Above: Chief Minister of Tamil Nadu, Edappadi K Palaniswami handing over a memorandum to the Union Minister for Road Transport & Highways, Shipping and Water Resources, River Development & Ganga Rejuvenation, Nitin Gadkari at a review meeting of Port, Shipping, National Highways and Water Resources projects pertaining to the state, in Chennai on November 23, 2017/Photo: PIB

Despite the Madras High Court showing the red flag, Union Highways Minister Nitin Gadkari displays determination to go ahead with the controversial project

By R Ramasubramanian in Chennai

In a major setback for the NDA government in general, and Union Minister for Road Transport, Highways and Shipping, Nitin Gadkari, in particular, the Madras High Court has quashed the land acquisition proceedings for the Chennai–Salem Expressway project in Tamil Nadu. The Rs 10,000 crore, 277-km long, eight-lane greenfield project was initiated by the centre and the state government. It was to come up on agricultural and reserve forest land.

A division bench of the High Court, comprising Justices TS Sivagnanam and V Bhavani Subbaroyan, quashed the land acquisition proceedings. It held that environmental clearance was mandatory since the Expressway would have an adverse impact on the environment, including water bodies, and the project report submitted by a consultant was not satisfactory.

The judgment was pronounced on a batch of petitions filed by landowners, advocates, social activists and politicians, including a sitting MP and former Union minister Dr Anbumani Ramadoss of the Pattali Makkal Katchi (PMK). The Court dismissed the arguments forwarded by the centre, Tamil Nadu government and the National Highways Authority of India (NHAI).

The petitioners contended that environmental clearance was not needed at the time of what they termed “securing” the land for highway construction and it was required only at the time of the actual laying of the road. The Court described this argument as “putting the cart before the horse” and quashed the notification issued under Section 3A of the NHAI Act, 1956, for acquiring land for the project and made it clear that prior environmental clearance under the Environmental Protection Act, 1986, was necessary before acquiring land for the project.

The petitioners also argued that Section 3A notification was issued while applications for environmental clearances were pending before the Ministry of Environment and Forests. They also questioned the need for such a massive project and said that the objective could be achieved by widening the existing routes. “This large scale project was hastily announced with a hidden agenda to facilitate the acquisition of land having rich mineral deposits by a private company,” the petitioners claimed.

However, the centre defended the project, stating that the Expressway would assist in preventing the release of around 17 crore kg of carbon dioxide into the atmosphere and said that this was equivalent to the effect achieved through a 38,000-hectare forest area with 75 lakh trees. It also submitted that the reduction of carbon dioxide could be achieved by reducing diesel consumption by 10 crore litres per annum.

The bench invoked the “Public Trust Doctrine” while adjudicating the case. It said that the Doctrine, as propounded by the Supreme Court in MC Mehta vs Kamal Nath (1997), was part of jurisprudence. “The State and the society have become alive to the need to protect environment for posterity. Times are changing. There is a paradigm shift in needs and expectation, technology has advanced in leaps and bounds and there is a quest for perfection and accuracy. Citizens question state action and seek to strike them down, if it smacks of arbitrariness. The Right to Information Act has made information accessible to the public.

“Therefore, we need to be alive to these situations, while we ponder upon what is required to be done in the instant case bearing in mind the larger public interest. Undoubtedly, a balance has to be struck between protecting environment and protecting the economic interest of the State. The Supreme Court while dealing with this has observed that protection of environment would have precedence over economic interest (MC Mehta vs UOI, AIR 2004 SC 4016). In the said decision, it was pointed out that the harm can be prevented even on a reasonable suspicion, and it is not always necessary that there should be a direct evidence of harm to the environment,” the Court noted.

On the centre’s contention that the NHAI Act stands on a higher pedestal than other procedural laws, the Court said: “We outrightly reject the plea of the respondents that the notification issued under the Environmental Protection Act cannot take precedence over the NHAI Act. As pointed out earlier protection of environment stands in a higher pedestal when placed on scale with that of the economic interest.”

It added: “The legislative framers were conscious of the fact that there are existing laws dealing directly or indirectly with several environmental matters, yet enacted, the Environmental Protection Act, 1986, as it was found that there exists uncovered gaps in areas of major environmental hazards. Viewed from this angle, the interpretation that is to be given to a notification issued under Section 3 of the Environmental Protection Act, undoubtedly, should rule supreme, over the procedural laws including the NHAI Act, which provides for procedure for acquiring land to build, maintain or develop a National Highway.”

The Bench delved deeper and quoted John Stuart Mill, Jawaharlal Nehru and MS Swaminathan. It said: “More than 16 decades ago, John Stuart Mill wrote: ‘Land differs from other elements of production, labor and capital in not being susceptible to infinite increase. Its extent is limited and the extent of the more productive kinds of it more limited still. It is also evident that the quantity of produce capable of being raised on any given piece of land is not indefinite. These limited quantities of land and limited productiveness of it are the real limits to the increase of production’. In 1947, the first Prime Minister of India, Pt. Jawaharlal Nehru said, ‘everything else can wait, but not agriculture’.

“In its fifth and final report, the National Commission on Farmers headed by Dr MS Swaminathan observed that prime farmland must be conserved for agriculture and should not be diverted for non agricultural purposes, else it would seriously affect availability of food in the country where 60% of the population still depends on agriculture and people living below poverty line are finding it difficult to survive.”

Originally this project was not in the list of the Bharatmala Pariyojana, a centrally sponsored highways’ project designed mainly as an economic corridor for freight movement as a part of the Golden Quadrilateral. However, the situation changed after Tamil Nadu Chief Minister Edappadi K Palaniswami met Gadkari in February 2018 with a request to include this project in the Bharatmala Pariyojana.

Surprisingly, the very same day Gadkari sanctioned the project with a financial outlay of Rs 10,000 crore. The Tamil Nadu government immediately swung into action and started identifying land for acquisition and planting marker stones for the Expressway.

Since then, the issue has become a hot potato in Tamil Nadu politics with almost all major political parties, except the ruling AIADMK and the BJP, taking up cudgels on behalf of the affected farmers whose lands were marked for the project.

After the Madras High Court ruling, Gadkari, while addressing an election rally in Salem, indirectly made it clear that the government will go ahead with the project.

“The Chennai–Salem green corridor is the most important development project related to Salem. Today, the matter is in court and the Madras High Court has given a stay on the project. But, I assure you that higher rates would be provided for farmers whose land will be acquired,” he said.

Ramadoss and Palaniswami were on the stage when Gadkari made the announcement yet they maintained a stoic silence. But the PMK has moved a caveat in the Supreme Court as it has become obvious that both the centre and the state government will move the apex court very soon against the Madras High Court order.

The unusual interest shown by Gadkari in this issue has baffled political observers. “I am really baffled. Except the ruling AIADMK and the BJP, all political parties are opposing this project. Even the PMK—one of the important constituents of the AIADMK-BJP alliance in Tamil Nadu—is vociferously opposing the project. There are certain niceties in public life. Moreover, these are all election times and any politician belonging to any political party will not touch upon emotive and sensitive issues like this during the election campaigning,” said Aazhi Senthilnathan, a Chennai-based political observer and author.

Even the PMK is shocked. “We are really shell-shocked. We did not expect this from Nitin Gadkari and that too when our leader, Dr S Ramadoss, was on the stage with him. We have our own political compulsions to join hands with the BJP in the state. But we did not change our stand and that’s why we have immediately moved a caveat in the Supreme Court. This will affect our electoral prospects in the state,” said a senior PMK leader and an ex-MP. The PMK is contesting seven seats in Tamil Nadu (the state has got 39 Lok Sabha seats).

But Gadkari is determined. Highly placed sources in the state government and NHAI confirmed to India Legal that they are only waiting for the election process to end to approach the Supreme Court to “file a fool-proof appeal” against the Madras High Court order.