National Green Tribunal
R Meerakani vs Ministry Of Environment Forest And ... on 24 January, 2023
Author: Satyagopal Korlapati
Bench: Satyagopal Korlapati
BEFORE THE NATIONAL GREEN TRIBUNAL
SOUTHERN ZONE, CHENNAI
Original Application No. 64 of 2022 (SZ)
(Through Video Conference)
IN THE MATTER OF
R. Meerakani
S/o M. Resavu Mohideen,
Aged about 55 years,
No. 6/1/93, Achanputhur, Kadayanallur Taluk,
Thenkasi District.
...Applicant(s)
Versus
1. Union of India
Rep by its Secretary,
The Ministry of Environment, Forests and Climate Change,
Jorbagh, New Delhi.
2. The National Highways Authority of India,
Rep by its Regional Officer/Projet Directors,
No.1, Lake Road, Melur Main Road,
Mattuthavani.
...Respondent(s)
For Applicant(s): Mr. A. Yogeshwaran,
For Respondent(s): Mr. G.M. Syed Nurullah for R1.
Mr. Su. Srinivasan for R2.
Judgment Reserved on: 15th December, 2022.
Judgment Pronounced on: 24th January, 2023.
CORAM:
HON'BLE SMT. JUSTICE PUSHPA SATHYANARAYANA, JUDICIAL MEMBER
HON'BLE DR. SATYAGOPAL KORLAPATI, EXPERT MEMBER
JUDGMENT
Delivered by Smt. Justice Pushpa Sathyanarayana, Judicial Member
1. The proposed four lane project notified as National Highway-744 (NH-
744) running between Thirumangalam in Tamil Nadu to Kollam in Kerala for a total length of 231 km of which 150 km is in Tamil Nadu and 81 km in Kerala is the subject matter of the application. The road which runs through the Western Ghats to enter Kerala is sought to be made into four lane highway by the National Highway Authority of India (NHAI).
12. The 1st objection of the applicant is that the NHAI, which is the 2 nd respondent, is attempting to construct the highway without Environmental Clearance. The 2nd aspect is that the proposed highway project is not an expansion under the EIA Notification but a new highway. In this regard, it is stated that the existing road is not a highway constructed with the clearance under the EIA Notification. Hence, the impugned project cannot be called as an expansion. The proposed project is not along the existing road but running on a new alignment for 110.27km between Thirumangalam to Shencottai. Therefore, when it is a new road it cannot be called as an expansion.
3. Even presuming that it is an expansion, it is not falling within the parameters provided in entry 7(f) of the EIA Notification, 2006 as it involves land acquisition greater than 40 meters on existing alignment and 60m on new alignments and the length of the project highway is greater than 100km. It is further stated that any road can be declared as a National Highway by notification under Section 2 of the Highways Act, 1956 but it is only for the purpose of administration and management. Therefore, the present road cannot be deemed to be a highway in existence.
4. Since, the existing road is 5 to 10 meter wide, two lane road and not built according to the IRC standards with the Environmental Clearance this will be the first time that a wide four lane highway is proposed and the first time that the highway is subjected to Environmental Clearance. Therefore, it should be deemed only as a new project and not an expansion.
5. The next ground is the segmentation of the highway into pieces to circumvent the EIA Notification, 2006 which is deprecated by the Hon'ble Supreme Court. In the present project also, the respondent has segmented the single homogenous highway into 04 segments for the purpose of preparation of project reports and implementations. The length of each segment is less than 100km and the respondent is attempting to claim that since each segmentation is less than 100km, they are entitled to exemption in entry 7(f). Therefore, it is stated that the entire project highway is greater than 100km attracting Environmental Clearance.
26. The next aspect highlighted by the applicant is that the land acquisition for the proposed project is greater than 40m and 60m. In this regard, it is pointed out that the maximum width of 40m along the existing alignment and it should be 60m in new alignments to claim exemption under entry 7(f). But in the instant case, the lands have been acquired beyond the prescriptions. The lands with width of more than 90m have been acquired and it is also pointed that where land more than 100m has been acquired in Thirumalainayakan Puthukudi Village. Therefore, it is stated in the Original Application that if it is a new highway, it requires the Environmental Clearance under Entry 7(f) of the Notification or even if considered as an expansion project it requires Environmental Clearance.
7. The next allegation is that the NHAI has not considered the other alternative to the proposed widening of the road. Hence, the applicant seeks a direction to the 2nd respondent to obtain Environmental Clearance under 7(f) of the EIA Notification, 2006 for the proposed project for the construction of a 04 lane highway between Thirumangalam to Kollam.
8. In response to the above application, the 1st respondent, namely, MoEF&CC has filed the counter wherein it is stated that under clause
(v) of Sub-Section (2) of Section 3 of the Environment (Protection) Act, 1986, the Central Government has powers to make rules for carrying out the purposes of the said Act. While exercising the powers conferred under the Act, the Ministry had issued the Environment Impact Assessment Notification S.O.60 (E) dated 27.01.1994 mandating 32 categories of projects listed in Schedule-I to obtain prior Environmental Clearance based on the investment criteria. Further, the Environmental Impact Assessment was made a statutory requirement for certain category of construction and development activities through amendment dated 07.07.2004 in the EIA Notification, 1994. Finally, the Notification No. S.O.1533 (E) dated 14.09.2006 was issued in suppression of the earlier notification. After the EIA Notification, 2006 was issued all new project activities listed in the Schedule or the expansion/modernization of the existing projects with additional capacity beyond the limits specified in the concerned sector have to obtain prior Environmental Clearance from the Central Government or by the SEIAA. The highways are covered under Entry 7(f) in the schedule. The MoF&CC also reiterated the said provision in Entry 7(f) and stated that only such projects that meet both 3 the conditions i.e. the threshold length of the highway and envisaged expansion width of the highway would require a prior environmental Clearance from the 1st respondent.
9. The 2nd respondent, which is the National Highway Authority of India (NHAI), has filed a counter affidavit in which it is stated that from Rajapalayam to Shencottai section of National Highway-744 has been included in Bharatmala Pariyojana by Government of India as feeder routes. The project alignment has been finalized after studying various options and had submitted the most feasible alignment proposal considering minimum damages to environment and minimum social impact. The competent Authority had reviewed it principally and had approved alignment as early as in 2018. It was once again reviewed in 2019. The land acquisition Committee of NHAI had approved the project on 18.05.2020 with 45m Right of Way in the approved alignment. Based on the representations from the group of people who represented that a large portion of wet land and wildlife has been affected in the alignment the issue was referred to Government of Tamil Nadu. The issue on project alignment was reviewed by the Government of Tamil Nadu and it was recorded that no change in approved alignment may be resorted to at this stage and asked the Project Director to finalise the 3D proceedings as per the above alignment. Even after that the same group of people had sent representation to various levels in the State and Central Government. Based on their request the Government of Tamil Nadu had directed to constitute a committee to examine the request of the applicant. The Committee had examined the alternate alignments proposed by the applicant in various aspects against the alignment proposed by the NHAI and concluded that the alternate alignment is not possible as it will not serve the purpose of the project, namely, connecting two major towns. Thus, the Committee had confirmed and recommended that the alignment already proposed by the NHAI may be implemented. Accordingly, the concurrence from the Government of Tamil Nadu was accorded on 27.01.2022 to implement the project of formation of four laning of Rajapalayam to Shengottai section. On receipt of the said concurrence from the State Government the boundary stones were fixed and notification under Section 3D of National Highways Act, 1956 have been published by various publications finally on 16.05.2022.
10. The 2nd respondent had further stated that four laning project proposed between Rajapalayam to Shengottai of NH-744 is only 68.24km in 4 length. As the distance of 100km is important as expansion of National Highways below 100km needs no prior Environmental Clearance. The section of National Highway from Rajapalayam to Shengottai was already declared as National Highway under Section 2 of the National Highways Act, 1956. Therefore, it cannot be considered as a new national highway and it is only an expansion of the existing national highway. Since, the existing road could not be widened due to having continuous built up areas, sharp curves, poor geometry etc., it has been proposed to bypass for a length of 62.684 km and 5.5 km on the proposed existing road which includes realignment of 1.1km.
11. The second respondent has further stated that expansion of Thirumangalam to Rajapalayam is in advance stage for which a contractor has been appointed and expansion of the stretch between Shencottai to Kerala has not been initiated so far. Further, the stretch from Kerala border to Kollam section of NH-744 is also yet to be taken up and have furnished the details of the project and present status in their counter. The 2nd respondent categorically states that every road widening project involves various steps for implementation such as preparation of Detailed Project Report, alignment finalization, land acquisition committee approval, acquisition of land under National Highways Act, 1956, financial approval, bidding process, award of project etc., and all projects could not be taken up as a single project by the Government of India considering the various activities involved in the project execution and financial requirement of the projects.
12. Further, there is no necessity for combining all the projects. The lands have been acquired with the Right of Way of 45m only i.e., additional Right of Way is less than 30m in existing road and 45m in new alignment/bypass. However, in certain places additional lands have been acquired for Toll plaza, junction improvements, wayside amenities and others. All the lands for road related infrastructures including Toll plaza will be included in the acquisition plan of the project. It is specifically stated that even though the total length of the Nh-744 i.e. Thirumangalam to Kollam is 206 km, this four laning project proposed for Rajapalayam to Shencottai section is only 68.284 km length which needs no prior Environmental Clearance.
13. A Rejoinder has been filed by the applicant to the counter filed by the 2nd respondent. In the rejoinder it is stated that exemption in the 5 EIA Notification was introduced by the amendment dated 22.08.2013 applies only to the highways that have obtained Environmental Clearance. But the present Nh-744 expansion project is being undertaken for the entire highway and the attempt of the respondent to state that the segment between Rajapalayam to Shegottai is less than 100km and that does not require Environmental Clearance is unsustainable. It was reiterated that since segmentation is not permissible as per NHAI vs. Pandarinathan Case, the NHAI though can spilt the contracts for speedy implementation, segmentation cannot be allowed. The claim of the NHAI that they are at liberty to acquire extra land for toll plaza etc., is also not acceptable as all such infrastructure has to be accommodated within the limits specified even for expansion projects. In this case, the NHAI has acquired the land far in excess of the stipulation in the amendment dated 22.08.2013. Hence they cannot claim exemption from obtaining Environmental Clearance under this project.
14. The 2nd respondent has filed an additional reply to the rejoinder filed by the applicant. In the additional reply, the 2nd respondent has stated that road widening project involves various steps and it is not possible to take up all lengthy projects like national highway in a single project considering the various activities involved in the execution and the financial implication. Therefore, they will be segmented into various partitions. In the instance case, the NH-744 is also having total length of 206 km from Tamil Nadu to Kerala. It is very difficult to execute the project without any segmentation since its implementation involves various steps and huge financial investment and concurrence of various District Collectors, their recommendations and approval of the State Governments. The segmentation of national highway is very common for the purpose of smooth execution, maintenance and timely operation of the national highway and it cannot be termed as illegal. It is stated that land has been acquired with the Right of Way of 45m only i.e. additional Right of Way is less than 30m in existing road and 45m in new alignment. Only in certain places additional lands have been acquired for toll plaza, junction improvements and other amenities.
Discussions:
15. Whether the proposed National Highway project requires an Environmental Clearance?6
16. The Learned Counsel appearing for the applicant contended that NHAI is constructing a highway without obtaining Environmental Clearance under the EIA Notification, 2006. The exemption granted to expansion of National Highway under 7(f)(ii) of the Schedule to the notification has to be interpreted strictly. It was submitted that granting exemption for an expansion without certain threshold might be because the original project in existence would have obtained clearance after following the procedure.
However, the existing road not being a highway would not have been assessed for its environmental and social impact and hence the exemption clause cannot be made applicable.
17. In this regard, the EIA Guidance Manual for highway published by the MoEF&CC states that "in case of expansion/modification of the project, the environmental compliance status for the existing project should be furnished for the following: status of Environmental Clearance and conditions compliance for the existing project as applicable". Hence "expansion" as envisaged under EIA Notification, 2006 is only for the projects which already had obtained Environmental Clearance.
18. To be noted in this regard is that item 7(f) to the EIA Notification dated 14.09.2006 as amended by notification dated 22.08.2013 was substituted as follows: expansion of National Highway greater than 100 km involving additional Right of Way or land acquisition greater than 40 meters on existing alignments and 60 meters on realignments or by passes (No specific ToR required for this item). Therefore, it is pointed out that expansion of National Highway below 100 km needs no prior Environmental Clearance nor the projects having greater than 100 km, however involving additional right of way or land acquisition is less than 40 meters on existing alignments and less than 60 meters on realignments or by passes do not require prior Environmental Clearance. It is pointed out that in the instant project additional Right of Way is less than 30 meters on existing road and 45 meters in new alignment/bypass except toll gate location and junction improvements.
19. The stretch of Thirumangalam to Rajapalayam is having the length of 71.200 km and Rajapalayam to Shencottai of NH 744 is having length of 68.284 km. The NH 744 from Rajapalayam to Shencottai is already declared as National Highway under Section 2(2) of National Highways Act, 1956. Once highways are declared National Highway, it always remains National Highway irrespective of its width and length as Section 7 2(2) of National Highway Act does not prescribe width or length. Therefore, once it is declared as National Highway the expansion for widening or realignment cannot be considered as a new National Highway. It is pointed out that the existing road could not be widened as it is because of ribbon development i.e. building of houses and structures on both sides of the highway. The ribbon development on short curves and poor geometry etc., often lead to regular traffic congestion, road accidents, reduced carrying capacity of arterial roads and uneconomic extension of utilities. Hence, it was proposed to bypass for a length of 62.684 km and 5.5 km on the existing road which includes realignment.
The said arrangement would save a large number of structures/commercial activities in the existing National Highway so as to reduce demolition of these structures and displacement of several families depriving their livelihood. Further the reduction of Right of Way from 60 meters to 45 meters across the stretch would save vast extent of agricultural lands.
20. It was pointed out by the Learned Counsel Mr. Su. Srinivasan that there were several representations received requesting change of alignment stating that large wet land and wildlife is affected in the alignment. The issue was escalated to the Chief Secretary, Government of Tamil Nadu and was decided that no change in approved alignment may be restored and directed SDRO to finalise the 3D as per the approved alignment. The Competent Authority directed to stop the project activities in High- Priority-II including Rajapalayam-Shencottai project and directed to get approval of Land Acquisition Committee for further proceedings. This resulted in the lapse of Section 3D Notification published on 09.10.2018 since, Section 3D Notification could not be published within the prescribed time. Later the Land Acquisition Committee of NHAI approved the project on 18/05/2020 with 45 meters Right of Way reducing it from 60 meters in the approved alignment. In view of the above fresh Section 3A Notification was issued on 21.05.2021 followed by notification under Section 3D of National Highways Act, 1956 published on 16.05.2022.
21. In the EIA amendment notification, 2013 there is no specification that either alignment or bypasses should have or should not exceed any particular stretch in the threshold limit of 100 km for getting prior Environmental Clearance. In the absence of such condition in the amendment notification merely because major part of expansion is passing through the bypasses the existing National Highway cannot be 8 considered as new National Highway or it requires prior Environmental Clearance. Sub-Clause (ii) of Clause 2 of the EIA Notification states that "Expansion and modernization of existing projects or activities listed in the Schedule to this notification with addition of capacity beyond the limits specified for the concerned sector, that is, projects or activities which cross the threshold limits given in the Schedule, after expansion or modernization". The above clause cannot be made applicable to National Highways expansion activities as the said clause is applicable only for polluting industries. Clause 7(ii) provides for prior Environmental Clearance process for Expansion or Modernization or Change of product mix in existing projects. This clause also refers to seeking prior Environmental Clearance for expansion with increase in the production capacity beyond the capacity for which the prior Environmental Clearance has been granted under this notification or with increase in either lease area or production capacity in the case of mining projects or for modernisation of existing unit with increase in the total capacity beyond the threshold limit prescribed in the schedule to the notification through change in process or technology or involving a change in the product-mix shall be made in Form I and that shall be considered by the concerned Expert Appraisal Committee or State Level Expert Appraisal Committee within 60 days, who will decide on the due diligence necessary including preparation of EIA and public consultations and the application shall be appraised accordingly for grant of Environmental Clearance. The above clause also refers to the increase in production capacity in the mining projects, modernisation in the increase in the total production capacity or change in process or technology involving change in the product-mix. Therefore, the above clause is not applicable to the National Highway expansion activities since it refers only to polluting industries.
22. Prior Environmental Clearance is required only for the project activities listed in the schedule. In Schedule 7(f) of the amendment notification dated 22.08.2013, it is stated that "expansion of National Highways greater than 100km involving additional Right of Way or land acquisition greater than 40m on existing alignments and 60m on realignments or bypasses". The above said amendment was finalised on 22.08.2013 in S.O. 2559(E) based on the recommendations of the High Level Committee appointed by the Ministry of Environment, Forest and Climate Change under the Chairmanship of member Planning Commission after considering the relevant factors including the environmental protection and infrastructural development.
923. In EIA Notification dated 22.08.2013 it was stated as follows:
"And whereas the Government of India in the Ministry of Environment and Forests had constituted a High Level Committee under the Chairmanship of Member (Environment and Forests and Science and Technology), Planning Commission, vide OM No.21-270/2008-IA.III dated the 11th December, 2012 to review the provisions of Environmental Impact Assessment Notification, 2006 relating to granting Environmental Clearances for Roads, Buildings and Special Economic Zone projects and provisions under the OM dated the 7 th February, 2012 issued by the Ministry of Environment and Forests regarding guidelines for High Rise Buildings;
And whereas one of the terms of reference (ToR) of the Committee was to review the requirement of Environmental Clearance for highway expansion projects upto the right of way of 60 meters and length of 200 kms under Environmental Impact Assessment notification;
And whereas the Committee has submitted its report to the Ministry and on this ToR, the Committee has recommended exempting highway expansion projects from the requirement of scoping and that Environmental Impact Assessment or Environment Management Plan for highway expansion projects may be prepared on the basis of model ToRs to be posted on Ministry's website and in respect of requirement of environmental clearance, the Committee has recommended that expansion of National Highway projects up to 100kms involving additional right of way or land acquisition upto 40 mts on existing alignments and 60 mts on re-alignments or by-passes may be exempted from the purview of the notification;
And whereas the report of the Committee has been examined in the Ministry of Environment and Forests. Earlier, vide notification S.O. 3067(E), dated the 1st December 2009 all State Highway expansion projects, except those in hilly terrain (above 1000m AMSL) and ecologically sensitive areas, have already been exempted from the purview of the Environmental Impact Assessment Notification, 2006".
24. From the above it is clear that exemption is given for speedy implementation of the highway projects involving the length less than 100kms and additional Right of Way of 40 meters on existing alignments and 60 meters on realignments from the purview of the EIA Notification, 2006.
25. Whether Segmentation of the Highway is permissible?
26. The above question is no longer res integra. As mentioned above the project is running between Thirumangalam to Kollam in Kerala for a total length of 231 km of which 150 km is in Tamil Nadu and 81 km in Kerala. It is stated by the NHAI that expansion of the proceeding stretch i.e. Thirumangalam to Rajapalayam (2 packages) is in advance stage for which a contractor have already been appointed and expansion of succeeding stretch i.e. from Shencottai to Kerala border has not been initiated so far. Further, the stretch from Kerala border to Kollam section of NH-744 is also yet to be taken up as per the details given below:
S.No. Name Section Length Present Status
1. Thirumangalam to 36.0 Km Work awarded to Contractor in the year
Vadugapatti Section 2021-22 under EPC mode.
10
2. Vadugapatti to 35.2 Km Work awarded to Contractor in the year
Therkkuvenganallur 2021-22 under ECP mode.
(Rajapalayam)
Section
3. Rajapalayam to 68.284 Project alignment finalized and land
Shencottai Section acquisition works in progress as awards
to determine compensation is to be
made. Financial approval of the project
to be obtained and Bids to be called.
4. Schencottai to 7 Km Detailed project report is yet to be
Kerala/Tamil Nadu prepared and alignment to be finalised.
border section Land acquisition works to be initiated
after finalization of alignment.
Consultation ajd concurrence of Kerala
State Government is required as this
stretch passes through Kerala State.
27. It is with a view to expedite the execution of the projects and considering the importance the division of road sections were permitted. It is to be noted that road widening project involves various steps for implementation such as preparation of feasibility report, Detailed Project Report, alignment finalization, Land Acquisition Committee approval, Acquisition of Land under National Highways Act, 1956, Financial Approval, Bidding process, award of project etc. As each of these stages consumes a substantial time and involves consultation and permission from various District Administrations and other authorities like Forest, Wildlife and PWD/Irrigation etc. It is not possible to take up entire National Highway length as a single project by the Government of India. In this regard whether the adoption of segmentation of a project is only to avoid Environmental Clearance, Environment Impact Assessment etc., the Hon'ble Supreme Court has held in NHAI Vs. Pandarinathan Govindarajulu and ors, (2021) 6 SCC 693 which reads as follows:
".....20. 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. After the issuance of a Notification dated 14.09.2006 requiring environmental clearance for new projects and expansion of the existing projects, a High-Level Committee was constituted by the Government of India to review the environmental clearances for Highway expansion projects. As per the Notification dated 14.09.2006, environmental clearance was required for new National Highway and expansion of National Highways greater than 30 kms involving additional right of way greater than 20 meters and passing through more than one State. One of the terms of the reference to the High-Level Committee was to review the requirement of environmental clearance for Highway expansion projects beyond a distance of 200 kms up to the right of way of 60 meters. The High-Level Committee recommended that environmental clearance would be required for expansion of National Highway projects beyond a distance of 100 kms and if the additional right of way or land acquisition is more than 40 meters on existing alignments and 60 meters on realignments or by passes. The said recommendation was accepted by the Government of India and the Notification dated 22.08.2013 was issued, amending the Notification dated 14.09.2006. As the question of permissibility of the segmentation of a National Highway beyond a distance of 100 kms is a matter to be considered by experts, it would be necessary for a committee to 11 be constituted by the Government of India to decide whether segmentation of a National Highway project beyond a distance of 100 kms is permissible. If it is permissible, the circumstances under which segmentation can be done also requires to be examined by the expert committee.
21. Mr. A. Yogeshwaran, learned counsel appearing for the first Respondent submitted that 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. In the note of submissions made by the learned Attorney General, reference has been made to the definition of "Right of way" placing reliance on Para 2.3 of the Manual of Specifications and Standards for Two- Laning of Highways through Public Private Partnership issued by the Planning Commission of India. Right of way as per the said Manual is the total land width required for the project Highway to accommodate road way (carriage way and shoulders) side drains, service roads, tree plantation, utilities etc. In the written submissions filed on behalf of the Appellant, it has been stated that the right of way not being greater than 40 meters on existing alignments and 60 meters on realignments or by passes, applies only to construction of road and is not applicable for other road amenities or facilities such as toll plazas. However, the Appellant has also stated in the written submissions that if this Court is not agreeable to the above proposition, it is willing to limit the construction of toll plazas and rest areas within the permissible limits. ...... 26. On the basis of the above discussion, we set aside the judgment of the High Court and issue the following directions:
1. 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.
2. The Appellant is directed to strictly conform to the Notification dated 14.09.2006 as amended by the Notification dated 22.08.2013 in the matter of acquisition of land being restricted to 40 meters on the existing alignments and 60 meters on realignments.
3. The Ministry of Environment, Forest and Climate Change, Government of India shall 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.
4. The Appellant is directed to fulfil the requirement of reafforestation in accordance with the existing legal regime......"
28. It is pointed out that the NH 744 is having a total length of 206 Km in Tamil Nadu and Kerala States and it is difficult to execute the projects without any segmentation since its implementation involves various steps and huge financial investments involving concurrence of District Collector, their recommendations and approval of the State Governments etc. Since there are two States involved in the present proceedings and it involves land acquisition also, segmentation of the National Highway is done for easier implementation. Therefore, it is clear that the distance of 100 km is important as expansion of National Highways below 100 km needs no prior Environment Clearance. The instant project there is a proposed Right of Way of 45 meters which is less than 30 meters in existing road and 45 meters in new alignment/bypass. The four laning project proposed for Rajapalayam to Shencottai in NH 744 is only 68.284 km in length which is already declared as a National Highway. Hence it is also not considered as a new National Highway merely because it passes through some new stretches at a few places. Hence, it is held that segmentation is permissible in the present case.
1229. The next question is that the land acquisition of the proposed project is greater than 40 meters and 60 meters.
30. In this regard, it is relevant to advert to the amendment in EIA Notification dated 22.08.2013 which states that "expansion of National Highway projects up to 100 kms involving additional Right of way or land acquisition up to 40 meters on existing alignment and 60 meters on realignments or bypasses may be exempted from the purview of the notification". According to the applicant the lands have been acquired beyond these prescriptions and he had also given an illustration that at 106.150 km, Thirumalainayakan Puthukudi Village where new alignment is proposed, more than 100 meter width has been acquired. Therefore, it was submitted that as the project road is more than 100 km and land acquisition is more than 40 meters and 60 meters, even considered as a expansion project, the present project required Environmental Clearance under the EIA Notification, 2006.
31. In this regard the Learned Counsel for the NHAI brought to the notice an amendment issued to the EIA Notification by S.O 3194(E) dated 14.07.2022 wherein the following amendment has been issued "And whereas, it is a fact that toll plaza needs greater width for installation of toll-collection booths to cater to large number of vehicles, which may not be possible if the width is restricted to Right of Way (RoW) and in view of the requirement of substantial width of toll plaza, Highway Expansion projects having length more than 100 km shall attract the provisions of the said notification, related to prior Environmental Clearance even if their RoW is less than the permissible expansion limits of 40 m or 60 m for re-alignment or by-passes, for Highway expansion upto 100 km and in this regard, the Central Government deems it necessary to exempt the width at toll plaza and junction improvement at intersection from being included in RoW".
32. Against item 7(f) in column (5), the following clauses were inserted: (ii) All Highway projects are exempted upto 100 km from line of control or border subject to compliance of Standard Operating Procedure notified in this regard from time to time. (iii) Width at toll plaza and junction improvement at intersection of other roads is exempted from Right of Way". As per the National Highways Act, 1956 any land acquired vest with the Central Government free from any encumbrance only after the publication of notification under Section 3D(1) of the National Highways 13 Act, 1956. After the 3D declaration an award has to be passed determining the compensation for the lands acquired and only after paying the compensation to the land owners, the possession of the acquired lands are taken by the NHAI to commence the work. Since, actual construction of project stretch or the toll plaza/junction improvement work is not yet commenced, as even possession of the acquired lands have not yet been taken by NHAI, the EIA Notification S.O. 3194(E) dated 14.07.2022 is applicable to the case on hand.
33. The above amendment in S.O 3194(E) dated 14.07.2022 is said to be challenged in W.P No. 33611 of 2022 before the Hon'ble High Court of Madras and is said to be pending without any interim order.
34. Whether the NHAI had considered any alternative to the proposed widening of the road?
35. The Learned Counsel appearing for the NHAI has stated that the present alignment was finalised only after examining the technical feasibilities including the detailed assessment of environmental impacts by the technical experts of various departments through the agency appointed for preparation Pre-feasibility Report and Detailed Project Report (DPR). The alternative proposal suggested by the applicant was also considered. It is stated that the alternate site was suggested by the applicant mainly to avoid the applicant's own lands in survey numbers 330/1, 330/2, 330/3, 330/4, 330/5 and 330/6 in Achanputhur Village of Kadayanallur Taluk from acquisition under National Highways Act, 1956. A Committee was constituted headed by the District Collector, Tenkasi to examine the alternative alignment suggested by the applicant and the same was not recommended as it was not technically feasible as it involved huge acquisition of wetlands, water bodies, urban areas etc. Therefore, the Committee recommended that the alignment already proposed by NHAI which got the concurrence from the Government of Tamil Naud on 27.01.2022 to implement the project formation of four laning between Rajapalayam and Shencottai. Therefore the said objection also cannot be considered.
36. In view of the above discussions, we rule that:
(i) The project in question does not require prior Environmental Clearance.
(ii) The segmentation is possible unless it is a deliberate avoidance.14
(iii) The land acquisition is within permissible limits as per S.O 3194(E) dated 14.07.2022.
(iv) The alternative alignment is already rejected by the Committee headed by the District Collector which does not require any interference.
37. Accordingly, the above Original Application is dismissed.
............................................................J.M. (Smt. Justice Pushpa Sathyanarayana) .......................................E.M. (Dr. Satyagopal Korlapati) Internet - Yes/No All India NGT Reporter - Yes/No O.A. No.64/2022(SZ) 24th January, 2023. (AM) 15 Before the National Green Tribunal Southern Zone (Chennai) O.A. No. 64 of 2022 R. Meerakani Vs. Union of India and Ors.
O.A. No. 64/2022(SZ) 24th January, 2023. (AM) 16