stretch/section [C-M (EC)], crow-flight green-field alignment be preferred and developedbetween Chennai and Salem via Harur under National Corridor EfficiencyBImprovement, so as to reduce the distance between Chennai and Salem/Coimbatore by 40 kms. and also diversify the traffic from the congestedChennai-Krishnagiri section of Golden Quadrilateral and Chennai-Ulundurpet section of the C-M (EC). At the outset, it had been notedthat the traffic from Chennai bound to Salem/Coimbatore and Pallakad(Kerala) currently uses the Chennai-Krishnagiri section of the GoldenCQuadrilateral (Chennai-Bengaluru) and the Krishnagiri-Salem sectionof the North-South corridor or the Chennai-Tindivanam-Ulundurpetsection of the C-M (EC) and the Ulunderpet-Salem Inter-corridor route,thereby congesting Chennai-Krishnagiri section of Golden Quadrilateraland Chennai-Tindivanam (72,000 PCU) – Ulundurpet (47,000 PCU)

Dsection of the C-M (EC). It is well settled that the findings of expertbodies in technical and scientific matters would not ordinarily be interferedwith by the Courts – as observed in paragraphs 59 to 62 of Akhil BharatGoseva Sangh (supra) - (also see – K. Vasudevan Nair & Ors. vs.Union of India & Ors.[47] and Systopic Laboratories (Pvt.) Ltd. vs.Dr. Prem Gupta & Ors.[48]). Again, in Kushala Shetty (supra), thisECourt analysed the provisions of the 1956 Act (Sections 3A to 3D) andopined that it is not open to the Court to castigate the reasons weighedwith the competent authority. As we are dealing with this decision, wemay note with approval dictum about the functions of the NHAI, asadverted to in paragraph 28 of the reported judgment. The same readsFthus: -

“28. Here, it will be apposite to mention that NHAI is aprofessionally managed statutory body having expertise in the fieldof development and maintenance of national highways. Theprojects involving construction of new highways and wideningGand development of the existing highways, which are vital for thedevelopment of infrastructure in the country, are entrusted toexperts in the field of highways. It comprises of persons havingvast knowledge and expertise in the field of highway development

47 1991 Supp (2) SCC 134 (paragraphs 19 and 20)H48 1994 Supp (1) SCC 160

and maintenance. NHAI prepares and implements projects relatingto development and maintenance of national highways afterthorough study by experts in different fields. Detailed project reportsare prepared keeping in view the relative factors including intensityof heavy vehicular traffic and larger public interest. The courtsare not at all equipped to decide upon the viability andfeasibility of the particular project and whether the particularalignment would subserve the larger public interest. In suchmatters, the scope of judicial review is very limited. Thecourt can nullify the acquisition of land and, in the rarest ofrare cases, the particular project, if it is found to be exfacie contrary to the mandate of law or tainted due to malafides. In the case in hand, neither has any violation ofmandate of the 1956 Act been established nor has the chargeof malice in fact been proved. Therefore, the order underchallenge cannot be sustained.”

(emphasis supplied)

44. Thus understood, there is no substance in the argument thatthe change of stretch/section to C-K-S (National Corridor) was not basedon any tangible material to sustain the stated decision of the Committee.Indeed, the necessity to enhance the existing section of EconomicCorridor between Chennai-Madurai was taken note of in the principalPariyojna. However, the Committee, as per the discretion bestowed in itin terms of the approved Pariyojna, whilst reckoning the imperatives ofthe region under consideration for micro level implementation, took aconscious decision to opt for C-K-S (National Corridor) being relativelymore beneficial and to strengthen the National Corridor; and at the sametime increase efficiency of the existing economic corridor. Such decision,obviously, partakes the colour of policy decision of the CentralGovernment, which is also backed by the guidelines issued on 26.2.2018by the competent authority of the same Ministry of the Government ofIndia, MoRTH (Planning Zone). This communication refers to theapproval of the Project (Bharatmal Pariyojna Phase I) by the CCEA inOctober, 2017 recording obstructions/difficulties faced during upgradationof the existing road arteries. After reckoning those issues, it is observedas follows: -

[2020] 14 S.C.R.

“Annexure – 1.1

No. NH-15017/21/2018 – P&M

Government of India

Ministry of Road Transport & Highways

(Planning Zone)

Transport Bhawan, 1, Parliament Street, New Delhi – 110001

Dated: February 26, 2018

1.The Chief Secretaries of all the State Government/ UTs

2.The Principal Secretaries/Secretaries of all States/UTsPublic Works Department dealing with National Highways,other centrally sponsored schemes.

3.All Engineers-in-Chief and Chief Engineers of Public WorksDepartment of States/UTs dealing with National Highways,other centrally sponsored schemes.

4.The Chairman, National Highways Authority of India, G-5& 6, Sector-10, Dwarka, New Delhi-110075.

5.The Managing Director, NHIDCL, PTI Building, NewDelhi-110001

6.All CE-Ros, Ros and ELOs of the Ministry

7.The Director General (Border Roads), Seema SadakBhawan, Ring Road, New Delhi-110010

Subject: Determination of Alignment/route for widening of NationalHighways – approach reg.

1. The Ministry of Road Transport & Highways has beenundertaking development of National Highways across the countrythrough its various project executing agencies, namely, the NHAI,NHIDCL, the State PWDs and the BRO. The programme forconstruction and development of National Highways acquired anew dimension with the construction of Golden Quadrilateral (GQ)and the North-South and East-West Corridors in the country.Though the National Highways account for only about 2% of thetotal road network of the country, it is primarily because of

construction of national corridors that the NHs today carry andsupport movement of more than 40% of the road traffic.

2. With the exception of GQ and the North-South and East-WestCorridors and few more prominent green-field Highways/Expressways, the Central Government has been generally takingup development of NH Projects through up-gradation of theexisting State Highways, major district roads and other roads,which, in other words, are known as the brown-field projects.The configuration of National Highways varies from – Two-Lanewith paved shoulders (largely covering the NHs connectinginteriors, backward & tribal areas, tourist destinations, and theroads constructed in the hill states of North-west and North-east),to up-gradation from the existing 2-lane roads to four-lane/six-lane and eight-lane, depending upon traffic volumes between theorigin, intervening and destination points.3. Approval of the Bharatmala Pariyojana by the CCEA in October2017, marks major shift in approach, with focus on corridorapproach, wherein it is planned to optimize the efficiency of existingNational Corridors, develop Economic Corridors and newExpressways, take up roads for inter-connectivity, apart fromconstruction of ring roads/ bypasses around 28 major towns toremove the congestion and choke points. The ultimate intendedobjective is to construct major road corridors with improvedgeometry, which reduce travel time and costs, and help infaster movement of people and goods with attendant roadsafety parameters.

4. The lower categories of existing roads contain several inherentdeficiencies especially in conformance to design standards,alignment/ geometry, land width etc. which at times also becomeroad safety hazards and which are not addressed beforedeclaration of these roads as National Highways. Up-gradationof the existing road arteries to National Highways has been foundto be sub-optimal in many cases due to the following factors:

(i)Existing roads have been developed with greater focus onconnecting the en-route towns and places, which is oftenseen to be compromising on the road geometry and leadingto longer distance between the major origin-destination

162SUPREME COURT REPORTS

Apoints. majority of these roads follow serpentinealignments as compared to crow-flight alignments;

(ii)Expansion of an existing road necessarily involves: (a)acquisition of additional land for the required Right of Way(RoW), (b) shifting of utilities, and (c) felling of trees alongBthe existing alignment. Further, as road arteries areconsidered to create huge value to the land abutting theroad and the adjoining areas, the land situated along/ abuttingany existing road artery (including rural road) costs atleast twice as much as the land under greenfield alignmentwould do;C

(iii)Serious constraints have been faced in acquisition of landfor widening of an existing road especially in areas wherehabitations/commercial activities have come up over time,which necessitate demolition of existing structures in suchinhabited areas, which often leads to compromise on theDrequired uniform RoW and entail associated costs & time;

(iv)Removal/demolition of existing built-up structures along therequired RoW makes it not only difficult but also far moreexpensive in terms of the associated costs. It becomes allthe more challenging when it comes to removal of religiousEstructures (e.g. temples, mosques churches etc. which areagain found to be in existence in large numbers along theexisting roads);

(v)Widening of existing roads further necessarily requiresshifting of the utilities (electrical, water supply and otherFutilities) laid along the existing RoW, entailing considerablecosts and time;

(vi)Further, in the same vein, widening of the existing roadsrequire felling of trees, requiring forest related approvalsand associated costs in terms of payment of NPV and fellingGcharges apart from damage to the existing green cover andthe time taken in completion of these processes.

5. As such, the determination of proper alignment of NHproject has become very critical. While selecting the route/alignment of the National Highways, various factors are to

be considered such as the cost of land, cost of building/establishment, cost of shifting of utilities, construction costof the road, cost of the safety features, transportation cost/road user cost, maintenance cost etc. In such situation,there is every likelihood of achieving better alternativein the form of green-field alignment, few km away, tothe left/right or north/south of the existing alignment. Afew test cases have shown that most of these challenges areeffectively met. If we take up construction of green-field NHarteries, especially where the traffic volumes justify up-gradationof two-lane road to higher configurations, which offer thefollowing advantages:

(i)Typically, the available RoW in an existing 2-lane roadvaries between 12 mtrs to 24 mtrs maximum. As perthe NH norms for 4/6/8 lane Highway, we require aminimum RoW of 60 mtrs. (the norm for anExpressway is 90 mtrs.). It has been found that it iseminently feasible to acquire RoW of 60 to 70 mtrsfor the green-field in the same cost as involved inexpansion of an existing road, especially when we takeinto account the associated costs and time taken inutility shifting, tree-felling, additional compensationfor demolition of structures coming in the expandedRoW;

(ii)A green-field Highway with RoW of 60 to 70 mtrs.would cater to the traffic-flows and up-gradation ofsuch Highway up to 8-lanes, along with service roads,wherever required (say, it gives long termperspective of about next 30 to 40 years);

(iii)Offers the choice of near-perfect (crow-flight) roadgeometry, with reduced distance and savings ontravel-time and fuel costs. The towns situated in closevicinity to such alignments can always be connectedto the Highway with spurs:

(iv)The land acquisition is faster, with minimal resistanceand cost-effective;

A(v)It opens up the potential for development of new areasand wealth creation for the less developed areas.

6. It has also been observed that in case National Highways aredeveloped along the existing roads alignments, the problems oftraffic hazards are not substantially resolved especially in the city/Btown area, which may lead to delays and congestion costs also.In case of green-field alignment, it becomes feasible toavoid such delays and congestions. As such, in carrying outthe cost-benefit analysis of both the options, factors suchas environmental and social impact may also be consideredbesides carrying out cost comparison towards delays andCcongestion removal.

7. Accordingly, the Consultants involved in preparation of DPRsfor development of National Highways, especially where it isproposed to upgrade an existing two-lane Highway to higherconfiguration of 4/6/8 lane, and where Notification under SectionD3D of the NH Act, 1956 has not yet been issued, shall necessarilycarry out comparative cost-benefit analysis while recommendingthe route/alignment of highway development along the existingalignment, with the alternate option of green-field alignment,which is few kms away from the existing alignment. WhileEcarrying out the cost benefit analysis of both the options, thefollowing factors shall be considered:

(i)Extant of land acquisition and the associated costs;

(ii)Number of structures required to be acquired along theirextant and costs.

(iii)The quantum of utilities and costs required for their shifting.

(iv)The extent of tree-felling and the associated cost & timefor obtaining the requisite permissions.

8. Keeping the aforesaid in view, agencies executing theGNH projects on behalf on MoRTH, are hereby advised to:

(i)Require their DPR consultants for each project(especially wherein it is envisaged to be upgraded to4-lane and above configurations and in respect ofwhich Notification under Section 3D has not been

issued), to examine the feasibility of development ofa green-field NH in each case;

(ii)While examining the feasibility of green-fieldalignment between the origin and destination points,it should, as far as possible, follow crow-flight routealignment with little distance from the existinghabitations/towns and identify the towns that need tobe connected through spurs.

(iii)Clearly bring out in its report the advantages in termsof reduction in length/distance, geometricimprovements and other advantages along with thecost-benefit analysis so as to enable the competentauthority to take considered decisions in this behalf.

9. Approach to development of NH along Green-fieldalignment:

In case the green-field alignment option works out to be apreferred option, then –

(i)The entire RoW (60m-70m) may be acquired for amaximum capacity of 8 lane main carriage-way withprovision for service roads. In case of Expressways,90m RoW shall be acquired.

(ii)Initially 4-lane carriage-way with 4-lane structuresshall be developed with additional land left in themedian for future expansion.

(iii)The highway shall have provision for service roads,preferably of 10 mtrs width, with maximum access-Fcontrol for the main carriage-way.

(iv)Access to the towns/cities/establishments located onthe existing National Highway, may be providedthrough spurs from the green-filed route.

10. It has, therefore, been decided with the approval of competentauthority that such analysis is to be made an integral part of theDPR preparation. Accordingly, the contents of this circular maybe incorporated in the TOR of the DPR consultancy. All theexecutive agencies are requested to adhere to these guidelines.”

(emphasis supplied)

A45. There is no challenge to these guidelines. Indeed, theseguidelines have been issued after the decision was already taken on19.1.2018 in respect of section - C-K-S (NC) in lieu of C-M (EC) section.However, it needs to be understood that the decision was taken by thebroad-based Committee of experts, of which the Secretary of the sameMinistry (MoRTH) which had issued the guidelines on 26.2.2018, wasBthe Chairperson alongwith the other officials including the officials ofNHAI. The decision regarding change is policy decision. Moreso,keeping in mind that the change in alignment and the purpose of such achange is stated to be for strengthening the national corridor in preferenceto the economic corridor in the region, it is not open to disregard thisCopinion of the Central Government based on the recommendation of theCommittee constituted by it for that singular purpose.

46. This Court in Sooraram Pratap Reddy (supra) had held thatit is the primary duty of the competent authority to decide whether thereexists public purpose or not. The Courts may not ordinarily interfereDwith that unless the power is being exercised malafide or for collateral

purposes or the decision is dehors the Act, irrational or otherwiseunreasonable or so-called purpose is no public purpose at all and fraudof statute is manifest. Further, it is not for the Courts to sit over suchdecision as Court(s) of appeal and to disregard it merely becauseanother option would have been more beneficial. We may usefully advertEto the dictum of the Constitution Bench of this Court in Somawanti(supra). In paragraph 36 (of SCCOnline), the Court observed thus: -

“36. Now whether in particular case the purpose for whichland is needed is public purpose or not is for the State Governmentto be satisfied about. If the purpose for which the land is beingFacquired by the State is within the legislative competence of theState the declaration of the Government will be final subject,however, to one exception. That exception is that if there is acolourable exercise of power the declaration will be open tochallenge at the instance of the aggrieved party. The powerGcommitted to the Government by the Act is limited power in thesense that it can be exercised only where there is public purpose,leaving aside for moment the purpose of company. If it appearsthat what the Government is satisfied about is not public purposebut private purpose or no purpose at all the action of theGovernment would be colourable as not being relatable to the

power conferred upon it by the Act and its declaration will be anullity. Subject to this exception the declaration of the Governmentwill be final.”

In the present case, it is seen that the basis for taking such informeddecision by the Committee is ascribable to tangible aspects referred toin the minutes of the meeting held on 19.1.2018 (as is manifest from thefactual aspects recorded therein). The decision of this Court inDwarkadas Marfatia & Sons (supra) will be of no avail, because wefind that the decision of the Committee was well-informed and backedby reasons guided by public interest. We must remind ourselves of theword of caution noted by this Court in Col. A.S. Sangwan (supra) thatthe Courts should be loath in dealing with policy and administrativereasons. The Court observed thus: -

“4. …. policy once formulated is not good for ever; it isperfectly within the competence of the Union of India tochange it, rechange it, adjust it and readjust it according tothe compulsions of circumstances and the imperatives ofnational considerations. We cannot, as court, give directivesas to how the Defence Ministry should function except tostate that the obligation not to act arbitrarily and to treatemployees equally is binding on the Union of India becauseit functions under the Constitution and not over it. … So,whatever policy is made should be done fairly and made knownto those concerned. So, we make it clear that while the CentralGovernment is beyond the forbiddance of the court from makingor changing its policy in regard to the Directorate of Military Farmsor in the choice or promotion of Brigadiers, it has to act fairly asevery administrative act must be done.”

(emphasis supplied)

We may usefully advert to yet another decision of this Court inCipla Ltd. (supra), wherein the Court observed thus: -

“4.1. It is axiomatic that the contents of policy documentcannot be read and interpreted as statutory provisions. Toomuch of legalism cannot be imported in understanding thescope and meaning of the clauses contained in policyformulations. At the same time, the Central Government whichcombines the dual role of policy-maker and the delegate of

legislative power, cannot at its sweet will and pleasure give go-by to the policy guidelines evolved by itself in the matter of selectionof drugs for price control. … It is nobody’s case that for anygood reasons, the policy or norms have been changed orhave become impracticable of compliance. That being thecase, the Government exercising its delegated legislativepower should make real and earnest attempt to apply thecriteria laid down by itself. The delegated legislation that followsthe policy formulation should be broadly and substantially inconformity with that policy, otherwise it would be vulnerable toattack on the ground of arbitrariness resulting in violation of Article14.

4.2. In Indian Express Newspapers (Bom) (P) Ltd. v. Unionof India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121] the groundson which subordinate legislation can be questioned were outlinedby this Court. E.S. Venkataramiah, J. observed thus: (SCC p.689, para 75)

“75. piece of subordinate legislation does not carry the samedegree of immunity which is enjoyed by statute passed by acompetent legislature. Subordinate legislation may be questionedon any of the grounds on which plenary legislation is questioned.EIn addition it may also be questioned on the ground that it doesnot conform to the statute under which it is made. … It mayalso be questioned on the ground that it is unreasonable,unreasonable not in the sense of not being reasonable, but inthe sense that it is manifestly arbitrary. In England, the Judgeswould say ‘Parliament never intended authority to make suchFrules. They are unreasonable and ultra vires’.”

4.3. True, the breach of policy decision by itself is not ground toinvalidate delegated legislation. … No doubt, in such matters,wide latitude is conceded to the legislature or its delegate.Broadly, the subordinate law-making authority is guided bythe policy and objectives of the primary legislation disclosedby the preamble and other provisions. The delegatedlegislation need not be modelled on set pattern or prefixedguidelines. However, where the delegate goes step further,draws up and announces rational policy in keeping with thepurposes of the enabling legislation and even lays down specific

criteria to promote the policy, the criteria so evolved become theguideposts for its legislative action. In that sense, its freedom ofclassification will be regulated by the self-evolved criteria andthere should be demonstrable justification for deviating therefrom.Though exactitude and meticulous conformance is not what isrequired, it is not open to the Government to go haywire and floutor debilitate the set norms either by giving distorted meaning tothem or by disregarding the very facts and factors which itprofessed to take into account in the interest of transparency andobjectivity. …”

(emphasis supplied)

47. Be it noted that the notifications under Section 2(2) to declarethe C-K-S (NC) section as NH-179A and NH-179B, as the case maybe, were issued only after due deliberation by the broad-based committeeof experts, which decision we find is also in conformity with the guidelinescontemporaneously issued by the concerned department on the samesubject matter. Such decision cannot be labelled as manifestly arbitrary,irrational or taken in undue haste as such. As result, it was not open tothe High Court to interfere with the change so articulated in the meetingheld on 19.1.2018 or the notifications issued under Section 2(2) of the1956 Act declaring C-K-S (NC) as national highway (i.e. NH-179Aand NH-179B). The declaration of highway being national highwayis within the exclusive domain of the Central Government in terms ofSection 2(2) of the 1956 Act. The argument of the land owners thatprior approvals ought to have been obtained from the CCEA and regardingbudgetary arrangement, is premised on the manuals which govern thefunctioning of the executing agency (NHAI). As the decision regardingchange of stretch/section has been taken by the concerned departmentof the Central Government itself and the approved Project (BharatmalaPariyojna - Phase I) also recognises that such change in the form ofsubstitution/replacement of the stretch/section can be done by theMinistry upto 15% length of 24,800 kms., so long as it does not entail inincurring of additional costs, it becomes integral part of the originallyapproved project (for Phase I) for all purposes. In the present case, thecosts for construction of C-K-S (NC) were bound to be less than theoriginally conceived C-M (EC), as the length of the road is reducedsignificantly. In other words, it would operate as minor change to theoriginal plan with deemed approval thereof and get interpolated therein.

AFurther, the minutes recorded on 19.1.2018 do indicate that the decisionwas to be placed before the CCEA in the ensuing biannual meeting,where it would be duly ratified. Suffice it to observe that the decisiontaken by the Committee which culminated with the issuance of notificationunder Section 2(2) of the 1956 Act is in complete conformity with thegoverning provisions and guidelines and founded on tangible and objectiveBfacts noted in the minutes dated 19.1.2018. The Central Governmenthad full authority to adopt such change of stretch/section, by way ofsubstitution/replacement whilst ensuring that there is no need for higherbudgetary allocation than envisaged in the already approved programmefor Phase I. Thus, there is no legal basis to doubt the validity of theCnotification under Section 2(2) and ex consequenti Section 3A of the1956 Act as well.

48. The High Court has completely glossed over these crucialaspects and entered into the domain of sufficiency and adequacy ofmaterial including the appropriateness of the route approved by theDcompetent authority. Such enquiry, in exercise of judicial review isforbidden. Furthermore, the High Court, despite noting that judicialinterference in acquisition matters is limited, went on to interfere in theguise of extra-ordinary circumstances obtaining in this case. On athorough perusal, the impugned judgment does not reveal any justcircumstance for invoking the judicial review jurisdiction. In light of theEabove discussion, we hold that challenge to the decision of the Committeeand ex consequenti of the Central Government, regarding change ofsection – C-M (EC) to C-K-S (NC) at the micro level for theimplementation of the original Project as approved, ought not to havebeen doubted by the High Court. Notably, in the final conclusion andFdeclaration issued by the High Court, it has justly not struck down thenotifications under Section 2(2) of the 1956 Act. In other words, so longas Section 2(2) of the 1956 Act was to remain in force and the decisionregarding change of stretch/section to C-K-S (NC) being the foundationfor issue of notification under Section 3A, would continue to bind allconcerned and in particular, the officials of NHAI being the executingGagency.

PRIOR ENVIRONMENTAL/FOREST CLEARANCE:STAGE

49. That takes us to the next challenge premised on the argumentHthat notification under Section 3A(1) of the 1956 Act could not have

been issued without prior permission of the competent authority underthe environmental/forest laws. This argument is based on the dictum ofthis Court in Karnataka Industrial Areas Development Board (supra).In paragraph 100 of the said decision, general direction came to beissued that in future, before acquisition of lands for development, theconsequence and adverse impact of development on environment mustbe properly comprehended and the lands be acquired for developmentthat they do not gravely impair the ecology and environment. Paragraphs100 and 101 of the reported decision are extracted hereunder: -

“100. The importance and awareness of environment and ecologyis becoming so vital and important that we, in our judgment, wantthe appellant to insist on the conditions emanating from the principleof “Sustainable Development”:

(1) We direct that, in future, before acquisition of landsfor development, the consequence and adverse impactof development on environment must be properlycomprehended and the lands be acquired fordevelopment that they do not gravely impair the ecologyand environment.

(2) We also direct the appellant to incorporate the condition ofallotment to obtain clearance from the Karnataka State PollutionControl Board before the land is allotted for development. Thesaid directory condition of allotment of lands be converted intoa mandatory condition for all the projects to be sanctioned infuture.

101. This has been an interesting judicial pilgrimage for the lastfour decades. In our opinion, this is significant contribution ofthe judiciary in making serious endeavour to preserve and protectecology and environment, in consonance with the provisions ofthe Constitution.”

(emphasis supplied)

Support is also drawn from the notification/Office Memorandumissued by the MoEF dated 14.9.2006 and 7.10.2014 respectively. Ourattention is also invited to exposition in M. Velu (supra), following theaforementioned decision of this Court.

A50. The question as to whether the competent authority under the1956 Act is obliged to take prior permission before issuing notificationunder Section 3A of the Act, must be answered primarily on the basis ofthe scheme of the enactments under consideration. As regards power toacquire land for the purpose of building, maintenance, management andoperation of national highway or part thereof, the same has beenBbestowed on the Central Government in terms of Section 3A of the 1956Act. There is nothing in the 1956 Act, which impels the CentralGovernment to obtain prior environment clearance before exercise ofthat power and in issuing notification under Section 2(2), much less Section3A expressing its intention to acquire the designated land.C

51. The Central Government has framed rules in exercise of powerunder Section 9 of the 1956 Act, titled as the National Highways Rules,1957[49]. These rules are required to be followed by the executing agency.There is nothing, even in these Rules, to remotely suggest that the CentralGovernment is obliged to obtain prior permission(s) under environmental/Dforest laws before issuing notification under Section 3A. The executingagency is none else, but established under the 1988 Act, namely, theNHAI. Before NHAI commences the execution of any original work,it has to abide by the norms specified in the 1957 Rules regardingpreparation of estimate of work etc. The Schedule of the 1957 Rulesstipulates conditions for the issue of technical approval and financialEsanction to plan and estimate for execution of any original work on anational highway costing an amount not exceeding Rs.50 lakhs by theexecuting agency concerned. Neither the 1956 Act, the Rules framedthereunder i.e. the 1957 Rules nor the 1988 Act and the Rules madethereunder have any bearing on the question under consideration. NoneFof these enactments/rules specify any express condition requiring CentralGovernment to obtain prior environmental/forest clearance before issuingnotification under Section 2(2) declaring the stretch/section to be nationalhighway or Section 3A of the 1956 Act to express intention to acquireland for the purpose of building, maintenance, management or operationof national highway, as the case may be.G

52. Reverting to the notification issued by the MoEF dated14.9.2006, even this notification does not constrict the power of CentralGovernment to issue notification under Section 2(2) or Section 3A of the1956 Act. There is nothing to suggest that before expressing intention to

acquire any land for the purpose of the 1956 Act, prior environmental/forest clearance is required. The environmental/forest clearance,however, is, required to be obtained by the executing agency in terms ofthis notification “before commencing the actual work or executing theproposed work/project”. That would happen only after the land is vestedin the NHAI or the NHAI was to be entrusted with the developmentwork of concerned national highway by the Central Government inexercise of powers under Section 5 of the 1956 Act read with Section 11of the 1988 Act. The land would vest in the Central Government underthe 1956 Act only after publication of declaration of acquisition underSection 3D. And until then, the question of Central Government vestingit in favour of NHAI under Section 11 of the 1988 Act would not arise.However, until the vesting of the land, the Central Government and itsauthorised officer can undertake surveys of the notified lands by enteringupon it in terms of Section 3B of the Act. Pertinently, the activitiespredicated in Section 3B are of exploration for verifying the feasibilityand viability of land for construction of national highway. These areone-time activities and not in the nature of exploitation of the land forcontinuous commercial/industrial activities as such. There is remotepossibility of irretrievable wide spread environmental impact due tocarrying out activities referred to in Section 3B for assessing theworthiness of the land for using it as national highway. Thus, the questionof applying notification of 2006 at this stage does not arise, much lessobligate the Central Government to follow directives thereunder.

53. We may now revert to Section 4 of the 1956 Act. That providesfor vesting of the national highway in the Union and after such vesting,the primary responsibility of developing and maintaining the nationalhighway is that of the Central Government. In terms of Section 5, it isopen to the Central Government to call upon the Government of theState within which the national highway is situated or by any officer orauthority subordinate to the Central Government or to the StateGovernment. Section 5 reads thus: -“5. Responsibility for development and maintenance ofnational highways. – It shall be the responsibility of the CentralGovernment to develop and maintain in proper repair all nationalhighways; but the Central Government may, by notification in theOfficial Gazette, direct that any function in relation to thedevelopment or maintenance of any national highway shall, subject

DEF

Ato such conditions, if any, as may be specified in the notification,also be exercisable by the Government of the State within whichthe national highway is situated or by any officer or authoritysubordinate to the Central Government or to the StateGovernment.”

BAs per Section 6, the Central Government is competent to issuedirections to the Government of any State for carrying out the provisionsof the Act within the State.

54. It is indisputable that NHAI is an authority appointed by theCentral Government under the 1988 Act. This authority is functionalCbody constituted under Section 3 of the 1988 Act. Chapter III of the1988 Act provides for the manner of dealing with the contracts to beentered into by NHAI. Sections 11 to 13 deal with the power of theCentral Government to vest in or entrust to the Authority (NHAI), transferof assets and liabilities of the Central Government to the Authority (NHAI)and the compulsory acquisition of land for the Authority. The same readDthus: -

“11. Power of the Central Government to vest or entrustany national highway in the Authority.— The CentralGovernment may, from time to time, by notification in the OfficialGazette, vest in, or entrust to, the Authority, such national highwayEor any stretch thereof as may be specified in such notification.

12. Transfer of assets and liabilities of the CentralGovernment to the Authority. — (1) On and from the date ofpublication of the notification under section 11,—

F(a) all debts, obligations and liabilities incurred, all contractsentered into and all matters and things engaged to be doneby, with, or for, the Central Government, immediately beforesuch date for or in connection with the purposes of any nationalhighway or any stretch thereof vested in, or entrusted to, theAuthority under that section, shall be deemed to have beenGincurred, entered into and engaged to be done by, with, or for,the Authority;

(b) all non-recurring expenditure incurred by or for the CentralGovernment for or in connection with the purposes of anynational highway or any stretch thereof, so vested in, orH

entrusted to, the Authority, up to such date and declared to becapital expenditure by the Central Government shall, subjectto such terms and conditions as may be prescribed, be treatedas capital provided by the Central Government to theAuthority;

(c) all sums of money due to the Central Government in relationto any national highway or any stretch thereof, so vested in,or entrusted to, the Authority immediately before such dateshall be deemed to be due to the Authority;

(d) all suits and other legal proceedings instituted or which couldhave been instituted by or against the Central Governmentimmediately before such date for any matter in relation tosuch national highway or any stretch thereof may be continuedor instituted by or against the Authority.

(2) If any dispute arises as to which of the assets, rights or liabilitiesof the Central Government have been transferred to the Authority,such dispute shall be decided by the Central Government.

13. Compulsory acquisition of land for the Authority. —Anyland required by the Authority for discharging its functions underthis Act shall be deemed to be land needed for public purposeand such land may be acquired for the Authority under theprovisions of the National Highways Act, 1956 (48 of 1956).

Chapter IV of the 1988 Act, in particular, Section 16 thereof, dealswith the functions of the Authority (NHAI). The same reads thus:-

“16. Functions of the Authority. — (1) Subject to the rulesmade by the Central Government in this behalf, it shall be thefunction of the Authority to develop, maintain and manage thenational highways and any other highways vested in, or entrustedto, it by the Government.

(2) Without prejudice to the generality of the provisions containedin sub-section (1), the Authority may, for the discharge of itsfunctions—

(a)survey, develop, maintain and manage highways vested in,or entrusted to, it;

A(b)construct offices or workshops and establish and maintainhotels, motels, restaurants and rest-rooms at or near thehighways vested in, or entrusted to, it;

(c)construct residential buildings and townships for itsemployees;

(d)regulate and control the plying of vehicles on the highwaysvested in, or entrusted to, it for the proper managementthereof;

(e)develop and provide consultancy and construction servicesin India and abroad and carry on research activities inCrelation to the development, maintenance and managementof highways or any facilities thereat;

(f)provide such facilities and amenities for the users of thehighways vested in, or entrusted to, it as are, in the opinionof the Authority, necessary for the smooth flow of trafficDon such highways;

(g)form one or more companies under the Companies Act,1956 (1 of 1956) to further the efficient discharge of thefunctions imposed on it by this Act;

(h)engage, or entrust any of its functions to, any person onEsuch terms and conditions as may be prescribed;

(i)advise the Central Government on matters relating tohighways;

(j)assist, on such terms and conditions as may be mutuallyFagreed upon, any State Government in the formulation andimplementation of schemes for highway development;

(k)collect fees on behalf of the Central Government forservices or benefits rendered under section 7 of the NationalHighways Act, 1956 (48 of 1956), as amended from time toGtime, and such other fees on behalf of the State Governmentson such terms and conditions as may be specified by suchState Governments; and

(l)take all such steps as may be necessary or convenient for,or may be incidental to, the exercise of any power or theHdischarge of any function conferred or imposed on it bythis Act.

(3) Nothing contained in this section shall be construed as—

(a)authorising the disregard by the Authority of any law forthe time being in force; or

(b)authorising any person to institute any proceeding in respectof duty or liability to which the Authority or its officers orother employees would not otherwise be subject under thisAct.”

55. On plain and harmonious construction of the provisions of thetwo enactments (i.e. the 1956 Act and the 1988 Act), it is amply clearthat at the stage of issuing notifications under Section 2(2) or for thatmatter, Section 3A of the Act, there is no need to seek prior permission(by the Central Government) under environmental laws or the forestlaws, as the case may be. Further, the purpose of public hearing in theconcerned enactments (namely, the 1956 and 1988 Acts on the one handand the 1986 Act or forest laws, on the other) is qualitatively differentand contextual to matters relevant under the concerned enactment. Thecompetent authority in the former, may be satisfied that the acquisitionof land in question is for public purpose, but if the competent authorityunder the latter legislations is of the view that the execution of the projectin question (construction of national highway) or any portion thereofmay cause irretrievable comprehensive impact on the environment orthe forests, as the case may be, would be competent to deny permissionto such project as whole or part thereof. That decision must thenprevail, being in public interests. This is not to say that one competentauthority is superior to the other, but such balancing becomes essentialto effectuate the public purposes under the stated enactments. It is quitepossible that the executing agency (NHAI) may be able to convince thecompetent authority under the latter enactments that certain remedialsteps 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 ofsustainable development. If that suggestion commends to the competentauthority under the environmental/forest laws, such clearance/permissioncan be granted after the public hearing.

56. As regards the decision in Raghbir Singh Sehrawat (supra),the same may have relevance at the time of considering the objectionsto be dealt with by the competent authority under the 1956 Act during

178SUPREME COURT REPORTS

Athe public hearing under Section 3C. The dictum in this decision cannotbe the basis to doubt the well-considered decision dated 19.1.2018 northe notification issued by the Central Government under Section 2(2) ofthe 1956 Act declaring the stretch between C-K-S (NC) as nationalhighway.

B57. Even in the case of R.S. Nanji (supra), the Constitution Benchhighlighted the sweep of expression “public purpose” in the context ofchallenge to the order of the competent authority to requisition thepremises. As noted earlier, the satisfaction regarding public interests ornecessity to acquire the land in question for public purpose forconstruction of new national highway, is matter which needs to beCconsidered by the competent authority during the public hearing underSection 3C of the 1956 Act. The challenge before the High Court in thepresent case was before that stage had reached, for which reason wedo not wish to dilate on this reported decision any further.

58. Suffice it to observe that the subject notification of 2006 andDOffice Memorandum dated 7.10.2014 ordain that such permission isrequired to be obtained (only) before commencement of the work of thenew project or activities or on the expansion or improvisation of theproject or activities based on their potential environment impact. Thenotification dated 14.9.2006 reads thus:-

E“(Published in the Gazette of India, Extraordinary, Part-II, andSection 3, Sub-section (ii)

MINISTRY OF ENVIRONMENT AND FORESTS

New Delhi 14th September, 2006

Notification

S.O. 1533 Whereas, draft notification under sub-rule (3) ofRule 5 of the Environment (Protection) Rules, 1986 forimposing certain restrictions and prohibitions on new projectsor activities, or on the expansion or modernization of existingGprojects or activities based on their potential environmentalimpacts as indicated in the Schedule to the notification, beingundertaken in any part of India1, unless prior environmentalclearance has been accorded in accordance with the objectivesof National Environment Policy as approved by the UnionCabinet on 18[th] May, 2006 and the procedure specified in the

notification,by the Central Government or the State or Unionterritory Level Environment Impact Assessment Authority(SEIAA), to be constituted by the Central Government inconsultation with the State Government or the Union territoryAdministration concerned under sub-section (3) of section 3 ofthe Environment (Protection) Act, 1986 for the purpose of thisnotification, was published in the Gazette of India ,Extraordinary,Part II, section 3, sub-section (ii) vide number S.O. 1324 (E) datedthe 15th September ,2005 inviting objections and suggestions fromall persons likely to be affected thereby within period of sixtydays from the date on which copies of Gazette containing the saidnotification were made available to the public;

And whereas, copies of the said notification were made availableto the public on 15th September, 2005;

And whereas, all objections and suggestions received in responseto the above mentioned draft notification have been dulyconsidered by the Central Government;

Now, therefore, in exercise of the powers conferred by sub-section(1) and clause (v) of sub-section (2) of section 3 of theEnvironment (Protection) Act, 1986, read with clause (d) of sub-rule (3) of rule 5 of the Environment (Protection) Rules, 1986 andin supersession of the notification number S.O. 60 (E) dated the27th January, 1994, except in respect of things done or omitted tobe done before such supersession, the Central Governmenthereby directs that on and from the date of its publication therequired construction of new projects or activitiesor theexpansion or modernization of existing projects or activitieslisted in the Schedule to this notification entailing capacityaddition with change in process and or technology shall beundertakenin any part of India only after the priorenvironmental clearancefrom the Central Government or asthe case may be, by the State Level Environment ImpactAssessment Authority, duly constituted by the CentralGovernment under sub-section (3) of section 3 of the saidAct, in accordance with the procedure specified hereinafterin this notification.

-2. Requirements of prior Environmental Clearance (EC):The following projects or activities shall require prior environmental

Aclearance from the concerned regulatory authority, which shallhereinafter referred to be as the Central Government in the Ministryof Environment and Forests for matters falling under Category‘A’ in the Schedule and at State level the State Environment ImpactAssessment Authority (SEIAA) for matters falling under Category‘B’ in the said Schedule, before any construction work, orBpreparation of land by the project management except forsecuring the land, is started on the project or activity:

(i)All new projects or activities listed in the Schedule tothis notification;

(ii)Expansion and modernization of existing projects oractivities listed in the Schedule to this notification withaddition of capacity beyond the limits specified for theconcerned sector, that is, projects or activities whichcross the threshold limits given in the Schedule, afterexpansion or modernization;

(iii)Any change in product - mix in an existing manufacturingunit included in Schedule beyond the specified range.

3. State Level Environment Impact Assessment Authority:-

4. Categorization of projects and activities: -

(i)All projects and activities are broadly categorized in totwo categories - Category and Category B, based onthe spatial extent of potential impacts and potentialimpacts on human health and natural and man madeFresources.

(ii)All projects or activities included as Category ‘A’ in theSchedule, including expansion and modernization ofexisting projects or activities and change in product mix,shall require prior environmental clearance from theGCentral Government in the Ministry of Environment andForests (MoEF) on the recommendations of an ExpertAppraisal Committee (EAC) to be constituted by theCentral Government for the purposes of this notification;

(iii)All projects or activities included as Category ‘B’ in theHSchedule, including expansion and modernization of

existing projects or activities as specified in subparagraph (ii) of paragraph 2, or change in product mixas specified in sub paragraph (iii) of paragraph 2, butexcluding those which fulfill the General Conditions (GC)stipulated in the Schedule, will require prior environmentalclearance from the State/Union territory EnvironmentImpact Assessment Authority (SEIAA). The SEIAAshall base its decision on the recommendations of Stateor Union territory level Expert Appraisal Committee(SEAC) as to be constituted for in this notification. Inthe absence of duly constituted SEIAA or SEAC, aCategory ‘B’ project shall be treated as Category ‘A’project;

5. Screening, Scoping and Appraisal Committees:-

The same Expert Appraisal Committees (EACs) at the CentralGovernment and SEACs (hereinafter referred to as the (EAC)and (SEAC) at the State or the Union territory level shall screen,scope and appraise projects or activities in Category ‘A’ andCategory ‘B’ respectively. EAC and SEAC’s shall meet at leastonce every month.

6. Application for Prior Environmental Clearance (EC):-

An application seeking prior environmental clearance in all casesshall be made in the prescribed Form 1 annexed herewith andSupplementary Form 1A, if applicable, as given in Appendix II,after the identification of prospective site(s) for the project and/oractivities to which the application relates, before commencing anyconstruction activity, or preparation of land, at the site by theapplicant. The applicant shall furnish, along with the application, acopy of the pre-feasibility project report except that, in case ofconstruction projects or activities (item 8 of the Schedule) inaddition to Form 1 and the Supplementary Form 1A, copy of theconceptual plan shall be provided, instead of the pre-feasibilityreport.

7. Stages inthe Prior Environmental Clearance (EC)Process for New Projects:-

ABC

A7(i) The environmental clearance process for new projects willcomprise of maximum of four stages, all of which may not applyto particular cases as set forth below in this notification. Thesefour stages in sequential order are:-

•Stage (1) Screening (Only for Category ‘B’ projects andBactivities)

•Stage (2) Scoping

•Stage (3) Public Consultation

•Stage (4) Appraisal

CI. Stage (1) - Screening:

II. Stage (2) - Scoping:

…..DIII. Stage (3) - Public Consultation:

(i) “Public Consultation” refers to the process by which theconcerns of local affected persons and others who have plausiblestake in the environmental impacts of the project or activity areascertained with view to taking into account all the materialEconcerns in the project or activity design as appropriate. AllCategory ‘A’ and Category B1 projects or activities shall undertakePublic Consultation, except the following: -

(a)modernization of irrigation projects (item 1(c) (ii) of theSchedule).

(b)all projects or activities located within industrial estatesor parks (item 7(c) of the Schedule) approved by theconcerned authorities, and which are not disallowed insuch approvals.

(c)expansion of Roads and Highways (item 7 (f) of theSchedule) which do not involve any further acquisitionof land.

(d)allBuilding /Construction projects/Area Developmentprojects and Townships (item 8).

H(e)all Category ‘B2’ projects and activities.

(f)all projects or activities concerning national defence andsecurity or involving other strategic considerations asdetermined by the Central Government.

(ii) The Public Consultation shall ordinarily have two componentscomprising of: -

(a)a public hearing at the site or in its close proximity- districtwise, to be carried out in the manner prescribed inAppendix IV, for ascertaining concerns of local affectedpersons;

(b)obtain responses in writing from other concerned personshaving plausible stake in the environmental aspects ofthe project or activity.

(iii) the public hearing at, or in close proximity to, the site(s) in allcases shall be conducted by the State Pollution Control Board(SPCB) or the Union territory Pollution Control Committee(UTPCC) concerned in the specified manner and forward theproceedings to the regulatory authority concerned within 45(fortyfive) of request to the effect from the applicant.

(iv) in case the State Pollution Control Board or the Union territoryPollution Control Committee concerned does not undertake andcompletethe public hearing within the specified period, and/or doesnot convey the proceedings of the public hearing within theprescribed period directly to the regulatory authority concernedas above, the regulatory authority shall engage another publicagency or authority which is not subordinate to the regulatoryauthority, to complete the process within further period of fortyfive days,.

(v) If the public agency or authority nominated under the subparagraph (iii) above reports to the regulatory authority concernedthat owing to the local situation, it is not possible to conduct thepublic hearing in manner which will enable the views of theconcerned local persons to be freely expressed, it shall report thefacts in detail to the concerned regulatory authority, which may,after due consideration of the report and other reliable informationthat it may have, decide that the public consultation in the caseneed not include the public hearing.

A(vi) For obtaining responses in writing from other concerned personshaving plausible stake in the environmental aspects of the projector activity, the concerned regulatory authority and the StatePollution Control Board (SPCB) or the Union territory PollutionControl Committee (UTPCC) shall invite responses from suchconcerned persons by placing on their website the Summary EIABreport prepared in the format given in Appendix IIIA by theapplicant along with copy of the application in the prescribedform , within seven days of the receipt of written request forarranging the public hearing. Confidential information includingnon-disclosable or legally privileged information involvingCIntellectual Property Right, source specified in the application shallnot be placed onthe web site. The regulatory authority concernedmay also use other appropriate media for ensuring wide publicityabout the project or activity. The regulatory authority shall,however, make available on written request from any concernedperson the Draft EIA report for inspection at notified placeDduring normal office hours till the date of the public hearing. Allthe responses received as part of this public consultation processshall be forwarded to the applicant through the quickest availablemeans.

(vii) After completion of the public consultation, the applicant shallEaddress all the material environmental concerns expressed duringthis process, and make appropriate changes in the draft EIA andEMP. The final EIA report, so prepared, shall be submitted by theapplicant to the concerned regulatory authority for appraisal. Theapplicant may alternatively submit supplementary report to draftFEIA and EMP addressing all the concerns expressed during thepublic consultation.

IV. Stage (4) - Appraisal:

(i) Appraisal means the detailed scrutiny by the Expert AppraisalCommittee or State Level Expert Appraisal Committee of theapplication and other documents like the Final EIA report, outcomeof the public consultations including public hearing proceedings,submitted by the applicant to the regulatory authority concernedfor grant of environmental clearance. …

7(ii). Prior Environmental Clearance (EC) process forExpansion or Modernization or Change of product mix inexisting projects:

8. Grant or Rejection of Prior Environmental Clearance(EC):

(i) The regulatory authority shall consider the recommendationsof the EAC or SEAC concerned and convey its decision to theapplicant within forty five days of the receipt of therecommendations of the Expert Appraisal Committee or StateLevel Expert Appraisal Committee concerned or in other wordswithin one hundred and five days of the receipt of the finalEnvironment Impact Assessment Report, and where EnvironmentImpact Assessment is not required, within one hundred and fivedays of the receipt of the complete application with requisitedocuments, except as provided below.

9. Validity of Environmental Clearance (EC):

10. Post Environmental Clearance Monitoring:

11. Transferability of Environmental Clearance (EC):

12. Operation of EIA Notification, 1994, till disposal ofpending cases:

[No. J-11013/56/2004-IA-II (I)]

(R.CHANDRAMOHAN)G

JOINT SECRETARY TO THE GOVERNMENT OF INDIA

SCHEDULE

(See paragraph 2 and 7)LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIORENVIRONMENTAL CLEARANCE

ABCD

Note:-

General Condition (GC):

EAny project or activity specified in Category ‘B’ will be treatedas Category A, if located in whole or in part within 10 km fromthe boundary of: (i) Protected Areas notified under the Wild Life(Protection) Act, 1972, (ii) Critically Polluted areas as notified bythe Central Pollution Control Board from time to time, (iii) NotifiedEco-sensitive areas, (iv) inter-State boundaries and internationalFboundaries.

Specific Condition (SC):

If any Industrial Estate/Complex / Export processing Zones /Special Economic Zones/Biotech Parks / Leather Complex withGhomogeneous type of industries such as Items 4(d), 4(f), 5(e),5(f), or those Industrial estates with pre –defined set of activities(not necessarily homogeneous, obtains prior environmentalclearance, individual industries including proposed industrialhousing within such estates /complexes will not be required totake prior environmental clearance, so long as the Terms and

Conditions for the industrial estate/complex are complied with(Such estates/complexes must have clearly identifiedmanagement with the legal responsibility of ensuring adherenceto the Terms and Conditions of prior environmental clearance,who may be held responsible for violation of the same throughoutthe life of the complex/estate).”

(emphasis supplied in italics and underline)

59. The view that we have taken is reinforced from the openingpart of this notification. It expounds that no project involving potentialenvironmental impact “shall be undertaken” or “commenced” in anypart of India without obtaining prior environmental clearance in the mannerprovided for. Same position obtains from the recitals of this notification,namely, prior environmental clearance is required “before” anyconstruction work or preparation of land by the project management,except for securing the land, is started on the project or the activity. Apriori, the decision in Delhi Development Authority (supra), does nottake the matter any further in the present case. Therefore, no interferenceis warranted with the decision of the Committee regarding the changeof stretch/section to be implemented during Phase I between C-K-S(NC); including the impugned notifications under Sections 2(2) and 3Aof the 1956 Act.

60. Be it noted that the notification of 2006 is in the nature ofguidelines/directives issued by the Central Government in exercise of itsstatutory powers. These directions need to be adhered by the executingagency (NHAI) whilst undertaking the work in furtherance of theapproved project. To put it differently, it is incomprehensible that thestated 2006 notification obliges the Central Government to take priorpermission even before the stage of “planning” and “finalisation of theproject(s)” such as in terms of the minutes dated 19.1.2018 followed bynotifications under Sections 2(2) and 3A of the 1956 Act, as the casemay be.

61. Much emphasis was placed on expression “securing the land”,to contend that expression of intent to acquire the land referred to inSection 3A of the 1956 Act does not come under the excepted category.We reject this plea. In our view, the activities required to be undertakenin furtherance of notification under Section 3A of the 1956 Act, referredto in Section 3B of the same Act are only to explore the feasibility and

Aviability of the stretch/section to be used as national highway and nofurther. These activities are outside the purview of notification of 2006.

62. The High Court had adverted to decisions of other jurisdictions,namely, of American Courts, to buttress the view that prior permissionought to be taken even before issuing notification under Section 3A ofBthe 1956 Act. Considering the legislative scheme and upon giving propermeaning and perspective to the directives issued by the CentralGovernment in the form of 2006 notification, we are of the consideredopinion that the dictum in those decisions will be of no avail. For, we areof the view that it is not necessary for the Central Government or forthat matter, NHAI, to apply for prior environmental/forest clearances orCpermissions, as the case may be, at the stage of planning or taking an in-principle decision to formalize the Project of constructing new nationalhighway manifested in notification under Section 2(2), including until thestage of issuing notification under Section 3A of the 1956 Act.

63. If we accept the argument of the writ petitioners that theDCentral Government must follow comprehensive procedure under theenvironmental laws and forest laws articulating its final decision and toissue notification under Section 2(2) of the 1956 Act to declare anystretch/land not being highway as national highway, such approachwould be counter-productive and the functioning of the departmentsEresponsible for timely execution of such projects would be completelyparalysed and depend solely on the outcome of the processes under theenvironmental laws or forest laws, as the case may be. It cannot beoverlooked that the role of the competent authority under theenvironmental law or forest law is limited to scrutiny of the formalizedproject brought before it prior to its implementation by the executingFagency, to ascertain whether it may have any environmental impact andif so, to impose such conditions by way of remedial steps to minimiseand mitigate the impact while keeping in mind the need to fulfil the State’sobligation of sustainable development.

64. Be that as it may, one cannot be oblivious of the qualitativeGdifference between project necessitating acquisition of large chunkof land at one place for continual commercial/industrial activities to becarried out thereon as opposed to acquisition of small strip of land inthe area for construction of road/highway. The purpose of road/highwayis merely to facilitate free passage through the same. It would have aHfloating population unlike in the case of big project at one place occupying

several square metres of land and engaging in continual commercial/industrial activities thereon. The environmental impact would be andought to be measured in relative terms and at the local level and sitespecific. Whereas, the requirement for road/national highway wouldessentially be in larger national interest.

65. For the purpose of considering the question posed before us,suffice it to observe that the prior environmental clearance in terms of2006 notification issued under Section 3 of the Environment (Protection)Act, 1986 Act read with Rule 5 of the Environment (Protection) Rules,1986, is required to be taken before commencement of the “actualconstruction or building work” of the national highway by the executingagency (NHAI). That will happen only after the acquisition proceedingsare taken to its logical end until the land finally vests in the NHAI or isentrusted to it by the Central Government for building/management ofthe national highway. This position is reinforced and explained in theOffice Memorandum issued by the MoEF dated 7.10.2014, which readsthus: -

“F.No.22-76/2014-IA-III

Government of IndiaMinistry of Environment, Forest and Climate ChangeImpact Assessment DivisionIndira Paryavaran Bhavan,Jor Bagh Road, Aliganj,New Delhi – 110 003

Dated the 7th October, 2014

OFFICE MEMORANDUM

Subject: Status of land acquisition w.r.t. project site whileconsidering the case for environment clearance under EIANotification, 2006-regarding

1. It has been brought to the notice of this Ministry that in absenceof any guidelines, different EACs/SEACs adopt different criteriaabout the extent to which the land w.r.t. the project site should beacquired before the consideration of the case for environmentclearance (EC). Some of the Ministers in the Government of Indiaand some industrial associations have represented that fullacquisition of land for the project site should not be insisted uponbefore consideration of the case for EC and instead initiation of

Aland acquisition process should be sufficient for the considerationof such cases. The argument being that land acquisitionprocess can go on in parallel and that consideration of ECneed not await full land acquisition.

2. The matter has been examined the in the Ministry. The ECBgranted for project or activity under the EIA Notification, 2006,as amended, is site specific. While full acquisition of land maynot be pre-requisite for the consideration of the case forEC, there should be some credible document to show thestatus of land acquisition w.r.t. project site when the case isbrought before the concerned EAC/SEAC for appraisal. ItChas been accordingly decided that the following documents relatingto acquisition of land w.r.t. the project site and may be consideredas adequate by EACs/SEACs at the time of appraisal of the casefor EC:

(i) In case of land w.r.t. the project site is proposed to beDacquired through Government Intervention, copy ofpreliminary notification issued by the concerned StateGovernment regarding acquisition of land as per theprovision of Land Acquisition, Rehabilitation andResettlement Act, 2013.

E(ii) In case the land is being acquired through privatenegotiations with the land owners, credible document showingthe intent of the land owner to sell the land for the proposedproject.

3. It may, however, be noted that the EC granted for aFproject on the basis of aforesaid documents shall becomeinvalid in case the actual land for the project site turns outto be different from the land considered at the time of theappraisal of project and mentioned in the EC.

4. This issue with the approval of the competent authority.”

(emphasis supplied)

Applying the tenet underlying this notification, it is amply clearthat before the process of acquisition of land is ripe for declaration underSection 3D of the 1956 Act, it would be open to the executing agency(NHAI) to make an application to the competent authority forH

environmental clearance. That process can be commenced parallelly oralongside the acquisition process after preliminary notification underSection 3A of the 1956 Act, for acquisition is issued.

66. As in this case, after notification under Section 3A of the 1956Act came to be issued, NHAI must have, and in fact has, moved intoaction by making application to the competent authorities under theenvironmental laws, as well as, forest laws to accord necessarypermissions.

67. Considering the provisions of the 1956 Act and the 1988 Act,NHAI can take over the work of development and maintenance of theconcerned national highway only if the notified land is vested in it orwhen the same is entrusted to it by the Central Government. From thescheme of the enactments in question, as soon as notification underSection 3A is issued, it is open to the Central Government to issuedirection/notification in exercise of power under Section 5 of the 1956Act read with Section 11 of the 1988 Act so as to entrust the developmentof the proposed national highway to NHAI. Upon such entrustment,NHAI assumes the role of an executing agency and only thenceforthcan move into action to apply for requisite permissions/clearances underthe environmental/forest laws including as provided in terms ofnotification/Office Memorandum dated 14.9.2006 and 7.10.2014respectively.

68. It is not in dispute that environmental/forest clearance is alwayssite specific and, therefore, until the site is identified for construction ofnational highways manifested vide Section 3A notification, the questionof making any application for permission under the environmental/forestlaws would not arise, as predicated in Office Memorandum dated7.10.2014. The site is identified only in reference to the notification underSection 3A of the 1956 Act, giving description of the land which isproposed to be acquired for public purpose of building, maintenance,management or operation of the national highway or part thereof.

69. Considering the interplay of provisions empowering the CentralGovernment coupled with the purport of the notification/OfficeMemorandum issued by the MoEF dated 14.9.2006 and 7.10.2014respectively, it will be paradoxical to countenance the argument that theCentral Government is obliged to seek prior approval/permission of thecompetent authorities under the environment/forest laws, as the case

Amay be, even before issuing notification under Section 2(2) or for thatmatter, Section 3A of the 1956 Act.

RE: DEEMED LAPSING AND THE WAY FORWARD

70. Reverting to the dictum of this Court in Karnataka IndustrialAreas Development Board (supra), it must be understood to mean thatBthe declaration under Section 3D regarding acquisition of notified land,be made only after environmental/forest clearance qua the specific landis granted. To put it differently, the necessity of prior environmental/forest clearance would arise only if finally, the land in question (sitespecific) is to be notified under Section 3D, as being acquired for theCpurposes of building, maintenance, management or operation of thenational highway or part thereof. Such interpretation would further thecause and objective of environment and forest laws, as also not impedethe timeline specified for building, maintenance, management or operationof the national highway or part thereof, which undeniably is publicpurpose and of national importance. This would also assuage the concernsDof the land owners that even if eventually no environment permission orforest clearance is accorded, the land cannot be reverted to the originalowner as it had de jure vested in the Central Government upon issue ofnotification under Section 3D of the 1956 Act and no power is bestowedon the Central Government under this Act to withdraw from acquisition.E71. We are conscious of the fact, as has been rightly argued bythe appellants-authorities, that it is essential to issue declaration underSection 3D of the 1956 Act within period of one year from the date ofpublication of the notification under Section 3A in respect of the notifiedland, failing which notification under Section 3A ceases to have anyFeffect. It is possible that whilst pursuing the proposal for environmental/forest clearance after notification under Section 3A, some time may belost, even though the process under the 1956 Act for acquisition of theland had become ripe for issue of declaration of acquisition under Section3D. It is also true that time spent for obtaining environmental clearanceor permission under the forest laws has not been explicitly excludedGfrom the period of one year to be reckoned under Section 3D(3) of theAct. The extension of time or so to say suspension of time is only inrespect of period during which the action of the proceedings to be takenin pursuance of notification under Section 3A(1) is stayed by an order ofCourt. In other words, there is no express provision in the 1956 Act,Hwhich excludes the time spent by the Central Government or the executing

agency in obtaining prior environmental clearance or permission underforest laws, as the case may be. To get over this predicament, by aninterpretative process and also by invoking plenary powers of this Courtunder Article 142 of the Constitution, we hold that the dictum in paragraph100(1) of Karnataka Industrial Areas Development Board (supra),shall operate as stay by an order of the Court for the purposes ofSection 3D(3) in respect of all projects under the 1956 Act, in particularfor excluding the time spent after issue of Section 3A notification, inobtaining the environmental clearance as well as for permissions underthe forest laws. Only this approach would further the cause ofenvironment and forest laws, as also, the need to adhere to the timelinespecified under Section 3D(3) for speedy execution of the work ofconstruction of national highway, which is also for public purpose andof national importance. In other words, balancing of competing publicinterests/public purposes need to be kept in mind as being the only wayforward for accomplishing the goal of sustainable development.

72. The argument of the writ petitioners that the expression “shall”occurring in Section 3D(1) be interpreted as “may”, though attractive onthe first blush, deserves to be rejected. If that interpretation is accepted,it would render the efficacy of Section 3D(3) of lapsing of the acquisitionprocess otiose. It is mandatory provision. Instead, we have accededto the alternative argument to give expansive meaning to the proviso inSection 3D(3) of the 1956 Act by interpretative process, including byinvoking plenary powers of this Court under Article 142 of the Constitutionto hold that the dictum of this Court in Karnataka Industrial AreasDevelopment Board (supra) be regarded as stay granted by the Courtto all notifications issued under Section 3A of the 1956 Act until thegrant or non-grant of permissions by the competent authorities under theenvironmental and forest laws, as the case may be, including until thestated permissions attain finality. In other words, time spent by theexecuting agency/Central Government in pursuing application before theconcerned authorities for grant of permission/clearance under the statedlaws need to be excluded because of stay by the Court of actions (limitedto issue of notification under Section 3D), consequent to notificationunder Section 3A. Thus, the acquisition process set in motion upon issueof Section 3A notification can go on in parallel until the stage of publicationof notification under Section 3D, which can be issued after grant ofclearances/permissions by the competent authority under theenvironment/forest laws and attaining finality thereof.

A73. In the present case, it is noticed that the NHAI being theexecuting agency, had soon submitted Terms of Reference to the MoEFafter publication of notification under Section 2(2) of the 1956 Act dated1.3.2018, declaring the section - C-K-S (NC) as national highway.That was submitted on 19.4.2018 and the approval in furtherance thereofwas granted by the MoEF on 8.6.2018, consequent to the recommendationBmade by the EAC on 7.5.2018. Indeed, the NHAI thereafter submittedamendment to the Terms of Reference on 5.7.2018 and 21.8.2018. TheEAC after examining the amendment in Terms of Reference, submittedits recommendation on 30.8.2018. It is also matter of record and statedon affidavit by the EAC that no lapses have been committed by theCNHAI in complying with necessary formalities. Similarly, NHAI hadsubmitted application on 12.5.2018 to Conservator of Forests for grantof permissions under the forest laws in respect of lands forming part ofthe notification under Section 3A of the 1956 Act. That application wasduly processed and the permission was granted by the competentauthority under the forest laws on 8.6.2018. Concededly, theseDpermissions/clearances have been issued by the concerned authoritiesunder the environment and forest laws after notification under Section3A and before issuance of declaration under Section 3D of the 1956Act. In terms of this decision, therefore, the time spent for obtainingsuch clearances including till the pronouncement of this decision andEuntil the stated permissions/clearances attain finality, whichever is later,as the matter had remained sub judice, need to be excluded. Evenafter excluding such period, if any notification under Section 3A impugnedbefore the High Court is not saved from the deemed lapsing effectpredicated in Section 3D(3), the Central Government may have to issuefresh notification(s) under Section 3A of the 1956 Act and recommenceFthe process of acquisition, if so advised. We are not expressing any finalopinion in that regard. However, such fresh notifications may be issuedonly in respect of land forming part of permissions/clearances given bythe competent authority under the environment/forest laws, being sitespecific.GOTHER CONTENTIONS

74. That takes us to the grievance regarding the same Consultantbeing continued for the changed section i.e. C-K-S (NC). Indeed, theeligibility of the Consultant was in reference to the originally conceivedproject concerning C-M (EC). It was found eligible to undertake theH

consultancy work for the said project and letter dated 29.9.2017 wasalso issued by NHAI. In the Committee’s meeting chaired by theSecretary of MoRTH on 19.1.2018, new alignment was finalised therebydeviating from the original project of C-M (EC). Instead, section - C-K-S (NC) was finalised. However, the same Consultant had been continuedby execution of contract agreement dated 22.2.2018 for the changedstretch/section. This was done as the terms and conditions were same.Indeed, it was vehemently contended before us that the authorities shouldhave followed the procedure stipulated for appointment of Consultantfor the changed project afresh. However, we find that in none of thewrit petitions filed before the High Court, express declaration had beensought or for that matter, the contract agreement dated 22.2.2018 executedbetween NHAI and the Consultant came to be challenged. Moreover,the terms and conditions of appointment of the Consultant would haveno financial ramifications, considering the fact that the consultancycharges were to be paid on per kilometre basis; and in fact due to changeof alignment, the length of proposed national highway stood reduced toonly around 277 kms. (instead of original stretch [C-M (EC)] of around350 kms.) Further, no challenge is set forth regarding the qualificationand eligibility of the Consultant as such. Notably, the decision to changethe stretch/section from Economic Corridor to National Corridor wasthat of the Committee. It was not founded on the recommendation ofthe Consultant, as has been assumed by the writ petitioners and sopropounded before the high Court. The decision of the Committee wasbacked by tangible reasons as recorded in the minutes and also intrinsicin it its vast experience about the efficacy of governing policies fordeveloping seamless national highway connectivity across the country.In any case, irregularity, if any, in the appointment of the Consultantcannot be the basis to quash and set aside well-considered decisiontaken by the Committee after due deliberations, much less the impugnednotifications under Section 2(2) or Section 3A(1) of the 1956 Act. Wetherefore, hold that the High Court should have eschewed fromexpressing any opinion on the manner of appointment of the sameConsultant for the changed section/stretch [C-K-S (NC)], as no reliefchallenging its appointment was sought and thus it was not the matter inissue before it; and for the same reason, we do not wish to dilate on thisaspect any further. Thus understood, the dictum of this Court in decisionsrelied upon by the respondents/writ petitioners in K. Lubna (supra) andShrilekha Vidyarthi (supra) will be of no avail in this case.

A75. Having dealt with the merits of the controversy in extenso, itis unnecessary to dilate on the question of maintainability of the writpetitions being premature.

CONCLUSION

76. Before we conclude and for the completion of record, weBmay advert to the direction issued by the High Court in paragraph 106 ofthe impugned judgment as reproduced hitherto. The High Court directedthe concerned revenue authorities to restore the mutation entries effectedin favour of the acquiring body/NHAI merely on the basis of notificationunder Section 3A of the 1956 Act. By virtue of notification under SectionC3A of the 1956 Act, neither the acquiring body nor the NHAI had comein possession of the concerned land nor the land had vested in them, soas to alter the mutation entry in their favour. To that extent, we agreewith the High Court that until the acquisition process is completed andpossession of land is taken, the question of altering the mutation entrymerely on the basis of notification under Section 3A of the 1956 ActDcannot be countenanced and, therefore, the earlier entries ought to berestored. That direction of the High Court needs no interference.

77. While parting, we must place on record that we have notexpressed any opinion either way on the correctness and validity of thepermissions/clearances accorded by the competent authorities under theEenvironment and forest laws, as the case may be. For, those orderswere not the subject matter or put in issue before the High Court.Therefore, it would be open to the affected persons to question the validitythereof on grounds, as may be permissible, before the appropriate forum.All contentions available to parties in that regard are left open.F78. We need to place on record that we have not dilated on other

F78. We need to place on record that we have not dilated on otherdecisions adverted to and relied upon before us by the learned counselappearing for the concerned parties, to avoid prolixity and also becausethe same have no bearing on the questions dealt with by us hitherto. Inour opinion, appeals filed by the authorities ought to succeed merely onthe issues answered by us for dismissing the challenge to notificationsGunder Section 2(2) and Section 3A of the 1956 Act, in the concernedwrit petitions. Further, we do not wish to deal with the decisions reliedupon, that the Project of this nature may have environmental impact andought not to be taken forward. As aforesaid, we have not examined theefficacy of the permissions/clearances granted by the competent authority

under the environment or forest laws, as the case may be. If thosepermissions/clearances are assailed, only then the decisions in HanumanLaxman Aroskar (supra), M.C. Mehta (supra) and BengaluruDevelopment Authority (supra) may be looked at. Inasmuch as in thosecases, the Court was called upon to examine the challenge in the contextof permissions given by the competent authority under the environmentlaws.

79. Needless to observe that if any decision of the High Courts,which had been relied upon is not in consonance with the view taken byus, the same be treated as impliedly overruled in terms of this decision.We do not wish to multiply the authorities of the High Courts ascommended to us on the issues answered in this judgment.

80. In view of the above, the appeals filed by the Union of Indiaand NHAI (Civil Appeals arising out of SLP(C) Nos. 13384-85/2019,16098-16100/2019, 18577-18580/2019, 19160-19166/2019, 1775-1776/2020, 1777-1780/2020 and 1781-1783/2020) are partly allowed in theaforementioned terms; but the appeal filed by the land owner(s)/aggrievedparty(ies) (Civil Appeal arising out of SLP(C) No. 18586/2019) standsdismissed. The impugned judgment and order is modified to the extentindicated in this judgment. The challenge to impugned notifications underSections 2(2) and 3A of the 1956 Act, respectively, is negatived. Thedirection issued (in paragraph 106 of the impugned judgment) to theconcerned authorities to restore the subject mutation entries is, however,upheld.81. The Central Government and/or NHAI may proceed furtherin the matter in accordance with law for acquisition of notified lands forconstruction of national highway for the proposed section/stretch - C-K-S (NC), being NH Nos. 179A and 179B.

82. There shall be no order as to costs. Pending interlocutoryapplications, if any, shall stand disposed of.

83. We place on record our appreciation for the able assistancegiven by the learned counsel for the parties and for being brief in theirpresentations despite the complexity of the issues and bulky record dueto batch of cases being heard together including the daunting task ofinteracting through video conferencing (virtual Court) due to ongoingpandemic.

Divya Pandey

Appeals disposed of.