These writ petitions have been filed challenging the impugned
Notification dated 08.03.2019 issued by the 1st respondent and the
impugned order dated 25.06.2019 passed by the 2nd respondent.
Subsequently, the petitioner sent a letter dated 25.07.2018 to the 2 nd
respondent, whereby he requested for personal hearing and also
explained that there were no concrete alignment of proposed ring road
and the remaining portion of the land will become redundant after the
acquisition. Upon receipt of the said letter, the Surveyors had visited the
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2.2 Thereafter, another letter dated 20.08.2018 was communicated
by the petitioner to the respondents 2 & 3, wherein it was stated that the
vacant lands towards edge of property could be used instead of
petitioner's land for the purpose of forming the proposed road. On
15.10.2018, the 2nd respondent issued notice to call upon the petitioner
for enquiry, which was scheduled to be held on 25.10.2018. Purusant to
the said notice, the petitioner had filed his objection dated 22.10.2018
before the 2nd & 3rd respondents and thereafter, attended the enquiry on
25.10.2018. However, according to the petitioner, the 2nd respondent had
rejected the petitioner's objection vide order dated 12.12.2018, without
any proper consideration. Against the said order, a writ petition in
WP.No.8186 of 2019 was filed by the petitioner, wherein, this Court, vide
order dated 20.03.2019, had stayed the operation of the proceedings of
Notification issued by the respondents. Thereafter, the said writ petition
was disposed of by this Court vide order dated 18.06.2019 with a
direction to conduct joint spot inspection and complete the proceedings.
2.3 During the pendency of the above writ petition, the 1 st
respondent issued the impugned Notification dated 08.03.2019 by
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declaring that the subject land should be acquired. Aggrieved over the
said notice, one of the present writ petitions, i.e., WP.No.29755 of 2019
2.4 Pursuant to the order passed in WP.No.8186 of 2019, the said
joint spot inspection was conducted on 22.06.2019. The petitioner's wife
and son had attended the joint spot inspection and filed the additional
objections before the 2nd respondent. However, the 2nd respondent had
rejected the additional objections vide impugned order dated 25.06.2019,
against which, the writ petition in WP.No.29753 of 2019 came to be filed
3. Petitioner's submission:
3.2 As far as the 1st ground is concerned, he would submit that in
the Clause 7(f) of Schedule to the Environment Impact Assessment
Notification dated 14.09.2016, it has been clearly stated that it is
mandatory to obtain environment clearance for all projects and activities
mentioned under Category A in the nature of expansion of National
Highways greater than 100 km. In such case, the declaration under
Section 3D of the Act, can be made only after obtaining the
environment/forest clearance. To substantiate his submission, he referred
to the judgement rendered by the Hon'ble Apex Court in Project Director
vs. P.V.Krishnamurthy reported in (2021) 3 SCC 572 (hereinafter
3.3 Further, he would contend that in this case, the environment
clearance was not at all obtained by the respondents prior to the
Declaration made under Section 3D of the Act. The said aspect was also
admitted by the respondents vide the impugned order dated 25.06.2019,
"..........the process of Environment Clearance is in
advance stage and final EIA report as part of the same
will be submitted to MOEF&CC with incorporation of
public hearing proceedings."
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3.4 Hence, by referring the above, he would submit that no
environment clearance was obtained by the respondents prior to the
Declaration and thus, the respondents have erroneously implemented the
entire project, which is not sustainable in law.
3.5 As far as the 2nd ground is concerned, he would submit that in
this case, the petitioner made severe objections to the proposed
acquisition and the same were submitted before the respondents. In spite
of the same, while passing the impugned order dated 25.06.2019, the
respondents had wrongly recorded that the petitioners are not having any
objections to the present alignment. When such being the case, it is clear
that the respondents had not at all considered the petitioner's objection in
a proper manner at the time of passing the impugned order, which is a
clear violation of principles of natural justice. Therefore, he requested
this Court to set aside the impugned 3D(1) Notification dated 08.03.2019
issued by the 1st respondent and the impugned order dated 25.06.2019
passed by the 2nd respondent.
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4. The respondent's reply:
4.1 Per contra, the learned counsel appearing for the respondents
would submit that the National Highways Authority of India (NHAI),
being a Statutory Authority, had proposed to acquire the lands comprising
25 villages at Krishnagiri District, which includes the subject land. In this
regard, a Notification under Section 3A(1) of the Act was published on
29.06.2018. Thereafter, a notice dated 15.10.2018 was issued, calling
upon the petitioner to attend the enquiry on 25.10.2018. Hence, he would
submit that the petitioner was provided with ample opportunities to make
objections regarding the acquisition of lands. In spite of the same, the
petitioner has made willful attempts to postpone the enquiry. Under these
circumstances, after due inspection, the order dated 07.12.2018 came to
be passed by the respondents. Subsequently, the Central Government
made a Declaration under Section 3D(1) of the Act vide Notification
dated 11.03.2019.
4.2 As far as the order dated 18.06.2019 passed by this Court in
W.P.No.8186 of 2019 is concerned, he would submit that pursuant to the
said order, a complete enquiry was conducted by the respondents and
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after due consideration, a detailed speaking order came to be passed on
25.06.2019.
4.3 Further, he would submit that the petitioner's suggestion, with
regard to the utilisation of Government Poromboke Lands for the purpose
of forming Highway roads, was also examined by the Competent
Authority. However, during inspection, it was observed that any change
in alignment will affect the Geometry and it will have more social
impact, for which, NHAI will be constrained to acquire more patta lands.
Hence, the said suggestion was dropped by the Authority. Therefore, he
would submit that all the objections and suggestions made by the
petitioners were duly considered by the respondents at the time of
passing the impugned order.
4.4 He would also submit that the subject lands are inevitably
required for the purpose of forming National Highway. In such case, the
interest of general public will prevail over the interest of individual land
owner. That apart, as per the Doctrine of Eminent Domain, it is well
settled that when the Central Government acquires a private land for
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bonafide public purpose, the Article 14 and 21 of the Constitution of
India will not be available against the said acquisition. When such being
the case, he would submit that there is no violation of fundamental rights
of the petitioner.
4.5 He would further contend that the petitioner's land is inevitably
required for formation of National Highway NH 948A. The total length
of the road is 35.766 km, out of which, the road passing through the
petitioner's land is only to the extent of 200 meter. Even the physical
construction of the road has been completed in 28.05 km, for which a
sum of Rs.709 Crore has been incurred till date. Due to the stay granted
in these petitions, the respondents are not in a position to complete the
remaining 0.2 km of road. When such being the case, if the proceedings,
pertaining to land acquisition, is quashed at this stage, it will lead to a
great Revenue loss to the Central Government. Hence, he prays for
dismissal of these petitions.
5. I have given due consideration to the submissions made by the
learned counsel for the petitioner and the learned Additional Solicitor
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General appearing for the respondents and also perused the entire
materials available on record.
6. In the case on hand, two writ petitions were filed challenging the
issuance of notification dated 08.03.2019 and the passing of impugned
order dated 25.06.2019.
7. According to the petitioner, Section 3D(1) notification was
issued on 08.03.2019, which is consequent to the issuance of Section
3A(1) notice dated 12.07.2018. However, the respondents had failed to
obtain environment clearance prior to the issuance of aforesaid Section
3D(1) notification and the same is contrary to the law laid down by the
Hon'ble Apex Court in PV Krishnamurthy's case. Further, contention of
the petitioner was that the impugned order dated 25.06.2019 was passed
without considering the petitioner's objection, which is not only violation
of principles of natural justice but also in contrary to the order dated
18.06.2019 passed by this Court in WP.No.8186 of 2019.
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8. Now, the issues that arise for consideration in these writ
petitions are as follows:
i) Whether the order dated 25.06.2019 was passed
by the 2nd respondent, after due consideration of the
petitioner's submission/objection, as per the order of this
Court dated 18.06.2019 in WP.No.8186 of 2019 ?
ii) Whether Section 3D(1) notification dated
08.03.2019, issued by the 1st respondent, without
obtaining Environment Clearance, is against the law laid
down by the Hon'ble Apex Court in PV Krishnamurthy's
case ?
9. Issue No.1: Whether the order dated 25.06.2019 was passed by the
2nd respondent, after due consideration of the petitioner's
submission/objection, as per the order of this Court dated 18.06.2019
in WP.No.8186 of 2019 ?
9.1 Initially, on 12.07.2018, a notification under Section 3A(1) was
issued by the 1st respondent for acquisition of land for public purpose,
which includes the petitioner's land. On 25.07.2018, a request was made
by the petitioner to the 2nd respondent for personal hearing opportunity.
Thereafter, on 11.08.2018, a surveyor, engaged by the respondent, had
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visited the petitioner's land and conducted survey therein. On 18.10.2018,
another survey was conducted by Thasildhar and Revenue Inspector. On
15.10.2018, the 2nd respondent issued notice to the petitioner calling upon
him for enquiry, which was scheduled on 25.10.2018. In the meantime,
on 22.10.2018, the petitioner placed additional objection on record before
the file of respondents 2 and 3. On 25.10.2018, the petitioner attended the
enquiry before the 2nd respondent. However, the 2nd respondent had
postponed the enquiry without fixing any specific date of hearing. Under
these circumstances, all of a sudden, the order dated 12.12.2018 was
passed without hearing the petitioner's submission.
9.2 Aggrieved over the said order, the petitioner filed a writ
petition in WP.NO.8186 of 2019, wherein this Court vide order dated
18.06.2019, directed the respondent to conduct joint spot inspection on
22.06.2019 and thereafter complete the enquiry proceedings within a
period of 3 days. Subsequently, on 22.06.2019, the petitioners attended
the joint spot inspection and placed their objections on record. As
directed by this Court vide order dated 18.06.2019, subsequent to the
joint spot inspection, the 2nd respondent, after considering the said
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objection and other representations filed by the petitioner, passed the
impugned order dated 25.06.2019.
9.3 Now, the grievance of the petitioner is with regard to the non-
consideration of objections filed by the petitioner at the time of passing
the impugned order dated 25.06.2019.
9.4 A perusal of the impugned order would show that the 2 nd
respondent had given sufficient opportunities to the petitioner to
participate in the proceedings and also duly conducted the joint spot
inspection, in which the petitioner had also participated. Thereafter, the
2nd respondent had passed a detailed order after duly considering the
petitioner's submission/objections. In such case, this Court does not find
any fault on the part of the respondent in passing the impugned order
dated 25.06.2019.
9.5 Further, this Court only finds fault on the petitioner, who failed
to avail the opportunities, which were provided to him by the
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respondents. As stated above, the respondents had duly complied with the
direction issued by this Court vide order dated 18.06.2019 passed in
WP.No.8186 of 2019. In such view of the matter, the writ petition in
WP.No.29753 of 2019, which is filed against the impugned order dated
25.06.2019, is liable to be dismissed. Accordingly, the 1 st issue is
answered.
10. Issue No.2: Whether Section 3D(1) notification dated 08.03.2019
issued by the respondents, without obtaining Environment Clearance
is against the law laid down by the Hon'ble Apex Court in PV
Krishnamurthy's case ?
10.1 As far as the 2nd issue is concerned, according to the
petitioner, in this case, Section 3D(1) notification was issued without
obtaining Environment Clearance, which is against the law laid down by
the Hon'ble Apex Court in PV Krishnamurthy case.
10.2 To answer this issue, it would be apposite to peruse the
judgement of the Hon'ble Supreme Court of India, rendered in PV
Krishnamurthy case, wherein, it had elaborately discussed on the aspect
of requirement of obtaining Environmental Clearance. In the said
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judgement, it has been clearly stated that Environmental Clearance is
required to be obtained before the commencement of construction work
or preparation of land by project management for the purpose of
development, which would happen subsequent to the entrustment of
lands to NHAI. The relevant portion of the order reads as follows:
“79. 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 onetime activities and not in
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the nature of exploitation of the land for continuous
commercial/industrial activities as such. There is remote
possibility of irretrievable wide spread environmental
impact due to carrying out activities referred to in Section
3B for assessing the worthiness of the land for using it as a
national highway. Thus, the question of applying
notification of 2006 at this stage does not arise, much less
obligate the Central Government to follow directives
thereunder.
80 to 85. ..............
86.Suffice it to observe that the subject notification
of 2006 and Office Memorandum dated 7.10.2014 ordain
that such permission is required to be obtained (only)
before commencement of the work of the new project or
activities or on the expansion or improvisation of the
project or activities based on their potential environment
impact.
87 to 92 ...........
93. For the purpose of considering the question
posed before us, suffice it to observe that the prior
environmental clearance in terms of 2006 notification
issued under Section 3 of the Environment (Protection)
Act, 1986 Act read with Rule 5 of the Environment
(Protection) Rules, 1986, is required to be taken before
commencement of the “actual construction or building
work” of the national highway by the executing agency
(NHAI). That will happen only after the acquisition
proceedings are taken to its logical end until the land
finally vests in the NHAI or is entrusted to it by the
Central Government for building/management of the
national highway.
94 to 96. ..........
97.Considering the provisions of the 1956 Act and
the 1988 Act, NHAI can take over the work of
development and maintenance of the concerned national
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highway only if the notified land is vested in it or when
the same is entrusted to it by the Central
Government. ..................”
(*** Emphasis supplied)
10.3 In all the above paragraphs, the Hon'ble Apex Court had dealt
with 2006 Notification, 1956 Act, 1998 Act and Environmental
Protection Act, 1984, and categorically held that the Environmental/
Forest Clearance is required to be obtained before commencing actual
work or executing of proposed work/project. Further, it has been held that
the said aspect would arise only subsequent to the entrustment of lands
with NHAI. Prior to entrustment of lands to NHAI, the lands are required
to be vested with the Central Government and that would happen by
issuance of Section 3D Notification. Merely, the issuance of Section 3D
Notification would not be considered as commencement of actual work
or execution of proposed work/project. Such commencement/execution
will happen only after the entrustment of lands by the Government to
NHAI.
10.4 In terms of the 1956 Act, once the land is vested with the
Government by virtue of issuance of Section 3D Notification, thereafter,
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they have to take possession in terms of Section 3E of the 1956 Act. Such
possession can be taken only after the determination of compensation for
the land by the Competent Authority in terms of Section 3G of the 1956
Act and depositing the same in terms of Section 3H(1) of the 1956 Act.
Therefore, it is not that the physical possession of the land can be taken
by the Government immediately upon issuance of Section 3D
Notification. As stated above, such taking over of physical possession
will happen only after quantification of the compensation amount and
deposit of the same in accordance with the provisions of Section 3G and
3H of the 1956 Act. Hence, at any cost, one cannot construed that
immediately upon issuance of Section 3D Notification, the Government
can commence the construction work or execute the proposed
work/project automatically.
10.5 Therefore, the Hon'ble Apex Court was conscious of the fact
that the commencement of actual work or execution of proposed
work/project would happen in terms of 2006 Notification, only after
entrustment of land with NHAI. Thus, merely by virtue of issuance of
Section 3D Notification, the land will not be entrusted to NHAI but it
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will only be vested with the Government. Merely, vesting of land with
the Government would not amount to automatic commencement of
construction work or execution of proposed work/project.
10.6 Therefore, the Hon'ble Apex Court, held in clear terms that
the commencement of actual work or execution of proposed work/project
will not happen, or cannot construed to be happened, immediately upon
issuance of Section 3D Notification. By virtue of Section 3D notification,
only the land is going to be vested with the Government. Except vesting
of land, nothing is going to happen with regard to commencement of any
construction works or development activities, which are all subsequent
events. As per the provisions of 2006 Notification, the bar is only for
commencement of construction work or execution of proposed
project/works, prior to the obtaining of Environmental Clearance and the
same would happen once the land is entrusted to NHAI. Therefore, a
mere issuance of Section 3D Notification itself cannot not be considered
or construed as commencement of construction work.
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10.7 Now, it would be apposite to extract the Office Memorandum
of the Ministry of Environment, Forests and Climate Change dated
07.10.2014 (2014 OM), which reads as follows:
Office Memorandum
Subject: Status of land acquisition w.r.t. project
site while considering the case for environment
clearance under EIA Notification, 2006-regarding
It has been brought to the notice of this Ministry
that in the absence of a guidelines, different
EACS/SEACs adopt different criteria about the extent to
which the land w.r.t. the project site should be acquired
before the consideration of the case for environment
clearance (EC). Some of the Ministries in the
Government of India and some industrial associations
have represented that full acquisition or land for the
project site should not he insisted upon before
consideration of the case for EC and instead Initiarn of
land acquisition process should be sufficient for the
consideration of such cases. The argument being that
land acquisition process can go on in parallel and that
consideration of EC need not await full far acquisition.
2. The matter has been examined in the Ministry.
The EC granted for a project or activity under the EIA
Notification: 2006, as amended, is site specific. While full
acquisition of land may not be a pre-requisite for the
consideration of the case for EC, there should be some
credible document to show the status of land acquisition
w.r.t project site when the case is brought before the
concerned EAC/SEAC for appraisal. It has been
accordingly decided that the following documents
relating to acquisition of the project site may be
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considered as adequate by EACS/SEACs at the time of
appraisal of the case for EC.
(i) In case the land w.r.t. the project site is
proposed to be acquired through Government
intervention, a copy of preliminary notification issued by
the concerned State Government regarding acquisition of
land as per the provisions of Land Acquisition,
Rehabilitation and Resettlement, Act, 2013.
(ii) In case the land is being acquired through
private Showing the intent of the land owners to sell the
land negotiations with the land owners, credible documer
the proposed project.
3. It may, however, be noted that the EC granted
for a project on the basis of aforesaid documents shall
become invalid in case the actual land for the project site
turns out to be different from the lang considered at the
time of appraisal of project and mentioned in the EC.
4. This issues with the approval of the competent
authority.”
10.8 Subsequent to the issuance of 2006 Notification, different
Environmental Authorities adopted different criteria with regard to which
extent of project site should be acquired before consideration of the case
for Environmental Clearance. The said aspect was brought to the
knowledge of Ministry of Environment, Forests and Climate Change and
hence, the aforesaid 2014 OM came to be issued.
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10.9 As discussed in paragraph Nos.1 & 2 of 2014 OM, after
examining all the aspects, the Authorities have categorically arrived at a
conclusion that while full acquisition of land may not be a pre-requisite
for the consideration of the case for EC, there should be some credible
document to show the status of land acquisition with respect to project
site when the case is brought before the concerned EAC/SEAC for
appraisal. Therefore, insisting of the acquisition of land in full extent by
the concerned Authorities has been relaxed by virtue of the aforesaid OM
to the extent to show some documents relating to acquisition of project
site. Thus, the acquisition of land in full extent at the time of preliminary
notice was relaxed to the aforesaid extent.
10.10 Further, at paragraph Nos.3 & 4 of 2014 OM, it was
concluded that the Environmental Clearance, granted based on the
aforesaid documents, would become invalid in case the actual land for
the project site turns out to be different from the land considered at the
time of appraisal of project and mentioned in the EC. When such being
the case, if the Environmental Clearance is granted after entrustment of
lands to NHAI, the question of carrying out the construction work and
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commencement of project in any land, different from the actual project
site submitted before the Environmental Authorities for which the EC
was granted, would not arise and otherwise, entire exercise for getting
EC will become wasteful exercise and the respondent is required to
follow the entire exercise of land acquisition from the beginning.
10.11 At this juncture, it would be apposite to extract paragraph
No.95 of the PV Krishnamurthy case, wherein the Hon'ble Apex Court
had dealt with the aforesaid 2014 OM and it has been held as follows:
“95. Applying the tenet underlying this notification,
it is amply clear that before the process of acquisition of
land is ripe for declaration under Section 3D of the 1956
Act, it would be open to the executing agency (NHAI) to
make an application to the competent authority for
environmental clearance. That process can be commenced
parallelly or alongside the acquisition process after a
preliminary notification under Section 3A of the 1956 Act,
for acquisition is issued. ”
10.12 In terms of the above paragraph No.95, the Hon'ble Apex
Court has held that NHAI shall make applications for Environmental
Clearance even before the issuance of Section 3D Notification. Further, it
was held that the process of obtaining Environmental Clearance can be
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commenced parallelly or alongside the acquisition process after a
preliminary Notification, under Section 3A of the 1956 Act, for
acquisition.
10.13 Further, at paragraph Nos.100 & 102, in the case of PV
Krishnamurthy, the Hon'ble Apex Court had dealt with the aspect of
reverting back of the subject lands to the respective land owners and the
relevant portion reads as follows:
100. Reverting to the dictum of this Court
in Karnataka Industrial Areas Development
Board (supra), it must be understood to mean that the
declaration under Section 3D regarding acquisition of
notified land, be made only after environmental/forest
clearance qua the specific land is granted. To put it
differently, the necessity of prior environmental/forest
clearance would arise only if finally, the land in
question (site specific) is to be notified under Section
3D, as being acquired for the purposes of building,
maintenance, management or operation of the national
highway or part thereof. Such interpretation would
further the cause and objective of environment and forest
laws, as also not impede the timeline specified for
building, maintenance, management or operation of the
national highway or part thereof, which undeniably is a
public purpose and of national importance. This would
also assuage the concerns of the land owners that even
if eventually no environment permission or forest
clearance is accorded, the land cannot be reverted to the
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original owner as it had de jure vested in the Central
Government upon issue of notification under Section
3D of the 1956 Act and no power is bestowed on the
Central Government under this Act to withdraw from
acquisition.
101. ........
102.The argument of the writ petitioners that the
expression “shall” occurring in Section 3D(1) be
interpreted as “may”, though attractive on the first blush,
deserves to be rejected. If that interpretation is accepted,
it would render the efficacy of Section 3D(3) of lapsing of
the acquisition process otiose. It is a mandatory
provision. Instead, we have acceded to the alternative
argument to give expansive meaning to the proviso
in Section 3D(3) of the 1956 Act by interpretative
process, including by invoking plenary powers of this
Court under Article 142 of the Constitution to hold that
the dictum of this Court in Karnataka Industrial Areas
Development Board (supra) be regarded as stay granted
by the Court to all notifications issued under Section
3A of the 1956 Act until the grant or nongrant of
permissions by the competent authorities under the
environmental and forest laws, as the case may be,
including until the stated permissions attain finality. In
other words, time spent by the executing agency/Central
Government in pursuing application before the concerned
authorities for grant of permission/clearance under the
stated laws need to be excluded because of stay by the
Court of actions (limited to issue of notification
under Section 3D), consequent to notification
under Section 3A. Thus, the acquisition process set in
motion upon issue of Section 3A notification can go on
in parallel until the stage of publication of notification
under Section 3D, which can be issued after grant of
clearances/permissions by the competent authority
under the environment/forest laws and attaining finality
thereof. (*** Emphasis supplied)
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10.14 In the above paragraphs, it has been stated that “after the
issuance of Section 3D Notification, even if no environment clearance is
accorded, the land cannot be reverted to the original owner since no
power is bestowed on the Central Government under the National
Highways Act to withdraw from acquisition”, which means, in terms of
the National Highways Act, if no clearance is obtained or even if any
conclusion arrived at to the extent that the subject lands will not be used
for the purpose of that Act, no provision is available for reverting back of
the land to the respective land owners. May be, by keeping the said
aspect in mind, the Hon'ble Apex Court has held at paragraph Nos.100 &
102 that Environmental Clearance has to be obtained prior to the issuance
of Section 3D Notification, in order to protect the interest of land owners.
10.15 As far as the observation made, at paragraph No.102 of PV
Krishnamurthy case, with regard to the receipt of Environmental
Clearance is concerned, it is not in consonance with the paragraph
Nos.79, 86, 93 & 97 of the very same judgement, 2006 Notification and
2014 OM, wherein it has been categorically held that the Environmental
Clearance is required to be obtained only prior to the commencement of
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actual construction work or execution of proposed work, which would
occur only after the entrustment of land to NHAI and even after
entrustment, NHAI cannot commence the construction work or proposed
work until the receipt of Environmental Clearance. Therefore, this Court
is inclined to go with the findings of the Hon'ble Apex Court at paragraph
Nos.79, 86, 93 & 97, which is in consonance with 2006 Notification and
2014 OM.
10.16 As stated above, at paragraph No.79 of PV Krishnamurthy
case, the Hon'ble Apex Court held that the Environmental Clearance is
required to be obtained not prior to the issuance of Section 3D
Notification but before the commencement of any construction work at
the project site. Such commencement would occur only after the
entrustment of subject lands to NHAI. At the time of issuance of Section
3D Notification, the lands will only be vested with Government.
Therefore, it is crystal clear that Environmental clearances is not required
to be obtained before issuance of Section 3D Notification but prior to the
commencement of construction work by NHAI.
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10.17 To substantiate the above aspect, it would be apposite to,
once again, extract the relevant portion of paragraph No.79 of PV
Krishnamurthy case, wherein the procedures for land acquisition was
elaborately explained and it was categorically held that the
clearance/permission has to be obtained prior to the commencement of
construction work or implementation of the project, which 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. The relevant portion reads as follows:
“79. ...................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
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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. ................”
10.18 In the above paragraph, the Hon'ble Apex Court had clearly
explained the procedures involved in acquisition of land. Initially,
Section 3D Notification has to be issued, by virtue of which, the subject
lands have to be vested with Government. Thereafter, the said lands will
be entrusted to the concerned executing agency, after which, the NHAI
would commence the actual work or execution of proposed work/project.
Therefore, as per the ruling at paragraph No.79 of the PV
Krishnamurthy case, upon the issuance of Section 3D Notification, only
the lands will be vested with the Government and it will not amount to
entrustment of lands with NHAI. Only subsequent to the entrustment, the
NHAI would commence the construction of building and other
developmental activities, that too, after the receipt of Environmental
Clearance.
10.19 At this juncture, it would also pertinent to note that the issue
before the Hon'ble Apex Court was as to whether the Environmental
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Clearance is required to be obtained prior to Section 3A Notification or
not. The said judgements was passed only on the aspect as to whether the
Environmental Clearance is required to be obtained before issuance of
Section 3A Notification or not. Ultimately, the Hon'ble Apex Court had
concluded that before issuance of Section 3A Notification, there is no
requirement for obtaining the Environmental Clearance and the same
shall be obtained prior to the commencement of construction work.
10.20 Therefore, at no stretch of imagination, one could construed
that immediately upon issuance of Section 3D notification, the
construction works or preparation of lands would commence. In terms of
the order passed by Hon'ble Apex Court at paragraph No.79 of PV
Krishnamurthy case, unless and otherwise the land is entrusted with
NHAI by the Central Government, the question of developmental
activities, as mentioned in 2006 Notification, would not arise and even
NHAI cannot commence the project prior to the obtaining of
Environmental Clearance.
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10.21 When such being the case, the view took by the Hon'ble
Apex Court by way of restrictions at paragraph No.102 of the PV
Krishnamurthy case, to the extent that Environmental Clearance is
required to be obtained prior to the issuance of Section 3D Notification,
is only to safeguard the interest of the land owners since there was no
provision for withdrawal of acquisition and reverting back the lands to
the original owners in terms of National Highways Act. Even if the
protection is not available for reverting the land back to the land owners,
and if the purpose, for which the lands were acquired, was not achieved,
certainly, the respective land owners are entitled to make an application
for returning the land, in which case, the respondent-Department is
bound to return the same.
10.22 Therefore, I am of the considered view that except securing
the land, all the other construction activities would happen only when the
property is entrusted by the Government with the NHAI. At the stage of
issuance of Section 3D Notification, only the property will be vested with
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Government and the entrustment of the said property with the NHAI will
be subsequent event. Only after such entrustment, the commencement of
construction work or preparation of land for project/work would arise.
10.23 In view of the above, this Court has no hesitation to hold that
immediately upon issuance of Section 3D Notification, no
commencement of construction work or preparation of land by project
management would occur as held by the Hon'ble Apex Court in PV
Krishnamurthy case. Thus, there is no bar either under the Statute or by
the Apex Court Ruling in PV Krishnamurthy for obtaining
Environmental Clearance up to the stage of entrustment of land to NHAI
by the Government, but before the commencement of construction work
or preparation of land, the NHAI must obtain Environmental Clearance
Certificate.
10.24 When such being the case, there is no bar for the
respondents in issuing Section 3D Notification, prior to the receipt of
Environmental Clearance, since the such issuance of Section 3D
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Notification would not amount to the commencement of construction
work or preparation of land by the project management. The said aspect
would happen only after the entrustment of land by the Government to
the NHAI. Even after such entrustment, the NHAI has to wait until the
approval of Environmental Clearance for commencement of construction
work or preparation of land in the project site. Accordingly, the 2 nd issue
is answered.
11. Other case laws referred by the petitioners:
11.1 Further, a reference was made to the judgment in
C.Kenchappa case, wherein at paragraph No.100, it has been stated as
follows:
“100. The importance and awareness of
environment and ecology is becoming so vital and
important that we, in our judgment, want the appellant to
insist on the conditions emanating from the principle of
`Sustainable Development'.
(1) We direct that, in future, before acquisition of
lands for development, the consequence and adverse
impact of development on environment must be properly
comprehended and the lands be acquired for development
that they do not gravely impair the ecology and
environment.
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(2) We also direct the appellant to incorporate the
condition of allotment to obtain clearance from the
Karnataka State Pollution Control Board before the land
is allotted for development. The said directory condition
of allotment of lands be converted into a mandatory
condition for all the projects to be sanctioned in future.”
11.2 A reading of above paragraph would makes it clear that a
direction was issued by the Hon'ble Apex Court to the extent that the
consequence and adverse impact of development on environment must be
properly comprehended and the lands acquired for development that they
do not gravely impair the ecology and environment.
11.3 Keeping the above order in mind, the Notification 2006 was
issued by stating that before starting the acquisition process, the
respondent had to conduct a thorough Environment Impact Study.
Accordingly, a study was conducted and after satisfaction of the
respondents only, they have proceeded to acquire land and set up the
project. Therefore, the direction issued by the Hon'ble Apex Court, vide
C.Kenjappa case, has been duly followed by the respondents in this case.
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11.4 Yet another reference was made to the order passed by the
Hon'ble Division Bench of this Court in M.Velu case and the relevant
portion of the said order reads as follows:
“45. Since the land acquisition proceeding is only in
the preliminary stage now, we are of the view that before
issuing the notification under Section 3(1) of the Act the
authorities have to approach the statutory authority
constituted under the environment (Protection) Act for
environmental clearance. The report of the statutory
authority must also be considered by the Government
while dealing with the objections submitted by the land
owners and the other interested persons, including the
petitioner and the fifth respondent in pursuance of the
notice issued under Section 3(2) of the Industrial
Purposes Act.
DIRECTIONS:-
46. Therefore keeping in view the direction given by
the Supreme Court in the Karnataka Industrial Areas
Development Board case, (cited supra) we are inclined to
issue the following directions:-
(1) The petitioner is granted liberty to make a
comprehensive representation within fifteen days from the
date of receipt of a copy of this order before the statutory
authority constituted to hear objections relating to the
land acquisition in question in pursuance to the notice
issued under Section 3(2) of the Tamil Nadu Acquisition of
Land for Industrial Purposes Act, 1997. Similar liberty is
granted to the fifth respondent also.
(2) The statutory authority exercising powers under
the Industrial Purposes Act, simultaneous with the process
of hearing the objections from the land owners, petitioner,
fifth respondent and other interested persons should
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approach the State Level Environmental Impact
Assessment Authority for prior environmental clearance
before proceeding further in the matter of issuance of
notice under Section 3(1) of the Act.
(3) In case the State Environmental Impact
Assessment Authority gives clearance for the project in
question, it would be open to the Government to proceed
further with the acquisition of property.
(4) As undertaken by SIPCOT in their counter
affidavit dated 6 February, 2007, appropriate provisions
should be incorporated in the Lease Agreements
mandating preservation of ecology and to maintain the
ponds and other natural streams by the concerned
industrial units.
11.5 As far as the Paragraph No.45 is concerned, in above case, it
was recorded that no Environmental Assessment Study was made after
obtaining acquisition order. However, in this case, as contended by the
respondents, a thorough Environmental Impact Assessment Study was
conducted and after that only the land acquisition process was initiated.
Therefore, the question of obtaining acquisition order/initiating the
acquisition process without conducting Environment Impact Assessment
Study would not arise in this case.
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11.6 As far as the directions issued at Paragraph Nos.46(2) & 46(3)
are concerned, in above case, the Hon'ble Division Bench had no
occasion to consider the 2006 Notification. As discussed above, in terms
of the said 2006 Notification, the question of obtaining Environmental
Clearance would arise only before the commencement of any
construction work or preparation of land by the project management,
which would occur subsequent to the entrustment of land by the
Government to NHAI as held by the Hon'ble Apex Court in the case of
PV Krishnamurthy case at paragraph Nos.79, 86, 93 & 97. Therefore,
the said directions will not apply to the present case at the stage of
issuance of Section 3D Notification.
12. Findings:
12.1 In the present cases, the procedures mentioned in 2006
Notification, 2014 OM and the law laid down by the Hon'ble Apex Court
in PV Krishnamurthy case and C.Kenchappa case, have been duly
adopted by the respondents. Therefore, I am of the considered view that
Section 3D Notification was issued duly in accordance with 2006
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Notification, 2014 OM and in compliance with paragraph Nos.79, 86, 93
& 97 of the order passed by the Hon'ble Apex Court in PV
Krishnamurthy case.
12.2 As discussed above, in these cases, merely by vesting of land
to Government would not amount to commencement of any construction
work or preparation of land by the Project Management. Admittedly, the
construction or other development works would commence only after
obtaining the Environmental Clearance. Until then, the acquisition
process shall go on parallelly as held by the Hon'ble Apex Court at
paragraph Nos.93 & 95 of PV Krishnamurthy case.
12.3 As held by the Hon'ble Apex Court at paragraph No.79 of PV
Krishnamurthy case, the lands can be entrusted to the NHAI. However,
the NHAI has to wait for the purpose of commencement of construction
work until the receipt of Environmental clearance. Therefore, as stated
above, all the acquisition process, including the entrustment of land to
NHAI, shall go on, but the commencement of construction work and
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other developmental activities shall be deferred until the receipt of
Environmental Clearance.
12.4 As far as the petitioner's land is concerned, it is inevitably
required for formation of National Highway “NH948A”. It was also
pointed out by the respondents that the total length of the road is 35.766
km, out of which, the road passing through the petitioner's land is only to
the extent of 200 meter. Even the physical construction of the road has
been completed in 28.05 km, for which a sum of Rs.709 Crore has been
incurred till date. Now, only 0.2 km could not be completed because of
the interim stay order granted by this court in the present cases. As
rightly contended by the respondent, since the public money to the tune
of Rs.709 Crore was already spent on this project, if the proceedings,
pertaining to land acquisition, is quashed at this stage, it will certainly
lead to a great loss to the Central Government.
12.5 Further, the present petitions are not filed with regard to the
public interest but it is only about the private interest of the petitioners.
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Normally, the public interest will prevail over the private interest. That
apart, as stated above the Environmental Clearance was duly obtained by
the respondents and now, only the formation/construction of 0.2 km of
road is yet to be completed. In such view of the matter, now, it is not
proper to entertain these petitions by considering the petitioner's private
interest.
13. Result:
For all the reasons stated above, this Court is not inclined to
entertain these cases. Therefore, these writ petitions are dismissed as
devoid of merits. The interim stay/injunction orders, if any, granted in
these writ petitions stand vacated. No cost. Consequently, the connected
miscellaneous petitions are also closed.
26.02.2026
Speaking/Non-speaking order
Index: Yes / No
Neutral Citation: Yes / No
nsa
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KRISHNAN RAMASAMY.J.,
nsa
W.P.Nos.29753 & 29755 of 2019
26.02.2026
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