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Lay Power Lines underground in habitats of Great Indian Bustard- Supreme Court

June 15, 2021

By Lucy Rana and Manmeet Singh Marwah

INTRODUCTION

Extinction of wildlife due to man-made intrusions has become a major concern the world over.  The Wildlife Institute of India (hereinafter referred to as “WII”) has published its report, namely “Power Line Mitigation, 2018[1]”, wherein it was stated that every year one lakh birds die due to collision with power lines. More specifically, extinction of the Great Indian Bustard is imminent  until and unless power line mortality is mitigated on an emergency footing. The survey, conducted by the Wildlife Institute of India in the 4200 square km area in and around the Desert National Park, Rajasthan, estimated about 3 bird mortalities/km/month for low voltage overhead power lines, and 6 bird mortalities/km/month for high voltage overhead power lines, leading to bird fatalities amounting to about 1 lakh birds/per year.

The Hon’ble Supreme Court of India observing the said issue in the case of M.K. Ranjitsinh & Ors Vs. Union of India & Ors[2] passed a notable judgement, directing the State of Gujarat and State of Rajasthan to lay all low voltage and high voltage overhead power lines underground (as opposed to above ground) on a case to case basis in the habitats of the Great Indian Bustard, and also directed installation of bird divertors, where the power lines cannot be laid underground. Further, for laying of high voltage transmission lines underground, where technical evaluation is essential, the Hon’ble Supreme Court constituted a three-member committee to assess the feasibility of the same.

FACTUAL BACKGROUND

The writ petition was filed by a well-known environmentalist M.K. Ranjitsinh in public interest seeking to protect two species of birds which are on the verge of extinction, namely the Great Indian Bustard (Ardeotis nigriceps), and the Lesser Florican (Sypheotides indicus).

The Petitioner contended that the Great Indian Bustard, being about a meter in height, with a wing span of around seven feet, is one of the heaviest flying birds in the world, but which has disappeared from 90 per cent of its natural habitat, except for parts of Rajasthan and Gujarat, and it needs to be protected on an urgent basis to be saved from extinction altogether. The Petitioner further contended that overhead power lines are the biggest threat to the survival of the Great Indian Bustard, and was thus seeking laying of all future overhead power lines underground, including select power lines in priority Great Indian Bustard habitat, and installation of diverters in potential habitats.

The Petitioner has also filed an application[3] seeking interim directions to direct the State of Rajasthan and State of Gujarat to ensure predator-proof fencing, controlled grazing in the enclosure development. The Petitioner has further prayed to direct the State of Rajasthan and State of Gujarat to not permit installation of overhead power lines and also to not permit further installation of solar infrastructure and construction of windmills in priority and potential habitats of the Great Indian Bustard as recognized by the WII.

HELD BY SUPREME COURT

The Hon’ble Supreme Court, before deciding on the main issue, observed that the State as well as the Central Government have a duty to preserve the endangered species of wildlife in India, and as such the expenses incurred for protection and betterment of such endangered species shall be provided by them either under the available schemes or by allocating the same in an appropriate manner. The Apex Court further observed that in the instant case the steps to preserve the endangered wildlife is by laying the power lines underground, 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.

The Apex Court thereafter directed the Respondents to take steps for laying transmission line underground wherever it is feasible. The Apex Court gave its detailed directions on the following points:

A. Cost of the process:

  1. The Apex Court held that the concerned Respondents i.e. State of Rajasthan and State of Gujarat shall work out and provide for cost incurred in the said process and that the other Respondents i.e. Union of India, should provide aid in this regard. The Apex Court further stated that priority shall be to save the near extinct birds irrespective of the cost factor.
  2. The Apex Court further held that other options for paying the cost of the process could be explored, like Section 135[4] of the Companies Act, 2013, which imposes corporate social responsibility upon companies having a specified net worth or turnover or net profit. Further, Section 166(2)[5] 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 and its affiliates but also in the best interest of community and for the protection of the environment. The Apex Court observed that the word “environment”, is not defined in the Companies Act however, it has to be given the meaning assigned to it under Section 2(a)[6] of the Environment (Protection) Act, 1986 which defines the word “environment” to include the interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organisms and property.
  3. The Apex Court further observed that Sections 4[7], 5[8] and 6[9] of the Compensatory Afforestation Fund Act,  2016  (CAF,  2016), provides for the utilization of the fund for measures to mitigate threats to wildlife which are available with the National and   State  The State of Rajasthan on November 12, 2009, had even set up a Compensatory Afforestation Fund Management and Planning Authority (CAMPA) for promotion of afforestation and betterment of wildlife habitat.

B. Safety of the bird’s eggs

  1. The Apex Court, while analyzing conservation of the habitat to secure the safety of the eggs laid by the birds, marked an area for fencing and protection from invasion by predators so that the eggs laid in these areas are safe.
  2. The Apex Court further stated that the power supply line (regarding which underground passage is to be made) should also avoid these areas.

C. Laying of high-voltage power lines and low-voltage power lines

  1. The Apex Court held that laying of high voltage power lines underground would require technical evaluation based on facts and circumstances of each case and an omnibus conclusion cannot be reached laying down a uniform method and directions cannot be issued unmindful of the factual situation.
  2. The Apex Court concluded that, the low-voltage overhead power lines existing presently in the priority and potential habitats of the Great Indian Bustard shall be converted into underground power lines and in all cases shall be laid underground in future.
  3. In respect of high voltage overhead power lines in the priority and potential habitats of the Great Indian Bustard, more particularly the power lines referred in the prayer column of the interim application[10] and indicated in the operative portion of the order, the Apex Court directed that such power lines shall be converted into underground power lines.
  4. The Apex Court further stated that habitats shall be kept in perspective and steps be taken for the safety of the Great Indian Bustard in the said habitat while considering the laying of power lines underground.

D. Constitution of Committee

The Apex Court observed that 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, the Apex Court deemed it proper to constitute a committee consisting of the following members:

  • Rahul Rawat, Ministry of New and Renewable Energy, New Delhi.
  • Sutirtha Dutta, Wildlife Institute of India, Dehradun.
  • Devesh Gadhavi, The Corbett Foundation.

The Apex Court directed the Government of India to provide all assistance to the Committee.

  1. The Apex Court further gave details of the power lines from Kutch and Rajasthan for installation of bird diverters and details of the power lines to be converted to underground power lines depending upon their feasibility and, if not feasible or technical evaluation required, then diverters should be installed immediately.
  2. The Apex Court stated that the Respondents shall proceed with laying of power lines underground right away where there is no doubt of feasibility. However, in cases where there are issues relating to feasibility, the Apex Court directed the said matters to 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 power line is feasible or not and on that basis further action shall be taken.

E. Installation of Diverters and Timeline for the Process:

  1. The Apex Court directed that in all cases where the overhead power lines exist as on date, in the priority and potential habitats of the Great Indian Bustard, the Respondents shall take steps forthwith to install diverters, pending consideration of the conversion of the overhead cables into underground power lines.
  2. The Apex Court further directed that 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.

CONCLUSION

The Hon’ble Supreme Court, assessing the fact that the Great Indian Bustard might be declared extinct, if they keep dying at present rates due to collision with overhead power lines, has allotted one year’s timeline to the State of Rajasthan and Gujarat for completion of laying the power lines underground, and wherever the process does not seem feasible, the same shall be forwarded to the constituted committee. The Apex Court has further directed that till the power lines are made underground, that bird-diverters should be installed in order to protect the birds from colliding with the power lines. The Apex Court has also directed that all the future power lines shall be laid underground in the areas identified in the order.

This present notable judgement is a major relief for the endangered birds, even though the process of laying the power lines underground will be more expensive than the earlier process of installing overhead power line. But it is certainly a necessary step in order to achieve sustainable development.

[1] Citation: Wildlife Institute of India 2018 Power-Line Mitigation Measures

[2] Writ Petition (Civil) No. 838 of 2019

[3] I.A. No.85618/2020

[4] Section 135 in the Companies Act, 2013. Corporate Social Responsibility.— (1) Every company having net worth of rupees five hundred crore or more, or turnover of rupees one thousand crore or more or a net profit of rupees five crore or more during any financial year shall constitute a Corporate Social Responsibility Committee of the Board consisting of three or more directors, out of which at least one director shall be an independent director. (2) The Board’s report under sub-section (3) of section 134 shall disclose the composition of the Corporate Social Responsibility Committee. (3) The Corporate Social Responsibility Committee shall,— (a) formulate and recommend to the Board, a Corporate Social Responsibility Policy which shall indicate the activities to be undertaken by the company as specified in Schedule VII; (b) recommend the amount of expenditure to be incurred on the activities referred to in clause (a); and (c) monitor the Corporate Social Responsibility Policy of the company from time to time. (4) The Board of every company referred to in sub-section (1) shall,— (a) after taking into account the recommendations made by the Corporate Social Responsibility Committee, approve the Corporate Social Responsibility Policy for the company and disclose contents of such Policy in its report and also place it on the company’s website, if any, in such manner as may be prescribed; and (b) ensure that the activities as are included in Corporate Social Responsibility Policy of the company are undertaken by the company. (5) The Board of every company referred to in sub-section (1), shall ensure that the company spends, in every financial year, at least two per cent. of the average net profits of the company made during the three immediately preceding financial years, in pursuance of its Corporate Social Responsibility Policy: Provided that the company shall give preference to the local area and areas around it where it operates, for spending the amount earmarked for Corporate Social Responsibility activities: Provided further that if the company fails to spend such amount, the Board shall, in its report made under clause (o) of sub-section (3) of section 134, specify the reasons for not spending the amount. Explanation.—For the purposes of this section ―average net profit‖ shall be calculated in accordance with the provisions of section 198.

[5] Section 166 in the Companies Act, 2013. Duties of directors.— (1) Subject to the provisions of this Act, a director of a company shall act in accordance with the articles of the company. (2) A director of a company shall act in good faith in order to promote the objects of the company for the benefit of its members as a whole, and in the best interests of the company, its employees, the shareholders, the community and for the protection of environment. (3) A director of a company shall exercise his duties with due and reasonable care, skill and diligence and shall exercise independent judgment. (4) A director of a company shall not involve in a situation in which he may have a direct or indirect interest that conflicts, or possibly may conflict, with the interest of the company. (5) A director of a company shall not achieve or attempt to achieve any undue gain or advantage either to himself or to his relatives, partners, or associates and if such director is found guilty of making any undue gain, he shall be liable to pay an amount equal to that gain to the company. (6) A director of a company shall not assign his office and any assignment so made shall be void. (7) If a director of the company contravenes the provisions of this section such director shall be punishable with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.

[6] Section 2(a) in The Environment (Protection) Act, 1986. (a) environment includes water, air and land and the inter-relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property;

[7] Section 4 in of the Compensatory Afforestation  Fund  Act,  2016 (1) With effect from such date as each State Government may, by notification in the Official Gazette, appoint in this behalf, there shall be established for the purposes of this Act, a special Fund to be called the “State Compensatory Afforestation Fund-……… (name of State)” under public accounts of such State: Provided that in case of Union territory having no legislature, such fund shall be established under the public account of Union of India with effect from such date as the Union territory Administration may, by notification in the Official Gazette, appoint in this behalf. (2) The State Fund in each State shall be under the control of the State Government of such State and managed by the State Authority of such State, in such manner as may be prescribed. (3) There shall be credited into the State Fund of a State— (i) the unspent balance of all monies which has been transferred by ad hoc Authority to the State Compensatory Afforestation Compensatory Afforestation Funds Management and Planning Authority constituted in such State in compliance of guidelines dated the 2nd July, 2009; (ii) all monies transferable from the National Fund under clause (a) of section 5; (iii) all monies realised from user agencies by such State towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value, catchment area treatment plan or any money for compliance of conditions stipulated by the Central Government while according approval under the provisions of the Forest (Conservation) Act, 1980; and (iv) the funds recoverable from user agencies by such State in cases where forest land diverted falls within the protected areas, that is, areas notified under sections 18, 26A or 35 of the Wild Life (Protection) Act, 1972 for undertaking activities relating to the protection of biodiversity and wildlife. (4) A State Government may also credit to the State Fund constituted by it—  (i) grants-in-aid received, if any, by the State Authority; (ii) any loan taken or any borrowings made by the State Authority; (iii) any other sums received by the State Authority by way of benefaction, gift or donations. (5) The monies received in the State Fund shall be an interest bearing fund under public accounts. (6) The balance in each State Fund shall be non-lapsable an and get interest as per the rate declared by the Central Government on year to year basis.

[8] Section 5 in the Compensatory Afforestation  Fund  Act,  2016. Save as otherwise provided in this Act, the monies available in the National Fund shall be disbursed and utilised in the following manner, namely:—  (a) ninety per cent. of the all monies collected by a State, which has been placed under the ad hoc Authority and the interest accrued thereon, shall be transferred to the State Fund established in such state under sub-section (1) of section 4; (b) the balance ten per cent. of all monies collected by the States and Union territory Administrations, which has been placed under the ad hoc Authority and the interest accrued thereon, and all fresh accrual to the National Fund, as provided in sub-section (4) of section 3, and the interest accrued thereon, shall be utilised for meeting-— (i) the non-recurring and recurring expenditure for the management of the National Authority including the salary and allowances payable to its officers and other employees; (ii) the expenditure incurred on monitoring and evaluation of works executed by the National Authority and each State Authority; (iii) the expenditure incurred on specific schemes approved by governing body of the National Authority. Explanation.—For the purposes of this section, “scheme’’ includes any institute, society, centre of excellence in the field of forest and wildlife, pilot schemes, standardization of codes and guidelines and such other related activities for the forestry and wildlife sector

[9] Section 6 in the Compensatory Afforestation  Fund  Act,  2016. 6. Save as otherwise provided in this Act, the monies available in a State Fund shall be disbursed and utilised in the following manner, namely:— (a) the money received for compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, catchment area treatment plan and for any other site specific scheme may be used as per site-specific schemes submitted by the State along with the approved proposals for diversion of forest land under the Forest (Conservation) Act, 1980; (b) the monies received towards net present value and penal net present value shall be used for artificial regeneration (plantation), assisted natural regeneration, forest management, forest protection, forest and wildlife related infrastructure development, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities in the manner as may be prescribed; (c) the interest accrued on funds available in a State Fund and the interest accrued on all monies collected by the State Governments, which has been placed under the ad hoc Authority and deposited in the nationalised banks, in compliance of the directions of the Supreme Court dated the 5th May, 2006, shall be used for conservation and development of forest and wildlife in the manner as may be prescribed; (d) all monies realised from the user agencies in accordance with the decision taken by the Standing Committee of the National Board for Wild Life constituted under section 5A of the Wild Life (Protection) Act, 1972 or the orders of the Supreme Court involving cases of diversion of forest land in protected areas shall form the corpus and the income therefrom shall be used exclusively for undertaking protection and conservation activities in protected areas of the State including facilitating voluntary relocation from such protected areas and in exceptional circumstance, a part of the corpus may also be used subject to prior approval of the National Authority; (e) ten per cent. of amount realised from the user agencies, which has been credited directly into the State Fund in a year shall be transferred to the National Fund to meet expenditure as provided in clause (b) of section 5; (f) the non-recurring and recurring expenditure for the management of a State Authority including the salary and allowances payable to its officers and other employees may be met from a part of the interest accrued on the amounts available in the State Fund, in the manner as may be prescribed; (g) in case of trans-boundary forestry or environmental implication of diversion of forest land for non-forest purposes in a particular State, if found expedient and necessary by the National Authority, it may, in consultation with the concerned Sate Authorities order that such sum as may be justified for reparation of the trans-boundary effects, be transferred to State Fund of such State or States; (h) State Authority shall release monies to agencies identified for execution of activities in pre-determined installments as per the annual plan of operation finalised by steering committee of such State Authority and executive committee of the National Authority.

[10] I.A. No.85618/2020

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