INTERRELATION BETWEEN NHAI ACT, LAND ACQUISITION ACT
AND ENVIRONMENTAL LAWS
The new Land Acquisition Act, 2013 has brought many changes to the old act. The major changes alongwith interrelation between the National Highway Authority of India Act, the Land Acquisition Act and Environmental Laws of India are given below for the sake of understanding:
1. Social Impact Assessment Study:
“4. Preparation of Social Impact Assessment study.–
(1) Whenever the appropriate Government intends to acquire land for a public purpose, it shall consult the concerned Panchayat, Municipality or Municipal Corporation, as the case may be, at village level or ward level, in the affected area and carry out a Social Impact Assessment study in consultation with them, in such manner and from such date as may be specified by such Government by notification.
(2) The notification issued by the appropriate Government for commencement of consultation and of the Social Impact Assessment study under sub-section (1) shall be made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and in the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government:
Provided that the appropriate Government shall ensure that adequate representation has been given to the representatives of Panchayat, Gram Sabha, Municipality or Municipal Corporation, as the case may be, at the stage of carrying out the Social Impact Assessment study:
Provided further that the appropriate Government shall ensure the completion of the Social Impact Assessment study within a period of six months from the date of its commencement.
(3) The Social Impact Assessment study report referred to in sub-section (1) shall be made available to the public in the manner prescribed under section 6.
(4) The Social Impact Assessment study referred to in sub-section (1) shall, amongst other matters, include all the following, namely:—
(a) assessment as to whether the proposed acquisition serves public purpose;
(b) estimation of affected families and the number of families among them likely to be displaced;
(c) extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition;
(d) whether the extent of land proposed for acquisition is the absolute bare- minimum extent needed for the project; 12
(e) whether land acquisition at an alternate place has been considered and found not feasible;
(f) study of social impacts of the project, and the nature and cost of addressing them and the impact of these costs on the overall costs of the project vis-a-vis the benefits of the project:
Provided that Environmental Impact Assessment study, if any, shall be carried out simultaneously and shall not be contingent upon the completion of the Social Impact Assessment study
(5) While undertaking a Social Impact Assessment study under sub-section (1), the appropriate Government shall, amongst other things, take into consideration the impact that the project is likely to have on various components such as livelihood of affected families, public and community properties, assets and infrastructure particularly roads, public transport, drainage, sanitation, sources of drinking water, sources of water for cattle, community ponds, grazing land, plantations, public utilities such as post offices, fair price shops, food storage godowns, electricity supply, health care facilities, schools and educational or training facilities, anganwadis, children parks, places of worship, land for traditional tribal institutions and burial and cremation grounds.
(6) The appropriate Government shall require the authority conducting the Social Impact Assessment study to prepare a Social Impact Management Plan, listing the ameliorative measures required to be undertaken for addressing the impact for a specific component referred to in sub-section (5), and such measures shall not be less than what is provided under a scheme or programme, in operation in that area, of the Central Government or, as the case may be, the State Government, in operation in the affected area.
5. Public hearing for Social Impact Assessment.–Whenever a Social Impact Assessment is required to be prepared under section 4, the appropriate Government shall ensure that a public hearing is held at the affected area, after giving adequate publicity about the date, time and venue for the public hearing, to ascertain the views of the affected families to be recorded and included in the Social Impact Assessment Report.
6. Publication of Social Impact Assessment study.–
(1) The appropriate Government shall ensure that the Social Impact Assessment study report and the Social Impact Management Plan referred to in sub-section (6) of section 4 are prepared and made available in the local language to the Panchayat, Municipality or Municipal Corporation, as the case may be, and the offices of the District Collector, the Sub-Divisional Magistrate and the Tehsil, and shall be published in the affected areas, in such manner as may be prescribed, and uploaded on the website of the appropriate Government.
(2) Wherever Environment Impact Assessment is carried out, a copy of the Social Impact Assessment report shall be made available to the Impact Assessment Agency authorised by the Central Government to carry out environmental impact assessment:
Provided that, in respect of irrigation projects where the process of Environment Impact Assessment is required under the provisions of any other law for the time being in force, the provisions of this Act relating to Social Impact Assessment shall not apply.”
2. Application to NHAI Act:
The Land Acquisition Act, 2013 has become applicable to NHAI from 1st January, 2015.
In Moolchand vs. Competent Authority and Sub… (1st May, 2018) W.P.No.8650/2018/ (Madhya Pradesh High Court):
The Division Bench of Bombay High Court in case of Vishwasrao Dattatray Kachare and Others (supra) has held that the applicability of said Order 2015 can be considered by an Arbitrator in a proceedings under Section 3 G (5) of National Highways Act, 1956. It has been further held that it would be for the Arbitrator to determine whether the application would be governed by the said notification dated 20.08.2015 issued by the Central Government. Relevant para of the aforesaid judgment is reproduced below:
“12. The 2013 Act was brought into force with effect from 1 January 2014 repealing the Land Acquisition Act, 1894. In the present context, Section 105 of the 2013 Act would become relevant, as it provides that the provisions of 2013 Act shall not apply to the enactments relating to the land acquisition as specified in the Fourth Schedule in which N.H.Act finds a place in the Fourth Schedule at item
7. However, sub-section 3 of Section 105 of the 2013 Act provides that the Central Government is empowered to issue a notification within one year from the date of commencement of the 2013 Act relating to the “determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules”, as beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of the 2013 Act relating to compensation or rehabilitation and resettlement as may be specified in the notification.
13. On behalf of the National Highways Authority, it is brought to our notice that the Central Government by a notification dated 20 August 2015 issued under sub-section (3) of Section 105of the 2013 Act has issued an order called as the “Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order,2015”, brought into force with effect from 1 September 2015. By clause (2) of the said order, the 2013 Act relating to ‘the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule’, is made applicable to all cases of land acquisition under the enactments specified in the Fourth Schedule in the said Act. By virtue of this order, the provisions of the 2013 Act pertaining to determination of compensation and other benefits as provided in the First Schedule, Second Schedule and the Third Schedule are made applicable to the N.H.Act.
Environmental Impact Assessment (EIA):
Though highway projects are undertaken for the social and economic welfare of the people of the country, there are many adverse environmental impacts of the same. Therefore, the techniques of EIA become necessary. Hence, the EIA must be done during the preliminary planning of the project to ensure that adverse affects are accounted for and minimised.
As per the EIA notification of 14th September 2006 and its amendment dated 1st December 2009, highway projects are divided into two categories as mentioned below:
- ‘A’ Category: It includes New National Highways and Expansion of National Highways greater than 30 km, involving additional right of way greater than 20 km, involving land acquisition and passing through more than one State.
- ‘B’ Category: All State highway projects and State highway expansion projects in hilly terrain and ecologically sensitive areas.
Then there is entire extensive process which needs to be followed for obtaining the environment clearance for the project. Public consultation is a very important stage in this process. In this process, the concerns of local affected people are taken into consideration.
For detail, visit: http://envfor.nic.in/sites/default/files/highways-10_may_0.pdf
- Mansukhbhai Kalyanbhai Chovatiya and Ors. vs. National Highway Authority and Ors. (29.12.2011 – GUJHC) : MANU/GJ/1436/2011 – In relation to public consultation in EIA
- Conservation of Nature Trust and Ors. vs. The District Collector, Kanyakumari District and Ors. (14.09.2016 – NGT) : MANU/GT/0118/2016 – In relation to Article 21 of the Constitution (Right to Environment)