Green Order from Green Bench- Food for thoughts from GIB Supreme Court order
In our law school, we were taught that no one should be judge in his own cause (Nemo judex in causa sua). Supreme Court has appointed Petitioner as one of the expert who will assess the technical feasibility of the proposal of laying power cables underground, Petitioners had submitted in its petition that both low and high voltage power cables can be laid underground.
The Petitioner wanted installation of diverters in potential habitat zone, but bench gave them more than their prayer.
These are few interesting instances of this litigation. I have tried to capture more interesting details of the GIB matter (based on oral arguments and final order), which can be food for thoughts for parties who are contemplating next course of action:
A) The Petitioner was pressing for laying down underground power cable in Priority Habitat Zone only and installation of diverters in potential habitat zone. Nature’s love of Hon’ble Justice (Rtd.) SA Bobde is a well-known fact and he has paid close attention to environment’s causes. During the proceedings the Bench had observed that they will not differentiate between priority and potential habitat and will give a blanket order for both areas so that GIB can fly wherever they want to. Therefore, Court, as expected, in its order ordered laying of underground power cables in both priority and potential habitat zone.
B) In respect of laying high voltage power cables underground, Supreme Court heavily relied on tenders/proposals of different entities and observed that laying high voltage power cables underground is technically feasible. Government, in its oral argument, pleaded that laying high voltage power ground cables are not technical feasible and the data submitted by the Petitioners only talk about urban areas and it may not be feasible in rural areas. Supreme Court rebuked Government’s proposal by saying that the Petitioners have also shown plan of Nagpur-Jabalpur road and that road is not an urban area. Bench went on to observe that Government is only telling difficulties not impossibilities. In its order, Supreme Court took a balanced view and constituted a committee for assess the feasibility on case-to-case basis.
C) Counsel for solar developers had pleaded that they should not be burdened with the additional costs of laying power cables underground. Mr. Shyam Divan, appearing for the petitioner, had submitted that these costs are pass through. Court also observed that if the contract provides pass through, parties can rely on this and we do not need to give any reference. The Court, in its order, specifically observed affected parties can rely on mitigation measured provided in the court.
D) It is also interesting to see the composition of the committee. Supreme Court has appointed two members (out of three) who are wildlife officials and one of the member is the employee of the Corbett Foundation and Carbett Foundation is one of the Petitioner in this case who has pleaded, before the Court, that laying underground cable is feasible for both high and low voltage. Can employee of the Petitioner take a contradictory view from its submission while evaluating technical feasibility. It’s an established principle that no one can be a judge of his own cause. I understand Supreme Court is not taking this litigation as an adversarial litigation, and outcome of this litigation will not have any direct adversarial effect on the Corbett Foundation. Therefore, technically they will not hit by this maxim. However, With utmost respect to the Supreme Court, this situation could have been avoided by appointing three technical members.
