Case: M.C. Mehta & Others Vs. Union of India & Others

Order dated 16.12.2015 (HONBLE CHIEF JUSTICE MR. T.S. THAKUR HONBLE MR. JUSTICE A.K. SIKRI HONBLE MRS. JUSTICE R. BANUMATHI) 1. We had by our order dated 9th October, 2015 issued certain directions, aimed at mitigating the hardship which the people living in Delhi undergo having regard to the high of pollution in the city that has earned to it the dubious reputation of being the most polluted city in the world. We had among others directed the following measures to be taken: (1) The Governments of the States of Uttar Pradesh, Haryana and Rajasthan shall take steps to ensure that commercial traffic for destinations other than Delhi use alternative routes and to ensure that in the course of implementation of the said direction no traffic jams and other inconvenience is caused to the public. (2) The Government of NCT of Delhi shall direct issue advertisements to inform commercial traffic of the bypass routes and the imposition of the ECC imposed by this Court for entry of the vehicles into Delhi. (3) The toll collectors shall put in place Radio Frequency Identification (RFID) systems at their own costs at nine main entry points in the city by November 30, 2015 and by 31st January, 2016 at all the remaining 118 entry points to the city. The NCT Government shall install its own CCTV cameras at nine entry points and also organise surprise visits to oversee the collection of ECC and other necessary arrangements. 2. We had by the same order directed levy and collection of ECC at the following rates: (i) The Category 2 (light duty vehicles etc.) and Category 3 (2 axle trucks) at the rate of Rs.700/- per vehicle; (ii) Category 4 (3 axle trucks) and Category 5 (4 axle trucks and above) at the rate of Rs.1300/- per truck. Passenger vehicles, ambulances and vehicles carrying essential commodities like food stuffs and oil tankers for Delhi were exempted from the above charges. 3. Mr. Harish N. Salve, learned senior counsel appearing as amicus, argued that imposition of ECC and the directions issued by this Court regarding diversion of commercial vehicles/trucks to alternative routes has made some difference but the pollution levels continue to remain high despite such measures. He submitted by reference to the material placed on record that the level of pollution detected on or before 9th October, 2015 was infact lower than the levels recorded on subsequent dates. Mr. Salve further submitted that although diversion of vehicles to alternative routes in terms of the order passed by this Court was given effect to belatedly on 6th November, 2015, yet the said direction has not been effectively enforced inasmuch as vehicles not bound for Delhi are being allowed to enter Delhi on payment of the prescribed ECC. It was submitted that the true spirit of the order passed by this Court was that vehicles that were bound for Delhi alone were to enter Delhi and other vehicles bound for other destinations/cities were supposed to bypass Delhi by using alternative routes. He drew our attention to a similar direction issued by this Court in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561. It was in that view urged that the order passed by this Court on 9th October, 2015 could be modified/clarified to make it clear that the State Governments shall take steps to divert vehicles that are not bound for Delhi through alternative routes especially those using National Highway-8 and National Highway-1 for entering the national capital. It was also contended by Mr. Salve that in order to effectively discourage vehicles from entering Delhi, the ECC could be revised upwards especially when the Government of NCT of Delhi, the M.C.D. and the Union of India were all agreeable to the same. 4. Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, submitted that diversion of traffic away from Delhi by use of alternative routes as also by way of enhancement of the ECC has been thoroughly discussed with the learned Amicus Curiae and that the Union of India and so also the Government of NCT have no objection to such a direction being issued. He submitted that as a matter of fact discussions held between the representatives of the two governments, namely, Union of India and Government of NCT of Delhi as also the M.C.D. had led to a consensus on five other points also on which this Court could issue suitable directions to help reduce the pollution levels in Delhi. It was submitted that the revision of ECC could be upto 100% of the amount already stipulated for vehicles that are Delhi bound while other vehicles which are not bound for Delhi could be directed to bypass Delhi by using alternative routes which the two governments could be directed to specify. 5. By our order dated 6th December, 2001 passed in M.C. Mehta v. Union of India and Others – (2003) 10 SCC 561, we had, inter alia, directed : 8. It appears that vehicles which transit through Delhi do not adhere to the vehicular standards which are applicable in Delhi, namely, they are not Euro II-compliant nor are they using low sulphur and low benzene fuel. There is no reason why very large number of goods vehicles should transit through Delhi thereby adding to the pollution level and the traffic on the road. 9. It is, therefore, proposed that with effect from 15.1.2002 no heavy-, medium- or light-goods vehicles will ply on inter-State routes by passing through Delhi or New Delhi. It is only those goods vehicles which on payment of octroi/toll tax carry goods to or from Delhi which would be allowed to ply. The Commissioner of Police is directed to formulate a scheme in this behalf and give due publicity to all concerned and implement the same. 6. Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border on N.H.-1 and Rajokri on N.H.-8, shall be diverted to bypass Delhi through such alternative routes as the transport/traffic departments of the governments concerned may stipulate. 7. We are further of the view that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs.

Decision:
1[ds]Our order dated 9th October, 2015 was in the same spirit intended to act as a restraint against vehicles not bound for Delhi entering Delhi. The said direction appears to have been understood to mean as though vehicles not bound for Delhi could also enter Delhi provided they pay ECC. The true intention, however, was that the vehicles that are not bound for Delhi are diverted to alternative routes to bypass Delhi. The levy of ECC has no doubt resulted in some diversion of such vehicles but a very large number of vehicles not bound for Delhi still appear to be entering Delhi on payment of ECC, stipulated by us. In the circumstances, we consider it necessary to make it clear that no vehicle which is not bound for Delhi will be allowed to enter from N.H.-8 which connects Jaipur to Delhi and N.H.-1 that connects the States of Punjab, Haryana and other northern States to Delhi via Kundli border. We are limiting the restraint order to these two entry points for the present because from the figures given to us the largest number of vehicles that are entering into Delhi are from these two entry points. We according direct that traffic from these two entry points viz. Kundli border onN.H.-1 and Rajokri onWe are further of the view that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of the ECC earlier stipulated by us @ Rs.700/- and Rs.1300/- per vehicle depending upon the category to which the vehicle belongs. We, however, direct that for Delhi bound vehicles loaded with goods, the ECC will be twice the charge stipulated by us by our order dated 9th October, 2015. This measure shall, in our opinion, discourage any vehicle trying to enter Delhi on a false pretext of the goods loaded on it being Delhi bound14. On the question of payment of service charge to the petitioner towards the service provided by way of collection of the ECC in terms of the orders passed by this Court, Mr. Salve submitted that the additional duty cast upon the petitioner toll contractor may have certainly involved engagement of additionalr but the determination of the extent of expenditure on the same may require a comprehensive exercise which may not be feasible in these proceedings15. Even so, the figures provided by the petitioner, contended Mr. Salve, suggest that there was an additional outlay towards employment of additional hands for manning the system and for collection of the ECC and other expenses incurred in that regard. All such expenses would not, however, exceed Rs. 2,00,00,000/(Rupees two crores) per month. The service charge claimed by the contractor should not exceed Rs. 2,00,00,000/(Rupees two crores) per month for a period of three months i.e. November 2015, December 2015 and January 2016. The total amount for those three months would work out to Rs. 6,00,00,000/(Rupees six crores) in all, which amount this Court could consider awarding in favour of the petitioner towards compensation for the service rendered by it in the matter of collection of ECC. Mr. Salve was not averse to this Court taking into consideration the fact that the presentm put in place by the petitioner would now be transferred to the new contractor/agency to be chosen by the Corporation which could also be suitably assessed for purposes of compensating the outgoing contractor. He urged that taking an overall view of all the aspects a total amount of Rs. 7,26,30,799/representing the differential which should have been paid and which remainedd by the petitioner could bef against the amount payable to the petitioner towards service charge/compensation for the infrastructure and premature termination of the toll collection contract and the petitioner be allowed to exit the contractual arrangement subject to the petitioner depositing, on a weekly basis, the contracted amount Rs. 10,54,13,115/for the remaining three weeks of January 2016.16. We have given our anxious consideration to the submissions made at the Bar. It is rarely, if ever, that this Court interferes with an arrangement in the realm of contract by exercising its powers under Article 142 of the Constitution especially when it is ang contract. But the present is a case where the parties agree that their rights and obligations be decided by this Court in these proceedings only. Recourse to separate legal proceedings would lead to multiplicity and unnecessary procrastination. The case at hand is in that sense distinguishable from the rest. We say so because we are dealing here with a situation where ang contract has been affected by what is perceived to be at of judicial orders passed by this court. Diversion of vehicles whether on account of orders directing such diversion or on account of environment cess imposed upon those entering Delhi, has had its impact, no matter the extent of such impact cannot be accurately assessed on a scientific basis. That apart, the proposed installation of RFIDs to improve the existing method of collection will, according to M/s. Harish N. Salve and Pinky Anand, take around nine months. An end of the current arrangement will help in taking steps for improving the system by using modern technology. We are also of the view that the existing contractual arrangement if terminated will not reduce litigation but also pave way for an all round improvement in the system; particularly when the proposed termination of the contract by the corporation on the ground that there was a default on the part of the contractor has not fructified so far. Even today, when the matter came up for final hearing and disposal, Ms. Anand was not armed with a termination order to be served upon the respondent. All that was said was that the option of terminating the contract was available, as indeed it would be, if a default is committed by the contractor, but the fact of the matter is that no termination has yet taken place. That being the position the parties have upon consideration of the pros and cons of the situation and eventually agreed to the petitioner being given an honourable exit upon terms and conditions that have been worked out by them with the help of Mr. Salve, learned amicuswe see no reason why owners of diesel vehicle, older than 10 years in the National Capital Region, should not be permitted to apply for grant of NOC or obtain such a certificate for sale of such vehicles to purchasers outside NCR/Delhi11. We had also by our Order dated 16th December, 2015 directed that vehicles registered in the year 2005 or earlier shall not qualify to enter Delhi even if they are Delhi bound. The State Governments and Union Territories were directed to evolve a suitable system for implementation of that direction.We are today informed by Mr. Salve that Ministry of Road Transport and Highways and the Transport Department in the NCT of Delhi are working out the modalities by which vehicles registered prior to 2006 (10 years older) could be identified and stopped from enteringSeveral options in that regard are according to Mr. Salve being examined and that the EPCA has asked the concerned authorities to finalise the method. We hope and trust that the directives issued by this Court are implemented at the earliest. We request the EPCA to pursue the matter further with the authorities concerned to ensure that the directions issued by us are implemented faithfully14. We make it clear that since thequestion whether any polluting construction sites has gone scot free on account of any indifference or apathy on the part of the enforcement agencywill require spot checks of verification. EPCA shall be free to make surprise checks wherever considered appropriate and submit a report as to the nature of the activity and the failure of enforcement agency in taking action against such violations. EPCA may also consider making use of credible volunteers/ organisations for undertaking such surprise checks on construction sites.