M.K. Ranjitsinh vs Union Of India

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO.85618 OF 2020

IN

WRIT PETITION (CIVIL) NO.838 OF 2019

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

Versus

Union of India & Ors. ….Respondent(s)

ORDER

1. The writ petition is filed in the nature of public Signature Not Verified Digitally signed by Sanjay Kumar Date: 2021.04.19 interest seeking to protect two species of birds namely the 16:20:14 IST Reason:

Great Indian Bustard (‘GIB’ for short) and the Lesser

1 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

2 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

3 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 4 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

5 species has observed as hereunder:

“45. We may point out that there has been wide­ ranging discussions and deliberations on the international platforms and conferences for re­ building 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 non­ human 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 nature­ centred, 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, nature­ centred where nature includes both humans and non­humans.”

6 “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 Centrally­ sponsored 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, 7 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 high­

voltage 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 high­

8 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

9 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

10 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

11 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

12 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

13 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 “inter­

relationship which exists among and between water, air and

land, and human beings, other living creatures, plants, micro­

organisms 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

14 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

15 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:

16 17

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 high­

voltage 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

18 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 Capacity installation of divertors

1) Kukdau to Vingaber (8.86 Km) Unknown

2) Vingaber to Lala (4.84 Km) Unknown

3) Agriculture area near highway NH­ Unknown 41 (0.53 KM)

4) Agriculture area near highway NH­ Unknown 41 (0.86 KM)

5) Khirsara village to Khotara town Unknown (3.42 Km)

6) Prajau Substation to Prajau Village Unknown on road side (2.81 Km)

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

8) Part of Fulay vandh to Naliya­ Unknown Jakhau Road (10.9 Km)

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

10) Part of Kothara­Naliya Line (6.90 Unknown km)

11) Part of Vanku to Fulay Vandh Unknown (6.25 km)

The details of the powerlines for installation of

divertors from Rajasthan are as follows:

b) List of powerlines for Capacity installation of divertors from Rajasthan 1) Jaisalmer – Ramgarh ­1 (40 Km) 132 kv 2) Jaisalmer – Ramgarh ­2 (40 Km) 132 kv

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3) Askandra (Pokran to Askandra ) 132 kv (30 Km)

4) Askandra (Pokran to Askandra ) 132 kv (20 Km)

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 33 kv Mohangarh (70 km)

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 Capacity undergrounding

1) 220 KV GETCO line next to breeding 220 KV site 13 cables (3.19 Km)

2) Bhachunda GIB habitat to Sandhav Unknown River line (2.1 Km)

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

4) GETCO Substation to Dhanawada – Unknown Nanawada (9.81 Km)

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5) GETCO Substation to Kothara­ Unknown Mothala Road (9.69 Km)

6) Jakhau to Prajau road substation Unknown (10.9 Km)

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 Unknown substation (3.43 Km)

11) Kalatalav Khirsara Road (9.0 Km) Unknown

12) Khirsara Kothara (8.20 Km) Unknown

13) Khirsara to Kothara River Unknown Wastelands (2.24 Km)

14) Kunathiya GETCO to Bitta & around 220 kv Adani Solar (6.65)

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

16) Kunathiya GETCO towards Rava 66 KV (3.34 km)

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 Unknown km)

23) Naliya­Kothara Road to Prajau (9.15 Unknown Km)

24) Naliya­Kothara Road to Vanku­Lala 66 KV Road (10.8 km)

25) Prajau Road (5.57 Km) Unknown

26) Prajau to Naliya­Jakhau Road Unknown

27) Prajau Road line passing through Unknown Naliya Grasslands (4.43 km)

28) Prajau Road substation to Naliya­ Unknown Kothara Road substation

29) Prajau village to Prajau Road (5.82 Unknown Km)

30) Part of Bhamedi to Naliya­Jakhau Unknown Road (8.19 km)

31) Part of Fulay Vandh to Naliya­ Unknown

21 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 Unknown km)

35) Khirsara to Highway River Unknown Wastelands (1.59 Km)

36) Kunathiya GETCO to Bhanada 66 KV Village via Agri Farms (12.1 km)

Lines from Rajasthan

b) List of powerlines from Rajasthan Capacity for undergrounding

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.

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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

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