Why Madras HC quashed Land Acquisition for the 8 Lane Chennai-Salem Highway Project

The Madras High Court on Monday set aside the land acquisition proceedings initiated for the Tamil Nadu Government’s ambitious Rs 10,000 Crore 8 Lane Chennai-Salem highway “Green Field Corridor” project..In May last year, the Central government had authorised the issuance of a notification to acquire land to develop a Highway spanning about 276 kilometres connecting Chennai and Salem. The notification was issued even as environmental clearances, forest clearance and final approval by the National Highways Authority of India (NHAI) were pending. This prompted a number of petitions challenging the land acquisition, both from affected landowners as well as public interest litigants..Allowing these petitions, a special Division Bench comprising of Justices TS Sivagnanam and Bhavani Subbaroyan has quashed the land acquisition proceedings. Inter alia, the Court found merit in the petitioners’ contention that the environmental clearances ought to have been obtained before initiating the land acquisition. It also found that the Project feasibility report justifying the Highway project deserved to be scrapped. The broad reasons prompting the Court’s conclusions include the following..Land Acquisition proceedings can be challenged at inception if arbitrary.The Government had contended that the proceedings were premature and based on hypothetical apprehensions, given that it had only issued a notification under Section 3A of the NHAI Act, 1956 to acquire the land. It was argued that a challenge to the project could only be made after further proceedings were initiated pursuant to this notification, i.e. after notification under Section 3D of the Act is issued or once the road construction actually commences..The Court, however, disagreed, reiterating that if the notification was issued arbitrarily or if there is a colourable exercise of power evident, the land acquisition proceedings can be challenged. It held,.“It is true that the petitioners are before this Court challenging the acquisition proceedings soon after the notification under Section 3A(1) of the Act was published. Under normal circumstances, Constitutional Courts seldom exercise their jurisdiction to interdict a land acquisition proceeding at the very inception, such as a notification issued under Section 4(1) of the erstwhile Land Acquisition Act 1894. .However, there have been exception to this self-imposed restriction, when it has been found that there is arbitrary exercise of power or there is serious error in the decision-making process leading to issuance of the preliminary notification. .Therefore, we are of the view that if the petitioners are able to make out a case that there are serious error at the very inception, then the petitioners should not be shut out from challenging the acquisition proceedings… it will be too harsh on the petitioners namely land owners/losers to state that they can approach the Court after the land acquisition proceedings are completed and after many of them are dispossessed from their lands.“.High Handedness and Haste in pushing for the implementation of the 8 Lane Project.The Court noted that the issues marring the controversial highways project were exacerbated by various instances of high handedness by the authorities during the course of the case. The Bench noted,.“The seriousness of the issue stood escalated on account of certain unsavoury incidents, which took place, while the Writ Petitions were pending and the hearing had commenced….… we found that the respective competent authorities and the Revenue Administration of the respective districts where a law unto themselves, arbitrary action was initiated clearly exceeding the powers under the Act.“.Among other such unsavoury incidents was the illegal felling of 109 trees, initiation of false cases and detention of those perceived to be protesting against the highways project..“Peaceful protest were stifled, unwritten gag orders were promulgated, police force was used to handle the peaceful protesters, who were making a request to spare them and their lands. Only after this Court intervened these high handed actions had subsided.”.The Court went on to note that these incidents reflected “a sense of haste” on the part of the Government in completing the project..“The above facts have been placed on record to highlight the aspect that the land acquisition proceedings for the current project did not proceed on the lines, as it normally goes, but there appear to be a sense of haste on the part of the officials of the State Government in somehow getting the project through..This haste was manifest from various high handed actions initiated by the officials. In such circumstances, need arose for this Court to examine as to whether there is a gross error in the decision-making process, which according to the petitioners arose at the very threshold of the project.“.On appreciating Environmental Protection Laws in an Agrarian country.The Court emphasised that procedural laws meant to protect environmental laws must be prioritised, more so given the importance of agriculture in India. In this regard, the Bench observed,.“These set of laws [Environmental laws] are to be put at a higher pedestal than other procedural laws…protection of environment stands in a higher pedestal when placed on scale with that of the economic interest..… What has been lost sight of is the fact that agriculture is the main part of the economy and source of livelihood of rural India. The land of an agriculturist is vital to sustain his livelihood. India being predominantly an agricultural society, there is a strong bond between the land owner and his land. The land provides dignity for the person. It provides a source of livelihood. Therefore, any dent on this source of livelihood should be viewed with utmost seriousness. If the State fails to do so, it will be failing in the public trust reposed on it. .The State being the trustee is bound to protect life and livelihood of agriculturists. It is bound to protect the natural resources, the forest, flora and fauna. If there is failure to do so, it will result in disastrous consequences much of which will be irreversible. .Therefore, in our view, the issue as to whether prior or post, environmental clearance is required to be decided on a case to case basis. The subject highway is a Rs.10,000 crores project. Large sums of public money is to be invested. Therefore, the project of this magnitude requires to be processed with utmost dexterity.”.The Court also faulted the State for including forest land in the area intended to be taken over for the highway project. While opining that forest land should ideally be avoided altogether, the Bench remarked,.“Elsewhere in the country, wherein the yesteryears, roads were laid through wildlife sanctuaries and Reserve Forest, when the traffic was minimal and by efflux of time, these roads virtually have become city roads and many at times, Forest officials find it very difficult to regulate traffic on those roads, especially during night time, when the wild animals move around freely. This has resulted in the human-animal conflict. .Who is to be blamed? It is none other than the humans, who treaded into their territory for personal gains and comforts.“.Environmental Clearances ought to have been obtained before initiating the 8 lane highway project.The Court proceeded to observe that it is to be decided on a case-to-case basis whether or not environmental clearances should be obtained before or after the initiation of a project. However, in this case, it opined,.“… considering the peculiar facts of the instant case, magnitude of the project, the proposed alignment, which admittedly cuts across the Forest land, water bodies, big and small fertile agricultural lands etc., it is necessary that prior environmental clearance is required before the respondents proceed further, pursuant to the notification under Section 3A(1) of the Act.”.It also added,.“The respondents, being a welfare State, while implementing the project which, in the opinion of the Government, is in public interest, cannot close its eyes to reality and forget that protecting agriculture is equally in public interest..The balance between agricultural development and economic development is delicate may at times very difficult for the bureaucrats and policy decision-makers to perceive. Thus the interpretation, insofar as India is concerned, should lean towards agriculture.”.In view of these observations, the Court concluded,.“… if the project is allowed to be implemented without prior environmental clearance, it would be grossly in violation of the principles of sustainable development and would violate the provisions of Articles 19, 21, 46, 48A and 51A of the Constitution of India.”.Short span taken to prepare the project feasibility report defies logic.The Court found several reasons to conclude that the project Feasibility report prepared by a private consultant, Feedback Infra Pvt Limited was flawed and deserved to be scrapped. For one, the report had been prepared within a short span of 60 days, which the Court highlighted was woefully inadequate to evaluate the benefits and implications of the sensitive project at hand..“Obviously, within 60 days, nothing could have been done,” notes the Court,.“Nothing worthwhile could have been done, given the length of the project and the sensitivity of the area through which, it passes through the different terrain and other cultural and social factors. .… it defies logic that in such a sensitive project, study could have been made within 60 days … We may not agree with the contention of the learned counsel for the petitioner that the report is plagiarized, but what is evident is that there has been non-application of mind and presumably, the report was required to be prepared within a short period for reasons best known. Therefore, the report prepared by the Consultant needs to be scrapped. “ . This apart, the Court also noted that the manner in which Feedback was tasked with preparing the project feasibility report was fundamentally flawed. The initial bid document won by Feedback was to evaluate a Chennai-Madurai Highway Project. This was later replaced with the Chennai-Salem highway project without assigning specific reasons. However, Feedback was allowed to continue handling the responsibility of preparing the report, even without inviting fresh bids to prepare the report. The Court emphasised,.“The procedure adopted by NHAI in asking the Consultant to carry out a work which was never the scope of the bid document by an oral arrangement is unheard of ....…If this is so obvious, the report can have no sanctity, as there has been an error at the very inception which goes to the root of the matter. However, good may be the report, the award in favour of the Consultant being for a different project, unless a fresh bid is invited and proposal was made with due inputs, the draft feasibility report or the final feasibility report submitted by the Consultant cannot be accepted.“.The Court proceeded to hold that the award of the consultancy contract itself was illegal..Plain lands can be declared highways.During the course of the judgment, the Court also had occasion to clarify that it is not only existing roads that may be declared National Highways under the NHAI Act. Rather, on a combined reading of Sections 3A and 2 (2) of the Act, the NHAI is also empowered to acquire plain / virgin lands for the purpose of developing National Highways. In this regard, the Court found merit in the state’s contention, noting,.“The correct way of interpreting the provision is to read Section 3A along with Section 2(2) of the Act. If the same is done, the position becomes clear, that is, where the Central Government is satisfied that for public purpose, any land is required for building, maintenance, management or operation of a National Highway or part thereof, it may, by notification in the official gazette declare its intention to acquire such land ….… the power under Section 3A of the National Highway Acts, is wide enough to acquire the land for the purpose of building a National Highway or for the purpose of maintenance of National Highway or for management of National Highway or operation of National Highway or part thereof. Therefore, to contend that unless and until a highway is formed in terms of Section 3 of the Tamil Nadu Act read with Section 2 (12) of the Act, then only it can be notified as National Highway, is an argument which is stated to be rejected.“.Ultimately, however, the overwhelming case made out against the State lead the Court to allow the petitions challenging the 8lane highway project. The Court ruled,.“For all the above reasons, we are of the considered view that the project highway as conceived and sought to be implemented is vitiated on several grounds as mentioned above and consequently, the notifications issued for acquisition of lands under Section 3A(1) are liable to be quashed. “.[Read the order]