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

In its judgment upholding notifications for land acquisition for the Chennai-Salem eight lane expressway, the Supreme Court has observed that the declaration under Section 3D of the National Highways Act 1956 regarding acquisition of notified land, can be made only after environmental/forest clearance qua the specific land is granted.

After a declaration is made under Section 3D, the lands acquired for the highway will vest completely with Central Government.

The bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari also held that for the purposes of Section 3D(3) in respect of all projects under the Act, the time spent after issue of Section 3A notification in obtaining the environmental clearance as well as for permissions under the forest laws, will be excluded.

As per Section 3D(3), if the land acquisition is not declared within one year from the notification under Section 3A, the proceedings will lapse. The Supreme Court clarified that the time required for environmental clearance can be excluded from Section 3D(3).

Sections 3A to 3J of the Act provides the procedure for acquisition of the land for the purpose of building a national highway. Section 3A provides that if the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land. 3B deals with its power to enter for survey and 3C with hearing of objections. Under Section 3D the Government has to publish a declaration that the said land should be acquired.

In Karnataka Industrial Areas Development Board vs C. Kenchappa (2006) 6 SCC 371, it was held that, before acquisition of lands for development, the consequence and adverse impact of development on environment must be properly comprehended and the lands be acquired for development that they do not gravely impair the ecology and environment. This judgment was relied by the High Court to hold that the notifications issued in the present case is bad for not obtaining prior Environmental Clearance.

In the judgment delivered on Tuesday, the court held 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.  However, the bench clarified that the dictum laid down in Karnataka Industrial Areas Development Board (supra)  must be understood to mean that the declaration under Section 3D regarding acquisition of notified land, be made only after environmental/forest clearance qua the specific land is granted. The bench observed:

"To put it differently, the necessity of prior environmental/forest clearance would arise only if finally, the land in question (site 128 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."

At this stage, the court noticed 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. The court also noted that the time spent for obtaining environmental clearance or permission under the forest laws has not been explicitly excluded from the period of one year to be reckoned under Section 3D(3) of the Act.  To get over this situation, the bench observed:

"The extension of time or so to say suspension of time is only in respect of period during which the action of the proceedings to be taken in pursuance of notification under Section 3A(1) is stayed by an order of Court. In other words, 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, we hold that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board (supra), 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. Only this approach would further the cause of environment and forest laws, as also, the need to adhere to the timeline specified under Section 3D(3) for speedy execution of the work of construction of national highway, which is also for a public purpose and of national importance. In other words, balancing of competing public interests/public purposes need to be kept in mind as being the only way forward for accomplishing the goal of sustainable development."

"In other words, 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."

In the present case, the court noted that the Environmental 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. The court, in this regard, observed:

"In terms of this decision, 133 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. We are not expressing any final opinion 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."

CASE:  Project Director, Project Implementation Unit vs.P.V. Krishnamoorthy [CIVIL APPEAL NOS. 3976­3977 OF 2020  ]
CORAM: Justices AM Khanwilkar, BR Gavai and Krishna Murari

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