Is segmentation permissible for National Highway projects beyond a distance of 100 kms? MoEF&CC’s Expert Committee to examine, directs SC

Supreme Court: The 3-judge bench of L. Nageswara Rao*, Hemant Gupta and Ajay Rastogi, jj has directed the Ministry of Environment, Forest and Climate Change, Government of India to 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.

Background

The said direction came in the case relating to the environmental clearance for expansion of National Highway 45-A between Villuppuram to Nagapattinam for a distance of 179.555 kms as a part of the Bharatmala Pariyojana project. Admittedly, no environmental impact assessment was undertaken. The National Highway Authority of India had challenged the Madras High Court decision holding that the environmental clearance for the said project was necessary.

Environmental clearance under the Notifications dated 14.09.2006 and 22.08.2013 is required only if the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. It was NHAI’s case that environmental clearance is not required as the additional right of way or land acquisition was not greater than the limits specified in the Notification even if the expansion of the National Highways is beyond 100 km. In view of the bifurcation of the National Highway 45-A into four packages and each package being less than 100 km, NHAI contended that the Notifications dated 14.09.2006 and 22.08.2013 are not applicable.

What does the Notification state?

As per Item 7 (f) to the Notification dated 22.08.2013, expansion of a National Highway project needs prior environmental clearance in case

(a) expansion of the National Highway project is greater than 100 km. and

(b) it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses.

If the project involves expansion of a National Highway greater than 100 km, prior environmental clearance would be required only if it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes.

A statutory rule or Notification is to be treated as a part of the statute. Rules made under a statute must be treated for all purposes of construction or obligation exactly as if they were in the Act, are to be of the same effect as if they are contained in the Act, and are to be judicially noticed for all purposes of construction or obligation. The principles of interpretation of subordinate legislation are applicable to the interpretation of statutory Notifications.

“If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the law-giver.”

In the current case, there is no ambiguity or scope for two interpretations. Hence, adopting the golden rule of interpretation the Court that there is no requirement of prior environmental clearance for expansion of a National Highway project merely because the distance is greater than 100 km.

“It is a cardinal principle of interpretation that full effect has to be given to every word of the Notification . Interpreting the Notification dated 22.08.2013 to mean that 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.”

Segmentation of National Highway projects beyond a distance of 100 kms

The Court agreed with the High Court that segmentation as a strategy is not permissible for evading environmental clearance as per Notifications dated 14.09.2006 and 22.08.2013 and was hence, of the opinion 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 requires to be examined by the expert committee.”

Conclusion

  • There is no requirement for obtaining environmental clearances for NH 45-A Villuppuram-Nagapattinam Highway as land acquisition is not more than 40 meters on existing alignments and 60 meters on realignments or by passes.
  • NHAI has to strictly conform to the Notification dated 14.09.2006 as amended by the Notification dated 22.08.2013 in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments.
  • Ministry of Environment, Forest and Climate Change, Government of India to 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
  • NHAI has to fulfil the requirement of reafforestation in accordance with the existing legal regime. There is an obligation on the part of the Appellant to plant ten trees for each felled tree.

[National Highway Authority of India v. Pandarinathan Govindarajulu,  2021 SCC OnLine SC 28, decided on 19.01.2021]


*Justice L. Nageswara Rao has penned this judgment

One comment

Join the discussion

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.