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Judgment
By this common Judgment, both these Applications i.e. Application No. 25/2014 and Application No.32/2014, are being disposed of as they are dealing with the same issue related to seeking directions from this Tribunal regarding restraining the induction of two-strokethree-wheelers i.e. Auto-rickshaws.
Application No.25/2014 is filed by one Shafi, who claims to be the founder of Jagrut Auto-rickshaw Men's Union and a labor right activist. He submits that the Government has misled the public at large that CNG fuel is non-polluting while encouraging large scale of auto-rickshaw conversion to CNG. He contends that despite having CNG fuel in Auto rickshaws, pollution levels continue to rise. He, therefore, submits that though he supports all precautionary measures to control pollution, he is aggrieved by the fact that the Govt. is declaring CNG as non-polluting and then compelling PUC certificate to be taken which is economical exploitation of Auto-rickshaw owners. He relied on the report of Environment Protection and Control Authority (EPCA) report No.9 (November, 2004) wherein, the authority found that Auto rickshaws were contributing to pollution load in the city despite running on clean fuel. He has also relied on some other technical literature to submit that increase in number of Auto rickshaws plying on the roads in Mumbai and suburban areas has substantially increased air pollution levels in the city. He also averts that increase in number of Auto-rickshaws has also resulted in significant increase in the noise pollution and also states that with the proposed additional auto-rickshaws on road the livelihood will be more complicated for the present Auto- rickshaw drivers. Under these circumstances, he has prayed for following reliefs:
Prayers:
A. Issue a stay order against the sanction of new auto rickshaw permits and re-issue of old expired permits considering the environmental hazards and its continuation in adding fuel to the present air and noise pollution.
B. To direct the appropriate assessment of impact on air and noise levels be done by Respondent No.2 regarding air and noise pollution in cities like Mumbai, Navi Mumbai, Vashi, Kalyan, Thane, Panvel, Pen, Ratnagiri, Sangli, Pune Jalgaon, Jalna, Nashik, Beed, Chadrapur, Yavatmal, Aurangabad, Kolhapur, Nanded, Nandurbar, Latur, Akola etc. due to old auto-rickshaw like other vehicles.
C. To direct Respondent No.1 to withdraw new permits for auto rickshaws considering the massive pollution that the same shall cause.
D. To direct Respondent No.1 and 2 to introduce effective regulatory and enforcement mechanism to ensure that auto-rickshaws do not cause pollution, harming both citizens and rickshaw drivers alike.
E. Pass any other appropriate orders considering the facts and circumstances of the case in the larger human and environmental interest and social justice.
By filing Application No.32/2014, the Applicant New Link Road Residents Forum claiming to be a registered NGO has invoked jurisdiction of this Tribunal to prevent further damage to environment and air quality in the city of Mumbai on account of the decision of the Govt. of Maharashtra to issue total 69309 fresh permits for Auto rickshaws in the State of Maharashtra including 20931 number of permits in Mumbai and 3737 in Thane without imposing any restrain on induction of additional two-stroke engine Auto-rickshaws which is one of the largest source of air pollution. Applicant submits that presently, more than one lakh rickshaws are plying in Mumbai and about 65000 Auto rickshaws are plying in Thane. The present fleet of Auto rickshaws comprise of two-stroke engine as well as four-stroke engine Auto rickshaws. The Applicant submits that two-stroke engine technology is outdated compared to four-stroke engine and in fact, exhaust concentration of PM2.5from two-stroke engine isvery high compared to emission level of four-stroke engine. The Applicant submits that air pollution has well documented adverse effects on health and therefore, such promotion oftwo-stroke engine, technology will further aggravate air pollution problem. The Applicant has relied on various technical literature to claim that two-stroke engines are inferior to four-stroke engines as far as exhaust air emissions are concerned. The Applicants have also relied the report of Lal Committee which was appointed by Hon'ble High Court of Mumbai, wherein gradual replacement of present two-stroke engine auto-rickshaws with four-stroke engine auto-rickshaw was one of the recommendations. Based on this information and data, the Applicants have pleaded that it was imperative on the part of Govt. of Maharashtra to take necessary steps in consultation with MPCB for prohibiting induction of two-stroke engine Auto rickshaws (public transportation) in order to improve air quality. It was also necessary for MPCB under the provisions of Air (Prevention and Control of Pollution) Act,1981, to give suitable advice to the State Govt. in order to attain National Ambient Air Quality Standards (NAAQS) in the urban areas of the State and therefore, the Applicants have prayed for following:
Prayers:
(a) That this Hon'ble Tribunal be pleased to pass necessary orders of permanent injunction restraining the Respondent No.4 an Government of Maharashtra from issuing any fresh/replacement permits to three wheelers in the MMRDA Region including cities of Mumbai & Thane without imposing complete ban on induction of any three-wheelers with two-stroke engines.
(b) That this Hon'ble Tribunal be pleased to quash the decision of Respondent No.4 of proceeding to issue fresh/replacement permits for auto-rickshaws (for public transportation) in MMRDA Region including cities of Mumbai and Thane as mentioned in the Advertisement dated 24.1.2014 being Annexure "1" as mentioned in tis Application.
(c) That this Hon'ble Tribunal be pleased to issue necessary orders directing Government of Maharashtra to come out with a Scheme for replacement of two-stroke engines with four-stroke engines within a time bound programme.
(d) That pending the hearing and final disposal of the present Application, this Hon'ble Tribunal be pleased to pass orders of temporary injunction restraining the Respondent No.4 and Government of Maharashtra from proceeding further in the matter of issuance of fresh/replacement permits for auto-rickshaws (for public transportation) in the MMRDA Region including the Cities of Mumbai and Thane and/or from proceeding further any applications received for issuance of the said fresh permits.
(e) Ad-interim reliefs in terms of prayer (d) above;
(f) For costs of the Application be provided for;
(g) For such further and other reliefs as the nature and circumstances of the case may require.
Countering these Applications, Transport Commissioner, State of Maharashtra has filed an affidavit through Shri. Y.K.Bag, on 18th March, 2014. It is submitted that Mumbai Metropolitan Region Transport Authority (MMRTA) vide Resolution No.2/2010 has resolved to allow only new Auto-rickshaws to be used on permits. Further, it is submitted that even in case of permits being newly issued by way of lottery system in MMRDA area, it is made mandatory to register Auto-rickshaw on CNG, which is a cleaner fuel. As per Notification issued by Government of India, No.GSI-443/(E) dated 21st May, 2010, for the cities of Mumbai, Pune and Solapur of the State, the emission norms of BS-III are made applicable for two-wheelers and three-wheelers from 1.10.2010, which are being scrupulously followed in these cities by the Transport Authorities. However, the Transport Department contends that the said Notification does not bar registration of two-stroke Auto-rickshaws in the said cities, provided that they comply with BS-III emission norms. It is further submitted that all Auto-rickshaws which are being registered have been duly approved by the Testing Agencies in compliances with provisions of the Motor Vehicles Act, 1988. It is further submitted that the Central Govt. vide order dated26.11.1997 has directed the Transport Department to limit number of Auto-rickshaws/Taxis in Mumbai to then existing total number of permits. It is further submitted that at present, operation of issuing permits by way of lottery is in respect of those permits which have been cancelled/revoked by the Authorities and there are no new additional permits more than that which were in existence as on 26.11.1997, are being issued. The Application is, therefore, resisted.
Subsequently, the Transport Department filed another affidavit on 21st April, 2016, wherein statistical information regarding number of Auto-rickshaws and permits thereof has been submitted.
Central Pollution Control Board (CPCB), who is Respondent No.7 in Application No.32/2014 has filed an affidavit and averts that the issues raised in the present Application are primarily related to the State of Maharashtra and the State Transport Department and, therefore, have not commented on issues raised in these Applications.
MPCB- Respondent No.5 in Application No.32/2014 has initially filed an affidavit hardly dealing with any issues raised in the Applications. This Tribunal therefore on 18th March, 2016 asked MPCB to submit detail technical report, as to whether use of two-stroke engine causes emission of any particular additional pollutants and/or increase in particulates due to use of such engines in the Auto rickshaws. MPCB was also directed to explain whether change in fuel use from petrol/diesel to CNG would cause change in emission of pollutants, if any, then nature of such change in emission. This was necessary in view of contention of the Applicants that two-stroke Auto engine would add pollutants more than four-stroke engines. After lot of persuasion and time span, MPCB has filed a report of Expert Agency i.e. the Automotive Research Association of India (ARAI), dated 29th May, 2015 titled "Comparative Study of Emission from 2-stroke-3 Wheeler running on gasoline, CNG, LPG vs 4-stroke 3 Wheeler running on Gasoline, CNG, LPG". The conclusions of the said report are reproduced below:
Conclusion
Sample size is less & hence normally can be issued.
For all different categories T-Test, P Value for each cases is more than 0.05 (Confidence level< 95%
With 80-85% confidence level, we can conclude following
a. When we compare only New vehicle, then Particulate emission (PM) from all New vehicles (two-Stroke &four-stroke) are within diesel limit value.
b. Particulate emission (PM) from Old two-Stroke (LPG,CNG & Gasoline) vehicles are more than the prescribed diesel limit value whereas Particulate emission (PM) from Old 4-Stroke (LPG, CNG & Gasoline) vehicles are within diesel limit value.
c. Particulate emission (PM) from Old 2-Stroke vehicles is more thanfour-stroke vehicles running on the road within analysis of limited data/sample recommended.
d. Particulate emission limits are applicable only for diesel fueled vehicles. This is taken for reference purpose of Gasoline, CNG, LPG vehicles.
The Automotive Research Association of India (ARAI), which is Respondent No.7 in Application No.32/2014, has filed an affidavit on 4th September, 2014 and submits that they are one of the Testing and Certifying Agencies authorized by the Central Govt. under Rule-126 of the Central Motor Vehicles Rules, 1989. It is also submitted that it is not the function of ARAI to make, notify or enforce any such norms or standards or emission of the vehicles. The role of ARAI is limited to test and certify vehicles and components in compliance with law in force i.e. the Motor Vehicles Act.
Respondent No.8 in Application No.32/2014, is the Union representing interest of Auto Rickshaw owners and drivers. They have submitted that reliefs sought are beyond mandate and jurisdiction of this Tribunal. It is submitted that cost of two-stroke Auto rickshaws is substantially less than four-stroke Auto rickshaws and, therefore, it is economical for operator to purchase and operate such two-stroke Auto rickshaws. In any case, the rickshaws have shifted to cleaner fuel like CNG/LPG and are strictly complying with prevailing emission norms. Respondent No.8 argues that Applicants in both these Applications have incorrectly interpreted recommendations of Lal Committee report and observations in report of EPCA that are strictly related to Delhi area. It is also submitted that the question of phasing out old vehicles and also question of clean fuel was the subject matter in the Writ Petition No.1762 of 1999 and in the said matter, the Hon'ble High Court has not banned use of two-stroke engines. It is also contended that even two-stroke engine technology has undergone various technical improvements and now these two-stroke engines are comparatively far superior than old technology two-stroke engines and in any case, both two-stroke and four-stroke engines are required to conform to BS- III stage emission norms and there cannot be any preferential treatment to a particular type of engine, if the emission norms are being complied. In other words, their contention is that as long as prescribed emission norms are complied by the auto- rickshaws, then the Tribunal should not enter into prescription of technology as most of the time, it is vendor based market oriented decision.
Other Respondents like MoST, State of Maharashtra, Environment Department, Govt. of Maharashtra, have not filed their replies.
We have given our considered thought to the pleadings and submissions made by the Applicants and the Respondents. In our considered opinion, following issues emerge for determination, which require adjudication by this Tribunal:
Whether the Applications present and justify any cause of action in terms of provisions of Section 14 of the NGT Act, 2010?
Whether the Tribunal can consider prayers of the Applications related to restricting particular technology and prescribing another one, in order to improve air quality?
We have perused both the Applications and the pleadings. The preliminary prayer in both these Applications is related to restricting the induction of new two-stroke three-wheelers, to existing fleet or replacement of existing fleet. All other prayers are consequential prayers. In other words, in both these Applications, intervention of the Tribunal is sought to restrict two-stroke engine based three-wheelers on the basis of claims that they are highly polluting compared to four-stroke engine and they contribute significantly to ambient air pollution, thereby violating the provisions of the Air Act, so on and so forth. The Applicants have also placed various documents on record, including EPCA Reports. It is worthwhile to note that EPCA was constituted on the orders of the Apex Court in Writ Petition No.13029 of 1985, and is mainly dealing with air pollution in the National Capital Region (NCR) of New Delhi.
We have also taken judicial note of the fact that Application No.25/2014 has been filed by one of the Auto rickshaw Union and Application No.32/2014 has been filed by the registered NGO. From mere phrasing of the prayers in both these Applications, it is manifest that the Applicants want to restrict induction of new two-stroke engine,auto-rickshaws either as addition or substitution of the existing fleet.
When the Tribunal confronted the Applicants what could be the cause of action to initiate these proceedings, it is pointed out that advertisement dated 24.1.2014, by the Transport Department inviting Applications for grant of permission for new auto-rickshaws is the cause of action.
The conspectus of cause of action as applicable to NGT Act, 2010 has been well elucidated by the Hon'ble Principal Bench of NGT, in Original Application No.222 of 2014 in the case of (The Forward Foundation Vs State of Karnataka& Ors)
"23. 'Cause of Action' as understood in legal parlance is a bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed. It is the foundation of a suit or an action. 'Cause of Action' is stated to be entire set of facts that give rise to an enforceable claim; the phrase comprises every fact, which, if traversed, the plaintiff must prove in order to obtain judgment. In other words, it is a bundle of facts which when taken with the law applicable to them gives the plaintiff, the right to relief against defendants. It must contain facts or acts done by the defendants to prove 'cause of action'. While construing or understanding the cause of action, it must be kept in mind that the pleadings must be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or passage and to read it out of the context, in isolation. Although, it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, from the pleading taken as a whole. [Ref. Shri Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511, A.B.C Laminart Pvt Ltd. v. A.P. Agencies, AIR 1989 SC 1239].
The expression 'cause of action' as normally understood in civil jurisprudence has to be examined with some distinction, while construing it in relation to the provisions of the NGT Act. Such 'cause of action' should essentially have nexus with the matters relating to environment. It should raise a substantial question of environment relating to the implementation of the statutes specified in Schedule I of the NGT Act. A 'cause of action' might arise during the chain of events, in establishment of a project but would not be construed as a 'cause of action' under the provisions of the Section 14 of the NGT Act, 2010 unless it has a direct nexus to environment or it gives rise to a substantial environmental dispute. For example, acquisition of land simplicitor or issuance of notification under the provisions of the land acquisition laws, would not be an event that would trigger the period of limitation under the provisions of the NGT Act, 'being cause of action first arose'. A dispute giving rise to a 'cause of action' must essentially be an environmental dispute and should relate to either one or more of the Acts stated in Schedule I to the NGT Act, 2010.
If such dispute leading to 'cause of action' is alien to the question of environment or does not raise substantial question relating of environment, it would be incapable of triggering prescribed period of limitation under the NGT Act, 2010. [Ref: Liverpool and London S.P. and I Asson. Ltd. v. M.V. Sea Success I and Anr., (2004) 9 SCC 512, J. Mehta v. Union of India, 2013 ALL (I) NGT REPORTER (2) Delhi, 106, Kehar Singh v. State of Haryana, 2013 ALL (I) NGT REPORTER (DELHI) 556, Goa Foundation v. Union of India, 2013 ALL (I) NGT REPORTER DELHI 234]
Furthermore, the 'cause of action' has to be complete. For a dispute to culminate into a cause of action, actionable under Section 14 of the NGT Act, 2010, it has to be a 'composite cause of action' meaning that, it must combine all the ingredients spelled out under Section 14(1) and (2) of the NGT Act, 2010. It must satisfy all the legal requirements i.e. there must be a dispute. There should be a substantial question relating to environment or enforcement of any legal right relating to environment and such question should arise out of the implementation of the enactments specified in Schedule I. Action before the Tribunal must be taken within the prescribed period of limitation triggering from the date when all such ingredients are satisfied along with other legal requirements. Accrual of 'cause of action' as afore-stated would have to be considered as to when it first arose."
Section 14 of the National Green Tribunal Act, 2010 sets out jurisdiction of this Tribunal in very clear terms and a dispute which is related to cause of environment needs to be presented by the Applicant. Though learned Counsel for the Applicants have tried their best to convince that violation of ambient air quality issues in the urban areas is the main dispute, but they are not able to substantiate the relation of main prayer to the air quality to raise such dispute. In fact, the Applications are based on the premise that it is apprehension of the Applicants that two-stroke engines are major contributors to ambient air pollution. On careful perusal of the pleadings, we have noted that in the city of Mumbai, there is a cap on number of three-wheelers plying on the road with permit. The present advertisement, which is stated as 'cause of action' here in is for replacement of cancelled/revoked permits. There is no capacity addition to number of three-wheelers envisaged by the Transport Department, as submitted in their affidavit. It is admitted that the Notification of Transport Department stipulates BS-III emission standards and all three-wheelers irrespective of type of engine, are required to comply with that. The Applicants have also not presented co-relation of two-stroke engine emission (old and new) vis-à-vis four-stroke three-wheeler emissions, when compared with ambient air quality.
It is admitted fact that there are multiple sources of air pollution in the urban areas and automobile is one of the source as reported in the Source apportionment study carried out by CPCB in 2009, a copy of which is on record of the Tribunal. Undoubtedly, if the main prayer is related to ambient air quality then the Applicants should have brought all or at least majority of sources in the lis. However, this lis is initiated only in relation to a small segment of automobiles i.e. three-wheelers. The reference to ambient air quality is in allusion to the main prayer related to two-stroke engine.
Under the circumstances, we are not convinced that present cause of action and dispute as portrayed by the Applicants, which is related to banning of two-stroke engines can be covered in the scope of Section 14 of the NGT Act, without having a direct relation with any environmental dispute or violation of any legal right related to environment.
It is noticed that these proceedings are initiated as a result of dispute between two groups of Auto rickshaw unions and when questioned whether any action in Rem is proposed or sought for learned Counsel for the Applicants could not justify the same. Secondly, the Transport Department is on affidavit that they are permitting only replacement of three-wheelers in Mumbai area and newly inducted vehicles will strictly conform to prevailing emission standards. As far as other areas are concerned, they are on record that any new induction will be subject to compliance of prescribed emission standards as well as other provisions of the M.V. Act.
Under these circumstances, when emissions from these vehicles are in compliance with emission standards and there is no scientific evidence or technical data on comparison between different technologies and fuels, it may not be prudent for this Tribunal at this stage to prescribe particular technology to be used which will lead to creation of third party rights. The technology providers are not party to the Applications. Further, the Applicants are not able to substantiate their claim on technology adaptation in view of difference in emission levels vis-à-vis emission standards.
We have also bestowed our considerations to the findings of ARAI in this regard.
This Tribunal has taken detailed view as far as vehicle emissions norms are concerned as elaborated in Dileep B.Nevatia Vs Union of India (M.A.No.140/2015, M.A.No.144/2015 M.A.No.239/2015 in Application No.27/2015). Further, Hon'ble Apex Court in M.C.Mehata Vs Union of India (Delhi Vehicular Air Pollution) (2001) 3 SCC 756, has also elaborately dealt on the vehicle emission norms and need to attain ambient air quality.
We have also confronted learned Counsel for the Applicants regarding pendency of similar issue before the Apex Court in Writ Petition No.13029 of 1985, particularly, related to roll out of BS-V and VI norms and also draft Notification of Govt. of India. In this regard, we are of the opinion that the issue related to leap frogging the vehicle emission standards is subjudice before Hon'ble Apex Court.
In these circumstances, we are not inclined to entertain these Applications, as there is no cause of action, as prescribed in Section 14 of the NGT Act, 2010. However, in the interest of justice and also considering provisions of Section 20 of the Air Act, related to power to give instructions for ensuring standards of emission from automobiles, we find it necessary, on the precautionary principle, that MPCB shall consider the two-stroke and four-stroke engine emission levels for different fuels, as mentioned in ARAI report and send its recommendation to the State Government on priority for further necessary action, may be within next 4(four) months.
We would like to mention with regret that the approach of CPCB in these Applications, leaving everything to State agencies is rather inappropriate, particularly when it is well established fact that most of the urban areas in the country are not complying with National Ambient Air Quality Standards and CPCB is expected to play critical role as prescribed in Section 16(1) and (2) of the Air (Prevention and Control of Pollution) Act, 1981.Though, we were inclined to pass certain orders on this issue, we are restraining ourselves on this, in view of peculiar circumstances of these Applications. However a copy of this order be sent by the Registry to the Chairman, CPCB for suitable action.
With this direction, both the Applications are disposed of, making no order as to costs.