The road taken: On Chennai-Salem greenfield highway

By upholding notifications intending to acquire agricultural land for the proposed Chennai-Salem greenfield highway, the Supreme Court has both paved the way for completing the land acquisition process and sought to ensure that environmental clearances are obtained before its construction. It has ruled that it will be premature to expect the authorities to obtain environmental approvals at the stage of identifying the land linked to the proposed alignment of a highway, but, once the land was notified for acquisition and surveyed for feasibility, they would have to apply for all statutory clearances. It would be at the stage of entertaining objections that questions such as whether the project was truly a ‘public purpose’ could be dealt with. However, the land could be taken over and construction begun only after the competent authorities give their clearances, along with measures for mitigating and remedying possible environmental damage. The judgment of the Madras High Court, which had taken a nuanced position in favour of environmental protection, agriculture and preservation of rural livelihoods over the economic benefits of a new highway on virgin land, has been set aside in the process. The High Court had shown greater sensitivity to possible livelihood and ecological concerns. It had favoured early judicial intervention, relying on judgments from the U.S. that spoke out against letting projects advance to such a stage that there is irreversible commitment of resources.

The three-judge Bench has now ruled that the High Court was wrong in holding that clearances under environmental and forest laws were required even before the initial land acquisition notice. It goes on to uphold the Centre’s power to notify any stretch of land, including greenfield land, and not merely a pre-existing road, as a national highway. As part of a growing body of jurisprudence on sustainable development, the top court had laid down in Karnataka Industrial Areas Development Board (2006) a general principle that in future, before acquiring land for development, the possible adverse environmental impact should be “properly comprehended” and the acquisition done in a way that did not impair it. In a departure from this dictum, it now says the statutory framework governing highways and the process laid down for acquiring land for highway projects did not provide for a prior clearance requirement. The Court’s line of reasoning based mostly on development-centric statutes is something of a disappointment when it could have taken, even at this stage, a holistic view of the need for sustainable development. True, it has left open the question whether the clearances obtained after the lands were notified for acquisition are valid; and the principle that construction of the highways cannot begin without such clearances also stays. But it is not inconceivable that the Court’s position may have rendered the project a fait accompli.