LAW FOR ALL : seeking to protect two species of birds namely the Great Indian Bustard (‘GIB’ for short) and the Lesser 1 Florican, which is on the verge of extinction.

Tuesday, April 20, 2021

seeking to protect two species of birds namely the Great Indian Bustard (‘GIB’ for short) and the Lesser 1 Florican, which is on the verge of extinction.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.85618 OF 2020

WRIT PETITION (CIVIL) NO.838 OF 2019

M.K. Ranjitsinh & Ors. .…. Petitioner(s)

Versus

Union of India & Ors. ….Respondent(s)

O R D E R

1. The writ petition is filed in the nature of public

interest seeking to 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 hazard due

to which the said species of birds on collision are getting

killed. In the pending writ petition, the application in I.A.

No.85618/2020 is filed seeking interim directions to direct

the State of Rajasthan (respondents No.5 and 6) and State of

Gujarat (respondents No.9 to 11) to ensure predator proof

fencing, controlled grazing in the enclosure development and

to direct the said respondents not to permit installation of

overhead power lines and also not permit further

construction of windmills and installation of solar

infrastructure in priority and potential habitat as identified

by the Wildlife Institute of India. The petitioner is also

seeking a direction to the respondents to install divertors for

the powerlines which has been listed in the application.

2. The very subject matter indicates that though such

directions are sought against the respondents, the litigation

is not adversarial in nature as it is community interest. In

fact, the petitioners being environmentalists, are seeking to

protect the rare birds which are dwindling in number. It is

contended that GIB is one of the heaviest flying birds in the

world, about a meter in height and wing span of around

seven feet. It has disappeared from 90 per cent of habitat

except parts of Rajasthan and Gujarat which is to be

protected. According to the petitioners, overhead power lines

are the biggest threat to the survival of the GIBs. The

Wildlife Institute of India (WII) in its Report “Power Line

Mitigation, 2018” has stated that every year 1 lakh birds die

due to collision with power lines. The Report concluded that

unless power line mortality is mitigated urgently, extinction

of GIBs is certain. Surveys conducted by Wildlife Institute of

India (WII) in Thar covering 80 km of power lines repeated 7

times over a year found 289 carcasses of around 30 species,

including the Great Indian Bustard (GIB). The study

estimated 3 bird mortalities/km/month for lowtension

lines, 6 bird mortalities/km/month for hightension lines,

and about 1 lakh birds/per year within a 4200 sq.km area

in/around Desert National Park, Rajasthan. In terms of

GIB, 6 mortalities have been recorded in Thar during 2017

20, all due to hightension transmission lines – some of

them connected to wind turbine. Therefore, petitioner seeks

undergrounding all future overhead power lines; selected

power lines in priority GIB habitat and installation of

divertors in potential habitat.

3. In fact, it is admitted by the Ministry of Power, Union

of India in their affidavit dated 15.03.2021 as follows:

“The Great Indian Bustard (“GIB”) lacks frontal

vision. Due to this, they cannot detect

powerlines ahead of them, from far. As they are

heavy birds, they are unable to manoeuvre

across power lines within close distances. Thus,

they are vulnerable to collision with power lines.

In case of low voltage lines, electrocution is often

the cause of death due to smaller phase to phase

separation distance. High voltage lines do not

cause death due to electrocution but cause death

due to collision.”

4. But, this Court while considering IA Nos.1433 and

1477 of 2005 in the case of T.N. Godavarman

Thirumulpad Vs. Union of India & Ors. (2012) 3 SCC 277

has observed as hereunder:

“17. Environmental justice could be achieved

only if we drift away from the principle of

anthropocentric to ecocentric. Many of our

principles like sustainable development,

polluterpays principle, intergenerational equity

have their roots in anthropocentric principles.

Anthropocentrism is always human interest

focussed and that nonhuman has only

instrumental value to humans. In other words,

humans take precedence and human

responsibilities to nonhuman based benefits to

humans. Ecocentrism is naturecentred where

humans are part of nature and nonhumans

have intrinsic value. In other words, human

interest does not take automatic precedence

and humans have obligations to nonhumans

independently of human interest. Ecocentrism

is therefore lifecentred, naturecentred where

nature includes both humans and nonhumans.

The National Wildlife Action Plan 20022012

and the Centrally Sponsored Integrated

Development of Wildlife Habitats Scheme, 2009

are centred on the principle of ecocentrism.”

In that context while taking note of the contention of the

State relating to lack of funds, reference was made to the

Centrally Sponsored Integrated Development of Wildlife

Habitats Scheme, 2009 which provides for financial

sharing between Centre and State. Though taken note in

the context of conservation of wild buffalo the pattern of

funding was taken note in para23 which provides for

100% central assistance in respect of GIB, for both

recurring and nonrecurring items of expenditure.

5. Further this Court in the case of Centre for

Environmental Law, World Wide Fund – India Vs.

Union of India & Ors., (2013) 8 SCC 234 while

considering the protection and conservation of endangered

species has observed as hereunder:

“45. We may point out that there has been wideranging discussions and deliberations on the

international platforms and conferences for rebuilding of certain principles laid down in the

earlier conventions on the Principles of

Sustainable Development. The United Nations

Commission on Environment and Development

defined the “sustainable development” as

follows:

“Sustainable development is the development

that meets the needs of the present without

compromising the ability of future generations

to meet their own needs.” (World Commission

on Economic Development [WCED], 1987 : 43)

46. Sustainable development, it has been

argued by various eminent environmentalists,

clearly postulates an anthropocentric bias, least

concerned with the rights of other species which

live on this earth. Anthropocentrism is always

human interest focussed thinking that nonhuman has only instrumental value to humans,

in other words, humans take precedence and

human responsibilities to nonhuman are based

on benefits to humans. Ecocentrism is naturecentred, where humans are part of nature and

nonhumans have intrinsic value. In other

words, human interest does not take automatic

precedence and humans have obligations to

nonhumans independently of human interest.

Ecocentrism is, therefore, lifecentred, naturecentred where nature includes both humans

and nonhumans.”

“48. Article 21 of the Constitution of India

protects not only the human rights but also

casts an obligation on human beings to protect

and preserve a species becoming extinct,

conservation and protection of environment is

an inseparable part of right to life. In M.C.

Mehta v. Kamal Nath [(1997) 1 SCC 388] , this

Court enunciated the doctrine of “public trust”,

the thrust of that theory is that certain common

properties such as rivers, seashores, forests and

the air are held by the Government in

trusteeship for the free and unimpeded use of

the general public. The resources like air, sea,

waters and the forests have such a great

importance to the people as a whole, that it

would be totally unjustified to make them a

subject of private ownership. The State, as a

custodian of the natural resources, has a duty

to maintain them not merely for the benefit of

the public, but for the best interest of flora and

fauna, wildlife and so on. The doctrine of “public

trust” has to be addressed in that perspective.

49. We, as human beings, have a duty to

prevent the species from going extinct and have

to advocate for an effective species protection

regimes. NWAP 20022016 and the Centrallysponsored scheme, 2009 indicate that there are

many animal species which are close enough to

extinction and some of the other species have

already disappeared from this earth. No species

can survive on the brink of extinction

indefinitely and that the continued existence of

any species depends upon various factors like

humananimal conflict, epidemics, forest fire

and other natural calamities, etc.”

The State as well as the Central Government therefore,

have a duty cast to preserve the endangered species and

as such the expenses incurred will have to be provided by

them either under the schemes available or by

earmarking the same in such manner. Needless to

mention that in the instant case the preservation is by

undergrounding the powerlines and in that context if cost

is incurred, it would also be permissible to pass on a

portion of such expenses to the ultimate consumer

subject to approval of the Competent Regulatory

Authority.

6. The respondents though are sensitive to the issue,

have contended that the highvoltage lines do not cause

GIB deaths due to electrocution but cause death due to

collision. It is contended that the underground highvoltage line is not technically feasible due to several

factors such as (i) high cost (ii) high downtime to repair

any failed cable (iii) nonavailability of cables at 765 Kv

level and (iv) increase in the number of joints with length

of run. The petitioners/applicants in order to controvert

the same and contend that the undergrounding of high8

voltage line is not a novel move but has been undertaken

in other cases, have referred to the tender notification

issued by Power Transmission Corporation of

Uttarakhand Limited for 220 KV transmission line and

the one issued by Delhi Transport Limited for 220 KV

underground cable.

7. In addition, the petitioners have also referred to the

invitation of public comments for laying underground

cable transmission line of 220 KV by the Government of

India, Ministry of Road Transport and Highways. The

report published by the Power Grid Corporation is

referred to indicate that the undergrounding of 220 KV

power line is possible and is being done in India. It is

specifically contended that the 10 km long power lines

were made underground by GETCO for the safety of

Greater Flamingos in the Khadir Region of Kutch.

Similar such instances of underground power lines being

laid is also referred by Mr. Shyam Divan, learned senior

counsel for the petitioner. Ms. Aishwarya Bhati, learned

ASG and Dr. Manish Singhvi, learned senior counsel

appearing on behalf of the respondents however sought

to indicate that the instances referred, wherein the tender

notifications were issued for underground power lines

cannot be made comparable in all cases inasmuch as the

same would be possible depending on the area, terrain

and the distance for which such cable line is to be laid

which cannot be of universal application.

8. In that background, keeping in view, the sustainable

development concept and on striking a balance the

protection of the rare species of birds is essentially to be

made, the effort being to save every bird while at 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

areas and the conversion of the already existing cables

also cannot be made in certain locations. In such of the

locations, it is recommended that ‘bird divertors’ be

installed on the existing power lines and the

undergrounding of the new power line wherever

technically feasible in the vicinity of the habitats of the

rare species of birds be undertaken.

9. The report dated 11.07.2019 was submitted by the

Wildlife Institute before the National Green Tribunal to

that effect and para 4.2 of the report reads as hereunder:

“4.2. Mitigate all power transmission lines

passing through priority bustard habitats

identified by WII (Please refer Annexure 10)

by undergrounding cables (where

technically/technologically feasible) or

installing bird divertors to make them

prominent to birds. The priority areas where

this intervention is required has been

mapped by the Wildlife Institute of India and

a technicalcumfinancial proposal has been

submitted to RVPNL for necessary approvals

from Rajasthan Energy Department for

mitigation. This action must be expeditiously

implemented in the shortterm (13 years), as

powerline mortality is currently the biggest

threat to the species.”

10. In addition to the death of the birds due to collision

and electrocution, the conservation strategy also requires

protecting the eggs of the said species of birds and the

same being transferred to breeding centres for the

purpose of hatching. In that regard, for conservation, the

habitat restoration and for making it predator proof,

appropriate fencing is to be provided to the breeding

grounds. In that regard, pictorial representation of the

priority and potential area is indicated in Annexure A7

(page 74) of I.A. No.85618/2020 which is also depicted

here below.

11. In the above background, there cannot be

disagreement whatsoever that appropriate steps are

required to be taken to protect the said species of birds.

In that view, insofar as the existing overhead powerlines

are concerned the respondents shall take steps forthwith

to install divertors and in respect of existing overhead

powerlines all future cases of installing the transmission

lines a study shall be conducted with regard to the

feasibility for the lines to be laid underground. In all such

cases where it is feasible, steps shall be taken to lay the

transmission line underground. For the lines to be laid in

future if as per the technical report the overhead line

alone is feasible and the same is ratified by the

Committee, in such event the installation of the divertors

shall also be a condition attached in the contract to be

entered with generating companies. Insofar as, the cost

incurred in the said process, the concerned respondents

No. 5 to 8 and 9 to 11 shall work out and provide for the

same and the respondents No.1 to 4 aid in this regard. It

would be open to them to muster the resources in

accordance with law. In cases where the power

generators are required to bear the additional amount

adding to the cost of production, it would be open to

regulate the manner in which the cost would be mitigated

in accordance with contractual terms. Irrespective of the

cost factor the priority shall be to save the near extinct

birds.

12. In fact, a few suggestions were made in the course of

arguments, as to how financial resources can be mobilised.

One of the options that could be explored, is to invite the

attention of each electricity utility engaged in the generation

of power, to Section 135 of the Companies Act, 2013, which

imposes corporate social responsibility upon companies

having a specified net worth or turnover or net profit.

Section 166(2) of the Companies Act, 2013 ordains the

Director of a Company to act in good faith, not only in the

best interest of the Company, its employees, the

shareholders and the community, but also for the protection

of environment. The word “environment”, though not

defined in the Companies Act, has to be given the meaning

assigned to it under the Environment (Protection) Act, 1986.

Section 2(a) of the Environment (Protection) Act, 1986,

defines the word “environment” to include the “interrelationship which exists among and between water, air and

land, and human beings, other living creatures, plants, microorganisms and property”

Moreover, with the implementation of the Compensatory

Afforestation Fund Act, 2016 (CAF, 2016), substantial

funds are available with 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 to wildlife. The State of Rajasthan has already set

up a Compensatory Afforestation Fund Management and

Planning Authority (CAMPA) on 12.11.2009. Rule 5(2)(i)

of these Rules permit the use of the State Fund for the

improvement of wildlife habitat. It appears, according to

the petitioners that a sum of Rs.47,436 crores, out of a

total of Rs.54,685 crores CAMPA Fund have been

transferred by the Union Environment Ministry to the

States for afforestation projects.

13. With regard to the conservation of the habitat to

secure the safety of the eggs laid by the birds, the area

earmarked and indicated as islands and shown in

AnnexureA7 and in light colour in sketch here below

shall be fenced and protected from invasion by predators

so that the eggs laid in these areas are protected. The

power supply line regarding which underground passage

is to be made should also avoid these areas.

14. In the light of the contentions urged on this aspect

of the matter, we are conscious that the laying of the

underground power line more particularly of highvoltage

though not impossible, would require technical

evaluation on casetocase basis and an omnibus

conclusion cannot be reached laying down a uniform

method and directions cannot be issued unmindful of the

fact situation. Though that be the position the

consensus shall be that all low voltage powerlines to be

laid in the priority and potential habitats of GIB shall in

all cases be laid underground in future. In respect of low

voltage overhead powerlines existing presently in the

priority and potential habitats of GIB, the same shall be

converted into underground powerlines. In respect of

highvoltage powerlines in the priority and potential

habitats of GIB, more particularly the powerlines referred

in the prayer column of I.A. No.85618/2020 and

indicated in the operative portion of this order shall be

converted into underground power line. The potential

and priority area in Kutch and Thar respectively are as

per the sketch shown below:

While considering the laying of underground power line

the said habitats shall be kept in perspective and steps be

taken for the safety of the GIB in the said habitat.

15. As already taken note above, the laying of highvoltage underground power line would require expertise to

assess the feasibility of the same. For this specific

purpose of assessing the feasibility after taking into

consideration all technical details, we deem it proper to

constitute a committee consisting of the following

members:

(i) Dr. Rahul Rawat,

Scientist,

Room No.021, Block14,

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 need be, 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 of bird divertors is as follows:

a) List of powerlines from Kutch for

installation of divertors

Capacity

1) Kukdau to Vingaber (8.86 Km) Unknown

2) Vingaber to Lala (4.84 Km) Unknown

3) Agriculture area near highway NH41 (0.53 KM)

Unknown

4) Agriculture area near highway NH41 (0.86 KM)

Unknown

5) Khirsara village to Khotara town

(3.42 Km)

Unknown

6) Prajau Substation to Prajau Village

on road side (2.81 Km)

Unknown

7) Part of Bhamedi to Naliya (4.44 Km) Unknown

8) Part of Fulay vandh to NaliyaJakhau Road (10.9 Km)

Unknown

9) Part of Kothara Naliya line (9.1 Km) Unknown

10) Part of KotharaNaliya Line (6.90

km)

Unknown

11) Part of Vanku to Fulay Vandh

(6.25 km)

Unknown

The details of the powerlines for installation of

divertors from Rajasthan are as follows:

b) List of powerlines for

installation of divertors from

Rajasthan

Capacity

1) Jaisalmer – Ramgarh 1 (40 Km) 132 kv

2) Jaisalmer – Ramgarh 2 (40 Km) 132 kv

3) Askandra (Pokran to Askandra )

(30 Km)

132 kv

4) Askandra (Pokran to Askandra )

(20 Km)

132 kv

5) Amarsagar – Ramgarh (40 Km) 220 kv

6) Amarsagar – Lilo (8 Km) 220 kv

7) Amarsagar – Phalodi (54 Km) 220 kv

8) Amarsagar – Phalodi (71 Km) 220 kv

9) Ramgarh Dechu (49 Km) 220 kv

10) Ramgarh Dechu (43 Km) 220 kv

11) Ramgarh Dechu (50 Km) 220 kv

12) Akai – Ramgarh (55 Km) 400 kv

13) Tejuva – Kuchadi (138 km) 33 kv

14) Kaladongar (70 Km) 33 kv

15) Mokla – Habur – Sanu (301 km) 33 kv

16) Tejuva – Kuchadi (25 km) 132 kv

17) Kaladongar (47 km) 132/220 kv

18) Mokla – Habur – Sanu (43 km) 132/220 kv

19) Chandan Via Bhagu ka Gaon to

Mohangarh (70 km)

33 kv

20) Amarsagar – Ramgarh (40 km) 220 kv

21) Amarsagar – Ludarva (4 km) 33 kv

The details of the powerlines to be converted to

underground subject to feasibility, if not, to immediately

install divertors;

Lines from Kutch

a) List of powerlines from Kutch for

undergrounding

Capacity

1) 220 KV GETCO line next to breeding

site 13 cables (3.19 Km)

220 KV

2) Bhachunda GIB habitat to Sandhav

River line (2.1 Km)

Unknown

3) Bhanada to Valram Society (6.1 Km) 66 KV

4) GETCO Substation to Dhanawada –

Nanawada (9.81 Km)

Unknown

5) GETCO Substation to KotharaMothala Road (9.69 Km)

Unknown

6) Jakhau to Prajau road substation

(10.9 Km)

Unknown

7) Jakhau to Sindhodi (8.39 Km) Unknown

8) Jakhau to Sindhodi (8.53 Km) Unknown

9) Jakhau to Sindhodi (8.57 Km) Unknown

10) JakhauVanku Road to Prajau Road

substation (3.43 Km)

Unknown

11) Kalatalav Khirsara Road (9.0 Km) Unknown

12) Khirsara Kothara (8.20 Km) Unknown

13) Khirsara to Kothara River

Wastelands (2.24 Km)

Unknown

14) Kunathiya GETCO to Bitta & around

Adani Solar (6.65)

220 kv

15) Kunathiya GETCO to Tera (7.32 Km) 66 KV

16) Kunathiya GETCO towards Rava

(3.34 km)

66 KV

17) Lala to Jakhau (11.6 Km) Unknown

18) Line near Khorsara (2.77 Km) Unknown

19) Line near Lala village (1.45 Km) Unknown

20) NaliyaKothara Road (6.58 Km) Unknown

21) NaliyaKothara Highway (15.0 Km) Unknown

22) NaliyaKothara Highway Line (15.7

km)

Unknown

23) NaliyaKothara Road to Prajau (9.15

Km)

Unknown

24) NaliyaKothara Road to VankuLala

Road (10.8 km)

66 KV

25) Prajau Road (5.57 Km) Unknown

26) Prajau to NaliyaJakhau Road Unknown

27) Prajau Road line passing through

Naliya Grasslands (4.43 km)

Unknown

28) Prajau Road substation to NaliyaKothara Road substation

Unknown

29) Prajau village to Prajau Road (5.82

Km)

Unknown

30) Part of Bhamedi to NaliyaJakhau

Road (8.19 km)

Unknown

31) Part of Fulay Vandh to Naliya Unknown

Jakhau Highway (8.27 Km)

32) Part of KotharaNaliya (8.82 Km) Unknown

33) Part of KotharaNaliya line (9.36 km) Unknown

34) Part of Vanku to Fulay Vandh line (1

km)

Unknown

35) Khirsara to Highway River

Wastelands (1.59 Km)

Unknown

36) Kunathiya GETCO to Bhanada

Village via Agri Farms (12.1 km)

66 KV

Lines from Rajasthan

b) List of powerlines from Rajasthan

for undergrounding

Capacity

1) KanoiSalkha (21 Km) 33 kv

2) SamDhanana (45 Km) 33 kv

3) TejuvaKuchr (17 Km) 33 kv

4) Khuchri horizontalparallel (21 Km) 33 kv

17. The respondents No.5, 6 and 9 to 11 while arranging

to lay the powerlines underground in respect of the

powerlines, the feasibility of which is not in doubt shall

proceed with the work right away. However, in cases where

the respondents find that there are issues relating to

feasibility, the matter shall be referred to the committee

with all relevant material and particulars. The committee

shall assess the matter and arrive at a conclusion as to

whether the underground powerline is feasible or not.

Based on the report to be rendered by the committee the

further action shall be taken by the respondent.

18. In all cases where the overhead powerlines exist as

on today in the priority and potential GIB area the

respondents shall take steps forthwith to install divertors

pending consideration of the conversion of the overhead

cables into underground powerlines. In all such cases

where it is found feasible to convert the overhead cables

into underground powerlines the same shall be undertaken

and completed within a period of one year and till such

time the divertors shall be hung from the existing

powerlines.

19. Ordered accordingly.

..…………....................CJI.

(S. A. Bobde)

…..…………....................J.

(A.S. Bopanna)

..…..………......................J.

(V. Ramasubramanian)

New Delhi,

April 19, 2021

LAW FOR ALL

LawforAll

advocatemmmohan

WELCOME TO LEGAL WORLD

Tuesday, April 20, 2021

seeking to protect two species of birds namely the Great Indian Bustard (‘GIB’ for short) and the Lesser 1 Florican, which is on the verge of extinction.