[Great Indian Bustard] ‘Potential GIB habitat is a wide term, we don't know where they may migrate; how do we take the word potential and put it in an order’: Supreme Court

  • Sakshi Shukla
  • 10:59 PM, 07 Apr 2021

A Full Bench of Chief Justice SA Bobde, Justice AS Bopanna and Justice V. Ramasubramanian heard on possibility of under-grounding high voltage wires in the parts of Kutch, Gujarat and Rajasthan in view of critically endangered ‘Great Indian Bustard (GIB)’.  

The bench said that the order may be passed taking into account the priority areas but because potential is a term too wide to interpret, it cannot be included for the purposes of the order. “Mr Divan, we think potential GIB habitat is a wide term. We don't know where they may migrate. How to we take the word 'potential' and put it in an order?”, CJI led bench noted.

The present matter is a PIL sought against the State, its agencies and other corporates operating in the said region for under grounding high voltage wires in ‘priority areas’ and installation of diverters in the ‘potential areas’.

Senior Advocate, Mr. Shyam Divan appears for the petitioner, ASG Ms. Aishwarya Bhati for the Union, Senior Advocate(s) Mr. SK Upadhyay for Power Grid Corporation, Mr. Manish Singhvi for the State of Rajasthan, Mr. MG Ramachandran for Gujarat Utilities and Mr. Abhishek Manu Singhvi for the Solar Power Corporation.

Senior Counsel Mr. Divan referred the principles evolved in the Asiatic Lions case, citing (2013) 8 SCC 234 to emphasize that ‘Species Best Principle’ must be adopted to determine the fate of the present case. He went on to elaborate over ‘Ecocentrism’ and ‘anthropocentrism’ as discussed by the Top Court in the said case. Statutory reliance was placed on Sections 135 and 166, Companies Act, Sections 4,5,6 Compensatory Afforestation Fund Act, 2016 and the Related Rules, Section 86, 107, 108 Electricity Act and Tariff Policy of 2016.

It was also brought to the knowledge of the Court that similar mechanism of undergrounding has already been adopted for the flamingos in the region.

With respect to the funding for undergrounding of wires, Senior Counsel submitted that the primary responsibility shall vest with the Company operating therein and the Respondent State. Reference was also drawn to polluter pays principle and sustainable development. Moreover, Convention on Migratory Birds held in Gandhinagar was also taken into account to submit that the Central Government itself has acknowledged the issue and difficulties faced by high tension wires to the migratory birds, including the GIB. Report of Wildlife Institute in this regard was also drawn attention to.

Global practices were also discussed by stating examples of Germany, Spain and South Africa where undergrounding is the general norm.

With respect to the CJI’s query on what will be the change in Tariffs or impact on the Consumer, it was learnt that they shall remain nominal as under grounding will not affect the supply as such.

Chief Justice also stated, “If the timeline for under-grounding high voltage line is long, for immediate relief we may order installation of diverters.”

It was the submission of the learned ASG Ms. Aishwarya Bhati representing Ministry of Power that under grounding may be feasible in the Urban areas but it is not technically feasible in rural areas. This was remarked by CJI stating that, “Nagpur Jabalpur Area is not Urban Area, I am aware of it.”

On the submission on a mere 6 casualty of the GIB as last reported, CJI further said, “There are only 100 left!”

Brief submission of Senior Counsel Abhishek Manu Singhvi was that the right of Solar Power Corporation must be taken into account before final adjudication of the dispute as under grounding of high voltage wires, in all possibility, can put cost burden upon them.

The Court on March 15, 2021 observed that it would consider directing under grounding of low voltage transmission lines in the states of Rajasthan & Gujarat & installation of Bird diverters in case of High transmission lines for protecting the Great Indian Bustard. 

On the last date of hearing, Learned Attorney General KK Venugopal informed the Bench that high power lines could not go underground, but the low voltage ones could. 

On February 18, 2020, the Bench took note of the fact that power lines which obstruct the flight path of the Great Indian Bustard bird was immensely hazardous as they result in collision and death of the critically endangered bird. The Court further observed that one of the solutions to this could be of determining the area of flight path of these birds and take down the overhead lines to lay them underground. 

Case Title: M.K. Ranjitsinh & Ors. v. Union of India & Ors| WP (C) No. 838/2019