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Judgment
Soumen Sen, C.J.
The appeal is arising out of the judgment of the learned Single Judge in W.P.(C)No.20083 of 2023 in which the excavation undertaken in connection with the construction of the Kottukulangara to Kollam Highway Bypass and the quarrying permit issued to the 7th respondent (appellant herein) permitting excavation and removal of ordinary earth from 43.20 Ares of land were under challenge.
We have heard Mr.S. Sreekumar, learned Senior Advocate instructed by Mr. K.R. Arun Krishnan, learned counsel for the appellant, Mr. E.C. Kuriakose, learned Standing Counsel for the National Highways Authority of India, Ms. K.A. Sunitha, learned counsel for respondents 8 and 9, Mr. P.M. Rafeek, learned counsel for the 6th respondent and Mr. M.P. Sreekrishnan, learned Standing Counsel for the State Environmental Impact Assessment Authority (SEIAA).
The right to use the land for implementation of the work orders issued by the National Highways Authority of India (NHAI), on the strength of the exemption granted under the notification dated 28 March 2020 and the amended and substituted notification dated 30 August 2023, particularly clauses 6 and 7 thereof, came up for consideration before the Supreme Court of India in Civil Appeal Nos. 1628–1629 of 2021 in Noble M. Paikada v. Union of India1, decided by judgment dated 21st March 2024. The Hon’ble Supreme Court struck down item No.6 of the substituted Appendix-IX forming part of the impugned notification dated 28 March 2020 and item no.6 of the amended impugned notification dated 30 March 2023. For the sake of brevity, the said notifications struck down by the Hon’ble Supreme Court are stated below:
“6.Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc.”
“6.Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc. shall be subject to the compliance of standard operating procedures and environmental safeguards issued in this regard from time to time.”
The reason for striking down item No.6 would be evident from paragraphs 25 and 26 of the said judgment, which read as follows:
“25.There is one more important ground for striking down item 6. But for item 6 in Appendix-IX to the impugned notification, for extraction, sourcing, or borrowing of ordinary earth for linear projects, prior EC would have been required in terms of the first EC notification. The very object of issuing the first EC notification incorporating the mandatory requirement of obtaining EC for projects was that the damage to the environment must be minimised while implementing projects. When an exception is sought to be carved out by incorporating Appendix-IX to the requirement of obtaining EC in the first EC notification, the exception must be specific. Item 6 grants exemption for “extraction or sourcing or borrowing of ordinary earth for linear projects, such as roads, pipelines, etc.” There is no specification about the quantum of ordinary earth, which can be extracted on the basis of the exemption. There is no specification of the area which can be used to extract ordinary earth. It is also not provided that only that quantity of ordinary earth, which is required to implement the linear projects, is exempted. Importantly, “linear projects” have not been defined. Without the definition, it is difficult to imagine which projects will be termed linear projects. The term “linear projects” is very vague. The process to be adopted for excavation has not been set out. Thus, item 6 is a case of completely unguided and blanket exemption, which is, per se, arbitrary and violative of Article 14 of the Constitution of India. There is no provision for setting up an authority which will decide whether a particular linear project is covered by item 6.
26.As stated earlier, during the pendency of the appeals, an amendment was made to item 6 by the notification dated 30th August 2023. Even the amended impugned notification does not elaborate on the concept of linear projects. The only addition to item 6 is that the extraction, sourcing or borrowing shall be subject to compliance with SOP and environmental safeguards issued in this regard from time to time. The authority to issue the SOP and environmental safeguards has not been specified. No provision has been made to enforce the SOP and environmental safeguards. No restriction is imposed on the quantum of ordinary earth, which can be extracted for linear projects. Therefore, even the amended item 6 continues to suffer from the same vice of arbitrariness, which Article 14 of the Constitution of India prohibits.”
In short, it was held that the exemption granted, without incorporating any safeguards, is completely unguided and arbitrary and that such a blanket exemption would defeat the very object and purpose of the Environment (Protection) Act, 1986.
Thereafter, the NHAI filed an application in the disposed of matter being Miscellaneous Application Diary No.21827/2024 for recalling and/or modification of the said order. The said application was disposed of inter alia with the following directions:
“For the time being, we clarify that the projects for which work orders were issued by the applicant-NHAI prior to 21st March, 2024 will remain unaffected by the judgment dated 21st March 2024.
However, we direct the applicant-NHAI to file an affidavit giving a list of the projects for which the work orders were issued prior to 21st March, 2024 and produce copies of the work orders and other relevant documents showing service of the work order on contractors within a period of one month from today.
We clarify that the work orders which were issued prior to 28th March 2020 required Environment Clearance and therefore, the clarification which we have issued under this order will not apply to such work orders.
We make it again clear that we are not permitting the work of all projects which are listed at Annexure A-3 to continue. Only those works will continue where work orders have been issued prior to 21st March, 2024.
Needless to add that in those cases where work order has not been issued prior to 21st March, 2024, the applicant-NHAI will be bound by the decision of this Court dated 21st March, 2024.”
In the course of deciding the writ petition, the learned Single Judge directed the NHAI to produce the interim application filed before the Hon’ble Supreme Court for the purpose of understanding and appreciating the context in which the said application was filed. In paragraph No.9 of the impugned judgment, the circumstances under which such application came to be filed was summarised. The basis of the said application appears to be that, unless appropriate clarifications and/or modifications are made to the order passed by the Hon’ble Supreme Court on 21 March 2024, the same would adversely affect ongoing projects and may create impediments in the discharge of statutory functions by the National Highways Authority of India (NHAI). The NHAI is entrusted with the statutory duty of constructing, developing, maintaining and operating National Highways. The requirement of ordinary earth in connection with the project with the inbuilt mechanism of ensuring environmental protection were highlighted and the said petition referred to 485 infrastructural road projects in progress at different parts of the country. A list of the ongoing projects of the National Highway with the possible implications on the contractors/concessionaires of the judgment in Noble M. Paikada (supra) were also highlighted. The plight of the contractors and concessionaires, particularly that they may not be in a position to absorb the additional overhead costs arising out of delays, was also projected in the said petition. On consideration of the aforesaid aspects, the Hon’ble Supreme Court was pleased to modify its earlier order to the extent indicated above.
It is not in dispute that the job that was assigned and was awarded to the present appellant was one of the ongoing projects referred to in the list of projects mentioned in the interim application. The learned Single Judge has also taken note of the aforesaid facts; however, an apprehension was expressed with regard to the extent of 0.8818 hectares of land comprised in Sy. Nos. 59/1 and 59/1-5 of Enadimangalam Village, referred to in Ext. R7(a). The specific area from which extraction of ordinary earth was permitted has been clearly stated in the petition and is also borne out from Ext. P2. However, insofar as the requirement of utilisation of the entire extent of 0.8818 hectares of land for the project is concerned, the same appears to be uncertain and vague. The learned Single Judge proceeded on the basis that, even if the proposed quarrying in terms of Ext. P2 were confined and limited to the exempted works of the NHAI by virtue of the clarificatory order dated 15 May 2014, there nevertheless existed a possibility of misuse of such power; and on that basis, quarrying in furtherance of Ext. P2 was prohibited.
The learned counsel for the appellant has submitted that the appellant has the power to even borrow lands which may be situated at a different location, a position that was permitted by the learned Single Judge in W.P.(C)No.14775 of 2025 dated 23rd July 2025 in paragraph 8, by interpreting the order of the Hon’ble Supreme Court, however, noticing that a contrary interpretation was given on the aspect of exemption by a judgment dated 10 March 2025, referred the matter for the consideration by a Division Bench of this Court. It is submitted that on a reference being made in paragraph 13, the Division Bench has observed that if the intent of the Hon’ble Supreme Court was to allow only the NHAI to conduct the extraction, sourcing, and borrowing of ordinary earth directly, then it would not have offered the clarification with respect to the work orders issued by it in favour of the concessionaires.
The learned counsel for the writ petitioners has supported the judgment and has submitted that a chance of misusing the aforesaid land for the purpose of executing the work assigned by the NHAI cannot be ignored.
In our respectful reading of the judgment of the Hon’ble Supreme Court, along with the clarifications offered, it is clear that the work orders issued prior to 21st March 2024 shall continue to remain in force for the purpose of executing the works assigned to the contractor. The purpose of granting such exemption appears to be for expeditious completion of linear projects such as roads, pipelines, etc. in national interest and public interest. The basis for directing clarification of the said order is an application filed by the NHAI, and it appears that NHAI was able to satisfy the Hon’ble Supreme Court that such clarification was necessary for the timely completion of ongoing projects in the national interest. However, the appellant can utilise only such portion of the land as is required for the project and not beyond that. It is unclear from the pleadings that the extent of land measuring 0.8818 Hectares situated in Enadimangalam Village is also part of the ongoing project and required for the purpose of executing the work assigned by the NHAI to the appellant. In the event it is found by the competent authority of the NHAI that, for the purpose of executing the work order already issued, the said quantity of land is required, further permission shall be granted to the appellant to utilise such land, or such portion thereof as may be permitted in consultation with the geologist and the NHAI. The learned Single Judge prohibited quarrying in pursuance of Ext. P2 solely on the ground that, if the entire 0.8818 hectares of land in Enadi-mangalam Village were permitted to be utilised for the aforesaid project, there is every chance of misuse. The quarrying permit must only confine with exempting works of the NHAI. On such consideration, the appeal is partly allowed. The appellant shall be permitted to execute the contract without utilising the land measuring 0.8818 Hectares situated in Enadimangalam Village till a decision is taken by the NHAI, in consultation with the geologist, regarding the extent of exemption, if any, that may be permitted at all for the purpose of executing the present contract.
In view of the fact that, during the pendency of these proceedings, the permit had already expired, it is directed that, in the event an application is made for renewal of the permit, the authorities concerned shall decide the same within a period of two weeks from today, as any further delay is likely to adversely affect the implementation of the ongoing project.
Footnotes
- 1.2024 SCC OnLine SC 369