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This article is written by Harsh Gupta from the School of law, HILSR, Jamia Hamdard. This is an exhaustive article which deals with the centre’s power of land acquisition with the help of a recent Supreme Court judgment.

Introduction

Land acquisition is the power of the sovereign to acquire private land for any purpose of public welfare and use. In India, the sovereign is the state and it follows a two-fold government system, i.e., at the center and state level. When it comes to land acquisition in India, it is basically the power of the union and state to acquire private land for constructing highways, dams, bringing in industrialization, urbanization, development in the region, and it also includes the power to compensate the affected private landowners for their resettlement and rehabilitation. There are following laws that govern land acquisition in India are given below-

National Highways Act, 1956

The National Highways Act, 1956 came into force to provide for the declaration of certain highways as national highways; it was enacted on 11 September 1956 and came into enforcement on 15 April 1957 under the Ministry of Road Transport and Highways. It contains a total of 22 Sections where Section 3A deals with the power to the acquisition of land in which authority has been granted to the central government to acquire any land for building, maintenance, management, or operation of a national highway for a public purpose, and also the law binds the central government to declare its intention for such land acquisition through an official gazette.

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Section 3C provides for the provision of hearing if any person is having an interest in land and object to the use of such land then within twenty-one days from the date of notification as per Section 3A, objection has to be raised before competent authority in writing mentioning the grounds, then competent authority as it deems fit may allow or disallow such objections.

Section 3E provides for power to take possession within 61 days from the date of sending of the notice. Section 3-I provides that competent authority shall be vested with the power of civil court while trying a suit under the Code of Civil Procedure, 1908 in the following matters, namely:

  • When to summon and enforce the attendance of any person and examine him on oath.
  • When the discovery and production of any document is required.
  • Where reception of evidence is required on affidavits.
  • Requisitioning any public record from any court or office.
  • Issuing commission for examination of witnesses.

Section 4 of the Act states that national highways to vest in the union, and for this Act, national highways will include all lands connected thereto, all bridges, tunnels, causeways, carriageways, and other structures which are constructed on or across on highways, it will also include all fences, trees, boundary, or any land connected with national highway.

Importance of national highways

One can’t ignore the importance of national highways in a country like India or any country for that matter, it helps in connecting one state to another state, important places, ports, and places of economic importance as well as economic importance. As per data by the National Highway Authority of India (NHAI), national highways only constitute 30% of the total road length in India and they carry more than one-third of traffic of the whole of India and the road length is nearly 1,32,499 km. 

The advantages of national highways are numerous:

  • It helps in supply chain management and connects various roads and highways, it helps in making transportation easy and convenient. National highways also provide economic incentives in the form of better infrastructure and national productivity. 
  • The role of national highways became more important during covid times when railways and airlines were not functioning then, it became a growth corridor and life support for the country and its people. 
  • National highways continued functioning even during the lockdown to provide for seamless movement of essential commodities and medical services all over the country.

Bharatmala Pariyojna (2017)

Bharatmala Pariyojna is an initiative that was envisioned in 2017 to develop the link of highways through developing 34,800 km of National Highway corridors, being India’s largest infrastructure program connecting almost 600+ districts under the project. 

This pariyojana is the result of innovation and technology shift which has ushered in technology-driven highway development with the help of the deployment of automatic traffic surveys. An investment of Rs. 5,35,000 crore will be made, the economic corridor will be 9,000 km long to unlock the full economic potential of the region, the inter corridor and feeder route will be 6,000 km long which will ensure holistic connectivity. It includes national corridors efficiency improvement which will enhance efficiency. It will also ensure- 

  • Border roads and international connectivity;
  • Coastal roads, and port connectivity, greenfield expressways; and
  • Balanced National Highway Development Project works to ensure a boost in border connectivity, leveraging ports for progress, express speed for express gains, and boosting all-around connectivity respectively.

Chennai-Krishnagiri-Salem National Highway Project (2017)

Chennai-Krishnagiri-Salem National Highway Project was regarding the construction of an eight-lane highway namely, NH179A and NH179B, and is the part and parcel of the ‘Bharatmala Pariyojana’ project whose estimated cost is 10,0000 crores which will improve the efficiency of passenger movement across the states and subsequently the country. The length of the projected national highway would be 277.3 km long. The project has been designed to cut the travel time between Salem and Chennai by half an hour from two hours. However, in response to the project, locals including farmers are protesting and they are very possessive about losing their lands and these farmers and locals have received the support of environmentalists across the country against the felling of trees as the projects run through reserve forest and water bodies.

The Road Transport and Highway Minister, Nitin Gadkari, has promised a quicker resolution to the besieging disputes and prompt development of the corridor. Many politicians, farmers, and environmentalists filed a case in Madras High Court for requesting to quash the notification issued by the central government.

Madras High Court’s verdict on the same project

Context

In the case of P .V .Krishnamoorthy v. the Government Of India (2019), the Madras High Court quashed the notification issued by the central government regarding land acquisition as it made it clear that a public hearing was needed to be conducted as against the government notification and environmental clearance was not given and also it was mandatory since the project may carry some adverse impacts on the environment. Thus, the Court asked the government to not refrain the landowners from possession of their properties forcibly.

Highlights of verdict

  • The Court had denied the contention of the Tamil Nadu government to transfigure revenue records and pass on government lands even before the notification was issued under the Land Acquisition Act. Further, the Court ordered for reversal of all transfigured land records within fourteen days.
  • The Court further pointed that the benefits of the projects were a mere illusion and not practical, the court further substantiated above statement by making an argument that small businessman who lives in small villages in Vandavasi or Polur will never get benefitted from the expressway where the traffic is flashing over 120 km/hr and to reach in these villages will need to travel long kilometres to kick up the backside to reach their villages. Therefore, the Court contended that financial consequences were not analyzed by the National Highway Authority of India’s Advisor which will ultimately burden poor villagers.

Tax Collection

Further, the Court also observed that as per agreement between NHAI and toll authority, if a road affects the collection of tolls, then the agreement is to be extended for two times the original period which will cause & affect the traveling public as toll will be collected far beyond their original period.

Observations made by the Supreme Court 

Facts of the case

In the case of the Project Director Project… v. P.V. Krishnamoorthy (2020), an appeal was filed against the Madras High Court order in the Supreme Court as Central Government contended that there was no such need for any approval for obtaining environmental clearance for the said project from the Ministry of Environment, Forest and Climate Change before issuing notification as land acquisition primarily has zero impact on the environment as green belt initiative will be taken into consideration simultaneously.

Issues for determination before Supreme Court

  • The legislative competence of the parliament to enact laws for declaring open green fields as national highways.
  • Executive powers of the Union as discussed in this case.
  • Scope of Section 2(2) of the 1956 Act as discussed in the case.
  • Power of the notification and the scope of judicial review.
  • Prior environment and forest clearance – the stage at which to be mandatorily sought.

Issue 1 – legislative competence of the union

Observations of the Court

The Supreme Court proposed to address the question of parliament’s legislative competence to enact a law declaring open greenfield lands as national highways. It was argued that only a state legislature is competent to enact a law for the construction of new roads traversing through open green fields where no roads exist, and only when there are existing highways would the Central Government be able to declare such in a national highway. In contrast, Schedule VII List I Entry 23 in the Constitution of India in respect of which only Parliament has the power to make laws is “highways declared to be national highways by or under law made by Parliament”. 

Decision

The central government had no authority to invoke Section 2(2) of the 1956 Act, given that it merely permits the central government to declare an existing highway, a national highway. This indicates that the central government’s issuance, in violation of Section 2(2) of the 1956 Act, of notifications to declare the section between Chennai ­Krishnagiri ­Salem National Corridor (C-K-S (NC)), passing through open green fields, as an arbitrary act and in violation of the Constitution’s Article 14.

The 1956 Act, as amended and applicable to the present case, was enacted to allow the Central Government to declare notified stretches or sections of a highway to be national highways; that includes acquiring “any land” for the building or construction of a new highway (which is not necessary to be an existing road or highway). 

Issue 2 – executive powers of the Union

Observations of the Court

It follows that even the challenge to the stated notifications on the basis that they are ultra vires the Constitutional executive powers of the Union, must fail. In the case at hand, the challenge is based on Article 257, as we have noted above. It is urged that Article 257 pointedly refers to the sphere of executive powers of the union. The Constitution’s Article 257 specifically deals with the relations between the union and the states.

As a first step, having said that, the parliament has exclusive legislative competence to make laws about national highways and all subjects related to them, which includes declaring any stretch/section within a state (other than a road/highway that already exists) to be a national highway. Hence, the central government is the only one with the power to construct/build a new national highway in a state and to issue instructions to the state concerning the implementation of the 1956 Act. The argument that the central government lacks executive power despite such a law is incomprehensible. In short, the argument essentially asked by the Supreme Court whether Section 2(2) of the 1956 Act allows the central government to proclaim a national highway in respect of a non-existing road(s)/highway(s) on open greenfield lands within the state.

Decision

It was acknowledged by the Court that the validity of Section 2 of the 1956 Act, under which the central government can declare any highway to be a national highway (other than the scheduled national highways) has been upheld. No declaration is sought that the provision in question is ultra vires the Constitution or law. It is sufficient to observe that the challenge to notifications issued by the central government under Section 2(2) of the 1956 Act as being ultra vires the constitutional derived executive powers is also without merit.

Issue 3 – scope of Section 2(2)

Observations of the Court

The Supreme Court observed that even though the central government is competent to declare any stretch/section of road a national highway, it can only do so relating to an existing road within the state and not on a non-existent road or a road running through greenfield land. However, we are required to examine the question under consideration in light of the 1956 Act and the 1988 Act. Therefore, we will look at Section 2 of the 1956 Act, which states:

“All the highways specified in the Schedule are declared to be national highways. The Central Government can declare any other highway a national highway by notification in the Official Gazette, which is deemed to cause its inclusion in the Schedule. The Central Government may omit any highway from the Schedule by a similar notification, and on publication of such a notification, the highway is no longer considered a national highway”.

Decision

When exercising its powers under Section 2(2) of the 1956 Act, the central government grants the locals of the area concerned the right to traverse a highway from one marked town or inhabited place to another for legitimate travel. As a national highway, it will connect one designated town (Chennai) to another town (Salem) and be open to all users, including the ordinary and reasonable ones. Thus, the court held that the Central Government has full power to notify “any land” (not necessarily an existing road) for acquisition and to build a highway.

Issue 4 – scope of judicial review

Observation of the Court

The crucial aspects were glossed over by the High Court, which instead focused on the sufficiency and adequacy of material, including the appropriateness of the route approved by the competent authority. In the exercise of judicial review, such inquiries are prohibited. In addition, despite the High Court noting that judicial interference is limited in acquisition matters, it intervened based on extraordinary circumstances prevailing in the case. The impugned judgment does not reveal any just circumstance justifying judicial review. 

Decision

In light of the above, the Supreme Court said that the High Court should not have questioned the Committee’s (Committee was constituted of experts from officials of the NHAI and secretary of MoRTH as its Chairperson) decision and the central government’s decision ex consequenti regarding changing section Chennai ­Madurai   (Economic Corridor) (C-M (EC)) to Chennai ­Krishnagiri ­Salem National Corridor (C-K-S (NC)) of the original project, as approved. Interestingly, the High Court has not struck down the notifications under Section 2(2) of the 1956 Act in its conclusion and declaration. The decision to change the sections/stretches to C-K-S (NC) would continue to bind the concerned parties, including the NHAI as the executing agency, as long as Section 2(2) of the 1956 Act remained in force.

Issue 5 – prior environment and forest clearance

Observations of the Court

The intention is to specify that under Section 3-D, the acquisition of notified land can be made only after an environmental or forest clearance has been granted over that specific parcel of land. In other words, the requirement for prior environmental/forest clearance would only arise if, ultimately, the land in question (site-specific) was to be notified under Section 3-D, as being acquired for building, maintaining, managing, or operating the national highway. In this way, environmental and forest laws will be promoted as well as the timeline specified for the building, maintenance, management or operation of the national highway or part of it, which is of national importance and public benefit. 

The landowners would also be reassured that even the land cannot be returned to the original owner if the forest clearance or environment permission is withdrawn since the land had de jure vested in the central government upon notification under Section 3D of the 1956 Act and the central government does not have the authority under this Act to withdraw from an acquisition. 

It is essential to issue a declaration under Section 3D of the 1956 Act within 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 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 the acquisition of the land had become ripe for the 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 from the period of one year to be reckoned under Section 3D(3) of the Act.

As regards the present case, the NHAI, being the construction agency, had submitted terms of reference to the MOEF as soon as section C-K-S (NC) was declared a national highway, under Section 2(2) of the 1956 Act, dated 1 March 2018. The proposal was submitted on 19 April 2018, and the approval in furtherance thereof was granted by the MoEF on 8 June 2018, following the recommendation by the EAC. On 5 July 2018 and 21 August 2018, the NHAI submitted amendments to the terms of reference. Upon examining the amendment in terms of reference, the Environment   Assessment Committee (EAC) submitted its recommendation on 30 August 2018. The permissions/clearances were granted by the relevant authorities under the environment and forest laws after notification under Section 3A and before issuance of the declaration under Section 3D of the 1956 Act.

Decision

In light of this decision, the time spent to obtain such clearances, including the time until this decision was released as well as the time until the stated permissions/clearances were finalized, whichever comes first, should be excluded since the matter remained under scrutiny. 

Centre versus State – who can declare land as national highway

  • In the recent Supreme Court judgment as mentioned above, the position of centre and state was clarified regarding who can declare land as a national highway by a three-judge bench. The court held that it is the absolute power of the parliament to make a declaration by law that any stretch and/or section within the state territory to be a national highway and it’s not mandatory that stretch or section be a road or existing highway.
  • Further, the Court clarified that the National Highway Act, 1956, and 1988 Act were drafted taking into consideration from and reference to Entry 23 of List I of the Seventh Schedule of the Indian constitution. The Court clarified that the state enjoys exclusive power on the subject matter of roads as per Entry 13 of List II but on this basis meaning to Entry 23 in List I can be interpreted in a restricted manner when it comes to dealing with matters concerning national highways.
  • The Court further relied on the doctrine of pith and substance that even if there is incidental encroachment by the law as per state list then law made by parliament on the subject matter of union list will not render it invalid subject to ascertaining the true character of the legislation. The Court also highlighted the fact that the expression highway is neither mentioned in the state list nor concurrent list, so as per Article 248 of the Constitution of India, Parliament has exclusive right to make laws on subject matter not enumerated in the state list and concurrent list.
  • The Court also focused upon the centre’s obligation under Part IV of the Indian Constitution to provide for the welfare of the people and secure social order and availability of highway any corner of state paves for sustainable development and growth of locals, state, and the country as a whole.

Hence by observations of the Supreme Court, we can conclude that parliament has executive powers to construct a national highway in any corner of the state and for the same to issue proper guidelines and directions to carry out the objectives of the National Highway Act, 1956.

Conclusion

The power of the centre for land acquisition is exhaustive. But at the same time, it provides mandates to any individual who objects to such acquisition within 21 days from the issuance of notification, then it’s up to competent authority whether to allow such objection or disallow. Further, the author feels that development should not outcast sustainable development, by sustainable development author means that the state should come with an alternative to environmental degradation by taking into consideration prospects of the new generation to come.

References

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