Madras High Court
N.A.Ramachanda Raja vs Union Of India Represented By on 30 April, 2024
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
W.P.(MD)Nos.12215 and 18698 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 12.04.2024
PRONOUNCED ON : 30.04.2024
CORAM
THE HON'BLE MR.JUSTICE R.SURESH KUMAR
AND
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
W.P(MD)Nos.12215 and 18698 of 2023
and
W.M.P.(MD)Nos.10453, 10455, 10456 and 15517 of 2024
W.P.(MD)No.12215 of 2023:-
N.A.Ramachanda Raja ... Petitioner
vs
1.Union of India represented by
The Principal Secretary,
Ministry of Road Transport and Highways,
Union of India,
Transport Bhawan, Parliament Street,
New Delhi – 110 001.
2.Union of India represented by
The Director,
Impact Assessment Division,
Ministry of Environment Forest and Climate Change,
India Parayavaram Bhawan,
3rd Floor, Vayu Wing, Jor Bagh Road,
Aliganj, New Delihi – 110 003.
3.The Sate of Tamil Nadu represented by
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W.P.(MD)Nos.12215 and 18698 of 2023
The Principal Secretary,
Highways and Minor Ports (HS2) Department,
State of Tamil Nadu,
Fort St.George, Chennai – 600 009.
4.The Commissioner,
Commissionerate of Land Administration,
2nd Floor, Ezhilagam,
Chepauk, Chennai – 600 005.
5.The Director General,
Highways Department,
Integrated Chief Engineers Office,
76 Sardar Patel Road,
Guindy, Chennai – 600 025.
6.The Chief Engineer (Highway Project),
Integrated Chief Engineers Office,
76 Sardar Patel Road,
Guindy, Chennai – 600 025.
7.The District Collector,
Office of the District Collector,
Virudhunagar District- 626 002.
8.The Divisional Engineer (Highways Project),
Office of the Divisional Engineer (Highways Project),
Perumalpuram, Tirunelveli – 627 007.
9.The District Revenue Officer,
Office of the District Revenue Officer,
Virudhunagar District,
Collectorate, Sattur Road,
Virudhunagar District- 625 002.
10.The Special District Revenue Officer
/Land Acquisition Officer,
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Office of the Special District Revenue Officer,
Tamil Nadu Road Sector Project -II,
Corporation over water tank complex,
Dindigul Road (KPN Parcel opposite),
Tiruchirappalli.
11.The Commissioner,
Office of the Commissioner,
Rajapalayam Municipality,
Virudhunagar District.
12.The Tahsildar,
Office of the Tahsildar,
Rajapalayam Taluk, Virudhunagar District. ...Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records pertaining
to the order issued by the respondent No. 3 in G.O.(Ms).No.62, dated
02.05.2022 and to quash the same as illegal, consequently to direct the
respondents to expedite the formation of ongoing link road in Rajapalayam
Municipality related to 60 feet road from Chathirapatti road Jeya Anand
Theatre (West) towards Angel School and ends at Tenkasi Road KSR petrol
pump on the basis of public notice issued by the respondent No.11, in
Na.Ka.No.F1/6063/2022, dated 17.02.2023 in accordance with law within
the time stipulated by this Court.
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For Petitioner : Mr.T.Lajapathi Roy
Senior Counsel
for Mr.R.Alagumani
For R1 and R2 :Mr.K.Govindarajan
Deputy Solicitor General of India
For R3 to R10 :Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.P.Thilak Kumar
Government Pleader
For R11 :Mr.N.Dilip Kumar
W.P.(MD)No.18698 of 2023:-
PAS Krishnamma Rajha ... Petitioner
vs
1.The State of Tamil Nadu,
Rep. by Secretary to the Government,
Housing and Urban Development Department,
Fort St. George, Chennai-600009.
2.The Highways and Minor Ports (HS2) Department,
Government of Tamilnadu,
Rep. by its Secretary,
Fort St. George, Chennai-600009.
3.The Chief Engineer (H) Projects,
3rd Floor, Integrated CEs Office Building,
76, Sardar Patel Road,
Guindy, Chennai-600 025.
4.Special District Revenue Officer / Land Acquisition Officer,
Tamilnadu Roads Development Project-II,
Highways Department,
Government of Tamilnadu,
Trichirapalli.
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5.Seenithai
6.Subramaniam
7.Radha Krishna Raja
8.Indira
9.Kavitha
10.Karpagam
11.Ramachandran
12.Sathiyammal
13.V.Haridhrra
14.R.Rohini
15.A.Ramkumar
16.N.Lingammal
17.R.Indira
18.R.Dhanam
19.S.Ramasubbu
20.P.A.Subramanian
S/o.Iyanar Raja
21.R.Vijayalakshmi
22.M.Seethalakshmi
23.R.Ponmani
24.K.Saraswathi
25.Dharmalingaraja
26.G.Sakthi
27.R.Premsayee
28.K.Ponnambalam
29.M.Sivaraman
30.R.Ramsubramaniam
31.R.Ponnammal
32.V.Gomathiammal
33.P.A.Subramanian
S/o.Angaiyar Raja
34.A.Jayalakshmi
35.N.Karthickkumar
36.J.Anandham ...Respondents
(R5 to R36 were impleaded vide orders of this Court, dated 02.04.2024)
PRAYER: Writ Petition filed under Article 226 of the Constitution of India,
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to issue a Writ of Certiorarified Mandamus, to call for the records of the 4th
respondent culminating in the Notification dated 13.02.2023 bearing
No.LA-VI (2)/030289/2023 issued under section 15(1) of the Tamil Nadu
Highways Act, 1997, and to quash the same and to direct the 2nd respondent
to obtain environmental clearance under the EIA Notification, 2006 for its
proposed construction of its State Highways link road between
Rajapalayam-Sankarankoil-Tirunelveli - Kollam Road (NH 744-
Rajapalayam Government Hospital) in Virudhunagar District.
For Petitioner : Mr.Yogeshwaran
For R1 to R4 : Mr.Veerakathiravan
Additional Advocate General
assisted by Mr.P.Thilak Kumar
Government Pleader
For R5 :Mr.S.Ramasamy
For R6 :Mr.K.Muthu Ganesa Pandian
For R9, R10 and
R12 :No appearance
For R13 to R36 :Mr.K.Sivabalan
*****
COMMON ORDER
(Order of this Court was made by G.ARUL MURUGAN, J.)
Since the issues involved in both the Writ Petitions filed as Public
Interest Litigation are common, which is in respect of formation of a link
road, both the Writ Petitions are heard together and disposed of with this
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common order.
2.The brief facts involved in the Writ Petitions is that the State
Government issued G.O.(Ms)No.171, Highways and Minor Ports (HS2)
Department, dated 16.10.2018, whereby, administrative sanction was
accorded for a detailed project work for the formation of link road between
Rajapalayam-Sankarankovil-Tirunelveli (State Highways-SH-41-
Rajapalayam New Bus Stand) to Tirumangalam-Kollam Road (National
Highway-NH-744-Rajapalayam Government Hospital) in Virudhunagar
District. Pursuant to the detailed project report submitted, the Government
vide G.O.(Ms)No.62, Highways and Minor Ports (HS2) Department, dated
02.05.2022 accorded administrative and financial sanction for land
acquisition for the work of the above project, ie., formation of link road.
Proceedings were initiated for acquiring lands and a notification under
Section 15(2) of the Tamil Nadu Highways Act, 2001 (hereinafter referred
to as “the Act”), was published on 29.09.2022 in the daily newspapers and
after conducting a public hearing on 01.11.2022, notification under Section
15(1) of the Act was published on 13.02.2023. Public hearing, as per
Section 19(2) of the Act, was conducted on 17.03.2023 and further public
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hearing under Section 19(5) of the Act was also conducted on 12.05.2023,
pursuant to which, draft award valuation was prepared and has also been
approved by the District Collector, Virudhunagar, on 14.06.2023. The land
acquisition process got completed and disbursement of compensation had
started and out of the lands situated in 73 survey numbers, compensation
had already been paid to the land owners situated in 40 survey numbers and
at this stage, the above Writ Petitions have been filed against the
implementation of link road project.
3.Heard Mr.T.Lajapathi Roy, learned Senior Counsel appearing for
the petitioner in W.P.(MD)No.12215 of 2023, Mr.Yogeshwaran, learned
Counsel for the Petitioner in W.P.(MD)No.18698 of 2023,
Mr.K.Govindarajan, learned Deputy Solicitor General of India appearing for
the respondents 1 and 2 in W.P.(MD)No.12215 of 2023,
Mr.Veerakathiravan, learned Additional Advocate General assisted by
Mr.P.Thilak Kumar, learned Government Pleader, appearing for the
respondents 3 to 10 in W.P.(MD)No.12215 of 2023 and for the respondents
1 to 4 in W.P.(MD)No.18698 of 2023, Mr.N.Dilip Kumar, learned Counsel
appearing for the respondent No.11 in W.P.(MD)No.12215 of 2023,
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Mr.S.Ramasamy, learned Counsel for the fifth respondent, Mr.K.Muthu
Ganesa Pandian, learned Counsel for the sixth respondent and
Mr.K.Sivabalan, learned Counsel for respondents 13 to 36 in W.P.(MD)No.
18698 of 2023
4.The petitioner in W.P.(MD)No.18698 of 2023 mainly challenges the
notification issued under Section 15(1) of the Act, dated 13.02.2023, on the
ground that since no prior environmental clearance was obtained, which is
mandated under Clause 7(f) of the EIA Notification, 2006, the notification
issued for the project is un-sustainable, as the environmental impact of the
proposed project is to be assessed and considered before the lands are
acquired. The impugned notification issued by the official respondents
under Section 15(1) of the Act is therefore, not in consonance with EIA
Notification, 2006, and is also against the dictum laid by the Hon'ble
Supreme Court.
5.Further, Rajapalayam is a town situated in south-western part of the
State, which is a largest Municipality in Virudhunagar District. Since the
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Rajapalayam town is situated near the Western Ghats and has many
important water resources and rivers and also lands are wet lands used for
farming, the environment impact assessment is all the more necessary.
Further, master plan for Rajapalayam Municipality has been prepared in
compliance of the Tamil Nadu Town and Country Planning Act, 1971
(hereinafter referred as “TCP Act”) and a draft master plan has been
prepared and is under the consideration of the Government for approval and
the proposed project does not form part of the road network in the proposed
master plan and therefore, the notification issued for the project is arbitrary
and cannot be proceeded.
6.Mr.Yogeshwaran, learned Counsel appearing for the petitioner
argued that since Clause-7(f) of EIA Notification, 2006, mandates for
obtaining prior environmental clearance for any new State highway and the
proposed road project for which, the notification under Section 15(1) of the
Act had been issued without complying the mandatory requirement, is
illegal. The learned Counsel further contended that since the proposed
project is a highway falling within the definition of Section 2(12) of the Act,
it is automatically a new State Highway, which falls under category(4) of
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Clause 7(f) of EIA Notification, 2006 and therefore, cannot be proceeded
further, as it is per se illegal and violative of EIA Notification, 2006. The
learned Counsel further contended that there are several water bodies
situated in the area, where the proposed project is sought to be implemented
and further, when a comprehensive master plan has been finalised for the
Rajapalayam Municipality, where the proposed project does not form part of
the road project in the master plan, the proceedings initiated and the
notification issued without obtaining necessary clearance under the TCP Act
also are not sustainable.
7.Relying on the decisions of the Hon'ble Supreme Court (1)
Karnataka Industrial Areas Development Board vs Kenchappa and
others, reported in (2006) 6 SCC 371 and (2)Project Director vs
P.V.Krishnamoorthy and others reported in (2021) 3 SCC 572 and the
decision of this Court in M.Velu vs State of Tamil Nadu and others
reported in 2010 SCC OnLine Mad 2736, the learned Counsel contended
that before issuing a notification for any project, the authorities has to
mandatorily obtain prior environmental clearance for the project by
approaching the Environmental Impact Assessment Authorities.
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8.The main ground of challenge by the petitioner in W.P.(MD)No.
12215 of 2023, is that formation of link road will not serve any purpose, as
there is already an existing link road, namely, PACR Salai linking SH-41
and NH-744 and the implementation of the proposed project by acquiring
lands near three water bodies will be detrimental to the ecology and would
be against the principle of sustainable development and therefore, violative
of Articles 19, 47, 48A and 51A of the Constitution of India. Further, the
Housing and Urban Development [UD4(2)] Department had issued G.O.
(Ms)No.168, dated 20.11.2014, and notified Rajapalayam Municipality
under the local planning area, as conferred under Section 10(4) of the TCP
Act, and based on the notification, a master plan has been prepared
including the proposed link road and while so, the present project of another
link road initiated by the official respondents will serve no purpose and
therefore, sought for direction to the official respondents to expedite the
formation of the earlier ongoing link road.
9.Mr.T.Lajapathi Roy, learned Senior Counsel appearing for the
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petitioner argued that when once the master plan is prepared and a
declaration of the local planning area under Section 10 of the TCP Act has
been issued, the plan submitted to the Government is the master plan under
Section 17 of the Act and the master plan propose or provide for all or any
of the matters including the major road and street improvements. The
learned Senior Counsel further contended that when the final master plan
has been approved by the Government in G.O.Ms.No.21, Housing and
Urban Development [UD4(2)] Department, 30.01.2024 and published in
Government Gazette No.26, dated 30.01.2024, any person intending to carry
out any development on any land or in an area, other than planning area,
shall make an application in writing to the local authority and prior
concurrence has to be obtained and further, as per Section 47-A(2) of the
TCP Act, in case of wet lands, prior concurrence of the District Collector
concerned is also necessary. The learned Senior Counsel by referring to the
explanation provided therein, where the term “wet land” in the Section shall
have the same meaning as in the Tamil Nadu Additional Assessment and
Additional Water Cess Act, 1963 (Tamil Nadu Act 8 of 1963), contended
that since no approval, as contemplated, has been obtained, the proposed
project cannot be proceeded further, as the mandatory requirement under the
TCP Act has not been complied with. The learned Senior Counsel also
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contended that the proposed project is a new State Highway, which requires
obtaining of prior environmental clearance as per EIA Notification, 2006
and therefore, any implementation of the project without having a proper
environmental impact assessment will be disastrous to the ecology and
therefore, cannot be allowed to proceed further.
10.The learned Senior Counsel by relying on the judgment of the
Hon'ble Supreme Court in Hanuman Laxman Aroskar vs Union of India
reported in (2019) 15 SCC 401, contended that as held by the Hon'ble
Supreme Court, EIA Notification, 2006 has to be strictly complied with,
which attempts to bridge the perceived gap between the environment and
development. The learned Senior Counsel also by relying on the judgment
of Madhya Pradesh High Court Advocate Bar Association and another vs
Union of India and another reported 2022 LiveLaw (SC) 495, contended
that the National Green Tribunal under Sections 15 and 22 of the NGT Act
does not oust the High Court's jurisdiction under Articles 226 and 227 of the
Constitution of India, as the same is a part of the basic structure of the
Constitution and therefore, the Writ Petition filed without approaching the
National Green Tribunal is maintainable.
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W.P.(MD)Nos.12215 and 18698 of 2023
11.Mr.Veerakathiran, learned Additional Advocate General appearing
for the State argued that only considering the importance and necessity of
the link road between the existing State Highway-SH-41 and the National
Highway-NH-744, as the Government busses plying from Madurai to
Kollam are forced to travel inside to reach the new bus stand, which is
situated at the outskirts of the Municipality and again travel in the same
route after boarding the passengers from Rajapalayam to reach the travelling
route of Kollam and therefore, to avoid traffic congestion inside the
Rajapalayam Town, after undertaking a detailed study and pursuant to the
preparation of detailed project report by the technical experts for the
proposed link road, administrative and financial sanction was issued. Since
in the scheme road, several demolition has to be carried out and also the
necessary width is not available, the link road is proposed at an outer area to
the benefit of public at large without causing any maximum damages, as
such sanction was accorded and based on which, a notification under
Section 15(1) of the Act also was issued.
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12.The learned Additional Advocate General further submitted that no
prior environmental clearance is required for the proposed link road, as the
link road itself is only for 2 kms and it can no means be taken as a new
highway. Clause 7(f) of the EIA Notification, 2006, only mandates for prior
environmental clearance for a new State Highway and also for expansion of
National or State highway more than 30 kms. By a subsequent amendment,
even the want of prior environmental clearance for expansion of the State
Highway more than 30 kms has been dispensed with and now only an
environmental clearance for a new State Highway is required. The learned
Additional Advocate General further contended that the proposed link road
does not fall within the definition of Section 2(12) of the Act, as the
proposed 2 km link road is only a facility extended for the public to have
access between State Highway-SH-41 and the National Highway-NH-744.
The learned Additional Advocate General further submitted that objections
were considered by the State Government and pursuant to which,
publication under Section 15(1) of the Act was issued on 13.02.2023 and
after contemplating the procedures, an award has been passed and the
amount has also been disbursed to around 60% of the land owners and since
already there has been a delay caused due to the above two Writ Petitions,
now the project, which has to be implemented at the cost of Rs.36 crores,
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may require a revision and any further delay would be loss to the public
exchequer.
13.As far as obtaining of permission under Section 58 of the TCP Act,
the learned Additional Advocate General contended that it is pre-mature at
this stage and only after the process is completed and before the road is laid,
necessary compliance will be definitely undertaken by the authorities
concerned and therefore, sought for dismissal of these Writ Petitions.
14.Mr.K.Sivabalan, learned Counsel appearing for the Respondents
13 to 36, who are the land owners, whose lands have been acquired for the
above project, submitted that the land owners have received the
compensation and they do not have any grievance for the project being
implemented, as it will be only in the interest of the residents and expressed
their willingness for the project for the link road being implemented at the
earliest.
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15.Heard the learned Counsels on either side and perused the
materials available on record. Based on the submissions made by the rival
parties and the issues raised in the Writ Petitions, the following points arise
for consideration of this Court.
(a) Is the proposed link road project a “new state highway”
requiring prior environmental clearance?
16.Rajapalayam is a largest Municipality in Virudhunagar District and
there is an existing Tirumangalam-Kollam National Highway (NH-744),
which passes through the Municipality and connects Madurai and interlinks
all other parts of the State. There is also an existing State Highway-SH-41
(Rajapalayam-Sankarankovil-Tirunelveli), which runs through the
Municipality linking all southern Districts, viz., Tirunelveli, Tuticorin and
Kanyakumari.
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17.As Rajapalayam being a largest Municipality is already having
huge traffic congestion, where the busses and all the vehicles have to travel
through the Municipality, the State Government issued G.O.(Ms)No.171,
Highways and Minor Ports (HS2) Department, dated 16.10.2018, for
preparation of a detailed project report for the work of formation of link
road between Rajapalayam-Sankarankovil-Tirunelveli (State Highway-
SH-41) to Tirumangalam-Kollam (NH-744) in Virudhunagar District. Based
on the report submitted by the technical experts, the Government issued
G.O.(Ms)No.62, Highways and Minor Ports (HS2) Department, dated
02.05.2022 and accorded administrative and financial sanction for land
acquisition for the work of the above project. Pursuant to the sanction
accorded, notification in Form-B under Section 15(2) of the Act was issued
in Roc.No.D1/3365/2020, dated 16.09.2022 and published in the daily
newspapers on 29.09.2022 calling for objections in respect of the
acquisition of lands for the formation of 2 km link road between State
Highway-SH-41 and National Highway-NH-744. After receiving the
objections, enquiry was conducted on 01.11.2022 and pursuant to which,
orders were passed by the Commissioner of Land Administration, Chennai,
under Section 15(3) of the Act on 09.02.2023 and pursuant to which, a
notification under Section 15(1) of the Act was published in the
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Government Gazette No.65, dated 13.02.2023. The relevant portion of the
publication is extracted hereunder:
“No.VI(1)/100(b-2)/2023.
The Government of Tamil Nadu having been satisfied that the
lands specified in the Schedule below to be acquired for Highway
purpose to wit to formation of Link Road between Rajapalayam-
Sankaran Kovil-Tirunelveli Road (SH-41 Rajapalayam New Bus Stand)
to Thirumangalam-Kollam Road (NH-744 Rajapalayam Government
Hospital) in Kadambankulam and Pudhuppalayam villages
Rajapalayam Talulk of Virudhunagar District and it having already
been decided that the amount of compensation to be awarded for the
lands are to be paid out of the funds controlled or managed by Chief
Engineer (Projects), Highways Department, Guindy, Chennai. The
following notice is issued under sub-section (1) of section 15 of the
Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002).
Notice
Under sub-section (1) of section 15 of the Tamil Nadu Highways
Act, 2001 (Tamil Nadu Act 34 of 2002), the Governor of Tamil Nadu
hereby acquires the lands specified in the Schedule below measuring an
Extent of 60706 Sq.mtrs to the same, a little more or less needed for
Highways purpose to wit for formation of Link Road between
Rajapalayam-Sankaran Kovil-Tirunelveli Road (SH-41 Rajapalayam
New Bus Stand) to Thirumangalam-Kollam Road (NH-744
Rajapalayam Government Hospital) in Kadambankulam and
Pudhuppalayam villages Rajapalayam Talulk of Virudhunagar
District.”
18.The perusal of the notification issued, which is extracted herein
above, the Government Orders and the publication would clearly reveal that
the proposed project is only a 2 km link road between Rajapalayam-
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Tirunelveli State Highway-SH-41 and the Tirumangalam-Kollam National
Highway-NH-744. When there is already an existing State Highway running
within the limits of the Municipality and also an existing National Highway
running within the limits of the Municipality, the proposed project
envisaged by the State Government for the purpose of providing a link road
between the existing State Highway and National Highway for the facility
and better computation of the public to avoid traffic congestion that too
based on the feasibility study conducted and the report submitted by the
technical experts, cannot be construed as a new State Highway.
19.For the purpose of a road to be termed as a “State Highway”, a
new road has to be formed by a project to be implemented by the State
Government and this road has to be declared as a Highway under Section 3
of the Act, which is extracted hereunder for ease reference:
“3.On the recommendation made by the State Highways
Authority, the Government may, by notification, declare any road, way
or land to be highway and classify it as any one of the following,
namely:-
(i) a State Highway;
(ii) a major district road;
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(iii) other district road; or
(iv) a village road:
20.The term “Highway” has also been defined under Section 2(12) of
the Act, which is extracted hereunder for ease reference:
“(12) "highway" means any road, way or land which is declared to be
a highway under section 3 and includes--
(a) all land appurtenant thereto, whether demarcated or not;
(b) the slope, berm, burrow pits, foot paths, pavement, whether
surfaced or unsurfaced;
(e) all bridges, culverts, causeways, carriage ways or other
structures built on or across such road or way;
(d) the foot-way attached to any road, public bridge or
causeway;
(e) the drains attached to any such street, public bridge or
causeway and the land, whether covered or not by any
pavement, varanda or other structure, which lies on either side
of the roadway up to the boundaries of the adjacent property,
whether that property is private or property belonging to the
Central Government or any State Government; and
(f) all fences, trees, posts and boundaries, hectometer and
kilometer stones and other highway accessories and materials
stacked on such road or public bridge or causeway,
but does not include a National Highway declared as such by or under
the National Highways Act, 1956.
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21.Therefore, for a road to be a “Highway”, it has to come within the
meaning of Section 2(12) of the Act and further on the recommendation of
the Highway Authorities, a notification has to be issued by the State
Government declaring the same as a State Highway. In the instant case, no
new State Highway is formed, which has been recommended and declared
by the State Government by notifying as a State Highway. Under such
scenario, as observed and referred above, in view of the notification issued
under Section 15(2) of the Act for acquiring the lands, where the intention is
clearly declared that it is only for the formation of a link road between the
existing State Highway-SH-41 and National Highway-NH-744, the
proposed project of laying 2 km link road cannot be termed as a State
Highway come within the meaning of Section 2(12) of the Act and
therefore, we have no hesitation to hold that the proposed project is only an
extension of a facility to meet the present day requirements considering the
traffic congestion and therefore, the link road is not a “new State Highway”.
22.As far as the contention of the petitioners that prior environmental
clearance has to be obtained from the Environmental Impact Assessment
Authority before issuing any notification for the implementation of the
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project, it is useful to extract the relevant Clause-7(f) of EIA Notification,
2006, hereunder:
7(f) Highways i)New i)New State General
National High ways Condition
Highways; and shall apply.
and ii) Expansion
ii)Expansion of
of National National/Stat
High ways e Highways
greater than greater than
30 KM, 30 km
involving involving
additional additional
right of way right of way
greater than greater than
20m 20m
involving involving
land land
acquisition acquisition.
and passing
through more
than one
State.
23.The amended Clause-7(f) pursuant to the amendments, dated
01.12.2009 and 22.12.2014 is extracted hereunder for ease reference:
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7(f) Highways (i)New (i)All New General
National State condition
Highways; Highway shall apply.
and Projects. Note:Highw
(ii)Expansio (ii)State ays include
n of National Highway expressways
Highways expansion
greater than projects in
100 km, hilly terrain
involving (above
additional 1,000m
right of way AMSL) and
or land or
acquisition ecologically
greater than sensitive
40m on areas.
existing
alignments
and 60m on
re-alignment
or by-passes.
24.It could be seen that under Category(4) of Clause-7(f), EIA
Notification, 2006, there are two sub categories. In respect of first one, it
pertains to the new State Highways and the second one, pertains to
expansion of National Highway/State Highway greater than 30 km. In the
amended Notification, in Clause-7(f), it could be seen that there are also two
sub categories under Category(4), where, in respect of the first category, all
new State Highways projects and in respect of second category, the State
Highway expansion projects in hilly terrain. As such, in the EIA
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Notification, 2006, as it originally stood, only the new State Highway and
also the expansion of State Highway beyond 30 km was required to obtain a
prior environmental clearance and in view of the subsequent amendments,
the prior environmental clearance for the expansion of the State Highway
beyond 30 km has been exempted and now only the prior environmental
clearance is required for the new State highway projects and the State
Highway expansion projects in hilly terrain.
25.The present project, that is proposed to be implemented is only a
2 km link road between the already existing State Highway and the National
Highway and definitely, falls even within the prescribed limit of 30 km, as
contained in the original sub category-(ii) of category(4) under 7(f) of EIA
Notification, 2006, which has also now been exempted and as of now, only
a new State Highway and the expansion of State Highway in hilly terrain is
required to obtain a prior environmental clearance.
26.As it has been held that the proposed 2 km link road project is not
a new State Highway, the question of obtaining a prior environmental
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clearance for implementation of the project does not arise and since there is
no need for obtaining prior environmental clearance, the notification issued
under Section 15(1) of the Act, is not found to be flawed and accordingly,
sustained.
(b)Whether the proposed link road project could be continued in
view of the master plan being notified?
27.It is the contention of the petitioners that since Rajapalayam
Municipality has been declared and brought under the planning area under
Section 10 of the TCP Act, by the Government and master plan has been
prepared and the Government has approved the master plan for the
Rajapalayam Municipality under Section 28 of the TCP Act, vide
G.O.Ms.No.21, Housing and Urban Development [UD4(2)] Department,
30.01.2024 and published in Government Gazette No.26, dated 30.01.2024,
the proposed project cannot be implemented, as it does not form part of the
roads provided under the master plan.
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28.After coming into operation of the development plan in any area,
any development that is sought to be carried out within the planning area
has to be in consonance with the provisions of the Act. Sections 47 and 49
of the TCP Act are extracted hereunder:
“47.Use and development of land to be in conformity with
development plan.-
After the coming into operation of any development plan in any
area, no person other than any State Government or the Central
Government, or any local authority shall use or cause to be used, any
land or carry out any development in that area otherwise than in
conformity with such development plan:
Provided that the continuance of the use of any land for the
purpose and to the extent for, and to which it is being used on the date
on which such development plan comes into operation, may be allowed
for such period and upon such terms and conditions as may be
specified in such development plan.
49. Application for permission.- (1) Except as otherwise provided by
rules made in this behalf, any person not being any State Government
or the Central Government or any local authority intending to carry
out any development on any land or building on or after the date of the
publication of the resolution under sub-section (2) of section 19 or of
the notice in the Tamil Nadu Government Gazette under section 26,
shall make an application in writing to the appropriate planning
authority for permission in such form and containing such particulars
and accompanied by such documents as may be prescribed.
(2) The appropriate planning authority shall, in deciding
whether to grant or refuse such permission, have regard to the
following matters, namely:-
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(a) the purpose for which the permission is required;
(b)the suitability of the place for such purpose;
(c) the future development and maintenance of the planning
area;
(3) When the appropriate planning authority refuses to grant a
permission to any person, it shall record in writing the reasons for such
refusal and furnish to that person, on demand, a brief statement of the
same.
29.The above provisions make it clear that the State Government or
the Central Government or any local authority is exempted from carrying on
any development activity otherwise than inconformity with the development
plan and only any other person other than the State Government or the
Central Government or the local authority, who is intending to carry out any
development within the planning area, has to obtain prior approval for
making any development.
30.Section 47-A of TCP Act, relied on by the learned Senior Counsel
for the petitioner, contending that a prior application has to be made and
permission has to be obtained and further as per the proviso, if it is a wet
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land, prior concurrence of the District Collector is necessary, is not
applicable to the development in a planning area. Section 47-A of the TCP
Act is extracted hereunder:
“47-A. Development of land in an area other than planning area.-
(1) Any person intending to carry out any development on any
land in an area other than planning area shall make an application in
writing to the local authority for permission in such form and
containing such particulars and accompany such documents as may be
prescribed.
(2) The local authority shall before according permission under
subsection (1), shall obtain the prior concurrence of the Director and
shall also collect such fees at such rate as may be prescribed:
Provided that in the case of wet lands, the prior concurrence of
the Collector of the District concerned is necessary.
(3) The Collector shall give his prior concurrence to the local
authority under sub-section (2), upon fulfillment of such guidelines as
may be prescribed.
(4) Where any development of land has been carried out,-
(a) without permission required under this section; or
(b) in contravention of any permission granted or of any
condition subject to which permission has been granted; or
(c) after the permission for development of land has been duly
revoked; or (d) in contravention of any permission which has been duly
modified. the local authority shall exercise the powers of the
appropriate planning authority under sections 56 and 57 with such
modifications as may be necessary.
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31. As per Section 47-A of TCP Act, only if any person is intending to
carry out any development on any land in an area other than the planning
area, shall make an application in writing to the local authority. Since
admittedly, the proposed project falls within the planning area, the
application of Section 47-A of TCP Act will not arise to the facts of the
present case.
32.In respect of any development undertaken on behalf of the State
Government or the local authority in the planning area, the procedure is laid
down under Section 58 of TCP Act, which is extracted hereunder:
58.Development undertaken on behalf of any State Government or
Central Government or local authority.- (1) When any department of
any State Government or the Central Government or any local
authority intends to carry out development of any land or building, the
officer-in-charge thereof shall inform, in writing, the planning authority
concerned the intention to do so, giving full particulars thereof, and
accompanied by such plans and documents atleast thirty days before
undertaking such development:
Provided that in case where any local authority is the local
planning authority under this Act, it shall inform the fact of any such
proposed development to the regional planning authority concerned
within whose jurisdiction such local authority is situated.
(2) Where a planning authority concerned or the regional
planning authority concerned, as the case may be, raised any objection
to the proposed development on the ground that the development is not
in conformity with the provisions of any development plan under
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preparation or for any other material consideration, the officer of the
State Government, Central Government or any local authority, as the
case may be shall-
(i) either make necessary modifications in the proposals for
development to meet the objections raised by the planning authority
concerned, or
(ii) submit the proposals for development together with the
objections raised by the planning authority concerned to the
Government for decision.
(3) The Government, on receipt of the proposal for development
together with the objections of the planning authority concerned shall,
in consultation with the Director, either approve the proposals with or
without modifications or direct the officer to make such modifications
in the proposals as they consider necessary in the circumstances and
the officer concerned shall be bound to make such modifications as
proposed by the Government.”
33.As such, when the State Government or the local authority intends
to carry out the development on any land, the Officer in-charge shall only
inform in writing to the planning authority concerned and only if there is
any objection from the planning authority, the same will be referred to the
Government, which shall be approved in consultation with the Director. As
submitted by the learned Additional Advocate General appearing for the
State that it is premature at this stage and after the proceedings are
completed, the authority concern would inform the local planning authority
before carrying on the execution of the work. The development/proposed
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project carried out by the State Government is only for the betterment to
facilitate the local authority and ease the traffic congestion. In fact, the very
object of forming a planning area is to ensure that the development
activities are carried out on a planned manner. Further the fact remains that
already the scheme road to connect the two highways is provided in the
master plan and only to facilitate the municipality and public, the proposed
link road is to be laid beyond some distance at an outer area instead of the
scheme road, based on the report of the technical experts. As such there is
no restrictions for the State to continue with the proposed project of link
road in view of the master plan being notified.
(c)Whether the implementation of the link road project could be
allowed to be proceeded?
34.The State Government, after conducting the feasibility study and
obtaining the project report, has accorded the administrative and financial
sanction for the formation of link road, as early as on 02.05.2022, pursuant
to which, notices were issued under Section 15(2) of the Act calling for
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objections from the land owners and after considering their objections,
notification under Section 15(1) of the Act has also been published on
13.02.2023. The award enquiry has also been completed and the award has
also been passed for a total award amount of Rs.3,28,28,836/- in S.No.63 of
Puthupalayam Village and Rs.64,04,302/- in S.No.10 of Kadampankulam
Village. Out of the same, around 40% of the award amount has been settled
and while the project was proceeded further, the same has been stalled in
view of the filing of the above two Writ Petitions.
35.The land owners, who got themselves impleaded in the above Writ
Petitions submitted before this Court that they have received the award
amount and they do not have any objection for the proposed link road to be
implemented, in fact, which would only be for the betterment of the public.
36.As submitted by the learned Additional Advocate General, it could
be seen that if the scheme road is implemented, several demolition has to be
carried out and further, the issue of traffic congestion will not ease and only
by taking those aspects into consideration, the proposed link road is to be
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formed at an outer area to avoid traffic congestion, which is based on the
report submitted by the technical experts. When the project is implemented
based on the opinion of the technical experts, this Court cannot sit in appeal
over the opinion of the experts, as we are not experts to arrive at a
conclusion and it is for the Government to provide the facility and
implement the project by considering the interest of the public at large.
37.Reliance was made to the judgment of the Hon'ble Supreme Court
in Hanuman Laxman Aroskar vs Union of India reported in (2019) 15
SCC 401, wherein, it is observed as follows:
“56. The 2006 Notification embodies the notion that the
development agenda of the nation must be carried out in compliance
with norms stipulated for the protection of the environment and its
complexities. It serves as a balance between development and
protection of the environment : there is no trade-off between the two.
The protection of the environment is an essential facet of development.
It cannot be reduced to a technical formula. The notification
demonstrates an increasing awareness of the complexities of the
environment and the heightened scrutiny required to ensure its
continued sustenance, for today and for generations to come. It
embodies a commitment to sustainable development. In laying down a
detailed procedure for the grant of an EC, the 2006 Notification
attempts to bridge the perceived gap between the environment and
development.”
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38.In fact, in EIA Notification, 2006, earlier it was mandated for
obtainment of environmental clearance for any expansion beyond 30 km.
Later, in view of the present day requirements, the need for obtaining prior
environmental clearance beyond 30 km has also been exempted for the
expansion work carried out and only restricted to new highway project,
which shows that the balance has been maintained by protecting
environment and also development.
39.From the plan submitted, it could also be seen that the proposed
link road is not disturbing any water body and in fact, the link road is
implemented by acquiring lands by adopting the procedures, as
contemplated under the Act and in fact, major portion of the award amount
has also been paid and the land owners has also expressed their willingness
to go ahead with the project. The contention of the petitioners that since
already a road proposed to be land in the master plan and if that is
implemented, it will solve the purpose and the present project envisaged by
the Government may not be fruitful, cannot be sustained for the simple
reason that only after conducting a detailed study and obtaining the opinion
of the experts, the Government had arrived at a conclusion to go ahead with
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the proposed link road at an outer area, so that there can be a better
connectivity without affecting the existing infrastructure, which will be
more beneficial to the public.
40.Further, when similar issue in respect of implementation of a road
project came up for consideration before another Division Bench of Court in
the case of Pennyquick Irupoga Paasanam Vivasayigal Neer Aatharangal
Pathukapu Sangam vs the Authorised Officer and others in W.P.
(MD)Nos.14750 of 2018 and 9834 of 2019, dated 30.06.2020, this Court
has held as follows:
“18 In our opinion, when the petitioners have not attributed
any acts of mala fides nor have they urged that the project violates the
provisions of the NH Act, it is not open for this Court to rely upon the
judgment in M.C. Mehta (supra) and hold that environmental clearance
is necessary for this project. At this juncture, apropos it is to extract
paragraph no.10 of the judgment of the Supreme Court in Ramniklal N.
Bhutta and another vs. State of Maharashtra and others:
10. Before parting with this case, we think it necessary to make
a few observations relevant to land acquisition proceedings. Our
country is now launched upon an ambitious programme of all-
round economic advancement to make our economy competitive
in the world market. We are anxious to attract foreign direct
investment to the maximum extent. We propose to compete with
China economically. We wish to attain the pace of progress
achieved by some of the Asian countries, referred to as Asian
tigers , e.g., South Korea, Taiwan and Singapore. It is, however,
recognised on all hands that the infrastructure necessary for
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sustaining such a pace of progress is woefully lacking in our
country. The means of transportation, power and communications
are in dire need of substantial improvement, expansion and
modernisation. These things very often call for acquisition of land
and that too without any delay. It is, however, natural that in most
of these cases, the persons affected challenge the acquisition
proceedings in courts. These challenges are generally in the
shape of writ petitions filed in High Courts. Invariably, stay of
acquisition is asked for and in some cases, orders by way of stay
or injunction are also made. Whatever may have been the
practices in the past, a time has come where the courts should
keep the larger public interest in mind while exercising their
power of granting stay/injunction. The power under Article 226 is
discretionary. It will be exercised only in furtherance of interests
of justice and not merely on the making out of a legal point. And
in the matter of land acquisition for public purposes, the interests
of justice and the public interest coalesce. They are very often one
and the same. Even in a civil suit, granting of injunction or other
similar orders, more particularly of an interlocutory nature, is
equally discretionary. The courts have to weigh the public interest
vis-à-vis the private interest while exercising the power under
Article 226 indeed any of their discretionary powers. It may
even be open to the High Court to direct, in case it finds finally
that the acquisition was vitiated on account of noncompliance
with some legal requirement that the persons interested shall also
be entitled to a particular amount of damages to be awarded as a
lump sum or calculated at a certain percentage of compensation
payable. There are many ways of affording appropriate relief and
redressing a wrong; quashing the acquisition proceedings is not
the only mode of redress. To wit, it is ultimately a matter of
balancing the competing interests. Beyond this, it is neither
possible nor advisable to say. We hope and trust that these
considerations will be duly borne in mind by the courts while
dealing with challenges to acquisition proceedings.
41.In the above case, in fact the issue of getting prior environmental
clearance and the alternative way was also proposed, but however the same
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was negatived. The appeal preferred before the Hon'ble Supreme Court as
against the above judgment in S.L.P(C)Nos.5483-5484 of 2021, was also
dismissed, by order dated 31.10.2022.
42.The other judgments relied upon by the learned Counsels for the
petitioners are not applicable to the facts of the case, as they pertain to a
new Highway for a very long distance.
43.Since award has been passed and almost major part of the award
amount has been disbursed, the project, which was initiated in the year 2018
and approved as early as on 02.05.2022, has now been stalled in view of the
above litigations. Any further delay would definitely be adverse to the
interest of the public and result in increase of the project cost and the
respondents can go ahead and implement the link road project.
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44.In view of the above, the Writ Petitions fail and are accordingly
dismissed. However, there shall be no order as to costs. Consequently,
connected Miscellaneous Petitions are closed.
[R.S.K., J] & [G.A.M., J]
30.04.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
To
1.The Principal Secretary,
The Sate of Tamil Nadu
Highways and Minor Ports (HS2) Department,
State of Tamil Nadu,
Fort St.George, Chennai – 600 009.
2.The Secretary to the Government,
The State of Tamil Nadu,
Housing and Urban Development Department,
Fort St. George, Chennai-600009.
3.The Commissioner,
Commissionerate of Land Administration,
2nd Floor, Ezhilagam,
Chepauk, Chennai – 600 005.
4.The Director General,
Highways Department,
Integrated Chief Engineers Office,
76 Sardar Patel Road,
Guindy, Chennai – 600 025.
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W.P.(MD)Nos.12215 and 18698 of 2023
5.The Chief Engineer (Highway Project),
Integrated Chief Engineers Office,
76 Sardar Patel Road,
Guindy, Chennai – 600 025.
6.The District Collector,
Office of the District Collector,
Virudhunagar District- 626 002.
7.The Divisional Engineer (Highways Project),
Office of the Divisional Engineer (Highways Project),
Perumalpuram, Tirunelveli – 627 007.
8.The District Revenue Officer,
Office of the District Revenue Officer,
Virudhunagar District,
Collectorate, Sattur Road,
Virudhunagar District- 625 002.
9.The Special District Revenue Officer
/Land Acquisition Officer,
Office of the Special District Revenue Officer,
Tamil Nadu Road Sector Project -II,
Corporation over water tank complex,
Dindigul Road (KPN Parcel opposite),
Tiruchirappalli.
10.The Commissioner,
Office of the Commissioner,
Rajapalayam Municipality,
Virudhunagar District.
11.The Tahsildar,
Office of the Tahsildar,
Rajapalayam Taluk, Virudhunagar District.
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R.SURESH KUMAR, J.
AND
G.ARUL MURUGAN, J.
cmr
Common Order made in
W.P(MD)Nos.12215 and 18698 of 2023
30.04.2024
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