Court clarifies that concessionaires under valid Work Orders prior to a specific date are exempt from needing Environmental Clearance for certain operations.

ORDER :

Devan Ramachandran, J.

Our consideration is catalyzed by an order of reference made by a learned Judge of this Court dated 23.07.2025, impelling the question whether, in spite of the judgment of the Hon’ble Supreme Court in Noble M.Paikada v. Union of India [Civil Appeal Nos.1628- 1629/2021] dated 21.03.2024, the concessionaires enjoying valid Work Orders from the National Highways Authority of India (‘NHAI’), issued prior to the date of the said judgment, would stand outside the rigour of having to obtain Environmental Clearance (‘EC’) for the purpose of extraction, or sourcing, or borrowing of ordinary earth, to complete linear projects such as roads, pipelines, etc.

2. We discern from the Reference Order that the reason why it came to be was because, an argument was porpoised that, even if the various notifications in question allowed the ‘NHAI’ to extract, source or borrow ordinary earth for the purpose of its works without having to obtain an ‘EC’, the same benefit would not extend to the concessionaires acting under ‘Work Orders’.

3. Our path, in offering the answer to the reference, is illuminated substantially and to a significant extent by the judgment of the Hon’ble Supreme Court in Noble M.Paikada (supra).

4. The essential facts involved in this case are available in the judgment of the Hon’ble Supreme Court; but, as an aperçu, we record that its attention was drawn onto the validity or otherwise of two notifications of the Government of India, Ministry of Environment, Forest and Climate Change (MOEF and CC), dated 28.03.2020 and 30.03.2023, qua Item 6 of Appendix-IX thereof.

5. The controversy, which reached the Hon’ble Supreme Court, has its genesis in a challenge to the afore notifications before the National Green Tribunal (NGT), which quashed the notifications to the extent impugned; and the Hon’ble Supreme Court then considered the entire umbra, adverting to the Statutory Scheme and the Statutes covering the field, to hold “Therefore, we have no hesitation in striking down item 6 of the substituted Appendix-IX forming part of the impugned notification dated 28^th March 2020 and item 6 of the amended impugned notification dated 30^th August 2023. Accordingly, we quash item 6 in the two notifications above.”

6. To understand the holdings of the Hon’ble Supreme Court, one certainly will have to have a glance through the notifications in question. As per the first of the two notifications, dated 28.03.2020, Item No.6 of Appendix-IX thereof provided that “extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc.” would enjoy exemption from the requirement of the ‘EC’. In fact, the second of the notifications dated 30.08.2023 was one issued when the matter was seized by the Hon’ble Supreme Court; and again, in Appendix-IX thereof, Item No.6 was substituted in the following manner:

5. Before we go into the challenge to the impugned notification, we must note here that items 6 and 7 were substituted by further notification dated 30^th August 2023 (for short, 'amended impugned notification')issued during the pendency of these appeals. Substituted items 6 and 7 in the amended impugned notification read thus:

"6. Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. shall be subject to the compliance of standard operating procedures and environmental safeguards issued in this regard from time to time.

7. Dredging and de-silting of dams, reservoirs, weirs, barrages, river and canals for the purpose of their maintenance, upkeep and disaster management shall be subject to the compliance of environmental safeguards issued in this regard from time to time."

7. The Hon’ble Supreme Court, however, held that the blanket exemption granted in the afore manner – in both the notifications referred above – stand contrary to the imperative requirements of law; thus striking it down, as mentioned above.

8. However, the matter did not end