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

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A time taken in obtaining environmental clearance from the period of one year specified in Section 3D(3) of the 1956 Act. He has highlighted the points taken note of by the High Court in the impugned judgment and supported the conclusion reached by the High Court in setting aside notifications under Section 3A(1) of the 1956 Act. The learned counsel had relied upon the decisions of this Court in Karnataka Industrial B Areas Development Board (supra) and State of Uttaranchal vs. Balwant Singh Chaufal & Ors.43. Similarly, of the Madras High Court in M. Velu (supra), of the Punjab & Haryana High Court in Diljit Singh (supra) and of the American Courts in Commonwealth of Massachusetts (supra), California (supra), Roosevelt Lathan and C Pearline Lathan, his wife (supra), Arlington Coalition on Transportation (supra) and Jones (supra).

21Copy pinpoint21. Mr. Nikhil Nayyar, learned senior counsel espousing the cause of land owners/aggrieved persons adopted the aforementioned arguments and also supported the conclusion reached by the High Court in the impugned judgment. Most of the points made during his oral submissions have been articulated by him in his written submissions. He submits that the impugned notifications under Section 3A as issued, have, in any case, lapsed by operation of law. On merits, he contends that the original Project including C-M (EC) section, had received approval of the CCEA. However, the changed section i.e. C-K-S (NC) had no such prior approval of the CCEA. There is nothing in the Project document to authorise swapping of project/section, as done in the present case in the guise of discretion of 15%. He submits that reliance placed on the original approved project enabling exercise of discretion by the Minister-RTH is completely misplaced. That discretion cannot be invoked for provisioning a completely different project/section, as in this case between Chennai-Salem, and moreso when admittedly, three alternative routes are already available. He invited our attention to the specific grounds articulated in the writ petition(s) filed by the aggrieved persons before the High Court, pointing out gross defects and flaws in regard to the changed section. He would contend that the authorities cannot walk away with the argument of policy decision and the limited scope for intervention by the Courts in that regard. He invited our attention to Bengaluru Development Authority vs. Sudhakar Hegde & Ors.44 to support the argument that notification under Section 3D of the 1956 Act can be issued after appraisal 43 (2010) 3 SCC 402 44 H 2020 SCCOnline SC 328

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 131 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

for grant of environmental clearance under the notification, 2006. He A submits that this interpretation would be consistent with the scheme of the 1956 Act, as hearing of objection under Section 3C is a mandatory requirement and must precede the declaration under Section 3D. In the alternative, he submits that notification under Section 3D should not be issued until environmental and forest clearances are obtained in respect B of the subject project. He submits that the decision in Diljit Singh (supra) does not enunciate the correct legal position. On the other hand, the requirement of law is that the environmental clearance must be obtained beforehand. He submits that the Punjab & Haryana High Court did not have the benefit of MoEF O.M. dated 7.10.2014, which makes the position amply clear about the stage of obtaining environmental clearance. C He had relied on paragraph 100 of Karnataka Industrial Areas Development Board (supra) and also the High Court decision in M. Velu (supra). He also contended that the subject section of the Project has not been sanctioned by the competent authority, as required in terms of the NHAI Manual. He submits that the change of section is without D any tangible basis and is not supported by data required for justifying such change. The change is brought about contrary to the guidelines issued by the MoRTH. In substance, the argument is that the change has been effected hastily and without application of mind, as has been justly concluded by the High Court. He submits that no interference with the High Court decision is warranted. E

22Copy pinpoint22. The next in line to argue was Ms. Anita Shenoy, learned senior counsel. She espouses the cause of the land owners/aggrieved persons. She has supported the conclusion reached by the High Court and also adopted the submissions made by learned counsel preceding her. She has commended to us that environmental clearances must precede the commencement of acquisition process. That is because the EIA process involves steps such as details of alternative sites examined, status of clearances, details of forest land and the physical changes to topography, land use, change in water bodies because of construction and operation of the project, etc. Public consultation also highlights the impact of the project on the people in the area and on the environment. Only on the basis of such empirical data, an informed decision can be taken for grant of environmental clearance. This process ought not to be viewed as any impediment in the project, such as construction of national highways, but as a tool for taking just and appropriate decision including to uphold the H

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A doctrines of “public trust”, “precautionary principle” and “sustainable development”. That is the requirement also under the notification of 2006 and MoEF O.M. dated 7.10.2014. Reliance has been placed by her on Hanuman Laxman Aroskar vs. Union of India45 to highlight the significance of notification, 2006. She has also placed reliance on the exposition in Kamal Nath (supra) to submit that the Courts are free to examine whether the project fulfils the requirements of good faith, for the public good and in public interest and does not encroach upon the natural resources and convert them into private ownership. According to her, notifications under Section 3A have been justly quashed at the threshold stage itself because of serious errors in the decision-making process, which had vitiated the entire process and not merely because of lack of prior environmental clearance. She also highlighted the circumstances emanating from the record, which according to her, clearly go to show that the change of section was a hasty decision and not backed by any study/enquiries which ordinarily ought to precede such declaration. In that, the project stretches under the original Project D (Bharatmala Pariyojna – Phase I) had been identified after a thorough and scientific exercise, carried out on the basis of detailed origin- destination studies, freight flow projections and verification of the identified infrastructure gaps through geo-mapping, using data from Bhaskaracharya Institute for Space Applications and Geo-Informatics E (BISAG), as well as from other sources, and also integration of economic corridors with ongoing projects under the NHDP and infrastructure asymmetry in major corridors. For changing such a well-informed decision, very strong evidence ought to have been produced by the authority deciding to change the same in the short span (i.e. 24.10.2017, when the Cabinet had approved the Phase I of the original Project F consisting of section C-M (EC); and the decision of MoRTH dated 19.1.2018 concerning C-K-S (NC) section). Not even DPR was placed before the MoRTH when such decision regarding change was taken on 19.1.2018. Further, approval accorded by the Cabinet/CCEA for the changed section of the Project, valued at more than Rs.500 crores was G not forthcoming. In fact, the Central Government did not file any counter affidavit to justify why the change was adopted in the meeting dated 19.1.2018. It merely relied upon the counter affidavit of NHAI wherein it is asserted that it was a policy decision. The learned counsel also commented upon the manner in which the Consultant appointed for the 45 H (2019) 15 SCC 401

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 133 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

earlier section of the Project was continued for the changed section A without following necessary fresh tendering procedure. She then commented about the DPR submitted by the Consultant consisting of inaccurate and plagiarised contents. She submitted that good quality roads are essential for development of the area and all concerned, but there are already three existing highways between Chennai-Salem. Resultantly, B the new section/project passing through the fertile agricultural land between Chennai-Salem was bound to impact the environment and also the livelihood of the land owners/farmers without any tangible advantage or gains accruing to them. Judicial review of such a decision was imperative and has been rightly struck down by the High Court.

23Copy pinpoint23. The next learned counsel espousing the cause of land owner(s)/ C aggrieved person(s) is Mr. Kabilan Manoharan. He had appeared in the cross-appeal filed to challenge the opinion of the High Court rejecting assail to the notifications issued under Section 2(2) of the 1956 Act, declaring NH-179A and NH-179B traversing through non-existent roads and on open green-field lands. He would contend that the High Court D failed to comprehend the core aspects agitated by the writ petitioners. He has articulated the ground as follows: - “….. That, the Petitioner had sought to Quash the 1st Respondent MoRTH’s Sec. 2(2) Declaration dated 01-03-2018 under the National Highways Act, 1956 on the GROUND that it was issued E without an enabling provision of law, as Sec. 2(2) of the National Highways Act, 1956 only enables an existing Highway to be declared as a National Highway and thus the G.O. was issued in “Arbitrariness” and in violation of Art. 14 of the Constitution and which is ultra vires the Constitution derived Legislative Powers of the Union (w.r.t. Roads under Entry 23 of the Union List in the F VII Schedule under Art. 246 seen in contract with Entry 13 of the State List) and also ultra vires the Constitution derived Executive Powers of the Union (w.r.t. Roads under Art. 257).” And again: - G “(10) That, the Petitioner will now go on with submissions to demonstrate how the Policy Decision of the Respondents will be subject to Judicial Review given the evident facts that the Sec. 2(2) Declaration of new National Highway NH-179B over Non- existent road and on plain land, that which is a Decision/Declaration H

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A in furtherance of the Policy Decision to implement the Chennai- Salem Expressway Project, is in fact A. Issued in violation of Constitutional Provisions relating to Legislative Powers of the Union w.r.t. Roads as seen from Entry 23 of the Union List in the VII Schedule B under Art. 246 seen in contracts with Entry 13 of the State List B. Issued in violation of Constitutional Provisions relating to Executive Powers of the Union w.r.t. Roads as seen from Art. 257 C C. Issued in violation of Statutory Provisions (i.e. Sec. 2(2) of National Highways Act, 1956) D. Issued by the Delagatee (1st Respondent MoRTH) in an Act beyond the delegated powers (without all required PIB approval, PPPAC Approval, CCEA Clearance that was mandated) E. Issued in violation of a larger Policy (Bharatmala Pariyojna Phase – I; “Bharatmala-I”) F. Issued without any demonstrable Public Purpose as evident from the instances of Non-application of mind over available data on (i) Characteristics of the project (ii) Traffic Analysis (iii) Study of Alternatives F (iv) Economic Analysis (v) Financial Analysis (vi) Sensitivity Analysis (vii) Burden to Exchequer G (viii) Benefits to existing Tollway Concessionaires (ix) Development tied to new Roads (x) Carbon Foot-print reduction from cheaper ways”

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 135 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

These salient points have been elaborated in the written submissions A drawn by Mr. Kabilan Manoharan, learned counsel assisted by Mr. P. Soma Sundaram, Advocate-on-Record. In his submission, this Court should be slow in interfering with the conclusion recorded by the High Court in reference to notifications under Section 3A of the 1956 Act. Learned counsel though has supported the conclusion reached by the B High Court, yet assailed the adverse findings and conclusion in reference to the impugned notifications under Section 2(2) of the 1956 Act. According to him, the challenge to the stated notifications had been answered without reference to the points specifically raised by the writ petitioners. The same were only adverted to in paragraph 43 of the impugned judgment while dealing with point No. (ii). He would submit that the High Court ought to have set aside the notifications issued under Section 2(2) of the 1956 Act declaring new national highways, namely, NH-179A and NH-179-B, as they would traverse through non-existent roads and on green-field lands, being without authority of law. Therefore, the entire process was null and void. Learned counsel has relied upon the decisions of this Court in Col. A.S. Sangwan (supra), Dwarkadas Marfatia & Sons (supra), Synthetics and Chemicals Ltd. & Ors. vs. State of U.P. & Ors.46 and Cipla Ltd. (supra).

24Copy pinpoint24. Two more written submissions have been filed by the learned counsel espousing the cause of land owners/aggrieved persons, namely, by learned counsel - Mr. T.V.S. Raghavendra Sreyas and Mr. S. E Thananjayan. More or less, same points have been urged in their respective written submissions. Even according to them, considering the availability of three existing routes between Chennai-Salem and which have not achieved the maximum traffic, there was no need for a new project in the garb of connecting industries along the Chennai-Salem F route. In that, there are no existing, approved or proposed industrial zones/ SEZs along this route as per Government data. Further, the change recorded in the minutes of the meeting dated 19.1.2018 is not supported by any survey reports or documents containing empirical data to justify new national highway. The Consultant, who was appointed for the original Project concerning C-M (EC) section, presented alignments for the G changed section i.e. C-K-S (NC) in the meeting held on 19.2.2018 even though the intimation regarding change of scope of the Project was made known on 22.2.2018. As the decision was taken on the basis of the DPR

46 (1990) 1 SCC 109 (paragraph 54) H

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A prepared by the Consultant on the basis of incorrect facts mechanically copied from other reports and which was made the base document for consideration by the MoEF for issuance of Terms of Reference, the entire EIA process was vitiated. They have adopted the reasons and findings recorded by the High Court for quashing of the notifications under Section 3A(1) of the 1956 Act and pray for dismissal of the appeals B preferred by the NHAI and the Union of India.

25Copy pinpoint25. We have heard learned counsel for the parties and have also considered the relevant pleadings and documents including written submissions filed by the learned counsel appearing for the concerned parties. C LEGISLATIVE COMPETENCE OF THE UNION

26Copy pinpoint26. The threshold issue, we propose to answer at the outset is about the legislative competence of the Parliament to enact a law for declaring open green-field lands as national highway. Notably, no D declaration was sought by the writ petitioners in reference to the provisions of the 1956 Act, the 1988 Act and in particular, Section 2 of the 1956 Act, to be ultra vires as such. The argument is that since only the State legislature is competent to make a law for construction of new roads traversing through the open green-fields, where no road exists and only in case of an existing road/highway, would the Central E Government have power to declare it as a national highway. To buttress this submission, reliance is placed on Entry 13 of List II (State List) of the Seventh Schedule dealing with the subject on which the State legislature has exclusive power to make a law, namely: - “13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.” In contradistinction, Entry 23 of List I of the Seventh Schedule in respect of which the Parliament has exclusive power to make law, is “highways declared by or under law made by Parliament to be national highways”. It is, therefore, urged that the Central Government had no power to invoke Section 2(2) of the 1956 Act, as it merely enables the Central Government to declare an existing highway to be a national highway. Resultantly, the issue of impugned notifications by the Central H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 137 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

Government under Section 2(2) of the 1956 Act declaring the section A between C-K-S (NC), traversing through non-existent road/highway and through open green-fields, is arbitrary exercise of power and violates Article 14 of the Constitution. It is, therefore, ultra vires the Constitution. It is also ultra vires the Constitution derived executive powers of the Union (w.r.t. “Roads” under Article 257). B

27Copy pinpoint27. As aforesaid, we shall first deal with the legislative power of the Union. Is it limited to making law in exercise of powers ascribable to Entry 23 of List I in respect of an existing highway to be declared as a national highway, as is contended before us? The legislative power of the Parliament can be traced to Article 246, which reads thus: - C “246. Subject-matter of laws made by Parliament and by the Legislatures of States.- (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). D

(2) Notwithstanding anything in clause (3), Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”). E

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ‘State List’). F (4) Parliament has power to make laws with respect to any mater for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.” G Indisputably, law made by the Parliament in the present case is the 1956 Act and the 1988 Act in reference to Entry 23 of List I of the Seventh Schedule. If the stated law made by the Parliament is ascribable to Entry 23 of List I of the Seventh Schedule, the Parliament has the exclusive power to make law on that subject and for matters connected H

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A therewith. The fact that Entry 13 of List II bestows exclusive power upon the legislature of any State concerning subject “roads”, cannot be the basis to give restricted meaning to Entry 23 in List I, dealing with all matters concerning “national highways”. It is well-established position that if the law made by the Parliament is in respect of subject falling under Union List, then the incidental encroachment by the law under the B State list, per se, would not render it invalid. The doctrine of pith and substance is well-established in India. The doctrine is invoked upon ascertaining the true character of the legislation. It may be useful to advert to Article 248 of the Constitution, bestowing legislative powers on the Parliament to make a law with respect to any matter not C enumerated in the Concurrent List or the State List. Concededly, the expression “highways” as such, is not mentioned either in the State List or the Concurrent list. While making law on the subject falling under the Union List in terms of Entry 97 thereof, it is open to the Parliament to make law on any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists. D

28Copy pinpoint28. Indisputably, the entries in the legislative lists are not sources of legislative powers, but are merely topics or fields in respect of which concerned legislative body is free to make a law. The entries must receive a liberal and expansive construction, reckoning the wide spirit thereof and not in a narrow pedantic sense. Entry 23 in List I refers generally to E “highways” declared or to be declared by the Parliament as national highways and all matters connected therewith. This empowers the Parliament to declare any stretch/section across any State as a highway for being designated as a national highway. There is no indication in the Constitution to limit the exercise of that power of the Parliament only in respect of an existing “highway”. Further, whenever and wherever the question of legislative competence is raised, the test is whether the law enacted, examined as a whole, is substantially with respect to the particular topic of legislation falling under the concerned list. If the law made by the Parliament or the legislature of any State has a substantial and not merely a remote connection with the Entry under which it is made, there is nothing to preclude the concerned legislature to make law on all matters concerning the topic covered under the Union List or the State List, as the case may be. Reliance has been justly placed on the dictum of the Constitution Bench of this Court in K.T. Plantation Pvt. Ltd. (supra), that the test is identicalness or diversity between dominant H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 139 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

intention of the two legislations. Moreover, power of law-making itself would be rendered otiose if it does not provide for suitable coverage of matters that are incidental as well as intrinsically connected to the expressly granted power. Further, Chapter II of Part XI of the Constitution dealing with administrative relations between the Union and the States makes it amply clear that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which applied in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose. Article 257 expounds about the control of the Union over States in certain cases. The same reads thus: - C “257. Control of the Union over States in certain cases.- (1) The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the D Government of India to be necessary for that purpose. (2) The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance. E Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of F communication as part of its functions with respect to naval, military and air force works. (3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State. G (4) Where in carrying out any direction given to a State under clause (2) as to the construction or maintenance of any means of communication or under clause (3) as to the measures to be taken for the protection of any railway, costs have been incurred in excess of those which would have been incurred in the discharge H

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A of the normal duties of the State if such direction had not been given, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State.” B Clause (2) predicates that the executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national and military importance. The proviso makes it further clear that the power of the Parliament is not restricted in any way to the matters specified therein. The seven-Judge Constitution Bench in C Synthetics and Chemicals Ltd. (supra) had observed that constitutional provisions specifically dealing with delimitation of powers in a federal polity must be understood in a broad common-sense point of view, as understood by common people for whom the Constitution is made.

29Copy pinpoint29. Suffice it to observe that there is nothing in the Constitution D which constricts the power of the Parliament to make a law for declaring any stretch/section within the State not being a road or an existing highway, to be a national highway. Whereas, the provisions in the Constitution unambiguously indicate that the legislative as well as executive power regarding all matters concerning and connected with a highway to be designated as a national highway, vests in the Parliament and the laws to be made by it in that regard. For the same reason, the complete executive power also vests within the Union.

30Copy pinpoint30. The seminal question is whether the 1956 Act is a law ascribable to Entry 23 of the Union List and it provides for construction of a national highway on a non-existing road/highway traversing through green-field lands. It may be useful to advert to the Statement of Objects and Reasons for enacting the 1956 Act. The same reads thus: - “Statement of Objects and Reasons

1. Under an agreement entered into with the then existing G Provinces, the Government of India provisionally accepted entire financial liability, with effect from the 1st April, 1947, for the construction, development and maintenance of certain highways in the Provinces which were considered suitable for inclusion in a system of national highways. Upon the creation of the Part B H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 141 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

States and the new Part C States under the Constitution, the A National Highways scheme was extended to those States also.

2. Under entry 23 of the Union List. Parliament has exclusive power of legislation with respect to highways which are declared to be national highways by or under law made by Parliament. It is, therefore, proposed that the highways comprised in the Schedule annexed to this Bill should be declared to be national highways. Such a declaration would help the Central Government in exercising its powers with respect to the development and maintenance of these highways more effectively. Power is also sought to be vested in the Central Government to declare by notification other highways to be national highways. Power should also be given to the Central Government to enter into agreements with the State Governments or municipal authorities with respect to the development or maintenance of any portion of any national highway and fees may have to be levied in respect of certain types of services rendered on national highways.

3. The present Bill is designed to achieve the objects set forth above.” (emphasis supplied) E In the present case, we have to consider the sweep of the 1956 Act in light of the amended provisions, which came into force with effect from 24.1.1997. The 1956 Act extends to the whole of India and has come into force on 15.4.1957. Section 2(1) thereof is in the nature of declaration by the Parliament that each of the highways specified in the schedule appended to the 1956 Act to be a national highway. The Schedule F appended in the end gives the description of such highways. Sub-Section (2) of Section 2, however, empowers the Central Government to declare “any other highway” to be a national highway by publishing a notification in the Official Gazette in that behalf and upon such publication, the highway shall be deemed to be specified in the stated Schedule. This G provision contains a legal fiction.

31Copy pinpoint31. This provision annunciates that the Parliament has entrusted the power in the Central Government or the Union to declare from time to time and when required, any other stretch/section in any State to be a national highway, which power could be exercised exclusively by the H

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A Parliament itself under the Constitution. Sub-Section (3) of Section 2 empowers the Central Government to omit any highway from the Schedule and upon such publication, it would cease to be a national highway. In other words, Section 2, as enacted by the Parliament, declared the highways referred to in the Schedule to be national highways and empowered the Central Government to add other highways to be a B national highway and including omit the scheduled highways from time to time as per the evolving exigencies and administrative concerns. There is nothing in this Act to constrict the power of the Central Government to notify any stretch/section (not being an existing road/highway) within any State, to be a national highway.

32Copy pinpoint32. A priori, the Central Government is free to construct/build a new national highway keeping in mind the obligations it has to discharge under Part IV of the Constitution for securing a social order and promotion of welfare of the people in the concerned region, to provide them adequate means of livelihood, distribute material resources as best to subserve the common good, create new opportunities, so as to empower the people of that area including provisioning new economic opportunities in the area through which the national highway would pass and the country’s economy as a whole. The availability of a highway in any part of the State paves way for sustainable development and for overall enhancement of human well-being including to facilitate the habitants thereat to enjoy a decent quality of life, creation of assets (due to natural increase in market value of their properties) and to fulfil their aspirations of good life by provisioning access to newer and present-day opportunities.

33Copy pinpoint33. Sections 3A to 3J of the Act expound the procedure for acquisition of the land for the purpose of building a national highway. F The same are set out hereunder: - 3A. Power to acquire land, etc.—(1) Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the G Official Gazette, declare its intention to acquire such land. (2) Every notification under sub-section (1) shall give a brief description of the land. (3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which H will be in a vernacular language.

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 143 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

3B. Power to enter for survey, etc.—On the issue of a A notification under sub-section (1) of section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to— (a) make any inspection, survey, measurement, valuation or enquiry; B (b) take levels; (c) dig or bore into sub-soil; (d) set out boundaries and intended lines of work; (e) mark such levels, boundaries and lines placing marks and cutting trenches; or (f) do such other acts or things as may be laid down by rules made in this behalf by that Government. 3C. Hearing of objections.—(1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of section 3A, object to the use of the land for the purpose or purposes mentioned in that sub- section. (2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections. F Explanation.—For the purposes of this sub-section,“legal practitioner” has the same meaning as in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961). (3) Any order made by the competent authority under sub-section (2) shall be final. G

3D. Declaration of acquisition.—(1) Where no objection under sub-section (1) of section 3C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under subsection (2) of that H

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A section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of section 3A. B (2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances. (3) Where in respect of any land, a notification has been published under sub-section (1) of section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification, the said notification shall cease to have any effect: Provided that in computing the said period of one year, the period or periods during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of section 3A is stayed by an order of a court shall be excluded. (4) A declaration made by the Central Government under sub- section (1) shall not be called in question in any court or by any other authority. E 3E. Power to take possession.—(1) Where any land has vested in the Central Government under sub-section (2) of section 3D, and the amount determined by the competent authority under section 3G with respect to such land has been deposited under sub-section (1) of section 3H, with the competent authority by the F Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice. (2) If any person refuses or fails to comply with any direction G made under sub-section (1), the competent authority shall apply— (a) in the case of any land situated in any area falling within the metropolitan area, to the Commissioner of Police;

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 145 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(b) in case of any land situated in any area other than the A area referred to in clause (a), to the Collector of a District, and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it. B 3F. Right to enter into the land where land has vested in the Central Government.—Where the land has vested in the Central Government under section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith. 3G. Determination of amount payable as compensation.— (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority. (2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at ten per cent, of the amount determined under sub-section (1), for that land. (3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims from all persons interested in the land to be acquired. (4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land. (5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of H

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A the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government. (6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act. (7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration— (a) the market value of the land on the date of publication of the notification under section 3A; (b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

D (c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings; (d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change. 3H. Deposit and payment of amount.—(1) The amount determined under section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land. (2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government pay the amount to the person or persons entitled thereto. (3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them. H

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(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil court of original jurisdiction within the limits of whose jurisdiction the land is situated. (5) Where the amount determined under section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at nine per cent, per annum on such excess amount from the date of taking possession under section 3D till the date of the actual deposit thereof. (6)Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of subsections (2) to (4) shall apply to such deposit. D

3I. Competent authority to have certain powers of civil court.—The competent authority shall have, for the purposes of this Act, all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:— E

(a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of any document; (c) reception of evidence on affidavits; F (d) requisitioning any public record from any court or office; (e) issuing commission for examination of witnesses. 3J. Land Acquisition Act 1 of 1894 not to apply.—Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under G this Act.”

34Copy pinpoint34. Section 3A of the 1956 Act inserted by way of an amendment in 1997, empowers the Central Government to declare its intention to acquire “any land”. It need not be linked to an existing road or State H

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A highway. For, the expression “any land” ought to include open green- fields for construction or building of a national highway, consequent to declaration under Section 2(2) of the same Act in that regard. The central condition for exercise of such power by the Central Government is that it should be satisfied that such land is required for the public purpose of building a national highway or part thereof. Section 3B of the 1956 Act B empowers the person authorised by the Central Government to enter upon the notified lands for the limited purpose of survey etc., to ascertain its suitability for acquisition for the stated purpose or otherwise. The final declaration of acquisition is then issued under Section 3D of the Act after providing opportunity to all persons interested in the notified C land to submit their objections and participate in a public hearing under Section 3C. The contour of issues debated during this public hearing are in reference to matters relevant for recording satisfaction as to whether the notified land is or is not required for a public purpose for building, maintenance, management or operation of a national highway or part thereof. Be it noted that consequent to publication of declaration under D Section 3D, the land referred to in the notification vests absolutely in the Central Government, free from all encumbrances. Possession of such land is then taken under Section 3E of the Act, upon depositing the compensation amount in the manner provided in Section 3H of the Act and as determined under Section 3G. Section 3F empowers the Central E Government to enter upon the land after the same is vested in terms of Section 3D of the Act. Notably, Section 3J of the Act is a non-obstante provision and it predicates that nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under the 1956 Act. The national highways vest in the Union in terms of Section 4 of the 1956 Act and the responsibility for development and maintenance thereof is primarily that F of the Central Government in terms of Section 5. The Central Government is competent to issue directions to the Government of any State in respect of matters specified in Section 6 of the Act. Section 9 empowers the Central Government to make rules in respect of matters provided therein for carrying out the purposes of the 1956 Act.

35Copy pinpoint35. It is not necessary to dilate on the other provisions of the 1956 Act for the time being. As aforesaid, Sections 3A to 3J have been inserted by way of amendment of 1997. On close examination, the 1956 Act, as amended and applicable to the present case, is an Act to authorise Central Government to declare the notified stretches/sections in the State H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 149 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

concerned as a highway to be a national highway; and for matters connected therewith including acquisition of “any land” for building or construction of a new highway (which need not be an existing road/ highway). The substance of this Act is ascribable to Entry 23 of the Union List and matters connected therewith.

36Copy pinpoint36. Having said thus, we have no hesitation in concluding that the challenge to the notifications issued under Section 2(2) of the 1956 Act on the argument of lack of legislative competence, is devoid of merits. The High Court justly negatived the same and we uphold that conclusion. EXECUTIVE POWERS OF THE UNION

37Copy pinpoint37. A fortiori, even the challenge to the stated notifications on the ground of being ultra vires the Constitution derived executive powers of the Union, must fail. That challenge is founded on the purport of Article 257, which has been reproduced above. It is urged that Article 257 pointedly refers to the sphere of executive powers of the Union. Article 257 of the Constitution, as aforesaid, deals with administrative relations between the States and the Union. In the first place, having said that the Parliament has exclusive legislative competence to make a law in respect of national highways and all matters connected therewith, which includes declaring any stretch/section within the State (not being existing roads/highways) as a national highway, it must follow that the Central Government alone has the executive powers to construct/build E a new national highway in any State and to issue directions to the Government of any State for carrying out the purposes of the 1956 Act. It is incomprehensible as to how the argument of lack of executive power of the Central Government despite such a law, can be countenanced. Concededly, the validity of Section 2 of the 1956 Act, which empowers the Central Government to notify any other highway (other than the scheduled national highways) as a national highway, has not been put in issue. No declaration is sought that the said provision is ultra vires the Constitution or the law. Therefore, the argument essentially requires us to examine the question as to whether Section 2(2) of the 1956 Act enables the Central Government to declare a national highway in respect of a non-existing road(s)/highway(s) and on open green-fields land within the State. Suffice it to observe that the challenge to notifications issued by the Central Government under Section 2(2) of the 1956 Act on the ground of being ultra vires the Constitution derived executive powers, is also devoid of merits. H

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A SCOPE OF SECTION 2(2)

38Copy pinpoint38. We may revert to the argument that the Central Government, even if is competent to declare any stretch/section as a national highway, can do so only in respect of an existing road/highway within the State and not in respect of non-existent road, much less traversing through the B open green-field lands. Somewhat similar question was dealt with by the same High Court (Madras High Court) in reference to the provisions of the Tamil Nadu Highways Act, 2001 in Jayaraman (supra). However, we are called upon to examine the question under consideration in reference to the 1956 Act and the 1988 Act. Hence, we proceed to examine Section 2 of the 1956 Act, which reads thus: - C “2. Declaration of certain highways to be national highways.- (1) Each of the highways specified in the Schedule is hereby declared to be a national highway. (2) The Central Government may, by notification in the Official D Gazette, declare any other highway to be a national highway and on the publication of such notification such highway shall be deemed to be specified in the Schedule. (3) The Central Government may, by like notification, omit any highway from the Schedule and on the publication of such notification, the highway so omitted shall cease to be a national highway.” We have briefly adverted to the scope of sub-Section (1), which is in the nature of declaration by the Parliament that each of the highways specified in the Schedule appended to the 1956 Act shall be a national highway. For building a new highway, as in the present case, between stretch/section C-K-S (NC) NH-179A and NH-179B respectively, the Central Government can do so in exercise of power conferred upon it under Section 2(2) of the 1956 Act. That empowers the Central Government to notify any other highway (not forming part of the Schedule appended to the Act) as a national highway and upon such publication of notification in the official gazette, the said highway is deemed to be specified in the Schedule as a national highway. This power is not constricted or circumscribed by any other inhibition, such as to declare only an existing road or highway within the State as a national highway. The requirement of a national highway within the country as a whole and State-wise, in particular, is to alleviate evolving socio-economic H

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dynamics, for which such a wide power has been bestowed upon the A Central Government. The Central Government is obliged to do so to facilitate it to discharge its obligations under Part IV of the Constitution. There is nothing in the Constitution of India or for that matter, the 1956 Act to limit that power of the Central Government only in respect of existing roads/highways within the State. To say so would be counter- B productive and would entail in a piquant situation that the Central Government cannot effectively discharge its obligations under Part IV of the Constitution unto the remote inaccessible parts of the country until the concerned State Government constructs a road/highway within the State. On the other hand, if the concerned State, due to reasons beyond its control or otherwise, is unable/flounder to provision a road/ C highway in a given segment of the State; despite being imperative to do so to assuage the perennial difficulties faced by the locals in that belt due to lack of access, the Central Government may come forward and step in to construct a national highway and connect the area with the other parts of the country. By its very nomenclature, a national highway D is to link the entire country and provide access to all in every remote corner of the country for interaction and to promote commerce and trade, employment and education including health related services. This approach would enhance and further the federal structure. This is because, the existence of a national highway in the neighbourhood paves way for the fulfilment of aspirations of the locals and their empowerment. E It not only brings with it opportunity to travel across, but also propels the economy of that region and the country as a whole. It gives impetus to myriads of social, commerce and more importantly, access to other activities/facilities essential for the health, education and general well- being of the locals, in particular. F

39Copy pinpoint39. The expression “highway” has not been defined in the 1956 Act or even in the 1988 Act. Dictionary meaning of the term “highway” as per Venkataramaiya’s Law Lexicon (Second Edition) is as follows: - “Highway.- A highway is the physical track along which a vehicle travels. [See Kelani Valley Motor Transit Co. Ltd. v. G Colombo, etc. Ltd., A.I.R. 1946 P.C. 137. Public roads, which every subject of the kingdom has right to use. Wharton’s Law Lexicon.] The common definition of highway which is given in all the text-books of authority is that it is a way leading from one market town or inhabited place to another inhabited place, which H

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A is common to all the Queen’s subjects (per Coleridge, C.J. Bailey v. Jamieson, 34 L.T. 62) but if the dedication to the public is clear, a thoroughfare is not essential to a highway, e.g. cul desac may be a highway. – Rugby Trustees v. Merryweathers, 103 E. R. 109. B The common definition of a “highway” is that it is a way leading from one marked town or inhabited place to another inhabited place, and which is common to all the subjects of the sovereign. Public bridges are highways so far as the right of passage is concerned. [Halsbury’s Laws of England, Vol. 16, para. 1] A bridge is not the private property of an individual, but is the property of the State, and is a public bridge. – K.K. Wadhwani, Mrs. V. State of Rajasthan, I.L.R. (1967) Raj. 850 at p. 852 : A.I.R. 1958 Raj. 138. The right of the public in a highway is merely to pass and repass. Such right can be restricted at the time of the dedication and whether the right is restricted or not is generally established by the nature of the user. The presumption generally is that the dedication is for the ordinary and reasonable user of the road as a highway. It is well settled that the question of the kind of traffic for which a highway is dedicated is a question of fact and it has to be answered having regard to the character of the way and the nature of the user. It is also settled that a right of passage once acquired will extend to “more modern forms of traffic reasonably similar to those for which the highway was originally dedicated, so long as they do not impose a substantially greater burden on the owner of the soil, nor substantially inconvenience persons exercising the right of passage in the manner originally contemplated”. The right of the public is a right to “pass along” a highway for the purpose of legitimate travel not to be on it except so far as their presence is attributable to a reasonable and proper user of the highway as such. A person who is found using the highway for other purposes must be presumed to have gone there for such purposes and not with a legitimate object and as against the owner of the soil he is to be treated as a trespasser – Moti Lal v. Uttar Pradesh Government, A.I.R. 1951 All. 257 at p.267. H

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In order to constitute a valid dedication to the public of a highway A by the owner of the soil, it is clearly settled that there must be an intention to dedicate – there must be an animus dedicandi ; of which the user by the public is evidence, and no more ; and a single act of interruption by the owner is of much more right, upon a question of intention, than many acts of enjoyment. B There may be a dedication to the public for a limited purpose ; as for a boot-way, house-way or drift-way ; but there cannot be a dedication to a limited part of the public. Muhammad Rustam Ali Khan v. Municipal Committee of Karnal City, 38 M.L.J. 455 at p.460. C The normal use of the word “highway” includes “road”, particularly when the reference is to places where “there is a public right of travel”. – R. ex rel. Johnson v. Johansen, (1962) 38 W.W.R. 381, per manning, J. at p. 383; Words and Phrases Legally Defined, 2nd Ed., Vol. II, p. 360.” D

40Copy pinpoint40. The meaning of expression “highway”, as expounded in the P. Ramanatha Aiyar’s Advanced Law Lexicon (6th Edition) reads thus:- “Highway. Means a National Highway declared as such under section 2 of the National Highways Act, 1956 and includes any Expressway or Express Highway vested in the Central E Government, whether surfaced or unsurfaced, and also includes- (i) all lands appurtenant to the Highway, whether demarcated or not, acquired for the purpose of the Highway or transferred for such purpose by the State Government to the Central Government; F (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such Highway; and (iii) all trees, railings, fences, posts, signs, signals, kilometre stone and other Highway accessories and materials on G such Highways. [Control of National Highways and Land Traffic Act, 2002 (13 of 2003), section 2(e)]” The expression “national highway” has been defined in the same Law Lexicon as follows: - H

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A “National Highway. National highway is invariably a metalled road and it could be a road within the meaning of section 2(6) of the Act if it is maintained by the State Government. Bhulli v. State, MLJ : QD (1961-1965) Vol V C1769 : 1964 All WR (HC) 512 : 1964 All Cr R 379 [U.P. Road Side Land Control Act (10 of 1965), section 2(6)] B “NATIONAL HIGHWAYS” means the highways specified in the Schedule to the National Highways Act, 1956 or any other highway declared as national highway under sub-section (2) of Section 2 of the said Act. [Motor Vehicles (Driving) Regulations, 2017, Regn.2(1)(i)]” C

41Copy pinpoint41. The Central Government, whilst exercising power under Section 2(2) of the 1956 Act creates a right in the locals of the concerned area to pass and repass along a highway from one marked town or inhabited place to another inhabited place for the purpose of legitimate travel. Such highway is dedicated for the ordinary and reasonable user D of the road as a national highway from one designated town (Chennai) upto another town (Salem), which will be common to all the subjects. As expounded hitherto, the Central Government is fully competent to notify “any land” (not necessarily an existing road/highway) for acquisition, to construct a highway to be a national highway. E MODIFICATION OF PROJECT AND EXTENT/SCOPE OF REVIEW

42Copy pinpoint42. It was next contended that the decision to change the stretch/ section to C-K-S (NC) was arbitrary and was not backed by scientific study. The original Project (Bharatmala Pariyojna - Phase I) included section – C-M (EC), as approved by the CCEA in October, 2017. It is true that the Project (Bharamala Pariyojna Phase I) was conceived after a scientific study as a comprehensive project at the macro (national) level for 24,800 kms. in Phase I, spanning over a period of 5 years (2017-18 to 2021-22) at an estimated outlay of INR 5,35,000 crores with an objective to improve the efficiency of freight and passenger movement across the country by bridging critical infrastructure gaps through effective interventions like development of Economic Corridors, Inter Corridors and Feeder Routes (ICFR), National Corridor Efficiency Improvement, Border and International connectivity roads, Coastal and Port connectivity roads and Green-field expressways. This Project, being H

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a macro level project, does not reckon the nuanced imperatives of a A particular region or area, which may only be a miniature of the whole Project traversing across around 24,800 kms. in Phase I. For that reason, the approved Project itself bestows discretion upon the MoRTH to substitute/replace up to 15% length of 24800 kms., of the Project (Phase I), by other suitable projects. It is so provided in clause III, which reads B thus: - “III. Minister -RTH is authorized to substitute/replace up to 15% length of 24,800 kms for Phase I of the program by other suitable projects, if development of certain identified stretches under the program cannot be taken up on account of issues pertaining to alignment finalization, land availability and other unforeseen factors. C MoRTH shall retain the same target and budget proposed above.” It could thus be understood that alteration to the extent of 15% is permissible, if development of certain identified stretches under the program cannot be taken up on account of issues pertaining to alignment finalisation, land availability and other unforeseen factors and concerns D relating to congestion, reduction of distance, operational efficiency are some of the factors which may attract such alteration, as we shall see. In the meeting convened on 19.1.2018, chaired by the Secretary, MoRTH for examining the micro level implementation of the comprehensive Project and keeping in mind the pressing requirements of the concerned E State, the Committee opted for substitution/replacement of the original stretch/section [C-M (EC)] for the reasons recorded in the minutes. It decided to change the section - C-M (EC) to C-K-S (NC) as regards State of Tamil Nadu. It was a well-considered decision taken by the said Committee set up under the aegis of the MoRTH. It must be assumed that the broad-based committee of experts in the field, was fully aware F of the governing policies and criteria for designating national highways. It was also cognizant of the requirements and priorities of the concerned area and the norms specified for prioritising the stretches/sections. In that, national highways are regarded as arteries of the country’s economy. That there is marked distinction and importance of being a National G Corridor, in preference to the Economic Corridor which is for connection of economically important production and consumption centres (44 identified) under the Project (Bharatmala Pariyojna - Phase I). Hence, it was unanimously resolved by the Committee to opt for National Corridor for the stretch/section Chennai-Salem inter alia because it would be the H

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A shortest route with very minimal logistical issues in completion thereof. That was also for efficiency improvement of existing Economic Corridor [C-M (EC)] and for decongestion of corridor network with seamless connectivity with National corridor. Even the Project (Bharatmala Pariyojna - Phase I) focuses on enhanced effectiveness of already built infrastructure, multimodal integration, bridging infrastructure gaps for B seamless movement and integrating National and Economic Corridors. As per this project, the Golden Quadrilateral and NS-EW Corridors carrying 35% of India’s freight were to be declared National Corridors. The criteria for selection of corridors has been spelt out thereunder as follows: - C “I. Criteria for selection of corridors Selection criteria for projects to be taken up under Bharatmala Phase-I are to be as follows: -

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A (emphasis supplied in italics)

43Copy pinpoint43. Be that as it may, one of the reasons recorded in the minutes is that instead of opting for expansion of the existing stretch/section [C- M (EC)], a crow-flight green-field alignment be preferred and developed between Chennai and Salem via Harur under National Corridor Efficiency B Improvement, so as to reduce the distance between Chennai and Salem/ Coimbatore by 40 kms. and also diversify the traffic from the congested Chennai-Krishnagiri section of Golden Quadrilateral and Chennai- Ulundurpet section of the C-M (EC). At the outset, it had been noted that the traffic from Chennai bound to Salem/Coimbatore and Pallakad (Kerala) currently uses the Chennai-Krishnagiri section of the Golden C Quadrilateral (Chennai-Bengaluru) and the Krishnagiri-Salem section of the North-South corridor or the Chennai-Tindivanam-Ulundurpet section of the C-M (EC) and the Ulunderpet-Salem Inter-corridor route, thereby congesting Chennai-Krishnagiri section of Golden Quadrilateral and Chennai-Tindivanam (72,000 PCU) – Ulundurpet (47,000 PCU) D section of the C-M (EC). It is well settled that the findings of expert bodies in technical and scientific matters would not ordinarily be interfered with by the Courts – as observed in paragraphs 59 to 62 of Akhil Bharat Goseva Sangh (supra) - (also see – K. Vasudevan Nair & Ors. vs. Union of India & Ors.47 and Systopic Laboratories (Pvt.) Ltd. vs. Dr. Prem Gupta & Ors.48). Again, in Kushala Shetty (supra), this E Court analysed the provisions of the 1956 Act (Sections 3A to 3D) and opined that it is not open to the Court to castigate the reasons weighed with the competent authority. As we are dealing with this decision, we may note with approval dictum about the functions of the NHAI, as adverted to in paragraph 28 of the reported judgment. The same reads thus: - “28. Here, it will be apposite to mention that NHAI is a professionally managed statutory body having expertise in the field of development and maintenance of national highways. The projects involving construction of new highways and widening and development of the existing highways, which are vital for the development of infrastructure in the country, are entrusted to experts in the field of highways. It comprises of persons having vast knowledge and expertise in the field of highway development 47 1991 Supp (2) SCC 134 (paragraphs 19 and 20) 48 H 1994 Supp (1) SCC 160

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and maintenance. NHAI prepares and implements projects relating to development and maintenance of national highways after thorough study by experts in different fields. Detailed project reports are prepared keeping in view the relative factors including intensity of heavy vehicular traffic and larger public interest. The courts are not at all equipped to decide upon the viability and feasibility of the particular project and whether the particular alignment would subserve the larger public interest. In such matters, the scope of judicial review is very limited. The court can nullify the acquisition of land and, in the rarest of rare cases, the particular project, if it is found to be ex facie contrary to the mandate of law or tainted due to mala fides. In the case in hand, neither has any violation of mandate of the 1956 Act been established nor has the charge of malice in fact been proved. Therefore, the order under challenge cannot be sustained.” (emphasis supplied) D

44Copy pinpoint44. Thus understood, there is no substance in the argument that the change of stretch/section to C-K-S (National Corridor) was not based on any tangible material to sustain the stated decision of the Committee. Indeed, the necessity to enhance the existing section of Economic Corridor between Chennai-Madurai was taken note of in the principal E Pariyojna. However, the Committee, as per the discretion bestowed in it in terms of the approved Pariyojna, whilst reckoning the imperatives of the region under consideration for micro level implementation, took a conscious decision to opt for C-K-S (National Corridor) being relatively more beneficial and to strengthen the National Corridor; and at the same time increase efficiency of the existing economic corridor. Such decision, F obviously, partakes the colour of a policy decision of the Central Government, which is also backed by the guidelines issued on 26.2.2018 by the competent authority of the same Ministry of the Government of India, MoRTH (Planning Zone). This communication refers to the approval of the Project (Bharatmal Pariyojna Phase I) by the CCEA in G October, 2017 recording obstructions/difficulties faced during upgradation of the existing road arteries. After reckoning those issues, it is observed as follows: -

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A “Annexure – 1.1 No. NH-15017/21/2018 – P&M Government of India Ministry of Road Transport & Highways (Planning Zone) B Transport Bhawan, 1, Parliament Street, New Delhi – 110001 Dated: February 26, 2018 To,

1. The Chief Secretaries of all the State Government/ UTs C

2. The Principal Secretaries/Secretaries of all States/UTs Public Works Department dealing with National Highways, other centrally sponsored schemes.

3. All Engineers-in-Chief and Chief Engineers of Public Works D Department of States/UTs dealing with National Highways, other centrally sponsored schemes.

4. The Chairman, National Highways Authority of India, G-5 & 6, Sector-10, Dwarka, New Delhi-110075.

5. The Managing Director, NHIDCL, PTI Building, New E Delhi-110001

6. All CE-Ros, Ros and ELOs of the Ministry

7. The Director General (Border Roads), Seema Sadak Bhawan, Ring Road, New Delhi-110010 F Subject: Determination of Alignment/route for widening of National Highways – approach reg.

1. The Ministry of Road Transport & Highways has been undertaking development of National Highways across the country through its various project executing agencies, namely, the NHAI, G NHIDCL, the State PWDs and the BRO. The programme for construction and development of National Highways acquired a new dimension with the construction of Golden Quadrilateral (GQ) and the North-South and East-West Corridors in the country. Though the National Highways account for only about 2% of the total road network of the country, it is primarily because of H

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construction of national corridors that the NHs today carry and support movement of more than 40% of the road traffic.

2. With the exception of GQ and the North-South and East-West Corridors and a few more prominent green-field Highways/ Expressways, the Central Government has been generally taking up development of NH Projects through up-gradation of the existing State Highways, major district roads and other roads, which, in other words, are known as the brown-field projects. The configuration of National Highways varies from – Two-Lane with paved shoulders (largely covering the NHs connecting interiors, backward & tribal areas, tourist destinations, and the roads constructed in the hill states of North-west and North-east), C to up-gradation from the existing 2-lane roads to four-lane/six- lane and eight-lane, depending upon traffic volumes between the origin, intervening and destination points.

3. Approval of the Bharatmala Pariyojana by the CCEA in October 2017, marks a major shift in approach, with focus on corridor approach, wherein it is planned to optimize the efficiency of existing National Corridors, develop Economic Corridors and new Expressways, take up roads for inter-connectivity, apart from construction of ring roads/ bypasses around 28 major towns to remove the congestion and choke points. The ultimate intended objective is to construct major road corridors with improved geometry, which reduce travel time and costs, and help in faster movement of people and goods with attendant road safety parameters.

4. The lower categories of existing roads contain several inherent deficiencies especially in conformance to design standards, alignment/ geometry, land width etc. which at times also become road safety hazards and which are not addressed before declaration of these roads as National Highways. Up-gradation of the existing road arteries to National Highways has been found to be sub-optimal in many cases due to the following factors: G (i) Existing roads have been developed with greater focus on connecting the en-route towns and places, which is often seen to be compromising on the road geometry and leading to longer distance between the major origin-destination H

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A points. A majority of these roads follow serpentine alignments as compared to crow-flight alignments; (ii) Expansion of an existing road necessarily involves: (a) acquisition of additional land for the required Right of Way (RoW), (b) shifting of utilities, and (c) felling of trees along B the existing alignment. Further, as road arteries are considered to create huge value to the land abutting the road and the adjoining areas, the land situated along/ abutting any existing road artery (including a rural road) costs at least twice as much as the land under a greenfield alignment would do; C (iii) Serious constraints have been faced in acquisition of land for widening of an existing road especially in areas where habitations/commercial activities have come up over time, which necessitate demolition of existing structures in such inhabited areas, which often leads to compromise on the required uniform RoW and entail associated costs & time; (iv) Removal/demolition of existing built-up structures along the required RoW makes it not only difficult but also far more expensive in terms of the associated costs. It becomes all the more challenging when it comes to removal of religious structures (e.g. temples, mosques churches etc. which are again found to be in existence in large numbers along the existing roads); (v) Widening of existing roads further necessarily requires shifting of the utilities (electrical, water supply and other utilities) laid along the existing RoW, entailing considerable costs and time; (vi) Further, in the same vein, widening of the existing roads require felling of trees, requiring forest related approvals and associated costs in terms of payment of NPV and felling charges apart from damage to the existing green cover and the time taken in completion of these processes.

5. As such, the determination of proper alignment of a NH project has become very critical. While selecting the route/ alignment of the National Highways, various factors are to H

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be considered such as the cost of land, cost of building/ A establishment, cost of shifting of utilities, construction cost of the road, cost of the safety features, transportation cost/ road user cost, maintenance cost etc. In such a situation, there is every likelihood of achieving a better alternative in the form of a green-field alignment, a few km away, to B the left/right or north/south of the existing alignment. A few test cases have shown that most of these challenges are effectively met. If we take up construction of green-field NH arteries, especially where the traffic volumes justify up-gradation of a two-lane road to higher configurations, which offer the following advantages: C (i) Typically, the available RoW in an existing 2-lane road varies between 12 mtrs to 24 mtrs maximum. As per the NH norms for a 4/6/8 lane Highway, we require a minimum RoW of 60 mtrs. (the norm for an Expressway is 90 mtrs.). It has been found that it is D eminently feasible to acquire a RoW of 60 to 70 mtrs for the green-field in the same cost as involved in expansion of an existing road, especially when we take into account the associated costs and time taken in utility shifting, tree-felling, additional compensation for demolition of structures coming in the expanded E RoW; (ii) A green-field Highway with a RoW of 60 to 70 mtrs. would cater to the traffic-flows and up-gradation of such Highway up to 8-lanes, along with service roads, wherever required (say, it gives a long term perspective of about next 30 to 40 years); (iii) Offers the choice of a near-perfect (crow-flight) road geometry, with reduced distance and savings on travel-time and fuel costs. The towns situated in close vicinity to such alignments can always be connected to the Highway with spurs: (iv) The land acquisition is faster, with minimal resistance and cost-effective;

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A (v) It opens up the potential for development of new areas and wealth creation for the less developed areas.

6. It has also been observed that in case National Highways are developed along the existing roads alignments, the problems of traffic hazards are not substantially resolved especially in the city/ B town area, which may lead to delays and congestion costs also. In case of green-field alignment, it becomes feasible to avoid such delays and congestions. As such, in carrying out the cost-benefit analysis of both the options, factors such as environmental and social impact may also be considered besides carrying out cost comparison towards delays and C congestion removal.

7. Accordingly, the Consultants involved in preparation of DPRs for development of National Highways, especially where it is proposed to upgrade an existing two-lane Highway to a higher configuration of 4/6/8 lane, and where Notification under Section D 3D of the NH Act, 1956 has not yet been issued, shall necessarily carry out a comparative cost-benefit analysis while recommending the route/alignment of highway development along the existing alignment, with the alternate option of a green-field alignment, which is a few kms away from the existing alignment. While E carrying out the cost benefit analysis of both the options, the following factors shall be considered: (i) Extant of land acquisition and the associated costs; (ii) Number of structures required to be acquired along their extant and costs. F (iii) The quantum of utilities and costs required for their shifting. (iv) The extent of tree-felling and the associated cost & time for obtaining the requisite permissions.

8. Keeping the aforesaid in view, agencies executing the G NH projects on behalf on MoRTH, are hereby advised to: (i) Require their DPR consultants for each project (especially wherein it is envisaged to be upgraded to 4-lane and above configurations and in respect of which Notification under Section 3D has not been H

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issued), to examine the feasibility of development of A a green-field NH in each case; (ii) While examining the feasibility of a green-field alignment between the origin and destination points, it should, as far as possible, follow a crow-flight route alignment with a little distance from the existing habitations/towns and identify the towns that need to be connected through spurs. (iii) Clearly bring out in its report the advantages in terms of reduction in length/distance, geometric improvements and other advantages along with the cost-benefit analysis so as to enable the competent authority to take considered decisions in this behalf.

9. Approach to development of NH along a Green-field alignment: In case the green-field alignment option works out to be a D preferred option, then – (i) The entire RoW (60m-70m) may be acquired for a maximum capacity of 8 lane main carriage-way with provision for service roads. In case of Expressways, 90m RoW shall be acquired. E (ii) Initially 4-lane carriage-way with 4-lane structures shall be developed with additional land left in the median for future expansion. (iii) The highway shall have provision for service roads, preferably of 10 mtrs width, with maximum access- F control for the main carriage-way. (iv) Access to the towns/cities/establishments located on the existing National Highway, may be provided through spurs from the green-filed route.

10. It has, therefore, been decided with the approval of competent G authority that such analysis is to be made an integral part of the DPR preparation. Accordingly, the contents of this circular may be incorporated in the TOR of the DPR consultancy. All the executive agencies are requested to adhere to these guidelines.” (emphasis supplied) H

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45Copy pinpoint45. There is no challenge to these guidelines. Indeed, these guidelines have been issued after the decision was already taken on 19.1.2018 in respect of section - C-K-S (NC) in lieu of C-M (EC) section. However, it needs to be understood that the decision was taken by the broad-based Committee of experts, of which the Secretary of the same Ministry (MoRTH) which had issued the guidelines on 26.2.2018, was the Chairperson alongwith the other officials including the officials of NHAI. The decision regarding change is a policy decision. Moreso, keeping in mind that the change in alignment and the purpose of such a change is stated to be for strengthening the national corridor in preference to the economic corridor in the region, it is not open to disregard this opinion of the Central Government based on the recommendation of the Committee constituted by it for that singular purpose.

46Copy pinpoint46. This Court in Sooraram Pratap Reddy (supra) had held that it is the primary duty of the competent authority to decide whether there exists public purpose or not. The Courts may not ordinarily interfere with that unless the power is being exercised malafide or for collateral purposes or the decision is dehors the Act, irrational or otherwise unreasonable or so-called purpose is no public purpose at all and fraud of statute is manifest. Further, it is not for the Courts to sit over such decision as a Court(s) of appeal and to disregard it merely because another option would have been more beneficial. We may usefully advert to the dictum of the Constitution Bench of this Court in Somawanti (supra). In paragraph 36 (of SCCOnline), the Court observed thus: - “36. Now whether in a particular case the purpose for which land is needed is a public purpose or not is for the State Government to be satisfied about. If the purpose for which the land is being acquired by the State is within the legislative competence of the State the declaration of the Government will be final subject, however, to one exception. That exception is that if there is a colourable exercise of power the declaration will be open to challenge at the instance of the aggrieved party. The power committed to the Government by the Act is a limited power in the sense that it can be exercised only where there is a public purpose, leaving aside for a moment the purpose of a company. If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all the action of the Government would be colourable as not being relatable to the H

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power conferred upon it by the Act and its declaration will be a A nullity. Subject to this exception the declaration of the Government will be final.” In the present case, it is seen that the basis for taking such informed decision by the Committee is ascribable to tangible aspects referred to in the minutes of the meeting held on 19.1.2018 (as is manifest from the factual aspects recorded therein). The decision of this Court in Dwarkadas Marfatia & Sons (supra) will be of no avail, because we find that the decision of the Committee was well-informed and backed by reasons guided by public interest. We must remind ourselves of the word of caution noted by this Court in Col. A.S. Sangwan (supra) that the Courts should be loath in dealing with policy and administrative reasons. The Court observed thus: - “4. …. A policy once formulated is not good for ever; it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and readjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as court, give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. … So, E whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the court from making or changing its policy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done.” F

(emphasis supplied) We may usefully advert to yet another decision of this Court in Cipla Ltd. (supra), wherein the Court observed thus: - “4.1. It is axiomatic that the contents of a policy document G cannot be read and interpreted as statutory provisions. Too much of legalism cannot be imported in understanding the scope and meaning of the clauses contained in policy formulations. At the same time, the Central Government which combines the dual role of policy-maker and the delegate of H

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A legislative power, cannot at its sweet will and pleasure give a go- by to the policy guidelines evolved by itself in the matter of selection of drugs for price control. … It is nobody’s case that for any good reasons, the policy or norms have been changed or have become impracticable of compliance. That being the case, the Government exercising its delegated legislative B power should make a real and earnest attempt to apply the criteria laid down by itself. The delegated legislation that follows the policy formulation should be broadly and substantially in conformity with that policy, otherwise it would be vulnerable to attack on the ground of arbitrariness resulting in violation of Article C 14. 4.2. In Indian Express Newspapers (Bom) (P) Ltd. v. Union of India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121] the grounds on which subordinate legislation can be questioned were outlined by this Court. E.S. Venkataramiah, J. observed thus: (SCC p. D 689, para 75) “75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. E In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. … It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. In England, the Judges would say ‘Parliament never intended authority to make such rules. They are unreasonable and ultra vires’.” 4.3. True, the breach of policy decision by itself is not a ground to invalidate delegated legislation. … No doubt, in such matters, wide latitude is conceded to the legislature or its delegate. Broadly, the subordinate law-making authority is guided by the policy and objectives of the primary legislation disclosed by the preamble and other provisions. The delegated legislation need not be modelled on a set pattern or prefixed guidelines. However, where the delegate goes a step further, draws up and announces a rational policy in keeping with the purposes of the enabling legislation and even lays down specific

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criteria to promote the policy, the criteria so evolved become the guideposts for its legislative action. In that sense, its freedom of classification will be regulated by the self-evolved criteria and there should be demonstrable justification for deviating therefrom. Though exactitude and meticulous conformance is not what is required, it is not open to the Government to go haywire and flout or debilitate the set norms either by giving distorted meaning to them or by disregarding the very facts and factors which it professed to take into account in the interest of transparency and objectivity. …” (emphasis supplied) C

47Copy pinpoint47. Be it noted that the notifications under Section 2(2) to declare the C-K-S (NC) section as NH-179A and NH-179B, as the case may be, were issued only after due deliberation by the broad-based committee of experts, which decision we find is also in conformity with the guidelines contemporaneously issued by the concerned department on the same subject matter. Such a decision cannot be labelled as manifestly arbitrary, irrational or taken in undue haste as such. As a result, it was not open to the High Court to interfere with the change so articulated in the meeting held on 19.1.2018 or the notifications issued under Section 2(2) of the 1956 Act declaring C-K-S (NC) as a national highway (i.e. NH-179A and NH-179B). The declaration of a highway being a national highway is within the exclusive domain of the Central Government in terms of Section 2(2) of the 1956 Act. The argument of the land owners that prior approvals ought to have been obtained from the CCEA and regarding budgetary arrangement, is premised on the manuals which govern the functioning of the executing agency (NHAI). As the decision regarding change of stretch/section has been taken by the concerned department of the Central Government itself and the approved Project (Bharatmala Pariyojna - Phase I) also recognises that such change in the form of substitution/replacement of the stretch/section can be done by the Ministry upto 15% length of 24,800 kms., so long as it does not entail in incurring of additional costs, it becomes integral part of the originally approved project (for Phase I) for all purposes. In the present case, the costs for construction of C-K-S (NC) were bound to be less than the originally conceived C-M (EC), as the length of the road is reduced significantly. In other words, it would operate as minor change to the original plan with deemed approval thereof and get interpolated therein. H

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A Further, the minutes recorded on 19.1.2018 do indicate that the decision was to be placed before the CCEA in the ensuing biannual meeting, where it would be duly ratified. Suffice it to observe that the decision taken by the Committee which culminated with the issuance of notification under Section 2(2) of the 1956 Act is in complete conformity with the governing provisions and guidelines and founded on tangible and objective facts noted in the minutes dated 19.1.2018. The Central Government had full authority to adopt such a change of stretch/section, by way of substitution/replacement whilst ensuring that there is no need for higher budgetary allocation than envisaged in the already approved programme for Phase I. Thus, there is no legal basis to doubt the validity of the notification under Section 2(2) and ex consequenti Section 3A of the 1956 Act as well.

48Copy pinpoint48. The High Court has completely glossed over these crucial aspects and entered into the domain of sufficiency and adequacy of material including the appropriateness of the route approved by the competent authority. Such enquiry, in exercise of judicial review is forbidden. Furthermore, the High Court, despite noting that judicial interference in acquisition matters is limited, went on to interfere in the guise of extra-ordinary circumstances obtaining in this case. On a thorough perusal, the impugned judgment does not reveal any just circumstance for invoking the judicial review jurisdiction. In light of the above discussion, we hold that challenge to the decision of the Committee and ex consequenti of the Central Government, regarding change of section – C-M (EC) to C-K-S (NC) at the micro level for the implementation of the original Project as approved, ought not to have been doubted by the High Court. Notably, in the final conclusion and declaration issued by the High Court, it has justly not struck down the notifications under Section 2(2) of the 1956 Act. In other words, so long as Section 2(2) of the 1956 Act was to remain in force and the decision regarding change of stretch/section to C-K-S (NC) being the foundation for issue of notification under Section 3A, would continue to bind all concerned and in particular, the officials of NHAI being the executing agency. PRIOR ENVIRONMENTAL/FOREST CLEARANCE: STAGE

49Copy pinpoint49. That takes us to the next challenge premised on the argument that notification under Section 3A(1) of the 1956 Act could not have

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been issued without prior permission of the competent authority under the environmental/forest laws. This argument is based on the dictum of this Court in Karnataka Industrial Areas Development Board (supra). In paragraph 100 of the said decision, a general direction came to be issued 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. Paragraphs 100 and 101 of the reported decision are extracted hereunder: - “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. (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 E said directory condition of allotment of lands be converted into a mandatory condition for all the projects to be sanctioned in future.

101. This has been an interesting judicial pilgrimage for the last four decades. In our opinion, this is a significant contribution of F the judiciary in making serious endeavour to preserve and protect ecology and environment, in consonance with the provisions of the Constitution.” (emphasis supplied) G Support is also drawn from the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively. Our attention is also invited to exposition in M. Velu (supra), following the aforementioned decision of this Court.

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50Copy pinpoint50. The question as to whether the competent authority under the 1956 Act is obliged to take prior permission before issuing notification under Section 3A of the Act, must be answered primarily on the basis of the scheme of the enactments under consideration. As regards power to acquire land for the purpose of building, maintenance, management and operation of a national highway or part thereof, the same has been B bestowed on the Central Government in terms of Section 3A of the 1956 Act. There is nothing in the 1956 Act, which impels the Central Government to obtain prior environment clearance before exercise of that power and in issuing notification under Section 2(2), much less Section 3A expressing its intention to acquire the designated land.

51Copy pinpoint51. The Central Government has framed rules in exercise of power under Section 9 of the 1956 Act, titled as the National Highways Rules, 195749. These rules are required to be followed by the executing agency. There is nothing, even in these Rules, to remotely suggest that the Central Government is obliged to obtain prior permission(s) under environmental/ D forest laws before issuing notification under Section 3A. The executing agency is none else, but established under the 1988 Act, namely, the NHAI. Before NHAI commences the execution of any original work, it has to abide by the norms specified in the 1957 Rules regarding preparation of estimate of work etc. The Schedule of the 1957 Rules stipulates conditions for the issue of technical approval and financial E sanction to plan and estimate for execution of any original work on a national highway costing an amount not exceeding Rs.50 lakhs by the executing agency concerned. Neither the 1956 Act, the Rules framed thereunder i.e. the 1957 Rules nor the 1988 Act and the Rules made thereunder have any bearing on the question under consideration. None F of these enactments/rules specify any express condition requiring Central Government to obtain prior environmental/forest clearance before issuing notification under Section 2(2) declaring the stretch/section to be a national highway or Section 3A of the 1956 Act to express intention to acquire land for the purpose of building, maintenance, management or operation of a national highway, as the case may be. G

52Copy pinpoint52. 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 49 H For short “the 1957 Rules”

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acquire any land for the purpose of the 1956 Act, prior environmental/ A 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 B 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. C However, until the vesting of the land, the Central Government and its authorised officer can undertake surveys of the notified lands by entering upon it in terms of Section 3B of the Act. Pertinently, the activities predicated in Section 3B are of exploration for verifying the feasibility and viability of land for construction of a national highway. These are one-time activities and not in the nature of exploitation of the land for continuous commercial/industrial activities as such. There is remote possibility of irretrievable wide spread environmental impact due 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.

53Copy pinpoint53. We may now revert to Section 4 of the 1956 Act. That provides for vesting of the national highway in the Union and after such vesting, the primary responsibility of developing and maintaining the national highway is that of the Central Government. In terms of Section 5, it is open to the Central Government to call upon the Government of the State within which the national highway is situated or by any officer or authority subordinate to the Central Government or to the State Government. Section 5 reads thus: - “5. Responsibility for development and maintenance of national highways. – It shall be the responsibility of the Central Government to develop and maintain in proper repair all national highways; but the Central Government may, by notification in the Official Gazette, direct that any function in relation to the development or maintenance of any national highway shall, subject H