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

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...

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

Ashok Kini

"Prior EC is required to be taken before commencement of the "actual construction or building work""

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