ORDER
N.K. Jain, C.J.
1. Karnataka Lorry Malikara Okkuta (R) and some registered owners of the lorries have filed these petitions on 20.12.2002 praying to quash the Government Order dated 13.11.2002 and to direct the State Government to constitute an expert Committee to go into the question of controlling pollution by alternate methods of using CNG fuel or any other clean fuel, by replacement of worn out parts of engine etc.
2. The grievance of the petitioners is that the impugned notification, completely banning the entry of vehicles which are aged more than 15 years from the outer ring Road even in a phased manner, would affect the fundamental right of the petitioners guaranteed under Article 19(1)(g) of the Constitution of India and also would not fall within the meaning of reasonable restrictions under Article 19(6) of the Constitution. It is stated that the Government has misinterpreted the order passed by the Supreme Court in M.C. MEHTA v. UNION OF INDIA, W.P.No. 13029/1985; : [2001]2SCR698 while passing the impugned notification without considering the alternative method, and therefore, the impugned notification is liable to be set aside.
3. In response to the notice 27.12.2002, the respondents have filed statement of objections. It is stated that the impugned notification has been passed to preserve the quality of air and control air pollution and to give effect to the Air (Prevention and Control of Pollution) Act, 1981 (for short 'the Air Act'). It is stated that the Respondent-Board is a statutory Board constituted under Section 4 of the Water (Pollution and Control of Pollution) Act, 1974 and as per Section 4 of the Air Act, the said Board shall be deemed to be a State Board for the prevention and control of air pollution. Section 17 of the Air Act provides for functions of State Board to lay down the standards for emission of air pollutants into the atmosphere. It is also stated that Section 20 of the Air Act would override the provisions of the Motor Vehicles Act, 1988. It is further stated that the vehicular population of the State is 40 lakhs and about 40% of the total vehicular population is concentrated in and around Bangalore City and on account of the increase in vehicles, the Ambient Air Quality in Bangalore is deteriorating and becoming a health hazard to the Bangaloreans. The respondent-Board has taken note of results of the Air Quality for the years 1999-2000, 2000-2001 and 2001-2002, which indicated that there is a rapid deterioration of Air Quality in Bangalore city, and therefore, the impugned notification directing the Transport Commissioner to take all necessary steps to ban entry of commercial/ transport vehicles of age of 15 years or more into Bangalore City from the Outer Ring Road limits of Bangalore and to phase out the commercial/transport vehicles more than 15 years old, as indicated in the schedule, cannot be interfered with. It-is also stated that the question of misinterpreting the decision in M.C. Mehta's case (supra), while issuing the impugned notification, does not arise.
4. This Court, on 27.12.2002, while considering the Writ Petitions, by a detailed order, did not grant the interim stay and rejected the interim prayer as sought for in the petitions. However, vide Notification No. HCBB 159/04 dated 22.7.2004 the matters pertaining to pollution have been referred to the Division Bench. These cases have come up before us on 5.8.2004.
5. Learned Counsel appearing for the Writ Petitioners, Sri D.L.N. Rao submitted that under the Environment Act, it is the Central Government, which has got jurisdiction to issue directions and the State Government has no authority to issue directions and the provisions of the Air Act, would not override the provisions of the Motor Vehicles Act. He also submits that this Court in Writ Petition (PIL) No. 12316/ 2000 disposed of on 15.10.2001 has held that it is open to the State Government to request the Central Government to invoke the provisions of Section 59 of the Motor Vehicles Act, and therefore, it is unnecessary to go into the validity of the order. He further submits that as the Government notification has not been given effect to till date, respondents may be directed to take action in accordance with law with liberty to the petitioners, if aggrieved, to challenge the same in accordance with law.
6. Learned Government Advocate Sri Sheshadri submits that the direction has been issued in exercise of the power of the State Government under Section 5 of the Environment Act and Section 17 of the Air Act, which override the provisions of the Motor Vehicles Act. He also submits that in view of the directions issued by this Court in PIL petitions in W.P.Nos. 34314/2000 and 12316/2000, dated 15.10.2001, after consultation with the State Environment Board, the directions has been issued by the Government to protect Bangaloreans from air pollution caused by vehicular traffic and to protect the right conferred upon the citizens under Article 21 of the Constitution of India and therefore, the impugned notification does not suffer from any illegality.
7. The Commissioner for Transport-respondent No. 3 has filed an affidavit on 27.12.2002 giving the statistics as on 31.10.2002 that 1,73,103 transport vehicles are registered and among them the vehicles that are 20 years and above are 20,327, the vehicles that are 17 years and less than 20 years are 13,409 and vehicles that are 15 years and less than 17 years are 14, 923. It is stated that only 48,659 vehicles are to be phased out in a phased manner and about 9,000 vehicles coming under the purview of goods carriages and these vehicles are required to be pushed out from Bangalore city and they are allowed to operate from the outer ring road. It is stated that most of these vehicles carry bricks, sand, cement, jelly, etc. which cause environmental pollution.
8. The State Pollution Control Board-respondent No. 4 has filed counter. It is stated that the powers conferred under Section 20 of the Air Act shall have an overriding effect notwithstanding anything contained under the provisions of the Motor Vehicles Act and it also referred to in Section 52 of the Air Act. It is stated that after considering the rapid deterioration of Air Quality in Bangalore city, respondent No. 4, has in its Board meeting held on 28.05.2002 resolved to recommend the State Government on some points and the Committee has also taken note of the decision of the Supreme Court in M.C. MEHTA v. UNION OF INDIA AND ORS., W.P. (Civil) No. 13029/1996 Therefore there is no illegality in the impugned Government notification and it needs no interference.
9. On 23.12.2002, Sri N.P. Amrutesh, party-in-person (Advocate) has filed an application for impleading himself as a party. It is stated that the Government is duty bound and shall make endeavour to protect and improve the environment. Restrictions are necessary for safety, health and peace of the community. It is also stated that there is no ground that their families will be deprived if such old vehicles are thrown out. In any case, such old vehicles cannot be permitted at the cost of public health, safety and environment. He may be made party in the public interest.
10. We have heard the learned Counsel appearing for the parties and perused the material on record.
11. It is clear from a perusal of Section 5 of the Environment Act, 1986, that the said Section contains the power to give directions to the Central Government for enforcing the provisions of the said Act and explanation makes it clear that for the purpose of avoidance of doubts, power to issue directions under the Section includes power to direct the closure, prohibition or regulation of any industry, operation or process. It is clear from the material on record that the said power of the Central Government has been delegated to the Government of Karnataka and other States under Order dated 10.02.1988 published in the Gazette and therefore, the State Government is entitled to exercise power under the said Section. Further, it is clear from the provisions of Section 20 of the Air Act that where a direction has been issued in compliance with the provisions of Section 17(1) of the Act after consulting the Board, the instructions would be binding on the concerned authority under the Motor Vehicles Act and such authority shall, notwithstanding anything contained in the Act or the Rules made thereunder, would be bound to comply with such instructions.
12. As per the facts culled out, the impugned order was issued directing to restrict only the commercial/transport vehicles aged more than 15 years from entering Bangalore City from the outer Ring Road limits of Bangalore and no prohibition has been enforced for plying of the vehicles from outer Ring Road. Prohibition is only in respect of plying of the vehicles within the City of Bangalore and therefore, having regard to the object with which the impugned order is sought to be enacted, it cannot be said that it violates any of the fundamental rights of the petitioners. However, it is unnecessary to go into the details of the necessity of phasing out the entry of vehicles aged more than 15 years in the manner as described in the order dated 13.11.2002 as the said order has spent itself out without being implemented.
13. It is seen that on an earlier occasion, this Court had issued directions in Writ Petition No. 12316/2000, and Writ Petition No. 34314/ 2000 disposed of on 15th October, 2001 observing that the power under Section 59 of the Motor Vehicles Act is vested in the Central Government, but the State Government can exercise power under Section 20 of the Air Act and the State is also empowered to give instructions, in consultation with the State Board, to the concerned authority with a view to ensure that the standards prescribed for emission of air pollutants from automobiles laid down by the State Board under Clause (g) of Sub-section (1) of Section 17 of the Act are complied with. In those petitions, it was prayed to restrict the plying of commercial and transport goods and passenger vehicles in Bangalore and in the State of Karnataka which are 15 years of age from the date of manufacture, including private and public transport buses, lorries, vans, maxi cabs, mini buses, tempos, auto rickshaws, delivery vans, tankers, jeeps etc., as they are creating fumes of carbon monoxide, sulphur-dioxide and other air pollutant compounds like benzene, etc. which have been causing several dangerous diseases like cancer, asthma, allergies, chronic fatigue syndrome, respiratory problems, etc. In those cases, it was observed that the State Government is always free to take necessary steps regarding plying and renewal of registration of vehicles of 15 years from the date of manufacture and to make rules in accordance with law and the Government is also free to take necessary steps by requesting the Central Government to invoke the power under Section 59 of the Motor Vehicles Act, if necessary.
14. In the notification dated 13.11.2002, which has been challenged by the petitioner-Association, the Transport Commissioner is directed to take steps to ban entry of commercial/transport vehicles of age of 15 years or more into Bangalore city from the Outer Ring Road, and to phase out the commercial/transport vehicles more than 15 years old in the manner indicated in the schedule given below:
SCHEDULE---------------------------------------------------------Commercial /Transport Shall Not Ply inVehicles Age Bangalore City after---------------------------------------------------------20 Years and above 01.01.200317 years to less than 20 years 01.05.200315 years to less than 17 years 01.05.2004---------------------------------------------------------
The impugned notification has not been given effect to and the same has lapsed by efflux of time. Be that as it may. It is strange that despite directions in the PIL petitions referred to above the Government has not taken any concrete steps for the safety and welfare of the public at large. In this way, the Government, though it is duty bound, is not performing its duties to control the vehicular pollution. Protection of environment is a primary function of the executive. The Government should devise suitable measures and provide machinery for rigid enforcement of such measures as are necessary to curb the menace of chaotic traffic conditions and vehicular pollution with a view to ensure the welfare of the general public. We are aware that this Court cannot legislate but at the same time, it cannot be a mute spectator. As stated, the Government is not performing its duties despite issuance of directions in the PIL petitions and for the reasons best known, the impugned notification has not been given effect to even stay application was rejected on 27.12.2002. Since the point of jurisdiction of the Government is agitated, we have considered the same regarding power and in the circumstances, it is necessary to issue certain directions to the Government to protect the environment and to ensure the safety and welfare of the public in particular of Bangalore city.
15. The Hon'ble Supreme Court in a number of cases has observed that the Government can take appropriate action to ensure safety and welfare of the public. More particularly, the Supreme Court in M.C. Mehta's case (supra) has held that directions that are issued under the Environment Act are for protecting and safeguarding the health of the people, a right provided and protected by Article 21 of the Constitution and would override the provisions of every statute including the Motor Vehicles Act, if they militate against the constitutional mandate of Article 21. It is also observed that the norms fixed under the Motor Vehicles Act are in addition to and not in derogation of the requirements of the Environment Act.
16. In view of the above said provisions of the Environment Act and the Air Act and the observations of the Hon'ble Supreme Court in M.C. Mehta's case, it is clear that there is no merit in the contentions of the learned Counsel appearing for the petitioners that the State Government has no power to issue directions under Section 5 of the Environment Act and Section 20 of the Air Act. The argument is rejected.
17. It is well settled that it is always open to the State Government, which has authority under Section 5 of the Environment Act and Section 20 of the Air Act and to issue necessary directions. By the said notification, only the entry of vehicles aged more than 15 years within the city of Bangalore from the outer Ring Road has been prohibited, fixing the schedule. In is seen that as per the counter, the State Government, after consulting the Board, has take necessary steps having regard to the ground realities and the position prevalent in Bangalore, which is within its competence as stated, and therefore, the argument that the said steps taken in other Cities would ipso facto enable the Government to issue directions to prohibit the entry of transport/ commercial vehicles aged more than 15 years, has no substance. Anyhow, the notification has not been given effect to. The facts placed as per the affidavit is as on 1.1.2003. Now 18 months have passed and more vehicles must be on the road. Certainly, there is increase in the pollution in the city due to emission of toxic fumes by plying such vehicles. However, these facts are to be ascertained by the respective authorities concerned.
18. Under the circumstances, it will be appropriate to direct the respondents to evolve some scheme after considering the details. Government should also give sufficient time to the vehicle owners for replacement of the old vehicles, in a phased manner, to make available the CNG fuel and to have the vehicles converted to it in a phased manner. The authority concerned should overall monitor and check the two wheelers, four wheelers and other types of vehicles including commercial/transport vehicles as well as passenger vehicles, at important functions, and to see that they do not violate the prescribed norms of pollution and the traffic rules and to ensure the safety and welfare of the public. The authorities concerned are also free to take note of the direction issued by the Apex Court in M.C. Mehta's case (supra).
19. In the instant case, as discussed, the impugned notification has lapsed for non-implementation within the time prescribed in the schedule and question of setting aside does not arise as stated at this stage. They are free to discharge their duties in accordance with law. Under the circumstances as discussed, it is expected that the State Government will take appropriate and effective steps, at the earliest, but not later than six months from date of receipt of this order, in accordance with law. In view of this, it is not necessary to pass any order on the impleading application. However, it is always open to the aggrieved persons/vehicle owners, if any, to approach the concerned authority, if necessary, in accordance with law.
20. A copy of this order may be sent to the Government to take appropriate steps as per the directions, in accordance with law.
With the above said observations, these Writ Petitions are disposed of.