Mandatory Greening of National Highways - NGT Directs - NHAI FLOUTS

Team I am sharing the order passed by NGT on Mandatory Greening of National Highways and removal of Encroachments on area meant for greening. The key observations are as under:-

7. The Tribunal noted the stand of the NHAI in the affidavit dated
13.06.2018 to the effect that Tree Plantation Policy, 2015 was
formulated as per 2009 Guidelines. The green cover was not
required up to 30/50 meters of the Highway. Green Highway
Policy could not be followed in projects executed on PPP model.
The Tribunal held that tree plantation must be done within the
Right Of Way (ROW) and in the land earmarked for afforestation
in view of the IRC Guidelines. Landscaping was required in urban as well as rural areas and right of way must be available for development on the sides of the highways for which the same should be left encroachment free. The Tribunal referred to the Control of National Highways (Land and Traffic) Act, 2002. It was
observed that the 2009 Guidelines and 2015 Policy will help protection of environment and improvement of air quality. Plantation was necessary in accordance with the said Guidelines and the Policy. Accordingly, the Tribunal directed designation of teams for removal of encroachments, ensuring green belts and restoring such green belts by preparing an action plan.
Guidelines laid down in “Manual of Specifications and Standards
for Six Laning of National Highways through Public Private
Partnership’, the 2009 Guidelines and the 2015 Policy were
directed to be followed in its true spirit and substance. It was
also observed that for environmental protection and improvement
of ecology, requisite land should be acquired, erection or re-erection
of building within the specified distance from the
Highways may be prohibited and access permitted only through
by-lanes or exit routes.
17 We are accordingly of the view that steps being taken for
maintenance of Green belts on the sides of the Highways are not
adequate. Responsibility for such Green belts is required to be
clearly defined in view of the fact that as per 2015 Policy, the
accountability is of Concessionaires if so included in the
agreement and on their failure, will be of MoRTH/NHAI. The Nodal agency is the concerned Forest Officer. The extent to which
Green Belts have been successfully provided needs to be clearly
indicated. If Green Belts have not been provided either on
account of encroachment or lack of space, extent of such failure
needs to be identified and addressed. Wherever such plantation
is not provided, it is obvious that there is violation of
environmental norms. Cognizance of such violation and remedial
actions needs to be taken by the MoEF&CC.
18. We may note that while National Highways are covered by Entry
23 of List I, State Highways are covered by Entry 13 of List II of
7th Schedule to the Constitution. Subjects of legislation or policy
with reference to the said entries may relate to acquiring land or
provisions for construction of Highways and other incidental
issues. Environment protection is an independent subject. With
reference to Entry 13 of List I read with Article 253, the
Parliament has enacted Environment (Protection) Act, 1986 for
prevention, control and abatement of environmental pollution in
pursuance of UN Conference on Human Environment, 1972. The
Environmental Clearance Regulations, 2006 framed under
Section 3(2) of the said Act require prior environmental clearance
for projects mentioned in the schedule to the said regulations.
Entry 7(f) of the Schedule relates to Highways. National Highways
fall in Category A and State Highways fall in Category B. EIA is
required for National Highways from the MoEF&CC and for State
Highways from SEIAA. Such environmental clearance is given as
per the principle of ‘Sustainable Development’. Even though
National Highways Act, 1956 and the Control of National
Highways (Land and Traffic) Act, 2002 deal with the subject of highways, the environmental clearance can and must lay down
suitable conditions for protection of environment which could be
over and above the statutory mandate of Highways Act or the
Policies/Guidelines of the Ministry of Road Transport or the
Highway Authority. Concept of ‘Sustainable Development’ apart
from being enforceable under Section 20 of the NGT Act, it is also
a component of Article 21 of the Constitution and thus is
required to be read into every Statute or Policy. This requirement
is inherent. Moreover, scope of Entry 7 (f) in the Schedule of the
2006 notification does not cover every Highway while
environment issues relate to constructions on sides of Highways
and access to the Highways. The MoEF&CC in co-ordination with
the MoRTH is thus required to consider the question of access to
Highway not being allowed directly but only through bylanes/
exit lanes, distance being maintained between the Highway
and any other construction. Sufficient area must be left on the
sides of the Highways, not only for expansion but also for
plantation of trees. Plea that such requirement cannot govern
Highways on PPP model is unacceptable being contrary to the
overarching Principle of ‘Sustainable Development’. Plea that no
area being specified as being required to be kept vacant on sides
of Highways, plantations are required only if space is available
cannot be accepted. The mandate of law requires space to be left
on the roadsides. Once it is so, extent of such space must be
specified. In absence thereof plan for plantation and preventing
encroachment and construction on roadside and also preventing
direct access to Highway will be difficult to be implemented
24. Accordingly we direct the Secretary MoEF&CC in collaboration with Secretary MoRTH to evolve an effective monitoring mechanism at national level with the object of ensuring maintenance of Green Belts on both sides of all Highways upto specified distance, there is no construction upto specified distance, there is no direct access to the Highway, there is no encroachment and buildings on roadsides are regulated in terms of environmental norms so that no air/water pollution or encroachment of Highway is caused. For this purpose, MoEF&CC
may collect the requisite data in respect of National Highways from NHAI and in respect of State Highways from respective
States and UTs. The data by the State may be compiled by the Chief Secretaries of States/UTs in coordination with their respective Environment, Forests and Public Works Departments.
We suggest that data should be compiled with reference to the following:
i) Extent of encroachment and action plan for its removal.
ii) Provisions for leaving space up to a particular distance from the road for expansion and for plantation.
iii) Extent of access directly allowed from Highway to buildings and ensuring that there is no direct access to the road obstructing existing or potential plantation.
iv) Buildings near roads upto a specified distance are regulated to ensure that no air, water or other pollution is caused and no encroachment takes place or space on 
roads on account of activities of such buildings.
v) Extent of plantation carried out.
vi) Highway where no space is left for ensuring green belt on the sides.
vii) Highway projects on PPP model where green plantation cannot be done according to NHAI.
25. The monitoring mechanism may deal with the issue in following parts:
i) Future policy with regard to Highways to be constructed
ii) Policy with regard to Highways already constructed or in progress where space is available;
iii) Policy with regard to Highways where constructions have already been made with regard to division in nature of construction and legality thereof.
26. The MoEF&CC may file an affidavit within two months.
27. Member (Administration), NHAI may file further affidavit about the extent of encroachment on National Highway, action plan for
removal of such encroachment, extent of plantations, extent of access directly allowed from highways to buildings, requirement
of distance from highways for construction and indicating the status of preparation and execution of action plans by individual
teams to ensure green work development and status of removal of encroachment by Task Force constructed by NHIDCL.
List the matter for further consideration on 19.08.2019