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CASE NO.:

Writ Petition (civil) 13029 of 1985

PETITIONER:

M.C. MEHTA

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 05/04/2002

BENCH:

B.N. KIRPAL & V.N. KHARE & ASHOK BHAN

JUDGMENT:

JUDGMENT

2002 (2) SCR 963

The following Order of the Court was delivered

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, not withstanding 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.

It was by reason of the failure to discharge its constitutional

obligations, and with a view to protect the health of the present and

future generations, that this Court, for the first time, on 23rd September,

1986, directed the Delhi Administration to file an affidavit specifying

steps taken by it is for controlling pollution emission of smoke, noise,

etc. from vehicles plying in Delhi.

The concern of this Court in passing various orders since 1986 has only

been one, namely, to protect the health of the people of Delhi. It is only

with this objective in mind that directions had been issued in an effort to

persuade the governmental authorities to take such steps as would reduce

the air pollution. It is as a result of intervention by this Court that the

following measures were taken in controlling pollution to some extent.

(a) lowering of sulphur content in diesel, first to 0.50% and then to

0.05%;

(b) ensuring supply of only lead free petrol;

(c) requiring the fitting of catalytic converters;

(d) directing the supply of pre-mix 2T oil for lubrication of engines of

two-wheelers and three-wheelers;

(e) directing the phasing out of grossly polluting old vehicles;

(f) directing the lowering of the benzene content in petrol; and

(g) ensuring that new vehicles, petrol and diesel, meet Euro-II standards

by September, 2000.

It was during the course of these proceedings that the Bhure Lal Committee

was established under Section 3 of the Environment (Protection) Act, 1986.

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The Environment Pollution (Prevention and Control) Authority is a statutory

authority constituted under Section 3 of the Environment (Protection) Act,

1986, and its directions are final and binding on all persons and

organisations concerned. This position has been reiterated by this Court in

Sector 14 Residents W elf are Association and Ors. v. State of Delhi and

Ors., [1999] l SCC 161. It is the authority which had directed the phasing

out of non-CNG buses. It is the Bhure Lal Committee which had also

recommended the conversion to CNG mode and issued directions that the non-

CNG buses should be phased out.

It is the report of the Bhure Lal Committee which was accepted, and orders

were passed by this Court on 28th July, 1998, fixing the time limit within

which the switch-over to CNG was to take place. It may be mentioned here

that the need for finding an alternative fuel to diesel had been drawing

the attention of this Court for quite some time. This is evident from the

order dated 21 st October, 1994, in which it was observed as follows:-

"On an earlier occasion when these matters came up before this Court it was

suggested that to begin with of Government vehicles and public undertaking

vehicles including public transport vehicles could be equipped with CNG

cylinders with necessary modification in the vehicles to avoid pollution

which is hazardous to the health of the people living in highly polluted

cities like Delhi and the other metros in the country."

Again, in the order dated 28th March, 1995, and 9th February, 1996, long

before the receipt of the Bhure Lal Committee report, there is a reference

to conversion of government vehicles to CNG, as well as to the installation

of CNG stations and kits. It is unfortunate that the efforts of the

governmental authorities have not kept pace with the orders passed by this

Court. For more than one year, under one pretext or the other, first the

NCT of Delhi and then the Union of India have been seeking extension of

time for conversion of commercial vehicles to CNG. While the anxiety of the

Delhi Government to give it the benefit of doubt, was to see that bus

services in this city were not disrupted which was the reason that it had

sought extensions of the time limit, the response of the Union of India in

this regard is baffling, to say the least.

With a view that the disruption in bus services does not take place and

unnecessary hardship is not caused, this Court has been extending the time

with regard to the conversion of commercial vehicles. Time was first

extended to 30th September, 2001, and then to 31 st January, 2002. It is

during the period January, 2001, to February, 2002, that action has been

taken by the Union of India, which leaves us with no doubt that its

intention, clearly, is to frustrate the orders passed by this Court with

regard to conversion of commercial vehicles to CNG. The manner in which it

has sought to achieve this object is to try and dis-credit CNG as the

proper fuel and, secondly, to represent to this Court that CNG is in short

supply and, thirdly, delay the setting up of adequate dispensing stations.

In 2001, the Union of India hurriedly set up a Committee headed by Mr. R.A.

Mashelkar to give a report with regard to vehicular pollution. It was

surprising that since 1986, the Union of India had not thought of setting

up such a Committee until after 31 st January, 2001, when an order was

passed in which the apathy on the part of the Government in carrying out

the orders of this court was taken note of, and the authorities were

required to comply with the orders passed. The composition of the Mashelkar

Committee was such that none of its members was either a doctor or an

expert in public health. The said Committee submitted its report, which

does not show any serious concern in protecting the health of the people.

The Committee recommended that emission norms should be laid down, and that

the choice of the fuel should be left to the users. The Committee seemed to

have overlooked the fact that such norms had been in place for a long time

with hardly any compliance thereof. For instance, the emission norms with

regard to the quality of air and water have been statutorily provided for

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but despite this, prior to 1996, Delhi was the third most polluted city in

the world. It will not be out of place to mention that there are various

emission and other norms and regulations which are in place, but are

invariably breached. The existence of building regulations have not been

able to control rampant unauthorised and illegal construction, just as the

existence of norms relating to effluents have not prevented pollution.

Yamuna is no more a holy river, it has been relegated to a sewage drain.

Norms regarding quality of water and the various orders passed by this

Court in another case have not been successful in adding any oxygen in the

water, the BOD level being zero. Therefore, it is naive of the Mashelkar

Committee to expect that merely laying down fresh emission norms will be

effective or sufficient to check or control vehicular pollution. 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

(a) the precautionary principle and

(b) the polluter pays principle.

The "precautionary principle" was elucidated thus by this court in Vellore

Citizens'Welfare Forum v. Union of India and Ors., [1996] 5 SCC 647, inter

alia as follows:

(1) the State Government and the statutory authorities must anticipate,

prevent and attack the causes of environmental degradation.

(2) Where there are threats of serious and irreversible damage, lack of

scientific certainty should not be used as a reason for postponing measures

to prevent environmental degradation.

(3) The "onus of proof" is on the actor or the developer to show that

his action is environmentally benign.

(4) It cannot be gainsaid that permission to use automobiles has

environmental implications, and thus any "auto policy" framed by the

Government must, therefore, of necessity conform to the Constitutional

principles as well as overriding statutory duties cast upon the Government

under the EPA.

(5) The "auto policy" must, therefore,

(a) focus upon measures to "...Anticipate, prevent and attack..." the

cause of environmental degradation in this field.

(b) In the absence of adequate information, lean in favour of

environmental protection by refusing rather than permitting activities

likely to be detrimental.

(c) 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.

(d) Make informed recommendations which balance the needs of

tansportation 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 environment 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

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and statutory duty cast upon the Government to protect and preserve the

environment, and is in the teeth of the "precautionary principle".

The recommendations made by the Bhure Lal Committee and the directions

issued in 1998 have not been challenged by the Union of India. The

directions issued by the Bhure Lal Committee are statutory and continue to

be in force. It is not, therefore, open to the Union of India to seek

variation of the same without any justifiable reason. Prior to the filling

of its affidavit of 26th April, 2001, the Union of India never opposed

change over to CNG. Its application being I.A. No. 116 for variation was

dismissed on 27th April, 2001. In the order dated 17th September, 2001,

this court observed, while dealing with another application being I.A. No.

142 in which prayer (d) was that the bus operators should have an option of

using either CNG or diesel with 0.05 sulphur content, that "we do not see

any justification to grant prayer (d) at this stage". Mr. Rohtagi, Addl.

Solicitor General submitted that the use of the expression "at this stage"

meant that such a request could be met or made at a subsequent point of

time and that is why the present application filed on 5th February, 2002

for modification had been filed by the Union of India. The said plea of Mr.

Rohtagi cannot be accepted and is not in accordance with the orders passed

by this Court. As already noticed, a prayer to this effect was first made

by the Union of India in I.A. No. 116. In the order of 27th April, 2001, it

was observed that the Court did not think that any modification of its

order dated 26th March, 2001 was required. The application was disposed of

and the request for modification was not accepted. While disposing of the

application LA. No. 142 it was first observed in the order as follows:-

"Our order dated 28.7.1998 with regard to conversion of entire city bus

fleet (DTC and private) to single fuel mode of CNG (direction 'G') does not

require any modification or change. That direction stands." When in this

order, it was observed that there was no justification to grant prayer (d)

"at the stage" it only meant that the question of considering such a

request did not arise specially when similar plea for modification had been

rejected earlier. The expression "at the stage" only meant at this late

stage. The use of the expression "at the stage" cannot be interpreted as

permitting the Union of India to once again ask for modification of the

Court's order with regard to conversion of the city bus fleet to CNG mode.

The plea of the Government that CNG is in short supply, and that it is

unable to supply adequate quantity is incorrect, and this is clearly a

deliberate attempt to frustrate the orders passed by this Court.

Particulars filed in Court show that as of today no CNG is being imported.

The indigenous produce is far in excess of what is supplied to the

transport sector. It is only a small fraction of the CNG produced in India

which is earmarked for non-industrial use. Overwhelming quantity is

allocated to industries, including the power sector.

That there is no shortage of CNG is also evident from the fact that even

during the pendency of these proceedings, while on the one hand it was

being represented to this Court and the Mashelkar Committee that CNG was in

short supply, there was an increase in the allocation of the CNG to

industries. Even when CNG was not being supplied to the Pragati Power

Station in Delhi, as the same has not been commissioned, the CNG earmarked

for the power unit instead of being allocated to the transport sector, was

diverted to the industries in the neighbourhood of Delhi.

If there is a short supply of an essential commodity, then the priority

must be of public health, as opposed to the health of the balance sheet of

a private company. To enable industries to cut their losses, or make more

profit at the cost of public health, is not a sign of good governance, and

this is contrary to the constitutional mandate of Article 39(e), 47 and

48A.

While the industries get natural gas at the rate of about Rs. 3.55 per KG,

a commercial vehicle owner in Delhi has to pay about Rs. 13.11 per KG which

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is four times more than what the industry pays. It was contended by Mr.

Rohtagi that natural gas is supplied to the IGL at the same price at which

it is supplied to the industries. This argument conveniently overlooks the

fact that IGL is a government company and, therefore, the sale price which

the Government and its company gets on sale of CNG in the transport sector

is at least four times more than what it gets from the industries. It is

indeed surprising that, ostensibly, with a view to provide more CNG to the

transport sector in Delhi, the allotment of CNG to Maruti Udyog Limited

(MUL) has been sought to be cancelled. Normally, it would have been

surprising that if there is shortage of an essential commodity, then the

supply or the sale to the public sector undertaking would be cut, but here,

not only is the supply to the PSU being cut, but also at the same time,

supply to at least two big business houses has been increased.

It would, under the circumstances, not be incorrect to presume that the

proposal to cut supply of CNG to MUL was for some oblique purpose. Why

should the Government, which is proposing to dis-invest its share in MUL,

take the action of cutting supply of CNG, which would result in increasing

its expenses and decreasing its value? It is not as if there has been a

prorata cut of all the industrial units in and around Delhi, including MUL,

with a view to increase supply to the transport sector. The proposed cut

appears to be nothing more than an attempt to punish MUL because its

Managing Director is a member of the Bhure Lai Committee, which had

recommended CNG and, therefore, the Managing Director and this company must

suffer. It is clear that there is a desire to benefit private industries at

the cost of public health and the public exchequer. A major portion of the

CNG goes to industries, and the government and its undertakings get less

than what it would realise from supplying CNG to the transport sector. Such

economics is baffling, to say the least.

Not only is there no shortage of CNG as far as the transport sector is

concerned, but even if there be such a shortage, if crude oil can be

imported and supplied to the refineries for manufacture of petrol and

diesel, there is no reason why CNG, if need be, cannot imported as it

ensures less pollution.

During the course of arguments, literature was filed in Court giving data

from cities all over the world which co-relates increased air pollution

with increase in cardiovascular and respiratory diseases and also shows the

carcinogenic nature of Respirable Particulate Matter (RSPM)-PM10 (i.e.

matter less than 10 microns in size). The scientific studies indicate that

air pollution leads to considerable levels of mortality and morbidity. Fine

particulate matter, or respirable particulate matter (RSPM)-PM10 (i.e.

matter less than 10 microns in size)-is particularly dangerous. The Journal

of American Medical Association (JAMA) has published in its recent issue

the findings of a study involving over 500,000 people, conducted over 16

years, in different cities of the US. The researchers find that fine

particle related pollution leads to lung cancer and cardiopulmonary

mortality. Their research indicates that with an increase of every 10

microgramme per cum (ug/cum) of fine particles, the risk of lung cancer

increases by 8 per cent.

The USEPA has mandated that annual average levels of PM 2.5 particles in

the air should not exceed 15 ug/cum. The Indian annual national average

standard for PM 10 is 60 ug/cum, but most cities, including Delhi register

PM 10 levels above 150-200 ug/cum on an annual basis.

A study conducted with regard to children in Bangalore show that the

incident of asthma in percentage of children rose from 9% in 1979 to 29.5%

in 1999, thereby corresponding increase in vehicles from 1.46 lacs in 1979

to 12.23 lacs in 1999. Similarly, a study by the Chittaranjan Cancer

Institute and Environmental Biology Laboratory of the Department of Zoology

of Kolkata University done between November, 1997 and May 1999, found that

about 43% of the children in Kolkata are suffering from respiratory

disorders compared to 14% among the rural children. Alarmingly 94-96% of

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the children were found producing sputum which would usually be reflective

of habitual smokers though only 5.5% of the children were found to be

smoking and that too occasional. As per the study reflected in the Indian

Journal of Medical Research July, 2000, the culprit for the aforesaid was

pollution in the ambient air.

According to an estimate by the World Bank study using 1992 data, the

annual health cost to India was up to about Rs. 5,550 crores due to ambient

air pollution. Out of this, the health cost of air pollution in Delhi alone

was found to be about Rs. 1000 crores.

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 to CNG

or any other 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.

As in the past, it is imperative, while reiterating the order of 28th July,

1998, to issue further directions in an attempt to improve public health by

decreasing air pollution. We are conscious of the fact that vehicular

pollution is only one of the causes of air pollution, but statistics show

that, at least in the metropolitan towns, this is the major source of

pollution. In the September, 2001 issue of 'Parivesh' a magazine published

by the Central Pollution Control Board relating to air pollution and human

health, dealing with diesel exhaust particles and its health effects, it

was stated at page 34 of the said issue as follows:

"The popularity of the diesel engine in heavy duty application in trucking,

rail road, marine transport. DG sets and construction industry is due to

both its fuel efficiency and long service relative to the gasoline engine.

Compared with gasoline engine, diesel emissions are lower in carbon

monoxide (CO), hydrocarbon (HC) and carbon dioxide (CO2), but higher in

oxides of nitrogen (NOX) and particulate matter (PM). Diesel exhaust is a

complex mixture of both particulate and gaseous phase. Diesel exhaust has

particulate with mass median diameter of 0.05 to 1.00 micrometer, a size

rendering them easily respirable and capable of depositing in the airways

and alveoli. The particles consist of a carbonanecous core with a large

surface area to which various hydrocarbons are absorbed, including

carcinogenic polycyclic aromatic hydrocarbons (PAHS) and Nitro-PAHs that

have elicited the most concern with respect to human health. The gaseous

phase contains various products of combustion and hydrocarbons including

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some of the PAHS present in the particle phase. Once emitted components of

diesel exhaust undergo atmospheric transformation in ways that may be

relevant to human health. For example, nitro-PAHS, created by the reaction

of directly emitted PAHs with hydroxyl radicals in the atmosphere can be

more potent mutagens and carcinogens and more bio-available than their

precursors. A study undertaken by a Swedish Consultancy, Ecotraffic (Peter

Anlvik and Ake Branberg, 1999) shows that the cancer potency of diesel

vehicles is more than two times than that of petrol vehicles in India. But

if only the most harmful of the exhaust emissions, that is particulate

emission is considered the carcinogenic effect of one new diesel car is

equivalent to 24 petrol cars and 84 new CNG cars on the road."

In the same issue, particulars are given with regard to major air pollution

related diseases in India which are as follows:-

"(1) Acute Respiratory disease:

12% of Deaths; 13% of NBD. Largest fraction in the world Indian ARI in

children alone under 5 is responsible for more than 2% of entire GBD.

(2) Chronic Obstructive Pulmonary Disease (COPD): l.5% of Deaths; 0.9%

of NBD

(3) Lung Cancer

0.4% of Deaths; 0.1% NBD

(4) Asthma:

0.2% of Deaths; 0.5% of NBD

(5) Tuberculosis;

8% of Deaths; 5% of NBD; Largest in the world

(6) Perinatal:

6% of Deaths; 7.5% of NBD; Largest in the world

(7) Cardio Vascular Disease: 17% of Deaths; 5% of NBD

(8) Blindness:

0% of Deaths; 1% of NBD; Largest in the world NBD/GBD: National/Global

Burden of Disease"

From the aforesaid extracts from the publication of the Central Pollution

Control Board, it is evident that there was need to control air pollution,

and one of the measures was to reduce the use of diesel. It was with this

object in view that the Bhure Lal Committee recommended the use of CNG

which was accepted by all the parties including the Union of India when

orders were passed to that effect in July, 1998.

It was submitted on behalf of the Union of India that diesel and CNG are

not materially different in the matter of air pollution and instead of 100%

switchover to CNG if there was a mix of CNG and diesel buses of equal

proportion the difference would only be of 2% in the pollution levels.

We do not find any valid basis for the aforesaid submission. Data from the

Automotive Research Association of India, Pune shows that the pollution

potential of emissions from CNG is far less than even the Euro-IV

standards. This is evident from the following table compiled on the basis

of the said data.

Comparison of CNG certified test data from Automotive Research Association

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of India (ARAI) with emissions norms for buses.

Sulphur level in diesel Hydro-carbon Carbon monoxide Nitrogen oxide

Particulate matter

1992 standards1 3.5. 14.4 18 No standard

1996 standards1 2.4. 11.2 14.4 No standard

Bharat Stage I, April 2000' 1.23 49 9 0.40

Bharat Stage II (Euro 2 standards October 200 12 500 ppm (0.05 per

cent) 1.1 4.0 7 0.15

Euro 3 Standards3 350 ppm (0.035 per cent) 0.66 2.1 5

0.10

Euro 4 Standards 3 50-10 ppm (0.005-0-001 per cent) 0.46 1.5

3.5 0.02

Ashok Leyland CNG bus4 Nil 0.04* 2.92 2.91 0.01**

Telco CNG bus5 Nil 0.25* 1.68 3.42 0.03

Note: *Non-Methane Hydrocarbon are a small fraction of total hydrocarbon in

CNG vehicles.

**Certificate from ARAI says particulates negligible. References:

1. CPCB 2000, Environmental Standards for Ambient Air Automobiles Fuels

and Noise, July PCLS/4/2000-2001, p20, p29, p37, New Delhi.

2. Ministry of Road Transport and High ways. The Gazette of India

Notification, April 24, 2001, GSR 286 (E), New Delhi, mimeo.

3. JS McArragher et al 1999, Fuel quality, vehicle technology and their

interactions, CONCAWE, Brussels, p7.

4. Ashok Leyland 2001, Emissions certification data of ARAI, mimeo.

(Annexure 1)

5. TELCO 2001, Emissions certification data of ARAI, mimeo.

With the emissions from the CNG vehicles being more than comparable with

the EURO-IV standards, the contention of the Union of India that a mix of

diesel buses and CNG buses would make a difference of only 2% in the

pollution levels is patently untenable. In the case of particulates,

current CNG vehicles are 15 times better than Euro-II diesel vehicles (with

500 ppm sulphur) and only Euro IV diesel vehicles are comparable to CNG

vehicles. In fact, the certificate issued by the Automotive Research

Association of India (ARAI) to the bus manufactures says that particulate

emissions were negligible and could not be measured. The aforesaid analysis

emphasize the need for change to non-liquid fuel like CNG or LPG so as to

improve the air quality in this country and not merely of Delhi. Such

change over may perhaps obviate the need to manufacture vehicles meeting

Euro III or Euro IV standards.

It was as a result of the various orders passed by this Court that the air

pollution level in the city has been stabilised. In 2000, the levels of

annual average levels of RSPM declined to 186 fg/cum from 222 ug/cum. This

is no small achievement as the city continues to add over 2,00,000 vehicles

each year and its total vehicular fleet is larger than that of Kolkata,

Mumbai and Chennai put together. But even with these efforts, its RSPM

pollution remains roughly 3 times above the national standard for annual

average concentration of RSPM mandated under the Air Act, 1981. It was

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repeatedly contended on behalf of the Union of India that no other city in

the world had introduced CNG buses at the scale directed by this Court:

Both the State Government and the Union of India had urged that the CNG

technology was still evolving and experimental. It is no doubt true that

most of the cities of the industrialised world do not have large numbers of

CNG buses, but the share of natural gas buses, needed to meet the stringent

norms in the future, are growing. The data filed indicates that in the

United States CNG buses account for 18 per cent of the current bus orders

and 28 per cent of the potential orders. Under pressure to clean up the air

because of the approaching Olympic Games in 2004, Beijing has resorted to

an alternative fuel strategy. Latest figures from Beijing indicates that

there will be 18,000 buses fuelled by CNG, LPG and electricity in that

city. By 1999, Beijing had 1300 CNG buses and the numbers are growing

rapidly to meet the Olympic deadline. Similarly, the Ministry of

Environment in South Korea-partly to meet the targets in time for 2002

World Cup Soccer aims to induct 20,000 natural gas buses in its fleet and

already 3000 such buses are plying. [Source Moon- soo Ahn 2000, Korean CNG

bus programme. The Environmental Benefits, Ministry of Environment, Korea,

Automotive Pollution Control Division, Mimeo.]

From the aforesaid, it is clear that the alternative fuel of CNG, LPG and

electricity is a preferred technology which critically polluted cities like

Delhi need as a leapfrogging technological option.

This court has shown concern about the reports relating to adulteration of

petroleum products in Delhi. A report was called for from the Bhure Lai

Committee. The said report confirms that adulteration is taking place. The

sample failure rate in the study which has been carried out was 26 per

cent. The report also indicates that the existing fuel specification

standards and the tests specified are inadequate for detecting

adulteration. Two dummy samples- one with 10 per cent and the other with 20

per cent Kerosene were sent to the Fuel Testing Laboratory, Noida. The

result of the test report of the test laboratory showed that the product

met the specification of HSD. However, a third sample with 15 per cent

contamination was declared as not meeting the HSD specification. This shows

that reliance cannot be placed on such laboratories which puts in great

doubt the entire mechanism for detection of adulteration. Considering the

quantity of Kerosene which is supplied to Delhi it is not improbable that

this is one of the ingredients used, along with naphtha etc. for

adulterating the fuel supplied to the customer. Under the circumstances,

merely lowering the sulphur, and the benzene content in diesel and petrol

respectively will have a little effect unless and until the oil companies

can guaranty that the fuel which was sold from the dispensing stations is

pure and unadulterated. In fact, there is one public sector undertaking

which advertises its petroleum products as "pure for sure". It guarantees

that the fuel which can be obtained from its dispensing stations is

unadulterated. This by itself clearly indicates acknowledgement by the

petroleum industry that adulteration in not a small measure is taking place

and, therefore, the need to advertise the purity of the products sold by

the Bharat Petroleum. It has been alleged, and there is strong basis for

this, that as a result of adulteration, large amounts of illegal gains and

profits are being made. There are various players in this racket. It is not

surprising, therefore, that there is stiff resistance to the implementation

of the orders of this Court for switch-over to gas which cannot be

adultered and will undoubtedly cause financial loss to the members of the

unholy alliance of adulterators.

As per the available information there seems to be no apparent shortage of

gas. The supply of gas from the South Bassein gas fields has increased over

the past some years, from 38 mmscmd to 41 mmscmd. Major investment has

already been sanctioned for expansion of infrastructure to supply natural

gas as well as regassified LNG to northern India.

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The Union of India has argued that breakdown in the pipeline would lead to

disruption in supply to the city and could paralyse the transport system

which would be solely dependent on CNG. However, available information

suggests that the possibility of the pipeline breaking down is remote.

Furthermore, the pipeline itself stores up to 3 months of gas supply needed

for Delhi.

The Union Government has to allocate more gas to Delhi to implement the

order of this Court. In January, 2002, the Union Government has roughly

doubled its earlier allocation to Delhi's vehicular fleet. But even this

increased allocation-by diverting gas from a single user, Maruti Udyog

Limited-will be inadequate for implementing the Court's order.

To meet the needs of current and projected vehicles in the city-the city

requires a mere 4.8 per cent of the current supply of gas by the HBJ

pipeline. The production of gas in the South Bassein gas fields has also

increased over the last 2-3 years. But the increased production has been

allocated to industries, instead of meeting the needs of vehicles arising

out of this Court's orders.

According to available information:

Reliance Industries got an additional 0.7 mmscmd;

Essar got an additional 0.4 mmscmd;

Gujarat State Fertillzer Corporation got an additional 0.4 mmscmd;

GIPCL (power generating company in Baroda) got 0.5 mmscmd (this gas

is being reported by supplied without any allocation by the government and

as a "matter of favour")

IPCL-Dahej got an additional 0.85 mmscmd.

As per the latest figures available, there are 3,727 CNG buses on the road.

The additional number of buses, which have to be phased out are 6, 338.

Once this is done, the total number of CNG buses on the road will be

10,065.

In the I.A. filed on behalf of the bus manufacturers, it is stated that

1500 chassis which had been ordered are ready for delivery but the persons

who placed orders have not taken the delivery. Therefore, at least 1500

buses can be replaced immediately. As per the affidavit filed by the

manufacturers, between Ashok Leyland and TELCO, they have an installed

capacity of 1,100 buses per month. Assuming production of around 70 per

cent of the installed capacity, it would be safe to proceed on the footing

that between the two of them they can provide 800 buses a month. If all the

buses operators chose to buy new buses then @ 800 buses per month, the

entire fleet of remaining 4838 buses, in addition to the 1500 chassis ready

for delivery, can be phased out in not more than 7 or 8 months.

The request of the government for phasing out 200 buses a month appears to

be based on some imaginary shortage in the availability of gas. There is no

credible material placed before the Court to show that the distribution of

gas is consistent with the principle of sustainable development. Conferring

economic advantage upon industry by making available cheap gas in

preference to the need for supplying gas for environmental reason is

inconsistent with the settled Constitutional position.

Even though the time for phasing out diesel buses had expired but in view

of the situation created by the Government of not cooperating or complying

with the Courts order, a different formula has to be worked out so as to

cause as little inconvenience to the travelling public as possible, while

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at the same time punishing the wrong doer. Directions are, therefore, to be

issued regarding the lifting of 1500 buses plus phasing out of 800 buses

per month. The permits to be given are to be time bound and the continued

operation of the diesel buses till they are replaced would require them to

pay Rs. 500 per bus per day for 30 days of operation and thereafter Rs.

1,000 per day and the same is to be deposited with the Director of

Transport, Delhi.

Before concluding on this aspect, we may notice that on a query raised by

the Court, the Union of India has informed the LPG has also been permitted

to be used as fuel by the transport sector. This can and should be an

alternate fuel to CNG available to the users as LPG is, at present,

environmentally acceptable. It is for the Government to take steps so as to

increase it's supply. We may here note that there are, as per CPCB data, at

least nine other polluted cities in India where the air quality is

critical. These cities are Agra, Lucknow, Jharia, Kanpur, Varanasi,

Faridabad, Patna, Jodhpur and Pune. But there appears to be no effective

action plan to address the problem of these cities and the Mashelkar Report

ensures their suffering for quite some time. If no immediate action is

taken then it may become necessary for some orders being passed so as to

bring relief to the residents of those cities.

Lack of adequate supply of CNG has been a cause of concern and has been

referred to in the various orders passed by this Court from time to time.

In the absence of proper response from the governmental authorities, there

is no alternative but to issue the following directions:

1. The Union of India will give priority to transport sector including

private vehicles all over India with regard to the allocation of CNG. This

means that first the transport sector in Delhi, and in the other air

polluted cities of India, CNG will be allocated and made available and it

is only thereafter if any CNG is available, that the same can be allocated

to the industries, preference being shown to public sector undertakings and

power projects.

2. I.A. of the Union of India for extension of time to run diesel

buses is dismissed with costs of Rs. 20, 000 (Twenty Thousand only). It is

made clear, and it is obvious in our constitutional setup, that orders and

directions of this Court cannot be nullified or modified or in any way

altered by any administrative decision of the Central or the State

Governments. The administrative decision to continue to ply diesel buses

is, therefore, clearly in violation of this Court's orders.

3. Those persons who have placed orders with the bus manufactures, and

have not taken delivery of the same shall do so within two weeks from

today, failing which their permits shall stand automatically cancelled.

4. As owners of diesel buses have continued to ply diesel buses beyond

31 st January, 2002, contrary to this Court's orders, for the disobedience

of the said orders, the Director of Transport, Delhi, will collect from

them costs at the rate of Rs 500 per bus per day increasing to Rs. l, 000

per day after 30 days of operation of the diesel buses with effect from

tomorrow and the same shall be deposited in this Court by the Director of

Transport by the 10th day of every month.

5. The NCT of Delhi shall phase out 800 diesel buses per month

starting from 1st May, 2002. Till all the diesel buses are replaced the bus

owners who continue to ply the diesel buses shall pay as per direction No.

4 hereinabove.

6. For implementing these directions, the Union of India and all

governmental authorities, including IGL shall:-

(a) Allocate and make available 16.1 lakh Kg per day (2 mmscmd) of CNG in

the NCT of Delhi by 30th June, 2002 for use by the transport sector,

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(b) Increase the above supply of CNG whenever the need arises

(c) Prepare a scheme containing a time schedule for supply of CNG to the

other polluted cities of India and furnish the same to this Court by 9th

May, 2002 for it's consideration;

(d) It will be open to the Union of India to supply LPG in addition to CNG

as an alternate fuel or to supply any other clean non-adulterable fuel as

the Bhure Lal Committee may recommend.

7. The NCT of Delhi had announced a scheme for financing CNG vans, to

be run as taxis, for SC/ST. We direct a similar financing scheme be framed

by the Union of India jointly with the NCT of Delhi whereby those of the

permits of owners of diesel buses are cancelled due to non-conversion to

CNG the same should, in the first instance, be allotted to SC/ST and to the

other weaker sections of the society. Such a scheme should be prepared and

implemented and a compliance report be filed within four weeks. The costs

deposited under direction (4) above can be utilised in implementing the

proposed scheme.

To come up on 9th May, 2002 for further orders by which date the Union of

India and the N.C.T. of Delhi will file a further report.

Matter is pending.oo Ahn 2000,

Matter is pending.