Supreme Court Upholds Land Acquisition Notifications For Chennai-Salem 8 Lane Expressway

The Supreme Court on Tuesday upheld the notifications issued for acquiring land for the Chennai-Salem eight-lane greenfield expressway project.

Partly allowing the appeals of the Union of India and the National Highways Authority of India, the top court reversed the Madras High Court judgment to the extent it quashed the land acquisition notifications.

The Court said that it has negatived the challenge against the notifications issued under the National Highways Act.

However, the top court has maintained the directions in paragraph 106 of the High Court judgment regarding the reversal of entries in the revenue records which stood mutated following the acquisition notification. Fresh notification proceedings need to be issued with respect to the acquisition of those lands.

A bench comprising Justices A M Khanwilkar, BR Gavai and Krishna Murari delivered the judgment in the appeals filed by Central Government and the National Highway Authority of India(NHAI) against the Madras High Court judgment which quashed the notifications for acquisition of land for the highway project.

The prime issue in the case was whether prior environmental clearance was necessary before acquiring lands for the highway project.

Prior Environmental Clearance not needed for land acquisition notification

The Supreme Court observed that it is not necessary for the Central Government or the National Highway Authority of India to apply for prior environmental/forest clearances or permissions at the stage of planning or taking an in­ principle decision to formalize the project of constructing a new national highway manifested in notification under Section 2(2), including until the stage of issuing notification under Section 3A of the National Highways Act.

The prior environmental clearance is required to be taken before commencement of the "actual construction or building work" of the national highway by the executing agency (NHAI), the bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari observed while allowing the appeal filed against the Madras High Court judgment which had quashed the notifications issued for acquiring land for the Chennai-Salem eight-lane greenfield expressway project.

One of the issues considered by the High Court in this case was whether 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 pre­condition? Answering it against NHAI, the High Court had held that the prior environmental clearance/ permission ought to have been obtained before issuance of notifications under Section 3A of the 1956 Act. Before the Apex Court, Centre contended that the High Court committed manifest error in concluding that such notifications under Section 3A of the 1956 Act could be issued only after prior environmental and forest clearances/permissions are granted in that behalf.

The bench noticed that there is nothing in the NH Act or Rules 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 court further noted that, as per 2006 EIA notification, the environmental/forest clearance 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. The bench observed:

"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 104 construction of a national highway. These are one­time 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."

"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 109 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 court further observed that the EIA notification of 2006 is in the nature of guidelines/directives issued by the Central Government in exercise of its statutory powers. It said:

"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 court said that the role of the competent authority under the environmental law or forest law is limited to scrutiny of the formalized project brought before it prior to its implementation by the executing agency, to ascertain whether it may have any environmental impact and if so, to impose such conditions by way of remedial steps to minimise and mitigate the impact while keeping in mind the need to fulfil the State's obligation of sustainable development. Disagreeing with the High Court view, the bench observed:

"Considering the interplay of provisions empowering the Central Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act."

While concluding the judgment, the bench clarified that it has not considered the correctness and validity of the permissions/clearances accorded by the competent authorities under the environment and forest laws, in this case.

Environmental Clearance needed before declaration of acquisition under Section 3D

While the Court held the prior EC is not needed at the stage of notifying the land for acquisition under Section 3A of the National Highways Act, it clarified that environmental clearance is necessary before issuing declaration of acquisition under Section 3D.

Once a declaration under Section 3D is given, the land will vest with the Central Government.

The Court also held that the time required for getting EC can be excluded from the computation of time period under Section 3D(3), which says that if the declaration is not made within one year of the notification, the acquisition proceedings will lapse.

For more reading, refer this report.

Environmental Clearance Necessary Before Making Declaration Of Land Acquisition Under Section 3D Of National Highways Act : Supreme Court

High Court judgment

On April 8, 2019, the Madras High Court quashed the acquisition proceedings for the 277 kilometer proposed highway passing through agricultural as well as reserve forest land.

A division bench of Justices T S Sivagnanam and V Bhavani Subbaroyan of the High Court held that that prior environmental clearance under the Environment Protection Act 1986 was necessary before acquiring land invoking the powers under the National Highways Act. The bench rejected the argument advanced by the Centre, Tamil Nadu Govt and National Highway Authority of India that environmental clearance was not needed at the time of "securing" the land for highway construction and that it was needed only at the time of actual laying of the road. The Court termed this argument as "putting the cart before the horse".

"Considering the peculiar facts of the instant case, magnitude of the project, the proposed alignment, which admittedly cuts across the Forest land, water bodies, big and small fertile agricultural lands etc., it is necessary that prior environmental clearance is required before the respondents proceed further, pursuant to the notification under Section 3A(1) of the Act", the HC said.

'Prior Environmental Clearance Necessary For NH Land Acquisition', Madras HC Quashes Acquisition For Chennai-Salem 8 Lane Highway [Read Judgment]

The conclusion of the Court was based on the fact that large tracts of agricultural lands and forest lands were proposed to be acquired for the project. The Court said that the issue has to be approached applying the "public trust doctrine", as per which the State holds public land and resources at trust for benefit of people. The Court put particular emphasis on the fact that the acquisition will impact large tracts of fertile farm lands.

The Court also noticed that the respondent had not disclosed the proposed plans for rehabilitation and resettlement of people who will get displaced.

"The counter affidavits filed by the respondents do not disclose as to what are the plans which are in the pipeline for rehabilitation and resettlement of the persons, who are likely to be displaced. The only stand taken by the respondents is by contending that the time has not come to consider those aspects. We are not convinced with these answers given by the respondents".

The High Court also noted that the proposed Green Field Highway with closed toll policy system is difficult to access for a common man.The NHAI stated that the road is an access control road to mean that the road is accessible only at designated spots which appears to be in four to six places between Chennai and Salem.

"it is hard to believe that a small businessman in Vandavasi or Polur would stand benefited on account of this express way, where the traffic is zipping in speeds over 120 kms and to reach the small towns and villages, one has to travel several kilometres to take a spur and drive back to these small towns. Therefore, the projection made by NHAI, as to the benefits of the project highway appears to be illusory".

The High Court also found fault with the tender process followed by NHAI for selecting the project consultant, which prepared the feasibility report and detailed project report. The tender was floated for another project, Chennai-Trichy-Madurai and M/s Feed Back Infra was selected. But this consultant was given the project work of Chennai-Salem project, without any written orders.

From a consideration of the report and other factors, the Court noted that the project report was executed in "great haste". The project report was found to have followed "cut-paste" approach, as there were references to Bangalore and a town in China in the report.

Click here to read/download Supreme Court judgment