Paragraph numbers below are the court’s original numbering, recovered from the source text.
6. The respondents though are sensitive to the issue, have contended that the high-voltage 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) non-availability 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-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 technical-cum-financial M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS. proposal has been submitted to RVPNL for necessary approvals from Rajasthan Energy Department for mitigation. This action must be expeditiously implemented in the short-term (1-3 years), as power-line 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 A-7 (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 “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 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 Annexure-A-7 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 high-voltage though not impossible, would require technical evaluation on case-to-case 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 high-voltage powerlines in M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS. 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 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, 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 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: M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS. The details of the powerlines for installation of divertors from Rajasthan are as follows: 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 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 Lines from Rajasthan
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 M.K. RANJITSINH & ORS. v. UNION OF INDIA & ORS. 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. Nidhi Jain Directions issued.