The order came when a request for 3 weeks' adjournment of the hearing was made by Senior Advocate Colin Gonsalves, who appears for the petitioner-organisation 'Citizens for Green Doon', and SG Tushar Mehta vehemently opposed the same.
The bench of Justices Vineet Saran and Dinesh Maheshwari was hearing the matter. The bench will now take it up on Friday after ascertaining the position as regards the order of September 8, 2020, which requires the road to have a width of 5.5 m per the 2018 notification of the Ministry of Road Transport and Highways, and the subsequent amendment of the circular in 2020 to provide for a width of effectively 10 m, and if there is any interim stay.
At the outset, the Senior Advocate Colin Gonsalves, for the petitioner-organisation, sought an adjournment of the matter by 3 weeks. "The parties are quarantined in Uttarkashi. My office is also affected by COVID. We have been caught amid a lockdown and the papers needed to finalise the written submissions are stuck. People need time to recover", he advanced.
Opposing this request for adjournment, SG Tushar Mehta argued, "Whenever and wherever it is convenient, Mr. Gonsalves has been filing replies, written submissions. My objection is to the use of COVID in some matters! Please have it next week and let us be over with it! This matter involves questions of national security, it concerns roads on China border! "
"Which you have built! There was no stay! You have completed your work- that is your case! You have filed photographs before the court!", countered Mr. Gonsalves
"Is there any order of this Court stopping any activity?", asked the bench of Mr. Gonsalves.
When Mr. Gonsalves replied in the negative, the bench observed, "Then we will record this statement and have the matter after 3 weeks. Then why will the SG object?"
At this point, AG K. K. Venugopal submitted, "Your Lordships, there are convoys and troops to be taken to the Chinese border...If Mr. Gonsalves agrees that there is no stay and we can complete whatever work has not been completed, I have no objection to the matter being deferred by 3 weeks..."
"That is not what I said...But they say that they have been proceeding with the work at full speed! They have said on affidavit that they have completed many stretches and that they are still continuing the work!", pressed Mr. Gonsalves.
"So they can complete the work even if you seek adjournment?", asked the bench of Mr. Gonsalves.
"I don't want to say they are authorised because Justice Nariman's bench has ordered that...", Mr. Gonsalves began to reply. The Senior Counsel had sought to indicate the September 8, 2020 order passed by a three-judge bench headed by Justice Rohinton Nariman, directing 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. "Why are you referring to it as so-and-so's bench, so-and-so's bench? It is the SC's order!", commented the Court.
"It is unfair...", intervened the SG.
"There is no letter of adjournment before us...", said the bench.
"That is because people are in quarantine. Papers got stuck in the lockdown. Please give me 3 weeks' time", pleaded Mr. Gonsalves.
"We can't give that long. The AG is a very senior, respected person and if he is saying that the matter relates to border routes, we need to hear it expeditiously. Why should border routes be stopped?", remarked the bench.
"The matter has been going on for months! Why are they suddenly insistent on it being heard now?", urged Mr. Gonsalves, even as the SG commented that "COVID is being used selectively by the petitioners".
"Mr. AG, Mr. SG, we want to be clear about one aspect. Is there any interim order of this court anywhere staying anything?", asked the bench.
The AG replied, "By the original order of Justice Nariman's bench (of September 8, 2020), they have refused to permit us to broaden the roads. But that is on the basis of a 2018 notification issued by the Ministry of Roads which said that the width should be 5.5 m. That notification mentions 'hilly areas' generally. Thereafter, the Ministry of Roads has amended its notification on December 15, 2020. The amended notification says that so far as the roads for defence purposes, which go right up to the Chinese border, are concerned, we have to broaden the roads to 7 m. It says that width has to be 7 m with 1.5 m paved shoulder on either side...We have continued to construct, but..."
"There is an order which contemplates that they may do what they want- It says that if they want to change the standard, they may...But I have an interpretation and they have an interpretation...There is no stay order! And they have carried on merrily for 5 months, but now suddenly they are getting very excited!", argued Mr. Gonsalves. It may be noted that on December 2 last year, Justice Nariman's 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. Liberty was also given to the Ministry of Roads to amend its circular. "We all have many things to say!", retorted the SG.
The bench then asked the AG, the SG and Mr. Gonsalves to file before the court a convenience compilation of the 2018 and the 2020 notifications, the relevant applications and the orders that both sides wish to rely on and posted the matter on Friday.
"We will look into the interests of all parties. We only want to clarify what the order is. We just want to know what the order is", the bench said, putting the matter to Friday.
Background
On December 2, 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. During that hearing, Justice Nariman had noted that the road and the defence ministries "are not working in tandem with each other". 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. Liberty was also given to the Ministry of Roads to amend its circular. The MoRTH on December 15, 2020 amended its 2018 circular that formed the basis of the ongoing legal case. The 5.5 m maximum width limit for roads in hilly and mountainous areas is now effectively 10 m. "For roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border or are of strategic importance for national security, the carriageway width should be 7 m with 1.5 m paved shoulder on either side", the circular says. Referring to the 2018 circular 'Standards for lane width of national highways and roads developed under central sector schemes in hilly and mountainous terrain'- which the new circular now supersedes- the 2020 circular adds, "The standards have been further reviewed in the light of the issues raised by the Ministry of Defence. A committee of chief engineers considered the suggestions received and have recommended modifications to the standards"
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 Supreme Court on January 18 had listed the Char Dham Yatra road project for hearing on a Non-Miscellaneous Day, the interim order to keep the road width at 5.5m continuing in the meantime. The bench of Justice Nariman had noted that Mr. Gonsalves had filed objections to the majority report. Reportedly, the majority report also took into account the state government's focus on reversing the migration in border areas by providing ample livelihood opportunities and ease of transportation, and said that the latest MoRTH circular on wider roads, of December 15, 2020, amending its previous circular and increasing the road width in hilly and mountainous terrains along the Indo-China border from 5.5 m to 10 m, should be accepted. The majority report added it is not "feasible" to revisit the entire project where work is already completed and reduce the road width from 10 m to 5.5 m, underlining that it was "impractical" to reclaim the already tarred road because it will not be possible to grow trees on the excavated parts.
"Road width may be kept as approved for Char Dham with flexibility as per site conditions, considering the prior, during and post vulnerability of the terrain in the design, instead of restricting the road width," stated the majority report, adding landslides may have no direct connection with road cutting and constructions.
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.
In its affidavit, the MoRTH has urged the Supreme Court to accept the majority view of the high-powered committee (HPC), which has favoured a 10-metre road width for the Rs.12,000-crore Char Dham highway project. the ministry has pointed out that 21 out of 26 members of the court-appointed HPC have been in favour of the wider road to ease movement of military forces along the Indo-China border areas, and to ensure better amenities for local communities.
Reportedly, the application before the top court last year by the defence ministry, presented by solicitor general Tushar Mehta, said, "The roads should have capacity to facilitate movement of heavy vehicles carrying troops, self propelled artillery and various machinery required by the army. For this purpose a double lane road having a carriageway width of 7m (or 7.5m where there is a raised kerb) is necessary to meet requirements of the army. The very security of the nation is involved and it has become necessary to seek modification of the September 8 order."
The road ministry had claimed that a substantial reduction in the width of the road to 5.5m in terms of the 2018 circular at this stage will result in non-uniform carriageway width varying from 10m to 5.5m in short stretches. "This sudden change in road width in a short road length is not desirable from road users' safety perspectives and may lead to the formation of black spots and spurt in road accidents," said the ministry.
On February 17, the Centre told the SC that the assertions made by the HPC in the wake of the recent unfortunate disaster in Uttarakhand, where the members led by the Chairman have imputed blame to the Project, are not correct. Appearing before a bench headed by Justice Nariman, the Attorney General, for the Defence Ministry, took objection to the Chairman of the HPC, Ravi Chopra, writing a letter to the Government linking the Highway widening project to the recent flash floods on Dhauliganga river, which claimed many lives and damaged Tapovan hydro project. The AG termed the letter "unwarranted".
The Supreme Court had on September 8 directed that the width of hilly and mountainous terrains for the Char Dham Highway project to be constructed in accordance with the 2018 circular of the Ministry of Road Transport and Highways (MoRTH).
A 3-judge bench comprising of Justices Nariman, Sinha and Indira Banerjee took into consideration the current situation with regard to the eco system and fragility of the mountain terrains to order that the width of the road would remain at 5.5 metres.
A High Power Committee constituted by Supreme Court in August 2019 submitted a Report in July 2020 whereby 13 members recommended following standards prescribed in a circular from 2012 while 5 members, including the Chairman, were in favour of going ahead according to the 2018 circular.
The 2018 circular prescribes a width of 5.5 metres for the intermediate lane configuration along with two-lane structures for National Highways in hilly and mountainous terrains.
Solicitor General Tushar Mehta contended that it was only a minority view of the Committee that the 2018 circular be complied with. Adding that since the road covers the India-China Border, the terrain in question sees movement of Army vehicles. Therefore, he urged, the width of the carriageway must be 7 metres wide, not 5.5 metres.
Refusing to accept this submission, Justice Nariman asserted that "the 2018 circular will alone apply."
"Shri Tushar Mehta, learned Solicitor General, persisted with his arguments that the 2018 circular is only prospective in nature. We are well aware of the distinction between something which is retrospective in the sense that it applies for the first time to projects which are already completed as opposed to ongoing projects, where it is necessary to take stock of the current situation and then move forward. Having taken stock of the current situation and of the fragility generally of the eco system in mountain terrain, we are of the view that this argument has no legs to stand on." -Records the Order.
Appearing for the Citizens for Green Doon, the Petitioner NGO, senior advocate Sanjay Parikh apprised court of devastation caused to mountains as a result of violations of directions by authorities.
Recording that a "great deal of devastation has occurred in certain areas and that plantation should be taken up in right earnest", the Apex Court noted that "we have no doubt that this will be carried out" and disposed off the application.
The char dham project is a 900KM, all-weather highway project which connects four towns state of Uttarakhand including Yamunotri, Gangotri, Kedarnath and Badrinath.
On August 8, 2019, a bench comprising Justices R F Nariman and Surya Kant had modified the NGT order approving the Char DhamHighway project and constituted a High Powered Committee to assess and study the impact of the project on the Himalayan valleys.
In the meeting held on July 2020, the HPC could not reach a unanimous decision on the road width for the proposed highway, resulting in the matter reaching before the bench.
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