Supreme Court Clarifies Environmental Clearance Norms for Highway Expansion Projects: National Highways Authority of India vs. Pandarinathan Govindarajulu & Anr. (2021) INSC 21

Date of the Judgment: January 19, 2021
Citation: (2021) INSC 21
Judges: L. Nageswara Rao, J., Hemant Gupta, J., Ajay Rastogi, J.
Can highway expansion projects be divided into smaller segments to avoid environmental clearances? The Supreme Court of India recently addressed this critical question, clarifying the norms for environmental clearances for national highway expansion projects. This judgment interprets the Environment (Protection) Act, 1986 and related notifications, focusing on the extent of land acquisition and project length that triggers the need for environmental clearance. The bench comprised of Justices L. Nageswara Rao, Hemant Gupta, and Ajay Rastogi, with the opinion authored by Justice L. Nageswara Rao.

Case Background

The National Highways Authority of India (NHAI) initiated a project to widen and improve National Highway 45-A from Villuppuram to Nagapattinam in Tamil Nadu and Puducherry. This project was divided into four packages. The NHAI began land acquisition for the project after receiving approval in March 2018. Aggrieved farmers and public interest litigants filed writ petitions in the High Court of Madras, challenging the project’s commencement without obtaining environmental clearance. The High Court ruled in favor of the petitioners, ordering the NHAI to halt the project, conduct an Environmental Impact Assessment (EIA) study, and obtain necessary environmental clearances.

Timeline

Course of Proceedings

The High Court of Madras ruled that the project could not proceed without an EIA study and environmental clearance. The High Court also directed the NHAI to obtain Coastal Regulation Zone (CRZ) clearances for two specific locations. The High Court further stated that if the EIA study indicated contra-indicators, the NHAI would be at liberty to make necessary modifications to make the project environmentally viable. The High Court also proposed to form a committee to monitor compliance of the direction to plant saplings of the same variety, preferably native-trees, for every tree felled. The High Court also directed that before resumption of the project, NHAI is required to approach the High Court.

Legal Framework

The Supreme Court examined the following legal provisions:

• Section 3 of the Environment (Protection) Act, 1986: This section empowers the Central Government to take measures for protecting and improving the environment. Specifically, Section 3(2)(v) allows for the restriction of areas where certain industries, operations, or processes can be carried out.
• Environment (Protection) Rules, 1986: These rules, made under Sections 6 and 25 of the Environment (Protection) Act, 1986, allow the Central Government to prohibit or restrict the location of industries and operations in different areas.
• Notification dated 14.09.2006: Issued under Section 3(2)(i) and (v) of the Environment (Protection) Act, 1986, this notification mandates prior environmental clearance for new projects or expansion of existing projects listed in its schedule. Item No. 7(f) of the schedule includes highways.
• Notification dated 22.08.2013: This notification amended the 2006 notification, specifying that expansion of National Highways greater than 100 km requires prior environmental clearance only if it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses.

The Court noted that statutory rules and notifications are to be treated as part of the statute and interpreted accordingly. The Court also stated that if the words of the statute are clear and unambiguous, the literal meaning has to be applied.

Arguments

Appellant (National Highways Authority of India)

• The project was divided into four packages for administrative convenience and to ensure speedy execution.
• Environmental clearance is not required as the additional right of way or land acquisition was not greater than the limits specified in the Notification dated 22.08.2013, even if the expansion of the National Highways is beyond 100 km.
• The project is of great importance for the movement of public goods and services, necessitating speedy execution.
• It would be difficult to get one concessionaire with the necessary finances to mobilize the required resources for the entire length of 179.555 km.
• The division of the project into four packages was done in public interest.
• The definition of “right of way” applies only to the construction of the road and not to other amenities such as toll plazas. However, the Appellant stated that it is willing to limit the construction of toll plazas and rest areas within the permissible limits if the Court does not agree with the above proposition.

Respondent (Pandarinathan Govindarajulu & Anr.)

• The project requires environmental clearance as it involves expansion of a National Highway beyond 100 km.
• The toll plazas proposed to be erected on the National Highways should be within the permissible limits specified in the Notification dated 22.08.2013.
• Segmentation of the project into four packages is a strategy to avoid environmental clearance, which is impermissible.

Ministry of Environment, Forest and Climate Change, Government of India

• Environmental clearance is necessary only if the expansion project pertains to a National Highway which is greater than 100 km and involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes.

Issues Framed by the Supreme Court

1. Whether prior environmental clearance is required for expansion of a National Highway project if the distance is greater than 100 km?
2. Whether segmentation of a National Highway project beyond 100 km is permissible to avoid environmental clearance?
3. Whether the “right of way” includes toll plazas and rest areas?

Treatment of the Issue by the Court

Authorities

Cases

• State of Tamil Nadu v. Hind Stone, (1982) 2 SCC 205 – Supreme Court of India: This case was cited to support the principle that a statutory rule or notification is to be treated as part of the statute.
• The State of Uttar Pradesh and Ors v. Babu Ram Upadhya 1961 SCR (2) 679 – Supreme Court of India: This case was cited to support the principle that rules made under a statute are to be treated as if they were in the Act.
• Bansal Wire Industries Ltd. v. State of U.P., (2011) 6 SCC 545 – Supreme Court of India: This case was cited to support the principle that the interpretation of subordinate legislation is applicable to statutory notifications.
• Sussex Peerage case (1843-60) All ER Rep 55 – This case was cited to support the principle that if the words of a statute are precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
• Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 – Supreme Court of India: This case was cited to support the principle that the words of a statute must prima facie be given their ordinary meaning.
• Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722 – Supreme Court of India: This case was cited to support the principle that the words of a statute must prima facie be given their ordinary meaning.
• South Central Railway Employees Coop. Credit Society Employees’ Union v. Registrar of Coop. Societies. (1998) 2 SCC 580 – Supreme Court of India: This case was cited to support the principle that full effect has to be given to every word of the Notification.
• CIT v. Surat Art Silk Cloth Manufacturers’ Association, (1980) 2 SCC 31 – Supreme Court of India: This case was cited to highlight the importance of the word “involving” in Item 7(f) of the Notification.
• Silppi Construction Contractors v. Union of India, 2019 SCC OnLine SC 1133 – Supreme Court of India: This case was cited to support the principle that in case of doubt, the interpretation of the author of the Notification has to be accepted.
• Old Town Neighborhood Association v. Kauffman, (S.D. Ind. 2002), Case No. 1:02-cv-1505-DFH – United States District Court for the Southern District of Indiana: This case was cited by the High Court to support the principle that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Commission of the European Communities v. Kingdom of Spain, Case C-227/01 – European Court of Justice: This case was cited by the High Court to support the principle that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 – Supreme Court of India: This case was cited by the High Court to reject the contention of the Appellants that the division of the project into four packages is for administrative expediencies.
• Citizens for Green Doon v. Union of India, 2018 SCC OnLine NGT 1777 – National Green Tribunal: This case was cited by the High Court to reject the contention of the Appellants that the division of the project into four packages is for administrative expediencies.
• Indian Council for Enviro-Legal Action v. Union of India, [(1996) 5 SCC 281] – Supreme Court of India: This case was cited to support the principle that 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.
• Vellore Citizens’ Welfare Forum v. Union of India, [(1996) 5 SCC 647] – Supreme Court of India: This case was cited to support the principle that the traditional concept that development and ecology are opposed to each other is no longer acceptable.

Legal Provisions

• Section 3 of the Environment (Protection) Act, 1986: Empowers the Central Government to take measures for protecting and improving the environment.
• Environment (Protection) Rules, 1986: Rules made under the Environment (Protection) Act, 1986, allowing the Central Government to regulate industries and operations in different areas.
• Notification dated 14.09.2006: Mandates prior environmental clearance for new projects or expansion of existing projects listed in its schedule.
• Notification dated 22.08.2013: Specifies conditions for environmental clearance for expansion of National Highways.

Judgment

The Supreme Court analyzed the submissions of all the parties and came to the following conclusions:

• Notification dated 22.08.2013 Interpretation: The Court interpreted Item 7(f) of the Notification dated 22.08.2013 to mean that prior environmental clearance is required for expansion of a National Highway project only if the highway is greater than 100 km and the additional right of way or land acquisition is greater than 40 meters on existing alignments and 60 meters on realignments or bypasses. The Court held that the word “involving” is of significance because in the absence of the requirement of an additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes, the expansion of National Highways which are greater than 100 km per se does not require prior environmental clearance.
• Segmentation of Projects: The Court held that segmentation of a project as a strategy to avoid environmental clearance is impermissible. The Court noted 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.
• Definition of “Right of Way”: The Court clarified that the “right of way” includes the existing National Highway and the additional right of way. It also includes toll plazas and rest areas.

The Court also noted the High Court’s concern regarding the Appellant’s failure to fulfill the requirement of reafforestation. The Court directed the Appellant to fulfil the requirement of reafforestation in accordance with the existing legal regime.

The following authorities were viewed by the Court in the following manner:

• State of Tamil Nadu v. Hind Stone, (1982) 2 SCC 205 – *[Followed]* The Court relied on this case to reiterate that a statutory rule or notification is to be treated as part of the statute.
• The State of Uttar Pradesh and Ors v. Babu Ram Upadhya 1961 SCR (2) 679 – *[Followed]* The Court relied on this case to reiterate that rules made under a statute are to be treated as if they were in the Act.
• Bansal Wire Industries Ltd. v. State of U.P., (2011) 6 SCC 545 – *[Followed]* The Court relied on this case to reiterate that the interpretation of subordinate legislation is applicable to statutory notifications.
• Sussex Peerage case (1843-60) All ER Rep 55 – *[Followed]* The Court relied on this case to reiterate that if the words of a statute are precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
• Dental Council of India v. Hari Prakash, (2001) 8 SCC 61 – *[Followed]* The Court relied on this case to reiterate that the words of a statute must prima facie be given their ordinary meaning.
• Harbhajan Singh v. Press Council of India, (2002) 3 SCC 722 – *[Followed]* The Court relied on this case to reiterate that the words of a statute must prima facie be given their ordinary meaning.
• South Central Railway Employees Coop. Credit Society Employees’ Union v. Registrar of Coop. Societies. (1998) 2 SCC 580 – *[Followed]* The Court relied on this case to reiterate that full effect has to be given to every word of the Notification.
• CIT v. Surat Art Silk Cloth Manufacturers’ Association, (1980) 2 SCC 31 – *[Followed]* The Court relied on this case to highlight the importance of the word “involving” in Item 7(f) of the Notification.
• Silppi Construction Contractors v. Union of India, 2019 SCC OnLine SC 1133 – *[Followed]* The Court relied on this case to reiterate that in case of doubt, the interpretation of the author of the Notification has to be accepted.
• Old Town Neighborhood Association v. Kauffman, (S.D. Ind. 2002), Case No. 1:02-cv-1505-DFH – *[Distinguished]* The Court distinguished this case, stating that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Commission of the European Communities v. Kingdom of Spain, Case C-227/01 – *[Distinguished]* The Court distinguished this case, stating that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 – *[Distinguished]* The Court distinguished this case, stating that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Citizens for Green Doon v. Union of India, 2018 SCC OnLine NGT 1777 – *[Distinguished]* The Court distinguished this case, stating that segmentation of a project as a strategy to avoid environmental clearance is impermissible.
• Indian Council for Enviro-Legal Action v. Union of India, [(1996) 5 SCC 281] – *[Followed]* The Court relied on this case to reiterate that 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.
• Vellore Citizens’ Welfare Forum v. Union of India, [(1996) 5 SCC 647] – *[Followed]* The Court relied on this case to reiterate that the traditional concept that development and ecology are opposed to each other is no longer acceptable.

“A plain reading of Item 7 (f) to the Notification dated 22.08.2013 would make it clear that expansion of a National Highway project needs prior environmental clearance in case (a) expansion of the National Highway project is greater than 100 km. and (b) it involves additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or bypasses.”

“We find force in the submissions made by the learned Attorney General that the word “involving” is of significance because in the absence of the requirement of an additional right of way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes, the expansion of National Highways which are greater than 100 km per se does not require prior environmental clearance.”

“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.”

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by a combination of legal interpretation, environmental concerns, and the need for balanced development. The Court emphasized the importance of a literal interpretation of the notification, while also recognizing the significance of environmental protection. The Court also recognized the need for development and the importance of National Highways for the movement of public goods and services. The Court also took into consideration the opinion of the Ministry of Environment, Forest and Climate Change, Government of India, which is the author of the notification.

Logical Reasoning

Directions of the Supreme Court

The Supreme Court set aside the judgment of the High Court of Madras and issued the following directions:

1. The Court held that prior environmental clearance is not required for the expansion of a National Highway project if the additional right of way or land acquisition is not greater than 40 meters on existing alignments and 60 meters on realignments or by passes, even if the expansion of the National Highways is beyond 100 km.
2. The Court directed the Ministry of Environment, Forest and Climate Change, Government of India to constitute an Expert Committee to examine the permissibility of segmentation of highway projects, and to issue appropriate directions in this regard.
3. The Court directed the Appellant to fulfil the requirement of reafforestation in accordance with the existing legal regime.
4. The Court clarified that the “right of way” includes the existing National Highway and the additional right of way, and it also includes toll plazas and rest areas.
5. The Court directed that the construction of the toll plazas and rest areas should be within the permissible limits specified in the Notification dated 22.08.2013.

Conclusion

The Supreme Court’s judgment in National Highways Authority of India vs. Pandarinathan Govindarajulu & Anr. provides crucial clarity on environmental clearance norms for highway expansion projects. The Court reaffirmed the importance of a literal interpretation of statutory notifications and emphasized that segmentation of projects to avoid environmental clearance is not permissible. The Court also recognized the importance of environmental protection while acknowledging the need for development. The judgment strikes a balance between these competing interests by clarifying the conditions under which environmental clearance is required for highway expansion projects. The Court’s direction to constitute an Expert Committee to examine the permissibility of segmentation demonstrates its commitment to finding a practical and environmentally sound approach to infrastructure development.

This judgment is significant for infrastructure development projects in India, particularly those involving highway expansion. The judgment clarifies the legal framework and sets a precedent for future cases involving environmental clearances for highway projects. It highlights the need for project proponents to adhere to environmental regulations and avoid strategies that may circumvent the requirements for environmental impact assessments. The judgment also underscores the judiciary’s role in ensuring that development projects are carried out in an environmentally sustainable manner.