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

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A to such conditions, if any, as may be specified in the notification, also be exercisable by 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.” B As per Section 6, the Central Government is competent to issue directions to the Government of any State for carrying out the provisions of the Act within the State.

54Copy pinpoint54. It is indisputable that NHAI is an authority appointed by the Central Government under the 1988 Act. This authority is a functional body constituted under Section 3 of the 1988 Act. Chapter III of the 1988 Act provides for the manner of dealing with the contracts to be entered into by NHAI. Sections 11 to 13 deal with the power of the Central Government to vest in or entrust to the Authority (NHAI), transfer of assets and liabilities of the Central Government to the Authority (NHAI) and the compulsory acquisition of land for the Authority. The same read thus: - “11. Power of the Central Government to vest or entrust any national highway in the Authority.— The Central Government may, from time to time, by notification in the Official Gazette, vest in, or entrust to, the Authority, such national highway or any stretch thereof as may be specified in such notification.

12. Transfer of assets and liabilities of the Central Government to the Authority. — (1) On and from the date of publication of the notification under section 11,—

F (a) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with, or for, the Central Government, immediately before such date for or in connection with the purposes of any national highway or any stretch thereof vested in, or entrusted to, the Authority under that section, shall be deemed to have been G incurred, entered into and engaged to be done by, with, or for, the Authority; (b) all non-recurring expenditure incurred by or for the Central Government for or in connection with the purposes of any national highway or any stretch thereof, so vested in, or H

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entrusted to, the Authority, up to such date and declared to be capital expenditure by the Central Government shall, subject to such terms and conditions as may be prescribed, be treated as capital provided by the Central Government to the Authority; (c) all sums of money due to the Central Government in relation to any national highway or any stretch thereof, so vested in, or entrusted to, the Authority immediately before such date shall be deemed to be due to the Authority; (d) all suits and other legal proceedings instituted or which could have been instituted by or against the Central Government C immediately before such date for any matter in relation to such national highway or any stretch thereof may be continued or instituted by or against the Authority. (2) If any dispute arises as to which of the assets, rights or liabilities of the Central Government have been transferred to the Authority, D such dispute shall be decided by the Central Government.

13. Compulsory acquisition of land for the Authority. —Any land required by the Authority for discharging its functions under this Act shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the National Highways Act, 1956 (48 of 1956). Chapter IV of the 1988 Act, in particular, Section 16 thereof, deals with the functions of the Authority (NHAI). The same reads thus:- “16. Functions of the Authority. — (1) Subject to the rules made by the Central Government in this behalf, it shall be the function of the Authority to develop, maintain and manage the national highways and any other highways vested in, or entrusted to, it by the Government. (2) Without prejudice to the generality of the provisions contained in sub-section (1), the Authority may, for the discharge of its functions— (a) survey, develop, maintain and manage highways vested in, or entrusted to, it;

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A (b) construct offices or workshops and establish and maintain hotels, motels, restaurants and rest-rooms at or near the highways vested in, or entrusted to, it; (c) construct residential buildings and townships for its employees; B (d) regulate and control the plying of vehicles on the highways vested in, or entrusted to, it for the proper management thereof; (e) develop and provide consultancy and construction services in India and abroad and carry on research activities in relation to the development, maintenance and management of highways or any facilities thereat; (f) provide such facilities and amenities for the users of the highways vested in, or entrusted to, it as are, in the opinion of the Authority, necessary for the smooth flow of traffic on such highways; (g) form one or more companies under the Companies Act, 1956 (1 of 1956) to further the efficient discharge of the functions imposed on it by this Act; (h) engage, or entrust any of its functions to, any person on such terms and conditions as may be prescribed; (i) advise the Central Government on matters relating to highways; (j) assist, on such terms and conditions as may be mutually agreed upon, any State Government in the formulation and implementation of schemes for highway development; (k) collect fees on behalf of the Central Government for services or benefits rendered under section 7 of the National Highways Act, 1956 (48 of 1956), as amended from time to time, and such other fees on behalf of the State Governments on such terms and conditions as may be specified by such State Governments; and (l) take all such steps as may be necessary or convenient for, or may be incidental to, the exercise of any power or the discharge of any function conferred or imposed on it by this Act.

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(3) Nothing contained in this section shall be construed as— A (a) authorising the disregard by the Authority of any law for the time being in force; or (b) authorising any person to institute any proceeding in respect of a duty or liability to which the Authority or its officers or other employees would not otherwise be subject under this B Act.”

55Copy pinpoint55. On plain and harmonious construction of the provisions of the two enactments (i.e. the 1956 Act and the 1988 Act), it is amply clear that at the stage of issuing notifications under Section 2(2) or for that matter, Section 3A of the Act, there is no need to seek prior permission C (by the Central Government) under environmental laws or the forest laws, as the case may be. Further, the purpose of public hearing in the concerned enactments (namely, the 1956 and 1988 Acts on the one hand and the 1986 Act or forest laws, on the other) is qualitatively different and contextual to matters relevant under the concerned enactment. The D competent authority in the former, may be satisfied that the acquisition of land in question is for public purpose, but if the competent authority under the latter legislations is of the view that the execution of the project in question (construction of a national highway) or any portion thereof may cause irretrievable comprehensive impact on the environment or the forests, as the case may be, would be competent to deny permission to such a project as a whole or part thereof. That decision must then prevail, being in public interests. This is not to say that one competent authority is superior to the other, but such balancing becomes essential to effectuate the public purposes under the stated enactments. It is quite possible that the executing agency (NHAI) may be able to convince the competent authority under the latter enactments that certain remedial steps can minimise or mitigate the environmental impact or to the forest, as the case may be, and commend it to accord conditional approval/ permission to execute the project so as to conform to the tenets of sustainable development. If that suggestion commends to the competent authority under the environmental/forest laws, such clearance/permission can be granted after the public hearing.

56Copy pinpoint56. As regards the decision in Raghbir Singh Sehrawat (supra), the same may have relevance at the time of considering the objections to be dealt with by the competent authority under the 1956 Act during H

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A the public hearing under Section 3C. The dictum in this decision cannot be the basis to doubt the well-considered decision dated 19.1.2018 nor the notification issued by the Central Government under Section 2(2) of the 1956 Act declaring the stretch between C-K-S (NC) as a national highway.

57Copy pinpoint57. Even in the case of R.S. Nanji (supra), the Constitution Bench highlighted the sweep of expression “public purpose” in the context of challenge to the order of the competent authority to requisition the premises. As noted earlier, the satisfaction regarding public interests or necessity to acquire the land in question for public purpose for construction of a new national highway, is a matter which needs to be C considered by the competent authority during the public hearing under Section 3C of the 1956 Act. The challenge before the High Court in the present case was before that stage had reached, for which reason we do not wish to dilate on this reported decision any further.

58Copy pinpoint58. Suffice it to observe that the subject notification of 2006 and D Office Memorandum dated 7.10.2014 ordain that such permission is required to be obtained (only) before commencement of the work of the new project or activities or on the expansion or improvisation of the project or activities based on their potential environment impact. The notification dated 14.9.2006 reads thus:- E “(Published in the Gazette of India, Extraordinary, Part-II, and Section 3, Sub-section (ii) MINISTRY OF ENVIRONMENT AND FORESTS New Delhi 14th September, 2006 F Notification S.O. 1533 Whereas, a draft notification under sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 for imposing certain restrictions and prohibitions on new projects or activities, or on the expansion or modernization of existing G projects or activities based on their potential environmental impacts as indicated in the Schedule to the notification, being undertaken in any part of India1, unless prior environmental clearance has been accorded in accordance with the objectives of National Environment Policy as approved by the Union Cabinet on 18th May, 2006 and the procedure specified in the H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 179 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

notification,by the Central Government or the State or Union A territory Level Environment Impact Assessment Authority (SEIAA), to be constituted by the Central Government in consultation with the State Government or the Union territory Administration concerned under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 for the purpose of this B notification, was published in the Gazette of India ,Extraordinary, Part II, section 3, sub-section (ii) vide number S.O. 1324 (E) dated the 15th September ,2005 inviting objections and suggestions from all persons likely to be affected thereby within a period of sixty days from the date on which copies of Gazette containing the said notification were made available to the public; C And whereas, copies of the said notification were made available to the public on 15th September, 2005; And whereas, all objections and suggestions received in response to the above mentioned draft notification have been duly considered by the Central Government; D

Now, therefore, in exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of section 3 of the Environment (Protection) Act, 1986, read with clause (d) of sub- rule (3) of rule 5 of the Environment (Protection) Rules, 1986 and in supersession of the notification number S.O. 60 (E) dated the E 27th January, 1994, except in respect of things done or omitted to be done before such supersession, the Central Government hereby directs that on and from the date of its publication the required construction of new projects or activities or the expansion or modernization of existing projects or activities F listed in the Schedule to this notification entailing capacity addition with change in process and or technology shall be undertaken in any part of India only after the prior environmental clearance from the Central Government or as the case may be, by the State Level Environment Impact Assessment Authority, duly constituted by the Central G Government under sub-section (3) of section 3 of the said Act, in accordance with the procedure specified hereinafter in this notification.

2. Requirements of prior Environmental Clearance (EC):- The following projects or activities shall require prior environmental H

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A clearance from the concerned regulatory authority, which shall hereinafter referred to be as the Central Government in the Ministry of Environment and Forests for matters falling under Category ‘A’ in the Schedule and at State level the State Environment Impact Assessment Authority (SEIAA) for matters falling under Category ‘B’ in the said Schedule, before any construction work, or B preparation of land by the project management except for securing the land, is started on the project or activity: (i) All new projects or activities listed in the Schedule to this notification; C (ii) Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization; D (iii) Any change in product - mix in an existing manufacturing unit included in Schedule beyond the specified range.

3. State Level Environment Impact Assessment Authority:- ….. E

4. Categorization of projects and activities: - (i) All projects and activities are broadly categorized in to two categories - Category A and Category B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man made F resources. (ii) All projects or activities included as Category ‘A’ in the Schedule, including expansion and modernization of existing projects or activities and change in product mix, shall require prior environmental clearance from the G Central Government in the Ministry of Environment and Forests (MoEF) on the recommendations of an Expert Appraisal Committee (EAC) to be constituted by the Central Government for the purposes of this notification; (iii) All projects or activities included as Category ‘B’ in the H Schedule, including expansion and modernization of

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 181 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

existing projects or activities as specified in sub A paragraph (ii) of paragraph 2, or change in product mix as specified in sub paragraph (iii) of paragraph 2, but excluding those which fulfill the General Conditions (GC) stipulated in the Schedule, will require prior environmental clearance from the State/Union territory Environment B Impact Assessment Authority (SEIAA). The SEIAA shall base its decision on the recommendations of a State or Union territory level Expert Appraisal Committee (SEAC) as to be constituted for in this notification. In the absence of a duly constituted SEIAA or SEAC, a Category ‘B’ project shall be treated as a Category ‘A’ C project;

5. Screening, Scoping and Appraisal Committees:- The same Expert Appraisal Committees (EACs) at the Central Government and SEACs (hereinafter referred to as the (EAC) D and (SEAC) at the State or the Union territory level shall screen, scope and appraise projects or activities in Category ‘A’ and Category ‘B’ respectively. EAC and SEAC’s shall meet at least once every month. ….. E

6. Application for Prior Environmental Clearance (EC):- An application seeking prior environmental clearance in all cases shall be made in the prescribed Form 1 annexed herewith and Supplementary Form 1A, if applicable, as given in Appendix II, after the identification of prospective site(s) for the project and/or activities to which the application relates, before commencing any construction activity, or preparation of land, at the site by the applicant. The applicant shall furnish, along with the application, a copy of the pre-feasibility project report except that, in case of construction projects or activities (item 8 of the Schedule) in addition to Form 1 and the Supplementary Form 1A, a copy of the conceptual plan shall be provided, instead of the pre-feasibility report.

7. Stages inthe Prior Environmental Clearance (EC) Process for New Projects:- H

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A 7(i) The environmental clearance process for new projects will comprise of a maximum of four stages, all of which may not apply to particular cases as set forth below in this notification. These four stages in sequential order are:- • Stage (1) Screening (Only for Category ‘B’ projects and B activities) • Stage (2) Scoping • Stage (3) Public Consultation • Stage (4) Appraisal C I. Stage (1) - Screening: … II. Stage (2) - Scoping: ….. D III. Stage (3) - Public Consultation: (i) “Public Consultation” refers to the process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained with a view to taking into account all the material E concerns in the project or activity design as appropriate. All Category ‘A’ and Category B1 projects or activities shall undertake Public Consultation, except the following: - (a) modernization of irrigation projects (item 1(c) (ii) of the Schedule). F (b) all projects or activities located within industrial estates or parks (item 7(c) of the Schedule) approved by the concerned authorities, and which are not disallowed in such approvals. (c) expansion of Roads and Highways (item 7 (f) of the G Schedule) which do not involve any further acquisition of land. (d) allBuilding /Construction projects/Area Development projects and Townships (item 8). H (e) all Category ‘B2’ projects and activities.

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(f) all projects or activities concerning national defence and security or involving other strategic considerations as determined by the Central Government. (ii) The Public Consultation shall ordinarily have two components comprising of: - (a) a public hearing at the site or in its close proximity- district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons; (b) obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity. (iii) the public hearing at, or in close proximity to, the site(s) in all cases shall be conducted by the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) concerned in the specified manner and forward the proceedings to the regulatory authority concerned within 45(forty five) of a request to the effect from the applicant. (iv) in case the State Pollution Control Board or the Union territory Pollution Control Committee concerned does not undertake and completethe public hearing within the specified period, and/or does not convey the proceedings of the public hearing within the prescribed period directly to the regulatory authority concerned as above, the regulatory authority shall engage another public agency or authority which is not subordinate to the regulatory authority, to complete the process within a further period of forty five days,. (v) If the public agency or authority nominated under the sub paragraph (iii) above reports to the regulatory authority concerned that owing to the local situation, it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed, it shall report the facts in detail to the concerned regulatory authority, which may, after due consideration of the report and other reliable information that it may have, decide that the public consultation in the case need not include the public hearing. H

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A (vi) For obtaining responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project or activity, the concerned regulatory authority and the State Pollution Control Board (SPCB) or the Union territory Pollution Control Committee (UTPCC) shall invite responses from such concerned persons by placing on their website the Summary EIA B report prepared in the format given in Appendix IIIA by the applicant along with a copy of the application in the prescribed form , within seven days of the receipt of a written request for arranging the public hearing. Confidential information including non-disclosable or legally privileged information involving C Intellectual Property Right, source specified in the application shall not be placed onthe web site. The regulatory authority concerned may also use other appropriate media for ensuring wide publicity about the project or activity. The regulatory authority shall, however, make available on a written request from any concerned person the Draft EIA report for inspection at a notified place during normal office hours till the date of the public hearing. All the responses received as part of this public consultation process shall be forwarded to the applicant through the quickest available means. (vii) After completion of the public consultation, the applicant shall address all the material environmental concerns expressed during this process, and make appropriate changes in the draft EIA and EMP. The final EIA report, so prepared, shall be submitted by the applicant to the concerned regulatory authority for appraisal. The applicant may alternatively submit a supplementary report to draft F EIA and EMP addressing all the concerns expressed during the public consultation. IV. Stage (4) - Appraisal: (i) Appraisal means the detailed scrutiny by the Expert Appraisal Committee or State Level Expert Appraisal Committee of the G application and other documents like the Final EIA report, outcome of the public consultations including public hearing proceedings, submitted by the applicant to the regulatory authority concerned for grant of environmental clearance. … ….. H

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7(ii). Prior Environmental Clearance (EC) process for A Expansion or Modernization or Change of product mix in existing projects: …

8. Grant or Rejection of Prior Environmental Clearance (EC): B

(i) The regulatory authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words C within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environment Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below. D …..

9. Validity of Environmental Clearance (EC): …

10. Post Environmental Clearance Monitoring: E …..

11. Transferability of Environmental Clearance (EC): …

12. Operation of EIA Notification, 1994, till disposal of F pending cases: … [No. J-11013/56/2004-IA-II (I)] (R.CHANDRAMOHAN) G JOINT SECRETARY TO THE GOVERNMENT OF INDIA SCHEDULE (See paragraph 2 and 7) LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR ENVIRONMENTAL CLEARANCE H

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Note:- General Condition (GC): E Any project or activity specified in Category ‘B’ will be treated as Category A, if located in whole or in part within 10 km from the boundary of: (i) Protected Areas notified under the Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas as notified by the Central Pollution Control Board from time to time, (iii) Notified Eco-sensitive areas, (iv) inter-State boundaries and international boundaries. Specific Condition (SC): If any Industrial Estate/Complex / Export processing Zones / Special Economic Zones/Biotech Parks / Leather Complex with homogeneous type of industries such as Items 4(d), 4(f), 5(e), 5(f), or those Industrial estates with pre –defined set of activities (not necessarily homogeneous, obtains prior environmental clearance, individual industries including proposed industrial housing within such estates /complexes will not be required to take prior environmental clearance, so long as the Terms and H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 187 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

Conditions for the industrial estate/complex are complied with A (Such estates/complexes must have a clearly identified management with the legal responsibility of ensuring adherence to the Terms and Conditions of prior environmental clearance, who may be held responsible for violation of the same throughout the life of the complex/estate).” B (emphasis supplied in italics and underline)

59Copy pinpoint59. The view that we have taken is reinforced from the opening part of this notification. It expounds that no project involving potential environmental impact “shall be undertaken” or “commenced” in any part of India without obtaining prior environmental clearance in the manner provided for. Same position obtains from the recitals of this notification, namely, prior environmental clearance is required “before” any construction work or preparation of land by the project management, except for securing the land, is started on the project or the activity. A priori, the decision in Delhi Development Authority (supra), does not take the matter any further in the present case. Therefore, no interference is warranted with the decision of the Committee regarding the change of stretch/section to be implemented during Phase I between C-K-S (NC); including the impugned notifications under Sections 2(2) and 3A of the 1956 Act.

60Copy pinpoint60. Be it noted that the notification of 2006 is in the nature of guidelines/directives issued by the Central Government in exercise of its statutory powers. These directions need to be adhered by the executing agency (NHAI) whilst undertaking the work in furtherance of the approved project. To put it differently, it is incomprehensible that the stated 2006 notification obliges the Central Government to take prior permission even before the stage of “planning” and “finalisation of the project(s)” such as in terms of the minutes dated 19.1.2018 followed by notifications under Sections 2(2) and 3A of the 1956 Act, as the case may be.

61Copy pinpoint61. Much emphasis was placed on expression “securing the land”, G to contend that expression of intent to acquire the land referred to in Section 3A of the 1956 Act does not come under the excepted category. We reject this plea. In our view, the activities required to be undertaken in furtherance of notification under Section 3A of the 1956 Act, referred to in Section 3B of the same Act are only to explore the feasibility and H

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A viability of the stretch/section to be used as a national highway and no further. These activities are outside the purview of notification of 2006.

62Copy pinpoint62. The High Court had adverted to decisions of other jurisdictions, namely, of American Courts, to buttress the view that prior permission ought to be taken even before issuing notification under Section 3A of the 1956 Act. Considering the legislative scheme and upon giving proper meaning and perspective to the directives issued by the Central Government in the form of 2006 notification, we are of the considered opinion that the dictum in those decisions will be of no avail. For, we are of the view that it is not necessary for the Central Government or for that matter, NHAI, to apply for prior environmental/forest clearances or permissions, as the case may be, at the stage of planning or taking an in- principle decision to formalize the Project of constructing a new national highway manifested in notification under Section 2(2), including until the stage of issuing notification under Section 3A of the 1956 Act.

63Copy pinpoint63. If we accept the argument of the writ petitioners that the D Central Government must follow comprehensive procedure under the environmental laws and forest laws articulating its final decision and to issue notification under Section 2(2) of the 1956 Act to declare any stretch/land not being a highway as a national highway, such approach would be counter-productive and the functioning of the departments responsible for timely execution of such projects would be completely paralysed and depend solely on the outcome of the processes under the environmental laws or forest laws, as the case may be. It cannot be overlooked that the role of the competent authority under the environmental law or forest law is limited to scrutiny of the formalized project brought before it prior to its implementation by the executing agency, to ascertain whether it may have any environmental impact and if so, to impose such conditions by way of remedial steps to minimise and mitigate the impact while keeping in mind the need to fulfil the State’s obligation of sustainable development.

64Copy pinpoint64. Be that as it may, one cannot be oblivious of the qualitative difference between a project necessitating acquisition of a large chunk of land at one place for continual commercial/industrial activities to be carried out thereon as opposed to acquisition of a small strip of land in the area for construction of a road/highway. The purpose of road/highway is merely to facilitate free passage through the same. It would have a H floating population unlike in the case of a big project at one place occupying

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 189 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

several square metres of land and engaging in continual commercial/ A industrial activities thereon. The environmental impact would be and ought to be measured in relative terms and at the local level and site specific. Whereas, the requirement for road/national highway would essentially be in larger national interest.

65Copy pinpoint65. For the purpose of considering the question posed before us, suffice it to observe that the prior environmental clearance in terms of 2006 notification issued under Section 3 of the Environment (Protection) Act, 1986 Act read with Rule 5 of the Environment (Protection) Rules, 1986, is required to be taken before commencement of the “actual construction or building work” of the national highway by the executing agency (NHAI). That will happen only after the acquisition proceedings are taken to its logical end until the land finally vests in the NHAI or is entrusted to it by the Central Government for building/management of the national highway. This position is reinforced and explained in the Office Memorandum issued by the MoEF dated 7.10.2014, which reads thus: - D “F.No.22-76/2014-IA-III Government of India Ministry of Environment, Forest and Climate Change Impact Assessment Division Indira Paryavaran Bhavan, E Jor Bagh Road, Aliganj, New Delhi – 110 003 Dated the 7th October, 2014 OFFICE MEMORANDUM Subject: Status of land acquisition w.r.t. project site while considering the case for environment clearance under EIA Notification, 2006-regarding

1. It has been brought to the notice of this Ministry that in absence of any guidelines, different EACs/SEACs adopt different criteria about the extent to which the land w.r.t. the project site should be acquired before the consideration of the case for environment clearance (EC). Some of the Ministers in the Government of India and some industrial associations have represented that full acquisition of land for the project site should not be insisted upon before consideration of the case for EC and instead initiation of H

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A land acquisition process should be sufficient for the consideration of such cases. The argument being that land acquisition process can go on in parallel and that consideration of EC need not await full land acquisition.

2. The matter has been examined the in the Ministry. The EC B granted for a project or activity under the EIA Notification, 2006, as amended, is site specific. While full acquisition of land may not be pre-requisite for the consideration of the case for EC, there should be some credible document to show the status of land acquisition w.r.t. project site when the case is brought before the concerned EAC/SEAC for appraisal. It C has been accordingly decided that the following documents relating to acquisition of land w.r.t. the project site and may be considered as adequate by EACs/SEACs at the time of appraisal of the case for EC: (i) In case of land w.r.t. the project site is proposed to be D acquired through Government Intervention, a copy of preliminary notification issued by the concerned State Government regarding acquisition of land as per the provision of Land Acquisition, Rehabilitation and Resettlement Act, 2013. E (ii) In case the land is being acquired through private negotiations with the land owners, credible document showing the intent of the land owner to sell the land for the proposed project.

3. It may, however, be noted that the EC granted for a F project on the basis of aforesaid documents shall become invalid in case the actual land for the project site turns out to be different from the land considered at the time of the appraisal of project and mentioned in the EC.

4. This issue with the approval of the competent authority.” G (emphasis supplied) Applying the tenet underlying this notification, it is amply clear that before the process of acquisition of land is ripe for declaration under Section 3D of the 1956 Act, it would be open to the executing agency (NHAI) to make an application to the competent authority for H

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environmental clearance. That process can be commenced parallelly or alongside the acquisition process after a preliminary notification under Section 3A of the 1956 Act, for acquisition is issued.

66Copy pinpoint66. As in this case, after notification under Section 3A of the 1956 Act came to be issued, NHAI must have, and in fact has, moved into action by making application to the competent authorities under the environmental laws, as well as, forest laws to accord necessary permissions.

67Copy pinpoint67. Considering the provisions of the 1956 Act and the 1988 Act, NHAI can take over the work of development and maintenance of the concerned national highway only if the notified land is vested in it or when the same is entrusted to it by the Central Government. From the scheme of the enactments in question, as soon as notification under Section 3A is issued, it is open to the Central Government to issue direction/notification in exercise of power under Section 5 of the 1956 Act read with Section 11 of the 1988 Act so as to entrust the development of the proposed national highway to NHAI. Upon such entrustment, D NHAI assumes the role of an executing agency and only thenceforth can move into action to apply for requisite permissions/clearances under the environmental/forest laws including as provided in terms of notification/Office Memorandum dated 14.9.2006 and 7.10.2014 respectively. E

68Copy pinpoint68. It is not in dispute that environmental/forest clearance is always site specific and, therefore, until the site is identified for construction of national highways manifested vide Section 3A notification, the question of making any application for permission under the environmental/forest laws would not arise, as predicated in Office Memorandum dated F 7.10.2014. The site is identified only in reference to the notification under Section 3A of the 1956 Act, giving description of the land which is proposed to be acquired for public purpose of building, maintenance, management or operation of the national highway or part thereof.

69Copy pinpoint69. Considering the interplay of provisions empowering the Central G Government coupled with the purport of the notification/Office Memorandum issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively, it will be paradoxical to countenance the argument that the Central Government is obliged to seek prior approval/permission of the competent authorities under the environment/forest laws, as the case H

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A may be, even before issuing notification under Section 2(2) or for that matter, Section 3A of the 1956 Act. RE: DEEMED LAPSING AND THE WAY FORWARD

70Copy pinpoint70. Reverting to the dictum of this Court in Karnataka Industrial Areas Development Board (supra), it must be understood to mean that the declaration under Section 3D regarding acquisition of notified land, be made only after environmental/forest clearance qua the specific land is granted. To put it differently, the necessity of prior environmental/ forest clearance would arise only if finally, the land in question (site specific) is to be notified under Section 3D, as being acquired for the purposes of building, maintenance, management or operation of the national highway or part thereof. Such interpretation would further the cause and objective of environment and forest laws, as also not impede the timeline specified for building, maintenance, management or operation of the national highway or part thereof, which undeniably is a public purpose and of national importance. This would also assuage the concerns of the land owners that even if eventually no environment permission or forest clearance is accorded, the land cannot be reverted to the original owner as it had de jure vested in the Central Government upon issue of notification under Section 3D of the 1956 Act and no power is bestowed on the Central Government under this Act to withdraw from acquisition.

71Copy pinpoint71. We are conscious of the fact, as has been rightly argued by the appellants-authorities, that it is essential to issue a declaration under Section 3D of the 1956 Act within a period of one year from the date of publication of the notification under Section 3A in respect of the notified land, failing which notification under Section 3A ceases to have any effect. It is possible that whilst pursuing the proposal for environmental/ forest clearance after notification under Section 3A, some time may be lost, even though the process under the 1956 Act for acquisition of the land had become ripe for issue of declaration of acquisition under Section 3D. It is also true that time spent for obtaining environmental clearance or permission under the forest laws has not been explicitly excluded from the period of one year to be reckoned under Section 3D(3) of the Act. The extension of time or so to say suspension of time is only in respect of period during which the action of the proceedings to be taken in pursuance of notification under Section 3A(1) is stayed by an order of Court. In other words, there is no express provision in the 1956 Act, H which excludes the time spent by the Central Government or the executing

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 193 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

agency in obtaining prior environmental clearance or permission under A forest laws, as the case may be. To get over this predicament, by an interpretative process and also by invoking plenary powers of this Court under Article 142 of the Constitution, we hold that the dictum in paragraph 100(1) of Karnataka Industrial Areas Development Board (supra), shall operate as a stay by an order of the Court for the purposes of B Section 3D(3) in respect of all projects under the 1956 Act, in particular for excluding the time spent after issue of Section 3A notification, in obtaining the environmental clearance as well as for permissions under the forest laws. Only this approach would further the cause of environment and forest laws, as also, the need to adhere to the timeline specified under Section 3D(3) for speedy execution of the work of C construction of national highway, which is also for a public purpose and of national importance. In other words, balancing of competing public interests/public purposes need to be kept in mind as being the only way forward for accomplishing the goal of sustainable development.

72Copy pinpoint72. The argument of the writ petitioners that the expression “shall” D occurring in Section 3D(1) be interpreted as “may”, though attractive on the first blush, deserves to be rejected. If that interpretation is accepted, it would render the efficacy of Section 3D(3) of lapsing of the acquisition process otiose. It is a mandatory provision. Instead, we have acceded to the alternative argument to give expansive meaning to the proviso in Section 3D(3) of the 1956 Act by interpretative process, including by invoking plenary powers of this Court under Article 142 of the Constitution to hold that the dictum of this Court in Karnataka Industrial Areas Development Board (supra) be regarded as stay granted by the Court to all notifications issued under Section 3A of the 1956 Act until the grant or non-grant of permissions by the competent authorities under the environmental and forest laws, as the case may be, including until the stated permissions attain finality. In other words, time spent by the executing agency/Central Government in pursuing application before the concerned authorities for grant of permission/clearance under the stated laws need to be excluded because of stay by the Court of actions (limited to issue of notification under Section 3D), consequent to notification under Section 3A. Thus, the acquisition process set in motion upon issue of Section 3A notification can go on in parallel until the stage of publication of notification under Section 3D, which can be issued after grant of clearances/permissions by the competent authority under the environment/forest laws and attaining finality thereof. H

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73Copy pinpoint73. In the present case, it is noticed that the NHAI being the executing agency, had soon submitted Terms of Reference to the MoEF after publication of notification under Section 2(2) of the 1956 Act dated 1.3.2018, declaring the section - C-K-S (NC) as a national highway. That was submitted on 19.4.2018 and the approval in furtherance thereof was granted by the MoEF on 8.6.2018, consequent to the recommendation B made by the EAC on 7.5.2018. Indeed, the NHAI thereafter submitted amendment to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC after examining the amendment in Terms of Reference, submitted its recommendation on 30.8.2018. It is also matter of record and stated on affidavit by the EAC that no lapses have been committed by the C NHAI in complying with necessary formalities. Similarly, NHAI had submitted application on 12.5.2018 to Conservator of Forests for grant of permissions under the forest laws in respect of lands forming part of the notification under Section 3A of the 1956 Act. That application was duly processed and the permission was granted by the competent authority under the forest laws on 8.6.2018. Concededly, these permissions/clearances have been issued by the concerned authorities under the environment and forest laws after notification under Section 3A and before issuance of declaration under Section 3D of the 1956 Act. In terms of this decision, therefore, the time spent for obtaining such clearances including till the pronouncement of this decision and until the stated permissions/clearances attain finality, whichever is later, as the matter had remained sub judice, need to be excluded. Even after excluding such period, if any notification under Section 3A impugned before the High Court is not saved from the deemed lapsing effect predicated in Section 3D(3), the Central Government may have to issue fresh notification(s) under Section 3A of the 1956 Act and recommence the process of acquisition, if so advised. We are not expressing any final opinion in that regard. However, such fresh notifications may be issued only in respect of land forming part of permissions/clearances given by the competent authority under the environment/forest laws, being site specific. G OTHER CONTENTIONS

74Copy pinpoint74. That takes us to the grievance regarding the same Consultant being continued for the changed section i.e. C-K-S (NC). Indeed, the eligibility of the Consultant was in reference to the originally conceived project concerning C-M (EC). It was found eligible to undertake the H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 195 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

consultancy work for the said project and letter dated 29.9.2017 was also issued by NHAI. In the Committee’s meeting chaired by the Secretary of MoRTH on 19.1.2018, new alignment was finalised thereby deviating from the original project of C-M (EC). Instead, section - C-K- S (NC) was finalised. However, the same Consultant had been continued by execution of a contract agreement dated 22.2.2018 for the changed stretch/section. This was done as the terms and conditions were same. Indeed, it was vehemently contended before us that the authorities should have followed the procedure stipulated for appointment of Consultant for the changed project afresh. However, we find that in none of the writ petitions filed before the High Court, express declaration had been sought or for that matter, the contract agreement dated 22.2.2018 executed between NHAI and the Consultant came to be challenged. Moreover, the terms and conditions of appointment of the Consultant would have no financial ramifications, considering the fact that the consultancy charges were to be paid on per kilometre basis; and in fact due to change of alignment, the length of proposed national highway stood reduced to only around 277 kms. (instead of original stretch [C-M (EC)] of around 350 kms.) Further, no challenge is set forth regarding the qualification and eligibility of the Consultant as such. Notably, the decision to change the stretch/section from Economic Corridor to National Corridor was that of the Committee. It was not founded on the recommendation of the Consultant, as has been assumed by the writ petitioners and so propounded before the high Court. The decision of the Committee was backed by tangible reasons as recorded in the minutes and also intrinsic in it its vast experience about the efficacy of governing policies for developing seamless national highway connectivity across the country. In any case, irregularity, if any, in the appointment of the Consultant F cannot be the basis to quash and set aside a well-considered decision taken by the Committee after due deliberations, much less the impugned notifications under Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold that the High Court should have eschewed from expressing any opinion on the manner of appointment of the same Consultant for the changed section/stretch [C-K-S (NC)], as no relief G challenging its appointment was sought and thus it was not the matter in issue before it; and for the same reason, we do not wish to dilate on this aspect any further. Thus understood, the dictum of this Court in decisions relied upon by the respondents/writ petitioners in K. Lubna (supra) and Shrilekha Vidyarthi (supra) will be of no avail in this case. H

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75Copy pinpoint75. Having dealt with the merits of the controversy in extenso, it is unnecessary to dilate on the question of maintainability of the writ petitions being premature. CONCLUSION

76Copy pinpoint76. Before we conclude and for the completion of record, we B may advert to the direction issued by the High Court in paragraph 106 of the impugned judgment as reproduced hitherto. The High Court directed the concerned revenue authorities to restore the mutation entries effected in favour of the acquiring body/NHAI merely on the basis of notification under Section 3A of the 1956 Act. By virtue of notification under Section C 3A of the 1956 Act, neither the acquiring body nor the NHAI had come in possession of the concerned land nor the land had vested in them, so as to alter the mutation entry in their favour. To that extent, we agree with the High Court that until the acquisition process is completed and possession of land is taken, the question of altering the mutation entry merely on the basis of notification under Section 3A of the 1956 Act D cannot be countenanced and, therefore, the earlier entries ought to be restored. That direction of the High Court needs no interference.

77Copy pinpoint77. While parting, we must place on record that we have not expressed any opinion either way on the correctness and validity of the permissions/clearances accorded by the competent authorities under the E environment and forest laws, as the case may be. For, those orders were not the subject matter or put in issue before the High Court. Therefore, it would be open to the affected persons to question the validity thereof on grounds, as may be permissible, before the appropriate forum. All contentions available to parties in that regard are left open.

78Copy pinpoint78. We need to place on record that we have not dilated on other decisions adverted to and relied upon before us by the learned counsel appearing for the concerned parties, to avoid prolixity and also because the same have no bearing on the questions dealt with by us hitherto. In our opinion, appeals filed by the authorities ought to succeed merely on the issues answered by us for dismissing the challenge to notifications G under Section 2(2) and Section 3A of the 1956 Act, in the concerned writ petitions. Further, we do not wish to deal with the decisions relied upon, that the Project of this nature may have environmental impact and ought not to be taken forward. As aforesaid, we have not examined the efficacy of the permissions/clearances granted by the competent authority H

THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 197 KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

under the environment or forest laws, as the case may be. If those permissions/clearances are assailed, only then the decisions in Hanuman Laxman Aroskar (supra), M.C. Mehta (supra) and Bengaluru Development Authority (supra) may be looked at. Inasmuch as in those cases, the Court was called upon to examine the challenge in the context of permissions given by the competent authority under the environment laws.

79Copy pinpoint79. Needless to observe that if any decision of the High Courts, which had been relied upon is not in consonance with the view taken by us, the same be treated as impliedly overruled in terms of this decision. We do not wish to multiply the authorities of the High Courts as commended to us on the issues answered in this judgment. C

80Copy pinpoint80. In view of the above, the appeals filed by the Union of India and NHAI (Civil Appeals arising out of SLP(C) Nos. 13384-85/2019, 16098-16100/2019, 18577-18580/2019, 19160-19166/2019, 1775-1776/ 2020, 1777-1780/2020 and 1781-1783/2020) are partly allowed in the aforementioned terms; but the appeal filed by the land owner(s)/aggrieved party(ies) (Civil Appeal arising out of SLP(C) No. 18586/2019) stands dismissed. The impugned judgment and order is modified to the extent indicated in this judgment. The challenge to impugned notifications under Sections 2(2) and 3A of the 1956 Act, respectively, is negatived. The direction issued (in paragraph 106 of the impugned judgment) to the concerned authorities to restore the subject mutation entries is, however, upheld.

81Copy pinpoint81. The Central Government and/or NHAI may proceed further in the matter in accordance with law for acquisition of notified lands for construction of a national highway for the proposed section/stretch - C- K-S (NC), being NH Nos. 179A and 179B. F

82Copy pinpoint82. There shall be no order as to costs. Pending interlocutory applications, if any, shall stand disposed of.

83Copy pinpoint83. We place on record our appreciation for the able assistance given by the learned counsel for the parties and for being brief in their presentations despite the complexity of the issues and bulky record due G to batch of cases being heard together including the daunting task of interacting through video conferencing (virtual Court) due to ongoing pandemic.

Divya Pandey Appeals disposed of. H