National Green Tribunal
Mahendra Singh Borawat S/O Shri Jeevan ... vs The Secretary on 26 July, 2021
Item No. 04 & 05
BEFORE THE NATIONAL GREEN TRIBUNAL
CENTRAL ZONE BENCH, BHOPAL
(Through Video Conferencing)
Original Application No. 63/2016 (CZ)
(M.A. No. 537/2017)
Mahendra Singh Borawat Applicant (s)
Versus
Union of India & Ors Respondent(s)
WITH
Original Application No. 64/2016 (CZ)
Mahendra Singh Borawat Applicant (s)
(Wind Energy, Plant)
Versus
State of Rajasthan Respondent(s)
Date of hearing: 26.07.2021
CORAM: HON'BLE MR. JUSTICE SHEO KUMAR SINGH, JUDICIAL MEMBER
HON'BLE DR. ARUN KUMAR VERMA, EXPERT MEMBER
For Applicant(s): Ms. Zubia Sajid, Adv
For Respondent(s) : Mr. Shoeb Hasan Khan, Adv
Mr. Om Shankar Shrivastava, Adv
Mr. Yadvendra Yadav, Adv
ORDER
1. The issue raised in this application is the protection of Great Indian Busterd (GIB) spreading in the districts of Jaisalmer and Barmer which was notified as Desert National Park Sanctuary in the year 1980 with an objective of conservation of unique biological diversity of this desert ecosystem along with various ecological processes, aesthetic beauty and cultural heritage of this desert ecosystem. Among faunal components, Great Indian Bustard (Ardeotis nigriceps) is the flagship species with its population ranging from 35 to 40 and mainly concentrated in the Sudashri landscape area of DNP Sanctuary, which is the northern part of the sanctuary. There is another satellite called Naath ji ka tanka- Ramdeora 1 Closure having a population of 5 to 10 individuals. Houbara bustard (Chlamydotis undulate), locally called Tilor is a migratory bustard and is well known to winter in DNP Sanctuary. State animal, The Indian Gazelle or Chinkara can be seen galloping in the golden sand dunes of the area or feeding in close proximity to GIB. Desert Fox, Indian Fox, Desert cat are the major carnivores in the area and do play an important role in food webs and various ecological processes.
Other mammals include Indian hare, Hedge hogs and many others. Indian Monitor, Desert Monitor, Spiny-tailed Lizard, Sand Lizards and many snakes are the representatives of the reptiles of the area. So far more than 200 bird species have been reported from this landscape. Apart from flag ship species described above DNP Sanctuary is well known for a number of birds of prey including Steppe Eagle, Tawny Eagle, Short-toed Snake Eagle, Long-legged Buzzard, Laggar Falcon, Common Kestrel, Red-headed Vulture, Cinereous Vulture, Egyptian vulture. Hundreds of sand grouses, Grey Francolins, Larks can be seen in the area. Since then many species were increased in the area including many new flora and fauna.
2. The Thar Desert in north-western India is a unique and the only habitat of its type in the Indian subcontinent. The Aravalli hills mark the eastern-most boundary limit of the Thar desert while the western limit is defined by the fertile plains of the Indus. The Great Rann of Kutch forms a sharp boundary in the south while its northern limits are formed by the riparian sub-Himalayan plains. The Desert National Park (DNP) covers an area of 3162 km, of which 1900 km, is in Jaisalmer district and remaining 1262 km, is in Barmer district of Rajasthan State. The area falls in the extreme hot and arid region of very low rainfall zone (<100mm) of the country. DNP was gazetted in the year 1980. Across the landscape of Jaisalmer, altitudes are low, ranging from 210- 300m (320m) above mean sea level (Govt. of Indian, 1994).
2Kar (1989) classified the landforms in Jaisalmer into eleven terrain categories; the predominant forms being sand dunes (44.8% of the area), and flat buried pediments/pavements/structural plains (28.4%). More ecologically relevant is the classification of natural desert habitats into sandy, gravelly, and rocky (Prakash 1962).
Sandy areas dominate the western parts of Jaisalmer district, while gravelly and rocky areas are scattered throughout central, southern and eastern areas. The DNP is barren with several sand dunes and a few hills in the north-western region. The park forms a vast sandy and undulating terrain.
From Khuri to Sam, the topography is gravel, rocky with a few isolated ridges (Kalra et al. 2O06). lnterdune (caused by wind) and sandy plains are other topographic features (Kalra et al. 2006). The vegetation of major part of the arid region of the Thar falls under thorn forest type (Champion and Seth 1969).
Khejri (Prosopis cineraria) is commonly found, which is revered and protected by the local communities specially the "Bishnois". The vegetation of DNP is quite sparse with open grassland, throny bushes, plantation and dunes as the broad habitat types. One-sixty eight plant species belonging to 48 families have been reported from this area (Pandey et al 1985).
Tree species viz. Commiphora wightii, Ammannie desertorum, Acacia spp., Dipcadi erythraem, Enneatogon, Ephedra foliata, Glossonema varians, Helitropium rariflorum, Limeum indicum, Tecomella undulate, brachystachyus, Moringa concanensis, Rhynchosia schimpari, Seddera latdolia, Sesuvium sesuvioides, Tephrosia falciformis, Tribulus rajasthanensis and Ziziphus truncate provide sustenance to the desert fauna.
3. The issue as raised in this application is that the Respondents are going to de-notify an area of about 1400 square kilometres out of total area of 3162 square kilometres only to entertain the Multinational Companies (MNC) to indirectly oblige such 3 companies for their commercial benefits as these companies wants to establish their plants in the area for mining, solar, oil and natural gas purposes. It is further submitted that 11 villages namely Sam, Gaanga, Nimba, Bida, Mehboob Ka Paar, Phaledi Chhawani, Hatar, Kanoi, Jamada, Dhulia, Koriya etc. situated in the DNP are going to be declare as Core Area of DNP without conducting any study of the area and just to fulfil the gap of about 1400 sq. Km. land and to justify their act.
4. Due to aforesaid declaration flora and fauna as well as eco system, food chain and environment will be badly affected and the entire development which has taken place in last 35 years will be destroyed. It is further submitted that DNP is only place in the world where original Thar Desert is protected, otherwise sidewise these areas or surrounding area entire desert system has collapsed and destroyed. If the said area is being destroyed in anyway then there will be irreparable loss to environment and nature which will not be redressed in its natural way.
5. There is area of only 11 villages where with the entire eco system is existing and the GIB are surviving there due to animal-human relation which is still existing in the area of DNP and this is the only place which is protected otherwise in many areas GIB were extinct. Therefore, it is a matter of detailed study prior to declaration of aforesaid de-notification.
6. Instead of taking care of DNP from various construction work which are badly affecting the environment, flora and fauna and particularly the life cycle of GIB through installation of wind mills, open electric lines, solar power projects and their lines were within the 500 meters from the DNP boundaries and installation of open wire electric lines in the flying route of GIB, construction of roads by Multi National Companies for their personal use, they destroyed the Seven Grass and Water bodies which affected entire life cycle of flora and fauna in the 4 DNP area. The MNCs have installed wind mills in the aforesaid area within a parameter of one Km from the National Highway as well as State Highway whereas it was decided in the State Level meeting held on 16.10.2011 in the chairmanship of the Chief Secretary, Government of Rajasthan that no land can be allotted for instalment of wind turbines within a radius of 1.0 km near residential area and within a radius of 2.0 km both side of the Jaisalmer to Sam Road and the same treatment was also directed to be taken on Khabha to Kanoi Road, Damodara to Sam and Sam to Jaisalmer Road. The areas in which permissions were granted to install the wind turbines are rich for agricultural use, the Sewan Grass is growing in the said area at large scale, which is also adversely affected due to installation of wind mills in the area. The said grass is main source of food for wild animals of DNP and it is the only habitat of Great Indian Bustard wherein the GIB live, breeds and it is the main source of food of such species and flying route of GIB.
7. Due to installation of wind turbines and construction of road in the area also adversely affected and damaged the water harvesting system in the area, which also create drinking water problems for wild animals including the water level also reached at deep level in a faster manner. Due to construction of approach roads in the installation area, the entire water flow is badly affected and the thousands years old water harvesting system is damaged and the flow of water obstructed due to constructions of road due to which the water ponds are empty and not charging by water, which stressed entire ecosystem and damaged the food chain of wild animals, disturbed the geographical system of the area. Due to installation of wind mills, other nocturnal animals were also affected adversely.
58. After submission of the reply of the respondent, the matter was taken up by this Tribunal on 29 th August, 2016, and the Tribunal observed as follows:
―The reply has been filed by the Respondent. Copy of the same has been provided to the Learned Counsel for the Applicant. It has been brought to our notice that the matter pertaining to the Desert National Park and the issues arising as a result of the installation of wing energy generation plant has been under consideration and a report after detailed examination has been submitted by the Wildlife Institute of India Dehradun. The said report has been received by the State Government. The State Government had also constituted a committee which has also submitted its report in May 2016. It is reported that the recommendations made by these two bodies and MoEF are under active consideration of the State Govt. The committee has already made its recommendations which are under active consideration of the State Government. Looking to the fact that the Great Indian Buster (GIB) is a critically endangered species and its major population is found only in Rajasthan with a few more in Gujrat and Maharashtra their protection need to be dealt with on an urgent basis so as to ensure that no further depletion in their number takes place. State needs to take up conservation breeding programme of GIB on a top priority basis. They need to take up all necessary measures in consultation with the expert agencies so that its wild habitat is completely protected.
We would therefore, direct the State of Rajasthan and the Principal Secretary Forest to take a decision in the matter on the recommendations made by the various committees as referred to above and also for the issuance of the final notification for the Desert National Park to rationalise its boundary as till date only preliminary notification has been published and as also finalise a policy with regard to the installation of the wind power generation units as the Applicants have contended that to ensure protection and avoiding danger to the great Indian buster it would be appropriate to lay down underground power lines instead of overhead transmission lines in and around 6 GIB habitat. Above mentioned issues may be examined with a view to protect and stabilise population status of great Indian buster in the wild. For expeditious decision and timely action in the matter we would even suggest a meeting to discuss the report and the recommendations made by the Wildlife Institute of India and the committee constituted by the MoEF and also by the committee of the State and for resolving any issues that may be there in the matter. The meeting between the State Forest officials, Wildlife Institute and the MoEF may be convened at the instance of the State Government to finalise and undertake emergent necessary actions.
Let this matter be listed on 17th October, 2016‖
9. Again the matter was taken up on 18th November, 2016, and the matter of installation and establishment of Wind Energy was considered, the Tribunal observed as follows:
―These two Original Applications have been filed with the common issue regarding the establishment of the wind energy plants in and around the Desert National Park in District Jaisalmer (Rajasthan) and the issue with regard to the danger being faced by the critically endangered species of Great Indian Busterd (GIB).
After filing of the Original Application notices were ordered to be issued to the Respondents vide order dtd. 05.05.2016 in Original Application No. 63/2016 in which a reply by the Respondents was submitted on 29.08.2016 the following order was passed :
―The reply has been filed by the Respondent. Copy of the same has been provided to the Learned Counsel for the Applicant. It has been brought to our notice that the matter pertaining to the Desert National Park and the issues arising as a result of the installation of wing energy generation plant has been under consideration and a report after detailed examination has been submitted by the Wildlife Institute of India Dehradun. The said report has been received by the State Government. The State Government had also constituted a committee which has also submitted its report in May 2016. It is 7 reported that the recommendations made by these two bodies and MoEF are under active consideration of the State Govt. The committee has already made its recommendations which are under active consideration of the State Government. Looking to the fact that the Great Indian Buster (GIB) is a critically endangered species and its major population is found only in Rajasthan with a few more in Gujrat and Maharashtra their protection need to be dealt with on an urgent basis so as to ensure that no further depletion in their number takes place. State needs to take up conservation breeding programme of GIB on a top priority basis. They need to take up all necessary measures in consultation with the expert agencies so that its wild habitat is completely protected.
We would therefore, direct the State of Rajasthan and the Principal Secretary Forest to take a decision in the matter on the recommendations made by the various committees as referred to above and also for the issuance of the final notification for the Desert National Park to rationalise its boundary as till date only preliminary notification has been published and as also finalise a policy with regard to the installation of the wind power generation units as the Applicants have contended that to ensure protection and avoiding danger to the great Indian buster it would be appropriate to lay down underground power lines instead of overhead transmission lines in and around GIB habitat. Above mentioned issues may be examined with a view to protect and stabilise population status of great Indian buster in the wild. For expeditious decision and timely action in the matter we would even suggest a meeting to discuss the report and the recommendations made by the Wildlife Institute of India and the committee constituted by the MoEF and also by the committee of the State and for resolving any issues that may be there in the matter. The meeting between the State Forest officials, Wildlife Institute and the MoEF may be convened at the instance of the State Government to finalise and undertake emergent necessary actions.8
Today factual report in addition to the reply has also been submitted by the Dy. Conservator of Forest (Wildlife), Jaisalmer, Rajasthan. As per this report it has been submitted in para no. 6 as follows : ―A permanent rectification of the damage caused by wind turbines and associated power transmission tower lines to the flight corridors is to remove the wind turbines installed right in the flight route and power lines to far away places.‖ Thus to some extent even the authorities of the Forest Department responsible for the Desert National Park have admitted that erecting of the wind turbine and particularly the transmission line on their towers are cause of concern and also detrimental to the interest of protection and conservation of the GIB for which the Desert National Park in Jaisalmer was primarily constituted. Along with the submission filed today the status report of the GIB and associated fauna in park Survey report in 2016 prepared by Wildlife Institution of India and State Forest Department has also been filed as Annexure R-1. In the above report in page no. 36 of the report the following recommendations have been given:
(a). Consolidating existing enclosures in bustard breeding areas using predator-proof chain-
link fences (in Sam, Sundasari, Gajaimata, Rasla and Ramdeora).
(b) removing feral dogs, pigs and other nest predators (foxes, mongoose and monitor lizards) from breeding enclosures ( 25 km2 cumulative area) to improve nesting success and chick survival of great Indian Bustard.
(c) Transferring lands in priority conservation cells (e.g. habitats near kanoi-Salkha-Habur, Nathoosar, Chanani, Ugras, Galar, Chhayan, Ajasar-Keroo, Bhadariya, Mohangarh and Dhaleri) to Forest Department for creating new protective enclosures.
(d) Mitigating the ill-effects of wind-turbines and overhead powerlines in priority conservation cells, particularly the great Indian Bustard ranging arc between Sudasari-Sam-Salkha-
MoklaMohangarh-Bhadariya-Ajasar-Ramdeora (figure 3) to reduce obstruction to local bird 9 movements. New power-lines should be made underground and existing ones should be marked with Bird Flappers / Diverters to make them visible and minimize collision risk (Silva etc. all 2014).
(D) smart and intensive patrolling to generate management information and control poaching. This entails recruiting more staff, building their capacity through tools and training and providing performance based incentives.
(e) Targeted research on Great Indian Bustard to characterize threats spatio-temporally, understand landscape use patterns using satellite telemetry, and objective monitoring o their population status by involving research organizations.
(f) involving local people in conservation by addressing their livelihood concerns (e.g. regulated eco tourism) , and encouraging them to monitor bustard occurrence and report illicit activities using rewards and incentives. Baseline information on community composition, livelihoods and village livestock holdings, generated from our questionnaires can aide in designing such outreach programs.
Having gone through the same, we are of the view that the National Board of Wildlife (NBWL) needs to take cognizance of the matter and since that is the body responsible for the protection of the wildlife in India and also the status with regard to the National Park as well as the Sanctuaries and since this issue pertains to Desert National Park relating to critically endangered species namely GIB, we would direct that as MoEF &CC, Govt. of India has identified GIB as the priority species for its conservation and protection the NBWL should immediately based upon the findings and recommendations made in the Survey Report 2016 submitted before the Wildlife Board to take decision with regard to the firstly the future expansion and establishment of any wind energy projects, the threat as a result of the existing wind energy projects and also the transmission lines in the area of the Desert National Park and surrounding areas being identified as major cause whether it should be prohibited or any precautionary or mitigating measures should be adopted.
10We would direct that the National Board for Wildlife in consultation with the State Board and other authorities discuss the matter and make their recommendations in this behalf at the ealiest preferably within two months from today. The copy of this order shall be sent to the Member Secretary of the National Board for Wildlife /Respondent No. 3 as also the Respondent No. 4 and the State of Rajasthan / Respondent and the State of Rajasthan through the Secretary Forest and the Chief Wildlife Forest Department, Govt. of Rajasthan / Respondent.
With the aforesaid directions, both these Original Applications No. 63/2016 & 64/2016 stand disposed of along with the M.As. 360/16 & 361/2016.
For reporting compliance list on 15.02.2017‖
10. Again the matter was taken up on 10th October, 2017 and this Tribunal after submission of the State, observed as follows:
―Additional Chief Secretary (ACS), Environment and Forest, Govt. of Rajasthan, Chief Wildlife Warden, Govt. of Rajasthan and Director, Desert National Park (DNP) and the Learned Counsel for the State of Rajasthan are present. The officers from the National Board of Wildlife have not come. The ACS has submitted before us that the proposal of rationalisation of the boundary of DNP has now been dropped and the final notification for the DNP is likely to be issued shortly. The Chief Wildlife Warden submitted that the objections and suggestions regarding the DNP had been decided by the Collector in accordance with the Wildlife Protection Act, 1972 way back in 1997. It has further been informed that the ACS and the Chief Wildlife Warden had visited the area and the villagers who are living within and around the DNP are favourable to the DNP and the Management plan for the DNP is also going to be finalised soon.
The status of the occurrence of Great Indian Buster (GIB) in diagrammatic form was placed before us for our perusal. It was explained that the occurrence of the GIB has been found to be confined 11 within an arc between the Pokhran Field firing range and the northern portion of the DNP. It has been informed that there are large number of wind mills which are existing in this an arc and there has also been accidents where the GIBs were found to have been killed because of transmission line running in these areas. The photograph to that effect was also shown to us. It was suggested to the ACS that State of Rajasthan should identify the appropriate areas or the locations where wind mills can be safely established without causing any harm to the GIB or any other endangered species or to the environment in general. It was made clear that the wind mills can not be allowed to be established in the areas where it can cause harm to the GIBs which are critically endangered species and other species found in that area. It may be made clear that out of approximately 200 GIBs found in India around 150 GIBs were found only in and around the DNP.
Certain issues like illegal cropping of guar beyond their own fields within DNP and the Khatedari Rights after final notification of the DNP were also raised. Learned Counsel for the State is directed to file a detailed submission made on behalf of the ACS, Environment and Forest, State of Rajasthan and the Chief Wildlife Warden, State of Rajasthan before the next date of hearing. It was inter-alia informed that in and around existing wind mills lot of plastics, packaging materials were being burnt photographs to that effect was also shown. The Director, DNP and the RSPCB are directed to take immediate action against such illegal disposal of the waste material by the wind mills in accordance with law. The Learned Counsel for the Respondent No. 4 i.e. M/s Vish Wind Infrastructure also desired to make their submission regarding proposed wind mills and their likely impact if any on the endangered species of the area. They may do so before the next date of hearing.
Let these matters be listed on 14th November, 2017.‖
11. The learned counsel appearing for the Respondent No. 4 and 5 has submitted that the issues which are interrelated to 12 the Environmental Law and Wind Power/Green Energy Policy, wherein the Government of India, Ministry of Renewal Power, taken several steps to encouraging schemes and action towards Green Energy. The purpose of these schemes is to promote renewable energy and reduce dependency on fossil fuels.
12. The learned counsel has further argued that Respondent No. 4 & 5 are engaged in production of Green Energy after getting sanction and permeation by Rajasthan Renewable Energy Corporation Ltd. and Government of Rajasthan.
13. They have further argued that the Wind Mill Farms have been set up in the State of Rajasthan under the Energy Policy of 2OO7. The Rajasthan Renewable Energy Corporation is the Nodal Agency. The land was allotted while adhering to Rule 5 of the Rules of 2OO7. The applicant Company had applied for allotment of lands measuring 3106. 13 bighas, but after examining the provisions of Rules of 2OO7, only 1890.01 bighas of land was found allottable for installation of Wind Mills and in 07.01.2011 the allotment was made. That the applicant has installed the Wind Mills after taking all government approvals and sanctions and adhered to all prevalent laws at the relevant time. It is important to note that till date no case has been found relation to death of GIB m Wind turbines or its transmission wires.
14. The process of building a wind farm is a long drawn process and the entire process generally takes 6 to 10 years to make it functional. The stages from conception, making of detailed project report, sanctions, approvals, consultation with local representatives/ villagers to the approvals, permissions, statutory sanction etc from Ministry of Environment and Forests etc, commissioning of road infrastructure, transportation of machinery, commissioning of plants/turbines connection to the grid stations etc. The applicants herein have raised issues which have been settled 13 long back with the active participation of village communities and rounded development has taken place besides the installation of windmills and its commercial operation about 2 years ago. The procedure included the involvement of village Gram Sabhas who then passed resolutions expressing that they have no objection to the allotment of land to the applicants. The process of delivery of land has preceded an elaborate multilevel scrutiny by governmental authorities with regard to the genuineness of the requirement of land. Due processes as laid down have been scrupulously followed by the governmental authorities while handing over land.
15. For the benefit of locals, in operations approx 25 village vehicles are hired with a monthly expenditure of 18L. Local people are hired as security guards also approx 25O Nos. in the area under discussion and with expenditure of 2OL if the project in question is stopped then more than 3OO family in the surrounding village will suffer hardships.
16. The Respondent had further submitted that the Great Indian Bustard, one of the heaviest flying birds, can weigh up to 15 kg and grow up to one metre in height. It is considered the flagship grassland species, representing the health of the grassland ecology. The Great Indian Bustard or Indian bustard is found in India and the adjoining regions of Pakistan. The Great Indian Bustard is peculiar to the semi-
arid grasslands of Rajasthan, Maharashtra, Madhya Pradesh and Andhra Pradesh.
Scientific name: Ardeotis nigriceps Weight: 8-14.5 kg (17.6-32.0 Ib) Phylum: Chordata Higher classification: Ardeotis Rank: Species It is important to note that the transmission line of this project is at 8O meters of height and the GIB birds due to its heavy wait fly at 10-20 meters from grounds.
14Scope of Business and about Green Energy
17. Wind power is the conversion of wind energy into electricity or mechanical energy using wind turbines. The power in the wind is extracted by allowing it to blow past moving blades that exert torque on a rotor. The amount of power transferred is dependent on the rotor size and the wind speed.
18. To fulfil the twin objective of safeguarding climate and tapping renewable energy resource to meet growing demands for power supply, the Government, has carried out the steps to woo Green Energy, initiating largest ever renewable energy production plans.
19. Wind turbines range from small four hundred watt generators for residential use to several megawatt machines for wind farms and offshore. The small ones have direct drive generators, direct current output, aero-elastic blades, lifetime bearings and use a vane to point into the wind; while the larger ones generally have geared power trains, alternating current output, flaps and are actively pointed into the wind.
20. Wind Energy is the electrical energy obtained from harnessing the wind. The wind portal provides an overview of the information on energypedia related to wind energy. Look for specific topics, latest articles or uploaded documents and announce upcoming events.
21. Wind energy is plentiful, renewable, widely distributed, clean, and reduces greenhouse gas emissions if used to replace fossil-fuel-derived electricity. The intermittency of wind does not create problems when using wind power at low to moderate.
22. The government legislated schemes which require Electricity retailers to source specific proportions of total electricity sales from Renewable Energy sources according to a fixed time frame. The purpose of these schemes is to promote renewable energy and reduce dependency on fossil fuels. If 15 this results in an additional cost of electricity, the additional cost is distributed across most customers by increases in other tariffs. The cost of this measure is therefore not funded by government budgets, except for costs of establishing and monitoring the scheme and any audit and enforcement actions. As the cost of renewable energy has become cheaper than other sources, meeting and exceeding a renewable energy target will also reduce the cost of electricity to consumers.
23. Now, the Government has also approved the enhancement of capacity from 20,000 MW to 40,000 MW of the Scheme for Development of Solar Parks and Ultra Mega Solar Power Projects. The enhanced capacity would ensure setting up of at least 50 solar parks each with a capacity of 5OO MW and above. Smaller parks in Himalayan and other hilly States where contiguous land may be difficult to acquire in view of the difficult terrain, will also be considered under the scheme.
24. As per the information received the Rajasthan governments had proposed to free 1,400 square kilometres of the total 3,162 for "other uses" saying there was no wildlife in the zone. The state wildlife board headed by Chief Minister Vasundhara Raje approved the proposal and formed a committee to examine the rationalisation of the boundary.
25. Repowering Policy Around 3 Gw wind power capacity comes from wind turbines of 500 KW and below capacity, which are installed at the best windy sites.
Repowering is necessary for optimum utilization of resources.
Repowering Policy announced in August 2016 16 Enabling provisions on transmission augmentation, treatment of additional power generated, etc. provided in the policy.
IREDA to provide additional rebate on interest rate.
Repowering Policy Solar and wind power infirm in nature impose challenges on grid security and stability.
Solar and winds are almost complementary to each other and hybridization of two technologies would help in:
Minimizing the variability; and Optimally utilizing the infrastructure including land and transmission system.
Draft Wind Solar Hybrid Policy issued in June 2016 The Goal is to reach wind-solar hybrid capacity of 10 Gw by 2022.
Approaches towards integrating wind and solar depends upon availability of resource and the technology type.
The complete case of the application herein is based on the judgment of the Honble Principal Bench at Delhi in Kallpavalli Varikha Vs. UOI & Ors. Basically, the applicant herein emphasized on the issue of compensation, which suggest that he is more eager to extract money from the respondent no. 4 & 5. The referred judgment in the application is discussed about the importance of the Green Energy/ Wind mills.
26. It is further argued that the Principal Bench of NGT at New Delhi has also considered the importance of Wind Fall/Green Energy and, therefore, allowed the company to start the wind energy project with certain directions.
27. The Respondent No. 2, State of Rajasthan has submitted the reply which is as follows:
"4...............
An area of 3162 sq km falling in Jaisalmer and Barmer Districts of Rajasthan was selected in 1980 17 and notified as sanctuary under section 18 (1) of the Wild Life (Protection) Act 1972 vide notification in Rajasthan Gazette dated 4 August, 1980. The existence, nature and extent of the rights existing over the notified land vide order dated 19.11.1998 by SDO Barmer and vide order dated 19.8.1998 by SDO, Jaisarmer. The villagers have been allowed to continue enjoy their rights in their own land as before.
The Govt. of Rajasthan vide notification dated 08.05.1981 had declared its intention to constitute the same area (notified as a sanctuary vide notification dated 4 August L980) as National park under sec. 35 (1) of WLP Act 1972. Till date the area has not yet been finally notified as a National park.
Since in a National Park, all the rights have to be vested in the Government, the rights of 85 villages have to be acquired before the area could be finally notified as a National Park. Instead the Forest Department has proposed a reduction of the area of the National park to 203.07 sq.km which is the important breeding area of the Critically Endangered Great Indian Bustard (GIB (Ardeotis nigriceps). This proposed National park (core area) comprises of lands from 11 villages in which 13.28 sq.km. is private agricultural lands and the rest is revenue land.
There is also a proposal to rationalise the boundaries of the Desert National Park which is under consideration at the level of the Government of Rajasthan. The due procedure laid out by raw is being followed in this matter.
The Wildlife (Protection) Act, 1972 has clearly laid out under section 26A (3) that 18 ‗No alteration of the boundaries of a sanctuary shall be made by the State Government except on a recommendation of the National Board'. Relevant pages of Wildlife (Protection) Act, 1972 are attached.
The Hon'ble Supreme Court of India in the order dated 5 October 2015 in Writ Petition (Civil) 202/1995 in respect of 'matters related to National parks and Wildlife Sanctuaries' has directed that :-
‗All matters for grant of permissions for implementation of projects in areas falling in National parks/sanctuaries, including rationalization of boundaries etc. will be considered by the standing committee of the National Board for Wildlife ("NBWL") on its own merits and in conformity with the orders and directions passed by this Court from time to time, i.e. on 14.02.2000, 16.12.2002, 13.11.2000, 9.5.2002, 25.11.2005 and 14.09.2007 and other subsequent clarificatory orders/judgment(s) passed by this Court including the Goo Foundation Judgment, i.e. Goa Foundation Vs. Union of India & Ors., reported in (2014) 6 SCC 590'. Relevant pages of the order of Hon'ble Supreme Court are attached.
Thus the rationalization of the boundaries of National parks and sanctuaries is permissible under the law and in the present case of DNP, it is being carried out based on the merits only. The allegations of the complainants are baseless and not supported by any evidence.
5.............
Due to the presence of 86 villages inside, some of the areas of DNP do not support any wildlife and unique desert ecosystem. The proposal of the Government is to exclude the highly populated areas from the limits of DNP and include pristine desert 19 areas of Shahgarh Bulge to DNP. This has been recommended by a sub-committee of the state Wildlife Board of Rajasthan that had Scientists, Forest officers and Environmentalists as members.
6............
The Government of Rajasthan is committed to protect the Critically Endangered Great Indian Bustard. The breeding area of this bird inside DNP is proposed to be protected by declaring it as a National Park. The creation of a core area free of human interference has been recommended by the report of the committee constituted by MoEF under Dr. M.K. Ranjeet Singh as well as the sub-committee of State Board of Wildlife, Rajasthan.
7.........
A meeting was held under the chairmanship of Principal Secretary, Energy, Government of Rajasthan on 25.05.2016 to discuss the matter of threats of wind / solar power projects and power transmission lines in the conservation of Great Indian Bustard and its habitat. In the said meeting it was decided that no new windmills will be established in the GIB distribution area. It has also been decided to explore the possibilities of underground laying of transmission cables and putting of bird diverters once the mapping of power lines is done. The minutes of the meeting is attached.
Regarding the decisions taken in the meeting on 17.10.2011 in the chairmanship of the Chief Secretary, the Government had instructed the District Collector that a ban on conversion of land 2 km on either side of the Jaisalmer Sam road is proposed hence no allotment of land for wind energy projects may be done.
20Revenue Department, Govt. of Rajasthan had issued a notification dated 04.10.2013 banning installation of windmills on land falling within the limit of 2km of both sides from the middle point of Jaisalmer to Sam Road.
Revenue Department vide letter dated 18.11.2013 clarified that the Notification dated 04.10.2013 is not applicable in retrospective effect.
As a result, the windmills are being installed along both sides of the Jaisalmer Sam road for which the land had been allotted before 04.10.2013.‖
28. The rationalization of the boundaries of Desert National Park has been proposed by a Sub-Committee of the State Board of Wildlife which had scientists, forest managers and environmentalists as members. The said committee has made its recommendations after a thorough examination of the issues and prospects. This petition appears to have been submitted without proper study and hence liable for dismissal, The installation of windmills in the flight corridors of Great Indian Bustard outside Desert National Park certainly has disrupted the GIB population and appropriate directions for removal of the established windmills and power transmission lines may kindly be given to the concerned authorities.
29. The Sub-Committee of the State Board of Wildlife which had scientists, forest managers and environmentalists as members had conducted a thorough study of the ground situation of DNP and recommended the rationalization of the boundaries by excluding some of the areas that are thickly populated and including some of the pristine desert areas.
The matter is under examination at the level of the government. It has not even been sent to National Board for Wildlife. The Forest Department, Government of Rajasthan is committed to the protection of the forests and wildlife and no 21 such steps will be taken that will adversely affect the unique desert ecosystem and its wildlife.
30. The issue involved in this application was taken up by this Tribunal in Original Application No. 92 of 2019 (WZ) vide order dated 23.09.2020 (uploaded on 29th September, 2020), and it was observed as follows:
"6. It is necessary to quote certain provisions with regard to the protection of wildlife and provisions with regard to sanctuary which had been contained in the Wildlife Protection Act, 1972.
The relevant provisions of the Act are as follows:
"6. Constitution of State Board for Wild Life.--(1) The State Government shall, within a period of six months from the date of commencement of the Wild Life (Protection) Amendment Act, 2002 (16 of 2003) constitute a State Board for Wild Life consisting of the following members, namely:--
(a) the Chief Minister of the State and in case of the Union territory, either Chief Minister or Administrator, as the case may be - Chairperson;
(b) the Minister in-charge of Forests and Wild Life -
Vice- Chairperson;
(c) three members of the State Legislature or in the case of a Union territory with Legislature, two members of the Legislative Assembly of that Union territory;
(d) three persons to represent non-governmental organizations dealing with wild life to be nominated by the State Government;
(e) ten persons to be nominated by the State Government from amongst eminent conservationists, ecologists and environmentalists including at least two representatives of the Scheduled Tribes;
(f) the Secretary to the State Government or the Government of the Union territory, as the case may be, in-charge of Forests and Wild Life;
(g) the Officer in-charge of the State Forest Department;
(h) the Secretary to the State Government, Department of Tribal Welfare;
(i) the Managing Director, State Tourism Development Corporation;
(j) an officer of the State Police Department not below the rank of Inspector-General;
(k) a representative of the Armed Forces not below 22 the rank of a Brigadier to be nominated by the Central Government;
(l) the Director, Department of Animal Husbandry of the State;
(m) the Director, Department of Fisheries of the State;
(n) an officer to be nominated by the Director, Wild Life Preservation;
(o) a representative of the Wild Life Institute of India, Dehradun;
(p) a representative of the Botanical Survey of India;
(q) a representative of the Zoological Survey of India;
(r) the Chief Wild Life Warden, who shall be the Member- Secretary.
(2) The term of office of the members other than those who are members ex officio and the manner of filling vacancies referred to in clauses (d) and (e) of sub-section (1) and procedure to be followed shall be such, as may be prescribed.
(3) The member (except members ex officio) shall be entitled to receive such allowances in respect of expenses incurred in the performance of their duties as may be prescribed.]
12. Grant of permit for special purposes.-- Notwithstanding anything contained elsewhere in this Act, it shall be lawful for the Chief Wild Life Warden, to grant... a permit, by an order in writing stating the reasons therefor, to any person, on payment of such fee as may be prescribed, which shall entitle the holder of such permit to hunt subject to such conditions as may be specified therein, any wild animal specified in such permit, for the purpose of,--
(a) education;
(b) scientific research;
(bb) scientific management.
Explanation.-- For the purposes of clause (bb), the expression, ―scientific management‖ means--
(i) translocation of any wild animals to an alternative suitable habitat; or
(ii) population management of wildlife, without killing or poisoning or destroying any wild animals;
(c) collection of specimens--
(i) for recognised zoos subject to the permission under section 38-I; or
(ii) for museums and similar institutions;
(d) derivation, collection or preparation of snake- venom for the manufacture of life-saving drugs:
Provided that no such permit shall be granted--23
(a) in respect of any wild animal specified in Schedule I, except with the previous permission of the Central Government, and [(b) in respect of any other wild animal, except with the previous permission of the State Government;]
(d) derivation, collection or preparation of snake-
venom for the manufacture of life-saving drugs:
17B. Grants of permit for special purposes.--The Chief Wild Life Warden may, with the previous permission of the State Government, grant to any person a permit to pick, uproot, acquire or collect from a forest land or the area specified under section 17A or transport, subject to such conditions as may be specified therein, any specified plant for the purpose of--
(a) education;
(b) scientific research;
(c) collection, preservation and display in a herbarium of any scientific institution; or
(d) propagation by a person or an institution approved by the Central Government in this regard.
26A. Declaration of area as sanctuary.--(1) When--
(a) a notification has been issued under section 18 and the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a sanctuary, have been disposed of by the State Government; or
(b) any area comprised within any reserve forest or any part of the territorial waters, which is considered by the State Government to be of adequate ecological faunal floral geomorphological, natural or zoological significance for the purpose of protecting, propagating or developing wild life or its environment, is to be included in a sanctuary, the State Government shall issue a notification specifying the limits of the area which shall be comprised within the sanctuary and declare that the said area shall be sanctuary on and from such date as may be specified in the notification:
(c) Provided that where any part of the territorial waters is to be so included, prior concurrence of the Central Government shall be obtained by the State Government:
1. Provided further that the limits of the area of the territorial waters to be included in the sanctuary shall be determined in consultation with the Chief Naval Hydrographer of the Central Government and after taking adequate measures to protect the occupational interests of the local fishermen.
2. Notwithstanding anything contained in sub-
section (1), the right of innocent passage of any vessel or boat through the territorial waters shall not be affected by the notification issued under sub-section (1).
24[(3) No alteration of the boundaries of a sanctuary shall be made by the State Government except on a recommendation of the National Board.]
27. Restriction on entry in sanctuary.--(1) No person other than,--
(a) a public servant on duty,
(b) a person who has been permitted by the Chief Wild Life Warden or the authorised officer to reside within the limits of the sanctuary,
(c) a person who has any right over immovable property within the limits of the sanctuary,
(d) a person passing through the sanctuary along a public highway, and
(e) the dependants of the person referred to in clause (a), clause (b) or clause (c), shall enter or reside in the sanctuary, except under and in accordance with the conditions of a permit granted under section 28.
(2) Every person shall, so long, as he resides in the sanctuary, be bound--
(a) to prevent the commission, in the sanctuary, of an offence against this Act;
(b) where there is reason to believe that any such offence against this Act has been committed in such sanctuary, to help in discovering and arresting the offender;
(c) to report the death of any wild animal and to safeguard its remains until the Chief Wild Life Warden or the authorised officer takes charge thereof;
(d) to extinguish any fire in such sanctuary of which he has knowledge or information and to prevent from spreading, by any lawful means in his power, any fire within the vicinity of such sanctuary of which he has knowledge or information; and
(e) to assist any forest officer, Chief Wild Life. Warden, Wild Life Warden or police officer demanding his aid for preventing the commission of any offence against this Act or in the investigation of any such offence.
(3) No person shall, with intent to cause damage to any boundary-mark of a sanctuary or to cause wrongful gain as defined in the Indian Penal Code, 1860 (45 of 1860), alter, destroy, move or deface such boundary-mark.
(4) No person shall tease or molest any wild animal or litter the grounds of sanctuary.]
28. Grant of permit.--(1) The Chief Wild Life Warden may, on application, grant to any person a permit to enter or reside in a sanctuary for all or any of the following purposes, namely:--
(a) investigation or study of wild life and purposes ancillary or incidental thereto;25
(b) photography;
(c) scientific research;
(d) tourism;
(e) transaction of lawful business with any person residing in the sanctuary.
(2) A permit to enter or reside in a sanctuary shall be issued subject to such conditions and on payment of such fee as may be prescribed.
29. Destruction, etc., in a sanctuary prohibited without a permit.--No person shall destroy, exploit or remove any wild life including forest produce from a sanctuary or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the sanctuary, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the Board that such removal of wild life from the sanctuary or the change in the flow of water into or outside the sanctuary is necessary for the improvement and better management of wild life therein, authorises the issue of such permit:
Provided that where the forest produce is removed from a sanctuary the same may be used for meeting the personal bona fide needs of the people living in and around the sanctuary and shall not be used for any commercial purpose.
Explanation.--For the purposes of this section, grazing or movement of livestock permitted under clause (d) of section 33 shall not be deemed to be an act prohibited under this section.
30. Causing fire prohibited.--No person shall set fire to a sanctuary, or kindle any fire, or leave any fire burning, in a sanctuary, in such manner as to endanger such sanctuary.
31. Prohibition of entry into sanctuary with weapon.-- No person shall enter a sanctuary with any weapon except with the previous permission in writing of the Chief Wild Life Warden or the authorised officer.
32. Ban on use of injurious substances.--No person shall use, in a sanctuary, chemicals, explosives or any other substances which may cause injury to, or endanger, any wild life in such sanctuary.
33. Control of sanctuaries.--The Chief Wild Life Warden shall be the authority who shall control, manage and maintain all sanctuaries and for that purpose, within the limits of any sanctuary,--
(a) may construct such roads, bridges, buildings, fences or barrier gates, and carry out such other works as he may consider necessary for the purposes of such sanctuary:
[Provided that no construction of commercial tourist lodges, hotels, zoos and safari parks shall be undertaken inside a sanctuary except with the prior approval of the National Board.] 26
(b) shall take such steps as will ensure the security of wild animals in the sanctuary and the preservation of the sanctuary and wild animals therein;
(c) may take such measures, in the interests of wild life, as he may consider necessary for the improvement of any habitat;
(d) may regulate, control or prohibit, in keeping with the interests of wild life, the grazing or movement of cattle.
33B. Advisory Committee.--(1) The State Government shall constitute an Advisory Committee consisting of the Chief Wild Life Warden or his nominee not below the rank of Conservator of Forests as its head and shall include a member of the State Legislature within whose constituency the sanctuary is situated, three representatives of Panchayati Raj Institutions, two representatives of non-governmental organisations and three individuals active in the field of wild life conservation, one representative each from departments dealing with Home and Veterinary matters, Honorary Wild Life Warden, if any, and the officer-in-charge of the sanctuary as Member- Secretary.
(2) The Committee shall render advice on measures to be taken for better conservation and management of the sanctuary including participation of the people living within and around the sanctuary.
(3) The Committee shall regulate its own procedure including quorum.
34. Registration of certain persons in possession of arms.--(1) Within three months from the declaration of any area as a sanctuary, every person residing in or within ten kilometres of any such sanctuary and holding a licence granted under the Arms Act, 1959 (54 of 1959), for the possession of arms or exempted from the provisions of that Act and possessing arms, shall apply in such form, on payment of such fee and within such time as may be prescribed, to the Chief Wild Life Warden or the authorised officer, for the registration of his name.
(2) On receipt of an application under sub- section (1), the Chief Wild Life Warden or the authorised officer shall register the name of the applicant in such manner as may be prescribed.
[(3) No new licences under the Arms Act, 1959 (54 of 1959) shall be granted within a radius of ten kilometres of a sanctuary without the prior concurrence of the Chief Wild Life Warden.]
35. Declaration of National Parks.--(1) Whenever it appears to the State Government that an area, whether within a sanctuary or not, is, by reason of its ecological, faunal, floral, geomorphological or zoological association or importance, needed to be constituted as a National Park for the purpose of protecting, propagating or developing wild life therein or its environment, it may, by notification, declare its intention to constitute such area as a National Park.
[Provided that where any part of the territorial 27 waters is proposed to be included in such National Park, the provisions of section 26A shall, as far as may be, apply in relation to the declaration of a National Park as they apply in relation to the declaration of a sanctuary.] (2) The notification referred to in sub-section (1) shall define the limits of the area which is intended to be declared as a National Park.
(3) Where any area is intended to be declared as a National Park, the provisions of sections [19 to 26A (both inclusive except cause (c) of sub-section (2) of section 24)] shall, as far as may, be, apply to the investigation and determination of claims, and extinguishment of rights, in relation to any land in such area as they apply to the said matters in relation to any land in a sanctuary.
(4) When the following events have occurred, namely,--
(a) the period for preferring claims has elapsed, and all claims, if any, made in relation to any land in an area intended to be declared as a National Park, have been disposed of by the State Government, and
(b) all rights in respect of lands proposed to be included in the National Park have become vested in the State Government, the State Government shall publish a notification specifying the limits of the area which shall be comprised within the National Park and declare that the said area shall be a National Park on and from such date as may be specified in the notification.
[(5) No alteration of the boundaries of a National Park by the State Government shall be made except on a recommendation of the National Board.
(6) No person shall destroy, exploit or remove any Wild Life including forest produce from a National Park or destroy or damage or divert the habitat of any wild animal by any act whatsoever or divert, stop or enhance the flow of water into or outside the National Park, except under and in accordance with a permit granted by the Chief Wild Life Warden, and no such permit shall be granted unless the State Government being satisfied in consultation with the National Board that such removal of wild life from the National Park or the change in the flow of water into or outside the National Park is necessary for the improvement and better management of wild life therein, authorises the issue of such permit: Provided that where the forest produce is removed from a National Park, the same may be used for meeting the personal bona fide needs of the people living in and around the National Park and shall not be used for any commercial purpose.] (7) No grazing of any live-stock shall be permitted in a National Park and no [live-stock] shall be allowed to enter therein except where such [live- stock] is used as a vehicle by a person authorised to enter such National Park.
28(8) The provisions of sections 27 and 28, sections 30 to 32 (both inclusive), and clauses (a),
(b) and (c) of section 33, section 33A shall, as far as may be, apply in relation to a National Park as they apply in relation to a sanctuary.
Explanation.--For the purposes of this section, in case of an area, whether within a sanctuary or not, where the rights have been extinguished and the land has become vested in the State Government under any Act or otherwise, such area may be notified by it, by a notification, as a National Park and the proceedings under sections 19 to 26 (both inclusive) and the provisions of sub-sections (3) and (4) of this section shall not apply.
36A. Declaration and management of a conservation reserve.--(1) The State Government may, after having consultations with the local communities, declare any area owned by the Government, particularly the areas adjacent to National Parks and sanctuaries and those areas which link one protected area with another, as a conservation reserve for protecting landscapes, seascapes, flora and fauna and their habitat:
Provided that where the conservation reserve includes any land owned by the Central Government, its prior concurrence shall be obtained before making such declaration.
(2) The provisions of sub-section (2) of section 18, sub- sections (2), (3) and (4) of section 27, sections 30, 32 and clauses (b) and (c) of section 33 shall, as far as may be, apply in relation to a conservation reserve as they apply in relation to a sanctuary.
36B. Conservation reserve management committee.--(1) The State Government shall constitute a conservation reserve management committee to advise the Chief Wild Life Warden to conserve, manage and maintain the conservation reserve.
(2) The committee shall consist of a representative of the forest or Wild Life Department, who shall be the Member- Secretary of the Committee, one representative of each Village Panchayat in whose jurisdiction the reserve is located, three representatives of non-governmental organisations working in the field of wild life conservation and one representative each from the Department of Agriculture and Animal Husbandry.
(3) The Committee shall regulate its own procedure including the quorum.
36C. Declaration and management of community reserve.--(1) The State Government may, where the community or an individual has volunteered to conserve wild life and its habitat, declare any private or community land not comprised within a National Park, sanctuary or a conservation reserve, as a community reserve, for protecting fauna, flora and traditional or cultural conservation values and practices. The provisions of sub-section (2) of section 18, sub- sections (2), (3) and (4) of section 27, 29 sections 30, 32 and clauses (b) and (c) of section 33 shall, as far as may be, apply in relation to a community reserve as they apply in relation to a sanctuary.
(2) After the issue of notification under sub- section (1), no change in the land use pattern shall be made within the community reserve, except in accordance with a resolution passed by the management committee and approval of the same by the State Government.
36D. Community reserve management committee.-- (1) The State Government shall constitute a Community Reserve management committee, which shall be the authority responsible for conserving, maintaining and managing the community reserve.
(2) The committee shall consist of five representatives nominated by the Village Panchayat or where such Panchayat does not exist by the members of the Gram Sabha and one representative of the State Forests or Wild Life Department under whose jurisdiction the community reserve is located.
(3) The committee shall be the competent authority to prepare and implement the management plan for the community reserve and to take steps to ensure the protection of wild life and its habitat in the reserve.
(4) The committee shall elect a Chairman who shall also be the Honorary Wild Life Warden on the community reserve.
(5) The committee shall regulate its own procedure including the quorum.
38. Power of Central Government to declare areas as sanctuaries or National Parks.--(1) Where the State Government leases or otherwise transfers any area under its control, not being an area within a sanctuary, to the Central Government, the Central Government may, if it is satisfied that the conditions specified in section 18 are fulfilled in relation to the area so transferred to it, declare such area, by notification, to be a sanctuary and the provisions of sections 18 to 35 (both inclusive), 54 and 55 shall apply in relation to such sanctuary as they apply in relation to a sanctuary declared by the State Government.
(2) The Central Government may, if it is satisfied that the conditions specified in section 35 are fulfilled in relation to any area referred to in section (1), whether or not such area has been declared, to be a sub sanctuary by the Central Government or the State Government, declare such area, by notification, to be a National Park and the provisions of sections 35, 54 and 55 shall apply in relation to such National Park as they apply in relation to a National Park declared by the State Government.
(3) In relation to a sanctuary or National Park declared by the Central Government, the powers and duties of the Chief Wild Life Warden under the sections referred to in sub-sections (1) and (2), shall be exercised and discharged by the Director or by 30 such other officer as may be authorised by the Director in this behalf and references, in the sections aforesaid, to the State Government shall be construed as references to the Central Government and reference therein to the Legislature of the State shall be construed as a reference to Parliament.‖ ―7. By filing the copy of the Article titled Declining Vulture population can cause a health crises‖, the learned counsel appearing for the applicant has argued that between the years 1990-2010, the vulture population underwent a catastrophic decline in India. Three of India's vulture species of the genus ‗Gyps'- the long-billed (Gyps indicus) and the slender- billed (G. tenuirostris) had crashed by an astounding 97%, while the white-rumped (G. bengalensis) crashed by 99.9%. The reason for such a decline was diclofenac, a non-steroidal anti-inflammatory drug (NSAID) administered to cattle which has since been banned in India and other parts of the South Asian subcontinent. A study on the wider implication of the vulture die-off indicated that this sudden increase in dogs is thought to have at least partially caused the rabies outbreak (38.5 million additional dog bites) estimated to have killed 47,300 people from 1992- 2006 in India. Thus, the catastrophic decline of vultures had a direct and larger impact on human health.
7. As per the IUCN Red list, the Gyps species of India are critically endangered and require urgent intervention for conservation. These include:
―v. community-run formal or informal Vulture Safe Feeding Sites (i.e., vulture [Jatayu] restaurants;
vi. vulture-related income generation for villages at nesting or feeding sites;
vii. husbandry and veterinary training camps; and viii. national and international ecotourism to feeding sites and conservation breeding site.‖ The White backed, Long Billed and Slender Billed Vultures has been upgraded from Schedule IV to Schedule I of the Wild Life (Protection) Act, 1972. Because of the evidence of widespread and rapid population decline, all three vulture species were listed by IUCN, the World Conservation Union, in 2000 as ‗Critically Endangered' which is the highest category of endangerment. This assessment indicated a high risk of global extinction in the wild in 31 the near future.
8. It is further argued that the Ministry of Environment, Forests and Climate Change (MoEF&CC) created a National Action Plan for conservation of vultures in India. As per the Plan, State Governments have to monitor populations in the wild:
"1. All States have been advised to set up State level Committees to continuously monitor the vulture population and conservation efforts. These State level committees would periodically report to the National Level Vulture Conservation Advisory and Steering Committee. A set up exists informally, but it is proposed to set up a formal multi agency national committee with a mandate for working out strategies for vulture conservation by identifying priority areas for focus for the future.
2. Conduct population surveys (nesting, recruitment, survival) and review them periodically till self sustaining populations are established. All Chief Wildlife Wardens have been directed to carry out systematic and continuous evaluation of the population of the status of vultures in their States. Some of the States where surveys have already been conducted include Assam, West Bengal, Madhya Pradesh, Himachal Pradesh, Gujara4 Rajasthan, Uttaranchal and Uttar Pradesh. National level surveys have been carried out by BNHS. The MoEF in collaboration with GEER Foundation, Gujarat is to take up a project for survey of the vulture population in Gujarat.
3. The population estimation studies together with studies on the ranging patterns, foraging movements and identification and protection of the existing colonies of the three species of vultures to ensure breeding success in the wild that am being conducted by the State governments have to be collated on aperiodic basis."
14. Learned counsel appearing for the applicant has highlighted the National Action Plan 2006 for vultures proposed by MoEF&CC. State Governments needed to ensure that the population of vultures in the wild is maintained, and by not ensuring compliance of the mitigation measures, they are failing in their duties under the Plan.
15. It is further argued that Hon'ble Supreme Court in Centre for Environmental Law, World Wide Fund-India v. Union of India, (2013) 8 SCC 234 has stated that the State is obligated under Article 21 and the public trust doctrine to ensure the survival of species:
"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 32 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 thepublic, 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 2002-2016 and the Centrally-sponsored scheme, 2009 indicate that there are many animal species which are dose 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 human-animal conflict, epidemics, forest fire and other natural calamities, etc."
31. The Hon'ble Supreme Court in T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277 has stated that any scheme for wildlife protection have to be followed keeping in mind the principle of eco-centrism:
"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, polluter-pays principle, intergenerational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to nonhuman based benefits to humans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non- humans independently of human interest Ecocentrism is therefore life-centred, nature-centred where nature includes both humans and non-humans. The National Wildlife Action Plan 2002-2012 and the Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009 are centred on the principle of ecocentrism.
22. Conservation and management of wildlife, as per the Act, is primarily vested in the States/UTs who are in physical possession of the area. It was noticed that many States/UTs have set up various regular wildlife wings within the States/UTs Forest Departments and implemented a scheme as to be done in accordance with a work programme covering the 11th Plan period. The Centrally Sponsored Integrated Development of Wildlife Habitats Scheme, 2009, therefore, envisages that the State/UTs are required to submit Annual Plan of Operations (APOs) to the Central Government detailing the proposed course of action, which consists of management planning and capacity building, anti-33
poaching and infrastructure development, restoration of habitats, eco-development and community oriented activities, etc. so as to qualify for the financial assistance under the Scheme. The State/UTs concerned have to follow certain conditions which have been enumerated in the Scheme."
32. The matter was taken up by the Hon'ble Supreme Court of India in Writ Petition (C) No. 202 of 1995 in I.A No. 2365 in 1406 of 2005 and Hon'ble the Court directed as follows:
―The amounts lying with the respective State Forest Departments (recovered from wood based industries) will be utilized for the purpose of afforestation on1y.
The respective State Forest Departments will intimate the amount(s) spent them for afforestation purpose to MoEECC at by the earliest.
With the aforesaid observations and directions, we dispose of the Interlocutory Applications/matters specified in Annexure-I to the note supplied by Shri Harish Salve, Learned amicus curiea.
II. MATTERS RETATING TO NATIONAT PARKS AND WILDLIFE SATCTUARIES:
Now we come to matters relating National Parks and Wildlife Sanctuaries.
At the time of hearing on the aforesaid subject certain suggestions are made by learned amicus curiae and other senior By incorporating them, we pass the order(s):
All matters for grant of permissions for implementation of projects in areas falling in National parks/sanctuaries, including rationalization of boundaries etc. will be considered by the Standing Committee of the National Board for Wildlife (NBWL) on its own merits and in conformity with the orders and directions passed by this Court from time to time, i.e. on 14.02.2000, 16.12.2002, 13.11.2000, 09.05.2002, 25.11.2005 and 14.09.2007 and other subsequent clarificatory orders/judgement
(s) passed by this Court including the Goa Foundation Judgment, i.e, Goa Foundation Vs. 34 Union of India & Ors., reported in (2014) 6 SCC
590.
We request the NBWL to furnish a copy of the orders passed by it within 30 days' time to the C.E.C. The C.E.C. is at liberty, if, for any reason, they are aggrieved by the decision of the Standing Committee of NBWL to approach this Court by filing an appropriate petition/application. In all those matters where there is already decision of the Standing Committee of the NBWL shall abide the parties with all the conditions imposed therein.‖
33. The State of Rajasthan has also submitted the report of the Committee dated May, 2015, which was for Conservation of Great Indian Bustard and rationalization of boundaries of Desert National Park.
34. The issue was further considered by Ministry of Environment, Forest and Climate Change (Wildlife Division) and vide order dated 29.08.2019, it was communicated to the members of the Standing Committee. The matter was discussed in the meeting of 18th July, 2019, in the Standing Committee of National Board for Wildlife and in agenda No.3, it was observed as follows:
"54.3.1 Recommendations of Task Force constituted by the Ministry vide O.M.NO.1- 29/2017WL(pt.3) dt. 05/02/2019 for Suggesting Eco-Friendly Measures to Mitigate Impacts of Power Transmission lines and other Power Transmission Infrastructures on Elephants and other Wildlife The IGF(WL) briefed the Standing Committee and stated that the Hon'ble Supreme Court of India vide its order dated 19.01.2018 in Writ Petition(C)No.275 of 2015 titled Vidya Athreya & Ors. Vs. Union of India & Ors directed the Standing Committee of NBWL to consider the suggestions made by the petitioners: (a) Human-animal conflict, (b) Securing of elephant corridors to minimize human elephant conflict, (c) Mitigation measures for reducing animal deaths on roads/highways, (d) Animal deaths due to electrocution; and (e) Recovery plans for critically endangered Great Indian Bustard.35
The Standing Committee in its 47th meeting held on 25th January 2018 after detailed deliberation decided that a committee chaired by the ADGF(WL) and comprising of representative of WII, representative of NTCA, two PCCFs of States where human - wildlife conflict is maximum and IGF(WL) as member secretary would consider the suggestions of the petitioner and submit a report to the Ministry within two months. The Expert Committee meeting has been held on 13th March 2018 and the committee furnished the report vide 11th June 2018. The Standing Committee of NBWL in its 49th meeting held on 13th June 2018 accepted the report of expert committee.
The Committee recommended that the Task Force comprising of representatives of MoEF&CC, Power Grid Corporation, Central Electricity Authority and wildlife experts for Suggesting Eco-Friendly Measures to Mitigate Impacts of Power Transmission lines and other Power Transmission Infrastructures on Elephants and other Wildlife.
The mandate of the task force was to (i) examine the guidelines of WII accepted by the Ministry with a view to suggest any other measures not included in WII guidelines (ii) recommend these identified measures to the Central Electricity Authority and the Ministry of Power so that necessary directions / advisories can be issued by the CEA / Ministry of Power to the State Governments / State Electricity Boards to adopt these measures while planning future transmission line, and (iii) also recommend to the MoEF&CC these measures for consideration of the Standing Committee of National Board for Wildlife.
The Committee met twice to discuss its mandate. Its first meeting was held on 25th March 2019 and the second meeting was held on the 16th May, 2019.
The Committee took into cognizance report of the Wildlife Institute of India guidelines for Eco-friendly Measures to Mitigate Impacts of Linear Infrastructure on Wildlife. However, the guidelines being silent about electrical transmission lines, the Committee deliberated on the issue.
The Task Force recommended the following for implementation by the Electricity Supply Units, Power Grid Corporation of India Ltd (PGCIL), Central Electrical Authority (CEA), and State Electricity Boards (SEBs):36
(1) Immediate rectification of sagging transmission lines and cable of existing transmission line in the protected areas by the Electricity Supply Utilities, PGCIL, CEA, and SEBs.
(2) Joint inspection of every transmission / distribution line passing through the protected areas or passing through the vicinity of protected Areas (which are frequented by wild animals) by officials of Electricity Department and Forest Department would be undertaken regularly, at least thrice a year once before onset of monsoon and once after monsoon so as to identify potential problem stretches.
(3) Forest Department shall inform the concerned power supplier / line owner of the area about every electrical accident occurring in and around forest area involving human / animals which in turn shall submit an accident report in Form A (Form for reporting electrical accidents) as given in the Intimation of Electrical Accidents (Form and Time of Service of Notice) Rules, 2005 duly completed in all respects to Electrical Inspector of the Appropriate Government. All electrical accidents should be investigated by Electrical Inspector and suitable measures should be taken as proposed in the investigation report.
(4) To prevent death of animals in the forest areas due to electrocution by the distribution lines, the distribution companies shall preferably use ABC (aerial bunched cables) or underground cable. In case of the overhead lines, the clearance above ground of the lower conductor of 11 kV / 33 kV overhead lines should be as per CEA Regulations.
(5) Rule 59(3) of the CEA (Measures Relating to Safety and Electric Supply) Regulations, 2010 (as Amended) would amend as follows: In case of laying of transmission lines of 33 kV and below passing through habitated urban or rural areas, any forest area other than National Parks, Wildlife Sanctuaries, Conservation Reserve, Community Reserve, Eco-
Sensitive Zones around the protected areas and Wildlife Corridors, underground cable or aerial bunched cables or covered conductors shall be used. Further new Section would be added as Rule 59(4) reading as below: In case of as in case of laying of transmission lines of 33 kV and below passing through protected areas (National Parks, Wildlife Sanctuaries, Conservation Reserve, Community Reserve), Eco-Sensitive Zones around the protected areas and wildlife corridors, underground cable should be used. In cases where these areas are aquatic and marine in nature, aerial bunched 37 cables or covered conductors would be used as alternative to the underground cables.
(6) Right of Way (RoW) for 11kV transmission lines can be optimized keeping in view the corridor requirement for the future by adopting suitable alternative of multi-circuit / or multi-voltage lines. Conductors of appropriate size shall be selected considering power flow requirements and other system considerations in consultation with neighboring transmission and generation utilities. For transmission lines of 400 kV or higher voltage class, bundle conductors (minimum two conductors per phase for 400 kV AC and four conductors per phase for 500 kV DC and 765 kV AC shall be used for satisfactory performance of transmission lines from corona and interference aspects. The conductors may be of type aluminum conductor steel reinforced, all aluminum alloy conductor or other new technology conductors depending on system requirements and should avoid base conductors.
(7) The existing transmission lines should be replaced retrospectively with insulated cables / or underground cables on priority basis by Electricity Supply Units, Power Distribution Companies and Power Grid Corporation of India Ltd.
(8) A sub-committee consisting of one representative from CEA, DIG(FC) and DIG(WL) would examine Right of Way (RoW) requirements for laying of transmission lines in the protected areas.
(9) Early planning and rigorous Environmental Impact Assessment are two principal requirements for reducing wildlife mortality due to transmission lines, as well as minimizing the risks of costly power outages. A nationwide strategy should be developed and supported to undertake the long-term planning of electricity grid networks as a priority. Planning should include the use of state-of-the-art wildlife protection equipment, and burying low to medium-voltage transmission lines below ground where feasible. Burying transmission lines effectively removes the problem of wildlife electrocution. Environmental Impact Assessment is an invaluable tool to inform decision making, helping to ensure that transmission lines are appropriately routed and designed.
(10) The routing of transmission lines and shifting transmission structures should be done collaboratively, involving the electricity supplier company, government 38 bodies, conservation agencies, land owners and other interested and affected parties, culminating in one or more memoranda of understanding.
(11) Birds frequently collide with the earth wires (less visible wire) installed at the top of transmission lines, as it is less visible and smaller in diameter. Removal of the earth wire would reduce bird collisions however this is rarely a viable option since the earth wires protect the power-line installation from lightning strikes. This is only possible in areas where there is very low lightning and to a limited extent. Where the earth wires cannot be removed, line marker devices / bird reflectors should be used in sufficient numbers to deflect the birds to take alternate path. Marker devices are available in several colours and are visible to birds from a long distance. Many types of marker devices are available, such as spheres, swinging plates, spiral vibration dampers, strips, flight diversion, bird flappers, ribbons, tapes, flags, and crossed bands.
(12) Line markers should be as large as possible. The spacing between them should not be more than 5 m to 10 m. Marker devices should be chosen to contrast as much as possible with the background colours, and importantly, should be visible at night, for most bird collisions are said to occur at night.
(13) There is a need to set up reinforced electric poles fitted with spikes to prevent elephants rubbing against them and lifting of sagging overhead power lines. This is yet to be done in many protected areas. Also insulate overhead wires across all elephant habitat and elephant movement zones and remove / dismantle all defunct solar powered fences.
After discussions the Standing Committee accepted the recommendations (1) to (10) and (13) of the Task Force and suggested to initiate implementation of the recommendations and also the use of insulated transmission line cables over the ground / or underground transmission line cables passing through the protected areas should be the first priority of the user agencies."
35. The matter was again considered by Hon'ble the Supreme Court of India in CIVIL ORIGINAL JURISDICTION I.A. NO.85618 OF 2020 IN WRIT PETITION (CIVIL) NO.838 OF 39 2019 M.K. Ranjitsinh & Ors. Versus Union of India & Ors, where Hon'ble the Supreme Court observed as follows:
1. ―The writ petition is filed in the nature of 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 a direction to the respondents to install divertors for the power lines 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 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 40 species, including the Great Indian Bustard (GIB). The study estimated 3 bird mortalities/km/month for low-tension lines, 6 bird mortalities/km/month for high-tension 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 high-tension transmission lines - some of them connected to wind turbine. Therefore, petitioner seeks undergrounding all future overhead power lines; selected 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, polluter-pays principle, intergenerational equity have their roots in anthropocentric principles. Anthropocentrism is always human interest focussed and that non-human has only instrumental value to humans. In other words, humans take precedence and human responsibilities to non-human based benefits tohumans. Ecocentrism is nature-centred where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. Ecocentrism is therefore 41 life-centred, nature-centred where nature includes both humans and non-humans. The National Wildlife Action Plan 2002-2012 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 para-23 which provides for 100% central assistance in respect of GIB, for both recurring and non-recurring 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 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 42 non- human has only instrumental value to humans, in other words, humans take precedence and human responsibilities to non-human are based on benefits to humans.
Ecocentrism is nature- centred, where humans are part of nature and non-humans have intrinsic value. In other words, human interest does not take automatic precedence and humans have obligations to non-humans independently of human interest. Ecocentrism is, therefore, life-centred, nature- centred where nature includes both humans and nonhumans.‖ ―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 2002-2016 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 human-animal conflict, epidemics, forest fire and other natural calamities, etc.‖ The State as well as the Central Government therefore, 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.
436. 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 counselappearing 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 44 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 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 breedinggrounds. In that regard, pictorial representation of the priority and potential area is indicated in 45 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 46 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 47 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 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:
48While 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:
a. Dr. Rahul Rawat, Scientist, Room No.021, Block-14, 49 Ministry of New and Renewable Energy, CGO Complex, Lodi Road, New Delhi.
b. Dr. Sutirtha Dutta, Scientist, Wildlife Institute of India, Dehradun.
c. 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 electricitysupply to arrive at their decision. The Government of India shall provide all assistance to the Committee.
16. The details of the powerlines from Kutchfor 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 Kothara-Naliya Line (6.90 Unknown km)
11) Part of Vanku to Fulay Vandh Unknown (6.25 km) The details of power lines for installation of divertors
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
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 50
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)
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) Jakhau-Vanku 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) Naliya-Kothara Road (6.58 Km) Unknown
21) Naliya-Kothara Highway (15.0 Km) Unknown
22) Naliya-Kothara Highway Line (15.7 Unknown km)
23) Naliya-Kothara Road to Prajau (9.15 Unknown Km) 51
24) Naliya-Kothara Road to Vanku-Lala 66 KV Road (10.8 km)
25) Prajau Road (5.57 Km) Unknown
26) Prajau to Naliya-Jakhau 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 Naliya-Jakhau Unknown Road (8.19 km)
31) Part of Fulay Vandh to Naliya- Unknown Jakhau Highway (8.27 Km)
32) Part of Kothara-Naliya (8.82 Km) Unknown
33) Part of Kothara-Naliya 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) Kanoi-Salkha (21 Km) 33 kv
2) Sam-Dhanana (45 Km) 33 kv
3) Tejuva-Kuchr (17 Km) 33 kv
4) Khuchri horizontal-parallel (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.
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 52 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.‖
36. Learned counsel for both the parties are agreed on the point that the matter which is pending from 2016 should be decided in terms of the order passed by the Hon'ble the Supreme Court of India and the authorities should be directed to follow the guidelines, already issued by the MoEF & CC and the Hon'ble the Supreme Court of India.
37. Accordingly, we direct the respondents to follow the guidelines issued by the MoEF & CC and directions issued by the Hon'ble the Supreme Court of India quoted above.
The Original Applications are finally disposed of.
Sheo Kumar Singh, JM Arun Kumar Verma, EM 26th July 2021 OA No.63/2016(CZ) (M.A. No.537/17) With O.A. No. 64/2016 PU 53