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…… .

8. In that background, keeping in view, the sustainable development   concept   and   on   striking   a   balance   the protection of the rare species of birds is essentially to be made, the effort being to save every bird while at the same time allowing transmission of   power   in   an appropriate   manner.   Even   as   per   the   study/survey conducted by the Wildlife Institute of India, it would not be feasible to lay underground power cables in certain areas and the conversion of the already existing cables also cannot be made in certain locations. In such of the locations, it   is   recommended   that ‘bird   divertors’   be installed   on   the   existing   power   lines   and   the undergrounding   of   the   new   power line wherever technically feasible in the vicinity of the habitats of the rare species of birds be undertaken.

9. The report dated 11.07.2019 was submitted by the Wildlife Institute before the National Green Tribunal to that effect and para 4.2 of the report reads as hereunder:

“4.2.   Mitigate   all   power   transmission   lines passing   through   priority bustard habitats identified by WII (Please refer Annexure 10) by undergrounding cables (where technically/technologically feasible) or installing   bird divertors to make them prominent to birds. The priority areas where this   intervention is required has been mapped by the Wildlife Institute of India and a technical­cum­financial proposal has been submitted to RVPNL for necessary approvals from   Rajasthan   Energy   Department   for mitigation. This action must be expeditiously implemented in the short­term (1­3 years), as power­line mortality is currently the biggest threat to the species.”

10. In addition to the death of the birds due to collision and electrocution, the conservation strategy also requires protecting the eggs of the said species of birds and the same being transferred to breeding centres for the purpose of hatching. In that regard, for conservation, the habitat   restoration   and   for   making   it   predator   proof, appropriate   fencing   is   to   be   provided   to   the   breeding grounds. In that regard, pictorial representation of the priority and potential area is indicated in Annexure A­7 b(page 74) of I.A. No.85618/2020 which is also depicted here below.

11. In the above background, there cannot be disagreement whatsoever that appropriate steps are required to be taken to protect the said species of birds. In that view, insofar as the existing overhead powerlines are concerned the respondents shall take steps forthwith to install divertors and in respect of existing overhead powerlines all future cases of installing the transmission lines   a   study   shall   be   conducted   with   regard to   the feasibility for the lines to be laid underground. In all such cases where it is feasible, steps shall be taken to lay the transmission line underground. For the lines to be laid in future if as per the technical report the overhead line alone   is   feasible   and the   same   is   ratified   by   the Committee, in such event the installation of the divertors shall also be a condition attached in the contract to be entered with generating companies. Insofar as, the cost incurred in the said process, the concerned respondents No. 5 to 8 and 9 to 11 shall work out and provide for the same and the respondents No.1 to 4 aid in this regard.  It would   be   open   to   them   to   muster   the   resources   in accordance   with   law.     In   cases   where   the   power generators are required to bear the additional amount adding to the cost of production, it would be open to regulate the manner in which the cost would be mitigated in accordance with contractual terms. Irrespective of the cost factor the priority shall be to save the near extinct birds.

12. In fact, a few suggestions were made in the course of arguments, as to how financial resources can be mobilised. One of the options that could be explored, is to invite the attention of each electricity utility engaged in the generation of power, to Section 135 of the Companies Act, 2013, which imposes   corporate   social   responsibility   upon companies having   a   specified   net   worth   or   turnover   or   net   profit. Section 166(2)   of   the   Companies   Act, 2013   ordains   the Director of a Company to act in good faith, not only in the best interest of the Company, its   employees, the shareholders and the community, but also for the protection of environment. The word “environment”, though not defined in the Companies Act, has to be given the meaning assigned to it under the Environment (Protection) Act, 1986. Section 2(a) of the Environment (Protection) Act, 1986, defines   the   word “environment” to include the “interrelationship which exists among and between water, air and land, and human beings, other living creatures, plants, microorganisms 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 Annexure­A­7 and in light colour in sketch here below shall be fenced and protected from invasion by predators so that the eggs laid in these areas are protected. The power supply line regarding which underground passage is to be made should also avoid these areas.

14. In the light of the contentions urged on this aspect of the matter, we are conscious that the laying of the underground power line more particularly of high­voltage though not   impossible, would   require   technical evaluation   on   case­to­case   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 high­voltage   powerlines   in   the   priority   and   potential habitats of GIB, more particularly the powerlines referred in   the   prayer   column   off I.A. No.85618/2020 and indicated in the operative portion of this order shall be converted into underground power line.

17. The respondents No.5, 6 and 9 to 11 while arranging to lay the powerlines underground   in   respect   of   the powerlines, the feasibility of which is not in doubt shall proceed with the work right away.  However, in cases where the   respondents find that   there   are   issues   relating   to feasibility, the matter shall be referred to the committee with all relevant material and particulars.  The committee shall assess the matter and arrive at a conclusion as to whether   the   underground   powerline   is feasible   or   not. Based on the report to be rendered by the committee the further action shall be taken by the respondent.

18. In all cases where the overhead powerlines exist as on   today   in   the   priority and potential GIB area the respondents shall take steps forthwith to install divertors pending consideration of the conversion of the overhead cables into underground powerlines. In all such cases where 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.