The Project Director, Project Implementation Unit vs P.V. Krishnamoorthy and Ors.

Constitution of India – Union List, Entry 23; State List, Entry

13 – Held: Fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject “roads”, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning “national highways”. National Highways Act, 1956 – Scheme of – ss.2, 3, 3A-3J, 4-6, 9 – Discussed.

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

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

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

National Highways Act, 1956 – ss.3A, 3D(3) – Declaration u/s.3D not issued within one year from the date of publication of the notification u/s.3A – Deemed lapse of notification u/s.3A predicated in s.3D(3) – Held: It is possible that whilst pursuing the proposal for environmental/forest clearance after notification u/s.3A, some time may be lost, even though the process under the 1956 Act for acquisition of the land had become ripe for issue of declaration of acquisition u/s.3D – To get over this predicament, the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board v. C. Kenchappa & Ors. reported as [1996]

10 Suppl. SCR 12 shall operate as a stay by an order of the Court for purposes of s.3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of s.3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws – Constitution of India – Art.142.

Disposing of the appeals, the Court

HELD: 1.1 LEGISLATIVE COMPETENCE OF THE

UNION

This Court shall first deal with the legislative power of the Union. Is it limited to making law in exercise of powers ascribable to Entry 23 of List I in respect of an existing highway to be declared as a national highway, as is contended? The legislative power of the Parliament can be traced to Article 246. Indisputably, law made by the Parliament in the present case is the 1956 Act and the 1988 Act in reference to Entry 23 of List I of the Seventh Schedule. If the stated law made by the Parliament is ascribable to Entry 23 of List I of the Seventh Schedule, the Parliament has the exclusive power to make law on that subject and for matters connected therewith. The fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject “roads”, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning “national highways”. It is well-established position that if the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the State list, per se, would not render it invalid. The doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation. It may be useful to advert to Article 248 of the Constitution, bestowing legislative powers on the Parliament to make a law with respect to any matter not enumerated in the Concurrent List or the State 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 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 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 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 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 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]

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 that the Parliament has entrusted the power in the Central 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 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 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 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. 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 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. 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 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 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 socioeconomic 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 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.

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 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 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 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 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 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 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 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 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 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 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 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. 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. 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 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, would continue to bind all concerned and in particular, the officials of NHAI being the executing agency. [Paras 42, 44-48][154-FH; 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.

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

5.1 PRIOR ENVIRONMENTAL/FOREST CLEARANCE:

STAGE

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 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 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 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 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 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, 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 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. 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 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 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 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 feasibility and viability of the stretch/section to be used as 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 (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 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 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 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 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 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/forest laws and attaining finality thereof. [Paras 70, 72][192-B-E; 193-D-H]

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

6.2 In the present case, concededly, the permissions/clearances have been issued by the concerned authorities 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 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 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/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

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

Union of India vs. Kushala Shetty & Ors. (2011) 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 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.

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

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 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 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 & 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.

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 of Transportation 458 F.2d.1323 (1972) Jones v. District of Columbia 458 F.2d.1323 (1972) – referred to.