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Supreme Court Allows Defence Ministry's Plea To Allow Double Lane Widening Of Char Dham Highway Project

Mehal Jain
14 Dec 2021 5:27 AM GMT
Supreme Court Allows Defence Ministrys Plea To Allow Double Lane Widening Of Char Dham Highway Project
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The Supreme Court on Tuesday allowed an application filed by the Ministry of Defence for the double-lane widening of roads that are part of the 899-km Char Dham project in Uttarakhand.A bench comprising Justice DY Chandrachud, Justice Surya Kant and Justice Vikram Nath pronounced orders in the application filed by the Ministry of Defence seeking modification of the order dated September 8,...

The Supreme Court on Tuesday allowed an application filed by the Ministry of Defence for the double-lane widening of roads that are part of the 899-km Char Dham project in Uttarakhand.

A bench comprising Justice DY Chandrachud, Justice Surya Kant and Justice Vikram Nath pronounced orders in the application filed by the Ministry of Defence seeking modification of the order dated September 8, 2020, which was passed by a three-Judge Bench headed by Justice Rohinton Nariman, in order to permit the Union of India to make roads with 10 Meters tarred surface as opposed to the 5.5 meters as ordered by the Court.

The Court today modified the order dated September 8, 2020, and allowed the Defence Ministry to widen the road as sought. At the same time, the Court took note of the environmental concerns raised by the High Powered Committee and directed the Ministry of Defence and the Ministry of Road Transport and Highway to implement the recommendations made by the HPC.

The Court also appointed former Supreme Court judge Justice AK Sikri as the head of the oversight committee to oversee the implementation of the HPC recommendations.

The Court noted that the MoRTH circulars do not forbid the double-laning of roads in hilly and mountainous terrains if the roads are of strategic and border importance. The Court also noted that there cannot be judicial review over defence requirements.

The Court rejected the arguments raised by the applicant NGO "Citizens for Green Doon" that the Defence Ministry's application was based out of "mala-fides" and was an attempt to re-litigate issues already decided by the earlier bench.

"The bona fides of the MoD are also evident from the fact that the issue of security concerns was raised during the discussions of the HPC and finds mention in the HPC Report. Thus, the MoD has maintained the need for double-laned roads to meet border security concerns", the Court noted.

The bench also refused to accept the reliance placed by the applicants on a media statement reportedly made by the Army Chief in 2019 that the Chardham roads have sufficient width for security requirements.

"Armed forces cannot be put down to a statement made to media in 2019 as if it is a decree written in stone", the judgment authored by Justice Chandarchud observed.

The judgment extensively referred to the principle of sustainable development and the limited scope of judicial review over national security requirements.

"...it is evident that the national highways provide vital connections to the establishments of the Armed Forces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass and Lipulekh Pass. The importance of the requirement of double-laned highways has been emphasized as it is necessary for the movement of trucks, equipment and personnel of the Armed Forces", the Court noted.

Court cannot second guess infrastructural needs of the Armed Forces

"This Court, in its exercise of judicial review, cannot second- guess the infrastructural needs of the Armed Forces. The appellants would have this Court hold that the need of the Army will be subserved better by disaster-resistant roads of a smaller dimension. The submission of the appellants requires the Court to override the modalities decided upon by the Army and the MoD to safeguard the security of the nation's borders (it is important to remember that the MoRTH issued the 2020 MoRTH Circular based upon the recommendations received from the MoD). The submission of the appellants requires the Court to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation. This is impermissible".

Operative portion of the order

The operative portion of the order reads as follows :

"We allow the ministry of defence's miscellaneous application of 2020 by permitting the double lane paved shoulder configuration for the three strategic highways. At the same time we have also taken note of the environmental concerns raised by the HPC on its unanimous consideration of the project and the remedial measures recommended. We direct that they have to be implemented by the MORTH and Ministry of defence. In order to ensure implementation of these recommendations, we also set up an oversight committee which will directly report to this court. This committee shall be chaired by Justice AK Sikri. In order to enable the chairperson to receive technical assistance, he shall be aided by a representation of the national environment engineering research Institute, to be nominated by the director and a representative of the Forest research Institute, University of Dehradun. The oversight committee shall receive all logistical and administrative convenience from the union of India, MORTH, MOD, state of Uttarakhand. The MORTH and MOD shall also nominate nodal officers for rendering assistance, providing information and cooperating with the work of the committee. The district magistrates for the districts forming part of the project will also provide assistance to the committee

The objective of the oversight committee is not to undertake an environmental analysis of the project afresh but to assess the implementation of the recommendations of the HPC. A formal notification in this behalf shall be issued by the Union of India within two weeks. Within four weeks, the MoD and MORTH shall place before the committee the steps taken by them in pursuance of the HPC recommendations along with projected timelines for complying with the same. Monthly Reports of this nature shall be placed before the committee. The committee shall report to this court every four months. In case of any issue with regard to implementation, the chairperson shall be open to approach this court at anytime.

In terms of the 8 August 2019 order of this court, the HPC is directed to oversee implementation of its measures and suggest further measures. To avoid overlap , we clarify that the HPC shall continue with its work of overseeing the implementation of its recommendations, except the national highways from Rishikesh to Mana, Rishikesh to Gangotri, Tanakpur to Pithoragarh, which are now within the purview of the oversight committee. We allow the MA of the Ministry of defence, conditioned upon fulfilment of the conditions outlined".

Background

Attorney General KK Venugopal, appearing for the Union Ministry, argued that wider roads was important in the region for security purposes, especially in the wake of Chinese build-up at the border. The bench had reserved orders on November 11. During the hearing, the bench had

The September 8, 2020 order, passed in a writ petition filed by an NGO "Citizens For Doon", directed that the roads in hilly and mountainous terrains for the Char Dham Highway project are to be constructed in accordance with the 2018 circular of the MoRTH and hence, the width of the road would remain at 5.5 metres. On December 2, 2020, before the Supreme Court, the Defence Ministry had sought wider roads for national security, arguing that the three national highways- Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh- lead up to the northern border with China and act as feeder roads.
The bench had asked the court-appointed High-Powered Committee to meet and look into the applications filed before the Court by the Ministry of Defence, against reducing the road width, in two weeks.
Reportedly, the HPC also submitted its report in two parts – the majority report and minority report, dated December 31, 2020. In its report to the SC, the high-powered committee presented a divided opinion with the majority in favour of the wider roads on the Char Dham route, considering the strategic requirement and snow removal needs. The minority group comprised high-powered committee chairman Ravi Chopra, who is a noted environmentalist, and two other members, however, expressed their dissent and maintained that the road width should be restricted to 5.5 m.
The AG submitted that the 2018 circular titled 'Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains - Reg' was for national highways all over the country- "This did not take note of the special requirement of the road which goes upto 17,000 feet from the plains. Therefore, it does not account for the purpose of transport of heavy machinery, artillery, tanks etc to the Chinese border and the problem which we were facing from across the border. This is general in character, not focused on anything in relation to the military's needs of taking their machinery, troops, supplies, long line of trucks, clothes, equipment, food, water to inhospitable terrains for the purpose of defending the country!"
"The 2018 circular is a far-cry from what the army wants…the Army will not take 7000 curves to reach the top of the Chinese border. When a confrontation arises, it becomes very serious! At that stage, vehicles should move continuously one behind the other. 2018 is irrelevant in view of what we are facing today and the needs of the army today", he continued.
Senior Advocate Dr Colin Gonsalves, appearing for the NGO, had argued that the widening of the roads in the hilly terrain can give rise to ecological problems.
Case Title : Citizens for Green Doon and others versus Union of India and others
Citation : LL 2021 SC 737


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