Order dated 16-12-2015
(Before Dr T.S Thakur, C.J and Dr A.K Sikri and R. Banumathi, JJ.)
IAs Nos. 366-68, 370-72 in IA No. 365 in IA No. 345, IAs Nos. 369, 373, 374 in IA No. 366 in IA No. 365 in IA No. 345 in WP (C) No. 13029 of 1985 with WPs (C) Nos. 817 of 2015, 116 of 2013 and 728 of 2015
1. We had by our order dated 9-10-2015 (2016) 2 SCC 33 issued certain directions, aimed at mitigating the hardship which the people living in Delhi undergo having regard to the high level 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 issuance of advertisements to inform commercial traffic of the bypass routes and the imposition of 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 30-11-2015 and by 31-1-2016 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) 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 9-10-2015 (2016) 2 SCC 33 was in fact 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 6-11-2015, 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 (2003) 10 SCC 561 . It was in that view urged that the order passed by this Court on 9-10-2015 (2016) 2 SCC 33 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, ECC could be revised upwards especially when the Government of NCT of Delhi, MCD 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 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, the Union of India and the Government of NCT of Delhi as also the MCD 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 up to 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 6-12-2001, passed in M.C Mehta v. Union of India (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.”
(emphasis supplied)
6. Our order dated 9-10-2015 (2016) 2 SCC 33 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 NH 8 which connects Jaipur to Delhi and NH 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, accordingly, direct that traffic from these two entry points viz. Kundli border on NH 1 and Rajokri on NH 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 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, ECC will be twice the charge stipulated by us by our order dated 9-10-2015 (2016) 2 SCC 33 . 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 bound.
8. Mr Salve next argued that the transport vehicles registered on or before 2005 which are non-compliant with the current pollution control standards also need to be disallowed from entering Delhi even if the same are Delhi bound with goods loaded for consumption in the city. There was a consensus among the learned counsel for the parties even on this issue who submitted that the Union of India or Government of NCT of Delhi have no real objection if a direction to that effect is issued. We, accordingly, direct that while vehicles “bound for Delhi” may enter on payment of ECC at the rates stipulated hereinabove, those registered in the year 2005 or earlier shall not qualify for such entry. The State Governments and Union Territories concerned shall ensure that vehicles bearing registration numbers of the year 2005 or earlier do not enter Delhi. The Governments will evolve a suitable system for implementation of this direction.
9. It was contended by Mr Salve that since diesel vehicles are the most polluting vehicles contributing to the current state of affairs in Delhi, it is time to issue directions banning registration of any new private and commercial light duty diesel vehicles in the National Capital Region. This submission was opposed by Mr Ranjit Kumar who submitted that banning of commercial light duty diesel vehicles is likely to affect trade and commerce within Delhi and supply of essential commodities to the people living in the National Capital Region especially because such vehicles are used in large numbers for ferrying goods from one place to the other in the region.
10. M/s Dushyant Dave and Dhruv Mehta, learned Senior Counsel appearing for the automobile dealers selling diesel vehicles, also opposed any ban on registration of new private vehicles and commercial light duty diesel vehicles as proposed by Mr Salve. Having given our anxious consideration to the submissions made at the Bar, we are of the view that the new commercial light duty diesel vehicles can for the present continue being registered in Delhi on account of the dependence of the public on such vehicles for supply of essentials. There is, however, no reason why registration of private cars and SUVs using diesel with an engine capacity of 2000 cc and above should not be banned up to 31-3-2016. It is noteworthy that diesel vehicles of 2000 cc and above and SUVs are generally used by more affluent sections of our society and because of the higher engine capacity are more prone to cause higher levels of pollution. A ban on registration of such vehicles will not, therefore, affect the common man or the average citizen in the city of Delhi. We, accordingly, direct that registration of SUVs and private cars of the capacity of 2000 cc and above using diesel as fuel shall stand banned in the NCR up to 31-3-2016.
11*. It was then argued by Mr Salve that all taxis including aggregators like OLA and UBER plying in the National Capital Region may be moved to CNG fuel within a reasonable time but not later than 31-3-2016. There was a general consensus on this subject also primarily because it is hoped by all concerned that it will contribute substantially to the reduction of the pollution. We, therefore, direct that all taxis including those operating under aggregators like OLA and UBER in the NCR of Delhi, plying under city permits shall move to CNG not later than 31-3-2016.
12. It was submitted by Mr Salve that one of the contributors to the pollution in the city is dust that rises from the roads and pavements which are not fully developed. It was submitted that the Government of NCT of Delhi could be directed to vacuum clean the roads which will substantially reduce the pollution levels. To the credit of the learned counsel for the Government of NCT of Delhi and the Union of India and the MCD we must mention that a direction to that effect was not opposed by any one of them. As a matter of fact, Mr Wasim A. Qadri, learned counsel for the Government of NCT of Delhi submitted that the State Government is very keen to undertake these steps to reduce the pollution levels and ensure that paving of roadsides starts immediately. Vacuum cleaning will, however, take some time as the State Government shall have to purchase vacuum cleaning vehicles/appliances for use on the roads.
13. We, accordingly, direct the Government of NCT of Delhi to take immediate steps for repair of pavements and make pavements wherever the same are missing and also to take immediate steps for procurement of the requisite vacuum cleaning vehicles for use on Delhi roads expeditiously but not later than 1-4-2016.
14. It was argued by the learned counsel for the parties that one of the major contributors to the current pollution levels is the construction activities going on in the National Capital Region. It was submitted that the Union of India and the State Governments concerned must be directed to take steps to enforce the CPCB rules and norms against those engaged in such construction activities to prevent further rise of pollution levels. We see no reason to decline a direction to that effect. CPCB norms regarding prevention of pollution by putting curtains and other devices at construction sites must be strictly enforced by the enforcement agencies concerned. We direct accordingly.
15. It is also contended by the learned counsel for the parties that one of the contributors to the pollution is burning of solid waste by local bodies like MCD, NDMC and institutions that generate such waste. It was submitted that burning of solid waste was impermissible under the relevant rules and that lapses on the part of the authorities concerned in the matter of enforcing the said rules is contributing to the deteriorating situation. It was, therefore, prayed that authorities including the local bodies and institutions within the National Capital Region be directed to refrain from disposing of solid waste by burning such waste and to take steps for proper management/disposal of such waste in a scientific manner following the norms and the requirements of the relevant rules in that regard. We see no reason to decline that prayer either. We, accordingly, direct that the State Government and the local bodies concerned including MCD, NDMC and all other institutions that are generating solid waste shall take steps to ensure that no part of such waste is burnt and that proper arrangements are made for disposal of such waste in a scientific way without causing any hazard to environment.
16. There are a few other suggestions also mooted by the learned counsel for NCT of Delhi with which we are not dealing at present as the learned counsel for the Union of India and the Amicus Curiae wanted some time to examine the same and make their submission. They may do so on or before the next date of hearing.
17. Mr Shyam Divan, learned counsel for the toll collector SMYR Consortium LLP, prayed for early hearing of his application (IA No. 366) for modification of our order dated 9-10-2015 (2016) 2 SCC 33 as according to the learned counsel, the diversion of vehicular traffic away from Delhi is seriously impacting the contract entered into by the applicant with MCD.
18. In the circumstances, therefore, while we adjourn these proceedings to Tuesday, 5-1-2016 to be listed along with all pending applications including those filed by the toll collector, we direct that steps that we have indicated hereinabove shall be taken by all concerned in the right earnest notwithstanding any order to the contrary passed by any court or authority or tribunal whatsoever. Post on 5-1-2016.
Order dated 5-1-2016
(Before Dr T.S Thakur, C.J and Dr A.K Sikri and R. Banumathi, JJ.)
IAs Nos. 366-68, 370-72 in IA No. 365 in IA No. 345, IAs Nos. 369, 373-74 in IA No. 366 in IA No. 365 in IA No. 345 in WP (C) No. 13029 of 1985 with WPs (C) Nos. 817, 728 of 2015, WP (C) No. 116 of 2013 with Civil Appeal Diary No. 41690 of 2015 and IAs Nos. 375-86 in IA No. 365 in IA No. 345
19. Heard. By our order dated 16-12-2015 Set out in paras 1 to 18, above , we had issued several directions with a view to reducing the levels of air pollution within the National Capital Region. One of the said directions required the authorities to divert traffic entering from two entry points into Delhi, namely, Kundli border on NH 1 and Rajokri on NH 8. We had directed that heavy vehicular traffic on the said two highways that enters Delhi from Kundli border on NH 1 and Rajokri on NH 8, shall be diverted to bypass Delhi through such alternative routes as the transport/traffic departments of the Governments concerned may stipulate.
20. We are today told by Mr Harish N. Salve, learned Senior Counsel appearing as Amicus, that the said direction has been substantially complied with according to his instructions. Mr Anil Grover, learned Additional Advocate General appearing for the State of Haryana, also submits that the State of Haryana has taken appropriate steps in the above direction and has diverted traffic away from Delhi by prescribing alternative routes. The learned counsel, however, prays for some time to file a detailed status report as to the precise steps taken in that direction and also the extent of heavy commercial traffic diverted away from Delhi. He may do so within three weeks.
21. The learned counsel for the parties submit that vehicular traffic on NH 1 and NH 8 alone do not contribute to the problems of the capital region. They submit that heavy commercial traffic is also entering Delhi from several other entry points and directions. For instance, heavy commercial traffic is entering Delhi from NH 10 that connects Sampla and Bahadurgar at Tikri entry point.
22. Similarly, heavy commercial traffic is entering Delhi from NH 2 and NH 58 which connect Palwal to Faridabad and Ghaziabad to Meerut respectively. Heavy commercial traffic running on State Highway 57, connecting Ghaziabad to Bagpat, also enters Delhi at Mohan Nagar and Shahdara entry points. They submit that heavy commercial traffic from these three highways should also be diverted to bypass Delhi and that this Court could direct the State Governments of Uttar Pradesh and Haryana to take appropriate steps for such diversion.
23. Mr Ranjit Kumar, learned Solicitor General appearing for the Union of India, submits on instructions of the Ministry of Road Transport and Highways (Morth) that the National Highway Authority of India (NHAI) shall take immediate and appropriate steps to ensure that no inconvenience is caused to those using such alternative routes.
24. In the circumstances and keeping in view the submissions made at the Bar, we direct that heavy commercial traffic from NH 2, NH 10, NH 58 and from State Highway 57 shall not be allowed to enter Delhi from the entry points mentioned above. Commercial vehicles that are Delhi bound shall, however, remain unaffected. We further direct that the State Governments and NHAI shall take immediate steps for identifying and prescribing alternative routes for the heavy commercial traffic plying on the said highways with a view to bypassing Delhi. We will appreciate if the Central Government and NHAI lend a helping hand to the State Governments for making the diversion possible and taking immediate steps necessary for the convenience of those making use of the above highways.
25. We further direct that the Environment Pollution Control Authority (EPCA), constituted under the Environment Protection Act, shall convene a meeting of officers from the State Governments concerned and the Government of India apart from the Municipal Corporations/Municipalities concerned to examine the feasibility of setting up of way-bridges at all such places as same as entry points for bringing the traffic into National Capital Region and the NCT of Delhi. EPCA shall in consultation with the representatives of the Governments concerned examine whether such way-bridges have to be set up by the State Governments, the Union of India, NHAI or the local bodies concerned. The modalities for setting up of the way-bridges can also be discussed by EPCA suitably and a report in that regard submitted to this Court within three weeks from today.
26. By our order dated 16-12-2015 Set out in paras 1 to 18, above , we had directed that empty/unladen vehicles bound for Delhi, can enter Delhi on payment of ECC stipulated by this Court.
27. We are today informed by Mr Salve that implementation of the said directive commenced from 17-12-2015. Ms Pinky Anand, learned ASG appearing for the South Delhi Municipal Corporation, however, points out that the collection of ECC at the rates stipulated by this Court has begun but the performance of the toll contractor is not entirely satisfactory. The disclosure made by the toll collector as to the number of vehicles entering Delhi is not accurate according to Ms Anand. The contractor has besides defaulted in the payment of the contracted amount and encashment of the bank guarantees. She submits on instructions that the Corporation is examining whether the existing contractual arrangement for the toll collection should be terminated. She argued that these proceedings should not stand between the Corporation and any such termination.
28. Mr Salve, on the other hand, submits that while the Corporation is free to take whatever decisions are necessary in the circumstances, the collection of ECC cannot be jeopardised leave alone abandoned. He submits that the Corporation must, while taking any action against the existing contractor, put in place a suitable arrangement for collection of the toll and ECC. We do not propose to examine in these proceedings the validity of any action which the Corporation may decide or take against the contractor on the basis of the alleged default committed by him. All that we need say is that should the Corporation decide to make any change in the present arrangement for collection of the toll and ECC, it shall make sure that an alternative arrangement is put in place so that ECC and toll collection does not suffer.
29. Mr Salve submits on instructions that the authorities are also toying with the idea of putting in place Radio Frequency Identification Device (RFID) for a more effective and credible toll collection. Mr Ranjit Kumar, learned Solicitor General appearing for the Union of India, however, submits that there are some other options also available which are equally effective because of better technology. He submits that the issue is still being examined at the appropriate level and an appropriate decision to make recovery of toll and ECC leakage-free shall be taken. We leave it open to the authority concerned to examine the feasibility of any better arrangement in place of the existing system, if the present system is not satisfactory or effective in any manner. We only hope that an appropriate decision on the subject will not be delayed any further and would expect the authorities concerned to file a status report on the subject by the next date of hearing.
30. We had also by our order dated 16-12-2015 Set out in paras 1 to 18, above 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 entering Delhi. Several options in that regard are according to Mr Salve being examined and that the EPCA has asked the authorities concerned to finalise the method urgently. We hope and trust that the directives issued by this Court are implemented at the earliest. We request EPCA to pursue the matter further with the authorities concerned to ensure that the directions issued by us are implemented faithfully. Mr Kumar argued that several representations have been received by the Government of India from private commercial vehicle owners whose vehicles are more than 10 years old and cannot, therefore, be plied in Delhi. The representations, it appears, make a grievance against the NCT of Delhi which is refusing to issue “No-Objection Certificate” (NOC) for sale of such vehicle to purchasers from outside Delhi/NCR. Mr Rahul Mehra, learned counsel for the Government of NCT of Delhi, submits that NOCs are being refused to such vehicle owners on account of a restraint order passed by the National Green Tribunal (NGT) according to which no diesel vehicle older than 10 years and no petrol vehicle older than 15 years can be given a “No-Objection Certificate” (NOC) even for purposes of sale. This direction, it appears, has been questioned by the NCT of Delhi before the NGT itself but the matter is still pending. In the meantime, we 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/Delhi. We, accordingly, direct that the Government of NCT of Delhi/statutory authorities concerned shall, on suitable applications made by the vehicle owners for grant of NOC, issue such certificate to enable the owners to sell the vehicles to purchasers outside NCR. We make it clear that this direction shall not prevent the NGT from examining in due course whether diesel vehicles older than 10 years could be registered outside NCR and if so, subject to what conditions.
31. Mr Salve also points out that there is typographical mistake in our order dated 16-12-2015 Set out in paras 1 to 18, above inasmuch as instead of “NCR” the expression “NCT” and instead of “31-3-2016” expression “1-3-2016” have been used in para 11 (above) of that order. We had in the said paragraph directed all taxis including those operating under aggregators like OLA and UBER to be converted to CNG not later than 31-3-2016. We make it clear that the said direction will apply to all such taxis as are operating in the NCR and to be converted to CNG but not later than 31-3-2016. The expressions “NCT” and “1-3-2016” shall, accordingly, stand replaced by “NCR” and “31-3-2016”.
32. Mr Salve also pointed out that issue of availability of CNG supply was raised before EPCA in the meeting of EPCA held on 19-12-2015 in which it was pointed out by the States concerned that supply of CNG in the NCR is not a problem and that Ministry of Petroleum and Natural Gas was taking steps to provide 104 additional CNG stations in the 10 districts by creating CNG stations in the said districts by 31-3-2016. We, accordingly, request EPCA to pursue the matter further to ensure that setting up of 104 additional CNG stations in the 10 districts of NCR by 31-3-2016 becomes a reality and supply network in the districts where there is no supply currently, is also suitably established.
33. Mr Salve also pointed out that by our order dated 28-7-1998 M.C Mehta v. Union of India (1998) 6 SCC 63 , this Court had directed the Government of NCT of Delhi to augment its bus fleet by raising the number of buses from 5000 to 10,000 by April 2001. He submits that the Delhi Government does not appear to have taken any steps in that direction, with the result that public transport system within the National Capital Region remains poor causing inconvenience to the commuters. He prays for a direction to be issued to the Government of NCT of Delhi to comply with the direction already issued by this Court and to augment the bus fleet in all possible ways so that the travelling public is not inconvenienced.
34. Mr Rahul Mehra, learned counsel appearing for the Government of NCT of Delhi, on the other hand submits that while some steps have already been taken by the Government for purchase of additional buses for use within NCR, a severe impediment in the process of augmentation of the bus fleet is caused by the lack of space for setting up bus depots. He points out that the Delhi Development Authority (DDA) has already allotted a parcel of land measuring 70 acres, out of which possession of 45 acres remains to be delivered to the Government of NCT of Delhi. He prays for a direction to DDA to deliver possession of the remaining 45 acres of land for use as bus depot.
35. DDA is not a party to these proceedings, we therefore request Mr Ranjit Kumar to take instructions whether the land in question stands allotted and if so the reason for non-delivery of the entire extent of land to the State Government, as also the time-frame within which DDA shall ensure delivery of remaining extent of land. Mr Kumar assures us that the needful shall be done as expeditiously as possible.
36. Mr Kumar shall also take instructions from Delhi Metro Rail Corporation (DMRC) as to its plan for augmenting rolling stock and increasing the frequency of the trains keeping in view the heavy rush which the Metro is experiencing on account of odd/even scheme formulated and enforced by the Government of NCT of Delhi and other directions issued by this Court. Mr Salve submits that at present Euro-IV standard fuel is being used in Northern India and in 30 other cities in the country. He submits that the Government of India could be directed to make a disclosure whether the fuel of that standard can be made available throughout the country by 1-4-2016. Mr Ranjit Kumar, in reply, submits that according to his instructions BS-IV fuel will be available by 1-4-2017, including for two-wheelers. That submission is recorded. Mr Salve has drawn our attention to a communication dated 22-5-2015 addressed to the Chairman, IOCL, and other oil companies pointing out that the Ministry of Petroleum and Natural Gas is ready for switching over to BS-VI directly from BS-IV grade auto fuel w.e.f 1-4-2020. He submits that according to his instructions some of the car manufacturers are already manufacturing cars that are Euro-VI compliant which is equivalent to BS-VI standard. He submits if the vehicles that are BS-VI compliant are being manufactured by some of the companies, there is no reason why the remaining companies cannot upgrade their products to comply with BS-VI standards. He prays for a direction to the Government of India to examine whether the date already fixed viz. 1-4-2020 for making available BS-VI grade auto fuel, can be suitably advanced. We request Mr Ranjit Kumar to take instructions on this aspect also.
37. Mr Ranjit Kumar shall further take instructions from the Government of India, whether it is ready and willing to phase out, over a period of time, old vehicles running on diesel fuel and issue a direction to all other autonomous and statutory bodies controlled by it to do so. Needful be done by the parties by Wednesday, 20-1-2016.
IAs Nos. 366-70, 373-74 and WPs (C) Nos. 817, 728 of 2015 and 116 of 2013
38. Heard. For continuation of arguments post tomorrow i.e Wednesday, 6-1-2016 at 2 p.m
IAs Nos. 375-82, 385-86 in IA No. 365 in IA No. 345
39. Post on Wednesday, 20-1-2016.
IAs Nos. 371 and 372
40. Heard Dr J.N Dubey, learned Senior Counsel appearing for the applicant(s). Issue notice.
41. Mr Rahul Mehra, Advocate, appears and accepts notice on behalf of the Government of NCT of Delhi which has issued impugned notification. He shall take instruction and file its reply before Wednesday, 20-1-2016.
IAs Nos. 383 and 384
42. Heard. Issue notice.
43. Mr Rahul Mehra, Advocate, appears and accepts notice on behalf of the Government of NCT of Delhi who may file its reply before Wednesday, 20-1-2016.
Civil Appeal Diary No. 41690 of 2015
44. The learned counsel for the appellant seeks leave to withdraw this appeal with the liberty to intervene in WP (C) No. 13029 of 1985.
45. The civil appeal is, accordingly, dismissed as withdrawn with the liberty prayed for.
Order dated 7-1-2016
(Before Dr T.S Thakur, C.J and Dr A.K Sikri and R. Banumathi, JJ.)
IAs Nos. 366-68, 370 in IA No. 365 in IA No. 345, IAs Nos. 369, 373-74 in IA No. 366 in IA No. 365 in IA No. 345 in WP (C) No. 13029 of 1985 with WPs (C) Nos. 728 of 2015 and 116 of 2013
46. This order shall dispose of WP (C) No. 817 of 2015 filed under Article 32 of the Constitution of India and IAs Nos. 366, 369, 370, 373 and 374 filed by SMYR Consortium LLP and IAs Nos. 367 and 368 filed by South Delhi Municipal Corporation (SDMC) in WP (C) No. 13029 of 1985.
47. Writ Petition (Civil) No. 13029 of 1985 pending in this Court for over three decades has been filed in public interest by Shri M.C Mehta, a noted environmentalist, in which the petitioner primarily seeks directions considered suitable for improving the environment in the National Capital Region. A series of orders have been passed by this Court in the said petition over the past 30 years.
48. What, however, has triggered the controversy raised in Writ Petition (C) No. 817 of 2015 and the connected applications being disposed of by this order is an order passed by this Court on 9-10-2015 (2016) 2 SCC 33 , by which this Court had, inter alia, directed levy of “Environmental Compensation Charge” (ECC) of Rs 700 and Rs 1300 for the categories of vehicles, mentioned in the said order. Passenger vehicles, ambulances and vehicles carrying essential commodities like foodstuffs were, however, exempted from the said charge and so were oil tankers. The collection of ECC, from the vehicles entering Delhi from several entry points at the periphery was entrusted to the petitioner in Writ Petition (Civil) No. 817 of 2015 viz. SMYR Consortium LLP (hereinafter referred to as “SMYR” or “the toll collector”) who is the toll collector, by virtue of a contract entered into between SMYR and South Delhi Municipal Corporation. The proceeds of the collections are to be eventually handed over to the Government of NCT of Delhi by the Friday of every week.
49. The Delhi Government was in turn directed to furnish accounts of the receipts and the expenditure incurred to the Environment Pollution (Prevention and Control) Authority (EPCA) and to this Court on a quarterly basis. This Court had further directed the toll collector to put in place a Radio Frequency Identification Device (RFID) system at its own cost at nine main entry points in the city by 30-11-2015 and on the remaining 118 entry points by 31-1-2016 failing which the toll collector was to be treated as being in breach of their contractual obligation. Several other directions were issued by this Court which are of no immediate relevance for disposal of the present writ petition and the interlocutory applications. Pursuant thereto, the Government of NCT of Delhi has issued Notification dated 20-10-2015 and modified Notification dated 30-10-2015 imposing ECC as per the rates mentioned in the order dated 9-10-2015 (2016) 2 SCC 33 .
50. The above directions were then followed by yet another order passed by us on 16-12-2015 Set out in paras 1 to 18, above , by which we had, apart from raising the levy, issued certain further directions including a direction that traffic from NH 1 connecting the northern States to Delhi and NH 8 connecting Jaipur and western parts of the country to the national capital Delhi shall be diverted to bypass the city. Certain other directions regarding conversion of diesel taxis into CNG-run vehicles and regarding registration of SUVs and private cars of the capacity of 2000 cc and above running on diesel fuel were also issued. This order paved way for yet another Notification dated 23-12-2015 revising the rates of ECC.
51. As pointed out above, SMYR has a toll-collecting contract from Respondent 2, South Delhi Municipal Corporation (SDMC), effective from 16-5-2015. The contract is meant to last for a period of three years ending 16-5-2018. The contract, inter alia, provides for installation of RFID system by the contractor at its own costs at 9 entry points within a period of six months and the remaining over an unspecified period of time. The contract envisages payment of a sum of Rs 10,54,13,115 to be made by SMYR on every Tuesday of every succeeding week. SMYR, in terms of the contract, is required to furnish bank guarantees for the due and faithful performance of the contractual obligations undertaken by it.
52. The case of SMYR is that on account of the direction issued by this Court in terms of our orders dated 9-10-2015 (2016) 2 SCC 33 and 16-12-2015 Set out in paras 1 to 18, above , the vehicular traffic entering the national capital has been reduced considerably not only on account of the direction regarding diversion of vehicles that are not Delhi-bound, away from Delhi but also on account of the imposition and later enhancement of the levy towards ECC. The petitioner's further case is that on account of the orders passed by this Court and the adverse impact it has had on the collection of toll, it has been unable to remit the stipulated amount of Rs 10.54 crores per week for the weeks commencing 2-11-2015. The petitioner's further grievance is that on account of the fall in the vehicular traffic and the resultant lower levels of collection, it could remit to the respondent Corporation a lesser amount proportionate to the incoming vehicular traffic i.e 70% of the contractual amount, which left a deficit of nearly Rs 28.46 crores between 2-11-2015 and 28-12-2015. Taking note of the said deficit, SDMC has, it appears, encashed three of the bank guarantees furnished by the petitioner toll collector for a sum of Rs 21.19 crores (approximately).
53. Aggrieved by the imposition of ECC in terms of a Notification dated 20-10-2015, as modified by the Notifications dated 30-10-2015 and 23-12-2015, SMYR has filed the present writ petition in which it has prayed for a certiorari, quashing the said notifications and a writ of prohibition restraining Respondent 1, Government of NCT of Delhi, from acting in terms or in furtherance thereof. The petitioner has, apart from WP No. 13029 of 1985, filed interlocutory applications mentioned above for modification of the orders passed by this Court, imposing ECC on the Delhi-bound vehicles.
54. Appearing for SMYR, Mr Shyam Divan, learned Senior Counsel, strenuously argued that the imposition of ECC by the Government of NCT of Delhi in terms of the impugned notification was unsupported by any legal sanction. He urged that the notification was no more than an executive order by which no levy like the one imposed thereunder could be lawfully imposed. He submitted that although the notifications in question have been issued pursuant to the orders passed by this Court yet the same have to be tested on their own merit and by reference to the constitutional provisions which do not permit levy of any such charge on vehicles entering any local area. He submitted that there was no legislative sanction, leave alone any constitutional authority under which a notification could impose or legitimise recovery of any such charge especially when the same impacted an existing contract, lawfully entered between two independent and unrelated parties.
55. Alternatively, it was submitted by Mr Divan that keeping in view the changed scenario and the fact that the number of vehicles entering Delhi would stand further reduced on account of further directions issued by this Court, the contract awarded in favour of the petitioner was no longer feasible. He urged that the petitioner could be given the option to exit on terms considered reasonable to avoid complication including litigation that may inevitably follow any action which the parties to the contract may choose to take. It was submitted that the petitioner was ready and willing to continue on the existing contractual terms up to 31-1-2016, to enable any alternative arrangement made by the respondent Corporation to take effect from 1-2-2016. It was urged that in order to give a quietus to the controversy relating to the legality of the notifications as also the rights and obligations of the parties under the contract executed between the petitioner and the respondent Corporation, this Court could in exercise of its power under Article 142 of the Constitution of India, pass appropriate directions to ensure a smooth transition for a takeover by the new contractor to be appointed by the Corporation.
56. Elaborating that submission, Mr Divan pointed out that consequent upon the directions issued by this Court the petitioner had made arrangements for collection of ECC at the stipulated rate by engaging an additional work force comprising nearly 800 persons to man the entry points for the collection work. This, according to Mr Divan, involved an additional expenditure towards salaries/wages of those engaged by the petitioner, which was in the range of Rs 1,00,00,000 (Rupees one crore) per month approximately. The petitioner had, according to Mr Divan, incurred additional monthly running expenses to the tune of rupees one crore approximately. This, according to Mr Divan, entitled the petitioner toll collector to claim service charge for the service provided by the petitioner to the Government of NCT by way of collection of ECC on its behalf. Directions for payment of the service charge could, according to the learned counsel, issue by debiting to ECC amount deposited with the Government. Relying upon a Circular dated 15-6-2007 issued by NHAI, Mr Divan argued that according to the said Circular, the service charge prescribed by the Highway Authority ranged from 14% to 20%. It was further submitted that the petitioner itself was paying a service charge of 13.5% to M/s ITNL Toll Management Services Ltd. which was rendering service to the petitioner at Delhi-Noida-Delhi (DND) flyover.
57. Reliance was also placed on a similar charge being paid by him at the rate of 7% to M/s Badarpur Faridabad Tollway Ltd. which was engaged for rendering similar toll collection service to the petitioner at the Badarpur entry point. It was urged that keeping in view the Circular issued by the National Highways Authority of India (NHAI) as also the service charge being paid by the petitioner to its service providers, the petitioner would be entitled to a service charge of a minimum of 10% if not more of the amount collected towards ECC.
58. Mr Divan further submitted that in addition to the payment of service charge, the petitioner ought to be suitably compensated for transfer of the infrastructure put in place in connection with the collection of toll and ECC. The infrastructure comprises computer software, hardware, CCTV, lights, stationery and fixtures, etc. which were under the terms of the contract liable to be handed over to the Corporation at the end of the contractual arrangement but will now be made over to the Corporation or its contractor due to premature exit of the petitioner. It was submitted that if this Court were to find it difficult to estimate the value of the equipment so installed for purposes of assessing the amount of compensation payable to the petitioner, the least this Court could do was to keep the said aspect in mind while determining the extent of service charge payable to it.
59. On behalf of the respondent South Delhi Municipal Corporation (SDMC), it was contended by Ms Pinky Anand that the Corporation considers the writ petitioner to be in default and proposes to terminate the contract, invoke the bank guarantees furnished by it and recover the amount otherwise contractually payable by the contractor. She urged that the contractor had defaulted in the performance of its contractual obligations as it had failed to pay the contracted amount of Rs 10.54 crores (approximately) every week between 2-11-2015 and 3-1-2016.
60. There was, according to Ms Pinky Anand, a deficit of Rs 28.46 crores (approximately) for the above period which has been partially recovered by the respondent Corporation by invoking three bank guarantees totalling a sum of Rs 21.19 crores (approximately) leaving a balance of Rs 7.26 crores (approximately). She submitted that if the contract were to be terminated as the Corporation proposes to do, the Corporation would in addition be entitled to claim a penalty of 20% of the total toll contract fees amounting to Rs 330.69 crores against which the petitioner was required to furnish a performance bank guarantee of Rs 179.98 (approximately), but has furnished bank guarantees for a lesser amount promising to make up the deficiency in due course. The petitioner could also be blacklisted and so could its LLP partners. She submitted that all these options were open to the Corporation yet the Corporation was not averse to allowing the contractor to exit if such exit is considered just and proper by this Court in the peculiar circumstances of the case.
61. Mr Harish N. Salve, learned Senior Counsel who has been assisting us in these matters submitted that the changed situation in which the contractor is placed, on account of the orders passed by this Court, may have really made the toll collection contract unworkable, although the contractor has had from the very beginning a clear idea that vehicles that were not Delhi-bound, were not supposed to enter Delhi and were in terms of the contract required to be diverted to bypass Delhi. The directions issued by this Court restraining of vehicles from entering Delhi may, in that view, have had no real impact on the collection of toll legitimately payable by such vehicles. Even so, the Corporation may, argued Mr Salve, be justified in annulling the arrangement as the earlier contract, inter alia, provides for installation and operation of the Radio Frequency Identification Device (RFID) systems by the toll collecting contractor which may not be the right thing to do keeping in view the fact that RFID system will remain available to the toll collecting contractor for any possible manipulation. The ideal thing which according to Mr Salve, could be done was to direct installation and operation of RFID system by an agency other than the contractor, appointed to collect the toll.
62. This, according to Mr Salve, may not be possible in the given situation as the contract, executed between the parties, is a composite contract for collection of toll as well as for installation of RFID system. The exit proposal given by Mr Divan, could, therefore, be a reasonable solution not only for the contractor to part company but also for the Corporation to take a call on appointing independent agencies for collection of toll and installation of the RFID system.
63. On the question of payment of service charge to the petitioner towards the service provided by way of collection of 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 additional manpower but the determination of the extent of expenditure on the same may require a comprehensive exercise which may not be feasible in these proceedings. 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 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 present set-up/system 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 remained short-paid by the petitioner could be set off 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 of Rs 10,54,13,115 for the remaining three weeks of January 2016.
64. 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 an ongoing 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 an ongoing contract has been affected by what is perceived to be a fallout 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 only 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 Amicus.
65. As rightly mentioned by Mr Salve, there is a total deficit of Rs 7,26,30,799 up to 5-1-2016. That amount if set off against the claim which the petitioner makes towards service charge and compensation for the infrastructure payable to it, including software, hardware, CCTV, lights, stationery and fixtures, etc. and further including compensation for a premature termination of the contract will put an end to the uncertainty that looms large over the entire arrangement. Any such settlement will finally determine rights and obligations of the parties flowing from the contract.
66. In the circumstances, therefore, it is unnecessary for us to deal with the merits of the challenge mounted by the petitioner. Instead, the matters, with the consent of the counsel for the parties, stand disposed of with the following directions:
66.1 The petitioner SMYR Consortium LLP shall continue to collect toll and ECC as before, at the rates stipulated for that purpose and deposit Rs 10,54,13,115 towards toll every week with the respondent South Delhi Municipal Corporation (SDMC) till the end of January 2016.
66.2 The amount collected towards ECC shall be deposited with the Government of NCT of Delhi.
66.3 In the event of default in the making of deposit(s), as mentioned above, the respondent Corporation shall be free to encash the bank guarantees available with it and forfeit the securities provided by the petitioner.
66.4 The managing partner(s) of the petitioner SMYR Consortium LLP shall in addition file individual undertakings in this Court undertaking to faithfully comply with the above directions. Undertakings shall be filed by the managing partner(s) within one week from today.
66.5 The amount of Rs 7,26,30,799, short deposited by the writ petitioner, shall stand set off towards compensation payable to the petitioner for services rendered by it and for premature termination of the contract. The said amount shall, however, be reimbursed to respondent Corporation by the Government of NCT of Delhi from the amount collected towards ECC and deposited with the Government of NCT of Delhi. The reimbursement shall be made within four weeks from today.
66.6 The respondent Corporation shall be free to make any alternative arrangement in the manner considered appropriate but whatever be the arrangement made by it, the same shall be made effective not only for collection of the toll but also ECC. The Corporation would do well to initiate proper action in that direction well in time so that necessary arrangement is put in place by Monday, 1-2-2016.
66.7 The petitioner and the respondent Corporation shall have no further claims against each other, on any count whatsoever, arising out of or in connection with the contract which shall w.e.f 1-2-2016 stand terminated as fully satisfied on the terms, mentioned above.
66.8 We make it clear that this order has been passed in the peculiar circumstances of this case in exercise of our power under Article 142 of the Constitution of India and shall not be a precedent for other cases.
66.9 Upon satisfactory compliance with the above directions in regard to deposit of the money, etc. and handing over of the existing system with all the related infrastructure, after proper inventorisation, etc., the bank guarantees lying with the respondent Corporation shall be returned to the petitioner SMYR Consortium LLP.
WP (C) No. 728 of 2015 and WP (C) No. 116 of 2013
67. Post on Wednesday, 20-1-2015.
Order dated 21-1-2016
(Before Dr T.S Thakur, C.J and R. Banumathi, J.)
IAs Nos. 371-72, 375-94 in IA No. 365 in IAs Nos. 345 and 395-96 in WP (C) No. 13029 of 1985 with WP (C) No. 728 of 2015, WP (C) No. 116 of 2013
68. Pursuant to our order dated 5-1-2016 Set out in paras 19 to 45, above , an affidavit has been filed by Mr Sibash Kabiraj, Deputy Inspector General, National Highways, Haryana stating that the directions regarding diversion of traffic from NH 1 and NH 8 have been implemented. The affidavit also indicates the diversion figures in Panipat. The affidavit further states that insofar as diversion of traffic from NH 2 and NH 10 is concerned, a preliminary meeting has taken place on 9-1-2016 in which some decisions have been taken which shall be finalised by the next meeting scheduled to be held on 23-1-2016.
69. It is submitted that the direction issued by this Court for diversion of traffic from NH 2 and NH 10 shall be faithfully complied with pursuant to the deliberations held in the meeting dated 9-1-2015 and that scheduled to be held on 23-1-2016. The Deputy Inspector General (Traffic and Highways) shall accordingly file another affidavit indicating the steps taken in obedience to the directions of this Court.
70. Mr Gaurav Bhatia, learned counsel for the State of U.P, prays for time and is granted two weeks' time to file an affidavit indicating the steps taken by the authorities for complying with our directions dated 5-1-2016 Set out in paras 19 to 45, above regarding diversion of traffic on NH 58 and NH 57 away from Delhi.
71. Mr Ranjit Kumar, learned Solicitor General may in the meantime take instructions from the National Highways Authority of India (for short “NHAI”) as certain directions issued by us or those that we may issue in future would demand the presence of the said authority before us.
72. By our order dated 5-1-2016 Set out in paras 19 to 45, above we had requested the Solicitor General of India to file a status report as regards the feasibility of providing a leakage-free recovery of toll system like Radio Frequency Identification Device (RFID) or any other system supported by modern technology. Mr Ranjit Kumar seeks some more time to do the needful. He is permitted to do so by the next date of hearing.
73. Mr Ranjit Kumar further submits that the direction regarding setting up of 104 CNG stations in the 10 districts of the National Capital Region by 31-3-2016 is being complied with and the authorities shall soon report further progress in the matter to the Environment Pollution Control Authority (EPCA).
74. As regards our direction regarding augmenting of the bus fleet in the NCT of Delhi, Mr Ranjit Kumar points out that at present there are around 6000 buses being plied by Delhi Transport Corporation. He submits that out of the seven parcel of land allotted to the Government three have already been handed over to the Transport Department by the NCT of Delhi while the Government has yet to respond as to its requirement qua the fourth site. Three more sites mentioned in the list are, according to Mr Ranjit Kumar, involved in litigation. He further points out that according to his instructions some of the bus parking areas remain unutilised. He submits that he will be able to make good that submission before EPCA given an opportunity to do so. We request EPCA to examine the matter and also to make its recommendations regarding providing of any further space for parking of buses.
75. We had directed Mr Ranjit Kumar to take instructions from DMRC as to its plan for augmenting Metro Rail sector by increasing the frequency of trains. Mr Ranjit Kumar submits that insofar as increasing the frequency of trains is concerned, DMRC finds it difficult to do so as any reduction in the intervals between trains will demand heavy capital investment which DMRC cannot make at present. He, however, submits that DMRC is committed to commissioning the new lines using new coaches between December 2016 to December 2017 which would see at least 486 more coaches in operation. He submits that DMRC is augmenting its rolling stock by 420 additional coaches to be introduced in a phased manner by the end of December 2017 and as and when the coaches are delivered to DMRC the same will be immediately pressed into service. He undertakes to place the relevant facts and figures before EPCA in its next meeting in which event EPCA is requested to verify the true position and, if necessary, make recommendations to this Court for appropriate direction, if any.
76. As regards the advancement of Bharat-VI fuel, Mr Ranjit Kumar, on instructions, submits that conversion has already been preponed from 2023 to April 2020 and that according to his instructions it is not possible for Corporation to advance the said deadline any further. He, however, agrees to take up the matter with EPCA which shall examine and make recommendations as to the feasibility of further advancement, if any.
77. Mr Ranjit Kumar seeks some time to take instructions about the possible phasing out of old diesel vehicles in use with the Government and other autonomous and statutory bodies under its control. He may do the needful within three weeks.
78. Mr Harish N. Salve, learned Amicus Curiae, shall in the meantime, file his objections to IA No. 393 of 2011 filed by the Union of India seeking exemption from the direction of this Court dated 16-12-2015 Set out in paras 1 to 18, above insofar as vehicles required for use by the special protection group are concerned.
79. Mr Rahul Mehra, learned counsel for the State of NCT of Delhi submits on instructions that the Government of Delhi has already taken a decision that old diesel vehicles being used by the Delhi Government and its establishments shall be phased out. That submission is recorded.
80. By our order dated 16-12-2015 Set out in paras 1 to 18, above , we had directed the State Government concerned to take steps to enforce the CPCB Rules and Regulations against those engaged in construction activity causing environmental pollution to prevent rise of such pollution. Mr Salve submits that in view of the above direction, DPCC has issued certain notices to the projects found violating the pollution norms but no further details about those notices have been indicated. The learned counsel for the State of Haryana states that action has been taken against the polluting construction sites and builder engaged in that activity. The learned counsel for the NCT of Delhi and the State of Haryana are, therefore, permitted to file requisite data regarding steps taken against the polluting construction sites to EPCA which may have the same verified and recommend appropriate action wherever it is called for.
81. We make it clear that since the question whether any polluting construction sites has gone scot-free on account of any indifference or apathy on the part of the enforcement agency will 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.
82. We had by our order dated 16-12-2015 Set out in paras 1 to 18, above directed the Government of NCT of Delhi to take immediate steps for road repair work and also make pavements wherever the same are missing. Steps for procurement of requisite vacuum cleaning vehicles on Delhi road were also directed. The learned counsel for the NCT of Delhi submits that given two weeks' time he will place the progress made on the direction before EPCA which will look into the same and submit a report to this Court. The learned counsel for the NCT of Delhi submits that although some vacuum cleaning work is being done during the daytime but instructions will have to be issued to the NDMC Department concerned for such work being carried out in Delhi at night-time also. As regards waste burning also we direct DPCC, Government of NCT of Delhi, State of Haryana, State of U.P to report the action taken by them in compliance with the direction issued by this Court to EPCA which shall make use of its volunteers and verify compliance and failure, if any, on the part of the enforcement agencies in doing the needful.
83. Mr Harish Salve submits that not only had the Government of Delhi requested for closure of Badarpur Thermal Power Station but even the EPCA report which has been filed before this Court recommends its closure. He submits that the Government of India could be asked to respond to the demand for closure of the Thermal Power Station at Badarpur and NTPC could also be notified to make its submissions on that subject. Mr Ranjit Kumar, learned Solicitor General has agreed to take instructions from the Government of India on the subject including instructions from National Thermal Power Corporation through its Managing Director and to show cause why the Thermal Power Station at Badarpur should not be shut down or directed to make use of alternative or less polluting fuel instead of coal.
84. Notice shall issue in addition to Managing Director, NTPC returnable within three weeks.
IAs Nos. 395 and 396 of 2016
85. Mr K.T.S Tulsi, learned Senior Counsel has drawn our attention to IAs Nos. 395 and 396 of 2016 in which the applicant has prayed for clarification of order dated 26-11-2014 passed by the National Green Tribunal for holding a vintage car rally. Mr Tulsi submits that although the application for clarification of the Tribunal's order should have been made before the Tribunal itself yet it may decline to pass any orders keeping in view the fact that the present proceedings are pending before this Court. We, however, permit the applicant to approach the Tribunal with an application for clarification/exemption for the proposed vintage car rally as a one-time event. The pendency of these proceedings, we make it clear, shall not prevent the Tribunal from passing appropriate orders on any such application.
86. List on 18-2-2016.
Order dated 12-2-2016
(Before Dr T.S Thakur, C.J and M.Y Eqbal and R. Banumathi, JJ.)
IAs Nos. 363 & 364 in IA No. 344 in WP (C) No. 13029 of 1985
87. Issue notice to Hsiidc, M/s KMP Expressways Ltd. and Essel Infraproject Ltd. returnable within four weeks.
88. Mr Ravinder Bana, Advocate accepts notice on behalf of Hsiidc. He shall file a counter-affidavit within four weeks. Particulars and accurate addresses of the remaining two noticees shall be furnished by the learned counsel for Hsiidc. Dasti is permitted.
89. Mr Rohatgi, learned Attorney General prays for permission to suitably amend the prayer in view of certain subsequent developments. He may do so with an advance copy to the learned counsel for the opposite parties.
90. List after service is complete.
Order dated 18-2-2016
(Before Dr T.S Thakur, C.J and Uday U. Lalit, J.)
IAs Nos. 371-72, 375-94, 397-406 in IA No. 365 in IA No. 345 in WP (C) No. 13029 of 1985 with WP (C) No. 116 of 2013, WP (C) No. 728 of 2015
91. Issue notice in all the pending applications to the learned counsel for the opposite parties who shall file their responses within one week. Copies of all the applications and responses shall be served upon the opposite parties. Post again before a Bench of which Hon'ble Mr Justice Uday Umesh Lalit is not a member.