NE LEGAL BUREAU
NEW DELHI, JAN 19
The Supreme Court on Tuesday held that segmentation of a national highway project having total length of over 100 kilometres to smaller packages of less than hundred kilometres cannot be adopted as a strategy to avoid environmental clearances.
The top court said that since it is not an expert on the issue, it is of the considered view that an expert committee should examine the permissibility of segregation.
It set aside the Madras High Court order of last year and held that there is no requirement for obtaining environmental clearances for NH 45-A Villuppuram – Nagapattinam Highway (covering a stretch of 179.555 km in Tamil Nadu and Puducherry) as land acquisition is not more than 40 metres on existing alignments and 60 metres on realignments or bypasses.
A bench of Justices L Nageswara Rao, Hemant Gupta, and Ajay Rastogi directed that “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”.
“Having held that the 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. 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.”
“As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under which segmentation can be done also require to be examined by the expert committee”, it said.
However, the bench said it was “in agreement with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications (of MoEFCC), dated September 14, 2006, and August 22, 2013”.
The top court verdict came on an appeal filed by NHAI against the order of Madras High Court which has 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.
“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 bench said. It said that in other words, there should not be development 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 traditional concept that development and ecology are opposed to each other is no longer acceptable,” the bench said, adding that apart from providing a smooth flow of public goods and services which contribute to the economic growth, highways also benefit regional development in the country.
It said that in the normal course, impediments should not be created in the matter of National Highways, which provide the much-needed transportation infrastructure but at the same time, protection of the environment is important.
The top court said that the MoEFCC’s notification on August 22, 2013, exempts a National Highway, the distance of which is less than 100 km from obtaining environmental clearance.
“If the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated September 14, 2006, and August 22, 2013, will be rendered redundant,” the bench said and added that in that case, administrative exigencies and speedy completion could be ground taken for justifying the segmentation of every project.
The bench directed the NHAI to strictly conform to the notification dated September 14, 2006, as amended on August 22, 2013, in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments.
It also directed that the NHAI fulfil the requirement of re-afforestation following the existing legal regime.
The project of widening and improvement of the existing 4-laning carriage way in Tamil Nadu and Puducherry, from Villuppuram to Nagapattinam was given approval in March 2018 and was bifurcated into four packages which includes Villuppuram to Puducherry (29 kms), Puducherry to Poondiankuppam (38kms), Poondiankuppam to Sattanathapuram (56kms) and Sattanathapuram to Nagapattinam (55.755 kms).
