Development And Economic Growth Predominant Over Environmental Considerations: AG Defends Expansion Of National Highways In Supreme Court
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"Sustainable development requires balance. The country needs broad National Highways for goods and people to move up and down, as against environmental considerations. The former must be predominant over environmental considerations", told AG K. K. Venugopal to the Supreme Court on MondayThe bench of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi was hearing the NHAI's SLP against...
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"Sustainable development requires balance. The country needs broad National Highways for goods and people to move up and down, as against environmental considerations. The former must be predominant over environmental considerations", told AG K. K. Venugopal to the Supreme Court on Monday
The bench of Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi was hearing the NHAI's SLP against the January 8 decision of the Madras High Court staying the expansion of the NH-45A as part of the Centre's Bharatmala Pariyojana Project The bench was also hearing NHAI's challenge to the November 28, 2019 order of the Karnataka High Court granting interim stay on the work of widening National Highway-4A between Belagavi and Goa, till January 6. Subsequently, on March 9, the Karnataka High Court had noted, "We are told that the work of widening has been stopped and therefore, we are not passing any interim order".
As regards Bharatmala, the primary contention before the High Court was that in terms of the EIA Notifications, for the development of any National Highways for a length over 100 kms., environmental clearance based on an EIA study is mandatory- "Since, the total distance covered in the proposed expansion of NH-45A between Villupuram-Nagapatinam is 179.555 k.ms, obtaining environmental clearance is indispensable. It is to avoid obtaining environmental clearance, the entire distance of 179.555 km has been artificially and arbitrarily split up into four segments, ensuring in the process that each of the segment fell within 100 kms. as to avoid the mandatory EIA. This is contrary to the spirit behind the aforesaid notifications"
It may be noted that the notification in S.O.1533 issued by the Ministry of Environment and Forest, dated 14.09.2006, provides for mandatory environmental clearance for different categories of economic or socio-economic activity, and the need to make an Environment Impact Assessment (EIA) is sine quo non for the same. The schedule provided in this notification, lists different heads of activity. In this, the head in Sl.No.7(f) deals with the Highways. This notification inter alia requires that in cases of "Expansion of National Highways, greater than 30 k.m. involving additional right of way greater than 20m involving land acquisition and passing through more that one State", environmental clearance is required. Consequentially, EIA has to be undertaken. This notification was subsequently amended, Vide S.O.No.2559 (E) by the Ministry of Environment and Forest, dated 22.08.2013, as per which, environmental clearance is required only for the "Expansion of National Highways greater than 100 km involving additional right of way, or land acquisition greater than 40m on existing alignment and 60m on re-alignments or by-passes."
"There was no concept of environment before the Environment Protection Act of 1986...The government of India forwarded this proposal for the development of the country and the convenience of the people. They said that they will be a criss-cross of roads all over the country. So the National Highways were made four-ways", explained the AG.
"This is an existing road that goes throughout the country. One has to find out what is sustainable – needs of the economy, convenience of passengers travelling in cars, the carriage of goods, as against the environment. There has to be a balance", he continued.
"You can't travel fast on these roads...they have only two lanes. Four are needed. In other countries, there are eight or more. This is not an internal road I am talking about. If India is not able to produce a proper National Highway, it will be a sad day for the country!", advanced the AG.
"The development of industries, the movement of goods, the growth of the economy will all be cluttered and slow down", he submitted.
"There is 34,000 km of road in Bharatmala. The government of India has divided it on account of finances, men and material. There is no single contractor for any of the 3,400 roads. The NHAI has auctioned each of them separately. Each of the packages are within 100 km each. Only because of necessity, it is been given to separate road contractors.", explained the AG.
"The 2013 amendment will apply. If it applies, environmental authorities don't come in. Originally, it was 50 km. Then they made it 100. They said you can't widen the road more than that. The only question is that I should not be deliberately doing it to evade the procurement of permissions. Then I am not wrong", he said.
"In this country, progress will be saddled if I have to go before the authorities in each case. There will be an untold number of permissions and red-tapism!", argued the AG.
"For every tree fell, 10 trees have to be planted. Otherwise, we attract penalties under the Environment Protection Act. The tree-felling is on the National Highway, on government land, not public land. The local permissions are scientifically obtained wherever needed- clearance from the Forest Department etc. Monitoring is also there. We compensate the land owner and we are entitled to cut whatever is growing and no permission is needed to cut these coconut trees and all", he continued.
"The objections raised should not stand in the way of the larger public interest. Goods and passengers need to move comfortably for the development of the country", he urged.
As regards the Belagavi to Goa Highway, on February 24, the Karnataka High Court noted that the length of NH-4A which is taken up for widening may be more than 100 Kilometers stretching over Karnataka and Goa. "If that be so, it cannot be said that widening is undertaken for the length which is less than 100 Kilometers", the High Court had said. On March 9, the High Court expected the Union of India to take a clear stand whether environmental clearance is necessary for carrying out the work of widening of NH-4A.
"Please let the work continue. the machinery, workmen- all are just standing. There are immense losses! 70% of the work is complete!", prayed the AG.
The bench noted that the writ petition before the High Court complained that the environmental clearance was not taken for the expansion of the highway for a distance of 153.75 km. By the order dated October 31, 2019, the High Court had directed the Union of India to file the statement that the environmental clearance has been obtained, also clarifying the period of the environmental clearance. As an affidavit was not so filed, impugned order of November 28, 2019 was passed, granting interim relief.
The bench recorded that the AG has informed the court that the Ministry of Environment and Forests, on March 9, has clarified the position as regards the environmental clearance, stating that no clearance is required.
Accordingly, the bench directed the Karnataka High Court to dispose off the writ petition in two weeks, as that the project of the NHAI for the expansion of the National Highway is stalled.