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

86 [2020] SUPREME COURT 14 S.C.R. 86 REPORTS [2020] 14 S.C.R.

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 87 KRISHNAMOORTHY AND ORS.

88 SUPREME COURT REPORTS [2020] 14 S.C.R.

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 89 KRISHNAMOORTHY AND ORS.

List. Concededly, the expression “highways” as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists. Indisputably, the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense. Entry 23 in List I refers generally to “highways” declared or to be declared by the C Parliament as national highways and all matters connected therewith. This empowers the Parliament to declare any stretch/ section across any State as a highway for being designated as a national highway. There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing “highway”. Further, whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list. If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be. Power of law-making itself would be rendered otiose if it does not provide for suitable coverage of matters that are incidental as well as intrinsically connected to the expressly granted power. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between the Union and the States makes it amply clear that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which applied in that G State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 expounds about the control of the Union over States in certain H

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A cases. Clause (2) predicates that the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national and military importance. The proviso makes it further clear that the power of the Parliament is not restricted in any way to the matters specified therein. There B is nothing in the Constitution which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive C power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard. For the same reason, the complete executive power also vests within the Union. [Paras 27-29][137-B-C; G-H; 138-A-H; 139-A-C; 140-B-E] D K.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 a law ascribable to Entry 23 of the Union List and it provides for construction of a national highway on a non-existing road/highway traversing through green-field lands. In the present case, the Court has to consider the sweep of the 1956 Act in light of the amended provisions, which came into force with effect from 24.1.1997. The 1956 Act extends to the whole of India and has come into force on 15.4.1957. Section 2(1) thereof is in the nature of declaration by the Parliament that each of the highways specified in the schedule appended to the 1956 Act to be a national highway. The Schedule appended 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 a national highway by publishing a notification in the Official Gazette in that behalf and upon such publication, the highway shall be deemed to be specified in the stated Schedule. This provision contains a legal fiction. This provision annunciates

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 91 KRISHNAMOORTHY AND ORS.

that the Parliament has entrusted the power in the Central A Government or the Union to declare from time to time and when required, any other stretch/section in any State to be a national highway, which power could be exercised exclusively by the Parliament itself under the Constitution. Sub-Section (3) of Section 2 empowers the Central Government to omit any highway from the Schedule and upon such publication, it would cease to be a national highway. In other words, Section 2, as enacted by the Parliament, declared the highways referred to in the Schedule to be national highways and empowered the Central Government to add other highways to be a national highway and including omit the scheduled highways from time to time as per the evolving exigencies and administrative concerns. There is nothing in this Act to constrict the power of the Central Government to notify any stretch/section (not being an existing road/highway) within any State, to be a national highway. A priori, the Central Government is free to construct/build a new national highway keeping in mind the obligations it has to discharge under Part IV of the Constitution for securing a social order and promotion of welfare of the people in the concerned region, to provide them adequate means of livelihood, distribute material resources as best to subserve the common good, create new opportunities, so as to empower the people of that area including provisioning new economic opportunities in the area through which the national highway would pass and the country’s economy as a whole. The availability of a highway in any part of the State paves way for sustainable development and for overall enhancement of human well-being including to facilitate the habitants thereat to enjoy a F decent quality of life, creation of assets (due to natural increase in market value of their properties) and to fulfil their aspirations of good life by provisioning access to newer and present-day opportunities. [Paras 30-32][140-F; 141-E-H; 142-A-E] 1.3 Sections 3A to 3J of the Act expound the procedure for acquisition of the land for the purpose of building a national G highway. Section 3A of the 1956 Act inserted by way of an amendment in 1997, empowers the Central Government to declare its intention to acquire “any land”. It need not be linked

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A to an existing road or State highway. For, the expression “any land” ought to include open green-fields for construction or building of a national highway, consequent to declaration under Section 2(2) of the same Act in that regard. The central condition for exercise of such power by the Central Government is that it should be satisfied that such land is required for the public purpose of building a national highway or part thereof. Section 3B of the 1956 Act empowers the person authorised by the Central Government to enter upon the notified lands for the limited purpose of survey etc., to ascertain its suitability for acquisition for the stated purpose or otherwise. The final declaration of acquisition is then issued under Section 3D of the Act after providing opportunity to all persons interested in the notified land to submit their objections and participate in a public hearing under Section 3C. The contour of issues debated during this public hearing are in reference to matters relevant for recording satisfaction as to whether the notified land is or is not required for a public purpose for building, maintenance, management or operation of a national highway or part thereof. Consequent to publication of declaration under Section 3D, the land referred to in the notification vests absolutely in the Central Government, free from all encumbrances. Possession of such land is then taken under Section 3E of the Act, upon depositing the compensation amount in the manner provided in Section 3H of the Act and as determined under Section 3G. Section 3F empowers the Central Government to enter upon the land after the same is vested in terms of Section 3D of the Act. Notably, Section 3J of the Act is a non-obstante provision and it predicates that nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under the 1956 Act. The national highways vest in the Union in terms of Section 4 of the 1956 Act and the responsibility for development and maintenance thereof is primarily that of the Central Government in terms of Section 5. G The Central Government is competent to issue directions to the Government of any State in respect of matters specified in Section 6 of the Act. Section 9 empowers the Central Government to make rules in respect of matters provided therein for carrying

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 93 KRISHNAMOORTHY AND ORS.

out the purposes of the 1956 Act. Sections 3A to 3J have been inserted by way of amendment of 1997. On close examination, the 1956 Act, as amended and applicable to the present case, is an Act to authorise Central Government to declare the notified stretches/sections in the State concerned as a highway to be a national highway; and for matters connected therewith including acquisition of “any land” for building or construction of a new highway (which need not be an existing road/highway). The substance of this Act is ascribable to Entry 23 of the Union List and matters connected therewith. The challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence, is devoid of merits. C The High Court justly negatived the same and that conclusion is upheld. [Paras 33-36][142-F; 148-A-H; 149-A-B]

2. EXECUTIVE POWER OF THE UNION A fortiori, even the challenge to the stated notifications on the ground of being ultra vires the Constitution derived executive powers of the Union, must fail. That challenge is founded on the purport of Article 257. Article 257 of the Constitution, as aforesaid, deals with administrative relations between the States and the Union. In the first place, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the 1956 Act. It is incomprehensible as to how the argument of lack of executive power of the Central Government despite such a law, can be countenanced. Concededly, the validity of Section 2 of the 1956 Act, which empowers the Central Government to notify any other highway (other than the scheduled national highways) as a national highway, has not been put in issue. No declaration is sought that the said provision is ultra vires the Constitution or the law. The challenge to notifications issued by

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A the Central Government under Section 2(2) of the 1956 Act on the ground of being ultra vires the Constitution derived executive powers, 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 Central B Government, even if is competent to declare any stretch/section as a national highway, can do so only in respect of an existing road/highway within the State and not in respect of non-existent road, much less traversing through the open green-field lands. For building a new highway, as in the present case, between stretch/section C-K-S (NC) NH-179A and NH-179B respectively, the Central Government can do so in exercise of power conferred upon it under Section 2(2) of the 1956 Act. That empowers the Central Government to notify any other highway (not forming part of the Schedule appended to the Act) as a national highway and upon such publication of notification in the official gazette, the said highway is deemed to be specified in the Schedule as a national highway. This power is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway. The requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio- economic dynamics, for which such a wide power has been bestowed upon the Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution. There is nothing in the Constitution of India or for that matter, the 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter-productive and would entail in a piquant situation that the Central Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. On the other hand, if the concerned State, due to reasons beyond its control or otherwise, is unable/flounder to provision a road/ highway in a given segment of the State; despite being imperative

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 95 KRISHNAMOORTHY AND ORS.

to do so to assuage the perennial difficulties faced by the locals in that belt due to lack of access, the Central Government may come forward and step in to construct a national highway and connect the area with the other parts of the country. The expression “highway” has not been defined in the 1956 Act or even in the 1988 Act. The Central Government, whilst exercising power under Section 2(2) of the 1956 Act creates a right in the locals of the concerned area to pass and repass along a highway from one marked town or inhabited place to another inhabited place for the purpose of legitimate travel. Such highway is dedicated for the ordinary and reasonable user of the road as a national highway from one designated town (Chennai) upto another town (Salem), which will be common to all the subjects. [Paras 38, 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. D

4. MODIFICATION OF PROJECT AND EXTENT/ SCOPE OF REVIEW It was next contended that the decision to change the stretch/section to C-K-S (NC) was arbitrary and was not backed by scientific study. The original Project (Bharatmala Pariyojna - E Phase I) included section – C-M (EC), as approved by the Cabinet Committee on Economic Affairs (CCEA) in October, 2017. This Project, being a macro level project, does not reckon the nuanced imperatives of a particular region or area, which may only be a miniature of the whole Project traversing across around 24,800 F kms. in Phase I. For that reason, the approved Project itself bestows discretion upon the Ministry of Road Transport & Highways (MoRTH) to substitute/replace up to 15% length of 24800 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 under G the program cannot be taken up on account of issues pertaining to alignment finalisation, land availability and other unforeseen factors and concerns relating to congestion, reduction of distance, operational efficiency are some of the factors which may attract H

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A such alteration. In the meeting convened on 19.1.2018, chaired by the Secretary, MoRTH for examining the micro level implementation of the comprehensive Project and keeping in mind the pressing requirements of the concerned State, the Committee opted for substitution/replacement of the original stretch/section [C-M (EC)] for the reasons recorded in the minutes. It decided to change the section - C-M (EC) to C-K-S (NC) as regards State of Tamil Nadu. It was a well-considered decision taken by the said Committee set up under the aegis of the MoRTH. It must be assumed that the broad-based committee of experts in the field, was fully aware of the governing policies and criteria for designating national highways. It was also cognizant of the requirements and priorities of the concerned area and the norms specified for prioritising the stretches/sections. There is no substance in the argument that the change of stretch/section to C-K-S (National Corridor) was not based on any tangible material to sustain the stated decision of the Committee. Indeed, the necessity to enhance the existing section of Economic Corridor between Chennai-Madurai was taken note of in the principal Pariyojna. However, the Committee, as per the discretion bestowed in it in terms of the approved Pariyojna, whilst reckoning the imperatives of the region under consideration for micro level implementation, took a conscious decision to opt for C-K-S (National Corridor) being relatively more beneficial and to strengthen the National Corridor; and at the same time increase efficiency of the existing economic corridor. Such decision, obviously, partakes the colour of a policy decision of the Central Government, which is also backed by the guidelines issued on F 26.2.2018 by the competent authority of the same Ministry of the Government of India, MoRTH (Planning Zone). This communication refers to the approval of the Project (Bharatmal Pariyojna Phase I) by the CCEA in October, 2017 recording obstructions/difficulties faced during upgradation of the existing G road arteries. There is no challenge to these guidelines. Indeed, these guidelines have been issued after the decision was already taken on 19.1.2018 in respect of section - C-K-S (NC) in lieu of C-M (EC) section. However, it needs to be understood that the

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 97 KRISHNAMOORTHY AND ORS.

decision was taken by the broad-based Committee of experts, of which the Secretary of the same Ministry (MoRTH) which had issued the guidelines on 26.2.2018, was the Chairperson alongwith the other officials including the officials of NHAI. The decision regarding change is a policy decision. Moreso, keeping in mind that the change in alignment and the purpose of such a change is stated to be for strengthening the national corridor in preference to the economic corridor in the region, it is not open to disregard this opinion of the Central Government based on the recommendation of the Committee constituted by it for that singular purpose. It is the primary duty of the competent authority to decide whether there exists public purpose or not. The Courts C may not ordinarily interfere with that unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so-called purpose is no public purpose at all and fraud of statute is manifest. Further, it is not for the Courts to sit over such decision as a D Court(s) of appeal and to disregard it merely because another option would have been more beneficial. The notifications under Section 2(2) to declare the C-K-S (NC) section as NH-179A and NH-179B, as the case may be, were issued only after due deliberation by the broad-based committee of experts, which decision is also in conformity with the guidelines contemporaneously issued by the concerned department on the same subject matter. Such a decision cannot be labelled as manifestly arbitrary, irrational or taken in undue haste as such. As a result, it was not open to the High Court to interfere with the change so articulated in the meeting held on 19.1.2018 or the notifications issued under Section 2(2) of the 1956 Act declaring C-K-S (NC) as a national highway (i.e. NH-179A and NH-179B). The declaration of a highway being a national highway is within the exclusive domain of the Central Government in terms of Section 2(2) of the 1956 Act. As the decision regarding change of stretch/section has been taken by the concerned department of the Central Government itself and the approved Project (Bharatmala Pariyojna - Phase I) also recognises that such change in the form of substitution/replacement of the stretch/section can

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A be done by the Ministry upto 15% length of 24,800 kms., so long as it does not entail in incurring of additional costs, it becomes integral part of the originally approved project (for Phase I) for all purposes. In the present case, the costs for construction of C-K-S (NC) were bound to be less than the originally conceived C-M (EC), as the length of the road is reduced significantly. In B other words, it would operate as minor change to the original plan with deemed approval thereof and get interpolated therein. The decision taken by the Committee which culminated with the issuance of notification under Section 2(2) of the 1956 Act is in complete conformity with the governing provisions and guidelines and founded on tangible and objective facts noted in the minutes dated 19.1.2018. The Central Government had full authority to adopt such a change of stretch/section, by way of substitution/ replacement whilst ensuring that there is no need for higher budgetary allocation than envisaged in the already approved programme for Phase I. Thus, there is no legal basis to doubt the validity of the notification under Section 2(2) and ex consequenti Section 3A of the 1956 Act as well.The High Court has completely glossed over these crucial aspects and entered into the domain of sufficiency and adequacy of material including the appropriateness of the route approved by the competent authority. E Such enquiry, in exercise of judicial review is forbidden. Furthermore, the High Court, despite noting that judicial interference in acquisition matters is limited, went on to interfere in the guise of extra-ordinary circumstances obtaining in this case. On a thorough perusal, the impugned judgment does not reveal any just circumstance for invoking the judicial review jurisdiction. F Challenge to the decision of the Committee and ex consequenti of the Central Government, regarding change of section – C-M (EC) to C-K-S (NC) at the micro level for the implementation of the original Project as approved, ought not to have been doubted by the High Court. Notably, in the final conclusion and declaration G issued by the High Court, it has justly not struck down the notifications 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 and the decision regarding change of stretch/section to C-K-S (NC) being the foundation for issue of notification under Section 3A, H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 99 KRISHNAMOORTHY AND ORS.

would continue to bind all concerned and in particular, the officials A of 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 – relied on. B Somawanti & Ors. v. State of Punjab & Ors. [1963] 2 SCR 774 – followed. 5.1 PRIOR ENVIRONMENTAL/FOREST CLEARANCE: STAGE C The question as to whether the competent authority under the 1956 Act is obliged to take prior permission before issuing notification under Section 3A of the Act, must be answered primarily on the basis of the scheme of the enactments under consideration. As regards power to acquire land for the purpose of building, maintenance, management and operation of a national D highway or part thereof, the same has been bestowed on the Central Government in terms of Section 3A of the 1956 Act. There is nothing in the 1956 Act, which impels the Central Government to obtain prior environment clearance before exercise of that power and in issuing notification under Section 2(2), much less E Section 3A expressing its intention to acquire the designated land. The Central Government has framed rules in exercise of power under Section 9 of the 1956 Act, titled as the National Highways Rules, 1957. These rules are required to be followed by the executing agency. There is nothing, even in these Rules, to remotely suggest that the Central Government is obliged to obtain prior permission(s) under environmental/forest laws before issuing notification under Section 3A. The executing agency is none else, but established under the 1988 Act, namely, the NHAI. Before NHAI commences the execution of any original work, it has to abide by the norms specified in the 1957 Rules regarding preparation of estimate of work etc. The Schedule of the 1957 Rules stipulates conditions for the issue of technical approval and financial sanction to plan and estimate for execution of any original work on a national highway costing an amount not

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A exceeding Rs.50 lakhs by the executing agency concerned. Neither the 1956 Act, the Rules framed thereunder i.e. the 1957 Rules nor the 1988 Act and the Rules made thereunder have any bearing on the question under consideration. None of these enactments/rules specify any express condition requiring Central Government to obtain prior environmental/forest clearance B before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the 1956 Act to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be. Reverting to the notification issued by the MoEF C dated 14.9.2006, even this notification does not constrict the power of Central Government to issue notification under Section 2(2) or Section 3A of the 1956 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, D required to be obtained by the executing agency in terms of this notification “before commencing the actual work or executing the proposed work/project”. That would happen only after the land is vested in the NHAI or the NHAI was to be entrusted with the development work of concerned national highway by the E Central Government in exercise of powers under Section 5 of the 1956 Act read with Section 11 of the 1988 Act. The land would vest in the Central Government under the 1956 Act only after publication of declaration of acquisition under Section 3D. And until then, the question of Central Government vesting it in favour of NHAI under Section 11 of the 1988 Act would not arise. F However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act. Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for G construction of a national highway. These are one-time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide spread environmental impact due

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THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 101 KRISHNAMOORTHY AND ORS.

to carrying out activities referred to in Section 3B for assessing the worthiness of the land for using it as a national highway. Thus, the question of applying notification of 2006 at this stage does not arise, much less obligate the Central Government to follow directives thereunder. [Paras 50-52][172-A-H; 173-A-E] 5.2 Section 4 of the 1956 Act provides for vesting of the national highway in the Union and after such vesting, the primary responsibility of developing and maintaining the national highway is that of the Central Government. In terms of Section 5, it is open to the Central Government to call upon the Government of the State within which the national highway is situated or by any officer or authority subordinate to the Central Government or to the State Government. As per Section 6, the Central Government is competent to issue directions to the Government of any State for carrying out the provisions of the Act within the State. It is indisputable that NHAI is an authority appointed by the Central Government under the 1988 Act. This authority is a functional body constituted under Section 3 of the 1988 Act. Chapter III of the 1988 Act provides for the manner of dealing with the contracts to be entered into by NHAI. Sections 11 to 13 deal with the power of the Central Government to vest in or entrust to the Authority (NHAI), transfer of assets and liabilities of the Central Government to the Authority (NHAI) and the compulsory acquisition of land for the Authority. Chapter IV of the 1988 Act, in particular, Section 16 thereof, deals with the functions of the Authority (NHAI). On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The competent authority in the former, may be satisfied that the acquisition of land in question is for public

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A purpose, but if the competent authority under the latter legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/ permission can be granted after the public hearing. The satisfaction regarding public interests or necessity to acquire the land in question for public purpose for construction of a new national highway, is a matter which needs to be considered by the competent authority during the public hearing under Section 3C 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 of guidelines/directives issued by the Central Government in exercise of its statutory powers. These directions need to be adhered by the executing agency (NHAI) whilst undertaking the work in furtherance of the approved project. To put it differently, it is incomprehensible that the stated 2006 notification obliges the Central Government to take prior permission even before the stage of “planning” and “finalisation of the project(s)” such as in terms of the minutes dated 19.1.2018 followed by notifications under Sections 2(2) and 3A of the 1956 Act, as the case may be. The activities required to be undertaken in furtherance of notification under Section 3A of the 1956 Act, referred to in Section 3B of the same Act are only to explore the H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 103 KRISHNAMOORTHY AND ORS.

feasibility and viability of the stretch/section to be used as a A national highway and no further. These activities are outside the purview of notification of 2006. [Paras 60, 61][187-E-H; 188-A] 5.4 The prior environmental clearance in terms of 2006 notification issued under Section 3 of the Environment (Protection) Act, 1986 Act read with Rule 5 of the Environment B (Protection) Rules, 1986, is required to be taken before commencement of the “actual construction or building work” of the national highway by the executing agency (NHAI). That will happen only after the acquisition proceedings are taken to its logical end until the land finally vests in the NHAI or is entrusted to it by the Central Government for building/management of the C national highway. Applying the tenet underlying this notification, it is amply clear that before the process of acquisition of land is ripe for declaration under Section 3D of the 1956 Act, it would be open to the executing agency (NHAI) to make an application to the competent authority for environmental clearance. That D process can be commenced parallelly or alongside the acquisition process after a preliminary notification under Section 3A of the 1956 Act, for acquisition is issued. As in this case, after notification under Section 3A of the 1956 Act came to be issued, NHAI must have, and in fact has, moved into action by making application to the competent authorities under the environmental laws, as well as, forest laws to accord necessary permissions. Considering the provisions of the 1956 Act and the 1988 Act, NHAI can take over the work of development and maintenance of the concerned national highway only if the notified land is vested in it or when the same is entrusted to it by the Central Government. From the scheme of the enactments in question, as soon as notification under Section 3A is issued, it is open to the Central Government to issue direction/notification in exercise of power under Section 5 of the 1956 Act read with Section 11 of the 1988 Act so as to entrust the development of the proposed national highway to NHAI. Upon such entrustment, NHAI assumes the role of an executing agency and only thenceforth can move into action to apply for requisite permissions/clearances under the environmental/forest laws including as provided in terms of

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A notification/Office Memorandum dated 14.9.2006 and 7.10.2014 respectively. It is not in dispute that environmental/forest clearance is always site specific and, therefore, until the site is identified for construction of national highways manifested vide Section 3A notification, the question of making any application for permission under the environmental/forest laws would not arise, as predicated in Office Memorandum dated 7.10.2014. The site is identified only in reference to the notification under Section 3A of the 1956 Act, giving description of the land which is proposed to be acquired for public purpose of building, maintenance, management or operation of the national highway or 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 would arise only if finally, the land in question (site specific) is to be notified under Section 3D, as being acquired for the purposes of building, maintenance, management or operation of the national highway or part thereof. Such interpretation would further the cause and objective of environment and forest laws, as also not impede the timeline specified for building, maintenance, management or operation of the national highway or part thereof, which undeniably is a public purpose and of national importance. This would also assuage the concerns of the land owners that even if eventually no environment permission or forest clearance is accorded, the land cannot be reverted to the original owner as it had de jure vested in the Central Government upon issue of notification under Section 3D of the 1956 Act and no power is bestowed on the Central Government under this Act to withdraw from acquisition. This Court is conscious of the fact, as has been rightly argued by the appellants-authorities, that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect. It is possible that whilst pursuing the proposal for environmental/forest clearance after notification under Section 3A, some time may be lost, even though the process under the 1956 Act for acquisition

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of the land had become ripe for issue of declaration of acquisition under Section 3D. There is no express provision in the 1956 Act, which excludes the time spent by the Central Government or the executing agency in obtaining prior environmental clearance or permission under forest laws, as the case may be. To get over this predicament, by an interpretative process and also by invoking plenary powers of this Court under Article 142 of the Constitution, it is held that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board, shall operate as a stay by an order of the Court for the purposes of Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws. Time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court D of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/ permissions by the competent authority under the environment/ E 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/ F clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this G decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is

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A not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. Any final opinion is not being expressed in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/ B clearances given by the competent authority under the environment/forest laws, being site specific. [Para 73][194-A-G] 7.1 CONCLUSION The High Court directed the concerned revenue authorities to restore the mutation entries effected in favour of the acquiring body/NHAI merely on the basis of notification under Section 3A of the 1956 Act. By virtue of notification under Section 3A of the 1956 Act, neither the acquiring body nor the NHAI had come in possession of the concerned land nor the land had vested in them, so as to alter the mutation entry in their favour. To that extent, this Court agrees with the High Court that until the acquisition process is completed and possession of land is taken, the question of altering the mutation entry merely on the basis of notification under Section 3A of the 1956 Act cannot be countenanced and, therefore, the earlier entries ought to be restored. That direction of the High Court needs no interference. [Para 76][196-B-D] 7.2 The appeals filed by the Union of India and 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 the aforementioned 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 order is modified to the extent indicated in this judgment. The challenge to impugned notifications under Sections 2(2) and 3A of the 1956 Act, respectively, is negatived. The direction issued (in paragraph G 106 of the impugned judgment) to the concerned authorities to restore the subject mutation entries is, however, upheld. The Central Government and/or NHAI may proceed further in the matter in accordance with law for acquisition of notified lands for construction of a national highway for the proposed section/ H

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stretch - C-K-S (NC), being NH Nos. 179A and 179B. [Paras 80, A 81][197-C-F] Union of India vs. Kushala Shetty & Ors. (2011) 12 SCC 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. 1991 B Supp (2) SCC 134; Col. A.S. Sangwan vs. Union of India & 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. C 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 of the Port of Bombay (1989) 3 SCC 293 – held D inapplicable. 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; Raghbir E Singh Sehrawat v. State of Haryana & Ors. (2012) 1 SCC 792 : [2011] 14 SCR 1113; State of Uttaranchal v. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 : [2010] 1 SCR 678; Bengaluru Development Authority v. Sudhakar Hegde & Ors. 2020 SCC Online SC 328; Hanuman Laxman Aroskar v. Union of India (2019) 15 F SCC 401 : [2019] 5 SCR 916; Delhi Development Authority & Anr. Vs. Joint Action Committee, Allottee of SFS Flats & Ors. (2008) 2 SCC 672 – referred to. Diljit Singh & Ors. vs. Union of India & Ors. 2010 SCC Online P&H 11847; M. Velu v. State of Tamil Nadu G & 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 Online Madras 430; J. Parthiban & Ors. v. State of Tamil Nadu & Ors. AIR 2008 Mad 203 – referred to. H

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A Commonwealth of Massachusetts v. James G. Watt 716 F.2d.946 (1938); California v. Watt 683 F.2d 1253 (9th Cir. 1982) Roosevelt Lathan and Pearline Lathan, his wife, v. John A. Volpe, Secretary of the United States Department of Transportation 455 F.2d 1111 Arlington Coalition on Transportation v. John A. Volpe, Secretary B of Transportation 458 F.2d.1323 (1972) Jones v. District of Columbia 458 F.2d.1323 (1972) – referred to. Case Law Reference [1956] SCR 18 referred to Para 9 C [1963] 2 SCR 774 followed Para 9 (2006) 6 SCC 371 relied on Para 11 [1996] 10 Suppl. SCR 12 referred to Para 11 [2004] 3 SCR 126 referred to Para 11 D [2011] 14 SCR 1113 referred to Para 11 [2006] 3 SCR 543 relied on Para 18 (2008) 9 SCC 552 relied on Para 18 (2011) 9 SCC 1 followed Para 18 E (2011) 12 SCC 69 relied on Para 18 (2020) 2 SCC 524 held inapplicable Para 20 [1990] 1 Suppl. SCR 625 held inapplicable Para 20 [ 2010] 1 SCR 678 referred to Para 20 F [2019] 5 SCR 916 referred to Para 22 (1990) 1 SCC 109 followed Para 23 AIR 1981 SC 1545 relied on Para 23

G (1989) 3 SCC 293 held inapplicable Para 23 (2003) 7 SCC 1 relied on Para 23 1991 Supp (2) SCC 134 relied on Para 43 1994 Supp (1) SCC 160 relied on Para 43 H (2008) 2 SCC 672 referred to Para 59

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 109 KRISHNAMOORTHY AND ORS.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3976- A 77 of 2020 From the Judgment and Order dated 08.04.2019 of the High Court of Judicature at Madras in Writ Petition No. 16630 of 2018 and Writ Petition No. 16961 of 2018 With B 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, Devashish C Bharukha, 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. Anil Katiyar, K. Paari Vendhan, Prabu Ramasubramanian, Raghunatha Sethupathy, Karuppaiah Meyyappan, Hardik Gautam, Ms. Srishti Agnihotri, Ms. Tanvi N.S., Ms. Sanjana Srikumar, Ms. Anmol Gupta, S. D 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, Harish Pandey, Alok Kumar Pandey, Balaji Srinivasan, Aishwarya Choudhary, T. R. B. Sivakumar, K. Balu, B. Karunakaran, S. Gowthaman, M.P. E 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 order1 F of the High Court of Judicature at Madras2 holding the notifications issued under Section 3A(1) of the National Highways Act, 1956 3 for acquisition of specified lands for development/construction of Chennai- Krishnagiri-Salem (National Corridor) 8 Lanes new National Highway4 1 dated 8.4.2019 in W.P. Nos. 16146/2018, 16630/2018, 16961/2018, 19063/2018, G 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)” H

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A (NH-179A and NH-179B) being part of the larger project - “Bharatmala Pariyojna – Phase I5”, 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 B 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 C 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 Program6. 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 Affairs7 to be implemented over a G 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 5 for short, “the Project” 6 for short, “NHDP” 7 H for short, “the CCEA”

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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 India8, Joint Secretary of the Ministry of Road Transport & Highways 9 and CGM (T), NHAI. The members deliberated upon the micro aspects of the section delineated as Chennai-Madurai in the State of Tamil Nadu, as was done in respect of other sections of the concerned State. After D due deliberations and considering all aspects, the Committee proceeded to record its unanimous opinion in respect of stretch/section referred to in the Project – C-K-S (NC) and Chennai-Madurai (Economic Corridor)10 in the State of Tamil Nadu, as follows: - “2.4 Chennai-Krishnagiri-Salem (National Corridor) & Chennai- E Madurai (Economic Corridor): (i) The traffic from Chennai bound to Salem/Coimbatore and Pallakad (Kerala) currently use the Chennai- Krishnagiri section of the Golden Quadrilateral (Chennai-Bengaluru) and the Krishnagiri-Salem section F of the North-South corridor or the Chennai-Tindivanam- Ulundurpet section of the Chennai-Madurai Economic corridor and the Ulunderpet-Salem Inter-corridor route, thereby congesting Chennai-Krishnagiri section of Golden Quadrilateral and Chennai-Tindivanam (72,000 PCU) – Ulundurpet (47,000 PCU) section of the G Chennai-Madurai Economic Corridor. Accordingly, it was 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)” H

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A Trichy section, a crow-flight green-field alignment be developed between Chennai and Salem via Harur under National Corridor Efficiency Improvement. This will not only reduce the distance between Chennai and Salem/Coimbatore by 40 km but also diversify the traffic from the congested Chennai-Krishnagiri section of B Golden Quadrilateral and Chennai-Ulundurpet section of the Chennai-Madurai Economic Corridor. (ii) It was also observed that instead of 6/8 laning of Tovarankuruchi-Melur-Madurai section (64 km) of the Chennai-Madurai Economic Corridor, it would be better C to develop Tovarankuruchi-Natham section (27 km) as the Madurai-Natham stretch is already being developed as a feeder-route, which will reduce the Trichy-Madurai distance by 8 km and would result into diversification of traffic from Tovarankuruchi to Madurai via Natham D and via Melur.” It was also decided in the said meeting that the CCEA shall be apprised of the proposed alignment in the upcoming biannual update.

6. In the backdrop of this decision, notifications under Section 2(2) of the 1956 Act came to be issued, declaring the stretch/section E from Tambaram (Chennai) to Harur as NH-179B and from Harur to Salem as NH-179A. Consequent to such declaration, notifications under Section 3A(1) of the 1956 Act specifying the lands proposed to be acquired for the national highway(s), came to be issued for the concerned stretches/sections, which was also duly published in the local newspapers. F PROCEEDINGS BEFORE THE HIGH COURT

7. The notifications under Section 3A of the 1956 Act were challenged by the affected land owners and also by way of public interest litigation. In addition, in Writ Petition No. 21242/2018, the notifications issued under Section 2(2) of the 1956 Act declaring the concerned G stretches/sections being NH-179A and NH-179B respectively, came to be challenged.

8. The High Court considered challenges to the stated notifications on diverse counts by way of a common judgment, which is impugned in these appeals. The High Court formulated 15 questions, which arose H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 113 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

for its consideration in the context of the challenge to the respective notifications. The same read thus:- “(i) Whether the Writ Petitions are maintainable, since all that has been done by the respondents is to notify their intention to acquire the lands by publishing a notification under Section 3A(1) of the Act and the petitioners cannot be stated to be aggrieved; (ii) Whether the entire land acquisition proceedings are wholly without jurisdiction as a declaration under Section 2(2) of the Act enables only to declare an existing highway, as a National Highway and not for creating a National Highway C from a non-existing road or a plain land; (iii) Whether if the project is allowed to be implemented without prior environmental clearance, would it be against the principles of sustainable development and would violate the provisions of the Articles 19, 46, 48A and 51A of the D Constitution of India; (iv) Whether there is a need for the proposed project Highway given the statistics regarding the Passenger Car Units in the existing three highways; (v) Whether there is any hidden agenda for the proposed project and whether it was intended to benefit a chosen few; (vi) Whether Chennai-Salem proposed highway project was not even considered as a viable proposal, when lots were invited under Bharat Mala Priyojana and Chennai-Madurai proposal was found to be viable resulting in appointment of the consultant (Feedback), could there have been a change of the project after appointment of the Consultant for a different project; (vii) Whether the respondents who had originally notified the project between the Chennai and Madurai could have changed the same after the tender for awarding the consultancy contract was finalised for Chennai-Madurai Section; (viii) What would be the impact of the proposed project on Forest lands, Water Bodies, Wild Life, flora and fauna as admittedly the proposed alignment passes through all these areas;

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A (ix) Whether public hearing is a pre-requisite and should it precede any step that may be taken under the provisions of the Act; (x) Whether public consultation which includes public hearing at site should have preceded the land acquisition B proceedings or at what stage it is required to be done; (xi) If the notification as initially notified by the Central Government (Chennai-Madurai) was modified is the draft feasibility report liable to be scrapped, as the award of consultancy contract was entirely for a different project; C (xii) Whether the report prepared by the Consultant (Feedback) contains plagiarized contents, whether it was prepared in great haste, replete with errors apparent on the face of the record and should the report be held to be an outcome of non-application of mind; D (xiii) Whether guidelines prescribed in the Indian Highway Capacity Manual were ignored while preparing the draft feasibility report; (xiv) Whether on account of the reduction of the right of way in various sections including the proposed alignment, which passes through Forest area, whether the scope of the project stood totally amended and whether the respondents can proceed in the manner they propose to do. (xv) Whether the feasibility report has failed to analyse the financial consequences of the Chennai-Salem express way becoming an additional toll way or competing road to the existing toll way and thus triggering a series of contractual obligations under the present concessional agreements that would get extended by 50 to 100% of the remaining period. …..” G 9. The High Court, at the outset considered the preliminary objection regarding maintainability of writ petitions being premature, as raised by the NHAI and the Union of India. In that, the stated notifications under Section 3A(1) were only expression of intention to acquire lands and all objections thereto could be considered by the designated authority at the appropriate stage. Further, the challenge to the said notifications

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under Section 3A could be entertained by the High Court only if the competent authority had taken recourse to that option as a colourable exercise of power. And it was not open to the Court to substitute its own judgment for the judgment of the Government as to what constitutes public purpose. The High Court noted that ordinarily, the constitutional Courts would be loath to interdict any land acquisition process at the inception. However, it then went on to observe that the same is a self- imposed restriction. Whereas, the circumstances of the present case would warrant interference at the very threshold. Further, the land owners/ losers cannot be made to wait till the final outcome of the decision of the competent authority and more so, when it is a case of high-handed action of the officials. The High Court noting the decision in State of Bombay C vs. R.S. Nanji11 and Somawanti & Ors. vs. State of Punjab & Ors.12, observed that if the constitutional Court is convinced that the impugned notifications are the outcome of colourable exercise of power by the authorities concerned and the decision being replete with irrationality, unreasonableness and arbitrariness, ought to intervene at the threshold. D

10. The High Court then proceeded to examine the next point pertaining to the validity of notifications issued under Section 2(2) of the 1956 Act. The challenge on this count was founded on the argument that the pre-requisite for issuing such notifications to declare a highway as a “National Highway”, is that, it should be a pre-existing State highway. For, in terms of powers conferred in Entry 23 of List I (Union List) of E the Seventh Schedule, the Parliament is empowered to make a law limited to declaring an existing highway to be a “National Highway”. Whereas, the State legislature has exclusive power to notify a new highway, as it alone is competent to enact laws concerning roads, bridges, ferries etc. not specified in List I. The argument regarding stated notifications under F Section 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 impugned judgment. To wit, only the State Government is empowered to declare a land or a road to be a highway in terms of the Tamil Nadu Highways Act, 200113 and only such notified highway could be declared as a National Highway by the Central Government. At any rate, the Central G Government cannot declare an open land passing through the green- fields as a 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” H

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A the 1956 Act and consequently, the power under Section 3A of the 1956 Act cannot be invoked in respect of such open lands. The High Court negatived this argument of the writ petitioners by relying on the decision of the same High Court in B. Nambirajan & Ors. vs. District Collector, Kanyakumari District, Nagercoil & Ors.14, which had followed the exposition in Jayaraman & Ors. vs. State of Tamil Nadu & Ors.15. B The High Court opined that where the Central Government is satisfied that for public purpose, any land is required for building, maintenance, management or operation of a National Highway or part thereof, it may, by a notification in the official gazette in exercise of powers under Section 2(2) of the 1956 Act issue declaration and also initiate follow up action C including notification under Section 3A. In substance, it is held that the Central Government had sufficient power to acquire even open green- fields land for the purposes of construction of National Highways or part thereof. (This part of the decision has been challenged by the appellant in appeal arising out of SLP(C) No. 18586/2019). D 11. The High Court then proceeded to examine point No. (iii) as to whether prior environmental clearance was imperative before issuing notifications under Section 3A(1) and at what stage of acquisition proceedings such environmental clearance ought to be made pre- condition. For dealing with this contention, the High Court noticed decision of the Division Bench in J. Parthiban & Ors. vs. State of Tamil Nadu E & Ors.16 and of this Court in Karnataka Industrial Areas Development Board vs. C. Kenchappa & Ors.17. The decision of the same High Court in M. Velu vs. State of Tamil Nadu & Ors.18 was also noticed, as also, the notification issued by the Ministry of Environment, Forest and Climate Change19, dated 14.9.2006, to hold that prior environmental F clearance/permission ought to have been obtained before issuance of notifications under Section 3A of the 1956 Act. The High Court then noted the principles expounded by this Court concerning doctrine of “public trust” 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 2862 G 15 2014 SCCOnline Madras 430 16 AIR 2008 Mad 203 17 (2006) 6 SCC 371 18 2010 SCCOnline Madras 2736 19 for short, “the MoEF” 20 (1997) 1 SCC 388 21 H (2004) 12 SCC 118

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in Raghbir Singh Sehrawat vs. State of Haryana & Ors. 22 and the A exposition of Courts in the United States of America in Commonwealth of Massachusetts vs. James G. Watt23, California vs. Watt24, Roosevelt Lathan and Pearline Lathan, his wife, vs. John A. Volpe, Secretary of the United States Department of Transportation 25, Arlington Coalition on Transportation vs. John A. Volpe, Secretary of B Transportation26 and Jones vs. District of Columbia27, and concluded that being a welfare State, the authorities while implementing the project which, in the opinion of the Government, is in public interest, cannot turn a nelson’s eye to reality and forget that protecting agriculture is equally in public interest. It went on to observe that the interpretation of the relevant provisions in Indian context should lean towards protecting C agriculturists and for that reason, went on to observe that if the Project is allowed to be implemented without prior environmental clearance, it would be a gross violation of the principle of sustainable development and in particular, provisions of Articles 19, 21, 46, 48A and 51A of the Constitution of India. D

12. The High Court then proceeded to consider point Nos. (iv) to (vi) together. It noted the contention of the writ petitioners that until the Project (Bharatmala Pariyojna – Phase I) was reviewed on 24.1.2018 and when the Minister of State – MoRTH replied to questions in Rajya Sabha about new highway projects under various stages including Detailed Project Reports28 stage on 5.3.2018, there was no inkling about the proposed 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 basis before the members of the Committee on 19.1.2018, to abruptly change the Chennai-Madurai (Economic Corridor) - C-M (EC) project to one as Chennai-Krishnagiri-Salem (National Corridor Efficiency Improvement) – C-K-S (NC) or as green-field expressways. No document/material had been produced before the Court in support of the Minutes recorded on 19.1.2018 - to justify C-K-S (NC) section. If 22 (2012) 1 SCC 792 G 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” H

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A the authorities intended to make such a change, they ought to have obtained prior approval/clearance from the Public Investment Board29 and in-principle approval of the Ministry of Finance and the Comptroller and Auditor General30 in that regard. No audit of project formulation by CAG was done nor the alignment report and approval given was as per the DPR guidelines of the MoRTH. Further, the Consultant – M/s. B Feedback Infra Pvt. Ltd. appointed for the original Project concerning section C-M (EC), was continued for the changed stretch/section without following the tendering process as predicated by the MoRTH and the Post Award Portal Guidelines for procurement, preparation, review and approval of DPR etc. The High Court noted that the appellants herein C (State authorities/NHAI/Union of India) had supported their action regarding the changed/modified project on three grounds – (i) existing capacity is fully utilised; (ii) there will be economic development in general; and (iii) there will be reduction in carbon foot print, as the length of subject stretch/section was at least 40 kms. less than the corresponding section falling under C-M (EC), as originally conceived. The High Court D noted that the Central Government had not filed any counter affidavit on the subject matter. The counter affidavit was filed by the NHAI, which did not touch upon the factual matrix pointed out by the writ petitioners regarding the circumstances in which the stretch/section was changed to C-K-S (NC) except asserting that it was a policy decision. The High E Court was conscious of the fact that the issues raised by the writ petitioners were quasi-technical issues, but clarified that as to whether the stretch-section was part of the Project (Bharatmala Pariyojna – Phase I) at the first instance, is a question of fact, which ought to have been answered and clarified by MoRTH. The Court, after referring to the original Project, noted that C-K-S (NC) section does not find place therein. Instead, C-M (EC) had been mentioned at S.No.19 of the original Project. Further, there was nothing on record to indicate that the changed stretch/section had been approved by the Cabinet Committee or the Public Private Partnership Appraisal Committee31, as mandated in the guidelines issued by the CAG. Thus, the High Court held that the decision was taken by the Committee in hot haste and without following necessary formalities and standard operating procedures specified in that regard. As a matter of fact, no proper scrutiny of all relevant facts and more particularly, possible alternatives had been explored before a final decision 29 For short, “the PIB” 30 for short, “the CAG” H 31 for short, “the PPPAC”

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 119 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

to implement such a major project was taken (costing around Rs.10,000 A crores, covering around 277 kms. and construction of a new National Highway traversing through green-fields). At the same time, the High Court rejected the allegation about the hidden agenda for such a change of stretch/section from C-M (EC) to C-K-S (NC). The High Court found that the allegations regarding hidden agenda to favour a private limited company remained unsubstantiated.

13. The High Court then proceeded to examine point No. (vii) regarding the continuation and appointment of the Consultant in respect of the changed stretch/section i.e. C-K-S (NC), although its initial appointment was in respect of the stretch/section originally conceived i.e. C-M (EC). The High Court recorded disparaging and condemnatory remarks in reference to continuation of the same Consultant for the changed stretch/section without following proper procedure. The High Court also accepted the criticism regarding Draft Feasibility Report32 prepared by the Consultant being bereft of any credible material/ information, but was replete with mechanical reproduction of contents resembling with some other projects. The argument of the Consultant that no other bidder (Consultant) had challenged its appointment in respect of changed stretch/section - C-K-S (NC), came to be rejected. The High Court proceeded to hold that the authorities ought to have invited fresh tenders and offers from the qualified Consultants as per the standard operating procedure and ought not to have continued with the same E Consultant for the entirely different stretch/section – C-K-S (NC).

14. The High Court then considered point No. (viii) regarding impact assessment and in-principle approval to study the impact of the Project on flora and fauna. The High Court noticed that the changed stretch/section was to pass through the forest areas to the extent of 10 F kms., yet no prior permission of the Forest Department had been obtained. Further, no impact assessment analysis was done before taking decision to change the project to C-K-S (NC). Also that in the name of the subject project, 100 trees were unauthorizedly felled from the lands in close proximity with the proposed alignment in the guise of allowing some G persons to remove the damaged trees. The Court also took into account the inaction of the authorities in some other locations in the neighbourhood, failing to remove encroachments in the forest area and the firm stand of the Forest Department for denying permission to erect even a small 32 For short, “the DFR” H

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A bridge to facilitate the villagers to cross Moiyar river to reach their residence. Taking judicial notice of that fact, the High Court proceeded to assume that it was most unlikely that permission will be given for construction of a 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 a report which was prepared B mechanically on the basis of geo-mapping without physical verification on site. Similarly, the proposed alignment was without collecting data of Passenger Carrying Units33 or ascertaining the correctness of data (referred to in the report) collated from the toll plazas. At the end, the High Court noted that the procedure adopted by the NHAI in asking the C Consultant to carry out the work, which was never the scope of the bid document, by an oral arrangement, was unacceptable. It then observed that if the Central Government was still of the opinion that the subject project concerning section – C-K-S (NC) is required to be implemented, then it must comply with the required formalities of obtaining requisite environmental and forest clearances/permissions, after undertaking D comprehensive study of the environmental impact.

15. The High Court then proceeded to examine point Nos. (ix) and (x) together and concluded that a fair procedure ought to be adopted and the fact that there would be delay if such procedure is followed, will be of no avail. Prior environmental clearance must be obtained after a E public hearing is held, before the project is implemented. The High Court then 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 view that the project highway as conceived and sought to be implemented is vitiated on several grounds as mentioned above and consequently, the notifications issued for acquisition of lands under Section 3A(1) are liable to be quashed.

102. In the result, the Writ Petitions are allowed and the land acquisition proceedings are quashed.

103. In view of the above, Crl.O.P. No. 22714 of 2018 is closed. Consequently, connected Miscellaneous Petitions are closed. There shall be no order as to costs. 33 H for short, “the PCUs”

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 121 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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

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

106. We do not agree with the said stand taken by the learned Government Pleader at that juncture itself. Now that we had allowed the writ petitions, all the entries in the revenue records, which stood mutated, shall be reversed in the names of the respective land owners and fresh orders be D issued and communicated to the respective land owners within two weeks thereafter. This direction shall be complied with within a period of eight weeks from the date of receipt of a copy of this judgment.” (emphasis supplied) E

16. The High Court in the impugned judgment also took note of other decisions34, presumably referred to by the parties during argument before it. However, in the impugned judgment, no analysis thereof is found. 34 F 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) 3 SCC 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; G 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 SFS Flats & Ors., (2008) 2 SCC 672; H

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A THE CHALLENGE

17. Aggrieved, three sets of appeals have been filed before this Court. First, by the NHAI, second by the Union of India and third, by the land owner(s) in reference to rejection of challenge to notifications under Section 2(2) of the 1956 Act. The grounds urged in the concerned B appeals are more or less recapitulation of the points canvassed before the High Court and exhaustively dealt with in the impugned judgment. Besides the oral arguments, the concerned parties have filed written submissions as per the liberty given to them by this Court upon conclusion of the oral arguments through video conferencing (virtual Court hearing). C 18. The arguments were opened by Mr. Tushar Mehta, learned Solicitor General of India. The gist of the points urged by him can be stated thus. Writ Petitions filed to assail the notifications under Section 3A of the 1956 Act including Section 2(2) were premature. In that, the question whether the acquisition is for public purpose is a matter to be dealt with by the appropriate authority in light of the objections filed by the aggrieved persons in response to the notifications under Section 3A(1) of the 1956 Act, which is merely an expression of intent to acquire the specified land for construction of national highway under the Project (Bharatmala Pariyojna – Phase I). He would contend that the High Court also committed manifest error in concluding that such notifications under 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) 7 SCC 129; K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka, (2011) 9 SCC 1; F Union 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 of Maharashtra & Ors., AIR 1989 Bom 156; O. Fernandes vs. Tamil Nadu Pollution Control Board & Ors., (2005) 1 L.W. 13; G George Joseph and Ors. vs. Union of India, 2008 (2) KLJ 196; New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association vs. Union of India & Ors., (2012) 1 MLJ 207; Madan Malji Kambli & Ors. vs. State of Goa & Ors., 2012 SCCOnline Bom 694; and Prithvi 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

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 123 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

environmental and forest clearances/permissions are granted in that behalf. The High Court has misread and misapplied the decision of this Court in support of that view. It is urged that the acquisition process initiated under the 1956 Act, which is a self-contained code, is completely independent and cannot be fusioned with the formalities and procedure to be complied with before commencement of the Project construction work, in reference to the environment or forest laws. The appellants – NHAI and MoEF had unambiguously stated before the High Court and reiterate before this Court that all formalities will be complied with in its letter and spirit before the construction work of the stated national highway actually commences. It is essential to authoritatively decide as to at what stage the appellant – NHAI is required to obtain the environmental or forest clearance as per the extant laws including the notification and Office Memorandum dated 14.9.2006 and 7.10.2014, respectively, of the MoEF. The applicable notification/Office Memorandum explicitly excludes the need for a prior environmental clearance for “securing the land”. It is urged that prior environmental clearances have been ordained before any construction work of specified project including for preparation of land by the project management (except for securing the land) is started on the project. Indeed, before commencement of such work or preparation, as the case may be, the concerned agency is obliged to make application in Form-1. That may be possible only after identification of prospective site for the Project and/or activities to which the application relates. The identification of site for the construction of national highways becomes possible only upon completing the process of public hearing consequent to publication under Section 3A of the 1956 Act. It is then urged that the High Court justly rejected the argument of the land owners that open lands cannot be acquired for construction of national highways or that national highway can be declared only in reference to an existing highway. He submits that there is ample power bestowed in the appellant – NHAI and the Central Government in particular, in terms of the 1956 Act and the National Highway Authority of India Act, 198835 to acquire open land for the purposes of construction of national highway, as may be declared under Section 2(2) of the 1956 Act. These legislations have been enacted well within the legislative competence of the Parliament being subject specified in List I of the Seventh Schedule. Similarly, the argument of notifications being in violation of constitutional provisions relating to executive powers is misplaced. On the other hand, the 35 for short, “the 1988 Act” H

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A notifications issued under Section 2(2) of the 1956 Act and the follow up notifications issued under Section 3A of the same Act, proposing to acquire the subject lands, were fully compliant of the legal requirements. No violation of any nature can be attributed to the issuance of these notifications including that the same were not in good faith. He submits that the question whether the subject land referred to in the notifications under Section 3A(1) of the 1956 Act is required for public purpose or otherwise can be and ought to be answered in reference to the objections taken by the land owners/aggrieved persons during public hearing. The authority considering such objection can also consider the question about the viability and feasibility of the Project. He would contend that the land acquisition proceedings under the 1956 Act and grant of environmental clearance are two different and distinct processes. They operate in different fields. The High Court, therefore, completely misled itself in confusing the issue by holding that prior environmental and forest clearances ought to be obtained even before issuing notifications under Section 3A of the 1956 Act. The High Court also completely glossed over the mandate of Section 3D of the 1956 Act, predicating that the final declaration thereunder ought to be issued within one year from the date of publication of notifications under Section 3A, else the commenced process would be deemed to have lapsed. The provisions such as Sections 3A to 3J of the 1956 Act, have been enacted by way of amendment Act E of 1997 to ensure speedy conclusion of acquisition proceedings and prompt execution of highway projects. By interpretative process, the High Court has in fact, created an artificial barrier for issue of Section 3D notification and has re-written the amended provisions of 1997. He would submit that the principle expounded by the American Courts have no bearing in the context of the express statutory scheme propounded under the 1956 Act and the 1988 Act or for that matter, under the environmental and forest laws including the notifications issued thereunder. The latter enactments (environmental/forest laws) would get triggered when the project work was to actually commence. In other words, execution of the Project could commence only after such clearances are in place. It is contended that the High Court proceeded to examine the need and viability of proposed C-K-S (NC) sector on erroneous basis and on assumptions. It proceeded to examine the comparative merits of different routes, which cannot be countenanced as it is beyond the scope of judicial review. As a matter of fact, the High Court has interfered with the policy decision of the competent authority H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 125 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(the MoRTH) dated 19.1.2018, completely overlooking the discretion bestowed in the Ministry vide Project (Bharatmala Pariyojna – Phase I) itself, empowering it to replace/substitute upto 15% length of 24,800 kms. of Phase-I of the Project by other suitable stretches/sections. The sector of C-K-S (NC) was finalized by the Committee in the meeting dated 19.1.2018 for the reasons recorded in the minutes, including the general principles governing development of national highways and also reckoned in the Project. It is contended that the High Court ought not to have interfered with the judicious and well-considered decision taken by the competent authority. He would contend that even if the section/ project finalised vide minutes dated 19.1.2018 was not referred to in the original Project, however, as the decision was taken by the competent authority about the replacement/substitution to the extent permissible, it forms part of Phase I of Bharatmala Pariyojna (the Project) - in place of the originally envisaged sector of C-M (EC). The change was for the betterment of the area covered under the Project and would pay dividends in posterity at the micro levels in different ways of providing access and new opportunities and strengthening the national road network at the macro level. As regards the observation made in reference to the Consultant appointed for the subject Project, it is urged that the same was completely misplaced and in any case, extraneous for answering the challenge regarding validity of notifications under Section 3A(1) of the 1956 Act or for that matter, Section 2(2) of the same Act issued by the competent authority. As a matter of fact, no relief was claimed in the concerned writ petitions filed before the High Court against the Consultant nor its appointment order issued by the competent authority was under challenge. The Consultant was duly appointed for the stated Project to be paid on per kilometre basis, vide contract dated 22.2.2018. F Indisputably, no financial loss will be caused to public exchequer as the Consultant 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, it would entail in less consultant fees than was envisaged for the originally conceived section for the Project. In substance, it is urged that the High G Court was persuaded to undertake a roving inquiry despite the official record indicating that necessary formalities and procedure has been complied with before declaration of C-K-S (NC) section as replacement/ substitution of the originally conceived section, and duly approved by the competent authority. The High Court should have dismissed the writ H

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A petitions. In support of his submissions, he has relied on the decisions of this 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 invited our attention to decisions of Punjab & Haryana High Court in Diljit Singh & Ors. vs. Union of India & Ors.37 and of the Madras High B Court in B. Nambirajan (supra) and Jayaraman (supra).

19Copy pinpoint19. Mr. S. Nagamuthu, learned senior counsel appearing for the land owners/aggrieved persons, who had filed writ petitions before the High Court, urged that notifications under Section 3A(1) of the 1956 Act issued without obtaining prior environmental clearance from the MoEF C in terms of the notification dated 14.9.2006 are void and bad in law. Moreover, as per the recommendation of the Environment Assessment Committee38, no environment clearance could be given to the subject section (Chennai-Salem) of the Project and in absence thereof, it must follow that no construction will be permissible on the specified lands and thus it cannot be used for the stated public purpose within the meaning of Section 3A(1) of the 1956 Act. On this count alone, no interference with the decision of the High Court in setting aside the notifications under Section 3A of the 1956 Act is necessary. According to him, the High Court has justly interpreted the sweep of notification dated 14.9.2006, which has a statutory force and mandates that prior clearance/permission ought to be taken before the commencement of acquisition process including issuing notifications under Section 3A(1) of the 1956 Act. In that, the satisfaction reached by the competent authority that the land referred to in such notification is required for public purpose, could be taken forward only upon grant of environmental/forest clearances. He F has placed reliance on the exposition of this Court in Karnataka Industrial Areas Development Board (supra) and of the High Court of Judicature at Madras in M. Velu (supra), to buttress his submission. He then submits that the competent authority under the 1956 Act and the 1988 Act are different. Thus, the application for environmental clearance cannot be pursued by the competent authority under the 1956 G Act, as in law, such application ought to be made by the competent authority under the 1988 Act before the commencement of the acquisition process. In other words, the competent authority under the 1956 Act 36 (2006) 4 SCC 162 37 2010 SCC Online P&H 11847 38 H For short, “the EAC”

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 127 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

cannot hasten issuance of notification under Section 3A(1) in anticipation. A He submits that harmonious reading of the provisions of the 1956 Act and the 1988 Act go to show that the competent authority under the 1988 Act (NHAI) is expected to initiate the process by undertaking survey of the land and identifying the land under Section 16(2) of the 1988 Act; and then submit application for environment/forest clearance. B Further, only after securing essential permission(s) therefor, the notification under Section 3A(1) of the 1956 Act could be issued by the Central Government to commence the acquisition process of such identified land. This course is not only desirable, but should be made compulsory by interpretative process - in absence of any provision in the 1956 Act authorising the Central Government to return the unutilised land (due to C refusal of essential clearances), to the erstwhile owner (unlike the provisions in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 201339). He would submit that the role of the MoRTH, the MoEF and the NHAI is well defined. In the alternative, it is submitted, that the authority under the D 1956 Act may be permitted to continue with the acquisition process until the stage of notification under Section 3D(1) of the 1956 Act and to issue such notification only upon grant of permission/clearance by the competent authority under the environment and forest laws.This is because upon issuance of notification under Section 3D(1) of the 1956 Act, the land would vest absolutely in the Central Government free from all encumbrances. For that purpose, the expression “shall” occurring in Section 3D(1) of the 1956 Act be construed as “may” and by interpretative process, liberal meaning be ascribed to the proviso in Section 3D(3) of the 1956 Act. Such approach would preserve the interest of the land owners, as well as, effectuate the public purpose underlying the acquisition process.

20Copy pinpoint20. Even Mr. Sanjay Parikh, learned senior counsel espousing the cause of the land owners and aggrieved persons would submit that the conclusion reached by the High Court in the impugned judgment that the acquisition process in question was vitiated because of the reasons noted in the judgment, needs no interference. He would submit that the subject section i.e. C-K-S (NC) was not part of the original Project (Bharatmala Pariyojna - Phase I) and no tangible reason is forthcoming as to why such a change was approved by the competent authority, especially when

39 for short, the “the 2013 Act” H