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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.

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.

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.