SC forms committee to decide upon the feasibility of underground powerlines to protect GIB

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. In all cases where the overhead power lines exist as on today in the priority and potential GIB area, the respondents shall take steps forthwith to install diverters pending consideration of the conversion of the overhead cables into underground power lines. In all such cases where it is found feasible to convert the overhead cables into underground power lines the same shall be undertaken and completed within a period of one year and till such time the diverters shall be hung from the existing power lines. (Para 19)

M.K. RANJITSINH & ORS. V/S UNION OF INDIA & ORS.

WRIT PETITION (CIVIL) NO.838 OF 2019

19 April’ 2021

After hearing the arguments of both parties, the court learned that the light of the contentions urged on this aspect of the matter, it was 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 power lines 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 power lines existing presently in the priority and potential habitats of GIB, the same shall be converted into underground power lines. In respect of high­ voltage power lines in the priority and potential habitats of GIB, more particularly the power lines referred to in the prayer column of I.A. No.85618/2020 and indicated in the operative portion of this order shall be converted into the underground power line.

The writ petition, in this case, is filed like 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 direction from the respondents to install diverters for the power lines which have been listed in the application. 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 a wingspan of around seven feet. It has disappeared from 90 percent of the habitat except for parts of Rajasthan and Gujarat which are 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.

The court noted that 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 power lines ahead of them, from far. As they are heavy birds, they are unable to maneuver across power lines within close distances. Thus, they are vulnerable to collision with power lines. In the 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.” Para 3

The court considered the case-law of T.N. Godavarman Thirumulpad Vs. Union of India & Ors. (2012) 3 SCC 277 in which it was held that “human interest does not take automatic precedence and humans have obligations to non­humans independently of human interest. Eco centrism is therefore life ­centered, nature ­centered 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 centered on the principle of eco centrism.” Para 4

Further this Court in the case of Centre for Environmental Law, World Wide Fund – India Vs. Union of India & Ors., (2013) 8 SCC 234, the court noted that “while considering the protection and conservation of endangered 5 species have been observed hereunder. We may point out that there have been wide-ranging discussions and deliberations on the international platforms and conferences for the rebuilding of certain principles laid down in the earlier conventions on the Principles of Sustainable Development”, (Para 5).

After hearing the arguments of both parties, the court learned that the light of the contentions urged on this aspect of the matter, it was 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 power lines 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 power lines existing presently in the priority and potential habitats of GIB, the same shall be converted into underground power lines. In respect of high­ voltage power lines in the priority and potential habitats of GIB, more particularly the power lines referred to in the prayer column of I.A. No.85618/2020 and indicated in the operative portion of this order shall be converted into the underground power line.

Regarding the above, the court held that “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 utilization 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”. (Para 12)

Concluding the court held that, “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. In all cases where the overhead power lines exist as on today in the priority and potential GIB area, the respondents shall take steps forthwith to install diverters pending consideration of the conversion of the overhead cables into underground power lines. In all such cases where it is found feasible to convert the overhead cables into underground power lines the same shall be undertaken and completed within a period of one year and till such time the diverters shall be hung from the existing power lines.” (Para 19)

Eventually, ordered accordingly.

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Aaron Varughese