1. Challenge to notifications under Sections 2(2) and 3A(1) of the National Highways Act, 1956, for land acquisition for a green-field national highway project. (Para 2 , 6 , 7 )
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2020 Supreme(SC) 701
SUPREME COURT OF INDIA
A.M. KHANWILKAR, B.R. GAVAI, KRISHNA MURARI, JJ.
The Project Director, Project Implementation Unit – Appellant
Versus
P.V. Krishnamoorthy & Ors. – Respondents
Civil Appeal Nos. 3976-3977, 3978-3980, 3981-3984, 3985-3991, 3992, 3993-3994, 3995-3998, 3999-4001 of 2020, Arising Out of SLP (C) Nos. 13384-13385, 16098-16100, 18577-18580, 18586, 19160-19166 of 2019, 1775-1776, 1777-1780, 1781-1783 of 2020
Decided On : 08-12-2020
Advocates Appeared:
For the Appellant :Tushar Mehta SG, G. Rajagopalan, Madhu Sweta, Astha Tyagi, Shivangi Khanna, Swati Ghildiyal, Subhashree Mohapatra, Siddharth Raj Agarwal, Gurmeet Singh Makker, P. Soma Sundaram, Advocates
For the Respondent:S. Thananjayan, Gautam Narayan, K. Paari Vendhan, Sanjay Parikh, Srishti Agnihotri, Tanvi NS, Sanjana Srikumar, Anmol Gupta, T.V.S. Raghavendra Sreyas, Astha Tyagi, Gurmeet Singh Makker, Akshay Girish Ringe, Harish Pandey, Deepak Anand, Balaji Srinivasan, T.R.B. Sivakumar, Aakriti Priya, S. Gowthaman, M.P. Parthiban, P. Soma Sundaram, Advocates
For the Appellant :Tushar Mehta SG, G. Rajagopalan, Madhu Sweta, Astha Tyagi, Shivangi Khanna, Swati Ghildiyal, Subhashree Mohapatra, Siddharth Raj Agarwal, Gurmeet Singh Makker, P. Soma Sundaram, Advocates
For the Respondent:S. Thananjayan, Gautam Narayan, K. Paari Vendhan, Sanjay Parikh, Srishti Agnihotri, Tanvi NS, Sanjana Srikumar, Anmol Gupta, T.V.S. Raghavendra Sreyas, Astha Tyagi, Gurmeet Singh Makker, Akshay Girish Ringe, Harish Pandey, Deepak Anand, Balaji Srinivasan, T.R.B. Sivakumar, Aakriti Priya, S. Gowthaman, M.P. Parthiban, P. Soma Sundaram, Advocates
Parliament has legislative competence to declare green-field lands as national highways. Prior environmental/forest clearances are not mandatory before issuing Section 3A notifications (intention to acquire) but must be obtained before the final Section 3D declaration and actual construction work commences.
Headnote:
National Highways Act, 1956 - Section 3A(1) - Acquisition of specified lands - Construction - Project (Bharatmala Pariyojna Phase I) has been conceived as a new umbrella program for highways sector that focuses on optimising efficiency of freight and passenger movement across country by bridging critical infrastructure gaps through effective interventions like development of Economic Corridors, Inter Corridors and Feeder Routes (ICFR), National Corridor Efficiency Improvement, Border and International connectivity roads, Coastal and Port connectivity roads and Green-field expressways, traversing across around 24,800 kms in Phase-I - In addition, Phase I also includes 10,000 kms. of balance road works under National Highways Development Program - Estimated outlay for Phase I came to be specified as Rs.5,35,000 crores spread over 5 years - Objective of Program is stated as optimal resource allocation for a holistic highway development/improvement initiative - Two distinguishing features are said to be - Effective delegation in appraisal/approval of individual project stretches and encouraging State Governments to participate in development process through Grand Challenge – Whether Writ Petitions are maintainable, since all that has been done by respondents is to notify their intention to acquire lands by publishing a notification under Section 3A(1) of Act and petitioners cannot be stated to be aggrieved - Held, Court need to place on record that Court have not dilated on other decisions adverted to and relied upon before by learned counsel appearing for concerned parties, to avoid prolixity and also because same have no bearing on questions dealt with by us hitherto - In Court opinion, appeals filed by authorities ought to succeed merely on issues answered by for dismissing challenge to notifications under Section 2(2) and Section 3A of 1956 Act, in concerned writ petitions - Further, Court do not wish to deal with decisions relied upon, that Project of this nature may have environmental impact and ought not to be taken forward - As aforesaid, Court have not examined efficacy of permissions/clearances granted by competent authority under environment or forest laws, as case may be - There shall be no order as to costs. Pending interlocutory applications, if any, shall stand disposed of.
Act Referred
ADVOCATES ACT: S.2(1)(i)
CONSTITUTION OF INDIA: Art.21, Art.19, Art.46, Art.48(a), Art.51(a), Art.14, Art.248, Art.142, Art.257(2), Art.254(4)
ENVIRONMENT PROTECTION ACT: S.3(3)
ENVIRONMENT PROTECTION RULES: R.5(3)
NATIONAL HIGHWAYS ACT: S.3(d), S.4, S.2, S.9, S.5, S.7
NATIONAL HIGHWAYS AUTHORITY ACT: S.16(2), S.11, S.3
CONSTITUTION OF INDIA: Art.21, Art.19, Art.46, Art.48(a), Art.51(a), Art.14, Art.248, Art.142, Art.257(2), Art.254(4)
ENVIRONMENT PROTECTION ACT: S.3(3)
ENVIRONMENT PROTECTION RULES: R.5(3)
NATIONAL HIGHWAYS ACT: S.3(d), S.4, S.2, S.9, S.5, S.7
NATIONAL HIGHWAYS AUTHORITY ACT: S.16(2), S.11, S.3
Legal Category Hierarchy
- constitutional law
- administrative law
- environmental law
- land acquisition
-
property law
-
revenue records
- mutation (Para 76)
-
revenue records
Table of Contents
2. Dispute over Parliament's competence to declare green-fields as national highways and whether prior environmental clearances are mandatory before issuing Section 3A notifications. (Para 18 , 19 , 20 , 21 , 22 , 23 , 24 )
3. The Union possesses legislative competence for national highways; environmental clearances are required before construction, not before expressing intent to acquire land under Section 3A. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 34 , 35 , 37 , 38 , 42 , 43 , 44 , 45 , 47 , 48 , 50 , 51 , 52 , 53 , 54 , 55 , 58 , 59 , 60 , 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 )
4. Parliament's power under Entry 23, List I extends to declaring any land as a national highway; environmental clearances are required before construction, not before Section 3A notifications. (Para 28 , 31 , 52 , 62 , 65 )
5. Appeals by Union of India and NHAI partly allowed; notifications under Sections 2(2) and 3A upheld; direction to restore mutation entries upheld. (Para 80 , 81 )
6. Does Parliament have the power to declare open green-field lands as national highways under the National Highways Act, 1956?
Yes. Under Entry 23 of List I, Parliament has exclusive power to declare any stretch, including non-existing roads or green-fields, as a national highway. This power is not restricted to existing highways. (Para 26 , 27 , 28 , 31 , 38 )
7. Is prior environmental or forest clearance mandatory before issuing a notification under Section 3A(1) of the National Highways Act, 1956?
No. Environmental clearances are required before actual construction or land preparation begins, not before the government expresses its intention to acquire land under Section 3A, which is a preliminary step. (Para 50 , 52 , 58 , 62 , 65 )
8. To what extent can courts review the government's decision to change the alignment of a national highway project?
Courts have limited scope for review. Such decisions are policy matters based on expert opinion and are not interfered with unless they are ex facie contrary to law, arbitrary, or mala fide. (Para 43 , 44 , 46 , 47 , 48 )
9. Can revenue records be mutated in favor of the government based solely on a notification under Section 3A(1) of the 1956 Act?
No. A Section 3A notification only conveys the intention to acquire land; it does not vest the land in the government. Mutation can only occur after the acquisition process is complete. (Para 76 )
10. How is the one-year period for issuing a Section 3D declaration calculated when environmental clearances are pending?
The court held that time spent obtaining environmental or forest clearances after a Section 3A notification is issued shall be excluded from the one-year period to prevent deemed lapsing. (Para 71 , 72 )
JUDGMENT :
A.M. KHANWILKAR, J.
1. Leave granted.
2. These appeals emanate from the common judgment and order 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"] of the High Court of Judicature at Madras 2 [for short "the High Court"] holding the notifications issued under Section 3A(1) of the National Highways Act, 1956 3 [for short "the 1956 Act"] for acquisition of specified lands for development/construction of Chennai-Krishnagiri-Salem (National Corridor) 8 Lanes new National Highway 4 [for short "C-K-S (NC)"] (NH-179A and NH-179B) being part of the larger project - "Bharatmala Pariyojna Phase-I 5 [for short "the Project"], as illegal and bad in law on the grounds stated in the impugned judgment.
THE PROJECT
3. The Project (Bharatmala Pariyojna - Phase I) has been conceived as a new umbrella program for the highways sector that focuses on optimising efficiency of freight and passenger movement across the country by bridging critical infrastructure gaps through effective interventions like development of Economic Corridors, Inter Corridors and Feeder Routes (ICFR), National Corridor Efficiency Improvement, Border and International connectivity roads, Coastal and Port connectivity roads and Green-field expressways, traversing across around 24,800 kms in Phase-I. In addition, Phase I also includes 10,000 kms. of balance road works under National Highways Development Program 6 [for short, "NHDP"]. The estimated outlay for Phase I came to be specified as Rs.5,35,000 crores spread over 5 years. The objective of the Program is stated as optimal resource allocation for a holistic highway development/improvement initiative. The two distinguishing features are said to be - effective delegation in appraisal/approval of individual project stretches and encouraging State Governments to participate in the development process through 'Grand Challenge'. This Project intends to further the objective of the NHDP, which was being implemented in the past and had reached level of maturity. Resultantly, it was thought appropriate to redefine road development and have a macro approach while planning expansion of the national highways network with focus on recasting road development by bridging critical infrastructure gaps. The Program envisages a corridor approach in place of the existing package-based approach which has, in many cases, resulted in skewed development referred to therein, causing impediment in seamless freight and passenger movement.
4. The components and outlay of the Project, as approved by the Cabinet Committee on Economic Affairs 7 [for short "the CCEA"] to be implemented over a period of 5 years i.e. 2017-2018 to 2021-2022, provide for the breakup of length of the different components and the outlay therefor. Although the Project stretches had been identified taking into account integration of economic corridors with the ongoing projects under NHDP and infrastructure asymmetry in major corridors, an express discretion has been bestowed on Minister - Road Transport & Highways to substitute/replace upto 15% length of 24,800 kms. for the Project (Phase-I of program) by other suitable projects, if development of certain identified stretches cannot be taken up on account of issues pertaining to alignment finalisation, land availability and other unforeseen factors whilst retaining the target and budget proposed for Phase I.
5. In furtherance of the Project, a meeting was held on 19.1.2018 under the Chairmanship of Secretary (Road Transport & Highways) for optimising Economic Corridors in the State of Karnataka, Andhra Pradesh, Tamil Nadu and Kerala identified under the Project, which was also attended by Member (P), National Highway Authority of India 8 [for short "the NHAI"], Joint Secretary of the Ministry of Road Transport & Hi
