Smoke Affected Residents Forum vs Municipal Corporation Of Greater ...
2002 Latest Caselaw 404 Bom

JUDGMENT

S. Radhakrishnan, J.

1. In all the above Notices of Motion except

Notice of Motion No.128 of 2002 and Writ Petition

No.838 of 2002, the basic challenge is to the order

passed by this Court on 17th October, 2001 in Writ

Petition No.1762 of 1999 wherein there is a

direction directing that w.e.f. 1st March, 2002 all

taxis over the age of 15 years shall be phased out

unless converted to run on CNG / LPG by that date.

In the said order it is also provided that all

taxis of Premier 137-D Model shall also be phased

out by this date i.e. 1st March, 2002 unless

converted to run on CNG / LPG.

2. Notice of Motion No.128 of 2002 filed on

behalf of the Maharashtra Rickshaw Chalak Sena

challenges the aforesaid order 17th October, 2001

with regard to directions that w.e.f. 1st March,

2002 all three wheelers over the age of 10 years

shall be phased out unless converted to run on

CNG/LPG by that date. A similar challenge is made

with regard to three wheelers in Writ Petition

No.832 of 2002.

3. We have heard the learned Counsel for all

the affected parties as well as the Petitioners and

other supporting NGOs, the learned Government

Pleader and also the counsel for and on behalf of

various Oil Companies at length with regard to the

aforesaid directions issued on 17th October, 2001,

by this Court.

4. Brief background of the matter is that

this Court by its order dated 15th December, 1999

in the above Writ Petition No.1762 of 1999, after

recording the fact of high vehicular pollution

being caused in the city of Mumbai had issued

certain directions by way of remedial measures in

the said order. By the said order this Court had

also appointed a Committee consisting of the then

Transport Commissioner Mr.V.M.Lal, representative

of the Maharashtra Pollution Control Board,

representative of the Bombay Environmental Action

Group, Dr.P.S.Pasricha, former Joint Commissioner

of Police (Mumbai), representative of Ministry of

Environment and Forest, Government of India, not

below the rank of Joint Secretary and a

representative of CLEAN AIR Mrs.Khajotia. The

said Committee was directed to examine and

recommend measures to reduce the vehicular

pollution in Greater Mumbai and as such various

issues were formulated referred to the said

Committee. The said Committee, after a number of

sittings and hearings finally prepared a report in

April 2000. As far as the present Notices of

Motion and the above Writ Petition No.832 of 2000

are concerned, the relevant issues which were

referred to the said Committee are as under :

"(b) Usage of alternative fuel such as

CNG/reformulated gasoline, etc.

Administrative & Regulatory measures that

would be required for setting up

additional pumps for dispensing CNG.

(c) Desirability & feasibility of converting

the existing buses/taxis to CNG.

(f) Desirability & feasibility of phasing out

of vehicles (private cars, trucks, buses,

taxis, autorickshaws and two wheelers)

over a certain age limit."

5. This Court by its order dated 17th

October, 2001 after an extensive hearing of all the

parties on the aforesaid three issues and after

considering the report of the said Lal Committee

submitted in April 2000 gave the above directions

which are impugned by these Notices of Motion. As

pointed out hereinabove there are three challenges

viz. (a) phasing out of all taxis of more than 15

years of old unless the same are converted to CNG

/LPG by 1st March, 2002, (b) All taxis of Premier

137 D Model were directed to be phased out by 1st

March, 2002 unless converted to run on CNG/LPG and

(c) all vehicles described as "three wheelers"

which are of more than 10 years old also were

directed to be phased out unless converted to run

on CNG/LPG by 1st March, 2002. Mr.Cama, the

learned Counsel appearing on behalf of the Taxi

Owners Association in Notice of Motion NO.46 of

2002, at the outset, contended that as far as the

taxis which are more than 15 years old, he

submitted, that almost all taxis have already been

converted into CNG or otherwise have already been

scrapped, hence the challenge did not subsist. His

main argument was with regard to phasing out

Premier 137-D Model taxis by the aforesaid order by

1st March, 2002, which Mr.Cama contended was

totally unreasonable and harsh. He pleaded that as

far as taxis of Premier 137-D Model are concerned

which are more than 8 years old that they should be

given time upto 31st December, 2002 to convert into

cleaner fuel and as far as taxis which are less

than 8 years old in the said category of 137-D,

there is no need to convert them into CNG at all

and that they should be allowed to ply subject to

the pollution norms set by the transport

authorities. According to Mr.Cama there are about

14717 Premier 137-D Model taxis running in the city

Mumbai and they were initially manufactured in the

year 1989 and manufacturing continued upto 1999.

He has also referred to a chart annexed to the

affidavit in support of the said Notice of Motion

indicating various number of 137-D model taxis

which were supplied during the years 1989 to 1999.

Mr.Cama contended that if all those taxis were

completely phased out a large number of families

will be ruined. He also submitted that to convert

such diesel taxis into CNG/LPG it would be very

expensive inasmuch as the same has to be initially

converted into a petrol engine and thereafter

converted into CNG engine. He also submitted that

quite a few owners have borrowed money from

Nationalised Banks and that they would not be able

to repay if the said taxis were totally scrapped as

per the above order. Mr.Camas main contention is

that the above order was totally unreasonable,

unjust and harsh inasmuch as there is no such

restriction with regard to petrol driven taxis

which are less than 8 years old, whereas with

regard to 137-D Model taxis, they have been totally

phased out and scrapped unless converted to cleaner

fuel. Mr.Cama also contended that those directions

are contrary to the provisions of Motor Vehicles

Act and the Rules framed thereunder.

6. Mr.Chaudhary, who is appearing for the

Taxi Owners Association in Notice of Motion No.51

of 2002 also adopted the same arguments of Mr.Cama

and highlighted that a large number of such taxi

owners are from a very poor section of the society

and if the above harsh order were to be

implemented, they would lose their livelihood. He

also contended that under the enhanced concept of

personal liberty under Article 21 of the

Constitution of India even right to livelihood is

included and that the said taxi owners would lose

their right to livelihood if the harsh order were

to be implemented. Mr.Chaudhary also contended

that there could be no phasing out of 137-D taxis

which are of less than 8 years are concerned, and

also that as far as the said class of taxis of more

than 8 years, some period ought to be given for

owners to convert the same into cleaner fuel.

7. Mr.Hegde appearing for another Taxi

Owners Association also adopted the same

arguments.

8. Mr.L.H.Patil appearing in Notice of

Motion No.33 of 2002 also adopted the above

contentions of Mr.Cama, Mr.Hegde and contended that

the above order would seriously prejudice right to

livelihood of a large number of taxi drivers,

owners and their families. He also contended that

complete phasing out of Premier 137-D was totally a

harsh order and this Court should allow the said

class of taxis of less than 8 years old to ply

without converting into CNG/LPG, but taxis which

are of more than 8 years old should be allowed to

be converted into cleaner fuel within a prescribed

time.

9. Mr.Aspi Chinoy, the learned Counsel

supporting the said order of 17th October, 2001

submitted that this Court after a detailed hearing

of all the parties at length and after considering

the said "Lal Committee" Report of April 2000 has

passed the order on 17th October, 2001 and that

this Court ought not to review the same inasmuch as

the said order does not suffer from any palpable

error. He also pointed out that in Mumbai the

vehicular pollution level is so high that in most

of the areas the pollution level is almost four to

five times in excess than the safe limits

prescribed. He also brought to our notice that due

to the aforesaid high pollution almost 40% of the

inhabitants in Mumbai are suffering from a number

of respiratory diseases including asthma and

bronchitis, including 70% of taxi and auto-rikshaw

drivers. He also emphasised that the children are

the most vulnerable and referred to a report of the

survey conducted by Dr.Kamat wherein it was found

that most of the children in Mumbai had a stunted

growth of lungs due to high level of pollution,

compared to children from Madras. He also

referred to various directions issued by the Apex

Court while dealing with the same problem in the

National Capital Region of New Delhi and in the

light of the Constitutional mandate of Articles 21,

47 and 48A, he emphasised that it is high time

that the serious ecological degradation is put to

an end or at least reduced. He also finally

submitted that certain financial assistance may be

provided and also State Government may be asked to

waive sales tax and reduce the rate of interest for

the loan to be provided to the taxi and three

wheeler owners so as to enable them to buy a new

vehicle.

10. Mr.Rustomji who is appearing on behalf of

the BEAG also reiterated and contended that the

order passed on 17th October, 2001 by this Court

was after exhaustive hearings and as such, this

Court ought not to interfere with the same and that

there is no patent error for interference. He also

pointed out that as far as the first order of 15th

December, 1999 is concerned whereby the aforesaid

Lal Committee was appointed by this Court, the said

order was upheld by the Supreme Court. He also

brought to our notice that from the affidavit filed

on behalf of the Ministry of Petroleum that there

is sufficient availability of CNG and what is

required was only proper allocation. In that

context he referred to the Apex Court directions on

a similar state of affairs in New Delhi wherein the

Apex Court has observed as under in its order dated

18th October, 2001 in the case of M.C.Mehta vs.

Union of India and others as under:

" According to the affidavit filed by the

Union of India and Indraprastha Gas Limited it

transpires that there is no shortage of CNG

per se. The difficulty appears to be in the

manner of allocating enough gas to meet the

transport requirements of Delhi on priority

basis. It is for the Government of NCT of

Delhi and Union Government to sit together and

resolve the difficulty so that the orders of

this Court are implemented in letter and

spirit. The effort of the two governments

should be to see that orders by this Court,

which have been made in the interest of public

health, are implemented and not to derail

those orders by inventing new bogies and

bottlenecks in the name of demand and supply

of CNG."

11. Mr.Rustomji, however, stated that as far

as the Premier 137-D taxis which are of less than 8

years are concerned he felt that certain time may

be given to enable them to convert but not ply till

then. He also submitted that as far as three

wheelers are concerned which are of more than 10

years, those who have already applied for

conversion upto 31st March, 2002 may be permitted

to convert the same in a time bound period.

Otherwise, he submitted, that this Court ought not

to interfere with the order passed by this Court on

17th October, 2001.

12. Mr.Sawant, the learned Government Pleader

appearing for the State of Maharashtra submitted

that the State Government has made available a

scheme of financial assistance to enable affected

individuals to buy new taxis and auto rickshaws as

setout in affidavit dated 27th March, 2002 filed by

the Deputy Secretary, Government of Maharashtra,

Home Department (Transport), which reads as under :

".......the financial incentives being made

available by the State Government to the taxis

and autorickshaws:

(i) Sales Tax has been brought down from 13%

to 4% on CNG Kits.

(ii) Under the Seed Capital Scheme, which is a

scheme available for educated unemployed,

as contained in Government Resolution,

Industries, Energy and Labour Department

bearing No.EPP-2001/CR/7742/Industries

18, dated 25th January, 2002, benefits

are made available to the taxis and

autorickshaws for conversion to CNG/LPG

or buying new vehicles.

Under the said scheme, 15% of the

amount would be contributed by the State

Government for which the beneficiary

would have to pay interest at 10%, which

would be payable after 6 months of the

sanction. The rest of the amount the

beneficiary would get from the approved

banks at the interest determined by the

said banks. To avail of the said loan

from the bank, the beneficiary would have

to pay 10% of the amount."

13. Having considered all the facts and

circumstances and after giving a deep consideration

to the same, we do not find that there is anything

unjust, unfair and harsh in making the

classification with regard to Premier 137-D model

taxis and phasing them out entirely. In that

context it would be relevant to note that the

aforesaid Committee appointed by this Court known

as "Lal Committee" in its report in paragraph 5.24

has very categorically mentioned "Since the 137-D

diesel engine fitted on taxis during last 7 years

is of a very poor quality, such taxis also need to

be converted." This Court also in its order dated

17th October, 2001 after a detailed analysis has

specifically directed that all taxis of Premier

137-D model shall also be phased out by 1st March,

2002 unless converted to run on CNG/LPG. The main

reason is that the aforesaid model 137-D appears to

emit a very high level of smoke and pollutants and

in fact later even the State of Maharashtra had

prohibited 137-D model to be fitted into taxis. In

view of the high emission of smoke and pollutants

from the said engine, the said expert Committee had

categorically recommended that they should be

phased out. This Court after a detailed hearing

given to all the parties had concurred and directed

that those 137-D taxis should be phased out by 1st

March, 2002 or converted to CNG/LPG. Therefore, we

do not find anything unreasonable, harsh or

erroneous in the above order. The only question is

that there are a large number of taxis of 137-D

engines which may be less than eight years old and

as such a plea was made that a short period may be

granted to enable them to convert into a cleaner

fuel.

14. As far as the contention of the learned

Counsel Mr.Cama, Mr.Mehta and Mr.Patil that the

vehicles concerned meet the requirements of

pollution control prescribed as per the provisions

of Motor Vehicles Act and the rules framed

thereunder as such the vehicles ought to be allowed

to ply and not phased out and that this Courts

directions cannot override the provisions of Motor

Vehicles Act and the rules framed thereunder, it

would be relevant to note the following

observations of the Honble Supreme Court in

M.C.Mehta Vs. Union of India & Ors. in Writ

Petition (Civil) No.13029 of 1985 :

" On behalf of the Stage Carriage Permit

transport operators, Mr.K.K.Venugopal, learned

senior counsel, submitted that all their

existing buses are meeting emission norms for

diesel vehicles as prescribed under the Motor

Vehicles Act and, therefore, they cannot be

denied their right to ply their buses even if

they do not conform to the directions issued

by this Court on 28th July, 1998 since they

were not heard before fixing the time

schedule on 28th July, 1998 (as they were not

parties to the writ petition). In other words

what is sought to be challenged on behalf of

these operators is the correctness of the

order passed on 28th July, 1998 at this

belated stage. It is not possible to accept

that all these years, these private operators

were "unaware" of the directions issued by

this Court on 28th July, 1998. We are not

impressed with the argument of Mr.Venugopal.

The directions issued by us were not in any

adversarial litigation. Besides our order

was, and it was conceded by Mr.Venugopal, an

order in rem and not an order in personam.

All private operators, who operate their buses

in Delhi are bound by these orders, which were

made to safeguard the health of the citizens,

being a facet of Article 21 and had been

publicised from time to time both in the

electronic as well as print media. That

apart, the Bhure Lal Committee had been set up

under the Environment Protection Act and it

was directed by this Court that the Committee

could give directions towards effective

implementation of the safeguards of

Environment Protection Act, more particularly

in matters aimed at preventing air-pollution.

Directions issued by the Bhure Lal Committee

have, thus, legal sanctions and when accepted

and incorporated by this Court become a part

of its order, binding on all parties.

Besides, directions given for safeguarding

health of the people, a right provided and

protected by Article 21 of the Constitution,

would override provisions of every statute

including the Motor Vehicles Act, if they

militate against the constitutional mandate of

Article 21. We must, however, hasten to add

that norms fixed under Motor Vehicles Act are

in addition to and not in derogation of the

requirements of Environment Protection Act.

If the owners of the Stage Carriage buses

chose to ignore the directions issued by this

Court on 28th July, 1998, they did so at their

own peril. We wish to re-emphasise that those

of the private bus operators, who have chosen

not to comply with the Courts orders and have

not taken any steps for conversion of the

vehicles to the CNG mode are not entitled to

any indulgence from this Court. They must

thank themselves for the situation in which

they find themselves. "

15. Similar to Bhure Lal Committee before the

Apex Court, Lal Committee before this Court has

made the necessary recommendations. As has been

held by the Apex Court in the above case, here also

the directions have been given for safeguarding the

health of the people of city of Mumbai, a right

provided and protected by Article 21 of the

Constitution of India, which directions may even

override the provisions of Motor Vehicles Act, if

they militate against the Constitutional mandate

under Article 21. It may be also noted that that

norms prescribed under Motor Vehicles Act are in

addition to and not in derogation of Environment

Protection Act. Therefore, various directions

issued by this Court from time to time regarding

phasing out and / or conversion into CNG/LPG are

clearly protected under Article 21 of the

Constitution of India, and they cannot be faulted

as contended by the learned Counsel.

16. As far as the first issue regarding

phasing out of all taxis having petrol engines of

more than 15 years of age unless the same are

converted to CNG/LPG by 1st March, 2002 is

concerned, it does not subsist and the earlier

order dated 17th October, 2001 shall stand.

17. We also do not find any substance in the

challenge that only 137-D model taxis have been

singled out and discriminated. As pointed above

the said 137-D model taxis form a separate class

and found to be having highly polluting engines,

such singling out has a nexus with the object of

preventing grave damage to environment. Even the

argument that such phasing out would be harsh and

unreasonable cannot be sustained, as the same has

been made to protect the precious environment and

all the more the State of Maharashtra has already

formulated a scheme of financial assistance as per

affidavit dated 27th March, 2002. In view of the

above, even the challenge under Article 21 of the

Constitution of India, regarding the right to earn

livlihood would not survive.

18. We cannot also lose sight of the well

known principle known as "Precautionary Principle"

in environmental pollution matters, as the failure

to adopt the same at the right time will endanger

the health of the entire population of city of

Mumbai very seriously, therefore, the above

directions for phasing out and / or conversion into

cleaner fuel became absolutely necessary.

19. In this context the following

observations of the Honble Supreme Court in its

order in M.C.Mehta Vs. Union of India & Ors. dated

5th April, 2002, in a similar vehicular pollution

matter at New Delhi would be very relevant:-

"Article 39(e), 47 and 48A by themselves and

collectively cast a duty on the State to

secure the health of the people, improve

public health and protect and improve the

environment. It was by reason of the lack of

effort on the part of the enforcement

agencies, notwithstanding adequate laws being

in place, that this Court has been concerned

with the state of air pollution in the capital

of this country. Lack of concern or effort on

the part of various governmental agencies had

resulted in spiralling pollution levels. The

quality of air was steadily decreasing and no

effective steps were being taken by the

administration in this behalf."

"One of the principles underlying

environmental law is that of sustainable

development. This principle requires such

development to take place which is

ecologically sustainable. The two essential

features of sustainable development are the

precautionary principle and the polluter pays

principle.

The "precautionary principle" was elucidated

thus by this Court in Vellore Citizens

Welfare Forum Vs. Union of India and Others,

, inter alia, as follows:

"The State Government and the statutory

authorities must anticipate, prevent and

attack the causes of necessity conform to the

Constitutional principles as well as over-

riding statutory duties act upon the

Government under the EPA. The "auto policy"

must, therefore, focus upon measures to

"...Anticipate, prevent and attack..." the

cause of environmental degradation in this

field."

"In the absence of adequate information, lean

in favour of environmental protection by

refusing rather than permitting activities

likely to be detrimental. Adopt the

"precautionary principle" and thereby ensure

that unless an activity is proved to be

environmentally benign in real and practical

terms, it is to be presumed to be

environmentally harmful. Make informed

recommendations which balance the needs of

transportation with the need to protect the

environment and reverse the large scale

degradation that has resulted over the years,

priority being given to the environment over

economic issues".

"Norms for emission and norms for the fuel

have existed for over the last two decades -

and the state of the enviroment is dismal

despite the existence of these norms. The

emission norms stipulated by the Government

have failed to check air pollution, which has

grown to dangerous levels across the country.

Therefore, to recommend that the role of the

Government be limited to specifying norms is a

clear abdication of the constitutional and

statutory duty cast upon the Government to

protect and preserve the environment, and is

in the teeth of the "precautionary principle".

"The increase in respiratory diseases

specially amongst the children should

normally be a cause of concern for any

responsible government. The precautionary

principle enshrined in the concept of

sustainable development would have expected

the government and the health authorities to

take appropriate action and arrest the air

pollution. However, children do not agitate

or hold rallies and, therefore, their sound is

not heard and the only concern of the

Government now appears to be is to protect the

financial health of the polluters, including

the oil companies who by present international

desirable standards produce low quality petrol

and diesel at the cost of public health."

"The statistics show that the continuing air

pollution is having a more devastating effect

on the people, than what was caused by the

Bhopal gas tragedy. In that case, the nation,

including the Union of India, was rightly

agitated and sought action and compensation

from the multinational company, who was held

to be responsible for the same. Here, in the

case of CNG, the shoe is on the other foot

because the government is not facilitating

measures for clean air and water including the

supply of CNG or another clean unadulterated

fuel. It is due to the lack of proper concern

on the part of the governmental authorities

that people are suffering from respiratory and

other diseases. The Bhopal gas tragedy was a

one time event which, hopefully, will not be

repeated, but here, with not enough concern or

action being undertaken by the Union of India,

far greater tragedies in the form of

degradation of public health are taking place

every day."

Under these circumstances, it becomes the duty

of this Court to direct such steps being taken

are necessary for cleaning the air so that the

future generations do not suffer from ill-

health."

20. Having regard to all the above facts and

circumstances of the case, we direct that all the

137-D Model Premier Taxis be phased out, but the

owners may be given time to convert their 137-D

Model Premier taxis, upto 31st May, 2002.

Accordingly we direct that no 137-D Model Premier

Taxis shall ply in the City of Mumbai at all,

unless converted into cleaner fuel CNG/LPG and in

the event it is found that they were to be plying

in the city of Mumbai they shall be impounded

immediately and their registration be cancelled

forthwith.

21. As far as the third issue is concerned,

three wheelers which are of more than 10 years old,

it appears that about 4000 three wheelers have

already been converted into CNG and another 3000

have already registered for conversion. We make it

clear that all the owners of three wheelers of more

than 10 years who are desirous of getting converted

into CNG/LPG they shall register with the Transport

Authorities for conversion into cleaner fuel of

CNG/LPG on or before 30th April, 2002 failing which

such three wheelers of more than 10 years shall be

scrapped and phased out and they shall not be

allowed to ply in the city of Mumbai. All those

three wheelers who have already applied to convert

or those who will apply for conversion into

CNG/LPG on or before 30th April, 2002 shall be

allowed to ply upto 30th June, 2002 by which time

they ought to get their vehicles converted into

CNG/LPG. If they fail to get converted by that

date they shall not ply the vehicles on the roads

in the city of Mumbai after 30th June, 2002 till

the same are converted and the outer limit for said

conversion is upto 31st August, 2002. Three

wheelers can enter into the city beyond Sion and

Mahim, only for the purpose of conversion into

CNG/LPG and not for commercial purpose of carrying

passengers or goods. All the above Notices of

Motion in Writ Petition No.1762 of 1999 and the

Writ Petition No.832 of 2002 stands disposed of in

the above terms.

22. At the request of the learned Counsel for

the Taxi Owners Association, 137-D Premier Model

taxis will be allowed to ply upto 30th April, 2002

but not thereafter. It is also made clear that

there will be no further extension in this regard.

23. The Regional Transport Authorities shall

accept the affidavit of the owner of the taxi with

regard to purchase of the petrol engine before

granting conversion permission.

24. The Transport Commissioner shall file

compliance and progress report with regard to the

above order on or before 12th June, 2002. The Writ

Petition No.1762 of 1999 is adjourned to 12th June,

2002.

25. Personal Assistant to issue an ordinary

copy of the order to the parties. Parties to act

on an ordinary copy of the order duly authenticated

by the Associate of this Court.

26. Issuance of certified copy is expedited.