Supreme Court Issues Notice In Plea Challenging Dwarka Flyover Construction

A Division Bench comprising Justice DY Chandrachud and Justice MR Shah issued the direction while hearing a plea filed by 2 group housing societies comprising 280 families and 6 individual residents of Dwarka seeking direction to restrain NHAI from proceeding with any construction activity at DDA Road No. 226, a residential road, without placing on the Court's record the permissions or approvals obtained for it.

"They are going ahead with construction day and night, creating havoc in the area!" Advocate Prashant Bhushan appearing for the petitioner submitted.

The Bench was initially not inclined to entertain the matter since the case is pending before the High Court.

However, Mr Bhushan apprised the court that the construction is going on even now, without any permission for tree cutting

"High Court said no clearance is required as an existing road has been made into a National highway. Without any valid permission for tree cutting, ,public consultation or environmental clearance they are going with construction. It's appalling what is happening!" Mr Bhushan remarked.

"They are going ahead with the project, heavy machinery has been deployed and working there day and night"

"We may have to look at it" Justice Chandrachud said.

He stated that rampant construction is going on without any clearance, a highway being made in the middle of a crowded residential area where there are 6 six schools.

The Bench noted that according to Mr Bhushan, the High Court's order declined interim relief for construction of highway project through Dwarka ignoring the following:

• By notification dated 23 June 2017, the Ministry of Road Transport and Highways of Union Government issued notification of a new Highway.

• As a consequence, the EIA Notification dated 3rd Sept 2006 stands attracted having regard to Entry 7F of the schedule which speaks of New national highways.

• The feasibility report also clearly indicates the project in question was greenfield project.

• In the earlier order of High Court dated 18th December 2020 there was a specific direction that no removal of trees would take place without the approval of competent authorities under the Delhi Preservation of Trees Act 1994 and though permission has admittedly lapsed, High Court has refused to grant relief.

The present special leave petition has been filed against the final order dated 30th July, 2021 passed by the Delhi High Court refusing to direct NHAI to place on record all mandatory permissions/ approvals obtained by it for carrying out construction on a residential road.

The petitioner is aggrieved by the Delhi High Court's acceptance of "NHAI's baseless contention" that the NH- 248BB / Dwarka Expressway is not a "new national highway" and is thus exempted from the requirement of obtaining mandatory prior Environmental Clearance under the Environmental Impact Assessment (EIA) Notification, 2006.

"This is despite the fact that the Draft Feasibility Report prepared by NHAI, as uploaded on its website classified Dwarka Expressway NH-248BB as a new / greenfield project" the plea has said.

The petitioner has challenged the High Court's finding that Environmental Clearance is not required for Dwarka Expressway on the ground that the said highway was already existing and was just declared as a National Highway under Section 2(2) of the National Highways Act 1956 through Gazette Notification dated 23.06.2017.

According to the petitioner, the impugned order is in contravention of Supreme Court's judgement in case of Project Director, Project Implementation Unit v. P.V. Krishnamoorthy, whereby the court held that though environmental clearance was not required by the central government before expressing an intention to acquire any land, environmental clearance is mandatorily required before commencing actual work or executing the proposed project.

Further, the petitioner argued that through the High Court has given NHAI carte blanche to continue its activities in furtherance of the construction of the flyover despite it being apparent from the record that NHAI never had any prior mandatory approvals or permissions, including valid and subsisting tree-cutting permissions and consent orders under the Air Act 1981 and the Water Act 1974.

According to the petitioner, the High Court in the impugned order has not only misdirected itself on the issue of the requirement of Environmental Clearance, but has also failed to appreciate the full extent of the unauthorised and illegal activities undertaken by NHAI in the garb of developing projects of 'national importance'.

The Petitioners have argued that the construction on the said DDA Road will inevitably result in an exponential increase in traffic, increase in air and noise pollution; create traffic bottlenecks, and increase road safety issues for all residents of Dwarka, while significantly reducing the tree cover in the nearby area.

The present petition has been filed by Advocate Anand Verma.

Case Title: Rao CGHS vs National Highway Authorities of India & Ors.

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