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

- **Citation:** [2020] 14 S.C.R. 86
- **Court:** Supreme Court of India
- **Decided:** 2020-12-08
- **Case number:** Civil Appeal Nos. 3976-3977 of 2020
- **Bench:** A. M. Khanwilkar, B. R. Gavai, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-project-director-project-implementation-unit-v-p-v-krishnamoorthy-and-ors-34221
- **Pages:** 112

## Headnote

Constitution of India - Arts.246, 248 - Union List, Entry 23
- Declaration of open green-field lands as national highway -
Legislative competence of Parliament to enact law for -
Development/construction of Chennai-Krishnagiri-Salem (National
Corridor) [C-K-S (NC)] 8 Lanes new National Highway (NH-179A
and NH-179B) being part of the larger Project (Bharatmala
Pariyojna-Phase I) - Notifications issued u/s.2(2), 1956 Act
declaring C-K-S (NC) as a national highway stretch/section (NH179A and NH-179B) - Notifications u/s.3A(1), 1956 Act specifying
the lands proposed to be acquired for the national highway(s) issued
for the concerned stretches/sections - Challenged - High Court
inter alia held notifications issued u/s.3A(1) as illegal - On appeal,
held: 1956 Act authorises 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) - Nothing
in the Constitution or the 1956 Act limits this power only in respect
of existing roads/highways within the State - Substance of this Act
is ascribable to Entry 23, Union List and matters connected therewith
- Expression "highway" has not been defined in the 1956 Act or
1988 Act - Central Government is fully competent to notify "any
land" (not necessarily an existing road/highway) for acquisition,
to construct a highway to be a national highway - Further, at the
stage of issuing notifications u/ss.2(2) or 3A there is no need to
seek prior environmental/forest clearance - Clearance is required
to be obtained by the executing agency "before commencing the
actual work or executing the proposed work/project" - Also, there
is no substance in the argument that the change of stretch/section
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from Chennai-Madurai (Economic Corridor) [C-M (EC)] originally
included in the Project to C-K-S (NC) as regards State of Tamil
Nadu was not based on tangible material - Challenge to impugned
notifications u/ss.2(2) and 3A negatived - Impugned judgment
modified to the extent indicated - National Highways Act, 1956 -
ss.2(2), 3A - National Highway Rules, 1957 - National Highway
Authority of India Act, 1988 - ss.3, 11-13, 16 - Doctrine of pith
and substance -Environment (Protection) Act, 1986 - Interpretation
of Statutes - Harmonious Construction.
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,

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THE PROJECT DIRECTOR, PROJECT
IMPLEMENTATION UNIT
v.
P.V. KRISHNAMOORTHY AND ORS.
(Civil Appeal Nos. 3976-3977 of 2020)
DECEMBER 08, 2020
[A. M. KHANWILKAR, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Constitution of India - Arts.246, 248 - Union List, Entry 23
- Declaration of open green-field lands as national highway -
Legislative competence of Parliament to enact law for -
Development/construction of Chennai-Krishnagiri-Salem (National
Corridor) [C-K-S (NC)] 8 Lanes new National Highway (NH-179A
and NH-179B) being part of the larger Project (Bharatmala
Pariyojna-Phase I) - Notifications issued u/s.2(2), 1956 Act
declaring C-K-S (NC) as a national highway stretch/section (NH179A and NH-179B) - Notifications u/s.3A(1), 1956 Act specifying
the lands proposed to be acquired for the national highway(s) issued
for the concerned stretches/sections - Challenged - High Court
inter alia held notifications issued u/s.3A(1) as illegal - On appeal,
held: 1956 Act authorises 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) - Nothing
in the Constitution or the 1956 Act limits this power only in respect
of existing roads/highways within the State - Substance of this Act
is ascribable to Entry 23, Union List and matters connected therewith
- Expression "highway" has not been defined in the 1956 Act or
1988 Act - Central Government is fully competent to notify "any
land" (not necessarily an existing road/highway) for acquisition,
to construct a highway to be a national highway - Further, at the
stage of issuing notifications u/ss.2(2) or 3A there is no need to
seek prior environmental/forest clearance - Clearance is required
to be obtained by the executing agency "before commencing the
actual work or executing the proposed work/project" - Also, there
is no substance in the argument that the change of stretch/section
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from Chennai-Madurai (Economic Corridor) [C-M (EC)] originally
included in the Project to C-K-S (NC) as regards State of Tamil
Nadu was not based on tangible material - Challenge to impugned
notifications u/ss.2(2) and 3A negatived - Impugned judgment
modified to the extent indicated - National Highways Act, 1956 -
ss.2(2), 3A - National Highway Rules, 1957 - National Highway
Authority of India Act, 1988 - ss.3, 11-13, 16 - Doctrine of pith
and substance -Environment (Protection) Act, 1986 - Interpretation
of Statutes - Harmonious Construction.
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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
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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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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
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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.