The National Highways Authority … vs Pandarinathan Govindarajulu on 19 January, 2021


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Supreme Court of India

The National Highways Authority … vs Pandarinathan Govindarajulu on 19 January, 2021

Author: 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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