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Prior Environmental Clearance Not Required For Notifying Acquisition Of Land For National Highway: Supreme Court

Ashok Kini
8 Dec 2020 11:12 AM GMT
Prior Environmental Clearance Not Required For Notifying Acquisition Of Land For National Highway: Supreme Court
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"Prior EC is required to be taken before commencement of the "actual construction or building work""

The Supreme Court on Tuesday held that prior environmental clearance is not necessary at the stage of notification of land acquisition proceedings for the purpose of national highway.The notifications for land acquisition for the Chennai-Salem eight lane expressway were upheld by the Court.The Court observed that it is not necessary for the Central Government or the National Highway Authority...

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The Supreme Court on Tuesday held that prior environmental clearance is not necessary at the stage of notification of land acquisition proceedings for the purpose of national highway.

The notifications for land acquisition for the Chennai-Salem eight lane expressway were upheld by the Court.

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

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

One of the issues considered by the High Court in this case was whether whether prior environmental clearance was imperative before issuing notifications under Section 3A(1) and at what stage of acquisition proceedings such environmental clearance ought to be made pre­condition? Answering it against NHAI, the High Court had held that the prior environmental clearance/ permission ought to have been obtained before issuance of notifications under Section 3A of the 1956 Act. Before the Apex Court, Centre contended that the High Court committed manifest error in concluding that such notifications under Section 3A of the 1956 Act could be issued only after prior environmental and forest clearances/permissions are granted in that behalf.

The bench noticed that there is nothing in the NH Act or Rules which impels the Central Government to obtain prior environment clearance before exercise of that power and in issuing notification under Section 2(2), much less Section 3A expressing its intention to acquire the designated land. The court further noted that, as per 2006 EIA notification, the environmental/forest clearance is required to be obtained by the executing agency in terms of this notification "before commencing the actual work or executing the proposed work/project. The bench observed:

"The land would vest in the Central Government under the 1956 Act only after publication of declaration of acquisition under Section 3D. And until then, the question of Central Government vesting it in favour of NHAI under Section 11 of the 1988 Act would not arise. However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act. Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for 104 construction of a national highway. These are one­time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide spread environmental impact due to carrying out activities referred to in Section 3B for assessing the worthiness of the land for using it as a national highway. Thus, the question of applying notification of 2006 at this stage does not arise, much less obligate the Central Government to follow directives thereunder."
"On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The competent authority in the former, may be satisfied that the acquisition of land in question is for public purpose, but if the competent authority under the latter 109 legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/permission can be granted after the public hearing."

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

"These directions need to be adhered by the executing agency (NHAI) whilst undertaking the work in furtherance of the approved project. To put it differently, it is incomprehensible that the stated 2006 notification obliges the Central Government to take prior permission even before the stage of "planning" and "finalisation of the project(s)" such as in terms of the minutes dated 19.1.2018 followed by notifications under Sections 2(2) and 3A of the 1956 Act, as the case may be"

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

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


The court noted that in Karnataka Industrial Areas Development Board vs. C. Kenchappa & Ors (2006) 6 SCC 371, it was observed 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. The court said that this dictum 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. It observed thus:

"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 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."

The court further noted that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect. 

"In other words, there is no express provision in the 1956 Act, which excludes the time spent by the Central Government or the executing agency in obtaining prior environmental clearance or permission under forest laws, as the case may be. To get over this predicament, by an interpretative process and also by invoking plenary powers of this Court under Article 142 of the Constitution, we hold that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board (supra), shall operate as a stay by an order of the Court for the purposes of Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws. Only this approach would further the cause of environment and forest laws, as also, the need to adhere to the timeline specified under Section 3D(3) for speedy execution of the work of construction of national highway, which is also for a public purpose and of national importance. In other words, balancing of competing public interests/public purposes need to be kept in mind as being the only way forward for accomplishing the goal of sustainable development."
In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof

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


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

 

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