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Supreme Court of India
The National Highways Authority … vs Pandarinathan Govindarajulu on 19 January, 2021Author: L. Nageswara Rao
Bench: Hon’Ble The Justice, L. Nageswara Rao, Vineet Saran
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos. 4035-4037 of 2020
THE NATIONAL HIGHWAYS AUTHORITY OF INDIA
…. Appellant(s)
Versus
PANDARINATHAN GOVINDARAJULU & ANR.
…. Respondent (s)
JUDGMENT
L. NAGESWARA RAO, J.
1. The dispute in these appeals pertains to the
environmental clearance for expansion of National
Highway 45-A between Villuppuram to Nagapattinam.
The High Court held that it is necessary. The Appellant
disagrees. Hence, these appeals.
Signature Not Verified
Digitally signed by
Madhu Bala
2. The project of widening and improvement of the
Date: 2021.01.19
16:17:07 IST
Reason:
existing 4-laning carriage way in the State of Tamil Nadu
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and the Union Territory of Puducherry, from Villuppuram
to Nagapattinam was bifurcated into four packages,
which are as follows:
i. Villuppuram to Puducherry (29.000 kms)—Package I.
ii. Puducherry to Poondiankuppam (38.00 kms)—
Package II.
iii. Poondiankuppam to Sattanathapuram (56.800 kms)
—Package III.
iv. Sattanathapuram to Nagapattinam (55.755 kms)—
Package IV.
3. Approval was granted by the Competent Authority,
i.e. Special District Revenue Officer (Land Acquisition),
National Highways No. 45-A in March, 2018 and
agreements were entered into between the Appellant
and the concessionaires. Process was initiated for
acquisition of lands required for the project. Writ
Petitions were filed in the High Court of Madras by
certain aggrieved farmers and public interest litigants
questioning the commencement of the project without
obtaining environmental clearance. The High Court
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allowed the Writ Petitions and issued the following
directions:
a. “The present project of expansion of NH-45A covering a
stretch of 179.555 k.m. shall be put on hold, and the present
status quo is directed to be maintained.
b. That the project proponent (NHAI) shall undertake an EIA
study and obtain environmental clearance.
c. The NHAI is also directed to obtain approval from CRZMA for
CRZ clearance for two locations that it has indicated in its
counter in W.P.15217/2019.
d. Once the necessary clearances are obtained as mentioned
in (b) and (c) above, the project can proceed. If the EIA
study to be undertaken provides any contra-indicators to the
NHAI’s plan of development of NH-45A, it will be at liberty to
make necessary alterations and modifications to make the
project environmental viable.
e. If after ensuring the environmental viability of the project,
its implementation resumes, the project proponent, and
subject to the terms of the contract, the concessionaire,
should first identify the places for planting the saplings of
the same variety, preferably native-trees, for every tree
felled, and it must be grown first. Possibility of forming a
Miyawaki forest has to be explored as well.
f. This Court proposes to form a committee to monitor the
compliance of the direction given in (e) above, and hence,
before resumption of the project, NHAI is required to
approach this Court”.
4. Section 3 of the Environment (Protection) Act, 1986
empowers the Central Government to take all such
measures for the purpose of protecting and improving
the quality of the environment and preventing,
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controlling and abating environmental pollution. One of
the measures provided in Section 3 (2) (v) is restriction
of areas in which any industries, operations or processes
or class of industries shall not be carried out or shall be
carried out subject to certain safeguards. The
Environment (Protection) Rules, 1986 were made in
exercise of power conferred by Sections 6 and 25 of the
Environment (Protection) Act, 1986. According to Rule 5,
the Central Government may prohibit or restrict the
location of industries and the carrying on of processes
and operations in different areas.
5. In exercise of the power conferred on the Central
Government by Sub-Clause (i) and Clause (v) of Sub-
Section (2) of Section 3 of the Environment (Protection)
Act, 1986 read with Clause (b) of Sub rule (3) of Rule 5 of
the Environment (Protection) Rules, 1986, the Ministry of
Environment and Forests, Government of India issued a
Notification on 14.09.2006 directing construction of new
projects or activities or the expansion or modernisation
of existing projects or activities listed under the
Schedule to the Notification shall be undertaken only
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after prior environmental clearance from the Central
Government or the State Level Environment Impact
Assessment Authority. Clause 2 of the said Notification
provides that new projects or expansion and
modernisation of existing projects listed under the
Schedule to the Notification require prior environmental
clearance from the concerned regulatory authority. The
Schedule to the Notification includes Highways at Item
No.7 (f). New National Highways and expansion of
National Highways greater than 30 kms involving
additional right of way greater than 20 meters or land
acquisition and passing through more than one State,
require prior environmental clearance. A high-level
Committee headed by Member (Environment and
Forests, Science and Technology), Planning Commission
was constituted by the Ministry of Environment and
Forests to review the provisions of the Environmental
Impact Assessment Notification dated 14.09.2006
pertaining to environmental clearance for roads,
buildings and Special Economic Zone projects. One of
the terms of the reference for the Committee was to
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review the requirement of environmental clearance for
Highways expansion projects with a right of way up to 60
meters and length of 200 km. The Committee submitted
its report recommending that expansion of National
Highways projects up to 100 km involving additional
right of way or land acquisition up to 40 meters on
existing alignments and 60 meters on realignments or by
passes may be exempted from the purview of the
Notification. The report of the Committee was accepted
and Item 7 (f) in column (3) to the Notification dated
14.09.2006 was substituted as follows: “expansion of
National Highways greater than 100 km involving
additional right of way or land acquisition greater than
40 meters on existing alignments and 60 meters on
realignments or by passes”.
6. The project under consideration in this case
pertains to the expansion of NH-45A between
Villuppuram to Nagapattinam for a distance of 179.555
kms as a part of the Bharatmala Pariyojana project.
Admittedly, no environmental impact assessment was
undertaken. The Appellant stated in the counter
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affidavit filed before the High Court that environmental
clearance is not required as the additional right of way or
land acquisition was not greater than the limits specified
in the Notification even if the expansion of the National
Highways is beyond 100 km. Environmental clearance
under the Notifications dated 14.09.2006 and
22.08.2013 is required only if the additional right of way
or land acquisition is greater than 40 meters on existing
alignments and 60 meters on realignments or bypasses.
The pivot of the controversy relates to the applicability
of Notifications dated 14.09.2006 and 22.08.2013 to the
project in question. Therefore, we deem it necessary to
adjudicate on the interpretation of the said Notifications
though the High Court did not consider the said point.
7. A plain reading of Item 7 (f) to the Notification
dated 22.08.2013 would make it clear that expansion of
a National Highway project needs prior environmental
clearance in case (a) expansion of the National Highway
project is greater than 100 km. and (b) it involves
additional right of way or land acquisition greater than
40 meters on existing alignments and 60 meters on
realignments or bypasses. There is no ambiguity in the
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above provision as it gives no scope for any doubt. The
distance of 100 km is important as expansion of National
Highways below 100 km needs no prior environmental
clearance. If the project involves expansion of a National
Highway greater than 100 km, prior environmental
clearance would be required only if it involves additional
right of way or land acquisition greater than 40 meters
on existing alignments and 60 meters on realignments
or by passes.
8. A statutory rule or Notification is to be treated as a
part of the statute1. Rules made under a statute must be
treated for all purposes of construction or obligation
exactly as if they were in the Act, are to be of the same
effect as if they are contained in the Act, and are to be
judicially noticed for all purposes of construction or
obligation2. The principles of interpretation of
subordinate legislation are applicable to the
interpretation of statutory Notifications 3. If the words of
the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound those
1 State of Tamil Nadu v. Hind Stone, (1982) 2 SCC 205
2 The State of Uttar Pradesh and Ors v. Babu Ram Upadhya 1961 SCR (2) 679
3 Bansal Wire Industries Ltd. v. State of U.P., (2011) 6 SCC 545
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words in their natural and ordinary sense. The words
themselves do alone in such cases best declare the
intent of the law-giver4.
9. It has been repeatedly held by this Court that
where there is no ambiguity in the words, literal meaning
has to be applied, which is the golden rule of
interpretation. The words of a statute must prima facie
be given their ordinary meaning5.
10. In the current case, there is no ambiguity or scope
for two interpretations. On a plain reading of Item 7 (f)
of the Notification dated 22.08.2013, we adopt the
golden rule of interpretation to hold that there is no
requirement of prior environmental clearance for
expansion of a National Highway project merely because
the distance is greater than 100 km. The project
proponent is obligated to obtain prior environmental
clearance only the additional right of way or land
acquisition is greater than 40 meters on existing
alignments and 60 meters on realignments or by passes
4 (1843-60) All ER Rep 55, Sussex Peerage case
5 Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 and Harbhajan Singh v.
Press Council of India, (2002) 3 SCC 722
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for a National Highway project which is greater than 100
km.
11. It is a cardinal principle of interpretation that full
effect has to be given to every word of the Notification 6.
Interpreting the Notification dated 22.08.2013 to mean
that every expansion of National Highway which is
greater than 100 km requires prior environmental
clearance would be making the other words in Item 7 (f)
redundant and otiose.
12. The learned Attorney General of India relied upon a
judgment of this Court in CIT v. Surat Art Silk Cloth
Manufacturers’ Association7 to highlight the
importance of the word “involving” in Item 7 (f) of the
Notification in which it was held as follows:
“15. We must then proceed to consider what is the
meaning of the requirement that where the purpose of
a trust or institution is advancement of an object of
general public utility, such purpose must not involve
the carrying on of any activity for profit. The question
that is necessary to be asked for this purpose is as to
when can the purpose of a trust or institution be said to
involve the carrying on of any activity for profit. The
word “involve” according to the Shorter Oxford
Dictionary means “to enwrap in anything, to enfold or
6 South Central Railway Employees Coop. Credit Society Employees’ Union v. Registrar
of Coop. Societies. (1998) 2 SCC 580 And Bansal Wire Industries Ltd. v. State of U.P.,
(2011) 6 SCC 545
7 (1980) 2 SCC 31
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envelop; to contain or imply”. The activity for profit
must, therefore, be intertwined or wrapped up with or
implied in the purpose of the trust or institution or in
other words it must be an integral part of such purpose.
…
33. … The word “involving” in the restrictive clause is
not without significance. An activity is involved in the
advancement of an object when it is enwrapped or
enveloped in the activity of advancement. In another
case, it may be interwoven into the activity of
advancement, so that the resulting activity has a dual
nature or is twin faceted. …”
13. We find force in the submissions made by the
learned Attorney General that the word “involving” is of
significance because in the absence of the requirement
of an additional right of way or land acquisition greater
than 40 meters on existing alignments and 60 meters on
realignments or by passes, the expansion of National
Highways which are greater than 100 km per se does not
require prior environmental clearance.
14. It is submitted on behalf of the Ministry of
Environment, Forest and Climate Change, Government of
India that environmental clearance is necessary only if
the expansion project pertains to a National Highway
which is greater than 100 km and involves additional
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right of way or land acquisition greater than 40 meters
on existing alignments and 60 meters on realignments
or by passes. In case of a doubt, the interpretation of
the author of the Notification has to be accepted 8. Ergo,
the opinion of the author of the notification i.e. the
Ministry of Environment, Forest and Climate Change
deserves to be accepted.
15. A conspectus of the above discussion leads to the
unerring conclusion that there is no ambiguity in Item 7
(f) of the Schedule to the Notification that prior
environmental clearance is required for expansion of a
National Highway project only if:
(a) The National Highway is greater than 100 kms.
(b) The additional right of way or land acquisition is
greater than 40 meters on existing alignments and
60 meters on realignments and by passes.
16. In view of the bifurcation of the National Highway
45-A into four packages and each package being less
than 100 km, the Appellant contended before the High
Court that the Notifications dated 14.09.2006 and
22.08.2013 are not applicable. Seeking support from a
judgment of the United States District Court for the
8 Silppi Construction Contractors v. Union of India, 2019 SCC OnLine SC 1133
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Southern District of Indiana in Old Town
Neighborhood Association v. Kauffman,9 and a
judgment of the European Court of Justice in
Commission of the European Communities v.
Kingdom of Spain10, the High Court held that
segmentation of a project as a strategy to avoid
environmental clearance is impermissible. The High
Court also relied upon a judgment of this Court in
Deepak Kumar v. State of Haryana 11 and a judgment
of the National Green Tribunal in Citizens for Green
Doon v. Union of India12 to reject the contention of the
Appellants that the division of the project into four
packages is for administrative expediencies.
According to the High Court, if segmentation of National
Highway projects is permitted, the Notifications dated
14.09.2006 and 22.08.2013 would become a dead letter
as every National Highway beyond 100 km can be
divided into packages to avoid environmental clearance.
17. It was submitted by the learned Attorney General
that the division of the project was done by the
9 (S.D. Ind. 2002), Case No. 1:02-cv-1505-DFH.
10 Case C-227/01.
11 (2012) 4 SCC 629
12 2018 SCC OnLine NGT 1777
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Government of India and the National Highways
Authority is only an executing agency. He stated that
the proposed project is of great importance to the
movement of public goods and services for which
reason, speedy execution was required. It would be
difficult to get one concessionaire with necessary
finances to mobilise required machineries, construction
material and human resources for the entire length of
179.555 km. He laid stress on the point that the project
was divided into four packages in public interest.
18. While economic development should not be allowed
at the cost of ecology or by causing widespread
environmental destruction, the necessity to preserve
ecology and environment should not hamper economic
and other development. Both development and
environment must go hand in hand. In other words,
there should not be development at the cost of
environment and vice versa, but there should be
development while taking due care and ensuring the
protection of environment13. The traditional concept
13 Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281]
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that development and ecology are opposed to each
other is no longer acceptable14.
19. Apart from providing smooth flow of public goods
and services which contribute to the economic growth,
highways also benefit regional development in the
country. In the normal course, impediments should not
be created in the matter of National Highways which
provide the much-needed transportation infrastructure.
At the same time, protection of environment is
important. The Notification dated 22.08.2013 exempts a
National Highway, the distance of which is less than 100
km from obtaining environmental clearance. If the
project proponent is permitted to divide projects having
a distance beyond 100 km into packages which are less
than 100 km, the Notifications dated 14.09.2006 and
22.08.2013 will be rendered redundant. In that event,
administrative exigencies and speedy completion will be
a ground taken for justifying the segmentation of every
project. Therefore, we are in agreement with the High
Court that segmentation as a strategy is not permissible
14 Vellore Citizens’ Welfare Forum v. Union of India [(1996) 5 SCC 647]
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for evading environmental clearance as per Notifications
dated 14.09.2006 and 22.08.2013.
20. Having held that adoption of segmentation of a
project cannot be adopted as a strategy to avoid
environmental clearance impact assessment, the
question that arises is whether segmentation of a
National Highway beyond 100 kms is impermissible
under any circumstance. As we lack the expertise of
deciding upon this issue, we are of the considered view
that an expert committee should examine the
permissibility of segregation. After the issuance of a
Notification dated 14.09.2006 requiring environmental
clearance for new projects and expansion of the existing
projects, a High-Level Committee was constituted by the
Government of India to review the environmental
clearances for Highway expansion projects. As per the
Notification dated 14.09.2006, environmental clearance
was required for new National Highway and expansion of
National Highways greater than 30 kms involving
additional right of way greater than 20 meters and
passing through more than one State. One of the terms
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of the reference to the High-Level Committee was to
review the requirement of environmental clearance for
Highway expansion projects beyond a distance of 200
kms up to the right of way of 60 meters. The High-Level
Committee recommended that environmental clearance
would be required for expansion of National Highway
projects beyond a distance of 100 kms and if the
additional right of way or land acquisition is more than
40 meters on existing alignments and 60 meters on
realignments or by passes. The said recommendation
was accepted by the Government of India and the
Notification dated 22.08.2013 was issued, amending the
Notification dated 14.09.2006. As the question of
permissibility of the segmentation of a National Highway
beyond a distance of 100 kms is a matter to be
considered by experts, it would be necessary for a
committee to be constituted by the Government of India
to decide whether segmentation of a National Highway
project beyond a distance of 100 kms is permissible. If it
is permissible, the circumstances under which
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segmentation can be done also requires to be examined
by the expert committee.
21. Mr. A. Yogeshwaran, learned counsel appearing for
the first Respondent submitted that the toll plazas
proposed to be erected on the National Highways should
be within the permissible limits specified in the
Notification dated 22.08.2013. In the note of
submissions made by the learned Attorney General,
reference has been made to the definition of “Right of
way” placing reliance on Para 2.3 of the Manual of
Specifications and Standards for Two-Laning of Highways
through Public Private Partnership issued by the Planning
Commission of India. Right of way as per the said
Manual is the total land width required for the project
Highway to accommodate road way (carriage way and
shoulders) side drains, service roads, tree plantation,
utilities etc. In the written submissions filed on behalf of
the Appellant, it has been stated that the right of way
not being greater than 40 meters on existing alignments
and 60 meters on realignments or by passes, applies
only to construction of road and is not applicable for
other road amenities or facilities such as toll plazas.
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However, the Appellant has also stated in the Written
submissions that if this Court is not agreeable to the
above proposition, it is willing to limit the construction of
toll plazas and rest areas within the permissible limits.
22. Section 10 of the Manual of Specifications &
Standards for Two Laning of Highways through Public
Private Partnership, issued by the Planning Commission
of India deals with toll plazas. Figure 10.1 which shows
the general lay out of a 2+2 lane toll plazas is as follows:
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23. A bare perusal of the above figure shows that toll
plazas are included in the “right of way”. The
aforementioned Manual issued by the Planning
Commission of India has been relied upon by the
Appellant to highlight the definition of the expression
“right of way”. However, it was contended on behalf of
the Appellant that amenities such as toll plazas and rest
houses cannot be part of the right of way. In other
words, the Appellant contended that toll plazas and rest
houses can be set up beyond the limit specified in the
Notification dated 22.08.2013. We do not agree. As
Para 2.3 of the aforementioned Manual makes it clear
that right of way is the total land width required for the
project Highway to accommodate right of way, side
drains, service roads, tree plantations, utilities etc., toll
plazas and rest houses should be included in the “right
of way”.
24. For the sake of clarity, we hold that the “right of
way” includes the existing National Highway and the
additional right of way. To illustrate further, if the
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existing National Highway is 20 meters then the right of
way will be that 20 meters and the land acquired for the
additional right of way.
25. The consternation of the High Court that the
Appellant had been remiss in not fulfilling the
requirement of reafforestation in spite of giving
undertakings for the projects taken up earlier is to be
noted. There is an obligation on the part of the
Appellant to plant ten trees for each felled tree. The
High Court commented upon Coastal Regulation Zones
(CRZ) clearances to be taken at certain points. The
learned Attorney General submitted that the Appellant
has already obtained CRZ clearances, wherever it is
required. We have not dealt with the issues relating to
acquisition of land being in contravention of the National
Highways Act, 1956 as no such submission was made
either before the High Court or this Court.
26. On the basis of the above discussion, we set aside
the judgment of the High Court and issue the following
directions:
1. There is no requirement for obtaining
environmental clearances for NH 45-A Villuppuram –
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Nagapattinam Highway as land acquisition is not
more than 40 meters on existing alignments and 60
meters on realignments or by passes.
2. The Appellant is directed to strictly conform to the
Notification dated 14.09.2006 as amended by the
Notification dated 22.08.2013 in the matter of
acquisition of land being restricted to 40 meters on
the existing alignments and 60 meters on
realignments.
3. The Ministry of Environment, Forest and Climate
Change, Government of India shall constitute an
Expert Committee to examine whether
segmentation is permissible for National Highway
projects beyond a distance of 100 kms and, if
permissible, under what circumstances.
4. The Appellant is directed to fulfil the requirement of
reafforestation in accordance with the existing legal
regime.
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27. The Appeals are allowed accordingly.
…………………………J.
[L. NAGESWARA RAO]
……………………J.
[HEMANT GUPTA]
………………….J.
[AJAY RASTOGI]
New Delhi,
January 19, 2021.
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