Gujarat High Court High Court

Lok Hitrakshak Samiti vs State Of Gujarat on 28 December, 1999

Gujarat High Court
Lok Hitrakshak Samiti vs State Of Gujarat on 28 December, 1999
Author: R Abichandani
Bench: R Abichandani, D Waghela


JUDGMENT

R.K. Abichandani, J.

1. The petitioners have moved this Court challenging the decision of the respondents to construct the fourlane toll road from Baroda to Halol and for setting aside the said project. They have sought an order for restraining the respondents Nos. 1, 2 and 3 from executing, implementing or taking any action in pursuance of the decision to construct this four-lane road. They have also sought for an order restraining these respondents from taking possession of the land acquired for the purpose of the said project. They have sought a further direction on them to approach the Central Government i.e. the respondent No.4, for environmental clearance and not to carry on or continue any construction in connection with the project, unless and until such clearance is obtained. A direction is sought on the respondents Nos. 1, 2 and 3 to hold a public hearing inviting the people affected, and that the construction work should be stopped until that is done.

2. When  this  application  came  up  for  admission hearing on 30th August, 1999, the Highway  Authority  was added  as  party  respondent No.5 and the learned Counsel appearing for  the  petitioners  made  it  clear  at  the out-set  that  though  there was a prayer in the petition challenging the four-lane road project,  the  petitioners do not press for that challenge, but they press for their contention  that the provisions of the Notification dated 27.1.1994, which is at Annexure "D" to the petition, have not been followed, though they were applicable.    Notice was  accordingly issued on the respondents on that point, and the matter has been argued in  context  of  the  said Notification  dated  27.1.1994,  on  the question whether environmental clearance was required or not for the  said project.
 

3. According to the petitioners, the petitioner No.1 is  an  unregistered organisation representing the people from various villages affected by the proposed  four-lane road,  which  is  to be constructed on the existing State Highway No.87, by the respondents Nos.  1, 2 and 3, to be known as "Baroda Highway Toll Road".  It is  stated  that the petitioners  Nos.   2 to 5 are the villagers affected by the  project.    According  to  the  petitioners,  the construction  of  four-lane  road  will  cause  extensive damage  to  the  environment,  the  purity  of  air,  the survival  of  the  trees and would cause noise pollution. According to them, the Notification dated  27.1.1994  was directly  applicable  in  respect of the said project and that the project cannot proceed without the environmental clearance from the Central Government.    The  respondent No.3 - company incorporated under the Companies Act, 1956 was formed with an objective to contract with the Gujarat State Government  and/or  its  departments  etc.  for the project.  According to the petitioners, at present  there is  already  an  existing  State  Highway No.87, known as Vadodara-Halol-Godhra Highway and its witdth is 6.5  mtrs with shoulders of  1.5  mtrs.    on  either  side.  It is stated that the proposed Highway will be 20  meters  wide with  a  divider and on both the sides of the road, there will be service roads of 3.5 mtrs.  each.  The  new  road known  as  four-lane  Toll  road  will  be constructed by elevating  the  existing  two-lane  road  and  by  adding elevated  lanes  on  both the sides alongwith the service roads.  It is further stated that the people of the  area adjoining  the  existing  State  Highway  No.87 and those using it  have  never  been  taken  into  confidence  nor allowed  to  participate  in  any decision making process before putting  up  any  four-lane  road  project.    The existing  State  Highway  No.87  is  about 100 K.Ms long, while the proposed project will cover about 32 K.Ms  i.e. about one  third of the existing Highway.  The total cost of the project is  estimated  at  Rs.    178  crores  and according  to  the  petitioners, the project design would involve radical alteration of the existing two-lane road, which cannot be termed as a mere widening of the existing road.  It is contended that the new road will, from every aspect, be different from  the  existing  State  Highway. The  project would involve destruction of about 966 trees even  according  to  the  project   authorities,   though actually it may be much more than that.  According to the petitioners,  the  first  respondent  has  entered into a contract with the  second  respondent,  due  to  lack  of adequate  public  resources  and  in  furtherance  of the policy of liberalisation and privatisation  and  for  the purpose of execution, the contract has in turn been given as regards  the  said project to the respondent No.3.  It is contended that in the  ultimate  analysis  money  will come indirectly  from the citizens.
 

3.1 It  is  also  submitted that the project has been undertaken without  adequate  study  in  respect  of  the present  density  of traffic along the said Highway No.87 and the anticipated increase of traffic on  the  proposed four-lane road.  It is contended that properties within a distance of 36  mtrs.   on the left side and 26 mtrs.  on the  right  side  of  the  road  have  been  compulsorily acquired for the purpose of the road.  In paragraph 28 of the  petition,  it  is  stated  that  industries like the petitioners' factory have grown up on  the  east  of  the said road near villages Panchdevla, Ajoj, Khandiwada etc. while the industries and factories on the western side of the road are comparatively few.  It is contended that the extension  of  the  existing  road  by  about  40 meters. entirely on the west, could have been brought about at  a lesser acquisition cost and it would have caused a lesser disturbance to  the  existing  industries/factories.   In paragraph 30 of the petition it  is  contended  that  the proposed  service  roads  do not have any plan for laying them out properly now and for maintaining  them  properly in  future  and  if  that  is  not  done,  a good deal of advantage  at   present   available   to   the   roadside industries/factories  like the petitioners' factory would be lost.  In paragraph 33 of the petition it is contended that  what  will  be  gained   by   the   said   existing industries/factories  through the speed, ease and comfort of the four-lane highway,  would  be  lost  in  the  long detours  becoming necessary for want of convenient nearby turn-abouts and under-passes.  It will be seen from these averments that the  petition  is  an  admixture  of  both public and private interest.  Even in paragraph 39 of the petition, it is stated that the first respondent has lost sight  of  the  consideration  that the lands in question like those of the petitioners' factory lands were allowed about ten years  ago,  to  be  converted  into  the  said non-agricultural  user  from  their original agricultural user, and that the trees which were planted  by  them  as per  the  condition  imposed,  will  have  to be cut down because of this project.    It  is  also  contended  that representations were made in January, February and April, 1999,  as  per  Annexures  "B" and "C", in respect of the said project.  When these representations are seen,  they have  bearing mostly on payment of compensation and other non-environmental aspects such  as  providing  employment etc.    and   demand   for  additional  compensation  and facilities as well as exemption from payment of toll.
 

3.2 It  is  then  contended  in  paragraph  52 of the petition that a Notification  dated  27.1.1994  (copy  at Annexure  "D")  was  issued  by  the Government of India, which required under Item No.21  of  Schedule  I  thereof that  a  Highway  project  except  projects  relating  to improvement work including widening and strengthening  of roads  with  marginal land acquisition along the existing alignment, should have environmental clearance.    It  is stated  that in the present case such a clearance has not been  obtained  and  no  public  hearing  was  given   as stipulated in  the  Notification.   It is reiterated that the project undertaken is not merely a  widening  of  the existing  road,  but  construction of a new road known as four-lane toll road by converting the  existing  two-lane road.   It  is submitted that the said Highway conversion project should be treated as a new project.  It  is  also contended  that the people have a right to know about the projects affecting them  and  that  the  project  is  not formulated in public interest and is unconstitutional and null and  void.    In  paragraph 60 of the petition, they have contended  that  the  acquisition  of  land  by  the respondent No.  1 for the purposes of the respondent No.3 was  violative  of  the provisions of Chapter VII of Land Acquisition Act, 1894.
 

4. The respondents Nos.  1  and  5  have,  in  their affidavit-in-reply  dated 15th October, 1999, stated that the  Government  had  formulated  the  road   policy   in December,  1996  and  the  objective of that policy is to work towards rapid economic  and  social  upliftment  and that  the  road  policy  is  structured  for providing an efficient road network across the length and  breadth  of the   State   so   as   to   effectively  meet  with  the transportation needs of every sector.  It  is  stated  in paragraph  6  of  the  affidavit-in-reply  that the State Government has acquired necessary land for  widening  the road   and  that  while  acquiring  the  land,  necessary formalities as prescribed in  the  Land  Acquisition  Act were  taken  care  of  and  the provisions of Environment Protection Act were also taken into consideration.  It is stated that substantial time, effort and money  has  been invested  in  the  project,  which has already commenced. The Notifications acquiring the lands  for  the  purpose, which have been placed on record for information from the Gazette,  are  not  disputed  and  it  appears  that  the Notification under Section 4 of the Land Acquisition  Act was  issued  on  21st  June,  1995  and that Notification referred to  the  public  purpose  of  the  road.     The Notification  under Section 6 of the Land Acquisition Act was  issued  on  6th  October,   1997,   specifying   the approximate  area of land required for the public purpose of Vadodara-Halol-Godhra   four-lane   road.        These Notifications  do not indicate that acquisition was to be of 36 meters on one side and  24  meters  on  the  other. Various  survey  numbers  of different areas specified in the Notification were acquired.   It  is  stated  in  the affidavit of  these  respondents  Nos.    1  and  5  that necessary Environmental Impact Assessment study  for  the road  was  carried  out  and an application seeking a `no objection  certificate'  was  made  to  the  Director  of Environment,  Environment and Forest Ministry, Government of Gujarat on 15th  June,  1998,  who  responded  by  his letter dated 2nd July, 1998 stating that such a clearance was  not  required  for  this  project  of road widening. However, the environment concerns indicated therein  were to   be   addressed   to,  before  commencing  the  work. According to  these  respondents,  no  provision  of  the Environment  Protection  Act  has  been  flouted  and the petition is misconceived.
 

5. In the affidavit-in-reply of the respondent  No.5 sworn  on  25th  October, 1999, the Special Secretary and Chief Engineer (Special  Projects)  Roads  and  Buildings Department  of  the State of Gujarat, has stated that the concept of widening of road implies addition of lanes  to an existing  road.    It  is  stated  that the expression "widening  and  strengthening"  are  technical  terms  in context of roads.  The width of the road is designated in form  of  lanes  which  are usually known as single lane, intermediate lane, two lane, four lane etc.  It is stated that when the road reaches its design capacity, it  needs to be widened to accommodate future anticipated growth in traffic  or  otherwise  there would be a reduction in the level of service leading to increase in road  user  cost, accidents and    congestion.      It   is   stated   that transportation planning as practiced in the country  have defined  the  capacity  of various lane configurations as stated in paragraph 4 of the affidavit.   It  is  further stated  that  the  decision  to  widen and strengthen the Vadodara-Halol Road was taken on the basis of  the  known parameters,  since it had exceeded the designed capacity. It  is  also  stated  that  considering   the   transport requirements  of  existing  local traffic and of villages along the road and to provide for toll free access  along the  road,  it  was decided also to construct an adjacent service roads of intermediate lane standards which  would be  toll free and allow for bidirectional traffic on both sides of the four-lane road.  The proposed road would  be in the nature of widening the existing road from two-lane to  four-lane  alongwith  the  service  roads  for  local traffic along the margins of the existing road.    It  is therefore,  stated  that  the  project  is  nothing,  but `widening and strengthening' of the present road and that it does not change the character of  the  land-use  along the road.   It is also stated that for such road widening along the existing road, no  environmental  clearance  is required.   Reliance  is  placed  on  the  correspondence annexed at Annexures I, II and III of  the  affidavit  in support of  this  contention.  It is also stated that the said  correspondence  between  the  Ministry  of  Surface Transport  and  the Ministry of Environment, based on the Union  Cabinet  decision  dated   15.1.1997   shows   the intention  to  exempt the road widening projects from the purview   of   environmental   clearances    under    the notification as  amended on 10.4.1997.  It is also stated that  the  Vadodara  -  Halol  road  was  identified  for four-laning after  a  proper  study.  A further affidavit has been filed showing the  recommended  land  width  for different  classes  of  roads, as suggested by the Indian Roads Congress, for National and State  Highways  in  the country,   as   per  which,  for  a  State  Highway,  the recommended land width is 60 meters.
 

6. On behalf of  the  respondent  No.4  -  Union  of India,  an  affidavit dated 18.11.1999 has been filed, in which it is stated that the Ministry  concerned  has  not received the proposal for environmental clearance in this matter.   It  is  stated that two proposals, namely - one for diversion of 8.00 hectares of  forest  land  on  road side  in State Highway No.87 between 34.3 K.Ms to 40 K.Ms falling in Panchmahal district and another for  diversion of 15.66 hectares of forest land on road side of the same road  between 8.2 to 34.3 K.Ms in Vadodara district, were approved by the Government of India by its communications dated 16th June, 1999 and 1st September,  1999.    It  is stated that the proposals which attract the provisions of the   Notification   for  environment  clearance  require mandatory public hearing as per the procedure  laid  down in the  Notification.    It is contended that considering the facts and circumstances of  the  case,  there  is  no substance  in  the  petition  and the petitioners are not entitled to any of the reliefs prayed for by them.
 

7. The  respondent  No.2  in  the affidavit-in-reply filed on 15th Sept.1999 has stated that the  project  was formulated  for  the purpose of improvement, upgradation, repair and maintenance of a section of the State  Highway No.87  between Vadodara and Halol and this had to be done because Vadodara ranks second among  the  most  important industrial and commercial centres in the State of Gujarat and  Halol  is  a  township  that  has  developed  as  an industrial centre due to its proximity to Vadodara.    It is  stated  that  the  second  respondent  had prepared a detailed Environment  and  Social  Assessment  Report  in accordance   with   the   Environment  Impact  Assessment Notification of January, 1994 issued by the  Ministry  of Environment and  Forest, Government of India.  As per the said notification at Annexure "D" to the  petition,  road widening  projects  not  passing through any ecologically sensitive area are exempted from environmental clearance. It is stated that out of total project cost of Rs.    175 crores, investments  to  the  tune of Rs.  60 crores have already been  made.    It  is  further  stated  that  the petition  is  motivated  and  is  calculated  to  benefit certain individuals with vested interests.
 

8. In  the affidavit-in-reply filed on behalf of the respondent No.3 on 15th Sept.  1999, it  is  stated  that the  project  is  clearly  exempt from the rigours of the Notification  dated  27th  January,  1994,  because   the project  relates  to  widening  and  strengthening of the existing highway.  It is pointed out  that  in  order  to enable   implementation   of  the  policy  of  the  State Government, the Bombay Motor Vehicles Tax Act, 1958 which had  earlier  prohibited  the  levy  of  tolls  on  motor vehicles  utilising  roads  within  the  territory of the State was amended not only to enable  the  Government  to levy  tolls,  but also to enable private enterprises that had undertaken the construction etc.   of  the  road,  to collect  toll in relation to such roads on such terms and in such manner as may be prescribed.  It is also  pointed out that second respondent in the year 1966 had appointed Kirloskar   Consultants  for  a  detailed  study  of  the project.  A  summary  of  the  Environmental  and  Social Assessment  Report is annexed at Annexure "B" to the said affidavit.  It is  stated  that  as  per  the  Concession Agreement,  the respondent No.3 is under an obligation to comply  with  the  Environmental  and  Social  Assessment Report.   It  is stated that this would ipso-facto reveal that the Vadodara-Halol project is not  only  environment compliant  but  there  are  in-built  safety  valves  and measures for ensuring that the project at all  and  every stage/phase remains  environmentally  compliant.    It is pointed out that the  petition  has  been  filed  at  the behest  of  certain  motivated  interests  and  that  the petitioners have no locus-standi.  It is also stated that there has been gross delay in the filing of the petition, inasmuch as the policy decision in the matter  was  taken as  far  back  as  in the year 1995 and the memorandum of agreement was entered into in October, 1995.    Moreover, the  lands  were  already  acquired  from  the  concerned persons and compensation was paid to them.
 

8.1 In the further affidavit-in-reply filed on behalf of the respondent  No.3  on  4th  October,  1999,  it  is pointed  out that on 30th July, 1999, the respondent No.3 had received a letter from the office of the Chief Forest Officer, Social Afforestation, giving permission  to  the respondent  No.3  to  cut 829 trees and to transplant 494 trees out of  total  of  1,323  trees.    This  has  been produced  at Annexure "C" collectively to that affidavit. It is stated that the respondent  No.3  is  committed  to plant 5,905 trees per K.M stretch of the Highway, i.e.  a total of 1,96,350 trees in the area.
 

9. The learned Counsel appearing for the petitioners submitted that on a  bare  reading  of  the  Notification dated  27th  January, 1996, as amended on 10.4.1997, this project clearly required environmental clearance  without which  no work could have been started for converting the existing two-lane highway into a four-lane highway.    It was  submitted  that since such a clearance was required, it was essential to comply with the  procedure  requiring hearing  to  be  given  to  the  people  affected in this matter, which was spelt out in Schedule IV  of  the  said notification.   It  was submitted that admittedly no such procedure  was  undertaken  and  therefore,  the  project violated the statutory notification which has been issued under  Section  3(2)(v)  read  with  Rule 5 (3)(d) of the Rules framed thereunder.    It  is  submitted  that  this petition  is  not a motivated petition though it has been filed by  persons  who  are  adversely  affected  by  the project, including  factory owners.  It is submitted that even persons affected can raise the  issue  not  only  on their  behalf,  but all others who were affected and such personal interest will  not  disqualify  the  petitioners from approaching  the  Court.    It is submitted that the main issue in the petition is an environmental issue.  In environmental pollution,  noise  and  air  pollution  are important factors  to  be  considered.   Pointing out the comparative chart prepared in the  affidavit-in-rejoinder filed by the petitioners, it is argued that the nature of conversion  of  the  existing  State Highway No.87 into a four-lane Highway shows that the original  Highway  would lose  its  identity and what would now be there, would be totally a new Highway.    It  is  pointed  out  that  the existing  Highway  is  a two-lane Highway and none of its portion is elevated and that there are several turnabouts as a result of which the vehicles using the  highway  are able to avoid long detours, whereas the entire stretch of 32  K.Ms  of  the  proposed  highway  will  have very few turnabouts/underpasses.  Moreover, the  existing  highway is  also used by pedestrians and farmers and it is not at all a Toll highway, nor does  any  of  its  portion  pass through  a  reserved forest or any ecologically sensitive area.  It is therefore, submitted that the new  four-lane highway  would be totally a different and new highway and not just  a  widened  existing  highway.    It  is   also submitted  that  the  concept  of  delay  in public cause should be liberally considered and  a  few  months  delay after  the  representations were made between January and April, 1999 should not come in the way of a  petition  of this nature.
 

9.1 It was then submitted by the learned Counsel that item 21 of Schedule I of the said Notification  indicated that  only  marginal land meaning thereby a small portion of land could be acquired for widening purposes and  that if  a  large  area  was  required  to be acquired for the purpose, then the project cannot  be  termed  as  a  road widening project.    It  was  submitted  that a four-lane construction was not simply a widening of the road.    It was   argued  that  if  the  words  "with  marginal  land acquisition along the existing  alignment"  occurring  in Item  21 of Schedule I, are capable of two constructions, then one which is in favour of ecology should be adopted. It is  submitted  that  in  view  of  the  provisions  of Articles 21, 48A and 51A(g) of the Constitution of India, the interpretation of the said clause should be in favour of environmental  protection.  The learned Counsel relied upon the  decisions  of  the  Supreme  Court  in  Vellore Citizens' Welfare  Forum  Vs.    Union of India and ors., reported in (1996) 5 SCC 647, S.Jagannath Vs.   Union  of India and  ors.  reported in (1997) 2 SCC 87 and Suo Motu Proceedings in Re:  Delhi Transport Department,  reported in (1998) 9 SCC 250 in support of the petitioners' case.
 

9.2 It was further submitted that  the  clarification made  by  the Government of India on 15.10.1999 refers to marginal land acquisition of 20 meters  put  together  on either  side of the road and that clarification should be read in the notification itself even if no  amendment  is made.
 

9.3 The learned Counsel submitted that  the  progress of  our civilisation need not mimic the western world and that such huge highways are not essential to our cultural surroundings.  Referring to a poem written by Tagore,  he submitted that for over a century we have been dragged by the  prosperous  West  behind  its chariot, choked by the dust,  deafened  by  the  noise,  humbled  by   our   own helplessness, and overwhelmed by the speed and it is high time  that the validity of such helpless following should be reviewed and progress be made in consonance  with  our own cultural values and ethos.
 

10. The learned Additional Advocate General submitted that  the project in question clearly was a road widening project and that the subsequent circular of 15th October, 1999 was merely an administrative reaction of an  officer and  should not be read in the statutory orders regarding exemption reflected in clause 21 of  Schedule  I  of  the Notification.    He   pointed   out  that  the  amendment inserting the exemption clause in item 21 of  Schedule  I was  made  precisely  with  a  view  to  ensure that road widening did not require any environmental clearance.  He pointed out from the letter dated 12th March, 1997 of the Ministry  of  Environment  and  Forests,  reproduced   in Annexure "I" to the affidavit dated 25th October, 1999 of the  respondent  No.5,  that  a  group was constituted to consider  the   issues   relating   to   exemption   from environmental  clearance  for  road  projects  along  the existing alignments and the recommendation of  the  group was  that  the  project  relating  to  improvement  works including widening and strengthening with  marginal  land acquisition   of  roads  along  the  existing  alignments irrespective of the cost component may be  exempted  from obtaining environmental  clearance from the Ministry.  It was recorded therein that a decision  was  taken  by  the Cabinet  during  its  meeting  on 15.1.1997 that the road projects on existing alignments which are in  the  nature of  improvement by way of widening the existing roads are to be exempted  from  clearance  from  environmental  and forestry angles.    It  is pursuant to this decision that the notification dated 27.4.1994 came to  be  amended  on 10.4.1997.
 

10.1 The  learned  Additional Advocate General further submitted that in view of the development that had  taken place  and  keeping  in view the future requirements, the four-lane  road  has  been  designed  on   the   existing alignment and  does  not involve any change of route.  It was submitted that the bye-passes  were  planned  with  a view  to  cause  minimum  inconvenience  to the villagers through which the highway is passing.
 

11. The learned Counsel appearing for the respondents Nos.  2 and 3  submitted  that  the  project  would  have required  prior  clearance,  but for the exception clause added by the subsequent  notification  dated  10.4.97  in item 21  of  Schedule  I.   He submitted that even in the Stockholm  Conference  on  the  Human  Environment,   the declaration   adopted   on   16.6.1972  incorporated  the principle of economic and social  development,  which  is essential  for  ensuring  a favourable living and working environment for man and for creating conditions on  earth that  are necessary for the improvement of the quality of life and further that the environmental policies  of  all States  should  enhance  and  not  adversely  affect  the present or future  development  potential  of  developing countries,  nor  should  they  hamper  the  attainment of better living conditions for all, and  appropriate  steps should   be   taken   by  the  States  and  international organisations  with  a  view  to  reaching  agreement  on meeting  the possible national and international economic consequences   resulting   from   the   application    of environmental measures   (principles   8  and  11).    He submitted  that  those  who  espouse  public  cause  must exercise restraint in moving the Court by not plunging in the areas  wherein  they  are  not  well versed.  He also submitted that PIL should not be a  cloak  for  attaining private  ends  as  was  sought  to be done in the present case.  In support of these contentions,  he  referred  to the  decisions  of  Hon'ble  the  Supreme Court in Raunaq International Ltd.  Vs.  I.V.R  Construction  Ltd.    and anr.,  reported  in  (1999)  1  SCC  492, S.P.; Anand Vs. H.D.Dewa Gowda,  reported  in  (1996)  6  SCC  734;  A.P. Pollution Control Board Vs.   Prof.  M.V.  Nayudu (Retd.) and ors., reported in 1999 (2) SCC 718, and,  The  Janata Dal Vs.   H.S.   Chowdhary and ors., reported in AIR 1993 S.C 892.  Relying on the decision in the case  of  Bennet Colemn and Co.Ltd.  & ors.  Vs.  Union of India, reported in  AIR  1973  SC  106,  it  was submitted that the Court cannot adjudicate on government policy matters unless the policy is alleged to be malafide.  He also contended that the subsequent circular dated 15.10.1999  cannot  whittle down the efficacy of the exemption, and on this aspect he relied  upon the decisions of the Supreme Court in Beopar Sahayak P.Ltd.  Vs.  Vishwa Nath and ors.    reported  in AIR  1987 SC 2111; State of M.P Vs G.S.Dall & Flour Mills and ors.  reported in AIR 1991  SC  772,  and,  Union  of India Vs.   Diljeet  Singh and anr.  reported in (1999) 2 SCC 672.
 

12. As noted above at the admission stage of this petition, as recorded in the order dated 30th August, 1999, the petitioners’ Counsel made it clear that though there was a prayer in the petition challenging the four-lane project, the petitioners do not press for that challenge, but they press for their contention that the provisions of the Notification dated 27.1.1994 at Annexure “D” to the petition have not been followed, though they were applicable in the present case. The debate has therefore, centered around the question of applicability of the said notification, which was issued by the Central Government in exercise of its powers under Section 3(2)(v) of the Environment Protection Act, 1986, read with Rule 5(3)(d) of the Rules made thereunder. By this notification the Central Government directed that on and from the date of its publication in the official Gazette, expansion or modernisation of any activity, (if pollution load is to exceed the existing one) or a new project listed in Schedule I of the Notification shall not be undertaken in any part of India unless it has been accorded environmental clearance by the Central Government as per the procedure specified in the said notification. Any person who desires to undertake a new project or the expansion or modernisation of any existing industry or project listed in Schedule I has to submit an application for clearance to the Government of India.

12.1 Thus, if any expansion or modernisation of a project which increases pollution or any new project listed in Schedule I is undertaken, it would require environmental clearance unless the item falls in paragraph 3 of the Notification, which, inter-alia, provides that the notification will not apply to any item falling in the entries of Schedule I mentioned therein, if the investment is less than rupees fifty crores. The item No.21 of the Highway projects and projects relating to improvement work would require clearance, if the investment is not less than rupees fifty crores. In the present case, the investment is more than rupees fifty crores and therefore, the question whether the environmental clearance was required for the disputed project arises. The petitioners on one hand contends that the scale of change from two-lanes to four-lanes highway undertaken is clearly a new highway project while on the other the respondents maintain that it is only a road widening project that does not require environmental clearance since it is improvement work that is exempted specifically under the notification.

12.2 This necessitates consideration of item 21 of Schedule I of the said Notification, which reads, under the head “LIST OF PROJECTS REQUIRING ENVIRONMENT CLEARANCE FROM THE CENTRAL GOVERNMENT”, as follows:-

1 to 20 xxx xxx

“21. Highway Projects except projects relating to improvement work including widening and strengthening of roads with marginal land acquisition along the existing alignments provided it does not pass through ecologically sensitive areas such as National Parks, Sanctuaries, Tiger reserves, Reserve forests.”

22 to 29 xxx xxx

12.3 In the present case, the four-lane highway is coming up over the existing highway No.87 which is admittedly a State Highway. The existing State Highway No.87 is only a two-lane highway and its stretch of 32 K.Ms between Vadodara and Halol is sought to be converted into four-lane highway.

13. A Highway in common parlance would be a public road. National and State Highways are statutorily governed by the National Highways Act and State Highways Act. The concept of a State or National Highway is not a nebulous one like Highways dedicated to public as was the case in Municipal Board Mangalore, reported in AIR 1965 SC 1147, wherein it was observed that the width of such highway depends upon the extent of the user. The side lands are ordinarily included in the road for they are necessary for its proper maintenance. The National and State Highways on the other hand are statutorily dealt with. The Parliament has, under item 23 of List II of the Seventh Schedule to the Constitution, exclusive power to make laws with respect to Highways declared by or under the law made by it to be National Highways. The State legislature has under Entry 13 of List II of the Seventh Schedule, power to make laws, inter-alia, with respect to means of communication such as roads, not specified in List I. Thus, Highways would be a matter with respect to which State legislature can make laws. The Bombay Highways Act, 1955 was enacted on 22nd December, 1955 to, inter-alia, provide for the construction, maintenance and development of Highways. It defines `highway’ in Section 2(i) as under:-

” `highway’ means any road or way over which the public have right of way or are granted access which is declared to be highway under Sec. 3. This expression includes,

(i) any land acquired or demarcated with a view to construct a highway along it;

(ii) the    slopes,    berms,     borrow-pits, footpaths, pavements and side, catch and boundary drains attached to such road or way;
 

(iii) all    bridges,    culverts,   causeways, carriageways and other structures,  built  on  or across such road or way; and
 

(iv) the   trees,   fences,  posts,  boundary, furlong  and  mile  stones  and   other   highway accessories and materials and material stacked on the road or way;"
 

13.1 Under  Section  3  of  the  said  Act,  the State Government may,  by  notification  in  official  Gazette, declare a road to be a highway and classify it as a State Highway (Special)  or State Highway etc.  Under Section 7 of the Act, the State Government  having  regard  to  the situation  or  the  requirements  of  a  highway  or  the condition of the  local  area  through  which  a  highway passes,  has  power to fix boundary, building and control lines of highways.  The State Government is empowered  to acquire land for the purposes of Highway under Section 15 of the Act.
 

13.2 The State Highways are arterial routes of a State linking district headquarters and important cities within the  State  and connecting them with National Highways or Highways of  neighbouring  States.    A  list  of   State Highways  in  Gujarat is contained in Annexure-III of the Road Development Plan 1981-2001  for  the  Gujarat  State (Vol.I),  published  in  March,  1987,  wherein  Vadodara Khandevadi Road appears as State Highway No.87.
 

13.3 Road designing is a developed science and various considerations go into making a road project. As proclaimed by the Government of Gujarat in the Handbook for Roads (Part-I), published in 1986, in Chapter III on Road Designs, the objectives that must be aimed for the design of the roads are, to provide highway that can carry the designed traffic loading and its economics of construction, is safe to use, and socially and environmentally acceptable as well as aesthetically pleasing. Recommended land width for different classes of road is indicated in table 3.1.2 of the said Chapter and the normal range varies from 30 to 46 meters and 30 to 60 meters for State Highways in respect of open and built up areas in the plain and rolling terrain. The roadway width for single lane, two lane and multilane roads is also indicated. The standard width of carriage way is also prescribed and it is observed that the total width should be determined in relation to design traffic and capacity of the roadway. Depending upon the requirement of the lanes, the road may be single lane, two lane, or multi lane. It is indicated in para 3.3.2(d) that for multilane highways, roadway width should be adequate for requisite number of traffic lanes besides shoulders (also known as `berms’ or `side width’, which are the portions beyond the edges of the carriage way in which vehicular traffic may pass occasionally) and central median. The minimum desirable width of a median on highway is indicated as 5 meters in para 3.3.6.1. We refer to these aspects just to indicate that in the very nature of things the need of a highway, its type, its width all depend on various factors that can be considered and decided upon by the executive Government in accordance with law.

14. The highway projects can be new or there may be a project for improving an existing highway. Widening of a highway is included in the expression `projects relating to improvement works of the existing highway’ which stand excepted from the rigour of the notification dated 27.1.1994, in view of the amendment made in item 21 of Schedule I by the Notification dated 10.4.1997. This amendment has its background reflected in the letter dated 12th March, 1997 from the Ministry of Environment and Forest, addressed to the Ministry of Surface Transport. The Cabinet had, during its meeting held on 15.1.1997, taken a decision that the road projects on existing alignment which are in the nature of improvement by way of widening the existing roads are to be exempted from clearance from environmental and forest angles. As regards the acquisition of marginal land for improvement of roads along the existing alignment it was stated that the proposal would need to be examined by the concerned Ministry on case to case basis and approve at their end. When a widening project is undertaken for improvement of the existing road, it is obvious that marginal land along the existing road has to be used for the purpose. In this sense, marginal land would mean land on the margins of the existing road-width. There is no restriction on the word widening and when a two-lane existing road is converted into a four-lane road it obviously would be a road widening project and not a new highway project. Such a widening is contemplated in the exemption clause of item 21. It is precisely to meet with a possible contention that widening would not be improvement that the inclusive definition of “improvement work” envelops widening of road along the existing alignment. How much an existing road should be widened is a matter outside the domain of Courts’ consideration. The requirement of widening a particular highway would depend on several technical, economic, and social aspects. All that can be said is that when the marginal land is acquired for the purpose of widening the road, the acquisition would have a nexus with the extent of widening. How much land on the margins of an existing highway alignment will be required is a matter that would depend upon extra width which is intended to be added, and, what width is to be added is not a matter for the Court to decide. It is entirely for the executive Government to work out the additional lanes required for widening an existing highway and their nature as also the shoulder and median widths required for the purpose. The exemption would be rendered meaningless if the work of widening of the existing highways was to be hampered by meter to meter intervention by the Court to examine the justification for such widening. In other words, justification for the extent of road widening would ordinarily not be a justiciable issue, unless it is contrary to law. To read the expression “with marginal land acquisition along the existing alignments” so as to mean that only a marginal, in the sense of “not significant” land can be acquired for the purpose is to totally denude the efficacy of the exemption that enables projects of widening of existing highways to be undertaken without the requirement of environmental clearance, unless the existing road passes through ecologically sensitive areas. In fact, where the department has already got the required land under its ownership, there would be no need for acquisition of any marginal land. In such cases, the widening of the existing highway can be done on the marginal land already available with the Government. This would indicate that the expression “with marginal land acquisition” cannot govern the extent of widening that can be undertaken for the improvement of the existing road. It would therefore be fallacious to say that no widening of road can be done, if it involves acquisition of significant area of marginal land. In our opinion, there is no restriction imposed in the exemption clause on the extent to which the widening of an existing highway can be done, nor can it be implied. There is therefore, no scope, on a plain reading of the exemption provisions contained in item 2 of Schedule I, for holding that if widening of existing road involves acquisition of large areas of marginal land along the existing alignment, clearance is required. Every widening of road to whatever extent it is legitimately done, is clearly exempt from the requirement of obtaining environmental clearance, unless the existing highway passes through an ecologically sensitive area as mentioned in the exemption clause itself. The administrative instructions contained in the letter dated 29th November, 1996 show that compensatory plantation and rehabilitation of displaced persons in cases of additional land acquisition involving cutting of trees on non-forest land or displacement of population are taken care of.

15. The Circular issued by the Joint Secretary to Government of India on 15.10.1999 purports to clarify that marginal land acquisition means land acquisition not exceeding a total width of 20 meters on either side of the existing alignment put together. This was heavily relied upon to argue that no widening which involves more than 20 meters put together on either side of the alignment can be made. Admittedly there has been no such provision added in the exemption clause for restricting its operation. This circular appears to be just a reading of an administrative officer, of a statutory exemption clause. The statutory clause does not warrant such reading and its operation cannot be restricted by a reading of an administrative officer. The purported clarification falls to the ground when no acquisition of marginal land is required for the purpose of widening, in case where land is already available with the Government for the purpose. This clarification is a misreading of the statutory exemption clause which neither incorporates nor warrants such restriction on the extent of road widening. If at all, such restriction can be imposed only by an amendment in the statutory notification. Moreover, such a clarification could not have been anticipated when the project for widening the road was finalised and undertaken. Therefore, the work of widening the existing highway cannot now be scuttled on the basis of this circular by imposing a requirement of environmental clearance from which road widening has been exempted under clause 21 of Schedule I of the Notification.

16. No challenge against the acquisition of land  can be  raised  by  the  petitioners  in  an  indirect way by challenging the road widening for want  of  environmental clearance.   The  acquisition  for road widening was done under the Land Acquisition Act by Notification dated  6th October,  1997  and  admittedly,  the  interested persons including the petitioners did not raise any objection  to such    acquisition    made    for    the    purpose   of Vadodara-Halol-Godhra four-lane road as was indicated  in Column  4  of  the Schedule to the notification acquiring the land.  Admittedly compensation was also  accepted  by those whose land were acquired.  The question that excess land  was  acquired cannot therefore now be raised by the petitioners, more so in the  present    petition    which emphasises  the  environmental  aspects in context of the said notification.
 

17. The learned Counsel for the petitioners submitted that construction of road  is  not  just  an  engineering achievement, but it has many socio-economic implications. The  whole  project,  according  to  him,  is "voiceless, futureless, rootless and ruthless growth  concerned  only with smooth flow of traffic" He submitted that the people had  developmental  rights because in development process human rights are involved.  Therefore,  even  the  policy matters  are  subject  to  Constitutional limitations and policy can not provide an iron curtain behind which human rights can be scuttled.  There can be no dispute over the proposition  that  every  policy  has  to  remain  within Constitutional  bounds  and  therefore, it cannot violate the fundamental rights guaranteed under the  Constitution or be  contrary  to  law.  The need to have adequate road transport facilities can hardly be over-emphasised.   The construction  and maintenance of Highways is not peculiar to western civilisation and the comment  of  the  learned Counsel  on  the  basis of a poem by Tagor that he cited, against being `dragged by the prosperous West behind  its Chariot' is not very apposite and such an approach is not just   questioning  the  `scientific  perfection  of  the Chariot'  but  would  dig  ditches  across  the  path  of national  progress for which good highways are one of the basic material requirements.  This is not to  slight  the anguish  of  the  learned Counsel that he so passionately expressed but to remind ourselves that our Constitutional goals do  take  care  of  balancing  public  and  private interests  and  that  such  social engineering is no less than the engineering achievements of road building.    We do  not  enumerate the advantages of highways in our vast country because that  would  add  insult  to  the  injury suffered  by those whose private interests were adversely affected, but, as a part of  larger  populace  even  they would   benefit  along  with  others  by  the  collective progress that may be achieved within  the  Constitutional bounds.   Perhaps  it is the evils that are unseen on the surface of even the most  laudable  projects  that  cause simmering resentments.    But righteous indignation is no ground to  twist  or  restrict  the  operative  statutory provisions, atleast for the Court.
 

18. We  may only add that the State Government by its communication dated 2nd July, 1998 which  is  on  record, took  the  view that since the said road widening project did not pass through any ecologically sensitive area,  it did not    require    environmental    clearance.      By communication dated 14th August, 1998, the Government  of Gujarat  forwarded  this  letter  dated  2nd  July, 1998, terming it  as  an  environmental  clearance.    No   one including any of the petitioners seems to have challenged this order under Section 11 of the National Environmental Appellate Authority Act, 1997, under which it is provided that  any  person  aggrieved  by  grant  of environmental clearance can prefer an appeal to the authority.
 

19. What we have said hereinabove should not be taken to endorse any illegality or as affecting the  powers  of the Central Government to examine the project of its own, even if no proposal was forwarded to it.
 

20. We therefore, hold that there is no  warrant  for interference with the impugned project on the ground that the  provisions  of  Notification  at  Annexure  "D"  are violated.  The petition is therefore, rejected.    Notice is discharged with no order as to costs.