Exemptions for land extraction without proper guidelines are arbitrary, violating environmental laws and the Constitution.

The appeal is arising out of the judgment of the learned Single Judge in W.P.(C)No.20083 of 2023 in which the excavation undertaken in connection with the construction of the Kottukulangara to Kollam Highway Bypass and the quarrying permit issued to the 7^th respondent (appellant herein) permitting excavation and removal of ordinary earth from 43.20 Ares of land were under challenge.

2. We have heard Mr.S. Sreekumar, learned Senior Advocate instructed by Mr. K.R. Arun Krishnan, learned counsel for the appellant, Mr. E.C. Kuriakose, learned Standing Counsel for the National Highways Authority of India, Ms. K.A. Sunitha, learned counsel for respondents 8 and 9, Mr. P.M. Rafeek, learned counsel for the 6^th respondent and Mr. M.P. Sreekrishnan, learned Standing Counsel for the State Environmental Impact Assessment Authority (SEIAA).

3. The right to use the land for implementation of the work orders issued by the National Highways Authority of India (NHAI), on the strength of the exemption granted under the notification dated 28 March 2020 and the amended and substituted notification dated 30 August 2023, particularly clauses 6 and 7 thereof, came up for consideration before the Supreme Court of India in Civil Appeal Nos. 1628–1629 of 2021 in Noble M. Paikada v. Union of India ¹, decided by judgment dated 21^st March 2024. The Hon’ble Supreme Court struck down item No.6 of the substituted Appendix-IX forming part of the impugned notification dated 28 March 2020 and item no.6 of the amended impugned notification dated 30 March 2023. For the sake of brevity, the said notifications struck down by the Hon’ble Supreme Court are stated below:

“6. Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc.”

“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.”

1 2024 SCC OnLine SC 369

4. The reason for striking down item No.6 would be evident from paragraphs 25 and 26 of the said judgment, which read as follows:

“25. There is one more important ground for striking down item 6. But for item 6 in Appendix-IX to the impugned notification, for extraction, sourcing, or borrowing of ordinary earth for linear projects, prior EC would have been required in terms of the first EC notification. The very object of issuing the first EC notification incorporating the mandatory requirement of obtaining EC for projects was that the damage to the environment must be minimised while implementing projects. When an exception is sought to be carved out by incorporating Appendix-IX to the requirement of obtaining EC in the first EC notification, the exception must be specific. Item 6 grants exemption for “extraction or sourcing or borrowing of ordinary earth for linear projects, such as roads, pipelines, etc.” There is no specification about the quantum of ordinary earth, which can be extracted on the basis of the exemption. There is no specification of the area which can be used to extract ordinary earth. It is also not provided that only that quantity of ordinary earth, which is required to implement the linear projects, is exempted. Importantly, “linear projects” have not been defined. Without the definition, it is difficult to imagine which projects will be termed linear projects. The term “linear projects” is very vague. The process to be adopted for excavation has not been set out. Thus, item 6 is a case of completely unguided and blanket exemption, which is, per se, arbitrary and violative of Article 14 of the Constitution of