Segmentation Of A (National Highway) Project As A Strategy To Avoid Environmental Clearance Impermissible : Supreme Court

The Supreme Court has held that 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.

The bench headed by Justice L. Nageswara Rao, allowing the appeal filed by National Highway Authority of India, set aside the Madras High Court judgment which had held that it is necessary.

The court also observed that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment. The bench, also comprising Justices Hemant Gupta and Ajay Rastogi, therefore 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.

Referring to the EIA notification, the bench observed 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.

The project proponent is obligated to obtain prior environmental clearance only the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or by passes for a National Highway project which 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.

Development and environment must go hand in hand

The bench also added that the development and environment must go hand in hand. It said:

"While economic development should not be allowed at the cost of ecology or by causing widespread environmental destruction, the necessity to preserve ecology and environment should not hamper economic and other development. Both development and environment must go hand in hand. In other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. The traditional concept that development and ecology are opposed to each other is no longer acceptable....
Apart from providing smooth flow of public goods and services which contribute to the economic growth, highways also benefit regional development in the country. In the normal course, impediments should not be created in the matter of National Highways which provide the much-needed transportation infrastructure. At the same time, protection of environment is important."

Expert Committee should examine the permissibility of segregation

However, the court agreed with the High Court view that if the project proponent is permitted to divide projects having a distance beyond 100 km into packages which are less than 100 km, the Notifications dated 14.09.2006 and 22.08.2013 will be rendered redundant.

"In that event, administrative exigencies and speedy completion will be a ground taken for justifying the segmentation of every project. Therefore, we are in agreement 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. "
Having held that adoption of segmentation of a project cannot be adopted as a strategy to avoid environmental clearance impact assessment, the question that arises is whether segmentation of a National Highway beyond 100 kms is impermissible under any circumstance. As we lack the expertise of deciding upon this issue, we are of the considered view that an expert committee should examine the permissibility of segregation."

The court also clarified that the right of way is the total land width required for the project Highway to accommodate right of way, side drains, service roads, tree plantations, utilities etc., toll plazas and rest houses should be included in the "right of way". we hold that the "right of way" includes the existing National Highway and the additional right of way.

While disposing the appeal, the bench also directed NHAI to strictly conform to the EIA notifications in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments, and also to fulfil the requirement of reafforestation in accordance with the existing legal regime. 

Case: NATIONAL HIGHWAYS AUTHORITY OF INDIA vs. PANDARINATHAN GOVINDARAJULU  [Civil Appeal Nos. 4035-4037 of 2020] 

Coram: Justices L. Nageswara Rao, Hemant Gupta and Ajay Rastogi

Counsel: AG KK Venugopal, Adv A. Yogeshwaran

Citation: LL 2021 SC 26

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