Holding

Parliament has the authority under Entry 23 to declare any stretch of land, including green‑field land, as a national highway and to acquire "any land" for its construction, and prior environmental clearance is not required before issuing Section 2(2) or 3A notifications.

Summary

The Supreme Court examined the validity of notifications issued under Sections 2(2) and 3A of the National Highways Act, 1956 that declared a green‑field stretch (C‑K‑S) as National Highways NH‑179A and NH‑179B and authorised land acquisition for the Chennai‑Krishnagiri‑Salem corridor. The Court held that Parliament, under Entry 23 of the Union List, has the power to declare any stretch of land, whether an existing road or not, as a national highway and to acquire "any land" for its construction, and that this power is not limited by State List Entry 13. It further ruled that prior environmental or forest clearance is not a prerequisite for issuing the Section 2(2) or 3A notifications, though such clearances must be obtained before actual construction. The Court rejected the High Court’s quashing of the notifications, restored the mutation entries in land records, and allowed the Union of India and NHAI to proceed with acquisition. The appeal of the land‑owners was dismissed, while the appeals of the Union and NHAI were partly allowed.

Issues considered

The legislative competence of Parliament to declare green‑field land as a national highway under Entry 23 of the Union List.
The validity of notifications issued under Section 2(2) and Section 3A of the National Highways Act, 1956.
Whether prior environmental or forest clearance is required before issuing the above notifications.
The lawfulness of the change of alignment from the Economic Corridor (C‑M) to the National Corridor (C‑K‑S) and whether it was arbitrary.
The effect of the notifications on mutation entries in land records and whether they can be altered before acquisition is completed.

Legislation cited

Constitution of Indias. Art.142, s. Art.246, s. Art.248, s. Art.254(4), s. Art.257
Environment (Protection) Act, 1986
Environment (Protection) Rules, 1986s. Rule 5
Land Acquisition Act, 1894
National Highways Act, 1956s. 2(2), s. 3A, s. 3B, s. 3C, s. 3D, s. 3D(3), s. 3J
National Highways Authority of India Act, 1988s. 11, s. 12, s. 13, s. 16, s. 3

Subjects

legislative competencenational highwayland acquisitionenvironmental clearanceUnion ListState ListBharatmala Pariyojanamutation entriespublic purposepith and substance

Judgment

86 [2020]
SUPREME COURT 14 S.C.R. 86
REPORTS [2020] 14 S.C.R.

A THE PROJECT DIRECTOR, PROJECT
IMPLEMENTATION UNIT
v.
P.V. KRISHNAMOORTHY AND ORS.
B (Civil Appeal Nos. 3976-3977 of 2020)
DECEMBER 08, 2020
[A. M. KHANWILKAR, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Constitution of India – Arts.246, 248 – Union List, Entry 23
C – Declaration of open green-field lands as national highway –
Legislative competence of Parliament to enact law for –
Development/construction of Chennai-Krishnagiri-Salem (National
Corridor) [C-K-S (NC)] 8 Lanes new National Highway (NH-179A
and NH-179B) being part of the larger Project (Bharatmala
D Pariyojna-Phase I) – Notifications issued u/s.2(2), 1956 Act
declaring C-K-S (NC) as a national highway stretch/section (NH-
179A and NH-179B) – Notifications u/s.3A(1), 1956 Act specifying
the lands proposed to be acquired for the national highway(s) issued
for the concerned stretches/sections – Challenged – High Court
inter alia held notifications issued u/s.3A(1) as illegal – On appeal,
E held: 1956 Act authorises Central Government to declare the notified
stretches/sections in the State 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) – Nothing
F in the Constitution or the 1956 Act limits this power only in respect
of existing roads/highways within the State – Substance of this Act
is ascribable to Entry 23, Union List and matters connected therewith
– Expression “highway” has not been defined in the 1956 Act or
1988 Act – Central Government is fully competent to notify “any
land” (not necessarily an existing road/highway) for acquisition,
G to construct a highway to be a national highway – Further, at the
stage of issuing notifications u/ss.2(2) or 3A there is no need to
seek prior environmental/forest clearance – Clearance is required
to be obtained by the executing agency “before commencing the
actual work or executing the proposed work/project” – Also, there
is no substance in the argument that the change of stretch/section
H
86
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 87
KRISHNAMOORTHY AND ORS.

from Chennai-Madurai (Economic Corridor) [C-M (EC)] originally A
included in the Project to C-K-S (NC) as regards State of Tamil
Nadu was not based on tangible material – Challenge to impugned
notifications u/ss.2(2) and 3A negatived – Impugned judgment
modified to the extent indicated – National Highways Act, 1956 –
ss.2(2), 3A – National Highway Rules, 1957 – National Highway
B
Authority of India Act, 1988 – ss.3, 11-13, 16 – Doctrine of pith
and substance –Environment (Protection) Act, 1986 – Interpretation
of Statutes – Harmonious Construction.
Constitution of India – Union List, Entry 23; State List, Entry
13 – Held: Fact that Entry 13 of List II bestows exclusive power
upon the legislature of any State concerning subject “roads”, cannot C
be the basis to give restricted meaning to Entry 23 in List I, dealing
with all matters concerning “national highways”.
National Highways Act, 1956 – Scheme of – ss.2, 3, 3A-3J,
4-6, 9 – Discussed.
D
Constitution of India – Part XI, Chapter II – Art.257 – Held:
Art.257 expounds about the control of the Union over States in
certain cases – Clause (2) predicates that the executive power of
the Union shall also extend to giving directions to a State as to the
construction and maintenance of means of communication declared
to be of national and military importance – Proviso makes it clear E
that power of the Parliament is not restricted in any way to the
matters specified therein.
Land Acquisition – Judicial review – Scope of – Discussed.
National Highway Authority of India Act, 1988– ss.11-13 – F
Scope of – Discussed.
National Highways Act, 1956 – Public hearing under –
Purpose of – Discussed – National Highway Authority of India Act,
1988 – Environment (Protection) Act, 1986.
National Highways Act, 1956 – ss.3A, 3D(3) – Declaration G
u/s.3D not issued within one year from the date of publication of
the notification u/s.3A – Deemed lapse of notification u/s.3A
predicated in s.3D(3) – Held: It is possible that whilst pursuing the
proposal for environmental/forest clearance after notification u/
s.3A, some time may be lost, even though the process under the
H
88 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 1956 Act for acquisition of the land had become ripe for issue of
declaration of acquisition u/s.3D – To get over this predicament,
the dictum in paragraph 100(1) of Karnataka Industrial Areas
Development Board v. C. Kenchappa & Ors. reported as [1996]
10 Suppl. SCR 12 shall operate as a stay by an order of the Court
for purposes of s.3D(3) in respect of all projects under the 1956
B
Act, in particular for excluding the time spent after issue of s.3A
notification, in obtaining the environmental clearance as well as
for permissions under the forest laws – Constitution of India –
Art.142.
Disposing of the appeals, the Court
C
HELD: 1.1 LEGISLATIVE COMPETENCE OF THE
UNION
This Court shall first deal with the legislative power of the
Union. Is it limited to making law in exercise of powers ascribable
D to Entry 23 of List I in respect of an existing highway to be
declared as a national highway, as is contended? The legislative
power of the Parliament can be traced to Article 246. 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
E 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 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
F 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 State list,
per se, would not render it invalid. The doctrine of pith and
substance is well-established in India. The doctrine is invoked
G 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 enumerated in the Concurrent List or the State

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 89
KRISHNAMOORTHY AND ORS.

List. Concededly, the expression “highways” as such, is not A
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. Indisputably, the
B
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 “highways” declared or to be declared by the C
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
D
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 E
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. Power of law-making itself would be rendered otiose
if it does not provide for suitable coverage of matters that are
F
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 G
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
H
90 SUPREME COURT REPORTS [2020] 14 S.C.R.

A cases. 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. There
B
is nothing in the Constitution 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
C 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. [Paras 27-29][137-B-C; G-H; 138-A-H; 139-A-C;
140-B-E]
D
K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka
(2011) 9 SCC 1; Synthetics and Chemicals Ltd. & Ors.
v. State of U.P. & Ors. (1990) 1 SCC 109 – followed.
1.2 The seminal question is whether the 1956 Act is a law
E 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. In the present case, the
Court has 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
F 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 appended in the end gives the description
of such highways. Sub-Section (2) of Section 2, however,
G 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 provision contains a legal fiction. This provision annunciates

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 91
KRISHNAMOORTHY AND ORS.

that the Parliament has entrusted the power in the Central A
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
Parliament itself under the Constitution. Sub-Section (3) of Section
2 empowers the Central Government to omit any highway from
B
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 national highway and including omit
the scheduled highways from time to time as per the evolving C
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. A priori, the Central
Government is free to construct/build a new national highway
D
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 E
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
F
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. [Paras 30-32][140-F; 141-E-H; 142-A-E]
1.3 Sections 3A to 3J of the Act expound the procedure
for acquisition of the land for the purpose of building a national G
highway. 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

H
92 SUPREME COURT REPORTS [2020] 14 S.C.R.

A to an existing road or State 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
B
purpose of building a national highway or part thereof. Section
3B of the 1956 Act 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
C declaration of acquisition is then issued under Section 3D of the
Act after providing opportunity to all persons interested in the
notified 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
D
required for a public purpose for building, maintenance,
management or operation of a national highway or part thereof.
Consequent to publication of declaration under Section 3D, the
land referred to in the notification vests absolutely in the Central
Government, free from all encumbrances. Possession of such
E 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 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
F
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 of the Central Government in terms of Section 5.
G 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

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 93
KRISHNAMOORTHY AND ORS.

out the purposes of the 1956 Act. Sections 3A to 3J have been A
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 concerned as a highway to be a
national highway; and for matters connected therewith including
B
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. 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. C
The High Court justly negatived the same and that conclusion is
upheld. [Paras 33-36][142-F; 148-A-H; 149-A-B]
2. EXECUTIVE POWER OF THE UNION
A fortiori, even the challenge to the stated notifications on
the ground of being ultra vires the Constitution derived executive D
powers of the Union, must fail. That challenge is founded on the
purport of Article 257. 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 E
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 a new national highway in any State and to issue
directions to the Government of any State for carrying out the F
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 G
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. The challenge to notifications issued by

H
94 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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. [Para 37][149-C-H]
3. SCOPE OF SECTION 2(2)
This Court may revert to the argument that the Central
B 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 open green-field lands.
For building a new highway, as in the present case, between
C 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,
D 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
E and State-wise, in particular, is to alleviate evolving socio-
economic dynamics, for which such a wide power has been
bestowed upon the 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
F limit that power of the Central Government only in respect of
existing roads/highways within the State. To say so would be
counter-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
G 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/
highway in a given segment of the State; despite being imperative

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 95
KRISHNAMOORTHY AND ORS.

to do so to assuage the perennial difficulties faced by the locals A
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. The
expression “highway” has not been defined in the 1956 Act or
even in the 1988 Act. The Central Government, whilst exercising
B
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 of the road as a
national highway from one designated town (Chennai) upto another C
town (Salem), which will be common to all the subjects. [Paras
38, 39 and 41][150-A-B; F-H; 151-A-D; 154-C-D]
Venkataramaiya’s Law Lexicon (Second Edition); P.
Ramanatha Aiyar’s Advanced Law Lexicon (6th Edition)
– referred to. D
4. MODIFICATION OF PROJECT AND EXTENT/
SCOPE OF REVIEW
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 - E
Phase I) included section – C-M (EC), as approved by the Cabinet
Committee on Economic Affairs (CCEA) in October, 2017. This
Project, being a macro level project, does not reckon the nuanced
imperatives of a particular region or area, which may only be a
miniature of the whole Project traversing across around 24,800 F
kms. in Phase I. For that reason, the approved Project itself
bestows discretion upon the Ministry of Road Transport &
Highways (MoRTH) to substitute/replace up to 15% length of
24800 kms., of the Project (Phase I), by other suitable projects.
It could thus be understood that alteration to the extent of 15%
is permissible, if development of certain identified stretches under G
the program cannot be taken up on account of issues pertaining
to alignment finalisation, land availability and other unforeseen
factors and concerns relating to congestion, reduction of distance,
operational efficiency are some of the factors which may attract
H
96 SUPREME COURT REPORTS [2020] 14 S.C.R.

A such alteration. 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 State, the Committee
opted for substitution/replacement of the original stretch/section
[C-M (EC)] for the reasons recorded in the minutes. It decided
B
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 of the governing policies and criteria for
C 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. 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
D
necessity to enhance the existing section of Economic Corridor
between Chennai-Madurai was taken note of in the principal
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
E 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,
obviously, partakes the colour of a policy decision of the Central
Government, which is also backed by the guidelines issued on
F
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 October, 2017 recording
obstructions/difficulties faced during upgradation of the existing
G road arteries. 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

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 97
KRISHNAMOORTHY AND ORS.

decision was taken by the broad-based Committee of experts, of A
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
B
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. It is the primary duty of the competent authority
to decide whether there exists public purpose or not. The Courts C
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
D
Court(s) of appeal and to disregard it merely because another
option would have been more beneficial. 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 is also in conformity with the guidelines E
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
F
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. As the decision regarding change
of stretch/section has been taken by the concerned department G
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

H
98 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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
B
other words, it would operate as minor change to the original
plan with deemed approval thereof and get interpolated therein.
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
C 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
D
validity of the notification under Section 2(2) and ex consequenti
Section 3A of the 1956 Act as well.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.
E 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.
F
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
G 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,
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 99
KRISHNAMOORTHY AND ORS.

would continue to bind all concerned and in particular, the officials A
of NHAI being the executing agency. [Paras 42, 44-48][154-F-
H; 155-A-B; C-F; 159-D-H; 166-A-E; 169-C-H; 170-A-G]
Sooraram Pratap Reddy & Ors. vs. District Collector,
Ranga Reddy District & Ors., (2008) 9 SCC 552 – relied
on. B
Somawanti & Ors. v. State of Punjab & Ors. [1963] 2
SCR 774 – followed.
5.1 PRIOR ENVIRONMENTAL/FOREST CLEARANCE:
STAGE
C
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 D
highway or part thereof, the same has been 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 E
Section 3A expressing its intention to acquire the designated
land. The Central Government has framed rules in exercise of
power under Section 9 of the 1956 Act, titled as the National
Highways Rules, 1957. 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 F
obtain prior permission(s) under environmental/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 G
preparation of estimate of work etc. The Schedule of the 1957
Rules stipulates conditions for the issue of technical approval
and financial sanction to plan and estimate for execution of any
original work on a national highway costing an amount not

H
100 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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 of these
enactments/rules specify any express condition requiring Central
Government to obtain prior environmental/forest clearance
B
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. Reverting to the notification issued by the MoEF
C dated 14.9.2006, even this notification does not constrict the
power of Central Government to issue notification under Section
2(2) or Section 3A of the 1956 Act. There is nothing to suggest
that before expressing intention to acquire any land for the
purpose of the 1956 Act, prior environmental/forest clearance is
required. The environmental/forest clearance, however, is,
D
required to be obtained by the executing agency in terms of this
notification “before commencing the actual work or executing
the proposed work/project”. That would happen only after the
land is vested in the NHAI or the NHAI was to be entrusted with
the development work of concerned national highway by the
E 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.
F
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
G 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

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 101
KRISHNAMOORTHY AND ORS.

to carrying out activities referred to in Section 3B for assessing A
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. [Paras 50-52][172-A-H; 173-A-E]
5.2 Section 4 of the 1956 Act provides for vesting of the B
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 C
the State Government. 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. It is
indisputable that NHAI is an authority appointed by the Central
Government under the 1988 Act. This authority is a functional D
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 E
acquisition of land for the Authority. Chapter IV of the 1988 Act,
in particular, Section 16 thereof, deals with the functions of the
Authority (NHAI). 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 F
under Section 2(2) or for that matter, Section 3A of the Act, there
is no need to seek prior permission (by the Central Government)
under environmental laws or the forest laws, as the case may be.
Further, the purpose of public hearing in the concerned
enactments (namely, the 1956 and 1988 Acts on the one hand
and the 1986 Act or forest laws, on the other) is qualitatively G
different and contextual to matters relevant under the concerned
enactment. The competent authority in the former, may be
satisfied that the acquisition of land in question is for public

H
102 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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
B
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
C 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
D
authority under the environmental/forest laws, such clearance/
permission can be granted after the public hearing. 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 considered by
E the competent authority during the public hearing under Section
3C of the 1956 Act. [Paras 53-57][173-F; 174-B-D; 177-B-G;
178-C]
5.3 The notification of 2006 (14.09.2006) is in the nature of
guidelines/directives issued by the Central Government in
F 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
G as in terms of the minutes dated 19.1.2018 followed by
notifications under Sections 2(2) and 3A of the 1956 Act, as the
case may be. The 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
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 103
KRISHNAMOORTHY AND ORS.

feasibility and viability of the stretch/section to be used as a A
national highway and no further. These activities are outside the
purview of notification of 2006. [Paras 60, 61][187-E-H; 188-A]
5.4 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 B
(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 C
national highway. Applying the tenet underlying this notification,
it is amply clear that before the process of acquisition of land is
ripe for declaration under Section 3D of the 1956 Act, it would be
open to the executing agency (NHAI) to make an application to
the competent authority for environmental clearance. That D
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. 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 E
as, forest laws to accord necessary permissions. 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 F
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, NHAI assumes the role of an G
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

H
104 SUPREME COURT REPORTS [2020] 14 S.C.R.

A notification/Office Memorandum dated 14.9.2006 and 7.10.2014
respectively. 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
B
arise, as predicated in Office Memorandum dated 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
C or part thereof. [Paras 65-68][189-B-D; 190-G-H; 191-A-G]
6.1 RE: DEEMED LAPSING AND THE WAY FORWARD
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
D 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,
E 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
F bestowed on the Central Government under this Act to withdraw
from acquisition. This Court is 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
G 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

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 105
KRISHNAMOORTHY AND ORS.

of the land had become ripe for issue of declaration of acquisition A
under Section 3D. There is no express provision in the 1956
Act, which excludes the time spent by the Central Government
or the executing agency in obtaining prior environmental
clearance or permission under forest laws, as the case may be.
To get over this predicament, by an interpretative process and
B
also by invoking plenary powers of this Court under Article 142
of the Constitution, it is held that the dictum in paragraph 100(1)
of Karnataka Industrial Areas Development Board, shall operate
as a stay by an order of the Court for the purposes of Section
3D(3) in respect of all projects under the 1956 Act, in particular
for excluding the time spent after issue of Section 3A notification, C
in obtaining the environmental clearance as well as for
permissions under the forest laws. 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
D
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/ E
forest laws and attaining finality thereof. [Paras 70, 72][192-B-E;
193-D-H]
Karnataka Industrial Areas Development Board v. C.
Kenchappa & Ors. (2006) 6 SCC 371 – relied on.
6.2 In the present case, concededly, the permissions/ F
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 G
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

H
106 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 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. Any final opinion is not
being expressed in that regard. However, such fresh notifications
may be issued only in respect of land forming part of permissions/
B
clearances given by the competent authority under the
environment/forest laws, being site specific. [Para 73][194-A-G]
7.1 CONCLUSION
The High Court directed the concerned revenue authorities
C 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 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,
D this Court agrees 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 cannot be countenanced and,
therefore, the earlier entries ought to be restored. That direction
E of the High Court needs no interference. [Para 76][196-B-D]
7.2 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
F 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
G 106 of the impugned judgment) to the concerned authorities to
restore the subject mutation entries is, however, upheld. 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/
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 107
KRISHNAMOORTHY AND ORS.

stretch - C-K-S (NC), being NH Nos. 179A and 179B. [Paras 80, A
81][197-C-F]
Union of India vs. Kushala Shetty & Ors. (2011) 12
SCC 69; Akhil Bharat Goseva Sangh v. State of A.P. &
Ors. (2006) 4 SCC 162 : [ 2006] 3 SCR 543; K.
Vasudevan Nair & Ors. v. Union of India & Ors. 1991 B
Supp (2) SCC 134; Col. A.S. Sangwan vs. Union of
India & Ors. AIR 1981 SC 1545; Systopic Laboratories
(Pvt.) Ltd. v. Dr. Prem Gupta & Ors. 1994 Supp (1)
SCC 160; Secretary, Ministry of Chemicals &
Fertilizers, Government of India vs. Cipla Ltd. & Ors.
(2003) 7 SCC 1 – relied on. C
K. Lubna & Ors. v. Beevi & Ors. (2020) 2 SCC 524;
Shrilekha Vidyarthi & Ors. v. State of U.P. &
Ors.(1991)1 SCC 212 : [1990]1 Suppl. SCR 625;
Dwarkadas Marfatia & Sons v. Board of Trustees of
the Port of Bombay (1989) 3 SCC 293 – held D
inapplicable.
State of Bombay v. R.S. Nanji [1956] SCR 18; M.C.
Mehta v. Kamal Nath & Ors. (1997) 1 SCC 388 : [1996]
10 Suppl. SCR 12; M.C. Mehta v. Union of India &
Ors. (2004) 12 SCC 118 : [2004] 3 SCR 126; Raghbir E
Singh Sehrawat v. State of Haryana & Ors. (2012) 1
SCC 792 : [2011] 14 SCR 1113; State of Uttaranchal
v. Balwant Singh Chaufal & Ors. (2010) 3 SCC 402 :
[2010] 1 SCR 678; Bengaluru Development Authority
v. Sudhakar Hegde & Ors. 2020 SCC Online SC 328;
Hanuman Laxman Aroskar v. Union of India (2019) 15 F
SCC 401 : [2019] 5 SCR 916; Delhi Development
Authority & Anr. Vs. Joint Action Committee, Allottee of
SFS Flats & Ors. (2008) 2 SCC 672 – referred to.
Diljit Singh & Ors. vs. Union of India & Ors. 2010
SCC Online P&H 11847; M. Velu v. State of Tamil Nadu G
& Ors. 2010 SCC Online Madras 2736; B. Nambirajan
& Ors. v. District Collector, Kanyakumari District,
Nagercoil & Ors. CDJ 2018 MHC 2862; Jayaraman
& Ors. v. State of Tamil Nadu & Ors. 2014 SCC Online
Madras 430; J. Parthiban & Ors. v. State of Tamil Nadu
& Ors. AIR 2008 Mad 203 – referred to. H
108 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Commonwealth of Massachusetts v. James G. Watt 716
F.2d.946 (1938); California v. Watt 683 F.2d 1253 (9th
Cir. 1982) Roosevelt Lathan and Pearline Lathan, his
wife, v. John A. Volpe, Secretary of the United States
Department of Transportation 455 F.2d 1111 Arlington
Coalition on Transportation v. John A. Volpe, Secretary
B
of Transportation 458 F.2d.1323 (1972) Jones v. District
of Columbia 458 F.2d.1323 (1972) – referred to.
Case Law Reference
[1956] SCR 18 referred to Para 9
C [1963] 2 SCR 774 followed Para 9
(2006) 6 SCC 371 relied on Para 11
[1996] 10 Suppl. SCR 12 referred to Para 11
[2004] 3 SCR 126 referred to Para 11
D
[2011] 14 SCR 1113 referred to Para 11
[2006] 3 SCR 543 relied on Para 18
(2008) 9 SCC 552 relied on Para 18
(2011) 9 SCC 1 followed Para 18
E
(2011) 12 SCC 69 relied on Para 18
(2020) 2 SCC 524 held inapplicable Para 20
[1990] 1 Suppl. SCR 625 held inapplicable Para 20
[ 2010] 1 SCR 678 referred to Para 20
F
[2019] 5 SCR 916 referred to Para 22
(1990) 1 SCC 109 followed Para 23
AIR 1981 SC 1545 relied on Para 23

G (1989) 3 SCC 293 held inapplicable Para 23
(2003) 7 SCC 1 relied on Para 23
1991 Supp (2) SCC 134 relied on Para 43
1994 Supp (1) SCC 160 relied on Para 43
H (2008) 2 SCC 672 referred to Para 59
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 109
KRISHNAMOORTHY AND ORS.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3976- A
77 of 2020
From the Judgment and Order dated 08.04.2019 of the High Court
of Judicature at Madras in Writ Petition No. 16630 of 2018 and Writ
Petition No. 16961 of 2018
With B
CIVIL APPEAL NOS. 3978-3980, 3981-3984, 3985-3991, 3992,
3993-3994, 3995-3998, 3999-4001 OF 2020
Tushar Mehta, SG, K.M. Nataraj, ASG, G. Rajagopalan, S.
Nagamuthu, Sanjay Parikh, Nikhil Nayyar, Ms. Anitha Shenoy, Sr. Advs.,
Gurmeet Singh Makker, Nikhil Rohatgi, Sanchar Anand, Devashish C
Bharukha, Ms. Swati Ghildiyal, Ms. Madhu Sweta, Ms. Shivangi Khanna,
Ms. Subhashree Mohapatra, Siddharth Raj Agarwal, Ms. Astha Tyagi,
Saurabh Mishra, Rajat Nair, Bhuvan Mishra, Sanskriti Pathak, Mrs. Anil
Katiyar, K. Paari Vendhan, Prabu Ramasubramanian, Raghunatha
Sethupathy, Karuppaiah Meyyappan, Hardik Gautam, Ms. Srishti
Agnihotri, Ms. Tanvi N.S., Ms. Sanjana Srikumar, Ms. Anmol Gupta, S. D
Thananjayan, Gautam Narayan, Ms. Asmita Singh, Naveen Hegde,
Adithya Nair, Kabilan Manoharan, P. Soma Sundaram, T. V. S.
Raghavendra Sreyas, Akshay Girish Ringe, Ms. Megha Mukerjee, Harish
Pandey, Alok Kumar Pandey, Balaji Srinivasan, Aishwarya Choudhary,
T. R. B. Sivakumar, K. Balu, B. Karunakaran, S. Gowthaman, M.P. E
Parthiban, Deepak Anand, Advs. for the appearing parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
2. These appeals emanate from the common judgment and order1 F
of the High Court of Judicature at Madras2 holding the notifications
issued under Section 3A(1) of the National Highways Act, 1956 3 for
acquisition of specified lands for development/construction of Chennai-
Krishnagiri-Salem (National Corridor) 8 Lanes new National Highway4
1
dated 8.4.2019 in W.P. Nos. 16146/2018, 16630/2018, 16961/2018, 19063/2018, G
19385/2018, 20014/2018, 20194/2018, 20625/2018, 20626/2018, 20627/2018, 20647/
2018, 20764/2018, 20969/2018, 21242/2018, 22334/2018 and 22371/2018
– for short, “the impugned judgment”
2
for short, “the High Court”
3
for short, “the 1956 Act”
4
for short, “C-K-S (NC)”
H
110 SUPREME COURT REPORTS [2020] 14 S.C.R.

A (NH-179A and NH-179B) being part of the larger project - “Bharatmala
Pariyojna – Phase I5”, as illegal and bad in law on the grounds stated in
the impugned judgment.
THE PROJECT
3. The Project (Bharatmala Pariyojna - Phase I) has been
B conceived as a new umbrella program for the highways sector that
focuses on optimising 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
C Improvement, Border and International connectivity roads, Coastal and
Port connectivity roads and Green-field expressways, traversing across
around 24,800 kms in Phase-I. In addition, Phase I also includes 10,000
kms. of balance road works under National Highways Development
Program6. The estimated outlay for Phase I came to be specified as
Rs.5,35,000 crores spread over 5 years. The objective of the Program is
D stated as optimal resource allocation for a holistic highway development/
improvement initiative. The two distinguishing features are said to be -
effective delegation in appraisal/approval of individual project stretches
and encouraging State Governments to participate in the development
process through ‘Grand Challenge’. This Project intends to further the
E objective of the NHDP, which was being implemented in the past and
had reached level of maturity. Resultantly, it was thought appropriate to
redefine road development and have a macro approach while planning
expansion of the national highways network with focus on recasting
road development by bridging critical infrastructure gaps. The Program
envisages a corridor approach in place of the existing package-based
F approach which has, in many cases, resulted in skewed development
referred to therein, causing impediment in seamless freight and passenger
movement.
4. The components and outlay of the Project, as approved by the
Cabinet Committee on Economic Affairs7 to be implemented over a
G period of 5 years i.e. 2017-2018 to 2021-2022, provide for the breakup
of length of the different components and the outlay therefor. Although
the Project stretches had been identified taking into account integration
5
for short, “the Project”
6
for short, “NHDP”
7
H for short, “the CCEA”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 111
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

of economic corridors with the ongoing projects under NHDP and A
infrastructure asymmetry in major corridors, an express discretion has
been bestowed on Minister – Road Transport & Highways to substitute/
replace upto 15% length of 24,800 kms. for the Project (Phase-I of
program) by other suitable projects, if development of certain identified
stretches cannot be taken up on account of issues pertaining to alignment
B
finalisation, land availability and other unforeseen factors whilst retaining
the target and budget proposed for Phase I.
5. In furtherance of the Project, a meeting was held on 19.1.2018
under the Chairmanship of Secretary (Road Transport & Highways) for
optimising Economic Corridors in the State of Karnataka, Andhra
Pradesh, Tamil Nadu and Kerala identified under the Project, which C
was also attended by Member (P), National Highway Authority of India8,
Joint Secretary of the Ministry of Road Transport & Highways 9 and
CGM (T), NHAI. The members deliberated upon the micro aspects of
the section delineated as Chennai-Madurai in the State of Tamil Nadu,
as was done in respect of other sections of the concerned State. After D
due deliberations and considering all aspects, the Committee proceeded
to record its unanimous opinion in respect of stretch/section referred to
in the Project – C-K-S (NC) and Chennai-Madurai (Economic
Corridor)10 in the State of Tamil Nadu, as follows: -
“2.4 Chennai-Krishnagiri-Salem (National Corridor) & Chennai- E
Madurai (Economic Corridor):
(i) The traffic from Chennai bound to Salem/Coimbatore
and Pallakad (Kerala) currently use the Chennai-
Krishnagiri section of the Golden Quadrilateral
(Chennai-Bengaluru) and the Krishnagiri-Salem section F
of the North-South corridor or the Chennai-Tindivanam-
Ulundurpet section of the Chennai-Madurai Economic
corridor 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) section of the G
Chennai-Madurai Economic Corridor. Accordingly, it
was decided that instead of 6/8 laning of Tindivanum
8
for short, “the NHAI”
9
for short, “the MoRTH”
10
for short, “C-M (EC)” H
112 SUPREME COURT REPORTS [2020] 14 S.C.R.

A Trichy section, a crow-flight green-field alignment be
developed between Chennai and Salem via Harur under
National Corridor Efficiency Improvement. This will
not only reduce the distance between Chennai and
Salem/Coimbatore by 40 km but also diversify the traffic
from the congested Chennai-Krishnagiri section of
B
Golden Quadrilateral and Chennai-Ulundurpet section
of the Chennai-Madurai Economic Corridor.
(ii) It was also observed that instead of 6/8 laning of
Tovarankuruchi-Melur-Madurai section (64 km) of the
Chennai-Madurai Economic Corridor, it would be better
C to develop Tovarankuruchi-Natham section (27 km) as
the Madurai-Natham stretch is already being developed
as a feeder-route, which will reduce the Trichy-Madurai
distance by 8 km and would result into diversification
of traffic from Tovarankuruchi to Madurai via Natham
D and via Melur.”
It was also decided in the said meeting that the CCEA shall be
apprised of the proposed alignment in the upcoming biannual update.
6. In the backdrop of this decision, notifications under Section
2(2) of the 1956 Act came to be issued, declaring the stretch/section
E from Tambaram (Chennai) to Harur as NH-179B and from Harur to
Salem as NH-179A. Consequent to such declaration, notifications under
Section 3A(1) of the 1956 Act specifying the lands proposed to be
acquired for the national highway(s), came to be issued for the concerned
stretches/sections, which was also duly published in the local newspapers.
F PROCEEDINGS BEFORE THE HIGH COURT
7. The notifications under Section 3A of the 1956 Act were
challenged by the affected land owners and also by way of public interest
litigation. In addition, in Writ Petition No. 21242/2018, the notifications
issued under Section 2(2) of the 1956 Act declaring the concerned
G stretches/sections being NH-179A and NH-179B respectively, came to
be challenged.
8. The High Court considered challenges to the stated notifications
on diverse counts by way of a common judgment, which is impugned in
these appeals. The High Court formulated 15 questions, which arose
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 113
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

for its consideration in the context of the challenge to the respective A
notifications. The same read thus:-
“(i) Whether the Writ Petitions are maintainable, since all that
has been done by the respondents is to notify their intention
to acquire the lands by publishing a notification under Section
3A(1) of the Act and the petitioners cannot be stated to be B
aggrieved;
(ii) Whether the entire land acquisition proceedings are wholly
without jurisdiction as a declaration under Section 2(2) of
the Act enables only to declare an existing highway, as a
National Highway and not for creating a National Highway C
from a non-existing road or a plain land;
(iii) Whether if the project is allowed to be implemented without
prior environmental clearance, would it be against the
principles of sustainable development and would violate the
provisions of the Articles 19, 46, 48A and 51A of the D
Constitution of India;
(iv) Whether there is a need for the proposed project Highway
given the statistics regarding the Passenger Car Units in
the existing three highways;
(v) Whether there is any hidden agenda for the proposed project E
and whether it was intended to benefit a chosen few;
(vi) Whether Chennai-Salem proposed highway project was not
even considered as a viable proposal, when lots were invited
under Bharat Mala Priyojana and Chennai-Madurai
proposal was found to be viable resulting in appointment of F
the consultant (Feedback), could there have been a change
of the project after appointment of the Consultant for a
different project;
(vii) Whether the respondents who had originally notified the
project between the Chennai and Madurai could have G
changed the same after the tender for awarding the
consultancy contract was finalised for Chennai-Madurai
Section;
(viii) What would be the impact of the proposed project on Forest
lands, Water Bodies, Wild Life, flora and fauna as admittedly H
the proposed alignment passes through all these areas;
114 SUPREME COURT REPORTS [2020] 14 S.C.R.

A (ix) Whether public hearing is a pre-requisite and should it
precede any step that may be taken under the provisions of
the Act;
(x) Whether public consultation which includes public hearing
at site should have preceded the land acquisition
B proceedings or at what stage it is required to be done;
(xi) If the notification as initially notified by the Central
Government (Chennai-Madurai) was modified is the draft
feasibility report liable to be scrapped, as the award of
consultancy contract was entirely for a different project;
C (xii) Whether the report prepared by the Consultant (Feedback)
contains plagiarized contents, whether it was prepared in
great haste, replete with errors apparent on the face of the
record and should the report be held to be an outcome of
non-application of mind;
D (xiii) Whether guidelines prescribed in the Indian Highway
Capacity Manual were ignored while preparing the draft
feasibility report;
(xiv) Whether on account of the reduction of the right of way in
various sections including the proposed alignment, which
E passes through Forest area, whether the scope of the project
stood totally amended and whether the respondents can
proceed in the manner they propose to do.
(xv) Whether the feasibility report has failed to analyse the
financial consequences of the Chennai-Salem express way
F becoming an additional toll way or competing road to the
existing toll way and thus triggering a series of contractual
obligations under the present concessional agreements that
would get extended by 50 to 100% of the remaining period.
…..”
G 9. The High Court, at the outset considered the preliminary
objection regarding maintainability of writ petitions being premature, as
raised by the NHAI and the Union of India. In that, the stated notifications
under Section 3A(1) were only expression of intention to acquire lands
and all objections thereto could be considered by the designated authority
H at the appropriate stage. Further, the challenge to the said notifications
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 115
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

under Section 3A could be entertained by the High Court only if the A
competent authority had taken recourse to that option as a colourable
exercise of power. And it was not open to the Court to substitute its
own judgment for the judgment of the Government as to what constitutes
public purpose. The High Court noted that ordinarily, the constitutional
Courts would be loath to interdict any land acquisition process at the
B
inception. However, it then went on to observe that the same is a self-
imposed restriction. Whereas, the circumstances of the present case
would warrant interference at the very threshold. Further, the land owners/
losers cannot be made to wait till the final outcome of the decision of the
competent authority and more so, when it is a case of high-handed action
of the officials. The High Court noting the decision in State of Bombay C
vs. R.S. Nanji11 and Somawanti & Ors. vs. State of Punjab & Ors.12,
observed that if the constitutional Court is convinced that the impugned
notifications are the outcome of colourable exercise of power by the
authorities concerned and the decision being replete with irrationality,
unreasonableness and arbitrariness, ought to intervene at the threshold.
D
10. The High Court then proceeded to examine the next point
pertaining to the validity of notifications issued under Section 2(2) of the
1956 Act. The challenge on this count was founded on the argument
that the pre-requisite for issuing such notifications to declare a highway
as a “National Highway”, is that, it should be a pre-existing State highway.
For, in terms of powers conferred in Entry 23 of List I (Union List) of E
the Seventh Schedule, the Parliament is empowered to make a law limited
to declaring an existing highway to be a “National Highway”. Whereas,
the State legislature has exclusive power to notify a new highway, as it
alone is competent to enact laws concerning roads, bridges, ferries etc.
not specified in List I. The argument regarding stated notifications under F
Section 2(2) of the 1956 Act being violative of Articles 257(2) and 254(4)
of the Constitution, has been referred to in paragraph 43 of the impugned
judgment. To wit, only the State Government is empowered to declare a
land or a road to be a highway in terms of the Tamil Nadu Highways
Act, 200113 and only such notified highway could be declared as a
National Highway by the Central Government. At any rate, the Central G
Government cannot declare an open land passing through the green-
fields as a National Highway in exercise of power under Section 2(2) of
11
AIR 1956 SC 294 = 1956SCR 18
12
AIR 1963 SC 151 = (1963) 2 SCR 774
13
For short, “the 2001 Act” H
116 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the 1956 Act and consequently, the power under Section 3A of the 1956
Act cannot be invoked in respect of such open lands. The High Court
negatived this argument of the writ petitioners by relying on the decision
of the same High Court in B. Nambirajan & Ors. vs. District Collector,
Kanyakumari District, Nagercoil & Ors.14, which had followed the
exposition in Jayaraman & Ors. vs. State of Tamil Nadu & Ors.15.
B
The High Court opined that where the Central Government is satisfied
that for public purpose, any land is required for building, maintenance,
management or operation of a National Highway or part thereof, it may,
by a notification in the official gazette in exercise of powers under Section
2(2) of the 1956 Act issue declaration and also initiate follow up action
C including notification under Section 3A. In substance, it is held that the
Central Government had sufficient power to acquire even open green-
fields land for the purposes of construction of National Highways or
part thereof. (This part of the decision has been challenged by the
appellant in appeal arising out of SLP(C) No. 18586/2019).
D 11. The High Court then proceeded to examine point No. (iii) as
to whether prior environmental clearance was imperative before issuing
notifications under Section 3A(1) and at what stage of acquisition
proceedings such environmental clearance ought to be made pre-
condition. For dealing with this contention, the High Court noticed decision
of the Division Bench in J. Parthiban & Ors. vs. State of Tamil Nadu
E & Ors.16 and of this Court in Karnataka Industrial Areas Development
Board vs. C. Kenchappa & Ors.17. The decision of the same High
Court in M. Velu vs. State of Tamil Nadu & Ors.18 was also noticed, as
also, the notification issued by the Ministry of Environment, Forest and
Climate Change19, dated 14.9.2006, to hold that prior environmental
F clearance/permission ought to have been obtained before issuance of
notifications under Section 3A of the 1956 Act. The High Court then
noted the principles expounded by this Court concerning doctrine of “public
trust” in M.C. Mehta vs. Kamal Nath & Ors.20 and M.C. Mehta vs.
Union of India & Ors.21. It also noticed another decision of this Court
14
CDJ 2018 MHC 2862
G 15
2014 SCCOnline Madras 430
16
AIR 2008 Mad 203
17
(2006) 6 SCC 371
18
2010 SCCOnline Madras 2736
19
for short, “the MoEF”
20
(1997) 1 SCC 388
21
H (2004) 12 SCC 118
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 117
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

in Raghbir Singh Sehrawat vs. State of Haryana & Ors. 22 and the A
exposition of Courts in the United States of America in Commonwealth
of Massachusetts vs. James G. Watt23, California vs. Watt24, Roosevelt
Lathan and Pearline Lathan, his wife, vs. John A. Volpe, Secretary
of the United States Department of Transportation 25, Arlington
Coalition on Transportation vs. John A. Volpe, Secretary of
B
Transportation26 and Jones vs. District of Columbia27, and concluded
that being a welfare State, the authorities while implementing the project
which, in the opinion of the Government, is in public interest, cannot turn
a nelson’s eye to reality and forget that protecting agriculture is equally
in public interest. It went on to observe that the interpretation of the
relevant provisions in Indian context should lean towards protecting C
agriculturists and for that reason, went on to observe that if the Project
is allowed to be implemented without prior environmental clearance, it
would be a gross violation of the principle of sustainable development
and in particular, provisions of Articles 19, 21, 46, 48A and 51A of the
Constitution of India.
D
12. The High Court then proceeded to consider point Nos. (iv) to
(vi) together. It noted the contention of the writ petitioners that until the
Project (Bharatmala Pariyojna – Phase I) was reviewed on 24.1.2018
and when the Minister of State – MoRTH replied to questions in Rajya
Sabha about new highway projects under various stages including Detailed
Project Reports28 stage on 5.3.2018, there was no inkling about the E
proposed Project made applicable to stretch/section – C-K-S (NC).
Whereas, the stretch/section identified in the Project was – C-M (EC),
which was completely different. Moreover, there was no tangible basis
before the members of the Committee on 19.1.2018, to abruptly change
the Chennai-Madurai (Economic Corridor) - C-M (EC) project to one F
as Chennai-Krishnagiri-Salem (National Corridor Efficiency
Improvement) – C-K-S (NC) or as green-field expressways. No
document/material had been produced before the Court in support of
the Minutes recorded on 19.1.2018 - to justify C-K-S (NC) section. If
22
(2012) 1 SCC 792 G
23
716 F.2d.946 (1938)
24
683 F.2d 1253 (9th Cir. 1982)
25
455 F.2d 1111
26
458 F.2d.1323 (1972)
27
499 F.2d.502 (1974)
28
for short, “the DPR”
H
118 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the authorities intended to make such a change, they ought to have
obtained prior approval/clearance from the Public Investment Board29
and in-principle approval of the Ministry of Finance and the Comptroller
and Auditor General30 in that regard. No audit of project formulation by
CAG was done nor the alignment report and approval given was as per
the DPR guidelines of the MoRTH. Further, the Consultant – M/s.
B
Feedback Infra Pvt. Ltd. appointed for the original Project concerning
section C-M (EC), was continued for the changed stretch/section without
following the tendering process as predicated by the MoRTH and the
Post Award Portal Guidelines for procurement, preparation, review and
approval of DPR etc. The High Court noted that the appellants herein
C (State authorities/NHAI/Union of India) had supported their action
regarding the changed/modified project on three grounds – (i) existing
capacity is fully utilised; (ii) there will be economic development in
general; and (iii) there will be reduction in carbon foot print, as the length
of subject stretch/section was at least 40 kms. less than the corresponding
section falling under C-M (EC), as originally conceived. The High Court
D
noted that the Central Government had not filed any counter affidavit on
the subject matter. The counter affidavit was filed by the NHAI, which
did not touch upon the factual matrix pointed out by the writ petitioners
regarding the circumstances in which the stretch/section was changed
to C-K-S (NC) except asserting that it was a policy decision. The High
E Court was conscious of the fact that the issues raised by the writ
petitioners were quasi-technical issues, but clarified that as to whether
the stretch-section was part of the Project (Bharatmala Pariyojna –
Phase I) at the first instance, is a question of fact, which ought to have
been answered and clarified by MoRTH. The Court, after referring to
the original Project, noted that C-K-S (NC) section does not find place
F
therein. Instead, C-M (EC) had been mentioned at S.No.19 of the original
Project. Further, there was nothing on record to indicate that the changed
stretch/section had been approved by the Cabinet Committee or the
Public Private Partnership Appraisal Committee31, as mandated in the
guidelines issued by the CAG. Thus, the High Court held that the decision
G was taken by the Committee in hot haste and without following necessary
formalities and standard operating procedures specified in that regard.
As a matter of fact, no proper scrutiny of all relevant facts and more
particularly, possible alternatives had been explored before a final decision
29
For short, “the PIB”
30
for short, “the CAG”
H 31
for short, “the PPPAC”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 119
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

to implement such a major project was taken (costing around Rs.10,000 A
crores, covering around 277 kms. and construction of a new National
Highway traversing through green-fields). At the same time, the High
Court rejected the allegation about the hidden agenda for such a change
of stretch/section from C-M (EC) to C-K-S (NC). The High Court found
that the allegations regarding hidden agenda to favour a private limited
B
company remained unsubstantiated.
13. The High Court then proceeded to examine point No. (vii)
regarding the continuation and appointment of the Consultant in respect
of the changed stretch/section i.e. C-K-S (NC), although its initial
appointment was in respect of the stretch/section originally conceived
i.e. C-M (EC). The High Court recorded disparaging and condemnatory C
remarks in reference to continuation of the same Consultant for the
changed stretch/section without following proper procedure. The High
Court also accepted the criticism regarding Draft Feasibility Report32
prepared by the Consultant being bereft of any credible material/
information, but was replete with mechanical reproduction of contents D
resembling with some other projects. The argument of the Consultant
that no other bidder (Consultant) had challenged its appointment in respect
of changed stretch/section - C-K-S (NC), came to be rejected. The
High Court proceeded to hold that the authorities ought to have invited
fresh tenders and offers from the qualified Consultants as per the standard
operating procedure and ought not to have continued with the same E
Consultant for the entirely different stretch/section – C-K-S (NC).
14. The High Court then considered point No. (viii) regarding
impact assessment and in-principle approval to study the impact of the
Project on flora and fauna. The High Court noticed that the changed
stretch/section was to pass through the forest areas to the extent of 10 F
kms., yet no prior permission of the Forest Department had been obtained.
Further, no impact assessment analysis was done before taking decision
to change the project to C-K-S (NC). Also that in the name of the subject
project, 100 trees were unauthorizedly felled from the lands in close
proximity with the proposed alignment in the guise of allowing some G
persons to remove the damaged trees. The Court also took into account
the inaction of the authorities in some other locations in the neighbourhood,
failing to remove encroachments in the forest area and the firm stand of
the Forest Department for denying permission to erect even a small
32
For short, “the DFR” H
120 SUPREME COURT REPORTS [2020] 14 S.C.R.

A bridge to facilitate the villagers to cross Moiyar river to reach their
residence. Taking judicial notice of that fact, the High Court proceeded
to assume that it was most unlikely that permission will be given for
construction of a new National Highway passing through the forest area.
This aspect had not been seriously considered by the appropriate authority.
The decision, however, was based on a report which was prepared
B
mechanically on the basis of geo-mapping without physical verification
on site. Similarly, the proposed alignment was without collecting data of
Passenger Carrying Units33 or ascertaining the correctness of data
(referred to in the report) collated from the toll plazas. At the end, the
High Court noted that the procedure adopted by the NHAI in asking the
C Consultant to carry out the work, which was never the scope of the bid
document, by an oral arrangement, was unacceptable. It then observed
that if the Central Government was still of the opinion that the subject
project concerning section – C-K-S (NC) is required to be implemented,
then it must comply with the required formalities of obtaining requisite
environmental and forest clearances/permissions, after undertaking
D
comprehensive study of the environmental impact.
15. The High Court then proceeded to examine point Nos. (ix)
and (x) together and concluded that a fair procedure ought to be adopted
and the fact that there would be delay if such procedure is followed, will
be of no avail. Prior environmental clearance must be obtained after a
E public hearing is held, before the project is implemented. The High Court
then went on to examine the remaining points for consideration separately;
and concluded as follows: -
“101. For all the above reasons, we are of the considered view
that the project highway as conceived and sought to be
F implemented is vitiated on several grounds as mentioned
above and consequently, the notifications issued for
acquisition of lands under Section 3A(1) are liable to be
quashed.
102. In the result, the Writ Petitions are allowed and the land
G acquisition proceedings are quashed.
103. In view of the above, Crl.O.P. No. 22714 of 2018 is closed.
Consequently, connected Miscellaneous Petitions are closed. There
shall be no order as to costs.
33
H for short, “the PCUs”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 121
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

104. During the pendency of these Writ Petitions, when we heard A
the cases, the learned counsel for the land owners pointed out
that the revenue records were mutated and stood transferred as
Government lands. This had happened even much prior to issuance
of the Notification under Section 3D of the Act. We had pointed
out that such an action could not have been initiated, as, by issuance
B
of a Notification under Section 3A of the Act, the Government
only conveyed its intention to acquire the lands.
105. The learned Government Pleader sought to explain by
contending that those entries were only temporary in nature and
that in the event of the lands get excluded from the project, the
entries would stand reverted back. C

106. We do not agree with the said stand taken by the learned
Government Pleader at that juncture itself. Now that we had
allowed the writ petitions, all the entries in the revenue
records, which stood mutated, shall be reversed in the
names of the respective land owners and fresh orders be D
issued and communicated to the respective land owners
within two weeks thereafter. This direction shall be complied
with within a period of eight weeks from the date of receipt
of a copy of this judgment.”
(emphasis supplied) E

16. The High Court in the impugned judgment also took note of
other decisions34, presumably referred to by the parties during argument
before it. However, in the impugned judgment, no analysis thereof is
found.
34
F
State of U.P. & Ors. vs. Babu Ram Upadhya, AIR 1961 SC 751;
Col. A.S. Sangwan vs. Union of India & Ors., AIR 1981 SC 1545;
Life Insurance Corporation of India vs. Escorts Ltd. & Ors., (1986) 1 SCC 264;
Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay, (1989) 3
SCC 293;
State of Tamil Nadu & Anr. Vs. A. Mohammed Yousef & Ors., (1991) 4 SCC 224;
Ujjain Vikas Pradhikaran vs. Raj Kumar Johri & Ors., (1992) 1 SCC 328; G
Jilubhai Nanbhai Khachar & Ors. vs. State of Gujarat & Anr., 1995 Supp (1) SCC 596;
State of Tamil Nadu & Ors. vs. L. Krishnan & Ors., (1996) 1 SCC 250;
Secretary, Ministry of Chemicals & Fertilizers, Government of India vs. Cipla Ltd. &
Ors., (2003) 7 SCC 1;
Delhi Development Authority & Anr. Vs. Joint Action Committee, Allottee of SFS
Flats & Ors., (2008) 2 SCC 672;
H
122 SUPREME COURT REPORTS [2020] 14 S.C.R.

A THE CHALLENGE
17. Aggrieved, three sets of appeals have been filed before this
Court. First, by the NHAI, second by the Union of India and third, by
the land owner(s) in reference to rejection of challenge to notifications
under Section 2(2) of the 1956 Act. The grounds urged in the concerned
B appeals are more or less recapitulation of the points canvassed before
the High Court and exhaustively dealt with in the impugned judgment.
Besides the oral arguments, the concerned parties have filed written
submissions as per the liberty given to them by this Court upon conclusion
of the oral arguments through video conferencing (virtual Court hearing).
C 18. The arguments were opened by Mr. Tushar Mehta, learned
Solicitor General of India. The gist of the points urged by him can be
stated thus. Writ Petitions filed to assail the notifications under Section
3A of the 1956 Act including Section 2(2) were premature. In that, the
question whether the acquisition is for public purpose is a matter to be
dealt with by the appropriate authority in light of the objections filed by
D the aggrieved persons in response to the notifications under Section 3A(1)
of the 1956 Act, which is merely an expression of intent to acquire the
specified land for construction of national highway under the Project
(Bharatmala Pariyojna – Phase I). He would contend that the High
Court also committed manifest error in concluding that such notifications
E under Section 3A of the 1956 Act could be issued only after prior

Sooraram Pratap Reddy & Ors. vs. District Collector, Ranga Reddy District & Ors.,
(2008) 9 SCC 552;
Bondu Ramaswamy & Ors. vs. Bangalore Development Authority & Ors., (2010) 7
SCC 129;
K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka, (2011) 9 SCC 1;
F Union of India vs. Kushala Shetty & Ors., (2011) 12 SCC 69;
Alaknanda Hydropower Company Limited vs. Anuj Joshi & Ors., (2014) 1 SCC 769;
Jal Mahal Resorts Private Ltd. vs. K.P. Sharma & Ors., (2014) 8 SCC 804;
Rajendra Shankar Shukla & Ors. vs. State of Chhattisgarh & Ors., (2015) 10 SCC 400;
The Industrial Development and Investment Co. Pvt. Ltd. & Anr. Vs. State of
Maharashtra & Ors., AIR 1989 Bom 156;
O. Fernandes vs. Tamil Nadu Pollution Control Board & Ors., (2005) 1 L.W. 13;
G George Joseph and Ors. vs. Union of India, 2008 (2) KLJ 196;
New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association vs. Union of
India & Ors., (2012) 1 MLJ 207;
Madan Malji Kambli & Ors. vs. State of Goa & Ors., 2012 SCCOnline Bom 694; and
Prithvi Singh & Ors. vs. Union of India & Ors. – of the High Court of Punjab &
Haryana at Chandigarh in CWP 689/2012, dated 16.5.2013.
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 123
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

environmental and forest clearances/permissions are granted in that A
behalf. The High Court has misread and misapplied the decision of this
Court in support of that view. It is urged that the acquisition process
initiated under the 1956 Act, which is a self-contained code, is completely
independent and cannot be fusioned with the formalities and procedure
to be complied with before commencement of the Project construction
B
work, in reference to the environment or forest laws. The appellants –
NHAI and MoEF had unambiguously stated before the High Court and
reiterate before this Court that all formalities will be complied with in its
letter and spirit before the construction work of the stated national highway
actually commences. It is essential to authoritatively decide as to at
what stage the appellant – NHAI is required to obtain the environmental C
or forest clearance as per the extant laws including the notification and
Office Memorandum dated 14.9.2006 and 7.10.2014, respectively, of
the MoEF. The applicable notification/Office Memorandum explicitly
excludes the need for a prior environmental clearance for “securing the
land”. It is urged that prior environmental clearances have been ordained
D
before any construction work of specified project including for preparation
of land by the project management (except for securing the land) is
started on the project. Indeed, before commencement of such work or
preparation, as the case may be, the concerned agency is obliged to
make application in Form-1. That may be possible only after identification
of prospective site for the Project and/or activities to which the application E
relates. The identification of site for the construction of national highways
becomes possible only upon completing the process of public hearing
consequent to publication under Section 3A of the 1956 Act. It is then
urged that the High Court justly rejected the argument of the land owners
that open lands cannot be acquired for construction of national highways
F
or that national highway can be declared only in reference to an existing
highway. He submits that there is ample power bestowed in the appellant
– NHAI and the Central Government in particular, in terms of the 1956
Act and the National Highway Authority of India Act, 198835 to acquire
open land for the purposes of construction of national highway, as may
be declared under Section 2(2) of the 1956 Act. These legislations have G
been enacted well within the legislative competence of the Parliament
being subject specified in List I of the Seventh Schedule. Similarly, the
argument of notifications being in violation of constitutional provisions
relating to executive powers is misplaced. On the other hand, the
35
for short, “the 1988 Act” H
124 SUPREME COURT REPORTS [2020] 14 S.C.R.

A notifications issued under Section 2(2) of the 1956 Act and the follow up
notifications issued under Section 3A of the same Act, proposing to
acquire the subject lands, were fully compliant of the legal requirements.
No violation of any nature can be attributed to the issuance of these
notifications including that the same were not in good faith. He submits
that the question whether the subject land referred to in the notifications
B
under Section 3A(1) of the 1956 Act is required for public purpose or
otherwise can be and ought to be answered in reference to the objections
taken by the land owners/aggrieved persons during public hearing. The
authority considering such objection can also consider the question about
the viability and feasibility of the Project. He would contend that the
C land acquisition proceedings under the 1956 Act and grant of
environmental clearance are two different and distinct processes. They
operate in different fields. The High Court, therefore, completely misled
itself in confusing the issue by holding that prior environmental and forest
clearances ought to be obtained even before issuing notifications under
Section 3A of the 1956 Act. The High Court also completely glossed
D
over the mandate of Section 3D of the 1956 Act, predicating that the
final declaration thereunder ought to be issued within one year from the
date of publication of notifications under Section 3A, else the commenced
process would be deemed to have lapsed. The provisions such as Sections
3A to 3J of the 1956 Act, have been enacted by way of amendment Act
E of 1997 to ensure speedy conclusion of acquisition proceedings and
prompt execution of highway projects. By interpretative process, the
High Court has in fact, created an artificial barrier for issue of Section
3D notification and has re-written the amended provisions of 1997. He
would submit that the principle expounded by the American Courts have
no bearing in the context of the express statutory scheme propounded
F
under the 1956 Act and the 1988 Act or for that matter, under the
environmental and forest laws including the notifications issued
thereunder. The latter enactments (environmental/forest laws) would
get triggered when the project work was to actually commence. In
other words, execution of the Project could commence only after such
G clearances are in place. It is contended that the High Court proceeded
to examine the need and viability of proposed C-K-S (NC) sector on
erroneous basis and on assumptions. It proceeded to examine the
comparative merits of different routes, which cannot be countenanced
as it is beyond the scope of judicial review. As a matter of fact, the High
Court has interfered with the policy decision of the competent authority
H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 125
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(the MoRTH) dated 19.1.2018, completely overlooking the discretion A
bestowed in the Ministry vide Project (Bharatmala Pariyojna – Phase I)
itself, empowering it to replace/substitute upto 15% length of 24,800
kms. of Phase-I of the Project by other suitable stretches/sections. The
sector of C-K-S (NC) was finalized by the Committee in the meeting
dated 19.1.2018 for the reasons recorded in the minutes, including the
B
general principles governing development of national highways and also
reckoned in the Project. It is contended that the High Court ought not to
have interfered with the judicious and well-considered decision taken by
the competent authority. He would contend that even if the section/
project finalised vide minutes dated 19.1.2018 was not referred to in the
original Project, however, as the decision was taken by the competent C
authority about the replacement/substitution to the extent permissible, it
forms part of Phase I of Bharatmala Pariyojna (the Project) - in place of
the originally envisaged sector of C-M (EC). The change was for the
betterment of the area covered under the Project and would pay dividends
in posterity at the micro levels in different ways of providing access and
D
new opportunities and strengthening the national road network at the
macro level. As regards the observation made in reference to the
Consultant appointed for the subject Project, it is urged that the same
was completely misplaced and in any case, extraneous for answering
the challenge regarding validity of notifications under Section 3A(1) of
the 1956 Act or for that matter, Section 2(2) of the same Act issued by E
the competent authority. As a matter of fact, no relief was claimed in the
concerned writ petitions filed before the High Court against the Consultant
nor its appointment order issued by the competent authority was under
challenge. The Consultant was duly appointed for the stated Project to
be paid on per kilometre basis, vide contract dated 22.2.2018.
F
Indisputably, no financial loss will be caused to public exchequer as the
Consultant fees is fixed on kilometre basis only. For, the subject stretch/
section [C-K-S (NC)] involves only 277 kms. as against the stretch/
section originally conceived [C-M (EC)] of around 350 kms. Thus, it
would entail in less consultant fees than was envisaged for the originally
conceived section for the Project. In substance, it is urged that the High G
Court was persuaded to undertake a roving inquiry despite the official
record indicating that necessary formalities and procedure has been
complied with before declaration of C-K-S (NC) section as replacement/
substitution of the originally conceived section, and duly approved by the
competent authority. The High Court should have dismissed the writ
H
126 SUPREME COURT REPORTS [2020] 14 S.C.R.

A petitions. In support of his submissions, he has relied on the decisions of
this Court in Akhil Bharat Goseva Sangh vs. State of A.P. & Ors.36,
Sooraram Pratap Reddy (supra), K.T. Plantation Pvt. Ltd. (supra),
Kushala Shetty (supra) and Somawanti (supra); He has also invited
our attention to decisions of Punjab & Haryana High Court in Diljit
Singh & Ors. vs. Union of India & Ors.37 and of the Madras High
B
Court in B. Nambirajan (supra) and Jayaraman (supra).
19. Mr. S. Nagamuthu, learned senior counsel appearing for the
land owners/aggrieved persons, who had filed writ petitions before the
High Court, urged that notifications under Section 3A(1) of the 1956 Act
issued without obtaining prior environmental clearance from the MoEF
C in terms of the notification dated 14.9.2006 are void and bad in law.
Moreover, as per the recommendation of the Environment Assessment
Committee38, no environment clearance could be given to the subject
section (Chennai-Salem) of the Project and in absence thereof, it must
follow that no construction will be permissible on the specified lands and
D thus it cannot be used for the stated public purpose within the meaning
of Section 3A(1) of the 1956 Act. On this count alone, no interference
with the decision of the High Court in setting aside the notifications
under Section 3A of the 1956 Act is necessary. According to him, the
High Court has justly interpreted the sweep of notification dated 14.9.2006,
which has a statutory force and mandates that prior clearance/permission
E ought to be taken before the commencement of acquisition process
including issuing notifications under Section 3A(1) of the 1956 Act. In
that, the satisfaction reached by the competent authority that the land
referred to in such notification is required for public purpose, could be
taken forward only upon grant of environmental/forest clearances. He
F has placed reliance on the exposition of this Court in Karnataka
Industrial Areas Development Board (supra) and of the High Court
of Judicature at Madras in M. Velu (supra), to buttress his submission.
He then submits that the competent authority under the 1956 Act and
the 1988 Act are different. Thus, the application for environmental
clearance cannot be pursued by the competent authority under the 1956
G Act, as in law, such application ought to be made by the competent
authority under the 1988 Act before the commencement of the acquisition
process. In other words, the competent authority under the 1956 Act
36
(2006) 4 SCC 162
37
2010 SCC Online P&H 11847
38
H For short, “the EAC”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 127
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

cannot hasten issuance of notification under Section 3A(1) in anticipation. A
He submits that harmonious reading of the provisions of the 1956 Act
and the 1988 Act go to show that the competent authority under the
1988 Act (NHAI) is expected to initiate the process by undertaking
survey of the land and identifying the land under Section 16(2) of the
1988 Act; and then submit application for environment/forest clearance.
B
Further, only after securing essential permission(s) therefor, the notification
under Section 3A(1) of the 1956 Act could be issued by the Central
Government to commence the acquisition process of such identified land.
This course is not only desirable, but should be made compulsory by
interpretative process - in absence of any provision in the 1956 Act
authorising the Central Government to return the unutilised land (due to C
refusal of essential clearances), to the erstwhile owner (unlike the
provisions in the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 201339). He would
submit that the role of the MoRTH, the MoEF and the NHAI is well
defined. In the alternative, it is submitted, that the authority under the
D
1956 Act may be permitted to continue with the acquisition process until
the stage of notification under Section 3D(1) of the 1956 Act and to
issue such notification only upon grant of permission/clearance by the
competent authority under the environment and forest laws.This is
because upon issuance of notification under Section 3D(1) of the 1956
Act, the land would vest absolutely in the Central Government free from E
all encumbrances. For that purpose, the expression “shall” occurring in
Section 3D(1) of the 1956 Act be construed as “may” and by
interpretative process, liberal meaning be ascribed to the proviso in Section
3D(3) of the 1956 Act. Such approach would preserve the interest of
the land owners, as well as, effectuate the public purpose underlying the
F
acquisition process.
20. Even Mr. Sanjay Parikh, learned senior counsel espousing the
cause of the land owners and aggrieved persons would submit that the
conclusion reached by the High Court in the impugned judgment that the
acquisition process in question was vitiated because of the reasons noted
in the judgment, needs no interference. He would submit that the subject G
section i.e. C-K-S (NC) was not part of the original Project (Bharatmala
Pariyojna - Phase I) and no tangible reason is forthcoming as to why
such a change was approved by the competent authority, especially when

39
for short, the “the 2013 Act” H
128 SUPREME COURT REPORTS [2020] 14 S.C.R.

A the State Government was keen on developing the existing C-M (EC)
section as a priority project. He submits that the selection of C-K-S
(NC) section is arbitrary and violative of guidelines/rules for selection of
a national highway. Further, the stated section traverses through the
green-fields and the agricultural lands including the forest area to the
extent of 10 kms. Hence, the High Court was justified in concluding that
B
the decision to change the section from C-M (EC) to C-K-S (NC) was
flawed and unsustainable. The selection of the said section was in violation
of the original Project (Bharatmala Pariyojna – Phase I) itself, which
was based on scientific survey and research envisaging development of
C-M (EC) section. The Project conceived after scientific process had
C the approval of CCEA and the authorities specified in ‘Section E’ of the
original Project (Bharatmala Pariyojna) document. It mandates that
CCEA approval is mandatory for projects involving expenditure of more
than Rs.2,000 crores in respect of Public-Private Partnership and if it is
an Engineering Procurement & Construction project – involving
expenditure of more than Rs.1,000 crores. No such approval has been
D
obtained in respect of the subject changed section/project, although it
would involve expenditure upto Rs.10,000 crores. Moreover, the proposed
change would be permissible only if the State was ready to bear at least
50% cost of the land acquisition. Even that condition is not fulfilled.
Similarly, no survey of PCUs was undertaken in respect of the subject
E section unlike it was done in respect of the C-M (EC) section. No
justification is forthcoming as to why C-M (EC) section has been
completely shelved by the authorities concerned in terms of the minutes
dated 19.1.2018. As per the prescribed norms in the Project, a new
green-field highway is to be constructed only when the PCUs of the
existing road exceeds 50,000. In the present case, as per the detailed
F
origin–destination studies, the combined PCUs of the three routes between
Chennai-Salem do not meet the threshold of 50,000 PCUs. Despite that,
the change recorded in the minutes dated 19.1.2018 predicates
construction of highway through green-fields and that too without prior
environmental approvals therefor. It is clear from the record that the
G authorities were aware of the need to obtain CCEA approval when they
changed the scope of the Project from brown-field expansion to green-
field section between Chennai-Salem. The said change is in violation of
the NHAI Works Manual, 200640. It is in breach of paragraph 1.8.1,
which is to be followed uniformally by all units of the NHAI and can be
40
H for short, “the NHAI Manual”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 129
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

modified only by the Chairman, after recording reasons. No modification A
in the application of the NHAI Manual in respect of the Project is done.
Similarly, paragraph 2.7 thereof postulates that a package scheme such
as the present one, should receive approval of the Central Government
and individual projects will be approved after the DPR and cost estimates
become available. Further, no fresh tender was issued by the NHAI for
B
appointment of new Consultant despite the change of scope of the earlier
Project. The Consultant, who was appointed for the C-M (EC) section,
was entrusted with the work of changed section i.e. C-K-S (NC). The
issue regarding improper appointment of the Consultant has bearing on
the challenge to the subject section of the Project being illegal. Reliance
was placed on the decision of this Court in K. Lubna & Ors. vs. Beevi C
& Ors.41. It has been held therein that question of law can be raised at
any stage, as long as factual foundation had been laid. This decision is
pressed into service to support the finding and observations recorded by
the High Court concerning the improper appointment of Consultant for
the said section i.e. C-K-S (NC).His argument was focussed on the
D
improper appointment of the Consultant for the subject section of C-K-
S (NC) and supported the observations made by the High Court in the
impugned judgment in that regard. To that end, reliance is placed on
Shrilekha Vidyarthi & Ors. vs. State of U.P. & Ors.42. In substance, it
is argued that the action of the competent authority is replete with undue
haste and non-application of mind besides being in violation of the standard E
operating procedures applicable to such Project including of not obtaining
prior environmental/forest clearances before issuing notifications under
Section 3A of the 1956 Act. Such clearances are necessary at the stage
of appraisal under notification of 2006, as the Project pertains to green-
fields and being a category-A Project. The learned counsel elaborately
F
took us through the procedure to be adopted by the Expert Appraisal
Committee before according in-principle approval for the project. He
invited our attention to the MoEF Office Memorandum (O.M.) dated
7.10.2014 to buttress his argument that all environmental clearances are
site-specific and are required to be obtained beforehand. He would submit
that only after such permission is granted, the acquisition process be G
commenced by issuing notification under Section 3A of the 1956 Act in
respect of such lands for construction of national highway. Alternatively,
he submits that the Court may also consider exempting/excluding the
41
(2020) 2 SCC 524
42
(1991) 1 SCC 212 H
130 SUPREME COURT REPORTS [2020] 14 S.C.R.

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).
21. 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
D 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
E 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
F 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
G 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
22. 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 F
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 G
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
132 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
B
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
C 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.
23. 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
134 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
D 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
E
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”

H
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 C
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
D
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).
24. 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
136 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
25. 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
26. 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
F 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
G 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
27. 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
138 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
28. 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
F 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
G 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 A
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
B
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
140 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
29. 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
E 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.
30. The seminal question is whether the 1956 Act is a law
ascribable to Entry 23 of the Union List and it provides for construction
F 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 B
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 C
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 D
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.
31. 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
142 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
C 32. 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
D 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
E 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.
33. 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 C
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
D
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 E
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
144 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
C 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
D 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;

H
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 C
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 D
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 E
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 F
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
G
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
146 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
B 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
C 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
E
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
F
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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 147
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(4) If any dispute arises as to the apportionment of the amount or A
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 B
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 C
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.”
34. 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
148 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
G 35. 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 A
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.
36. Having said thus, we have no hesitation in concluding that the B
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
37. A fortiori, even the challenge to the stated notifications on C
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 D
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 F
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 G
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
150 SUPREME COURT REPORTS [2020] 14 S.C.R.

A SCOPE OF SECTION 2(2)
38. 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
E 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 151
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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
39. 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
152 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
C 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
D 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
E 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 153
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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
40. 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
154 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
41. 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
42. 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 155
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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
156 SUPREME COURT REPORTS [2020] 14 S.C.R.

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: -

D

E

F

G

H
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 157
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

A

B

C

D

E

F

G

H
158 SUPREME COURT REPORTS [2020] 14 S.C.R.

A (emphasis supplied in italics)
43. 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 159
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

and maintenance. NHAI prepares and implements projects relating A
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
B
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 C
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
44. 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: -

H
160 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 161
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

construction of national corridors that the NHs today carry and A
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 B
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 D
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 E
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 F
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
162 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
D 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
E 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 163
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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 F
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 G
to the Highway with spurs:
(iv) The land acquisition is faster, with minimal resistance
and cost-effective;

H
164 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 165
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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 B
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 C
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
166 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 45. 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
B
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
C opinion of the Central Government based on the recommendation of the
Committee constituted by it for that singular purpose.
46. 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
D 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
E 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
F 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
G 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 167
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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 B
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 C
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 D
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
168 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
F 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
G 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
H purposes of the enabling legislation and even lays down specific
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 169
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

criteria to promote the policy, the criteria so evolved become the A
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
B
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
47. 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, D
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 E
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 F
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 G
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
170 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
B
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
C notification under Section 2(2) and ex consequenti Section 3A of the
1956 Act as well.
48. 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
D 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
E 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
F 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
G agency.
PRIOR ENVIRONMENTAL/FOREST CLEARANCE:
STAGE
49. That takes us to the next challenge premised on the argument
H that notification under Section 3A(1) of the 1956 Act could not have
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 171
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

been issued without prior permission of the competent authority under A
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
B
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 C
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 D
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.

H
172 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 50. 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.
C 51. 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
52. 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”
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 173
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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
D
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 E
obligate the Central Government to follow directives thereunder.
53. 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 F
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 G
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
174 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
54. It is indisputable that NHAI is an authority appointed by the
Central Government under the 1988 Act. This authority is a functional
C 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
D 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
E 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 175
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

entrusted to, the Authority, up to such date and declared to be A
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 B
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 E
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 F
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 G
functions—
(a) survey, develop, maintain and manage highways vested in,
or entrusted to, it;

H
176 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
C 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
D 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
E
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
F 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
G 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
H discharge of any function conferred or imposed on it by
this Act.
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 177
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(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.”
55. 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 E
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 F
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 G
can be granted after the public hearing.
56. 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
178 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
B 57. 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.
58. 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
180 SUPREME COURT REPORTS [2020] 14 S.C.R.

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 F
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 G
conceptual plan shall be provided, instead of the pre-feasibility
report.
7. Stages inthe Prior Environmental Clearance (EC)
Process for New Projects:-
H
182 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 183
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

(f) all projects or activities concerning national defence and A
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 B
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 C
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 D
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 E
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 F
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
G
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
184 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
D
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
E 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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 185
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

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
186 SUPREME COURT REPORTS [2020] 14 S.C.R.

A

B

C

D

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
F
boundaries.
Specific Condition (SC):
If any Industrial Estate/Complex / Export processing Zones /
Special Economic Zones/Biotech Parks / Leather Complex with
G 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)
59. 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 C
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 D
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.
60. Be it noted that the notification of 2006 is in the nature of E
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 F
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.
61. 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
188 SUPREME COURT REPORTS [2020] 14 S.C.R.

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.
62. 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
B 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
C 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.
63. 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
E 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
F 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.
64. Be that as it may, one cannot be oblivious of the qualitative
G 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.
65. For the purpose of considering the question posed before us, B
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 C
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 F
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 G
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
190 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
THE PROJECT DIRECTOR, PROJECT IMPLEMENTATION UNIT v. P.V. 191
KRISHNAMOORTHY AND ORS. [A. M. KHANWILKAR, J.]

environmental clearance. That process can be commenced parallelly or A
alongside the acquisition process after a preliminary notification under
Section 3A of the 1956 Act, for acquisition is issued.
66. 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 B
environmental laws, as well as, forest laws to accord necessary
permissions.
67. 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 C
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
68. 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.
69. 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
192 SUPREME COURT REPORTS [2020] 14 S.C.R.

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
70. Reverting to the dictum of this Court in Karnataka Industrial
Areas Development Board (supra), it must be understood to mean that
B 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
C 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
D 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.
E 71. 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
F 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
G 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.
72. 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 E
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 F
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 G
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
194 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 73. 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
D
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
E 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
F
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
74. 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 A
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
B
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 C
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
D
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 E
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
196 SUPREME COURT REPORTS [2020] 14 S.C.R.

A 75. 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
76. 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.
77. 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.
F 78. 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 A
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
B
laws.
79. 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
80. 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 D
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, E
upheld.
81. 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
82. There shall be no order as to costs. Pending interlocutory
applications, if any, shall stand disposed of.
83. 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