A review petition has been filed in the Apex Court against its December 8,2020 decision upholding the notifications issued for acquiring land for the Chennai Salem eight lane greenfield expressway project
A review petition has been filed in the Supreme Court against its December 8, 2020 decision upholding the notifications issued for acquiring land for the Chennai-Salem eight-lane greenfield expressway project.
The Review Application, through Advocate P. Somasundaram, is primarily premised on that the Judges of the three-judge bench of the Apex Court did NOT have the occasion to consider the
(1) Law laid down by this Court for Judicial Review of purported “Public Policy” when there is violation of a larger policy (Bharatmala–I)
(2) Law laid down by this Court for Judicial Review of purported “Public Policy” when there Delagatee acts beyond his delegated powers
(3) Law laid down by this Court for Judicial Review of purported “Public Policy”done without”declared change in Policy” that which was NOT supported by reason, NOT done fairly and done acting with any ulterior motive or arbitrarily
(4) Law laid down by this Court for Judicial Review of purported “Public purpose” when there is lack of Public Interest, when it is unreasonable or contrary to professed standards, even when done bona fide
(5) Law laid down by this Court for Judicial review of purported “Public Purpose” when the concept of public purpose is lost without the ensuring of maximum benefit to the largest number of people through attempt of promoting public purpose to benefit a particular group of people or to serve any particular interest at the cost of the interest of a large section of people especially of the common people
(6) Respondent’s violation of Constitutional provisions w.r.t. Roads in Entry 23 of the Union List and Entry 13 of the State List together with Art.257 as ought to have been seen in terms of the law laid by the 7-Judge Constitutional bench of this Hon’ble Court for interpretation of Constitutional provisions specially dealing with delimitation of powers
(7) Respondent’s violation of Statutory provisions (Sec.2(2) and sec.3A(1) of the National Highways Act) as ought to have been seen in terms of the law laid by the 7-Judge Constitutional bench of this Hon’ble Court for interpretation of Constitutional provisions specially dealing with delimitation of powers
Partly allowing the appeals of the Union of India and the National Highways Authority of India, the top court had on December 8 last year reversed the Madras High Court judgment to the extent it quashed the land acquisition notifications.
The Court said that it has negatively the challenge against the notifications issued under the National Highways Act.
However, the top court has maintained the directions in paragraph 106 of the High Court judgment regarding the reversal of entries in the revenue records which stood mutated following the acquisition notification. Fresh notification proceedings need to be issued with respect to the acquisition of those lands.
A bench comprising Justices A M Khanwilkar, BR Gavai and Krishna Murari delivered the judgment in the appeals filed by Central Government and the National Highway Authority of India(NHAI) against the Madras High Court judgment which quashed the notifications for acquisition of land for the highway project.
The prime issue in the case was whether prior environmental clearance was necessary before acquiring lands for the highway project.
Prior Environmental Clearance not needed for land acquisition notification
The Supreme Court observed that it is not necessary for the Central Government or the National Highway Authority of India to apply for prior environmental/forest clearances or permissions 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 National Highways Act.
The prior environmental clearance is required to be taken before commencement of the “actual construction or building work” of the national highway by the executing agency (NHAI), the bench comprising Justices AM Khanwilkar, BR Gavai and Krishna Murari observed while allowing the appeal filed against the Madras High Court judgment which had quashed the notifications issued for acquiring land for the Chennai-Salem eight-lane greenfield expressway project.
One of the issues considered by the High Court in this case was 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 precondition? Answering it against NHAI, the High Court had held that the prior environmental clearance/ permission ought to have been obtained before issuance of notifications under Section 3A of the 1956 Act. Before the Apex Court, Centre contended that the High Court committed manifest error in concluding that such notifications under Section 3A of the 1956 Act could be issued only after prior environmental and forest clearances/permissions are granted in that behalf.
The bench noticed that there is nothing in the NH Act or Rules 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. The court further noted that, as per 2006 EIA notification, the environmental/forest clearance 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.