Supreme Court in National Highway Project: Constitute Expert Committee to examine permissibility of segregation

Supreme Court in National Highway Project: Constitute Expert Committee to examine permissibility of segregation

The Apex Court felt that the development should not be at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment

A three judges' bench of the Supreme Court comprising of Justices L Nageswara Rao, Hemant Gupta and Ajay Rastogi in the case of National Highways Authority of India vs. Pandarinathan Govindarajulu &Anr. allowed the appeals and observed that segmentation of a national highway project having a total length of over 100 kilometers to smaller packages of less than 100 kilometers cannot be adopted as a strategy to avoid environmental clearances.

Background of the case:

The Apex Court allowed the appeal filed by National Highway Authority of India (NHAI) and subsequently set aside the judgment passed by Madras High Court and held that there was no requirement for obtaining environmental clearances for National Highway 45-A Villuppuram - Nagapattinam Highway (covering a distance of 179.555 km in Tamil Nadu and Puducherry) as the land acquisition was not more than 40 meters on existing alignments and 60 meters on realignments or bypasses.

The appellant - NHAI had filed an appeal against the order of Madras High Court which had put on hold the expansion of National Highway 45-A between Villuppuram to Nagapattinam running through Tamil Nadu and Puducherry, which was segregated into four packages.

The project of widening and improvement of the existing four-lane carriageway in Tamil Nadu and Puducherry, from Villuppuram to Nagapattinam was given approval in March 2018 and was bifurcated into four packages which included Villuppuram to Puducherry (29 kms), Puducherry to Poondiankuppam(38 kms), Poondiankuppam to Sattanathapuram (56 kms) and Sattanathapuram to Nagapattinam (55.755 kms).

Observation:

The Court on 19 January 2020 observed, "While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand".

The Apex Court was of the view that the development should not be at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of the environment.

The Court directed, "the Ministry of Environment, Forest and Climate Change (MoEFCC), shall constitute an expert committee to examine whether segmentation is permissible for National Highway projects beyond a distance of 100 kms and, if permissible, under what circumstances."

The Court referred to the Environmental Impact Assessment (EIA) notification published on 22 August 2013 and stated, "The project proponent is obligated to obtain prior environmental clearance only for the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or bypasses for a National Highway project which is greater than 100 km. Every expansion of National Highway which is greater than 100 km requires prior environmental clearance would be making the other words in Item 7 (f) redundant and otiose."

In addition, the bench observed that in the normal course, impediments should not be created in the aspect of National Highways, which provide the much-needed transportation and also at the same time, protection of the environment is important.

The Court stated, "In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14 September 2006 and 22 August 2013. Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance."

To conclude, the Apex Court felt it was important to constitute an Expert Committee who should examine the permissibility of segregation. "As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects," the Court further added.

The bench directed the NHAI to strictly obey the notification in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments.

It also directed the NHAI to fulfil the requirement of re-afforestation in accordance with the existing legal regime.