M.K. RANJITSINH & ORS. versus UNION OF INDIA & ORS. on 19 April 2021

ORDER

1. The writ petition is filed in the nature of public interest seekingto protect two species of birds namely the Great Indian Bustard (‘GIB’for short) and the Lesser Florican, which is on the verge of extinction.The existence of overhead power lines is stated to have become a hazarddue to which the said species of birds on collision are getting killed. Inthe pending writ petition, the application in I.A. No.85618/2020 is filedseeking interim directions to direct the State of Rajasthan (respondentsNo.5 and 6) and State of Gujarat (respondents No.9 to 11) to ensurepredator proof fencing, controlled grazing in the enclosure developmentand to direct the said respondents not to permit installation of overheadpower lines and also not permit further construction of windmills andinstallation of solar infrastructure in priority and potential habitat asidentified by the Wildlife Institute of India. The petitioner is also seekinga direction to the respondents to install divertors for the powerlines whichhas been listed in the application.

2. The very subject matter indicates that though such directionsare sought against the respondents, the litigation is not adversarial innature as it is community interest. In fact, the petitioners beingenvironmentalists, are seeking to protect the rare birds which aredwindling in number. It is contended that GIB is one of the heaviestflying birds in the world, about a meter in height and wing span of aroundseven feet. It has disappeared from 90 per cent of habitat except partsof Rajasthan and Gujarat which is to be protected. According to thepetitioners, overhead power lines are the biggest threat to the survival ofthe GIBs. The Wildlife Institute of India (WII) in its Report “Power LineMitigation, 2018” has stated that every year 1 lakh birds die due to collisionwith power lines. The Report concluded that unless power line mortalityis mitigated urgently, extinction of GIBs is certain. Surveys conductedby Wildlife Institute of India (WII) in Thar covering 80 km of powerlines repeated 7 times over a year found 289 carcasses of around 30species, including the Great Indian Bustard (GIB). The study estimated3 bird mortalities/km/month for low-tension lines, 6 bird mortalities/km/month for high-tension lines, and about 1 lakh birds/per year within a4200 sq.km area in/around Desert National Park, Rajasthan. In terms ofGIB, 6 mortalities have been recorded in Thar during 2017-20, all due tohigh-tension transmission lines – some of them connected to wind turbine.

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ATherefore, petitioner seeks undergrounding all future overhead powerlines; selected power lines in priority GIB habitat and installation ofdivertors in potential habitat.

3. In fact, it is admitted by the Ministry of Power, Union of Indiain their affidavit dated 15.03.2021 as follows: -B

“The Great Indian Bustard (“GIB”) lacks frontal vision. Due tothis, they cannot detect powerlines ahead of them, from far. Asthey are heavy birds, they are unable to manoeuvre across powerlines within close distances. Thus, they are vulnerable to collisionwith power lines. In case of low voltage lines, electrocution isCoften the cause of death due to smaller phase to phase separationdistance. High voltage lines do not cause death due to electrocutionbut cause death due to collision.”

4. But, this Court while considering IA Nos.1433 and 1477 of2005 in the case of T.N. Godavarman Thirumulpad Vs. Union ofDIndia & Ors. (2012) 3 SCC 277 has observed as hereunder:

“17. Environmental justice could be achieved only if we drift awayfrom the principle of anthropocentric to ecocentric. Many of ourprinciples like sustainable development, polluter-pays principle,intergenerational equity have their roots in anthropocentricEprinciples. Anthropocentrism is always human interest focussedand that non-human has only instrumental value to humans. Inother words, humans take precedence and human responsibilitiesto non-human based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans haveintrinsic value. In other words, human interest does not takeFautomatic precedence and humans have obligations to non-humansindependently of human interest. Ecocentrism is therefore life-centred, nature-centred where nature includes both humans andnon-humans. The National Wildlife Action Plan 2002-2012 andthe Centrally Sponsored Integrated Development of WildlifeGHabitats Scheme, 2009 are centred on the principle ofecocentrism.”

In that context while taking note of the contention of the Staterelating to lack of funds, reference was made to the Centrally SponsoredIntegrated Development of Wildlife Habitats Scheme, 2009 whichprovides for financial sharing between Centre and State. Though takenH

note in the context of conservation of wild buffalo the pattern of fundingwas taken note in para-23 which provides for 100% central assistancein respect of GIB, for both recurring and non-recurring items ofexpenditure.

5. Further this Court in the case of Centre for EnvironmentalLaw, World Wide Fund – India Vs. Union of India & Ors., (2013) 8SCC 234 while considering the protection and conservation of endangeredspecies has observed as hereunder:

“45. We may point out that there has been wide-rangingdiscussions and deliberations on the international platforms andconferences for re-building of certain principles laid down in theearlier conventions on the Principles of Sustainable Development.The United Nations Commission on Environment and Developmentdefined the “sustainable development” as follows:

“Sustainable development is the development that meets the needsof the present without compromising the ability of futuregenerations to meet their own needs.” (World Commission onEconomic Development [WCED], 1987 : 43)

46. Sustainable development, it has been argued by various eminentenvironmentalists, clearly postulates an anthropocentric bias, leastconcerned with the rights of other species which live on this earth.Anthropocentrism is always human interest focussed thinking thatnon-human has only instrumental value to humans, in other words,humans take precedence and human responsibilities to non-humanare based on benefits to humans. Ecocentrism is nature-centred,where humans are part of nature and non-humans have intrinsicvalue. In other words, human interest does not take automaticprecedence and humans have obligations to non-humansindependently of human interest. Ecocentrism is, therefore, life-centred, nature-centred where nature includes both humans andnon-humans.”

“48. Article 21 of the Constitution of India protects not only thehuman rights but also casts an obligation on human beings toprotect and preserve a species becoming extinct, conservationand protection of environment is an inseparable part of right tolife. In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] , this Courtenunciated the doctrine of “public trust”, the thrust of that theory A

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Ais that certain common properties such as rivers, seashores, forestsand the air are held by the Government in trusteeship for the freeand unimpeded use of the general public. The resources like air,sea, waters and the forests have such a great importance to thepeople as a whole, that it would be totally unjustified to makethem a subject of private ownership. The State, as a custodian ofBthe natural resources, has a duty to maintain them not merely forthe benefit of the public, but for the best interest of flora andfauna, wildlife and so on. The doctrine of “public trust” has to beaddressed in that perspective.

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49. We, as human beings, have a duty to prevent the species fromCgoing extinct and have to advocate for an effective speciesprotection regimes. NWAP 2002-2016 and the Centrally-sponsoredscheme, 2009 indicate that there are many animal species whichare close enough to extinction and some of the other species havealready disappeared from this earth. No species can survive onDthe brink of extinction indefinitely and that the continued existenceof any species depends upon various factors like human-animalconflict, epidemics, forest fire and other natural calamities, etc.”

The State as well as the Central Government therefore, have aduty cast to preserve the endangered species and as such the expensesEincurred will have to be provided by them either under the schemesavailable or by earmarking the same in such manner. Needless to mentionthat in the instant case the preservation is by undergrounding thepowerlines and in that context if cost is incurred, it would also bepermissible to pass on a portion of such expenses to the ultimate consumersubject to approval of the Competent Regulatory Authority.F

6. The respondents though are sensitive to the issue, havecontended that the high-voltage lines do not cause GIB deaths due toelectrocution but cause death due to collision. It is contended that theunderground high-voltage line is not technically feasible due to severalfactors such as (i) high cost (ii) high downtime to repair any failed cableG(iii) non-availability of cables at 765 Kv level and (iv) increase in thenumber of joints with length of run. The petitioners/applicants in order tocontrovert the same and contend that the undergrounding of high-voltageline is not a novel move but has been undertaken in other cases, havereferred to the tender notification issued by Power TransmissionHCorporation of Uttarakhand Limited for 220 KV transmission line and the one issued by Delhi Transport Limited for 220 KV undergroundcable.

the one issued by Delhi Transport Limited for 220 KV undergroundcable.

7. In addition, the petitioners have also referred to the invitation ofpublic comments for laying underground cable transmission line of 220KV by the Government of India, Ministry of Road Transport andHighways. The report published by the Power Grid Corporation is referredto indicate that the undergrounding of 220 KV power line is possible andis being done in India. It is specifically contended that the 10 km longpower lines were made underground by GETCO for the safety of GreaterFlamingos in the Khadir Region of Kutch. Similar such instances ofunderground power lines being laid is also referred by Mr. Shyam Divan,learned senior counsel for the petitioner. Ms. Aishwarya Bhati, learnedASG and Dr. Manish Singhvi, learned senior counsel appearing on behalfof the respondents however sought to indicate that the instances referred,wherein the tender notifications were issued for underground powerlines cannot be made comparable in all cases inasmuch as the samewould be possible depending on the area, terrain and the distance forwhich such cable line is to be laid which cannot be of universal application.

8. In that background, keeping in view, the sustainable developmentconcept and on striking a balance the protection of the rare species ofbirds is essentially to be made, the effort being to save every bird whileat the same time allowing transmission of power in an appropriate manner.Even as per the study/survey conducted by the Wildlife Institute of India,it would not be feasible to lay underground power cables in certain areasand the conversion of the already existing cables also cannot be made incertain locations. In such of the locations, it is recommended that ‘birddivertors’ be installed on the existing power lines and the undergroundingof the new power line wherever technically feasible in the vicinity of thehabitats of the rare species of birds be undertaken.

9. The report dated 11.07.2019 was submitted by the WildlifeInstitute before the National Green Tribunal to that effect and para 4.2of the report reads as hereunder:

“4.2. Mitigate all power transmission lines passing through prioritybustard habitats identified by WII (Please refer Annexure 10) byundergrounding cables (where technically/technologically feasible)or installing bird divertors to make them prominent to birds. Thepriority areas where this intervention is required has been mappedby the Wildlife Institute of India and a technical-cum-financial AB

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Aproposal has been submitted to RVPNL for necessary approvalsfrom Rajasthan Energy Department for mitigation. This actionmust be expeditiously implemented in the short-term (1-3 years),as power-line mortality is currently the biggest threat to thespecies.”

10. In addition to the death of the birds due to collision andBelectrocution, the conservation strategy also requires protecting the eggsof the said species of birds and the same being transferred to breedingcentres for the purpose of hatching. In that regard, for conservation, thehabitat restoration and for making it predator proof, appropriate fencingis to be provided to the breeding grounds. In that regard, pictorialCrepresentation of the priority and potential area is indicated in AnnexureA-7 (page 74) of I.A. No.85618/2020 which is also depicted here below.

11. In the above background, there cannot be disagreementwhatsoever that appropriate steps are required to be taken to protectthe said species of birds. In that view, insofar as the existing overheadDpowerlines are concerned the respondents shall take steps forthwith toinstall divertors and in respect of existing overhead powerlines all futurecases of installing the transmission lines a study shall be conducted withregard to the feasibility for the lines to be laid underground. In all suchcases where it is feasible, steps shall be taken to lay the transmissionline underground. For the lines to be laid in future if as per the technicalEreport the overhead line alone is feasible and the same is ratified by theCommittee, in such event the installation of the divertors shall also be acondition attached in the contract to be entered with generating companies.Insofar as, the cost incurred in the said process, the concernedrespondents No. 5 to 8 and 9 to 11 shall work out and provide for the Fsame and the respondents No.1 to 4 aid in this regard. It would be opento them to muster the resources in accordance with law. In cases wherethe power generators are required to bear the additional amount addingto the cost of production, it would be open to regulate the manner inwhich the cost would be mitigated in accordance with contractual terms.

Irrespective of the cost factor the priority shall be to save the near extinctGbirds.

12. In fact, a few suggestions were made in the course ofarguments, as to how financial resources can be mobilised. One of theoptions that could be explored, is to invite the attention of each electricityutility engaged in the generation of power, to Section 135 of the CompaniesHAct, 2013, which imposes corporate social responsibility upon companies having a specified net worth or turnover or net profit. Section 166(2) ofthe Companies Act, 2013 ordains the Director of a Company to act ingood faith, not only in the best interest of the Company, its employees,the shareholders and the community, but also for the protection ofenvironment. The word “environment”, though not defined in theCompanies Act, has to be given the meaning assigned to it under theEnvironment (Protection) Act, 1986. Section 2(a) of the Environment(Protection) Act, 1986, defines the word “environment” to include the“inter- relationship which exists among and between water, air andland, and human beings, other living creatures, plants, micro-organisms and property”

Moreover, with the implementation of the CompensatoryAfforestation Fund Act, 2016 (CAF, 2016), substantial funds are availablewith the National and State Authorities. Sections 4, 5 and 6 of the Act,provide for the utilisation of the fund for measures to mitigate threats towildlife. The State of Rajasthan has already set up a CompensatoryAfforestation Fund Management and Planning Authority (CAMPA) on12.11.2009. Rule 5(2)(i) of these Rules permit the use of the State Fundfor the improvement of wildlife habitat. It appears, according to thepetitioners that a sum of Rs.47,436 crores, out of a total of Rs.54,685crores CAMPA Fund have been transferred by the Union EnvironmentMinistry to the States for afforestation projects.

13. With regard to the conservation of the habitat to secure thesafety of the eggs laid by the birds, the area earmarked and indicated asislands and shown in Annexure-A-7 and in light colour in sketch herebelow shall be fenced and protected from invasion by predators so thatthe eggs laid in these areas are protected. The power supply line regardingwhich underground passage is to be made should also avoid these areas.

14. In the light of the contentions urged on this aspect of thematter, we are conscious that the laying of the underground power linemore particularly of high-voltage though not impossible, would requiretechnical evaluation on case-to-case basis and an omnibus conclusioncannot be reached laying down a uniform method and directions cannotbe issued unmindful of the fact situation. Though that be the position theconsensus shall be that all low voltage powerlines to be laid in the priorityand potential habitats of GIB shall in all cases be laid underground infuture. In respect of low voltage overhead powerlines existing presentlyin the priority and potential habitats of GIB, the same shall be convertedinto underground powerlines. In respect of high-voltage powerlines in AB

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Athe priority and potential habitats of GIB, more particularly the powerlinesreferred in the prayer column of I.A. No.85618/2020 and indicated inthe operative portion of this order shall be converted into undergroundpower line. The potential and priority area in Kutch and Thar respectivelyare as per the sketch shown below:

BWhile considering the laying of underground power line the saidhabitats shall be kept in perspective and steps be taken for the safety ofthe GIB in the said habitat.

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15. As already taken note above, the laying of high-voltageunderground power line would require expertise to assess the feasibilityof the same. For this specific purpose of assessing the feasibility aftertaking into consideration all technical details, we deem it proper toconstitute a committee consisting of the following members:

(i) Dr. Rahul Rawat,

Scientist,

Room No.021, Block-14,Ministry of New and Renewable Energy,CGO Complex, Lodi Road,New Delhi.

(ii) Dr. Sutirtha Dutta,Scientist,

Wildlife Institute of India,

Dehradun.

(iii) Dr. Devesh Gadhavi,

Deputy Director,

The Corbett Foundation.

The above committee may also obtain technical reports if needbe, from experts in the field of electricity supply to arrive at their decision.The Government of India shall provide all assistance to the Committee.

16. The details of the powerlines from Kutch for installation ofbird divertors is as follows:

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92SUPREME COURT REPORTS[2021] 4 S.C.R.AThe details of the powerlines for installation of divertors fromRajasthan are as follows:a) List of powerlines for installation of divertors Capacityfrom Rajasthan1) Jaisalmer – Ramgarh -1 (40 Km)132 kv2) Jaisalmer – Ramgarh -2 (40 Km)132 kvB3) Askandra (Pokran to Askandra ) (30 Km)132 kv4) Askandra (Pokran to Askandra ) (20 Km) 132 kv 5) Amarsagar – Ramgarh (40 Km)220 kv6) Amarsagar – Lilo (8 Km) 220 kv 7) Amarsagar – Phalodi (54 Km)220 kv8) Amarsagar – Phalodi (71 Km)220 kvC9) Ramgarh Dechu (49 Km)220 kv10) Ramgarh Dechu (43 Km)220 kv11) Ramgarh Dechu (50 Km)220 kv12)Akai – Ramgarh (55 Km) 400 kv 13)Tejuva – Kuchadi (138 km)33 kv14) Kaladongar (70 Km) 33 kv D15) Mokla – Habur – Sanu (301 km)33 kv16)Tejuva – Kuchadi (25 km)132 kv17)Kaladongar (47 km)132/220 kv18)Mokla – Habur – Sanu (43 km) 132/220 kv 19) Chandan Via Bhagu ka Gaon to Mohangarh (70 km)33 kv20) Amarsagar – Ramgarh (40 km) 220 kv 21) Amarsagar – Ludarva (4 km)33 kvEThe details of the powerlines to be converted to undergroundsubject to feasibility, if not, to immediately install divertors;Lines from KutchFGH

Lines from Rajasthan

Lines from Rajasthan

17. The respondents No.5, 6 and 9 to 11 while arranging to lay thepowerlines underground in respect of the powerlines, the feasibility ofwhich is not in doubt shall proceed with the work right away. However,in cases where the respondents find that there are issues relating tofeasibility, the matter shall be referred to the committee with all relevantmaterial and particulars. The committee shall assess the matter and arriveat a conclusion as to whether the underground powerline is feasible ornot. Based on the report to be rendered by the committee the furtheraction shall be taken by the respondent.

18. In all cases where the overhead powerlines exist as on todayin the priority and potential GIB area the respondents shall take stepsforthwith to install divertors pending consideration of the conversion ofthe overhead cables into underground powerlines. In all such cases where A

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Ait is found feasible to convert the overhead cables into undergroundpowerlines the same shall be undertaken and completed within a periodof one year and till such time the divertors shall be hung from the existingpowerlines.

19. Ordered accordingly.

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Directions issued.

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