The notification issued under Section 3A of the National Highway Act 1956 for acquiring land for the ambitious Chennai-Salem 8 lane National Highway was quashed by a division bench of the Madras High Court yesterday.
The notifications were quashed on the main legal point that prior environmental clearance under the Environment Protection Act 1986 was necessary before acquiring land for the Rs.10,000 crores project for 270 kilometers highway. The Division Bench of Justices T S Sivagnanam and V Bhavani Subbaroyan rejected the argument advacned the Centre, Tamil Nadu Govt and National Highway Authority of India that environmental clearance was not needed at the time of "securing" the land for highway construction and that it was needed only at the time of actual laying of the road. The Court termed this argument as "putting the cart before the horse".
The judgment was delivered in a batch of petitions challenging the acquisition notifications. The petitioenrs contended that the Section 3A notification was issued while application for environmental clearances were pending before the Ministry of Environment and Forests. They questioned the wisdom of the project saying that the objective can be achieved by widening existing routes, and a project of huge magnitude was wholly unnecessary. They further alleged that the large scale project was hastily announced with a hidden agenda to facilitate the acquisition of lands having rich mineral deposits by a private company.
Environmental Protection Act takes precedence over NH Act.
The conclusion of the Court was based on the fact that large tracts of agricultural lands and forest lands were proposed to be acquired for the project. The Court said that the issue has to be approached applying the "public trust doctrine", as per which the State holds public land and resources at trust for benefit of people. The Court put particular emphasis on the fact that the acquisition will impact large tracts of fertile farm lands.
"What has been lost sight of is the fact that agriculture is the main part of the economy and source of livelihood of rural India. The land of an agriculturist is vital to sustain his livelihood. India being predominantly an agricultural society, there is a strong bond between the land owner and his land. The land provides dignity for the person. It provides a source of livelihood.
Therefore, any dent on this source of livelihood should be viewed with utmost seriousness. If the State fails to do so, it will be failing in the public trust reposed on it. The State being the trustee is bound to protect life and livelihood of agriculturists. It is bound to protect the natural resources, the forest, flora and fauna. If there is failure to do so, it will result in disastrous consequences much of which will be irreversible. Therefore, in our view, the issue as to whether prior or post, environmental clearance is required to be decided on a case to case basis", observed the Court.
Based on this, the Court rejected the argument that the EIA notification will not take precedence over NH Act.
"we out-rightly reject the plea of the respondents that the notification issued under the Environmental Protection Act cannot take precedence over the National Highways Act or the National Highways Authority of India Act. As pointed out earlier, protection of environment stands in a higher pedestal when placed on scale with that of the economic interest"
This conclusion was based on the reasoning that Environmental Protection Act was a substantive law enacted as per international treat obligations with specific intention of preventing environmental degradation, whereas NH Act was a mere procedural law.
"the interpretation that is to be given to a notification issued under Section 3 of the Environmental Protection Act, undoubtedly, should rule supreme, over other procedural laws including the National Highways Act, which provides for procedure for acquiring land to build, maintain or develop a National Highway"
This conclusion was further fortified by the fact that the project was a "Green Field Project" for forming a new road through a virgin land, and not a project for widening an existing road.
"to state that Environmental Impact Assessment is required to be done only when the road is to be formed is virtually amounting to "putting the cart before the horse".
Lack of prior EC violates principles of sustainable development
The Court also noticed that the respondent had not disclosed the proposed plans for rehabilitation and resettlement of people who will get displaced.
"The counter affidavits filed by the respondents do not disclose as to what are the plans which are in the pipeline for rehabilitation and resettlement of the persons, who are likely to be displaced. The only stand taken by the respondents is by contending that the time has not come to consider those aspects. We are not convinced with these answers given by the respondents".
"Thus, considering the peculiar facts of the instant case, magnitude of the project, the proposed alignment, which admittedly cuts across the Forest land, water bodies, big and small fertile agricultural lands etc., it is necessary that prior environmental clearance is required before the respondents proceed further, pursuant to the notification under Section 3A(1) of the Act".
"As pointed out earlier, the balance between agricultural development and economic development is delicate may at times very difficult for the bureaucrats and policy decision makers to perceive. Thus the interpretation, insofar as India is concerned, should lean towards agriculture. Therefore, we are of the clear view that if the project is allowed to be implemented without prior environmental clearance, it would be grossly in violation of the principles of sustainable development and would violate the provisions of Articles 19, 21, 46, 48A and 51A of the Constitution of India" ,observed the judgment authored by Justice Sivagnanam.
"Cut-paste" report of project consultant scrapped.
The Court found fault with the tender process followed by NHAI for selecting the project consultant, which prepared the feasibility report and detailed project report. The tender was floated for another project, Chennai-Trichy-Madurai and M/s Feed Back Infra was selected. But this consultant was given the project work of Chennai-Salem project, without any written orders.
From a consideration of the report and other factors, the Court noted that the project report was executed in "great haste". The project report was found to have followed "cut-paste" approach, as there were references to Bangalore and a town in China in the report.
"We may not agree with the contention of the learned counsel for the petitioner that the report is plagiarized, but what is evident is that there has been non-application of mind and presumably, the report was required to be prepared within a short period for reasons best known. Therefore, the report prepared by the Consultant needs to be scraped", noted the Court in the 117-page verdict.
The Court noted that the draft feasibility report had referred to the merits of developing the three existing routes. That would not entail large scale acquisition and will not affect forest land. However, these aspects were not seen discussed in the final report.
"we find that the merits in the existing three routes are far superior and higher than the merits in respect of the proposed alignment, more particularly when the Consultant themselves have stated that by improving the existing routes the average travel time can be reduced. Furthermore, it is admitted that acquisition of forest land is very difficult and it is a lingering process and the proposed access controlled Green Field Highway is difficult to access for a common man" noted the bench.
No benefits to common man
The Court also noted that the proposed Green Field Highway with closed toll policy system is difficult to access for a common man.The NHAI stated that the road is an access control road to mean that the road is accessible only at designated spots which appears to be in four to six places between Chennai and Salem.
"it is hard to believe that a small businessman in Vandavasi or Polur would stand benefited on account of this express way, where the traffic is zipping in speeds over 120 kms and to reach the small towns and villages, one has to travel several kilometres to take a spur and drive back to these small towns. Therefore, the projection made by NHAI, as to the benefits of the project highway appears to be illusory"