Правовые риски доступа к земле в инфраструктурных проектах Индии требуют четкого контрактного регулирования

Listen to this article In this ‘Leading Questions’ section, Anuja Mukerji and Samiksha Pujari explains that Right of Way (RoW) in infrastructure projects is not merely a land access issue but a critical project risk that requires clear contractual allocation, legal diligence, and proactive management to ensure project viability and bankability. Question: Why does Right of Way (RoW) remain a critical legal and execution risk for infrastructure projects in India, and when does it become a broader project-risk issue? Answer: Right of Way (“ RoW ”) is not merely about securing access to land. It is about securing the legal and practical conditions necessary for an infrastructure project to be constructed and operated. In large linear projects, the challenge lies in ensuring that the RoW is continuous, enforceable and sufficiently free from impediments to allow the project to proceed as contemplated. The distinction between legal availability and practical availability is critical. A project may have acquired the requisite land or obtained the necessary rights on paper, yet remain unable to proceed because of unresolved title issues, encumbrances, compensation claims, competing rights, encroachments, or statutory and utility constraints. In projects extending across hundreds of parcels, even a small number of unresolved interests can have consequences disproportionate to the extent of land involved. The Supreme Court’s decision in Kalpataru Power Transmission Ltd. v. Vinod, 2025 INSC 1004, illustrates the wider legal consequences of RoW restrictions. In considering compensation arising from transmission towers and associated restrictions, the Court recognised that the impact on proprietary interests cannot necessarily be reduced to a uniform formula but must be assessed having regard to the evidence and the nature and characteristics of the affected land. RoW can therefore engage not merely questions of access, but substantive questions of property and compensation. The issue assumes a further dimension when the inability to secure or utilise RoW affects the project’s contractual or financial obligations. In a linear infrastructure project, an unresolved parcel may lie on the critical path, delaying construction, increasing mobilisation and financing costs, or deferring commercial operations. In PPP projects, where RoW availability may be linked to conditions precedent or contractual milestones, the consequences may extend to extensions of time, compensation, termination and other forms of contractual relief. RoW therefore becomes a broader project-risk issue when a land or access impediment begins to affect obligations beyond the parcel itself. The question is no longer simply who has the right to use the land, but whether that right can be exercised when the project requires it and what consequences follow if it cannot. Question: When RoW is delayed or disputed, who ultimately carries the risk? How should RoW risk be allocated? Answer: RoW risk is fundamentally a question of contractual allocation, informed by the principle that responsibility should ordinarily rest with the party best placed to identify, manage and mitigate the relevant risk. The analysis must therefore turn on the contractual framework, the nature of the RoW obligation and the circumstances giving rise to the impediment. Where land acquisition, possession or specified statutory processes form part of the project framework, the contractual documents should clearly identify the respective responsibilities of the parties and the consequences where the requisite RoW is not available within the contemplated timeframe. Depending on the contractual allocation, these consequences may include appropriate extensions of time, cost relief or other remedies. Conversely, matters attributable to the developer’s own acts or omissions, including non-compliance, design changes or construction methodology, would ordinarily remain within the developer’s risk. The concession and project agreements should therefore address RoW as a distinct project risk, including title and compensation issues, third-party claims, utility interfaces and other circumstances that may affect availability. Clear contractual triggers, milestone requirements and defined consequences can provide greater certainty and reduce the scope for disputes once the risk materialises. This is particularly important in project-financed infrastructure, where RoW uncertainty can have consequences beyond construction, including contractor claims, additional financing costs and deferred commercial operations. In National Highways Authority of India v. Tarsem Singh, 2026 INSC 291, the Supreme Court clarified that landowners whose land is acquired under the National Highways Act, 1956, are entitled to statutory solatium and interest as part of fair compensation and that NHAI’s financial burden cannot be a reason to deny these benefits to the landowners. At the same time, the Supreme Court held that a landowner who makes a claim after an undue delay cannot seek to reopen a matter that has already been finally decided by the court of law. The Supreme Court thus balanced the landowners’ right to fair compensation with the need to maintain finality in concluded proceedings. The objective should therefore be to establish, at the contractual stage, a clear and principled allocation of RoW risk, supported by defined responsibilities and predictable consequences where the requisite RoW is delayed or unavailable. Question: What are the legal implications of non-registration of an easement or RoW agreement and when is registration necessary to protect RoW rights in infrastructure projects? Answer: Where an easement or RoW instrument purports to create, declare, assign, limit or extinguish a right or interest in immovable property, the requirement of registration must be determined by reference to the nature and legal effect of the instrument under Section 17 of the Indian Registration Act, 1908 (“Registration Act”). Section 2(6) of the Registration Act expressly includes “rights to ways” within the statutory conception of immovable property, while Section 17(1)(b) mandates registration of specified non-testamentary instruments affecting rights or interests in immovable property. The consequences of non-registration are significant. Section 49 of the Registration Act prevents an instrument that is compulsorily registrable but remains unregistered from operating upon the immovable property comprised therein or being received as evidence of the transaction affecting such property, subject to the statutory exceptions. Accordingly, where an infrastructure RoW arrangement is intended to create or transfer a registrable proprietary or easementary interest, due stamping and registration are critical to securing the intended legal effect of the arrangement. For long-term infrastructure assets, this is particularly important. The RoW should not merely exist as a contractual entitlement, where the law requires registration, it should rest on a legally durable foundation capable of withstanding subsequent questions as to its existence, scope and continuity. Question: What would it take to make RoW a more predictable and bankable part of infrastructure development? Answer: The starting point is to treat RoW diligence as an integral part of project diligence, rather than as a discrete land-acquisition exercise. A bankable project should be able to identify, with reasonable certainty, the rights required, the status of each parcel, outstanding claims or encumbrances, compensation exposure and any approvals necessary for construction and operation. Developers and lenders should be able to distinguish between RoW that is secured and available, RoW that remains subject to administrative or third-party processes, and matters carrying a material risk to project timelines. A consistent framework for disclosure and verification would make these risks more transparent and, importantly, more capable of being assessed at an early stage. The contractual framework should reflect that assessment through appropriate conditions precedent, representations, covenants and milestone requirements. Digital land records, can further improve transparency, although they should complement rather than substitute legal and title diligence. Ultimately, bankability does not require the elimination of every RoW uncertainty. It requires that material uncertainty is visible, its consequences are understood, and responsibility for managing it is clear. That is what enables RoW to be treated not as an unpredictable impediment to infrastructure delivery, but as a risk capable of being identified, assessed and managed. Anuja Mukerji is a Partner and Samiksha Pujari is a Senior Associate at AQUILAW.