[et_pb_section fb_built=”1″ _builder_version=”4.5.1″ _module_preset=”default”][et_pb_row _builder_version=”4.5.1″ _module_preset=”default” min_height=”181px”][et_pb_column type=”4_4″ _builder_version=”4.5.1″ _module_preset=”default”][et_pb_text _builder_version=”4.5.1″ _module_preset=”default” inline_fonts=”Cormorant Garamond,Molengo,Assistant”]<\/p>\n
Abstract<\/span><\/strong><\/span><\/p>\n Today\u2019s India is heading towards large scale socio-economic development majorly through the infrastructure route \u2013 particularly, the transportation sector. For example, the Bharatmala Pariyojana project which targets the interconnection of various highways pan India through laying down of new highways and expansion of existing ones. Now, what are the environmental repercussions of such a project? There\u2019s bound to be some kind of environmental impact as a result of its implementation and the tools to determine such instances and scale of impact lie in the EIA Notification of 2006 (as amended thereafter). The EIA Notification requires an environment impact assessment (EIA) study to be conducted for certain proposed projects and such projects may be implemented only after procurement of an environmental clearance (EC). This Article is an attempt to (1) critically analyze Item 7(f) of the EIA Notification which prescribes a 100 km rule in respect of expansion of national highways, i.e., a rule that projects involving \u201cExpansion of National Highways greater than 100 km involving additional right of way or land acquisition greater than 40m on existing alignments and 60m on re-alignments or by-passes\u201d only require environmental clearance; (2) critically analyze the position of the Courts in India on this; (3) understand how this may imbalance the equilibrium between environmental concerns and socio-economic development in the country; and (4) emphasize the need for reconsideration and reform in the subject matter.<\/span><\/p>\n <\/strong><\/p>\n Expansion of Highways: Exemption from Requirement of Environmental Clearance<\/strong><\/span><\/p>\n Achieving and ensuring a balance between environmental causes and conservation on one hand, and socio-economic development on the other hand, has always been a struggle for the organs of the state, be it the legislature, the judiciary, or the executive. The introduction of an environmental impact assessment requirement (by way of the<\/span>EIA Notification<\/a>) was an attempt to achieve a middle ground \u2013 \u2018sustainable development\u2019. \u00a0<\/span><\/span><\/p>\n Under the EIA (environmental impact assessment) Notification, certain projects which are listed in the Schedule require environmental clearance. Item 7(f) of the said Schedule is related to the expansion of highways. Originally, when the EIA Notification was first brought into force, Item 7(f) of the Schedule prescribed national highways with a length greater than 30 kilometers, along with an addition right of way beyond 20 meters, which involve land acquisition and pass through two states or more. \u00a0This was later amended pursuant to<\/span>S.O. 2559 (E)<\/a> issued by the Ministry of Environment and Forest, dated 22.08.2013 (\u201c2013 Amendment<\/strong>\u201d), to prescribe national highways with a length greater than 100 kilometers, along with an addition right of way beyond 40 meters in case of existing alignments, and 60 meters in case of realignments and by-passes.<\/span><\/span><\/p>\n Following this amendment, there have been multiple instances of highway authorities taking advantage of the said provision by segmenting the highway expansion projects (either 100 kms or more) into smaller packages (each less than 100 km) to avoid falling within the scope of the amended Item 7(f). This has also been tested by the courts in our country, and most recently by the Supreme Court in the matter of \u2018<\/span>The National Highways Authority of India v. Pandarinathan Govindarajulu and Anr.<\/a>\u2019, closed earlier this year. The aforesaid matter was preferred challenging an order of the High Court of Madras. The judgments of both the Supreme Court and High Court of Madras are critically analyzed below.<\/span><\/span><\/p>\n <\/strong><\/p>\n The \u2018Pandarinathan Govindarajulu\u2019 Case \u2013 Part I: The Madras High Court\u2019s Take<\/strong><\/span><\/p>\n The National Highways Authority of India (NHAI) sought to improve and expand NH-45A, a four-lane carriage way in Tamil Nadu and Puducherry, stretching from Villupuram to Nagapattinam, for a distance of 179.555 kms as a part of the Bharatmala Pariyojana project. The NHAI embraced a \u2018strategy\u2019 of segmenting\/segregating the 179.555 km project into four packages of different extents (as mentioned below) and issued four separate notifications accordingly:<\/span><\/p>\n 1. Villuppuram to Puducherry (29.000 kms)<\/span><\/p>\n 2. Puducherry to Poondiankuppam (38.00 kms)<\/span><\/p>\n 3. Poondiankuppam to Sattanathapuram (56.800 kms)<\/span><\/p>\n 4. Sattanathapuram to Nagapattinam (55.755 kms)<\/span><\/p>\n The Project involved widening of the existing highway and laying of new roads for the formation of bye-passes. It is relevant to note that the subject land comprises of a large area of agricultural land and wet land. Contracts were entered into between the NHAI and private infrastructure companies (concessionaires) for carrying out the expansion of the highway, and land acquisition proceedings were underway for the land required for the Project.<\/span><\/p>\n Aggrieved by the land acquisition proceedings and the entire project itself (particularly, the commencement of the project without an environmental clearance), a writ petition was filed by the owners of the land, along with two public interest litigations, before the High Court of Madras. The NHAI attempted to justify the segmentation of the project into four parts by stating that administrative expedience necessitated the same. According to the NHAI, if the project were one single unit \/ not segmented, it could be granted to only a single Concessionaire and by virtue of this, the project could take longer than six years to be completed because of the additional burden on that single Concessionaire; whereas, if the project were to be segmented into four parts as it is presently, each part could be granted to a different Concessionaire and time would be saved in completing the project, which the NHAI intends to complete within thirty months. The High Court of Madras took up this batch of writ petitions and passed an<\/span>order<\/a> on January 08, 2020, partially allowing the writ petitions in terms of the following directions:<\/span><\/span><\/p>\n The High Court of Madras opined that the need for dividing the entire project into different segments for simultaneous execution of a developmental project cannot be a justification for avoiding EIA requirements and allowing the same would \u201conly engineer statutory abuse and sound the death-knell for EIA.\u201d The Hon\u2019ble Court relied upon<\/span>various<\/a> foreign judgments<\/a>, the<\/span>Indian Supreme Court<\/a>, and the<\/span>National Green Tribunal<\/a> in concluding so. The Hon\u2019ble Court also opined that the EIA is \u2018project centric\u2019, and not implementation centric or concessionaire centric.<\/span><\/span><\/p>\n\n