NHAI Concessionaires Holding Work Orders Prior To March 2024 Don't Need Environmental Clearance For Earth Extraction: Kerala High Court

The division bench comprising Justice Devan Ramachandran and Justice M B Snehalatha, passed the order while answering an intra-court reference.

The Ministry of Environment, Forest and Climate Change (MoEF&CC) had, through notifications dated March 28, 2020 and August 30, 2023, exempted extraction of ordinary earth for linear projects from EC requirements. The National Green Tribunal (NGT) struck down the exemption, subsequently, the Supreme Court, in Noble M. Paikada v. Union of India [2024 LiveLaw (SC) 252] upheld that decision, quashing Item 6 of Appendix IX of both notifications (notifications dated 28.03.2020 and 30.08.2023).

The Supreme Court later issued a clarificatory order on May 15, 2024, stating that work orders issued before March 21, 2024 could continue without obtaining fresh EC.

The High Court was considering whether the clarification of the Supreme Court would apply even to concessionaires who are engaged in extracting, sourcing or borrowing ordinary earth for linear projects, and whether such permission can be applicable only if the work orders contain specific provisions for the same.

The Court has observed that if the intent of the Supreme Court was to only allow NHAI to conduct extraction, it would not have offered clarification with respect to work orders in favour of concessionaires.

“Clarification by the Hon'ble Supreme Court cover not merely the 'NHAI', but the concessionaires also, because otherwise, it would not have stated with precision that all projects for which Work Orders by the 'NHAI' was issued before 21.03.2024 can continue and will remain unaffected by its declarations,” the bench observed.

The Court further observed that whether a work order is defined or prepared in a particular manner depends on the facts of the cases 

While allowing the concessionaires to proceed, the Bench referenced to the earlier decision of the Kerala High Court in Pradeep Kumar P. v. State of Kerala [2025 LiveLaw (Ker) 471], which directed the NHAI to ensure transparency and environmental safeguards.

The counsel for NHAI informed the Court that a new notification dated March 17, 2025, had been issued to comply fully with the Supreme Court's judgment by introducing Standard Operating Procedures (SOPs) and safeguards for linear projects. The Bench recorded this submission and noted that the safeguards would apply to ongoing and future works.

The Court thus concluded that the projects covered by NHAI work orders issued before March 21, 2024, remain exempt from obtaining fresh 'EC', provided prescribed safeguards were observed, and has left other issues open for adjudication.

"In rundown, it is luculent that the express intent of the Hon'ble Supreme Court is to allow even concessionaires, who are enjoying a Work Order issued by the 'NHAI' prior to 21.03.2024, to engage in extraction, sourcing, and borrowing of ordinary earth for linear projects, without having to apply for or obtain an 'EC'. However, this inextricably ought to be as per the safeguards stipulated, or to be stipulated by the 'NHAI', and those which have been given approval by the learned Division Bench of this Court in Pradeep Kumar P. (supra)," the court said. 

Case Title: Anirudh Karthikeyan v State of Kerala and Others

Case No: ICR(WP(C)) 25/ 2025

Citation: 2025 LiveLaw (Ker) 680

Counsel for Petitioner: S Sreekumar (Sr.), K R Arun Krishnan, Deepa K Radhakrishnan, Sanal C S, Vishak K V, Anu T H, Renjith K R, S Rajeev

Counsel for Respondents: Bidan Chandran, P M Rafeek